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2016 DIGILAW 323 (MAD)

G. K. Parthasarathy v. K. Gopal

2016-01-28

T.MATHIVANAN

body2016
ORDER : This Memorandum of civil revision has been directed against the fair and decreetal order dated 05.10.2015 and made in the Interlocutory Application in I.A. No. 558 of 2015 in O.S. No. 834 of 2010, on the file of the learned I Additional District Munsif, Tiruchirapalli dismissing the application on the ground that the proposed amendment is barred by time as contemplated under Section 6 of the Specific Relief Act. 2. The revision petitioner herein is the plaintiff, where as the respondents are the defendants. The revision petitioner has filed a suit in O.S. No. 834 of 2010 on the file of learned I Additional District Munsif, Tiruchirapalli as against the respondents seeking the relief of permanent injunction restraining the respondents from trespassing or interfering with their peaceful possession and enjoyment of the suit property except otherwise than by due process of law. The respondents have also resisted the suit by filing their written statement. 3. Under this circumstance, the revision petitioner/plaintiff has taken out an application in I.A. No. 558 of 2015 under Order VI, Rule 17 read with Section 151 of the Code of Civil Procedure seeking permission to amend the plaint for recovery of possession. This petition was vehemently resisted by the respondents on the ground that the petition is not legally maintainable as it was filed on 25.08.2015, i.e. after a period of three years. The learned trial Judge after hearing both sides, has dismissed the said application on 05.10.2015 only on the sole ground that the application itself is barred by limitation as contemplated under Section 6 of the Specific Relief Act 1963 and as per section 6 of the Specific Relief Act if any person is dispossessed without his consent from the immovable property otherwise than in due course of law, he may file a suit for recovery of possession, but no suit shall be filed after the expiry of six months from the date of dispossession. Having been aggrieved by the impugned order, the respondent being the plaintiff stands before this Court with this civil revision. 4. Heard Mr. Meenakshmi Sundaram, learned counsel appearing for the revision petitioner and Mr. S. Govindan, learned counsel appearing for the second respondent. 5. Notice to the first respondent has been dispensed with vide Court order dated 16.11.2015. 6. Having been aggrieved by the impugned order, the respondent being the plaintiff stands before this Court with this civil revision. 4. Heard Mr. Meenakshmi Sundaram, learned counsel appearing for the revision petitioner and Mr. S. Govindan, learned counsel appearing for the second respondent. 5. Notice to the first respondent has been dispensed with vide Court order dated 16.11.2015. 6. The crucial issue to be decided in this revision petition is, as to whether six months period as stipulated under Section 6 of the Specific Relief Act 1963 will be applicable to bring the amendment in the plaint or 12 years period as enshrined under Article 64 of the Limitation Act will be made applicable? 7. As afore stated, the trial Court has found that this application was not filed within a period of six months as contemplated under section 6 of the Specific Relief Act 1963. 8. In order to answer this issue it is imperative on the part of this Court to extract the provisions of section 6 of the Specific Relief Act 1963 as well as Article 64 of the Limitation Act 1963. Section 6 of Specific Relief Act :- 6. Suit by persons dispossessed of immovable property: (1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, not withstanding any other title that may be set up in such suit. (2) No suit under this section shall be brought- (a) after the expiry of six months from the date of dispossession, or (b) against the government. (3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed. (4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof. 9. Article 64 of the Limitation Act 1963 contemplates that for possession of immovable property based on previous possession and not on title, when the plaintiff while in possession of the property has been dispossessed, the period of limitation is 12 years. The time from period begins to run is the date of dispossession. 10. 9. Article 64 of the Limitation Act 1963 contemplates that for possession of immovable property based on previous possession and not on title, when the plaintiff while in possession of the property has been dispossessed, the period of limitation is 12 years. The time from period begins to run is the date of dispossession. 