Bibi Rafiqan v. Najib Khan — 1958 DIGILAW 3 (PAT)

Judgment Raj Kishore Prasad, J. 1. The main question in the present appeal, by the plaintiff, is : Whether Article 142 Article 144 of the Indian Limitation Act would apply to the present case. 2. In order to determine this controversy, it is necessary to state the history of the litigation leading up to the present appeal. Put shortly, the facts are these : 3. The plaintiff and the defendant no. 2 are the two daughters of one Azmat and his wife Rasulan. Defendant no. 1 is the husband of defendant no. 2. Rasulan, the mother of the plaintiff, and, defendant No. 2, died in 1949. The plaintiff brought the suit, out of which the present appeal arises, for declaration of her title to and recovery of possession of her half share in the disputed land, the other half admittedly belonging to defendant no. 2, 4. The suit contested by defendant No. 1 on several grounds, one of which was limitation. His case was that Bibi Rasulan, his mother in law. sold a portion of her disputed land on 10-12-1926 to him by a registered sale deed and the remaining portion of it was gifted by her to him in Jeth 1840 Fasli, which corresponds to 1933; and since then the plaintiff never exercised any act of possession over the disputed land and as such, the plaintiff was not entitled to recover her moiety share on the strength of her prior title, which had been extinguished by lapse of time. 5. The trial Judge found that the plaintiff was not in possession of any share in the disputed land and she was never in possession of any share in it and that defendant No. 1 had been in exclusive possession of it, as pleaded by am and, accordingly, dismissed the plaintiffs suit. The plaintiff thereafter carried an appeal to the Court of appeal below, which was heard and decided by the learned Subordinate Judge, Second Court, there. But there also she was unsuccessful and the decision of the first court dismissing her suit was affirmed. 6. From the above concurrent decisions the present second appeal has been presented by the plaintiff. 7. On this appeal Mr. But there also she was unsuccessful and the decision of the first court dismissing her suit was affirmed. 6. From the above concurrent decisions the present second appeal has been presented by the plaintiff. 7. On this appeal Mr. K. D. Chatterji has assailed the decision of the Court of appeal below on four grounds : (1) Article 142 had no application, because the plaintiffs suit was not based on possession and dispossession, but it was based on disclaimer. (2) Even if Article 142 applies here, the defendants must prove ouster of the plaintiff and unless the ouster of the plaintiff is proved by the defendants, the plaintiff must be deemed in law to be in constructive possession within 12 years of the suit. (3) The proper Article, which applied to the present case, therefore, was Article 144 and as such, it was for the defendants to prove ouster and adverse possession of the defendants within the knowledge of the plaintiff. (4) In any view of the matter, the question of joint possession of the plaintiff has not been properly decided by the Court of appeal below, in that, on defendants own evidence the plaintiff should have been held to be in joint possession of the suit land. 8. I propose to deal with the above points seriatim. 9. In support of his first contention that the plaintiffs suit was not based on possession and dispossession, Mr, Chatterji relied very strongly on para 8 of the plaint, which is to the following effect: "That the plaintiff about a year after the death of Mosst. Rasulan went to village Sihli and as usual wanted to take account of the produce of the land held jointly by the plaintiff and defendant no. 2 but defendant no. 2 put off the matter on some pretext or other and finally refused to give account saying that nothing was due and that no part of the land belonged to the plaintiff." 10. Mr. Shiva Anugrah Narayan, who appeared for defendant no. 1 -- respondent, however, relied on paras 4 and 15 also, along with para 8 and submitted that on reading the plaint, as a whole, there was no doubt that the plaintiffs suit was based on possession and dispossession, and, as such, to such a case Article 142 applied. Mr. Shiva Anugrah Narayan, who appeared for defendant no. 1 -- respondent, however, relied on paras 4 and 15 also, along with para 8 and submitted that on reading the plaint, as a whole, there was no doubt that the plaintiffs suit was based on possession and dispossession, and, as such, to such a case Article 142 applied. Para 15 is important and it may be reproduced in extenso below : "That the possession of the defendants from 17-4-1950 is merely that of a trespasser and they having no right, title or interest in the property to the extent of more than one half are liable to be ejected from the