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2018 DIGILAW 2384 (MAD)

A. Balusamy v. V. Muthulakshmi

2018-08-03

M.SUNDAR

body2018
JUDGMENT : More than 24 years ago, one V. Muthulakshmi purchased a house property and that is the genesis of this litigation. 2. It is necessary to chronicle the facts of this case in the sequence in which they unfurled, for better appreciation of this judgment. 3. Chronicle of Facts : (A) Preface : (a) V. Muthulakshmi (wife of K. Veluchamy) purchased a house property from A. Balusamy and his spouse B. Vasantha vide registered sale deed dated 13.07.1994 (Ex.A.1). This house property is land admeasuring 1183 square feet or thereabouts together with superstructure thereon at plot No.23, Door No.45 B/1, Kannadasan Street, Muthukumarasamy Nagar, Somasundaram Colony, Ponmeni village, Madurai South Taluk, Madurai District. The description of this house property as contained in plaint is as follows : “DESCRIPTION OF THE PROPERTY Madurai District, Arasaradi Sub-District within Corporation limit, Madurai South Taluk, Ponmeni Village, Somasundaram Colony, Muthukumarasamy Nagar, Kannadasan Street, Northern side of R.S.No.43/1 B Plot No.23 and door No.45 B/1 the house property bounded by North : East West Road South : Lourdhusamy's House East : Plot No.22, belongs to Govindan West : Plot No.24, belongs to Moideen Pitchai within the boundaries East, Wests on both sides 26' South and North on both sides 45'6” the total 1183 sq.feet Borewell, letrine, doors, windows, electric connections and fittings.” The aforesaid house property shall hereinafter be referred to as 'suit property' for the sake of brevity, convenience and clarity. (b) This instant appeal under Section 96 of 'The Code of Civil Procedure, 1908' (hereinafter referred to as 'CPC' for brevity) arises out of a judgment and decree dated 09.12.2009 made in O.S. No. 98 of 2008 on the file of the 'I Additional District Judge's Court, Madurai' (hereinafter referred to as 'trial court' for the sake of convenience and clarity). The sole respondent before me, i.e., V. Muthulakshmi is the sole plaintiff before the trial court. Appellants 1 and 2 before me, i.e., A. Balasamy and B. Vasantha respectively are defendants 1 and 2 respectively before trial court. In this judgment, parties are referred to by their respective ranks in the trial court for the sake of convenience and clarity. (B) Chronicle : (a) Defendants who are spouses were owners of the suit property. As mentioned supra, plaintiff purchased the suit property from defendants under registered sale deed dated 13.07.1994 (Ex.A.1). In this judgment, parties are referred to by their respective ranks in the trial court for the sake of convenience and clarity. (B) Chronicle : (a) Defendants who are spouses were owners of the suit property. As mentioned supra, plaintiff purchased the suit property from defendants under registered sale deed dated 13.07.1994 (Ex.A.1). It is the case of the plaintiff that the total sale consideration is Rs.1,50,000/-, that at the time of execution of Ex.A.1, defendants handed over all anterior title deeds for the suit property to the plaintiff, that defendants requested the plaintiff to give one month time to them to vacate the suit property, that defendants requested the plaintiffs to permit them to stay in the suit property for a period of one months (upto the expiry of Tamil month 'Aadi') in order to enable them to search for a new house for their dwelling, that plaintiff believing the defendants permitted them to stay in the suit property for one month post sale. It is the further case of plaintiff that even after a lapse of one month, defendants did not vacate and hand over the suit property, though plaintiff and her husband approached defendants in this regard several times. (b) Therefore, plaintiff sent a notice through lawyer dated 19.01.1996 (Ex.A2), inter-alia calling upon defendants to vacate and hand over vacant possession of the suit property. Defendants sent a reply notice through lawyer dated 5.2.1996 (Ex.A.3). The crux of the reply is that the total sale consideration is Rs.5,00,000/-, plaintiff paid only Rs.1,50,000/-, plaintiff also agreed to pay Rs.3,50,000/- separately and agreed that defendants can continue to remain in the suit property till the sum of Rs.3,50,000/- is paid. (c) According to plaintiff, the total sale consideration is only Rs.1,50,000/- as contained in Ex.A.1 sale deed and according to plaintiff, Rs.5,00,000/- consideration is