10. On coming to the instant case on hand, as it is revealed from the averments of the affidavit filed in support of petition, the first respondent had executed an usufructuary mortgage deed on 05.09.2008 in favour of the revision petitioner after borrowing a sum of Rs.3 lakhs. On receipt of the aforesaid amount, the first respondent being the owner of the property had allowed the revision petitioner to occupy and utilise the property for a period of two years from the date of execution of mortgage deed either for residential or for non residential purpose in lieu of interest. The rent amount which is to be paid would be adjusted towards the interest on the principal mortgage amount. 12. It is the specific case of the petitioner that taking advantage of the absence of the revision petitioner, the respondent had entered into the property. In this connection, a contempt petition was also filed in I.A. No. 480 of 2015, which is pending. 13. Keeping in view of the above fact, the revision petitioner had come forward with the above said application under Order VI, Rule 17 of the Code of Civil Procedure to amend the plaint for recovery of possession. 14. It is seen from the records that the second respondent alone has contested the petition. 15. What he would contend in his counter statement is, that the suit was presented into Court in the year 2010 seeking the relief of permanent injunction and he had also filed a detailed written statement. 16. While denying all the allegations made in the plaint as well as in the affidavit filed in support of the petition, the second respondent would contend that all the documents which were produced along with the suit were created only for the purpose of filing of the suit and that he had specifically denied the execution of the usufructuary mortgage deed on 05.09.2008. 17. He has also contended that since the revision petitioner and the first respondent are brothers, they had colluded together with an intention to defraud him. 17. He has also contended that since the revision petitioner and the first respondent are brothers, they had colluded together with an intention to defraud him. He had purchased the suit property by means of a registered sale deed dated 04.02.2010 for valuable consideration and ever since from the date of his purchase he had/has been in possession and enjoyment of the suit property. He had inducted a tenant by name Sunder and also inducted his father one Mr. Subramanian in possession and enjoyment of the suit property in question. 18. The second respondent has raised a crucial question that when the possession and enjoyment of the petitioner in respect of the suit property on the date of filing of suit is disputed, the question of recovery of possession does not arise, since the application itself was filed belatedly after expiry of the period of limitation, the petition seeking permission to amend the plaint is not maintainable. 11. Obviously, an order of interim injunction was granted in favour of the revision petitioner on 25.11.2010. 19. Mr. S. Meenakshi Sundaram, learned counsel appearing for the second respondent has contended that it was not a straight jacket formula to reject the amendment application only on the ground of limitation since it was not a pure question of law, but it was a mixed question of facts and law. 20. He has also added that the amendment application ought to have been allowed based on the provisions of Article 64 of the Limitation Act, 1963, but unfortunately, the trial Court had deliberately failed to consider and lost sight upon the provisions of Section 64 of the Limitation Act. 21. As discussed in the foregoing paragraphs, the respondents being the defendants have contended that they never executed the usufructuary mortgage deed in favour of the petitioner in respect of the suit property and that they never borrowed any amount much less Rs.3,00,000/- in pursuant to the execution of the mortgage deed. 22. It is also their contention that the petitioner was not allowed to be in possession of the suit property in lieu of the interest on the mortgage amount of Rs.3,00,000/-. 23. Their specific contention is that they would contend is that they had inducted a tenant by name Sundar and also inducted his father one Mr. 22. It is also their contention that the petitioner was not allowed to be in possession of the suit property in lieu of the interest on the mortgage amount of Rs.3,00,000/-. 23. Their specific contention is that they would contend is that they had inducted a tenant by name Sundar and also inducted his father one Mr. Subramanian in possession and enjoyment of the suit property and he has therefore, submitted that the plaintiff had never been in possession and enjoyment of the suit property. 24. When such being the case, the question of dispossession as raised by the petitioner is to be proved by adducing necessary oral as well as documentary evidences. 25. It is also to be noted that the amendment petition under Order 6 Rule 17 of C.P.C. was filed based on the previous possession of the petitioner. What the Article 64 of the Limitation Act would envisage is that for possession of immovable property based on previous possession and not on title when the plaintiff while in possession of the property has been dispossessed, the period of limitation is 12 years. 