property to the extent of plaintiffs share and the plaintiff is entitled to recover possession of one half of Khata No. 9 of village Kalwan and also mesne profits for the years of dispossession for which the plaintiff shall institute a separate suit." 11. In my opinion, on reading the plaint as a whole, and particularly para 15 of the plaint, there is, to my mind, no doubt that the plaintiffs suit is based on possession and dispossession. If it is so based, it follows that to such a suit Article 142 would apply. In this connection I like to refer to the Full Bench decision of the Allahabad High Court in Bindhyachal Chand V/s. Ram Gharib Chand, ILR 57 All 278: (AIR 1934 All 993) (A), on which a strong reliance was placed by Mr. Shiva Anugrah Narayan. The main judgment of the Full Court was delivered by the distinguished Chief Justice Sir Shah Muhammad Sulaiman with whom the other two learned Judges, who were the members of the Full Bench, agreed in separate but concurrent judgments. Shiva Anugrah Narayan. The main judgment of the Full Court was delivered by the distinguished Chief Justice Sir Shah Muhammad Sulaiman with whom the other two learned Judges, who were the members of the Full Bench, agreed in separate but concurrent judgments. Sulaiman, C. J. at pages 285-286 (of ILR All): (at p. 997 of AIR) of the Reports, observed as below : "It seems to me that the essential difference between Article 142 and Article 144 is that when a plaintiff is suing for possession on the basis of dispossession, the burden lies on him to show that the date of his dispossession or discontinuance of possession, which gave him the cause of action for the suit, was within twelve years of the suit; while if the suit is not for possession based on the ground of dispossession, but is a suit for possession of immoveable property not specially provided for in any other article of the Act, then on proof of title the plaintiffs suit cannot be dismissed until the defendant further establishes his adverse possession for more than twelve years. There is obviously some distinction between the mere dispossession or discontinuance of possession of the plaintiff and the adverse possession of the defendant. Ordinarily an owner of property is presumed to be in possession of it, and such presumption is in his favour where there is nothing to the contrary. It would, therefore, follow that an owner of property starts with the presumption in his favour that he is in possession of his property. But where the plaintiff admits that he has been dispossessed by the defendant or, at any rate, it is found in the case that he has been dispossessed and is not in possession at the time when he brings the suit, then he cannot start with the presumption in his favour that the possession of the property was with him. He would have no right of action unless he claims within the period of limitation prescribed therefor. He has to bring his suit within twelve years of the date on which he was dispossessed or when he discontinued his possession. He would have no right of action unless he claims within the period of limitation prescribed therefor. He has to bring his suit within twelve years of the date on which he was dispossessed or when he discontinued his possession. The burden of showing that this date was within twelve years of the suit is on the plaintiff, and he cannot claim to have discharged it without any proof and evidence, merely on the ground of any presumption arising from the fact of his ownership." 12. I respectfully agree with the above observations of his Lordship and if I may say so respectfully, his Lordship has stated correctly the true scope of Article 142 and Article 144 of the Limitation Act and has rightly pointed out the distinction between these two articles. The plain language of Article 142 leaves no manner of doubt that it is applicable to suits for possession of immoveable property when the plaintiff, while in possession of the property, has been dispossessed or has discontinued his possession. Such a suit must be brought within 12 years of the date of dispossession or discontinuance. The article is very general in its scope, and the only conditions necessary are that the suit should be for possession of immovable property and that the plaintiff while in possession of the property must have been dispossessed or must have discontinued his possession. The burden of proving the date of dispossession or discontinuance of possession under Article 142 is on the plaintiff, who, in order to succeed, must show that the dispossession or discontinuance of possession was not prior to 12 years before the suit was filed. 13. Mr. Chatterji, however, tried to distinguish the above Allahabad decision on two grounds. He contended, in the first place, that in the instant case although in paragraph 15 of the plaint the word used by the plaintiff is "dispossession", but actually she never meant "dispossession", but "disclaimer" of her interest as is evident from paragraph 8 of the plaint. 