Case: Raj Rani and Another Vs. Kailash Chand and Another

This is the defendants appeal by special leave against the judgment and decree of the Allahabad High Court decreeing the suit of the plaintiff respondent for partition and separate possession of 2/3 share of House No. 397 in Katra, Allahabad. The plaintiff claimed to be the sole heir of the auction purchaser of the house in October, 1937, at a Court sale in execution of a mortgage decree. The house had been mortgaged by Sharda Prasad representing the line of one son of Kalyan Chand, the common ancestor and original owner, and Sheo Shankar and Sangam Lal representing the line of another son of Kalyan Chand. Kripa Shanker, now represented by the two appellants, his widow and son, was said to be a minor, and although, his brothers acted on his behalf, the defendants alleged that the loan and the mortgage were not binding upon him for want of legal necessity. Shital Prasad, a son of Kalyan Chand, was not a party to the mortgage deed. Hence, Sital Prasads share could not be said to have been sold. On 12th September, 1938, symbolical possession was taken by the auction purchaser, and, again in 1946, in proceeding for execution of a decree. But, the house continued to be in the occupation of Kripa Shanker, the husband of the appellant Raj Rani and the father of the appellant Kali Charan. Devika Rani, widow of Shital Prasad, who had filed a suit in 1937 for the declaration of her rights to 1/3 of the house, after her objections under Order XXI, Rule 100 of theCode of Civil Procedure had been dismissed, and obtained a decree from the appellate Court on 22nd January, 1941, with the result that Shital Prasads 1/3 share went out, had not been impleaded in the suit now before us. In 1945, the respondent-auction purchaser (now represented by son, Respondent No. 1 ) had filed a suit against Kripa Shanker and another for a declaration of his rights in respect of 2/3 share in another house and the ejectment of Kripa Shanker and Prayag Das from that house. Although that suit was in respect of another house, the defendants alleged that, in that suit, the auction purchaser had said that the house in dispute in the case now before us was also in possession of Kripa Shanker as a trespasser. Kripaa Shanker died in 1953 leaving the appellants in pos- session as his heirs.The suit now before us was filed on 10th August, 1959. It was alleged there that, although the auction purchaser had obtained possession of the whole house, yet, Smt. Devika Rani, the widow of Shital Prasad having continued in possession over 1/3 share, her claim to that portion had been accepted so that it was no longer in dispute. But, it was alleged that the auction purchaser has been in possession over 2/3 part of the house together with Devika Rani who had 1/3 share in the house. It was also alleged that, after the death of Devika Rani, one Sankata Prasad, defend- ant No. 3, had started giving himself out as the owner of 1/3 share, on the basis of a gift deed of 1953 in his favour, and that defendant No. 1, Raj Rani, had been giving out that Sankata Prasad had executed a sale-deed in favour of Kripa Shanker, defendant No. 2. In para 8 of the plant, however, it is alleged:"The defendants had no concern with the 2/3 share in the said house themselves or through any other person nor were they ever in possession or in occupation of any part of above owners". It is also alleged in the plaint that the plaintiff--auction purchasers son had been, and, before him the auction-purchaser had been in possession of the house. Furthermore it is alleged that "Raj Rani had, in collusion with Sankata Prasad, defendant No. 3, Obtained a false sale-deed in favour of defendant No. 2 in respect of the 1/3 share of the said house and misled some tenants in the said house and illegally prevented them from paying to the plaintiff his share in the rent". The plaintiff, therefore, claimed to be entitled to recover the rents also of amounts wrongly realised by the defendants 1 and 2, the appellants before us.

Reasoning: The correct procedure for the Court to adopt was not only to frame an issue on the question of limitation but to determine whether it was governed by Article 142 or by Article 144 of the Limitation ActAll this shows that the trial Court was applying Article 142 of the old Limitation Act. We do not, however, find any finding given by the trial Court on the question whether, and, if so when and how, the plaintiff was in actual or constructive pos- session of any part of the house. If Article 142 applied, it meant that the plaintiff had admitted dispossession. If this was the case, the following finding by the trial Court on the trial of the plaintiff seems to us to be premature:If the plaintiffs assertion was that the defendants h ad dispossessed him it did not matter whether the defendants represented a co-sharer or not. In that event, the plaintiffs case would certainly be deemed to be one in which the assertion of dispossession was there. In the case before us, it appears that the rights of Kripa Shanker, on the plaintiffs assertion that he had been a party to the mortgage, had come to an end by the sale of his rights in the property and delivery of possession to the auction purchaser. His heirs could only be in adverse possession and not holding through Kripa Shanker on the plaintiffs own assertions. In fact, they have not claimed to be holding through Kripa Shanker. In any event, the allegations in the plaint appear to us to amount to an allegation that, by asserting their own owner- ship and inducing the tenants not to pay rents to the plain- tiff, the defendants had dispossessed the plaintiff. In such a case, even if a defendant in actual possession could be deemed to be initially a co-sharer, the plaintiff would be really asserting that the co-sharer had dispossessed or ousted him. Hence an ouster having been admitted in the plaint, the burden would lie upon the plaintiff of proving his Case that the ouster had taken place within twelve years. On any other view, the distinction between articles 142 and 144 of the former Limitation Act, which is important in this case, would vanishThe case relied upon by the High Court is distinguishable on two grounds: firstly, it was not a case where the plaintiff, on the pleadings in the plaint could be fairly said to have admitted dispossession or ouster by setting up that the alleged co-sharer in possession was denying the rights of the plaintiff; and, secondly, delivery of symbolical possession there was said to have interrupted adverse possession which could, there- fore, not be continuously for twelve years. In the case before us, even if a symbolic delivery of possession to a co-sharer could be said to have interrupted any adverse possession, that interruption took place beyond 12 years. Hence, it was the duty of the plaintiff to have shown by cogent evidence how, by receipt of rent or an admission by the defendants or otherwise, he or his predecessor-in-interest could be deemed to be in actual or constructive possession as an owner or as a co-sharer with the defendants over the house in dispute. We may observe that the difficulty in deciding the question whether article 142 or article 144, Limitation Act applies to a case which really depends upon an interpretation of the pleadings, was sought to be removed in the Limitation Act of 1963 by a more clarified position in article 64 and 65 of Limitation Act of 1963. The reasons given for this change were:"Article 142 and 144 of the existing Act have given rise to a good deal of confusion with respect to suits for possession by owners of property. Article 64 as proposed replaces Art. 142, but is restricted to suit based on possessory title so-that an owner of property does not lose his right to the property unless the defendant in possession is able to prove adverse possession"In other words, in cases governed by the former Limitation Act, at any rate, a plaintiff admitting dispossession, in suits based on tit le, had to prove that he was in actual or constructive possession within twelve years. Hence, the change in law. We do not, however, propose to examine or lay down here the exact position under the amended law of limitation under the act of 1963The result is that, in the case before us, the plaintiff had to, prove that he was he actual or constructive posses- sion within twelve years. It would be enough if he establishes that he was in constructive possession within twelve years by receipt of rent or otherwise. There is no finding to that effect given by the High Court or by the Subordinate Court.