26. In this case also, the petitioner has contended that since he was dispossessed by the respondents, he was constrained to file the application under Order 6 Rule 17 of C.P.C. to amend the plaint for recovery of possession as the suit was filed only for the relief of permanent injunction. 27. It is understood from the case of the petitioner that in pursuant to the mortgage deed executed by the respondents/defendants after borrowing a sum of Rs.3,00,000/- he was allowed to occupy and utilize the property for a period of two years from the date of execution of the mortgage deed either for residential or for non residential purpose in lieu of interest. All these facts have to be established only during the trial proceedings. 28. Having taken into consideration of the relevant facts and circumstances of the case, the prime view of this Court is that to avoid multiplicity of the proceedings it may be better to allow the application seeking amendment of the plaint for recovery of possession. 29. Mr. S. Meenakshi Sundaram, learned counsel appearing for the revision petitioner in order to fortify his contention has placed reliance upon the following decisions:- a. Tirumala Tirupati Devasthanams vs. K.M. Krishnaiah ( (1998) 3 SCC 331 ). 30. 29. Mr. S. Meenakshi Sundaram, learned counsel appearing for the revision petitioner in order to fortify his contention has placed reliance upon the following decisions:- a. Tirumala Tirupati Devasthanams vs. K.M. Krishnaiah ( (1998) 3 SCC 331 ). 30. In this case, the Hon'ble Mr. Justice M. Jagannadha Rao while speaking on behalf of the Division Bench of the Apex Court has observed that summary suit for possession could not be filed within the limitation period of six months under Section 6 by the dispossessed person. Even after the expiry of the time for filing the summary suit, dispossessed person can still file a suit for possession on the basis of prior possession i.e., suit based on possessory title. But in such a suit the defendant who dispossessed the plaintiff could defend himself by proving title and if he proved the title, he could remain in possession. 31. In S. Gururajan and another vs. P.M. Duraisamy (1998) 3 MLJ 7 ), a suit was filed by the plaintiff to restore possession of the suit property to him and also for recovery of Rs.5100/- towards the value of the articles unauthorisedly removed by the defendants and for costs. 32. It was alleged that the defendants are the owners of the building, which is a lodging house consisting of several rooms. The plaintiff had taken a room No.212 on a monthly rent of Rs.120 and had been carrying on banking business in that room. He was paying the rent regularly. 33. Previously, the defendants were trying to evict the plaintiff by illegal and unlawful means. They had also filed a rent control application against the plaintiff for eviction. While eviction petition was pending, the defendants with the assistance of their men had successfully prevented the plaintiff from entering into the room. 34. Under these circumstances, the plaintiff had filed a suit to recover possession of the building in which he was a tenant. 35. According to the defendants, in the said suit, if it is a case of forcible dispossession, the suit ought to have been filed within a period of six months from the date of dispossession and the suit was filed only after the expiry of six months and therefore, the suit was liable to be dismissed at the threshold. 36. 35. According to the defendants, in the said suit, if it is a case of forcible dispossession, the suit ought to have been filed within a period of six months from the date of dispossession and the suit was filed only after the expiry of six months and therefore, the suit was liable to be dismissed at the threshold. 36. Under these circumstances, the learned Single Judge of this Court, while disposing of the second appeal has observed that under Article 64 of the Limitation Act, a person who is dispossessed, can file a suit within 12 years from the date of dispossession even though it is beyond six months. The provision of Article 64 of the Limitation Act, which contemplates that the suit to be filed within six months, is not a bar in such cases. 37. In this case, the defendants can show a better title, if only they are successful to prove that the tenancy has been surrendered by the plaintiff and thereafter the plaintiff either trespassed or after termination of the tenancy, the plaintiff wanted to continue in possession. 38. Further, the learned Judge has also found that the title of the plaintiff stands on the basis of possession. Even if it is a possessory title, the defendants have no better title so long as the statutory right of the plaintiff stands in his favour. Consequently, the contention that the suit is barred by limitation is also without any merits. 