14. In support of his contention that the word "dispossession" does not actually mean ouster or going out of possession in the case of co-sharers; Mr. Chatterji strongly relied on the Privy Council decision in Hardit Singh V/s. Gurmukh Singh, 28 Cal LJ 437: (AIR 1918 PC 1) (B), and particularly on the observation of Lord Buckmaster at page 438 (of CLJ): (at pp. Chatterji strongly relied on the Privy Council decision in Hardit Singh V/s. Gurmukh Singh, 28 Cal LJ 437: (AIR 1918 PC 1) (B), and particularly on the observation of Lord Buckmaster at page 438 (of CLJ): (at pp. 1-2 of AIR). The noble Lord said : "In considering the soundness of this later judgment it is important to bear in mind certain facts with regard to the possession of joint property, which distinguish it from property separately held. In the former case the phrase "exclusive possession" has an equivocal meaning; in the latter it has not. If by exclusive possession of joint estate is meant that one member of the joint family alone occupies it, that by itself affords no evidence of exclusion of other interested members of the family. Uninterrupted sole possession of such property, without more, must be referred to the lawful title possessed by the joint holder to use the joints estate, and cannot be regarded as an assertion of a right to hold it as separate, so as to assert an adverse claim against other interested members : Maharajah Sir Luchmeswar Singh Bahadur V/s. Sheikh Manowar Hussain, ILR 19 Cal 253 (C) and Corea V/s. Appuhamy, (1912) AC 230 at p. 236 (D). If possession may be either lawful or unlawful in the absence of evidence, it must be assumed to be the former." 15. In my opinion this case has no application here. Here defendant No. 1 was not a co-sharer of the plaintiff or the defendant No. 2. He was a stranger, although the husband of defendant No. 2, and he came in exclusive possession of the entire property of Rasulan in his own right, at first by purchase of a portion and later by gift of the remaining portion from Rasulan in Jeth 1340 Fasli which corresponds to 1933. Therefore the possession of defendant No. 1 in his own right in near about 1933 became adverse to both the plaintiff and the defendant No. 2. Therefore the possession of defendant No. 1 in his own right in near about 1933 became adverse to both the plaintiff and the defendant No. 2. The possession of defendant No. 1, therefore, cant be said to be joint with that of a co-sharer but his possession amounted to the exclusion or ouster of the plaintiff and, therefore, she should have brought the present suit within 12 years from then, but she brought" it long after twelve years in 1951 by which time her prior title to the disputed property was extinguished by lapse of time. For this reason the principles laid down by their Lordships of the Privy Council will not apply here and help the plaintiff. 16. Another, answer to the above contention of Mr. Chatterjee is that if the intention of the plaintiff was to base her suit on the basis of disclaimer of her title by the defendants, nothing prevented her from saying so specifically in the plaint. From the fact that she has used the word "dispossession" in paragraph 15 specifically, which is supported by other allegations in the plaint, there is no doubt that the plaintiff based her suit on the basis of possession and dispossession, within the meaning of Article 142 of the Limitation Act, and, therefore, to such a case the decision of the Allahabad High Court will apply. 17. The second ground taken by Mr. Chatterji for showing that the Allahabad decision was not applicable to the present case was that in the present case the parties were co-sharers or co-owners of the disputed land because admittedly the plaintiff was one of the two daughters of Azmat and as such, the plaintiff was entitled to a moiety share in the property left by Azmat and his widow, Rasulan. Mr. Chatterji, therefore, contended that in such a case the plaintiff must be deemed to be in the position of co-sharer and as such the possession of the defendant must be deemed to be the possession of co-sharer unless the plaintiffs ouster was established by the defendant and, therefore, the plaintiff must be presumed to be in possession till 17-4-1950 notwithstanding the fact that the plaintiff alleged in para 15 of her plaint dispossession. In the Allahabad case, as observed by Sulaiman, C. J., for the purposes of the reference before their Lordships it was assumed that the plaintiffs and the donors originally were co-sharers in the disputed land and the plaintiff in his plaint of that suit admitted that he was dispossessed by the defendants in 1922. Here also the plaintiff