IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 20.04.2007 Coram: The Honourable Mr. Justice V. DHANAPALAN S.A. No.242 of 1996 O.S. Venkataraman .. Appellant vs. R.V.M.K. Prasad .. Respondent Second Appeal preferred under Section 100 of Civil Procedure Code against the judgment and decree dated 21.07.1994 passed in A.S. No.25 of 1993 on the file of the Sub Court, Poonamallee confirming the judgment and decree dated 20.11.1992 passed in O.S. No.1084 of 1972 on the file of the Additional District Munsif, Poonamallee. For appellant Mr. T.R. Mani, Senior Counsel for Mr. C.P. Sivamohan For respondent Mr. T.R. Rajagopalan, Senior Counsel for M/s. T.R. Rajaraman & Pushpa Sathyanarayanan J U D G M E N T This Second Appeal is preferred by the unsuccessful plaintiff, calling in question, the legality of the judgment of the Sub-Judge, Poonamallee in A.S. No.25 of 1993 confirming the judgment of the Additional District Munsif in O.S. No.1084 of 1972. 2. The plaintiff initially filed a suit for declaration of title and permanent injunction and subsequently filed an I.A. for amending the prayer seeking recovery of possession of the suit property and got the said I.A. allowed. 3. The case of the plaintiff, in brief, is as under: He purchased the lands in S. No.295/1 and 295/2 measuring 8 grounds and 60 sq. ft., which is the suit property, from one Kanniammal vide sale deed dated 17.06.1965 and has been in absolute possession and enjoyment of the same. The defendant who is the owner of plot no.4 lying to the north of the suit property, having purchased the same from Kanniammal on 05.03.1965, purchased yet another plot during April 1971 and on that basis, with a view to annexe the suit property to plot no.4 owned by him, attempted during the third week of September 1971, to destroy the fence put up by the plaintiff in the suit property. This was objected to by the plaintiff and a legal https://hcservices.ecourts.gov.in/hcservices/ notice was sent by the plaintiff on 29.09.1971 and an evasive reply notice dated 14.10.1971 was sent by the defendant. Since it is the plaintiff who got the sale deed executed first, he has to be granted (i) relief of declaration of title (ii) interim injunction against the defendant and (iii) relief of recovery of possession of the suit property by removing the superstructure in the suit property. 4. On the contrary, the case of the first defendant, as culled out from the written statement, is as follows: There is no correlation between the suit property and the property the plaintiff claims to have purchased; he (the defendant) is the owner of two plots measuring 5.02 acres in Survey Nos.295/1 and 295/2, viz., an extent of 16 grounds and 1,731 sq. ft. being plot no.4 purchased on 05.03.1965 from Kanniammal and an extent of 16 cents, purchased on 05.03.1971 from Natesa Chettiar, the second defendant who is none other than Kanniammal's husband, without any encumbrance; he has been in absolute possession and enjoyment of these properties right from the date of sale deed and there is absolutely no pleading in the plaint as to which portion was encroached by the first defendant in the land purchased by the plaintiff from Kanniammal. The first defendant filed his additional written statement contending that the I.A. filed in 1987 to amend the prayer in the plaint is barred by limitation. 5. On the side of the plaintiff, one witness was examined and three exhibits were marked and on the defendant's side, ten exhibits were marked and one witness was examined. 6. The Trial Court, on an examination of the evidence let in on either side, decreed the suit as for the declaration of title is concerned and negatived the relief of recovery of possession on the ground that the prayer for relief of possession was amended after a long span of 12 years and that the Limitation Act bars the claim for possession. 7. The lower appellate court concurred with the finding of the Trial Court with regard to declaration of title and negatived the claim for vacant possession but on a different ground, i.e. not on the ground of limitation but on the ground that the plaintiff has not clearly defined the portion encroached upon by the first defendant. 8. As against the negative findings of the Courts below, though different, in respect of recovery of vacant possession, the present Second Appeal by the plaintiff and this Court, had admitted this Second Appeal on the substantial question of law as to whether the relief for possession is barred by limitation. 9. Mr. T.R. Mani, learned Senior Counsel appearing on the side of the appellant has contended that the respondent has not preferred any appeal against the portion of decree that went against him in respect of declaration of title and thus, the appellant's title has become final and the finding of both the Courts below that the https://hcservices.ecourts.gov.in/hcservices/ appellant is not entitled to recovery of possession is not proper in view of the settled principle that possession follows title. He has further argued that since the respondent has not preferred any appeal against both the orders of amendment of the plaint schedule, on application of the doctrine of Relation Back, the plaint schedule as amended must be deemed to be effective from the date of the plaint itself and not from the respective dates of amendment in the absence of any order to that effect and therefore, the absence of mentioning of the extent of encroachment or trespass would not matter particularly, when the declaration of title is in favour of the appellant. 