Judgment Case ID: 3829

Judgment:
Appeal No. 1984 of 1968. (Appeal by Special Leave from Judgment and Decree dated 4.12.1967 of the Allahabad High Court in Second Appeal No. 3224 of 1963 ) S.C. Manchanda	 M.L. Chitravanshi and M.V. Goswami	 for the appellants. J.P. Goyal	 V.C. Prashar and Shreepal Singh	 for respond ents. The Judgment of the Court was delivered by BEG	 C. J. This is the defendant 's 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 Octo ber	 1937	 at a Court sale in execution of a mortgage de cree. The house had been mortgaged by Sharda Prasad repre senting 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 Prasad 's share could not be said to have been sold. On 12th Septem ber	 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 occupa tion 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 the Code of Civil Procedure had been dismissed	 and obtained a decree from the appellate Court on 22nd 20 January	 1941	 with the result that Shital Prasad 's 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 posses sion 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 giftdeed of 1953 ' in his fa vour	 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 occupa tion of any part of above owners". It is also alleged in the plaint that the plaintiff auction purchaser 's 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. In paragraph 10 of the plaint	 it Was stated that the defendants did not pay any taxes to the Municipal Board which had to file suit for their recovery which were decreed. The plaintiff	 howev er	 alleged that he had paid up the decretal amounts in excess of the 2/3 share which belonged to the plaintiff. The plaintiff also alleged that he was being obstructed in looking after the house and realising rents. Hence	 accord ing to the plaintiff	 he had to serve a notice dated 23rd April	 1959	 asking the defendants to partition the proper ty. The plaintiff alleged that the cause of action "accrued to the plaintiff firstly in 1956 and after that on the end of each month when the defendants illegally received plain tiff 's share in the rent from the tenants and did not pay to the plaintiff and then on 15 11 58. When the plaintiff has to pay excess amount to the Municipal Board on account of the defendants and the on 23 4 59 and	 lastly	 in May	 1959	 when the defendants refused to partition the plaintiff 's share in the said house	 within the juris diction of this Court and this Court has the jurisdiction to try this suit". The defendants appellants had denied any concern with the mortgage. Apparently	 their case was that as the husband of Raj Rani	 appellant No. 1 and the father of Kali Charan	 appellant No. 2	 was a minor at the time of the alleged mortgage and his brother	 not having borrowed the money for any legal	 necessary	 could not bind Kripa. Shan ker or his heirs. Furthermore	 the defendants pleaded that	 even if the house ' had been sold in execution of the mort gage decree	 the defendants appellants "have been openly denying the rights of the plaintiff and had been ' in adverse possession and occupation of the property for more than 12 years so that even if the plaintiff or his predecessors had any right	 it had been extinguished by the operation of law of limitation". The first question	 on pleadings set out above	 for the trial. Court to determine was: has the plaintiff come with a plea of dispossession by the defendants so that Article 142 of the old Limitation Act was applicable to. The case	 or	 had the defendants	 having set up the plea of adverse pos session	 to establish an ouster in order to discharge their burden of proof under Article 144 of the Limitation Act ? In view of section 3 of the old Limitation Act	 it was incumbent on the Court to determine whether the Suit was filed within time	 even if the plea of limitation had not been taken	 when the question had been raised. Section 3 (1) provided: "3 (1). Subject to the provision contained in sections 4 to 24 (inclusive)	 every suit instituted	 appeal preferred	 and application made after the prescribed period shall be dismissed	 although limitation has not been set up as a defence." 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 Act. The trial Court did frame an issue indicating that Article 142 was applicable. This was issue No. 2 framed as follows: "Whether the suit is within limitation"? The trial Court observed: "It is also. true that if the suit of the plaintiff is not established to be within limitation	 that is to say that	 if the possession of the plain tiff is not even within 12 years	 the suit must fail as the rights of the plaintiffs would be deemed to have been extinguished by the adverse possession of defendants 1 and 2	 or their Predecessor in interest	 namely	 Kripa Shankar". All 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: 22 "Now it will be noted that there has not been any partition between the plaintiff on the one hand and the other one third share holder Smt. Deoka or her successor in interest on the other hand. Deoka was admittedly a relation of Kripa Shanker and there is nothing unusual if Smt. Deoka had allowed Kripa Shanker to continue to live in the suit premises under the protection of her 1/3 share. The consistent Municipal receipts	 the litigation with tenants	 and over all the title deeds of the plaintiff; they all go to lend support to the plaintiff 's case". In the first appeal against that judgment	 it was again not decided anywhere what Article of the Limitation Act applied to the case. It appears to us that the appellate Court had also not come to the grips with the real question to be determined. It said: "It was alleged that Kripa Shanker had taken possession over the house. The learned counsel for the appellant argued that these documents showed that Kripa Shanker was in possession over the entire house and that Bhagwan Das never obtained actual possession over it and only symbolical possession was delivered to him in this suit	 It must be borne in mind that Bhagwan Das was owner to only 2/3rd share and 1/3rd belonged to Mst. Deoki	 who was real aunt of Kripa Shanker	 and unless Bhagwan Das had got his share parti tioned	 he could not obtain actual possession over any portion of the house and as such only symbolical possession was delivered to him. The question only is whether he remained in joint possession or not ? It is contended from the side of the appellants that he was not in possession and Kripa Shanker was in adverse possession at least from 1945	 and that this suit was filed in 1959	 that is after more than 12 years when the defendant appellants had already perfected their title by adverse possession. This symbolical possession was delivered on 21st of