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2014 DIGILAW 1339 (PNJ)

Ashok Kumar v. Sham Wati

2014-09-24

MUTTACI JEYAPAUL

body2014
Muttaci Jeyapaul, J. 1. The plaintiff aggrieved by the concurrent verdicts of the Courts below dismissing his suit for recovery of possession has preferred the present second appeal. It is the contention of the plaintiff Ashok Kumar that he being the co-sharer is the owner of the suit property. The defendant is in illegal possession of the suit land. The plaintiff requested the defendant many a time to deliver possession of the suit land, but the latter did not agree. The suit laid by the father of the defendant Smt. Sham Wati was dismissed by this Court on 20.10.1981. Alleging that the defendant did not deliver possession of the suit land in spite of such a decree passed as against the defendant, the present suit has been filed for recovery of possession of the suit land. 2. The defendant contended in her written statement that it was wrong that the plaintiff was the owner of the suit property. The father of the defendant has been in possession for a very long period, at any rate, for more than 12 years and therefore, he has become the owner of the suit property. The defendant and her father have been in continuous and open possession of the suit property prior and subsequent to the earlier decision of this Court. The plaintiff had the absolute knowledge about the adverse possession set up by the defendant and her father. The defendant has now become the owner of the suit property by adverse possession. Alleging that the plaintiff has no right in the suit property, she prayed for dismissal of the suit. 3. On the side of the plaintiff, the plaintiff was examined as PW1. Ex.P1, copy of the jamabandi for the year 1976-77 and Ex.P2, the judgement passed by this Court in RSA No. 1795 of 1970 decided on 20.10.1981 were produced. On the side of the defendants, the defendant's husband by name Maya Bishan was examined as DW1. Certified copy of jamabandi for the years 1981-82, 1976-77, 1971-72, 1966-67 and 1957-58 were marked as Exs.D1 to D6 respectively, on the side of the defendant. 4. The Courts below having thoroughly adverted to the evidence on record arrived at a conclusion that the defendant, prior thereto her father, has been in possession and enjoyment of the suit property right from the year 1957-58 as established under Exs.D1 to D6. 4. The Courts below having thoroughly adverted to the evidence on record arrived at a conclusion that the defendant, prior thereto her father, has been in possession and enjoyment of the suit property right from the year 1957-58 as established under Exs.D1 to D6. Holding that the defendant has established her title by adverse possession, the plaintiff was non-suited. 5. The following substantial questions of law have arisen for determination:- 1. Whether the Courts below have misread the evidence and arrived at perverse findings. 2. Whether the possession, if any, with the father of the defendant prior to the termination of the earlier suit laid by him could be tacked with the possession with the defendant for determining the issue of adverse possession claimed by the defendant under Article 65 of the Limitation Act, 1963. 6. It is an admitted fact that the respondent's father instituted a suit in the year 1968 as against the appellant herein for declaration of title on the ground that he had perfected title by adverse possession. The said suit ultimately terminated in dismissal as per the judgement passed by this Court under Ex.P2 on 20.10.1981. This Court, having found that though the father of the respondent herein had been in adverse possession for about 8 long years prior to the filing of the said suit in 1968, he failed to establish that he had been in possession and enjoyment of the suit property by adverse possession for over a period of 12 years as contemplated under Article 65 of the Limitation Act, held that he was not entitled to a decree for declaration of title. In other words, it is crystal clear from the above verdict passed by this Court that the father of the respondent had not only been in possession of the property, but had been in effective adverse possession of the property about 8 years prior to the filing of the suit by him in the year 1968. 7. On a careful analysis of the evidence adduced by the respondent, it is found that the respondent has thoroughly established by producing Exs.D1 to D6 that from the year 1957-58 onwards her father and thereafter herself have been in continuous possession of the suit property. 7. On a careful analysis of the evidence adduced by the respondent, it is found that the respondent has thoroughly established by producing Exs.D1 to D6 that from the year 1957-58 onwards her father and thereafter herself have been in continuous possession of the suit property. At least, when the suit was filed in the year 1968 by the father of the respondent, it was duly notified to the appellant herein that the father of the respondent had set up adverse possession in the suit property. But, unfortunately, the appellant never cared to file any suit for recovery of possession, despite the effective plea set up by the respondent's father that his possession was adverse to the ownership claimed by the appellant. The present suit has been filed only in the year 1985. Many 12 years had run since the plea of adverse possession was set up by the respondent's father. 8. In the above factual matrix let me now decide the substantial questions of law formulated by this Court. 