10. Attacking the reasoning of the Trial Court that the appellant is not entitled to recovery of possession since the prayer for such a relief was amended after a period of twelve years which is barred by law of limitation, the learned Senior Counsel for the appellant has argued that the said finding of the Trial Court cannot be sustained in view of the new Limitation Act under which it is only for the respondent to plead and prove adverse possession and it is not at all for the appellant to prove his title and possession within 12 years preceding the date of plaint and particularly and admittedly, when the respondent has not chosen to plead adverse possession in his written statement despite having been directed by this Court to do so in the Revision Petition filed by him, the judgment of the Trial Court in denying relief of recovery of possession due to law of limitation which is not accepted by the lower appellate court as well, is not acceptable. 11. In countering the finding of the appellate court in denying the relief of recovery of possession to the appellant on the ground that the appellant had not defined the exact extent or area encroached upon by the respondent, the learned Senior Counsel appearing for the appellant has strenuously contended that since the declaration of title granted by the Trial Court has not been challenged in the Appeal Suit by the respondent and by virtue of the provisions contained in the new Limitation Act, the appellant need not prove possession within 12 years preceding the date of plaint, irrespective of the area or extent of encroachment of land and that too, in the absence of any plea of adverse possession by the respondent. 12. The learned Senior Counsel for the appellant, in support of his arguments has relied on: a. A judgment of the High Court of Madras reported in AIR 1976 MADRAS 124 in the case of Bhagavathy Pillai & another vs. Savarimuthu and another: "Articles 142 and 144 gave rise to a good deal of confusion with respect to suits for possession by owners of property. The law as it stood appeared to favour a trespasser as against an owner, because the decision had held that in an ejectment action by the owner of the property, it was not sufficient for him to establish his https://hcservices.ecourts.gov.in/hcservices/ title, but he had also to go further and establish that he was in possession of the property within 12 years before the date of the institution of the suit. In order to redress this anomaly, Articles 64 and 65 were suitably altered. Article 64 deals with suits based on possession and not on title. In such a case the plaintiff, who while in possession had been dispossessed, could file a suit within a period of 12 years from the date of dispossession. For the purpose of Article 64, there is no question of proving any title. Article 65 relates to suits for possession based on title. In such a case, the period of limitation is 12 years when the possession of the defendant became adverse to the plaintiff. If in a suit falling under Article 65, the defendant wants to defeat the rights of the plaintiff, he has to establish his adverse possession for a period of 12 years, which has the effect of extinguishing the title of the owner by the operation of Section 27 of the present Act. If he fails to do so, then, the plaintiff cannot be non-suited merely because he was not able to prove possession within 12 years." b. yet another judgment of this court reported in AIR 1972 Madras 162 (V 59 C 52) in the case of The Southern India Education Trust, Madras vs. M.S. Jagadambal (paragraphs 10 & 13) In AIR 1968 SC 1165, Their Lordships of the Supreme Court while considering the relative scope of Sections 8 and 9 of the Specific Relief Act, had observed: "The uniform view of the courts is that if Section 9 of the Specific Relief Act is utilised, the plaintiff need not prove title and the title of the defendant does not avail him. When, however, the period of six months has passed questions of title can be raised by the defendant and if he does so, the plaintiff must establish a better title of fail. In other words, the right is only restricted to possession only in a suit under Section 9 of the Specific Relief Act but that does not bar a suit on prior possession within 12 years and title need not be proved unless the defendant can prove one. The present amended Articles 64 and 65 bring out this difference. Article 64 enables a suit within 12 years from dispossession, for possession of immovable property based https://hcservices.ecourts.gov.in/hcservices/ on possession and not on title, when the plaintiff while in possession of the property has been dispossessed. Article 65 is for possession of immovable property or any interest therein based on title. The amendment is not remedial but declaratory of the law." Relying on the above observation that the law as laid down by Article 64 and 65 of new Act is only declaratory and not remedial, Alagiriswami J., has expressed that Articles 64 and 65 should be deemed to have been the law even before the commencement of the new Act and that where when a person who has got title sues for possession is entitled to succeed even without showing possession within 12 years of suit, unless defendants are able to establish that they have perfected title by adverse possession, and that Article 142 of the old Act cannot be applied after the new Act came into force, even in respect of suits filed earlier. With respect, we are not able to accept the view of Alagiriswami, J. The decision of the Supreme Court above referred to does not, in our view, touch this aspect, and its observations that Article 64 and 65 of the new Act are declaratory of the existing law cannot be construed so as to take away the effect and operation of Article 142 of the old Act. In fact, we find that Their Lordships of the Supreme Court have accepted as correct the following dictum laid