November	 1946. This suit was filed in 1959 that is more than 12 years after and	 therefore	 there is force in the contention that it must be proved that Bhagwan Das was in joint possession. Bhag wan Das was a co sharer along with Mst. Deoki. Deoki 's share ultimately came to the defendant appellant in 1957 and as such in 1957 the defendant appellant became co sharer with the plaintiff respondent. In 1957	 12 years had not passed and even if it is assumed that Bhagwan Das or the plaintiff respondent was not in joint possession	 their right had not ceased in 1957. It was observed by the Supreme Court of India in the case P. Laxmi Reddy vs L. Laxmi Reddy (in 1957 A.I.R. Supreme Court 314)	 'the burden of making out ouster is on the person claiming to displace the lawful title Of co heir by his adverse possession '. " If the plaintiff 's assertion was that the defendants had dispossessed him it did not matter whether the defendants represented a 23 co sharer or not. In that event	 the plaintiff 's 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 plaintiff 's asser tion that he had been a party to the mortgage	 had come to an end by the sale of his rights in the property and deliv ery of possession to the auction purchaser. His heirs could only be in adverse possession and not holding through Kripa Shanker on the plaintiff 's 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 vanish. In a case between co sharers	 Bindhyachal Chand & Ors. vs Ram Gharib Chand & Ors	(1) a "Full Bench of the Allahabad High Court had examined the difficulties which arise when a co sharer sues another on the allegation that he had been dispossessed. Sulaiman	 C.J.	 pointed out that article 144 was a residuary article Which applied to suits for posses sion of immovable property which could not fall elsewhere. As regards the distinction between articles 142 and 144	 he observed (at p. 997): "No doubt in many cases the distinction is very fine	and the line of demarcation be tween dispossession and adverse possession is thin. But	 the question in each case is one of burden of proof	 and it is incumbent on the plaintiff	 when he admits his disposses sion	 to establish his possession within twelve years". He went on to point out (at p. 998): "Ordinarily	 the possession of one co owner	 who is entitled to joint possession of the whole property	 is refer able to his title	 and he cannot ask the Court to presumethat his possession was illegal or adverse to the other co owner. It follows that if one co owner is in actual possession of the joint property	 and the other co owner is either absent or is not in actual possession	 the latter would still be in constructive possession of his property through his co owner. There would be prima facie no case	 where the possession of one co owner was illegal and was necessarily adverse to that of the other co owner. The presumption would be that they are both in joint possession. But	 it cannot be denied that one co owner can dispossess another (1)A.I.R.1934 All. 3 240SCI/77 24 co owner and can exercise adverse possession over a joint property. If	 therefore	 the plaintiff	 a co owner	 admitsthat he has been dispossessed and that	 at any rate	 for a short period prior to the suit	 the possession of his co owner was adverse to him	 then he cannot fall back on a mere presumption of joint possession in his favour and succeed without showing any other circumstances whatsoever". The following observations of the learned Chief Justice are also useful (at p. 998): "Personally speaking	 I do not think that the plaintiff can by cleverly drafting his plaint evade the burden of proof which article 142 casts upon one who is suing for pos session on the ground of dispossession. When a plaintiff falsely alleges that he is in possession and wants a relief	 to which the owner in possession is entitled	 e.g.	 for partition	 injunction	 joint possession	 etc.	 and it is found that he was in fact not in possession but had been dispossessed	 techni cally speaking	 the suit would fail under section 42	 Specific Relief Act and would be dismissed on the ground that he had omitted to ask for a consequential relief and had failed to prove his case. But	 a Court may allow him to change his ground and give him a decree for possession	 treating his claim as one for recovery of possession on the basis of dispos session	 provided he succeeds in showing that his dispossession took place within 12 years". It seems to us that	 in the case now before us	 the High Court	 on a second appeal to it	 also failed to determine the crucial question of actual or even constructive pos session of the plaintiff within twelve years. It said: "The argument advanced before me is that after the decree in suit No. 57 of 1945 the possession of Kripa Shanker became adverse and	 as the suit for partition was not fried with 12 years of the date of the decree	 the suit was barred by limitation. A large number of authorities were cited before me on the point. It was urged that if a member of an undivided Hindu family sells his undivided share and the alience does not bring a suit for partition and possession over his share within 12 years of the date of the alienation the possession of the alienor and all the other coparceners would be adverse and the suit for partition after the expiry of 12 years from the date of the alienation would be barred by time. Some of the authorities cited by the learned counsel for the appellant	 to which I do not consider it necessary to refer	 would seem to support his contention. Learned counsel for the respondent	 however	 has cited before me the latest case of the Supreme Court in Manikayala Rao vs Narashnhaswami (AIR The 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 25 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 predecessorin 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 interpreta tion 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 article 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 title	 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 1963. The 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 estab lishes 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. We	 therefore	 allow this appeal	 set aside the judg ments and orders of the High Court and of the first appel late Court. We send the case back to the first appellate Court	 which is the final Court of facts	 to determine	 on the evidence already on record	 whether the plaintiff was in actual or constructive possession within twelve years of the filing of the suit. If the plaintiff can establish that	 the suit will have to be decreed. Otherwise	 the suit must fail. The costs will abide the results. S.R. Appeal allowed and case remanded.

