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1957 DIGILAW 75 (RAJ)

Nanchi Mst. v. Daulatram

1957-04-22

SHARMA

body1957
Sharma, J.—This is an appeal by the plaintiff against the appellate judgment and decree of the District Judge, Alwar, dated 5th December, 1951. 2. The plaintiff came to the court with the allegation that she was the owner of a certain Nohara situated in village Jhunaicha in the district of Alwar and that she was in possession of the said property upto 5th August, 1942 when the defendant took forcible possession of that property, 3. The defendant-responded admitted that the property in suit had formerly belonged to the plaintiffs husband Mamraj, but it was put to auction by the State for the realisation of a fine against Mamraj in the year 1924, and was purchased by the defendants father and that since then he had been in possession of that property. 4. The suit was instituted on 2nd April, 1947 in the court of Munsif, Behror, for possession of the plaintiff and dispossession of the defendant. 5. The learned Munsif framed the following issues :— (1) Whether the defendant took forcible possession of the property in dispute which was the property of the plaintiff and was in her possession on 5th August, 1942 in the absence of the plaintiff, and (2) Whether the plaintiff is entitled to get back possession of that property ? 6. On this issue the finding of that court was that it was not proved that the plaintiff had been in possession of the property in dispute within 12 years of the suit and that the possession of the defendant had been found over that property since the year 1924. On this finding the suit of the plaintiff was dismissed. 7. The plaintiff went in appeal to the court of the District Judge, Alwar, but the appeal was dismissed on the ground that Art. 142 of the Indian Limitation Act applied to the facts of the present case and the plaintiff being unable to prove her possession within 12 years before the suit, the suit was barred by limitation. Against this appellate judgment and decree, the plaintiff has come in second appeal to this Court. 8. I have heard Sri R. G. Sharma on behalf of the appellant. The respondent has not appeared in spite of notice and the appeal therefore proceeded ex parte, It was argued by Mr. Against this appellate judgment and decree, the plaintiff has come in second appeal to this Court. 8. I have heard Sri R. G. Sharma on behalf of the appellant. The respondent has not appeared in spite of notice and the appeal therefore proceeded ex parte, It was argued by Mr. Sharma that Art. 142 does not apply to a case where the plaintiff bases his suit on the ground of proprietary title as well as possession and that the said Article applied only where the suit was based simply on prior possession and dispossession of the plaintiff. On this the rulings in the cases of Daulu Mal vs. Rawal Baksh (1) and M. A. Rauf vs. Bodhi Singh (2) have been cited. 9. I have considered the arguments of Shri Sharma and have also carefully perused the plaint as well as the wordings of Arts. 142 and 144 of the Indian Limitation Act. Art. 142 applies to a case where the plaintiff sues for possession of immoveable property on the ground that while in pot session of that property, he had been dispossessed or had discontinued the possession. The limitation prescribed is 12 years from the date of dispossession or discontinuance. Art. 144 is a residuary Article, which applies to a suit for possession of immoveable property or any interest therein not otherwise provided for in the Limitation Act. In the present suit, the plaintiff has prayed for possession on dispossession of the defendant. Although she has alleged that she was the proprietress of the property in suit, she has also said that she was in possession of the property when she was forcibly dispossessed by the defendant. The property in dispute is a nohra, which, it has been conceded, is capable of physical possession. I am therefore of opinion that the suit comes within Art. 142 of the Limitation Act even though one of the grounds is that the plaintiff is proprietor of the property Learned lower appellate court has relied on the judgment of their Lordships of the Privy Council in the case of Nawab Muhammad Amanulla Khan vs. Badan Singh (3). In that case also the plaintiff had come to court on the allegation that he was the proprietor of the property in dispute and also on the allegation that while in possesion he had been dispossessed by the defendant. In that case also the plaintiff had come to court on the allegation that he was the proprietor of the property in dispute and also on the allegation that while in possesion he had been dispossessed by the defendant. Their Lordships applies Art 142 of Act XV of 1877, which is in the same words as At. 142 of the present Limitation Act. Their Lordships observed that the Act applicable to the case is Act XV of 1877 and the Article is No. 142, which says that for possession of immoveable property when the plaintiff, while in possession of the property, had been dispossessed, or has