a new story. According to plaintiff, when she denied Rs.3,50,000/- and separate payment plea and when she persisted with her request to defendants to vacate the suit property, defendants threatened plaintiff with dire consequence resulting in plaintiff lodging a criminal complaint against defendants in the jurisdictional police station being F-1, Police Station in Madurai on 25.05.1996. (d) Plaintiff would further say that defendants irked by the police complaint filed a civil suit being O.S. No. 834 of 1996 on the file of Additional District Munsif Court, Madurai with a prayer for bare injunction qua possession. (d) Plaintiff would further say that defendants irked by the police complaint filed a civil suit being O.S. No. 834 of 1996 on the file of Additional District Munsif Court, Madurai with a prayer for bare injunction qua possession. It is not in dispute that this suit (which shall hereinafter be referred to as 'bare injunction suit' for the sake of convenience and clarity), after full contest, came to be dismissed vide judgment dated 27.09.2002 (Ex.A.7). It is also a matter of record that defendants carried the matter in appeal by way of A.S. No. 182 of 2002 on the file of II Additional Subordinate Judge's Court, Madurai. This first appeal also came to be dismissed vide judgment dated 07.12.2004 (Ex.A.8), confirming the dismissal of bare injunction suit. After dismissal of the first appeal in the bare injunction suit, it is also a matter of record that defendants carried the concurrent decrees against them in bare injunction suit to this court by way of second appeal being S.A. (MD) No. 312 of 2005 which also came to be dismissed by a learned Single Judge of this court on 26.04.2005 (decree is Ex.A.9). (e) Thereafter, plaintiff on 1.7.2005 (plaint dated 10.04.2005) filed a suit in O.S. No. 147 of 2005 on the file of the Sub Court, Madurai against defendants inter-alia for recovery of possession of suit property. After service of suit summons, defendants entered appearance and filed written statement in March, 2006. In this written statement, defendants took the plea that the suit has not been properly valued and that the Sub Court, Madurai would not have pecuniary jurisdiction to entertain the suit if properly valued. Thereafter, plaintiff filed a memo dated 08.11.2006. In this memo, plaintiff brought to the notice of the Sub Court that the suit was valued on the basis of the sale consideration of Rs.1,50,000/- in Ex.A.1, sale deed. However, as Ex.A.1 sale deed is of the year 1994, as the suit has been filed almost 10 years later in 2005, the value of the suit property may be more than Rs.5,00,000/- as on the date of institution of the suit, i.e., 01.07.2005. If the value of the suit is more than Rs.5,00,000/- on the date of institution of the suit, the sub court will not have pecuniary jurisdiction. If the value of the suit is more than Rs.5,00,000/- on the date of institution of the suit, the sub court will not have pecuniary jurisdiction. On this basis, plaintiff wanted return of plaint for presentation of the same in the District Court which has pecuniary jurisdiction to entertain suits which are of over Rs.5,00,000/- value. The Sub Court put the defendants on notice of the memo and called for objections, if any. Thereafter, in the presence of counsel for plaintiff and defendants (after hearing both sides), vide order dated 16.6.2008, Sub Court, Madurai returned the plaint to the plaintiff granting one month time to plaintiff to file the same in an appropriate court with requisite pecuniary jurisdiction. To be noted, this order of the Sub Court, Madurai made on 16.6.2008 has been given quietus and has admittedly attained finality. (f) Thereafter, the aforesaid plaint was presented in the trial court on 9.7.2008. Suit summons was issued and defendants entered appearance. Defendants raised the same plea that the sale consideration is Rs.5,00,000/- and Rs.3,50,000/- has to be paid separately. Besides this, defendants raised a technical plea that the suit in the trial court is barred by limitation. To be noted, besides recovery of possession, there is also a prayer for mesne profits in the suit in trial court. After full contest, the suit in trial court came to be decreed vide judgment and decree dated 09.12.2009 against which the instant first appeal under Section 96 CPC was filed on 10.02.2010. Plaintiff is the lone respondent. Plaintiff has entered appearance and the first appeal is now before this court for final disposal. 