Summary:
The suit property of one Kalyan Chand in the joint possession of Shital Prasad (son 1/3)	 Bansidar (great grandson 1/3) and Sheo Shankar Sangamlal and Kripa Shankar (1/9+1/9+1/9 grandsons) was mortgaged by Sheo Shanker	 Sangamlal and Bansidhar acting on their own behalf and allegedly on behalf of Kripa Shankar (who was a minor then). Shital Prasad was not a party to the mortgage. When the whole house was sold in Court auction on 3 10 1937	 in realisation of the mortgage money decreed	 one Bhagwandas father of Kailash Chand (Respondent No. 1) purchased the said house and took symbolical possession on 12.9.1938. 'The residential portion of the house was in occupation of Kripa Shankar (Appellant 's husband) and Devika Rani w/o Shital Prasad who established her right to 1/3 share by a decree obtained on 22 1 1941. Another suit filed by Bhag wandas for a declaration and possession over 2/3 share for ejecting Kripa Shankar was decreed on 27 8 1945	 and	 again symbolical possession was obtained on 21 11 46 under O.21 r.96 C.P.C. Kripa Shankar died in 1953 leaving behind the appellants Raj Rani (wife) and Kali Charan (son). Respond ent No. 1 son of the auction purchaser Bhagwan Das filed a suit No. 475/1959 on or about 10 8 1959 for partition and possession over 2/3 share of the portion in addition 'to certain claims of rents illegally collected and the amount of tax unpaid by the appellants. The plaint allegations were: (i) The auction purchaser has been in possession over 2/3 part of the house with Devika Rani who had 1/3 share in the house; (ii) The defendants had no concern with 2/3 share in the said 'house themselves or through any other person were not in possession or in occupation of any part of the above said house at any time as owners; (iii) The plaintiff was being obstructed in looking after the house and realis ing rents and that the defendant had misled some tenants and realised the rents due to him. The appellant defendants took the plea (i) the mortgage was not valid as the amount was not borrowed for legal necessity; (ii) Even if the house "had been sold in execution of the mortgage	 they have been openly denying the rights of the plaintiff and had been in adverse possession and occupation of the property for more than 12 years so that	 even if the plaintiff or his prede cessors had any right	 it had been extinguished by the operation of law limitation. The Trial Court decreed the suit and the first appellate court confirmed it. The second appeal filed in the High Court was also dismissed. Allowing the appeal by special leave	 the Court	 HELD: (1) The High Court in a second appeal and the Subordi nate courts failed to determine the crucial question of actual or even constructive possession of the plaintiff within twelve years and give a finding to that effect. [24E] (2) The plaintiff had to Drove that he was in actual or constructive possession within twelve years. It would be enough if he establishes that he was in constructive posses sion within twelve years by receipts of rent or otherwise. [25F] (3) A decision on the question whether article 142 Limita tion Act applies to a case	 really depends upon an interpre tation of the pleadings. In cases governed by the former Limitation Act	 at any rate	 a plaintiff admitting dispos session in suits based on title	 had to Drove that he was in actual or constructive possession within twelve years. [25C E] 19 (4) The allegations in the plaint amount to an allega tion that by asserting their ownership and inducing the tenants not to pay rents to the plaintiffs	 the defendants had dispossessed the plaintiff. In such a case	 even if a defendant in actual possession could be deemed to be ini tially 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 as article 142 of the old Limitation Act applied to such a case. In the instant case	 even if the symbolic delivery of possession to a co sharer could be said to have interrupted any adverse possession	 that interruption took place beyond twelve years [23B C] Bindhyachal. Chand & Ors. vs Ram Gharib Chand & Ors. AIR [1934] All. referred to. Manikyala Rao vs Narasimhaswami ; 	 distin guished. Appeal allowed and case remanded to first Appellate court to determine whether plaintiff was in possession within the period of limitation.