9. Learned counsel appearing for the appellant would vehemently contend that the ownership of the appellant was declared in the earlier suit filed by the respondent's father. 12 years' period as contemplated under Article 65 of the Limitation Act to set up a plea of adverse possession was not available for the respondent. 10. Learned counsel appearing for the respondent would submit that adverse possession with the respondent's father for about 8 years even prior to the filing of the earlier suit was recognized by this Court in the Second Appeal decided by this Court. Further, during the pendency of the earlier suit right from 1968 to 1981, no step has been taken by the appellant to file a suit for recovery of possession. Therefore, it is her contention that the entire period of possession, both with the father of the respondent and also with the respondent, will have been to be counted to test whether the respondent has perfected title by adverse possession. 11. It is a well settled proposition of law that pendency of the suit does not stop running of limitation. [Refer, Des Raj and others v. Bhagat Ram (dead) by L.Rs. and others, 2007(2) R.C.R. (Civil) 581 : 2007(2) Recent Apex Judgments (R.A.J.) 152 : 2007(9) SCC 641 ]. 12. 11. It is a well settled proposition of law that pendency of the suit does not stop running of limitation. [Refer, Des Raj and others v. Bhagat Ram (dead) by L.Rs. and others, 2007(2) R.C.R. (Civil) 581 : 2007(2) Recent Apex Judgments (R.A.J.) 152 : 2007(9) SCC 641 ]. 12. It is also a trite law that once a suit for recovery of possession against the defendant who is in adverse possession is filed, the period of limitation for claiming title by adverse possession comes to a grinding halt. [Refer, Babu Khan v. Nazim Khan (dead) by L.Rs., 2001(2) R.C.R (Civil) 688 : AIR 2001 SC 1740 ]. 13. In view of the above position of law, I find in the background of the factual scenario that the appellant who was notified of the adverse possession of the respondent's father way-back in the year 1968 that he had been in adverse possession at least for 8 years prior thereto should have filed a suit for recovery of possession to obviate the statutory bar contemplated under Article 65 of the Limitation Act. Inasmuch as the appellant had not filed any such suit even after the father of the respondent made clear his intention to possess the suit property adverse to the ownership of the respondent, the respondent should have filed a suit within the period of limitation prescribed under Article 65 of the Limitation Act. Factually, it has been established that the respondent's father and thereafter the respondent have been in possession and enjoyment of the suit property adverse to the interest of the appellant for over a period of 12 years. 14. It is to be noted that ownership of the appellant was not declared in the earlier suit filed by the respondent's father. Only a reference has been made in the said earlier proceedings that it was the admitted position that the appellant was the owner of the property. Such an observation cannot be construed as a decree of declaration of title granted by the competent Court. In other words, when the suit filed by the respondent's father was terminated on 20.10.1981, the appellant was not declared as owner of the suit property. Rather, the claim made by the respondent's father that he was the owner of the property by adverse possession was declined by the Court. 15. In other words, when the suit filed by the respondent's father was terminated on 20.10.1981, the appellant was not declared as owner of the suit property. Rather, the claim made by the respondent's father that he was the owner of the property by adverse possession was declined by the Court. 15. It was argued by the learned counsel appearing for the appellant that the Courts below have committed a wrong in tacking the possession of the father of the respondent with the possession of the respondent. 16. Learned counsel appearing for the respondent would submit citing some decisions that tacking different periods of possession even with different trespassers has been recognized by the Courts below. 17. The present respondent is none other than the daughter of the plaintiff who set up a plea for adverse possession in the suit laid by him for declaration of title by adverse possession. The respondent being the legal heir of her father had stepped into the shoes of her father who has been in adverse possession of the subject suit property. Even in a case where a trespasser in adverse possession alienates the said property, the alienee is well within his right to claim adverse possession from the date when the original trespasser started enjoying the property openly and continuously as against the interest of the real owner. 18. It was further contended by learned counsel appearing for the appellant that the written statement is quite silent as regards the actual date on which the respondent's father or the respondent came into adverse possession of the suit property. Per contra, learned counsel appearing for the respondent would submit that the required pleading as regards the plea of adverse possession has been amply set up in the written statement. 