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2014 DIGILAW 614 (BOM)

Shakuntala v. Chandrabhan

2014-03-06

A.P.BHANGALE

body2014
Judgment 1. This appeal arose out of the Judgment and Order dated 28.10.1999 passed in the Regular Civil Appeal No.263 of 1996 by the 4th Additional District Judge, Nagpur which was allowed. The said appeal was filed challenging the Judgment and Order dated 11.3.1996 passed in Regular Civil Suit No.1395 of 1990 by Civil Judge (J.D.), Nagpur whereby the suit was dismissed. For the sake of convenience, the parties are referred to in the judgment by their nomenclature in title of the plaint respectively. 2. Heard the submissions at the bar. 3. This Second Appeal was admitted upon the following substantial questions of law. (i) Is it not that if the decree dated 28-07-1968 in Civil Suit No.1998/1967 is not executed within a period of 12 years as per article 136 of the Limitation Act, 1963, the right of the owner to obtain possession of the suit property gets lost? (ii) Is it not if the decree dated 28-07-1968 in Civil Suit No.2998/1967 is not executed within a period of 12 years as per article 136 of the Limitation Act, 1963, the owners are not entitled in law to file a fresh suit to obtain possession of the same property which was the subject matter of the Civil Suit No.2998/1967? I answer the above questions in the negative for the following reasons. 4. One Smt. Sheeladevi Diwanchand Midha, who had purchased the suit property from Shri Haricharanlal Govindprasad Agrawal, sold the suit property to the plaintiff. The plaintiff claimed ownership of the suit premises on the basis of the registered Sale deed dated 19.10.1984. (Exh.45). 5. In the past, Haricharanlal had sued his tenant of the suit premises Shri Ganpat Ramgirkar. The notice to quit was issued on 05.07.1965. But the tenant did not vacate the house. The plaintiffs had instituted the proceedings under the Rent Control law. Original plaintiffs had filed the suit for declaration and recovery of possession of the house bearing No.312/03, Ward no. 29, Garud khamb Road, Nagpur. The suit house was originally owned by Haricharanlal Govindprasad who had instituted the suit for recovery of possession against the original defendant being Suit No.2998 of 1967 decreed on 23.07.1968. But the defendants denied the title of the plaintiff as landlord. Thus, the present suit on title was instituted by the plaintiff after issuing notice to the defendant. The suit house was originally owned by Haricharanlal Govindprasad who had instituted the suit for recovery of possession against the original defendant being Suit No.2998 of 1967 decreed on 23.07.1968. But the defendants denied the title of the plaintiff as landlord. Thus, the present suit on title was instituted by the plaintiff after issuing notice to the defendant. The plaintiff contended that assuming that Haricharanlal did not file the execution proceedings, the defendant’s legal representatives cannot become the owner of the suit premises. The title suit was disputed on the ground that the landlord Haricharanlal had failed to execute the decree and hence, the remedy for recovery of possession on the same ground is barred as time for execution has expired. The suit is, thus, challenged as barred by limitation as also in view of Order II, Rule 2 of the Code of Civil Procedure. 6. The trial Court held that the plaintiffs were owners of the suit premises, but the suit was untenable in the present form and proceeded to dismiss the suit. 7. The first Appellate court held that when a plea of adverse possession is raised, Article 65 is attracted and it is the Civil Court and not the Revenue Court which can decide the plea of adverse possession. The party raising the plea for adverse possession must plead and prove that his possession of the suit property was hostile assertion by the defendant to the knowledge of the owner, uninterrupted, open, continuous, animus possidendi for the period of prescription i.e. 12 years or more. T. Anjanappa & Ors. v. Somalingappa & Anr. [ (2006) 7 SCC 570 ], stating : “It is well recognised proposition in law that mere possession, however long, does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession, the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner’s title must be peaceful, open and continuous. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner’s title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former s hostile action.” 8. Article 136 of the Limitation Act, 1963 provided limitation of 12 years for execution of the decree or order of the Civil Court (Except decree granting mandatory injunction). Period of Twelve years is computable from the time the decree became enforceable or from the date of the first default on the part of the judgment debtor to comply with the decree. Thus, the limitation starts when the decree is capable of being executed. Irrespective of the bar by limitation to execute the decree, such decree is still a conclusive evidence of the matter decided by it. Thus, for the purposes unconnected with the execution of the decree, validity of the decree is not affected. The judgment debtor may be punished for his disobedience to the decree passed or for contempt of the court. The doctrine of res-judicata would prevent the second suit on the same cause of action. But fresh suit by the plaintiff on the different cause of action on the basis of the title is not barred. In other words, fresh Suit by owner of immovable property upon a different cause of action is not barred. It is for the plaintiff to aver the cause of the suit by stating the fact in the plaint which if traversed is required to be proved by the plaintiff to support his right to the judgment of the Court. When the plea of adverse possession was taken in a suit based on title, Article 65 of the Limitation Act, 1963 was attracted. Period of 12 years of limitation is computable from the date i.e. 05.05.1990 in the present case. The first Appellate Court rightly held the suit as well within limitation. 