admitted her dispossession in 1950 and, therefore, the burden of proving the date of her dispossession or discontinuance of possession under Article 142 must be on her and the Courts below have concurrently found that she has failed to prove her possession within 12 years of the suit. In this view of the matter I am not prepared to accept the argument of Mr. Chatterji as a valid. argument that because defendant No. 2 and the plaintiff were admittedly co-sharers before, the plaintiff should be deemed in law to be a co-sharer in possession even at the date of her dispossession. But, that apart, the case of the defendant No. 1, who contested the plaintiffs suit, was that since near about 1933 the remaining property of Rasulan also came to defendant No. 1 and, therefore since 1933 he came to possess the entire property of Rasulan and Azmat and since then the plaintiff had no concern therewith. Even counting from that date the present suit was filed in 1951, that is beyond 12 years of the suit. This case of the defendant No. 1, however, was not accepted in toto, in that, the Court of appeal below found that Rasulan had no right to transfer the entire property of her husband by sale or gift to defendant No. 1 and, therefore, it found that defendant No. 1 got no title by the alleged sale and gift of the suit properties, meaning thereby the defendant got title only to the other half and not to the half claimed by the plaintiff. The Court of appeal, however, towards the end of the judgment, on a consideration of the oral and documentary evidence, the circumstances and the probabilities of the case, found that it had "no hesitation in holding in agreement with the learned Munsif that since 1926 after taking the sale-deed (Exhibit B) defendant No. 1 came in exclusive possession of the lands covered by Exhibit B. He also came in possession of the remaining portion of the suit lands by virtue of the oral gift made by Bibi Rasulan about 18 years ago". In that view of the matter, the learned Subordinate Judge found that the plaintiff had not proved her possession within 12 years from the date of the suit and, therefore, her title had been extinguished by lapse of time. Therefore, in view of the plain language of Article 142 as also the Full Bench decision of the Allahabad High Court, I have no hesitation in holding that the plaintiffs suit was based on possession and dispossession and that although the plaintiff was previously a co-sharer with defendant No. 2, her prior title was extinguished by lapse of time, because, on the finding of the Court of appeal below, she has failed to prove her possession within 12 years of the suit. 18. The alternative argument put forward by Mr. Chatterji that if Article 142 applies, it is for the defendants to prove ouster and unless the defendants do so, the plaintiffs are deemed to be in constructive possession within 12 years of the suit, in my opinion, has no substance. He has not been able to cite any decision in support of his contention and on the Full Bench decision of the Allahabad High Court, the contention of Mr. Chatterji cannot be sustained and in this view of the matter I hold that if Article 142 applies, as it does to the present case, it is for the plaintiff to prove the date of her dispossession or discontinuance of possession within 12 years of the suit and if she does not prove that her dispossession or discontinuance of possession was not prior to 12 years before the suit was filed, her suit for possession, which is, in substance for ejectment, must be dismissed. 19. As regards the argument presented by Mr. 19. As regards the argument presented by Mr. Chatterji on the application of Article 144 to the present case, he has relied on a number of deci- sions in support of his argument. Such decisions are Radhakant Lal V/s. Bhagwat Prasad, 55 IC 247: (AIR 1920 Pat 634) (E); 28 Cal LJ 437 : (AIR 1918 PC 1) (B), Dipnarain v. Pundeo, ILR 25 Pat 412; (AIR 1947 Pat 99) (F), Jagannath Madwari V/s. Mt. Chandni Bibi, 26 Cal WN 65: (AIR 1921 Cal 647) (G) and Balaram Guria V/s. Shyama Charan Mondal, 24 Cal WN 1057 (H). The principles laid down in the above cases cannot be questioned and have not been so questioned by respondents. It is now well established by the above decisions and several other decisions that as between co-owners there can be no adverse possession by one co-owner unless there has been a denial of title and an ouster to the knowledge of the other and that there is no difference in principle in considering the question of adverse possession as between two co-owners and between a co-owner and a transferee from another co-owner nor can a co-owners heir stand on a better footing than an assignee, and, therefore, in order to establish adverse possession as between the co-sharers, there must be evidence of an open assertion of a hostile title by one