RAMIAH A v.

N. NARA YANA REDDY (DEAD) BY LRS.

AUGUST IO, 2004

[ASHOK BHAN AND S.H. KAPADIA, JJ.] B

Limitation Act, 1963 :

Article 64-Applicability of-Suit for possession of /and-Filed after 13 years from dispossession-Evidence indicates ouster from possession- C Dismissal of suit by Courts below as barred by /imitation-On appeal, held: Suit was barred by limitation-Where the suit is based on a/legation of plaintiff having been in possession and having subsequently lost the possession either by dispossession or by discontinuance, Article 64 is applicable.

Sections 64 and 65-App/icability-Ascertainment of-Held: The applicability is to be ascertained by reference to pleadings.

Section 14-Suit for possession-Filed after 2 years from the date of Court's order in previous litigation, but beyond limitation period from the date of dispossession-During the period of previous litigation, despite E having right to seek possession, no steps taken to get possession-- Entitlement for benefit under Section 14-Held, in the circumstances of the case plaintiff not entitled to the benefit.

Respondent filed suit for recovery of possession based on title and F permanent injunction against the appellant on the ground that appellant was trying to interfere with his possession. Defence of the appellant was that he was in possession of the suit land having purchased the same, and that the spit , land was Inam land and that he was registered as Khadim tenant by the loam Abolition Authorities. Trial Court by its order dated 7.4.1971 held that respondent was owner of only 1 acre G 21 gunthas and not the entire land admeasuring 3 acres 12 gunthas.

However, since the respondent was found to be in possession of the entire land, permanent injunction was granted in his favour. Further appeals by respondent were dismissed and the decree reached finality on 24.11.1982.

A Appellant filed the present suit within 2 years from 24.I 1.1982 for

possession of 1acre21 gunthas land. Trial Court held that the suit was barred by limitation as it was filed after 13 years from dispossession, since he was dispossessed in 1971. On appeal, High Court confirmed dismissal of the suit upholding the view of trial court.

In appeal to this Court, appellant contended that the suit was not barred by limitation as Article 64 of Limitation Act was not applicable as the suit instituted by the appellant was based on title and not on possession and Article 65 was applicable in the case as per which the suit was within time as the limitation of 12 years commenced from the C date when the possession of the defendant-respondent became adverse to him; and that he was entitled to benefit under Article 14 of the Act

in view of the earlier litigation by the respondent.

Dismissing the appeal, the Court

HELD : 1.1. 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 E 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 p is no allegation of prior possession and subsequent dispossession alone can fall within Article 65. The question whether the article oflimitation applicable to a particular suit is Article 64 or Article 65 has to be decided by reference to pleadings. [429-H; 430-A-C)

G 1.2. In the earlier suit instituted by the respondent, appellant had admitted that he was in possession of the suit property up to 1971. The admission of the appellant in that suit indicates his ouster from possession. In the present suit instituted on 8.5.84 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 H by limitation. Article 64 is applicable to the present suit. (430-D-EJ

RAMJAH v. N.N. REDDY [KAPADIA, J.] 427

Ram Surat Singh and Ors. v. Badri Narain Singh, AIR (1927) A Allahabad 799 and Mohammad Mahmud v. Muhammad Afaq and Ors., AIR (1934) Oudh 21, referred to.

Limitation Act by Sanjiva Row Ninth Edition, llnd Volume page . 5_49, referred to.

2. Section 14 of the Act cannot be invoked by the appellant as the appellant herein had never challenged the findings on possession vide decree dated 7.4.1971. All throughout the period of litigation in earlier suit although the appellant had the right to recover possession from

the respondent to the extent of l acre 21 gunthas in accordance with C law, the appellant herein did not take any steps to sue for possession till 8.5.1984. Consequently, the appellant was not entitled to the benefit of Section 14 of the Act, in the present suit. (431-A-C)

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5864 of D 1999.

From the Judgment and Order dated 27.5.97 of the Kamataka High Court in R.F.A. No. 412 of 1988.

P.R. Ramasesh and Ms. Vandana Jalan for the Appellants.

G.V. Chandrashekhar and P.P. Singh for the Respondents.

The Judgment of the Court was delivered by

KAPADIA, J. : Being aggrieved by, the judgment and order dated 27th May, 1997 passed by the High Court ofKarnataka in R.F.A. No. 412 of 1988, the original plaintiff has come to this Court by this appeal. By the impugned judgment, the High Court has dismissed the suit filed by the plaintiff.

The short question which arises for consideration in this appeal by special leave is - whether the plaintiff has proved that he was in possession of the suit land within 12-years of the date of the suit?

The facts on which this appeal has arisen are as follows: H

A One Bayyanna was owner of the suit land in Survey No. 1911 admeasuring 3 acres 12 gunthas. The suit land was Inam land. Bayyanna sold the suit land to N. Narayana Reddy (since deceased) father of the . respondents herein, vide registered sale deed dated 4.11.1958. N. Narayana Reddy had instituted suit no. 357/60 in the Court of Principal Second B Munsiff, Bangalore for recovery of possession based on title and for permanent injunction against the appellant herein on the ground that the appellant was trying to interfere with his possession.

The defence of the appellant herein in the above suit was that he had purchased the suit land on 27 .11.1959 from B. Bayyanna and that he was C in possession of the suit land. His further defence was that the suit land was Inam land and that he was registered as Khadim tenant by the Inam Abolition Authorities. By judgment and order dated 7.4.1971, the Principal Munsiff, Bangalore partly decreed the suit filed by N. Narayana Reddy holding him to be the owner of only I acre 21 gunthas and not of the entire D land admeasuring 3 acres 12 gunthas. However, he was found to be in possession of the entire 3 acres 12 gunthas and, therefore, the Principal Munisff granted permanent injunction in favour of N. Narayana Reddy restraining the appellant herein from interfering with the possession ofN.