39. In paragraph 23 of the above cited decision, the learned Judge has made reference to U.N. Mitra's Law of Limitation and Prescription, 10th Edition, at page 1092 Note No.5. 40. Paragraph No.23 is extracted as under:- “Suit under Section 6, Specific Relief Act and suits governed by Article 64: A person in possession of land in assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the latter does not come forward and assert his title by the process of law within the period prescribed by the statute of limitation applicable to the case his right is for ever extinguished and the possessory owner acquires an absolute title. And if the latter does not come forward and assert his title by the process of law within the period prescribed by the statute of limitation applicable to the case his right is for ever extinguished and the possessory owner acquires an absolute title. In the event of disturbance of possession by a third party and not the owner, the plaintiff can maintain a possessory suit under the provisions of the Specific Relief Act in which the title would be immaterial or a suit for possession within 12 years in which the question of title could be raised. If Section 6 of the Specific Relief Act, 1963 (Section 9 of the Act of 1877) is utilized the plaintiff need not prove title and the title of the defendants does not avail him. When, however, the period of six months has passed, question of title can be raised by the defendant and if he does so, the plaintiff must establish a better title or fail. In other words, the right is only restricted to possession only in a suit under Section 6 but that does not bar a suit on prior possession within 12 years and title need not be proved unless the defendant can prove one. Articles 64 and 65 of the Limitation Act bring out the difference. Both Section 6, Specific Relief Act and Article 64 of the Limitation Act afford relief to a person on dispossession, though such person may not be able to prove any title to the property. The basis of the suit under both provisions is the factum of possession had and not the right of the person dispossessed to be in possession. The plaintiff's suit cannot be resisted even if the defendant has a better title. The resemblances go no further and a number of differences between the two provisions are to be found. The object of Section 6 is to prevent persons taking law into their own hands and so it provides for a special, summary and speedy remedy for protecting the possession held. A suit under Article 64 is not summary in character and is designed to protect previous possession. In a possessory suit under the Specific Relief Act to adjudication on the question of title can arise. A suit under Article 64 is not summary in character and is designed to protect previous possession. In a possessory suit under the Specific Relief Act to adjudication on the question of title can arise. In a suit based on prior possession but not on title the defendant can plead jus terti in which case the inquiry into title becomes a justiciable issue. The limitation for a suit under Section 6 is a short period, six months from dispossession whereas the period of limitation for a suit under Article 64 is 12 years. Further there is no right of appeal or review in respect of suits under Section 6; nor can a suit be brought against the Government under that section. [Italics supplied]. 41. In paragraph No.24, the learned Judge has referred to the decision in Thirumala Thirupathi Devasthanams vs. K.M. Krishnaiah (1998) 3 SCC 331 ), cited supra as well as the decision in Nair Service Society Ltd., vs. K.C. Alexandar ( AIR 1968 SC 1165 : 1968 S.C.D. 500). 42. In Thirumala Thirupathi Devasthanams' case (1998) 3 SCC 331 ) cited supra, Hon'ble Mr. Justice M. Jagannadha Rao, in paragraph No.16, has observed that, “in our opinion, the judgment of this Court in Nair Service Society Ltd. vs. K.C. Alexander answers this point squarely. The facts of the case before us and in that case are quite close but for a small distinction, to which we shall refer at the appropriate stage. 