discontinued the possession, the time from which the period allowed for bringing the suit begins to run is the date of the dispossession or discontinuance". Their Lordships further observed at page 155 as follows — "Whether any proprietary right may have existed is not the. question. It is whether there has been a dispossession or discontinuance, which there clearly was. No doubt the proprietary right would continue to exist until by the operation of the law of limitation it had been extinguished; but upon the question whether the law of limitation applies, it appears to be clear that it comes within the terms of the Article 142, and if there has been any doubt in the minds of the courts in the Punjab as to what was the effect of the law of limitation in rases of this description, it seems to have arisen from the introduction of some opinion that there mutt be what is called adverse possession. It is unnecessary to enter upon the inquiry. Art. 144 as to adverse possession only applies where there is no other article which specially provides for the case." 10. A Full Bench of the Allahabad High Court in the case of Bindhyachal Chand vs. Ram Gharib Chand (4) held that "Art. 142 is not restricted to suits based on possessory title only". In that case the plaintiff, who was a co-sharer wish some of the defendants, who transferred a part of the property to third parties, admitted in the plaint that he was dispossessed by the transferees some time prior to the institution of the suit. In that case the plaintiff, who was a co-sharer wish some of the defendants, who transferred a part of the property to third parties, admitted in the plaint that he was dispossessed by the transferees some time prior to the institution of the suit. Art. 142 was applied and not Art. 144, which was held to be applicable only to those cases for possession which do not fall under any other article of the Limitation Act. 11. Learned counsel has referred to the ruling of the Lahore High Court, in the case of Daulumal vs. Rawal Baksh (1) referred to above It appears from the judgment that in that case the plaintiff had not definitely relied on dispossession or discontinuance of possession on any specified date. The facts of that case therefore are different from the facts of the present case. There is a Full Bench ruling of the Lahore High Court itself in the case of Behari Lal vs. Naraindas (5) in which it was held that where in a suit for possession, plaintiff pleads possession and dispossession, the suit is governed by Art. 142. It cannot be said that in all cases Art, 144 is to govern the case once the plaintiff has proved a title to the property. 12. Learned counsel has referred to a judgment of the Patna High Court which has also been referred to above. From the judgment of that case it appears that the defendants had filed a case u/s Cr.P.C. for declaration of their possession of the property in suit. The plaintiff filed a suit for a declaration that the land was bakasht and for recovery of evicting the defendants. The evidence with respect to possession of both the parties was found unsatisfactory and the plaintiff was given a decree on the basis of his proprietary title. It was observed that from the pleadings of the case the appropriate provision would be Art. 144 and the suit will not fail until the defendants establish adverse possession for the statutory period either of the entire or limited interest. 13. With respects I may say that I do not think the view taken by the learned Judges in deciding that case was the correct view as the phraseology of Arts. 142 and 144 of the Limitation Act was not taken into consideration. 13. With respects I may say that I do not think the view taken by the learned Judges in deciding that case was the correct view as the phraseology of Arts. 142 and 144 of the Limitation Act was not taken into consideration. When the plaintiff comes on the allegation that he was in possession of the property within 12 years before the suit and that the defendant dispossessed him within that period, it is for the plaintiff to prove by evidence possession and dispossession within the time prescribed by law. If Art 144 were applicable, it might be said that once the plaintiff has proved his title, it is for the defendant to prove adverse possession. But as observed by their Lordships of the Privy Council in the case of Nawab Mohammad Amenulla Khan vs. Badan Singh (3) cited above and also by the Full Bench of the Allahabad High Court referred to above Art. 144 is a residuary article and does not apply where the case falls under any of the other articles of the Limitation Act, Art. 142 applies to a case when the plaintiff comes on the ground that he was in possession of the property within twelve years and the defendant dispossessed him during that period. The case is clearly governed by Art. 142 and Art. 144, consequently, has not application. 14. I have no reason to differ from the finding of the lower courts. The appeal has no force and it is dismissed. As the respondent has no appeared, I make no order as to costs.