of them to the knowledge of the others; mere non-participation in the profits by one party and exclusive occupation by the other is not conclusive. It is also well established that if possession may be either lawful or unlawful, it must, in the absence of evidence be assumed to be the former, and until something occurs of which the other co-owners must take notice and which indicates the contrary, the possession taken and held by one co-owner is the possession in law of all the co-owners and not adverse to any of them. I may, however, notice particularly the Single Judge decision of this Court in 55 Ind Cas 247: (AIR 1920 Pat 634) (E). In this case Mr. Justice Sultan Ahmad, as he then was, observed that when a co-owner alleges that he is in joint possession with the defendants of the suit but the defendants interfere with the plaintiffs right and when in such circumstances a co-owner sues, the Article applicable is not Article 143 but Article 144. In this case Mr. Justice Sultan Ahmad, as he then was, observed that when a co-owner alleges that he is in joint possession with the defendants of the suit but the defendants interfere with the plaintiffs right and when in such circumstances a co-owner sues, the Article applicable is not Article 143 but Article 144. I am in respectful agreement with the observation of his Lordship that if the suit is not based on possession and dispossession, then Article 142 does not apply to such a case. If the suit is based on joint possession of the plaintiff with the other defendants, but the plaintiff alleges interference with the plaintiffs right of joint possession by the defendant to such a case Article 144 would apply and then the principles enunciated in the cases relied upon by Mr. Chatterji would come into play. Therefore, for the reasons given above, my concluded opinion is that to the present case Article 144 does not apply. The Article which is applicable to the present case is Article 142 of the Limitation Act. It should be remembered that Article 144 is a residuary Article applicable to suits for possession for immovable property not otherwise specifically provided for in the Act. Where there is no other special article applicable to the suit, the Article applicable would be 144 and time will begin to run when the defendants possession becomes adverse. If, however, there is special article which applies to the case, Article 144 would be completely excluded and would not be applicable. Article 142 is the specific article which applies to suits for possession when the plaintiff while in possession of the property has been dispossessed or had discontinued possession. In these circumstances, the considerations which arise in a suit governed by Article 144 do not govern such a case. In this view, I am of opinion that Article 144 has no application to the present case and the Courts below have rightly applied Article 142 and correctly decided that the plaintiff had no subsisting title at the date of the suit, because she failed to prove her possession within 12 years of the suit. 20. Lastly, it was argued that the question of joint possession has not been properly considered by the Courts below and further, that on the defendants own evidence she should have been held to be in joint possession. 20. Lastly, it was argued that the question of joint possession has not been properly considered by the Courts below and further, that on the defendants own evidence she should have been held to be in joint possession. Now the question of possession or dispossession is a question of fact and the Court of appeal below as well as the first Court have both considered the evidence of both sides including evidence of the witnesses examined on behalf of the defendants and after consideration of the same and also after considering documentary evidence adduced by the parties, concurrently came to the conclusion that the plaintiff had not proved her possession within 12 years from the date of the suit and as such, her title was extinguished and she had no subsisting title on the date of the suit. The Court of appeal below further found that defendant No 1 came in possession of the remaining portion of the suit land by virtue of the oral gift made by Bibi Rasulan about 18 years ago and, therefore, if possession was with defendant No. 1, it cannot be considered to be the possession of a co-sharer, so as to attract the principle that the possession of the co-sharer is the possession of another. In my opinion, therefore, this contention also has no substance and must be rejected. 21. For the reasons given above, I am of opinion that the appeal has been correctly decided by the Court of appeal below and its decision is not vitiated by any error of law, which may call for an interference by this Court. 22. In the result, the appeal fails and is dismissed with costs.