19. On a careful perusal of the written statement, it is found that the respondent has categorically set up a plea of adverse possession for more than 12 years. She has also set up a plea that her father was in adverse possession of the suit property and thereafter she came to possess the suit property adverse to the interest of the appellant. Their possession has been projected as continuous and open before and after the decision of the High Court in the earlier suit. 20. She has also set up a plea that her father was in adverse possession of the suit property and thereafter she came to possess the suit property adverse to the interest of the appellant. Their possession has been projected as continuous and open before and after the decision of the High Court in the earlier suit. 20. In a case where the period of 12 years as contemplated under Article 65 of the Limitation Act falls on the border line, the defendant is bound to specifically state at least the year from which he has been in adverse possession of the subject property. But, in a case where adverse possession for a quite long period is pleaded, in my considered view, it is humanly impossible to give the exact date from which the adverse possession began. Further, it is quite impracticable for the respondent after the demise of her father to state specifically from which date her father had been in adverse possession of the suit property, more especially when she could show before the Court that her father had been in adverse possession of the suit property for a long period. 21. Learned counsel for the appellant referring to the decision in Karnataka Board of Waqf v. Govt. of India, 2004(2) RCR (Civil) 702, would submit that a person who claims adverse possession should show on what date he came into possession apart from establishing the continuous, open and undisturbed possession. 22. In the instant case, it has been established that from the year 1957-58, the respondent's father and thereafter the respondent has been in continuous, open and uninterrupted possession of the suit property. In view of the above, the aforesaid decision cited by the learned counsel appearing for the appellant does not, in any way, support his contention. 23. Citing the decision in Parwatabai v. Sonabai & Ors., 1997(1) R.C.R. (Civil) 36 : 1997(2) S.C.T. 529 : 1996 Scale (6) 375, the learned counsel for the appellant would submit that a person who claims adverse possession should establish the exact date from which the adverse possession started running. That was a case where the suit was filed within 10 years from the date when the adverse possession was claimed. Therefore, the Court has observed that the appellant in that case failed to establish as to what was the exact date from which adverse possession started running. 24. That was a case where the suit was filed within 10 years from the date when the adverse possession was claimed. Therefore, the Court has observed that the appellant in that case failed to establish as to what was the exact date from which adverse possession started running. 24. The phrase 'exact date' referred to in the aforesaid decision cannot be construed literally 'the date in a month'. It may also mean the year from which the adverse possession was claimed in a case where the possession had been with the claimant for a long number of years beyond the period of 12 years as prescribed under Article 65 of the Limitation Act. 25. It was further argued by learned counsel appearing for the appellant that the plea of limitation was not set up in the written statement and as a result of which no issue also was formulated with respect thereto by the trial Court. 26. Learned counsel appearing for the appellant cited a decision of the Hon'ble Supreme Court in State of Punjab v. Darshan Singh, Case No. Appeal (civil) 8479-8480 of 2003 dated 29.10.2003, wherein it has been held as follows:- "We shall first deal with the case relating to the suit being belated. It appears that no specific issue was framed in that regard though the Government in its written statement specifically took the plea. Learned counsel for the State submitted that issue No. (2) was wide enough to take note of the plea relating to limitation. If the issue was not framed specifically a different course was available to be adopted by the respondent which does not appear to have been done. In Second Appeals preferred before the High Court also there was no specific plea regarding the question of limitation. That being so, we are not inclined to go into the question as to belated filing of the suit." 27. The above decision has been arrived at in a service matter. In a service matter brought by the employee of the Government, the plea of limitation was not set up by the Government. Under such circumstances, the above observation was made by the Hon'ble Supreme Court. 28. In the instant case, plea of adverse possession for more than 12 years was set up by the respondent. In a service matter brought by the employee of the Government, the plea of limitation was not set up by the Government. Under such circumstances, the above observation was made by the Hon'ble Supreme Court. 28. In the instant case, plea of adverse possession for more than 12 years was set up by the respondent. It directly attracts Article 65 of the Limitation Act which prescribes 12 years of limitation period for filing a suit for possession of immovable property based on title when the possession of the defendant becomes adverse to the plaintiff. The question is whether the pleadings found in the written statement would attract the mischief of Article 65 of the Limitation Act. In my view, the answer is in the affirmative. The Courts below have adverted the issue as to whether adverse possession was established by the respondent as prescribed under Article 65 of the Limitation Act. Under such circumstances, I find that there is virtually no merit in the above submission made by learned counsel appearing for the appellant. The substantial questions of law formulated by this Court are thus answered. Consequently, the appeal is dismissed with no orders as to cost.