down in Perry v. Clissold, 1907 AC 73: "It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the original owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of Limitation applicable to the case, his right is for ever extinguished and the possessory owner acquires an absolute title." In our view, the said decision of the Supreme Court does not support the view taken by Alagiriswami, J. that even in respect of suits filed before the new Act came into force, it is https://hcservices.ecourts.gov.in/hcservices/ not incumbent upon the plaintiff to prove possession within 12 years of suit if he establishes title to the property." c. a decision of the Allahabad High Court reported in AIR 1978 Allahabad 555 in the matter of Smt. Bitola Kuer vs. Sri Ram Charan and others (para 9) "Coming to the question of limitation, it must be observed that the suit giving rise to this second appeal was instituted after coming into force of the Limitation Act, 1963. The trial court was clearly wrong in basing its finding on the question of limitation on considerations based on Art. 142 of the Limitation Act, 1908. the suit was on the basis of title and was governed by Art. 65 of the Limitation Act, 1963. The plaintiff could not be non-suited if she failed to prove her possession over the property in dispute within 12 years of the date of the institution of the suit. According to the finding recorded by the two courts below, the plaintiff had succeeded in proving her title. She could be denied the relief of possession only if the defendant succeeded in showing that he was in adverse possession of the property in dispute for more than 12 years. The two courts below have not taken into account the relevant consideration which ought to have been taken into account in arriving at the conclusion that the plaintiff's suit was barred by limitation. d. a judgment of the Orissa High Court reported in AIR 1990 Orissa 124 in the matter of Jagamohan Garnaik & others vs. Sankar Samal and others (para 4) "The aforesaid position of law as is apparent from an interpretation of Arts.64 and 65 of the Limitation Act cannot be said to be affected in any manner in view of Section 3 or Section 27 of the Limitation Act. Section 3 of the Limitation Act says that a suit filed after the prescribed period shall be dismissed even though limitation has not been set up as defence. In other words, a court can dismiss a suit on the ground of limitation even if the defence has not raised that plea, where on the face of the pleadings, the Court comes to the conclusion that the suit is barred by limitation. Section 27 lays down an exception to the general principle that limitation bars only the remedy and does not extinguish the right and such exception is insofar as sits for possession of properties are concerned. But neither Section 3 nor Section 27 https://hcservices.ecourts.gov.in/hcservices/ has anything to do with the onus of proof or burden of proof. We fail to understand how Section 3 or Section 27 changes the legal position arising out of Arts.64 and 65 of the Limitation Act. Even Mr. Misra, the learned counsel appearing for the defendants-appellants, does not press the decision of Hon'ble S.C. Mohapatra, J. into service and fairly states that the said decision is unsupportable in law. In view of the clear position emerging out of the provisions of Arts. 64 and 65 of the Limitation Act, we would answer the question posed before us by holding that when a plaintiff files a suit for declaration of title and possession basing his claim on his title and admits dispossession, then he is not to be required to prove that his dispossession was within twelve years of the filing of the suit and he can succeed on establishing his title and will fail only when the defendant proves that he has perfected his title by way of adverse possession and Section 3 or Section 27 of the Limitation Act does not change the aforesaid legal position in any manner. In our opinion, the decision in Second Appeal No.312 of 1980 (reported in 1988 (1) Orissa LR 176) (Khetrabasi Patra v. Guru Charan Patra) decided on 08.01.1988 by Hon'ble S.C. Mohapatra, J. has not at all been correctly decided and the law laid down therein is accordingly overruled." e. A Supreme Court decision reported in AIR 2001 SC 2896 in the matter of Siddalingamma & another vs. Mamtha Shenoy (para 10) ". . . An application for amendment under Order 6, Rule 17 of the PC was moved and the deficiency in the pleadings stood removed by the amendment permitted by the trial Court in exercise of its discretionary jurisdiction to do so. The order permitting the amendment was not put in issue promptly. Even the High Court in its impugned order has not found fault with the order of the trial Court permitting the amendment nor has it expressed an opinion that leave granted by the trial Court for amendment in the eviction petition suffered from any error of jurisdiction or discretion. On the doctrine of relation back, which generally governs amendment of pleadings unless for reasons the Court excludes the applicability of the doctrine in a given case, the petition for eviction as amended would be deemed to have been filed originally as such and the evidence shall have to be appreciated in the light of the averments made in the amended petition. The High Court though set aside the order of the trial Court but it is writ large from the framing https://hcservices.ecourts.gov.in/hcservices/ of the order of the High Court, especially the portions which we have extracted from the order of the High Court and reproduced in earlier part of this judgment, that the learned Single Judge of the High court also was not seriously doubting the genuineness of the landlady's requirement