43. Paragraph No.17, which is also relevant, has been extracted as under:- “In that case the respondent was the plaintiff and he was dispossessed. He sued for possession but the suit was filed more than one year after dispossession. Under the specific Relief Act, 1877 section 9 permitted a dispossessed plaintiff to sue for possession within one year and if he so sued, question of title of the defendant was immaterial. Now under section 6 of the new Specific Relief Act, 1963 the said period of one year has been reduced to six months. Question arose whether the suit by the dispossessed plaintiff, after expiry of the 1 year period, was maintainable. It was held by this court that even if the time for filing a summary suit under Section 9 the specific Relief Act, 1877 expired, the dispossessed person could still file a suit for possession on the basis of prior possession. Question arose whether the suit by the dispossessed plaintiff, after expiry of the 1 year period, was maintainable. It was held by this court that even if the time for filing a summary suit under Section 9 the specific Relief Act, 1877 expired, the dispossessed person could still file a suit for possession on the basis of prior possession. Such a suit is described as one based on 'possessory title'. But in such a suit filed by the dispossessed plaintiff beyond the period specified in section 9 of the Specific Relief Act, 1877 (or Section 6 of the 1963 Act) defendant who dispossessed the plaintiff could defend himself by proving title and if he proved title, he could remain in possession. After an exhaustive examination of the law on this aspect, Hidayatullah, J. (as he then was) has observed as follows (p 1173): "When, however, the period of 6 months has passed, questions of title can be raised by the defendant and if he does so, the plaintiff must establish a better title or fail." The difference between the right to possession in summary suit under the specific Relief Act and a regular suit based on 'possessory title' was explained further as follows (p.1173) "....the right is only restricted to possession only in a suit under Section 9 of the specific Relief Act but does not bar a suit on prior possession within 12 years and title need not be proved unless the defendant can prove one". On the question whether the defendant, inspite of dispossessing the plaintiff, could, by proving title, remain in possession, it was held that the defendant could, in such a situation, be permitted to retain his possession if he proved title. It was stated that the law was so laid down in Asher vs. Whitcock [1865 (1) QB 1] and was accepted by the House of Lords in Perry vs. Clissold [1907 AC 73], that was also the law applicable in our country and it was this principle that was engrafted into Articles 64 and 65 of the Indian Limitation Act, 1963. The said articles were, it was held, declaratory of the law. The following observations of Hidayatullah, J. (as he then was) place the matter beyond any shadow of doubt, (p.1175, Col.1): "1865 (1) QB 1. (Asher Vs. The said articles were, it was held, declaratory of the law. The following observations of Hidayatullah, J. (as he then was) place the matter beyond any shadow of doubt, (p.1175, Col.1): "1865 (1) QB 1. (Asher Vs. Whitcock) lays down that a person in possession of land has a good title against all the world except the true owner and it is wrong in principle for any one without title or authority of the true owner to dispossess him and relying on his position as defendant in ejectment to remain in possession"....A defendant in such a case must show in himself or his predecessor a valid legal title or...." (name of case in brackets supplied) On the facts in Nair Service Society, the said Society which was the defendant raised a plea that it has not dispossessed the plaintiff-respondent but that the plaintiff was dispossessed by the State which was the real owner. it contended further that the State had put the society in possession, after dispossessing the plaintiff. The High Court however, held that it was the Society that had dispossessed the plaintiff and not the State. This finding was accepted by the supreme Court. It was therefore held that the suit for possession by the dispossessed plaintiff was maintainable even though the one year period under section 9 of the old specific Relief Act. 1877 had expired, that the suit would then be one where title could be pleaded by the Society to remain in possession, but that the Society failed to prove title in itself. Nor did the Society prove any authority from the true owner to dispossess the plaintiff. The Society could not, therefore, remain in possession. However, in this Court, the Society set up a different root of title under a second Kuthaka pattam (see para 33) and with a view to shorten further litigation, an amendment to the written statement of the Society was allowed by this Court and the matter was remanded.” 44. In an another decision in Rajesh Kumar Aggrawal and others vs. K.K. Modi and others ((2006) 3 MLJ 70 (SC)), a Division Bench of the Apex Court has held that to determine the real issues arising in the suit, amendment can be allowed. 45. In Pankaja and another vs. Yellapa (D) and Lrs. and others (2004 (4) CTC 231), Hon'ble Mr. 45. In Pankaja and another vs. Yellapa (D) and Lrs. and others (2004 (4) CTC 231), Hon'ble Mr. Justice N. Santosh Hegde while speaking on behalf of the Division Bench, in paragraph No.14, has observed as under:- “This view of this Court has, since, been followed by a 3 Judge Bench of this Court in the case of T.N. Alloy Foundry Co. Ltd. Vs. T.N. Electricity Board & Ors., 2004 (3) SCC 392 . Therefore, an application for amendment of the pleading should not be disallowed merely because it is opposed on the ground that the same is barred by limitation, on the contrary, application will have to be considered bearing in mind the discretion that is vested with the Court in allowing or disallowing such amendment in the interest of justice.” 