4. Learned Counsel Mr. R. Anand was before this court on behalf of defendants/appellants. Mr. V. Ramakrishnan, learned counsel was before this court on behalf of plaintiff (sole respondent). 5. Submissions : (a) Submissions made by learned counsel Mr. R. Anand on behalf of defendants/appellants in a nutshell are as follows : (i) Suit in trial court is time barred, i.e., by Article 65 of the Limitation Act, 1963. (ii) Plaintiff in trial court is not entitled to benefit of Section 14 of the Limitation Act, as time spent in the Sub Court lacks good faith and due diligence. R. Anand on behalf of defendants/appellants in a nutshell are as follows : (i) Suit in trial court is time barred, i.e., by Article 65 of the Limitation Act, 1963. (ii) Plaintiff in trial court is not entitled to benefit of Section 14 of the Limitation Act, as time spent in the Sub Court lacks good faith and due diligence. (iii) Trial Court ought to have concluded/returned a finding that sale consideration for the suit property in 1994 is Rs.5,00,000/- and that plaintiff is liable to pay Rs.3,50,000/- separately, until which defendants are entitled to be in possession. (b) Submissions made by Mr. V. Ramakrishnan, learned counsel for sole respondent (sole plaintiff) can broadly be set out in a nutshell as follows : (i) Suit is not barred by limitation vide Article 65 of the Limitation Act, 1963 as the possession of defendants is not adverse to that of plaintiff. In other words, it is his argument that there is no animus possidendi; (ii) Plea of defendants that the sale consideration for the suit property is Rs.5,00,000/- and that plaintiff is liable to pay Rs.3,50,000/- separately has already been negatived and nailed in the bare injunction suit itself, owing to which defendants cannot be heard to contend and raise the same issue again. In any event, this plea is not supported by even a shred of documentary evidence except ipsi dixit oral evidence of defendants which also has no corroboration. 6. Points for determination in this appeal (as they emerge from the rival contentions and the trajectory of the litigation thus far) are as follows: (a) Whether court below was correct in concluding that the sale consideration is only Rs.1,50,000/- (not Rs.5,00,000/- as contended by defendants) and granting reliefs of recovery of possession and mesne profits on that basis? (b) Whether the suit in the trial court is barred by limitation? (c) Whether the trial court was correct in decreeing the suit as prayer for? 7. Before we proceed to deal with the points for determination that have been formulated supra, it is to be noted that the issues framed in the trial court on the aforesaid rival pleadings are four in number and they are as follows: “1.Whether the plaintiff is entitled to recovery of possession of the property? 2. 7. Before we proceed to deal with the points for determination that have been formulated supra, it is to be noted that the issues framed in the trial court on the aforesaid rival pleadings are four in number and they are as follows: “1.Whether the plaintiff is entitled to recovery of possession of the property? 2. Whether the plaintiff is entitled to past mesne profits of Rs.21,000/- and future damages at the rate of Rs.600/- per month? 3. Whether the suit is barred by limitation? 4. To what other relief if any the plaintiff is entitled to?” 8. When parties went to trial on the aforesaid four issues, on the side of plaintiff, sole plaintiff examined herself as P.W.1 and her spouse K. Veluchamy was examined as P.W.2. As many as 9 documents, i.e., Exs.A.1 to A.9 were marked on the side of plaintiff. On the side of defendants, first defendant Balusamy examined himself as D.W.1 and no documents were exhibited on the side of defendants. 9. As already mentioned supra, sale deed dated 13.07.1994 under which plaintiff purchased the suit property was marked as Ex.A.1, pre suit notice (through lawyer) dated 19.1.1996 issued by plaintiff and reply notice (through lawyer) to the same issued by defendants dated 05.02.1996 were marked as Exs.A.2 and A.3 respectively. Another notice (through lawyer) sent by plaintiff to defendants being notice dated 27.12.1997 was marked as Ex.A.4 and reply to the same from defendants (through lawyer) dated 6.1.1998 was marked as Ex.A.5. House tax receipt for suit property was marked as Ex.A.6. Judgment of trial court dated 27.09.2002, judgment of the first appellate court dated 07.12.2004 and decreetal order of this court dated 26.04.2005 in the second appeal (all in the bare injunction suit) were marked as Exs.A.7, A.8 and A.9 respectively. 