on the material available on record but was not feeling happy with the contents of the eviction petition as originally filed an over-zealous attempt on the part of the landlady in projecting her sister's sons and grand-children as her own. . ." f. yet another judgment of the Supreme Court reported in AIR 2002 SC 3369 in the matter of Sampath Kumar v. Ayyakannu & another (para 10) "An amendment once incorporated relates back to the date of the suit. However, the doctrine of relation back in the context of amendment of pleadings is not one of universal application and in appropriate cases the Court is competent while permitting an amendment to direct that the amendment permitted by it shall not relate back to the date of the suit and to the extent permitted by it shall be deemed to have been brought before the Court on the date on which the application seeking the amendment was filed." g. one more judgment of the Supreme Court reported in AIR 2004 SC 4261 in the matter of Ramaiah vs. N. Narayana Reddy (dead) by L.Rs. (para 9, 10 & 11) "We do not find any merit in the aforestated arguments. Article 64 of the Limitation Act, 1963, (Article 142 of the Limitation Act, 1908) is restricted to suits for possession on dispossession or discontinuance of possession. In order to bring a suit within the purview of that article, it must be shown that the suit is in terms as well as in substance based on the allegation of the plaintiff having been in possession and having subsequently lost the possession either by dispossession or by discontinuance. Article 65 of the Limitation Act, 1963 (Article 144 of the Limitation Act, 1908) on the other hand is a residuary article applying to suits for possession not otherwise provided for. Suits based on plaintiffs' title in which there is no allegation of prior possession and subsequent dispossession alone can fall within Article 65. The question whether the article of limitation applicable to a particular suit is article 64 or 65 has to be decided by reference to pleadings. The plaintiff cannot invoke article 65 by suppressing material facts. In the present case, in suit No.357/60 instituted https://hcservices.ecourts.gov.in/hcservices/ by N. Narayana Reddy in the Court of Principal Munsiff, Bangalore, evidence of the appellant herein was recorded. In that suit, as stated above, the appellant was the defendant. In his evidence, appellant had admitted that he was in possession of the suit property upto 1971. This admission of the appellant in that suit indicates ouster from possession of the appellant herein. In the present suit instituted by the appellant, he has glossed over this fact. In the circumstances, both the Courts below were right in coming to the conclusion that the present suit was barred by limitation. The appellant was ousted in 1971. The appellant had instituted the present suit only on 08.05.1984. Consequently, the suit has been rightly dismissed by both the Courts below as barred by limitation. h. a judgment of this Court reported in 2006 (1) CTC 526 in the matter of D.V. Athisayaraj vs. Tirunelveli Diocese Trust Association, No.5, Punithavathiyar Street, Palayamkottai, Tirunelveli (para 29) "In Sampath Kumar v. Ayyakannu and another, 2002 (4) CTC 189, the Supreme Court has held, reiterating the view already taken by the Apex Court: "An amendment once incorporated relates back to the date of the suit. However, the doctrine of relation back in the context of amendment of pleadings is not one of universal application and in appropriate cases, the Court is competent while permitting an amendment to direct that the amendment permitted by it shall not relate back to the date of the suit and to the extent permitted by it shall be deemed to have been brought before the Court on the date on which the application seeking the amendment was filed" 13. Per contra, the two-fold contention of Mr. T.R. Rajagopalan, learned Senior Counsel appearing on the side of the respondent, is that the appellant has not at all clearly set out the portion which he seeks to recover from the respondent and secondly, whether the case of trespass into the property pleaded by the plaintiff after the suit, i.e. in May 1987, is true. According to the learned Senior Counsel for the respondent, seeking relief of recovery of possession, the appellant had sought amendment of the plaint prayer only and no amendment was made in respect of the alleged encroachment in the main pleading. Thus, it is his argument that the series of amendments made by the appellant, i.e. the first amendment in respect of plaint schedule, the second amendment in respect of plaint prayer and the third amendment with regard to https://hcservices.ecourts.gov.in/hcservices/ schedule of property, would only bring to light the fact that the appellant himself was not sure of the property he was seeking to recover. 14. It is the strenuous contention of the learned Senior Counsel for the respondent that had the trespass been true, the appellant could have very well specified the date of trespass and the extent encroached by the respondent and in the absence of any such information in the plaint and in view of the settled proposition of law that no amount of evidence could be looked into by the Courts in the absence of necessary pleadings, the Trial Court is correct in negativing the claim of the respondent in respect of recovery of possession which is also confirmed by the lower appellate court. Regarding the non-filing of the written statement by the defendant, it is the argument of the learned Senior Counsel for the respondent that since no specific pleadings were made in the plaint with regard to relief of recovery of possession, the necessity to file a written statement did not