46. On the other hand, Mr. S. Govindan, learned counsel appearing for the second respondent, in support of his contention, has placed reliance upon the following decisions:- a. Abdul Rahman vs. Muhammed Haji (AIR 1997 Kerala 23) b. Madina Bibi Sahiba vs. Ismail Durga Association and another (AIR 1940 Madras 789). c. Muni Lal vs. The Oriental Fire and General Insurance Company Ltd. and another ( AIR 1996 SC 642 ). 47. In Abdul Rahman's case, cited first supra, the learned Single Judge of the Kerala High Court has held with reference to Section 6 of the Specific Relief Act that the section provided summary cheap and useful remedy to one dispossessed of immovable property otherwise than in due course of law and that the party seeking relief must prove his dispossession within six months of filing of suit. 48. In Madina Bibi's case, cited second supra, a suit by the creditor under Section 53 of the Transfer of Property Act, was instituted for cancellation of a sale deed on the ground that it was executed with intent to defeat and delay the creditors. The defendant's objection that the suit as laid was incompetent for want of permission of the Court under O.1, R.8 Civil P.C., was however put in issue and disallowed. In the appeal by the defendant the plaintiff sought to amend the plaint and turn the suit into a representative one. 49. The defendant's objection that the suit as laid was incompetent for want of permission of the Court under O.1, R.8 Civil P.C., was however put in issue and disallowed. In the appeal by the defendant the plaintiff sought to amend the plaint and turn the suit into a representative one. 49. Under these circumstances, it was held that having gone to the trial on the issue raised by the defendant it was far too late in the day for the plaintiff to ask in appeal for leave to amend, and that the course which the plaintiff should have adopted when the question was raised was to apply to the Court for permission to sue on behalf of all the creditors. 50. In Muni Lal's case, cited third supra, a truck owner on not returning of truck, merely asking for declaration that he is entitled to payment for loss of truck but not seeking consequential relief of payment of quantified amount. In the appeal, permission was sought to amend the plaint to include the unsought relief. 51. Under these circumstances, it was held that since the relief becoming time barred at that stage, the plaintiff/appellant cannot be permitted to amend plaint after the suit for relief in question was barred by time during the pendency of the proceedings. 52. This Court has carefully considered the above cited judicial pronouncements. 53. As observed by the learned Single Judge of this Court (S.S. Subramani, J.,), the decision in Nair Service Society Ltd. v. K.C. Alexandar ( AIR 1968 SC 1165 ), cited supra, will be squarely made applicable to this case. 54. Since the provisions of Article 64 provides that for possession of immovable property based on previous possession and not on title when the plaintiff while in possession of the property was dispossessed, the suit for recovery of possession can be filed within a period of 12 years from the date of dispossession even though it is beyond six months. 55. It is to be understood from the language coined under Article 64 of the Limitation Act that a suit to be filed within six months cannot be a bar for a person, who is dispossessed, to file a suit. He can file the suit within 12 years from the date of dispossession. 56. 55. It is to be understood from the language coined under Article 64 of the Limitation Act that a suit to be filed within six months cannot be a bar for a person, who is dispossessed, to file a suit. He can file the suit within 12 years from the date of dispossession. 56. Keeping in view of the above facts, this Court is of considered view that the finding of the trial court requires interference of this Court. 57. Accordingly, the revision petition is allowed. The impugned order, dated 5.10.2015 and made in I.A.No.558 of 2015 in O.S.No.834 of 2010 on the file of the learned I Additional District Munsif, Tiruchirapalli, is set aside and the petition in I.A. No. 558 of 2015 in O.S. No. 834 of 2010 is allowed. 58. The trial Court is directed to make necessary amendment in the plaint as sought for in the application in I.A. No. 558 of 2015 in O.S. No. 834 of 2010 without insisting on any formal application. In the result, the civil revision petition is allowed. Connected M.P. No. 1 of 2015 is closed. However, there will be no order as to costs.