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1987 DIGILAW 202 (ALL)

Lakkhoo (dead, substituted by his LR's) Others v. Bhalloo

1987-02-24

D.S.BAJPAI

body1987
JUDGMENT D.S. Bajpai, J. - This is a defendants' second appeal assailing the judgment and decree dated 18th August, 1979 passed by the I Additional District Judge, Sitapur in Civil Appeal No. 16 of 1979 by which he set aside the judgment and decree of the Munsif, Biswan, at Sitapur dated 18th May, 1978 passed in Original Civil Suit No.21of 1976 dismissing the plaintiff's suit. Brief facts giving rise to the instant appellate that the plaintiff, Bhalloo, filed a suit for possession over the disputed land, inter alia, on the allegations that it was his Sahan land and he having perfected his right under Section 9 of the U.P. Zamindari Abolition and Land Reforms Act was entitled to get possession over the same on the allegation that the defendants had dispossessed him some time in the past. The suit was resisted by the defendants and the defendants raised a plea of having themselves perfected their right over the land in suit as Sahan. The defendants also raised a plea about the suit being barred by time. On the pleadings of the parties the trial court framed two issues one pertaining to the fact as to whether the plaintiff was owner of the disputed land shown in the Commissioner's map 31GA2 depicted in red colour and the other issue framed was as to whether the suit was barred by time. The trial court recorded a finding on issue no. 1 to the effect that the plaintiff was the owner of the disputed land but recorded a finding on issue no. 2 to the effect that the defendants were in possession over the disputed land for the last over 12 years and held that the suit was barred by time and dismissed the suit with costs. Aggrieved, the plaintiff went in appeal before the lower appellate court and the lower appellate court affirmed the finding of fact recorded by the trial court regarding the ownership and title of the plaintiff over the disputed land. While considering the question of the suit being barred by time the lower appellate court held that the view taken by the trial court required to be interfered with. He held that since no plea of adverse possession had been raised by the defendants it was not possible to say that time started running against the plaintiff and the suit became time barred. He held that since no plea of adverse possession had been raised by the defendants it was not possible to say that time started running against the plaintiff and the suit became time barred. With these findings the lower appellate court allowed the appeal and set aside the judgment and decree of the trial court. As a result the suit of the plaintiff for possession of the disputed land shown by red colour in the Commissioner's map, 31GA2, was decreed with costs throughout. It is against that judgment and decree that the defendants have come up in this second appeal. 2. I have heard learned counsel for the appellants at some length and perused the record. The sole question of consideration that arises is applicability of Article 64 or Article 65 of the Limitation Act. The learned counsel for the appellants has fairly conceded that in the facts and circumstances of the case Article 65 of the Limitation Act would be attracted. Article 65 of the Limitation Act provides as under: Description of suit Period of limitation Time from which period begins to run 65. For possession of Twelve years When the possession of the defendant becomes adverse to the plaintiff immovable property or any interest therein based to the plaintiff, on title. 3. A perusal of Article 65 of the Limitation Act would indicate that the suit for possession of immovable property filed by the plaintiff would be deemed to be adverse only from the point of time when the possession of the defendants becomes adverse and the period of limitation would start running from the very point of time when the possession becomes adverse and right and title would be matured on completion of 12 years of that period. The lower appellate court has held that no plea of adverse possession has been taken by the defendants. The lower appellate court has considered in its judgment a decision of a Division Bench of this Court reported in AIR 1931 Allahabad at page 670 (Municipal Board Etawah v. Mt. The lower appellate court has held that no plea of adverse possession has been taken by the defendants. The lower appellate court has considered in its judgment a decision of a Division Bench of this Court reported in AIR 1931 Allahabad at page 670 (Municipal Board Etawah v. Mt. Ram Sri and another) wherein the court while deciding a first appeal laid down the rule of law as under: Having considered all the evidence on the record we are of opinion that the land in suit is the private property of plaintiff 1 and in any case plaintiff 1 by completing adverse possession extending over 30 years has completed that title in herself as against the Municipal Board. The plea of adverse possession need not be specifically pleaded as it is includes in the plea of title, 4. This decision was referred to by the Court in the case of Khazan Singh and others v. Abhey Ram and others (1966 All WR 254) in which the Court said: The only question raised in this appeal is that the plaintiffs came to court on the basis of title and this title was not based on adverse possession, The two courts below have granted relief and have accepted the title of the plaintiff on account of adverse possession which had not been pleaded in the plaint. In the case of Municipal Board, Etawah v. Mst. Ram Sri and another ( AIR 1931 All 670 ) it was held tint where a suit is based on title extended over 30 years, plea of adverse possession need not be specifically pleaded as it is included in the plea of title. In this case also the plaintiff's possession for over 30 years has been accepted. In this view of the matter the only point raised in this appeal cannot be accepted and the other findings of fact have not been challenged by the learned counsel for the appellants. Consequently this appeal fails and is hereby dismissed with costs. 5. A perusal of the case cited hereinabove and relied by the learned counsel for the appellants would indicate that a plea of adverse possession can be included in the plea of title. Consequently this appeal fails and is hereby dismissed with costs. 5. A perusal of the case cited hereinabove and relied by the learned counsel for the appellants would indicate that a plea of adverse possession can be included in the plea of title. There could be no doubt about this but this plea could be included when the defendant himself was claiming on the basis of title and even though he had not pleaded in the alternative that he had perfected his right by adverse possession the court could enter into the question of adverse possession and record a finding thereon. A perusal of paragraph 15 of the written statement filed on behalf of the defendants would indicate that their defence was that the plaintiff was never in possession over the disputed land and that the suit in any case was barred by time. The only claim that the defendants made was about the disputed land being their Sahan and nowhere it was whispered in the written statement that they had perfected their right by adverse possession. Looking to the pleadings in the written statement and considering the said pleading in the light of the submission of the learned counsel for the appellants that Article 65 of the Limitation Act was applicable in the instant case it was incumbent on the defendants to indicate as to when and at what point of time their possession, in any case, became adverse to the plaintiff because only then the suit of the plaintiff could be declared to be barred by time when the defendants had established as a fact that from the date the possession of the defendants became adverse the suit had been filed beyond 12 years. No evidence is available on record to that effect. As such it cannot be said that the suit was barred by time and the lower appellate court was amply justified in reversing the finding to the effect that the suit was barred by time and that since last more than 12 years the defendants were in adverse possession. The learned counsel submitted that Commissioner's report had not been considered by the lower appellate court and that no finding had been recorded about it. The learned counsel submitted that Commissioner's report had not been considered by the lower appellate court and that no finding had been recorded about it. He further submitted that since applicability of Article 65 of the Limitation Act being a mixed question of law and fact the case, in any case, deserved to be remitted back for a fresh finding to be recorded on this score. I am unable to subscribe to the submissions made since the lower appellate court has affirmed the finding of fact on issue no. 1 and it was not at all required to give detailed reasons for affirming the finding of fact. In as far as the question of remitting the case back to the trial court is concerned, I do not consider it fit and appropriate in the interest of justice to do so since there is no material available on the record much less on the pleadings of the defendants to indicate that question for determination about the point of time when the defendants came in adverse possession requires reinvestigation and determination. , No other point has been urged before me. 6. In the result the appeal being devoid of force must fail and is dismissed with costs. The judgment of the lower appellate court is affirmed and the suit of the plaintiff is decreed. No order as to costs. (Appeal dismissed)