Narayana Reddy on the entire suit land admeasuring 3 acres 12 gunthas E with liberty to the appellant herein to take steps to recover possession of I acres 21 gunthas out of the total area of3 acres 12 gunthas by following due process of law. By the aforestated judgment, the Principal Munsiff, Bangalore came to the conclusion that N. Narayana Reddy was in possession of the entire area admeasuring 3 acres 12 gunthas; that the entire F area was Inam lands and since an area admeasuring 1 acre 21 gunthas out of total area admeasuring 3 aqes 12 gunthas was regranted by the Deputy Commissioner to the appellant herein, N. Narayana Reddy was not the owner of the entire area admeasuring 3 acres 12 gunthas.

Being aggrieved by the judgment and order dated 7.4.1971, N.

G Narayana Reddy preferred Regular Appeal No. 45 of 1971. The First Appellate Court dismissed the said Regular Appeal vide judgment dated

13.1.1975. Thereafter, N. Narayana Reddy filed Regular Second Appeal No. 801 of 1975 in the High Court of Karantaka, which came to be dismissed on 24.11.1982. Consequently, the judgment and decree passed H in suit no. 357/60 dated 7.4.1971 reached finality on 24.11.1982.

On 8.5.1984, the appellant herein filed the present suit no. 1518 of A 1984 i.e. withir. two years from the date of the decision of the High Court dated 24.11.1982 in RSA No. 801175 filed by N. Narayana Reddy, for possession of land admeasuring I acre 21 gunthas. The said suit was instituted in the Court of Additional City Civil Judge, Bangalore (hereinafter for the sake of brevity referred to as "the trial Court"). In the said B suit, it was held that the appellant herein admittedly stood ousted in 1971 and, therefore, the said suit was barred by limitation as it was filed after

13 years from dispossession. Consequently, the trial Court dismissed the suit.

Being aggrieved, the appellant herein preferred Regular First Appeal C No. 412 of 1988 under Section 96 of CPC in the High Court of Kamataka.

By the impugned judgment, the High Court confirmed the dismissal of the suit by the trial Court by holding that the present suit has been filed much beyond 12 years. By the impugned judgment, the High Court rejected the contention advanced on behalf of the appellant that the period of limitation D commenced only after the decision of the High Court ofKarantaka in RSA No. 801/75, filed by N. Narayana Reddy, decided on 24.11.1982. Hence, this civil appeal.

Mr. P. R. Ramasesh, learned counsel appearing on behalf of the E appellant contended that the plaintiff had instituted the suit for possession based on title and not on the basis of previous possession and, therefore, under article 65 of the Limitation Act, 1963 the suit was well within the time as the limitation of 12-years commenced from the date when the possession of the defendant became adverse to the plaintiff. He contended F that article 64 was not applicable to the facts of the present case as the suit instituted by the appellant for possession of immovable property was based on title and not on the basis of previous possession. It was further urged that the appellant was entitled to the benefit of section 14 of the Limitation Act, 1963, as the earlier litigation instituted by N. Narayana Reddy came to an end only on 24.11.1982 when the High Court in RSA No. 801/75 G confirmed the decree dated 7.4.1971 passed by the Principal Munsiff in suit no. 357160.

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 H

A 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 discontinu- B ance. 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 C limitation applicable to a particular suit is article 64 or article 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. 357160

instituted 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 D had admitted that he was in possession of the suit property up to 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 E limitation. The appellant was ousted in 1971. The appellant had instituted the present suit only on 8.5.1984. Consequently, the suit has been rightly dismissed by both the Courts below as barred by limitation.

In the case of Ram Surat Singh & others v. Badri Narain Singh F reported in AIR ( 1927) Allahabad 799, it has been held that if the suit is for possession by a plaintiff who says that while he was in possession of the property he was dispossessed, then he must show possession within 12years under article 142 (now article 64) of the Limitation Act. To the same effect is the ratio of the judgment in the case of Mohammad Mahmud v.

Muhammad Afaq & Others reported in AIR (1934) Oudh 21.

In the G commentary on the Limitation Act by Sanjiva Row, [Ninth Edition Ilnd Volume page 549] it has been stated that the question as to which of the two articles would apply to a particular case should be decided by reference to pleadings, though the plaintiff cannot be allowed by skilful pleading to avoid the inconvenient article. On facts of the case, we find that the article H 64 is applicable to the present suit. Consequently, the suit has been rightly

dism:ssed by both the Courts below.

Jn the present case, on the facts of this case as stated above, section

14 of the Limitation Act, 1963 cannot be invoked by the appellant as the appellant herein had never challenged the findings on possession recorded

by the Principal Munsiffvide decree dated 7.4.1971. In the present case, B earlier suit no. 357160 was filed by the said N. Narayana Reddy, which was . partly decreed and, therefore, he preferred Regular Appeal No. 45/71 which was dismissed by the First Appellate Court on 13. J.1975. Thereafter, N. Narayana Reddy filed RSA No. 801/75 which was dismissed by the High Court on 24.11.1982.

All throughout this period, although the C appellant had the right to recover possession from N. Narayana Reddy to the extent of I acre 21 gunthas in accordance with law, the appellant herein did not take any steps to sue for possession till 8.5.1984. Consequently, the appellant was not entitled to the benefit of section 14 of the Limitation Act, 1963.

For the foregoing reasons, we do not find any merit in this civil appeal and the same is accordingly dismissed, with no order as to costs.

K.K.T.

Appeal dismissed.