9. Furthermore, regarding presumption of jurisdiction of the Civil Court, we may refer to ruling in Raleigh Investment Co. Period of 12 years of limitation is computable from the date i.e. 05.05.1990 in the present case. The first Appellate Court rightly held the suit as well within limitation. 9. Furthermore, regarding presumption of jurisdiction of the Civil Court, we may refer to ruling in Raleigh Investment Co. Ltd. v. Governor General in Council, AIR 1947 PC 78, in which it is held as under: "...................there is a general presumption that there must be a remedy in the ordinary civil court to a citizen claiming that an amount had been recovered from him illegally and that such a remedy can be held to be barred only on very clear and unmistakable indication to the contrary.” The exclusion of the jurisdiction is by an express provision to that effect or which leads to a necessary and inevitable implication of that nature. 10. The Constitution Bench of the Hon'ble Supreme Court in Dhulabhai and Anr. v. State of Madhya Pradesh and Anr., AIR 1969 SC 78 , held that exclusion of jurisdiction of the Civil Court by express provision may not be a complete bar to entertain a suit if party satisfies the Civil Court that the Statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure. More so, the Statutory Tribunal must be competent to provide all the remedies normally associated with the actions' in Civil Courts, which are prescribed by the said Statute or not. More so, the exclusion of jurisdiction of the Civil Court is not readily to be inferred unless the aforesaid conditions are fulfilled. 11. In Smt. Bismillah v. Janeshwar Prasad and Ors., AIR 1990 SC 540 , the Hon'ble Supreme Court has observed as under: "It is true that the question of jurisdiction depends upon the allegations in the plaint and not the merits or the result of the suit. “ Legal position cannot be disputed that the issue of jurisdiction of the civil court has to be decided on the basis of the averments made in the plaint. The jurisdictional fact in issue is required to be proved by the plaintiff who approaches the court. The court to which the plaintiff has approached would have to decide the jurisdictional fact and proceed further to decide the suit on merits if its finding is affirmative. Ordinary Civil court thus has the jurisdiction irrespective of the defence taken by the defendant. The court to which the plaintiff has approached would have to decide the jurisdictional fact and proceed further to decide the suit on merits if its finding is affirmative. Ordinary Civil court thus has the jurisdiction irrespective of the defence taken by the defendant. Allegations or averments in the plaint would thus decide the forum to entertain and try the suit irrespective of the defence in the written statement. The plaintiff would get relief by proving the correctness of the averments made in the plaint otherwise if the court finds that the averments are not true the suit will have to be dismissed. In other words the defendant cannot force the plaintiff to go the forum where the plaintiff cannot go on the basis of his averments made in the plaint. 12. In cases of the Suit on title, the Hon’ble Supreme Court of India, (three Judges Bench) in case of Maria Margarida Sequeira Fernandes & Ors. vs. Erasmo Jack De Sequeira reported in (2012) 5 SCC 370 ) succinctly concluded in these words: “Principles of law which emerge in this case are crystallized as under: 1. No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property. 2. Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The caretaker or servant has to give possession forthwith on demand. 3. The Courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant. 4. The protection of the Court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or license agreement in his favour. 5. The caretaker or agent holds property of the principal only on behalf of the principal. He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession.” 13. 5. The caretaker or agent holds property of the principal only on behalf of the principal. He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession.” 13. Looking to the legal position discussed as above, in my opinion, the learned first Appellate Judge has rightly set aside the Judgment and Order of dismissal of the suit by the trial Court by allowing the First Appeal and passing decree as prayed for by the plaintiff holding the defendant liable jointly and severally to deliver possession to the plaintiff and directing the defendants to deliver vacant possession of the suit house to the plaintiff. 14. In the result of the discussion and answers recorded to the substantial questions of law as raised, the appeal must fail. The appeal is sans merits. It is, therefore, dismissed with costs. Mr.R.R.Shrivastava, learned Counsel for the appellants prays that the ad interim order in relation to possession shall be continued for a further period of eight weeks since the appellants want to approach the Apex Court. The ad interim order in relation to possession shall accordingly continue to operate for a further period of eight weeks.