10. From the list of nine documents that were exhibited in trial court, it will be clear that there is no document in the trial court with regard to sale consideration being Rs.5,00,000/- or with regard to any arrangement/agreement between plaintiff and defendants for paying Rs.3,50,000/- separately. Therefore, the only document available in the trial court with regard to sale consideration is Ex.A.1 sale deed and it is not in dispute that the sale consideration as set out in Ex.A.1 sale deed is Rs.1,50,000/-. Therefore, evidence if any in the trial court with regard to sale consideration is only oral evidence. Therefore, the only document available in the trial court with regard to sale consideration is Ex.A.1 sale deed and it is not in dispute that the sale consideration as set out in Ex.A.1 sale deed is Rs.1,50,000/-. Therefore, evidence if any in the trial court with regard to sale consideration is only oral evidence. The oral evidence has been analysed and a conclusion has been drawn by trial court in this regard. The analysis of oral evidence and conclusion drawn by trial court are articulated in paragraph 6 of the judgment in trial court. The relevant portion reads as follows : “6. ..... It is seen that execution of sale deed is admitted by both parties. P.W.1 deposed as the sale price was only Rs.1,50,000/- and D.W.1 deposed as the sale price was Rs.5,00,000/- and only Rs.1,50,000/- paid, and the balance of Rs.3,50,000/- is remained to be paid. P.W.1 is the plaintiff and P.W.2 is the husband of the plaintiff. Both deposed the same thing as Ex.A.1, the sale deed was executed only for a sum of Rs.1,50,000/- and as per the payment mentioned in the sale deed Rs.1,15,000/- was paid directly and Rs.35,000/- was paid at the time of registration. The defendants wanted 1 month time to vacate the property. D.W.1 deposed as the sale consideration was Rs.5,00,000/- and only Rs.1,50,000/- was paid and a sum of Rs.3,50,000/- remain to be paid. It is seen that D.W.1 deposed against the terms of contract and disposition of the property I.e. Ex.A.1. As per Ex.A.1, the terms of the contract mentioned is only as Rs.1,50,000/- and D.W.1 cannot give any oral evidence against the terms of the contract u/s 91 and 92 of the Evidence Act. It is to be seen that it is for the defendants to prove that if there was a separate agreement apart from the terms of the contract in writing, it is for the defendant to prove the same. ......” 11. I have carefully examined and analysed the oral evidence by trial court and I have also perused the deposition which was placed before me as part of court file. 12. There is no reason to come to the conclusion that appreciation of evidence by trial court is perverse or there is any infirmity in the same. ......” 11. I have carefully examined and analysed the oral evidence by trial court and I have also perused the deposition which was placed before me as part of court file. 12. There is no reason to come to the conclusion that appreciation of evidence by trial court is perverse or there is any infirmity in the same. It is to be noted that it was not projected that there is perversity in appreciation of oral evidence by trial court. However, I have examined it independently and I find no infirmity or perversity. 13. As oral evidence alone (which is ipsi dixit of first defendant who examined himself and deposed as lone defendants' witness i.e., D.W.1) is available with regard to sale consideration, I have no difficulty in coming to the conclusion that there is no infirmity in the aforesaid finding of trial court and the answers given by trial court to issue Nos.1 & 2. In other words, I find no reason to dislodge the answers given by trial court to issues 1 & 2. 14. This takes us to the next point for determination which turns on limitation. As mentioned supra, it is the case of defendants that suit is barred by limitation in the light of Article 65 of the Limitation Act, 1963. It was argued before this court by defendants/appellants that limitation starts to run from 13.07.1994 (Ex.A.1). According to defendants/appellants, their possession of suit property from 13.7.1994, i.e., on and from execution of Ex.A.1 sale deed was adverse possession and therefore, the suit in trial court ought to have been filed within 12 years, i.e., on or before 12.7.2006. According to defendants/appellants, the suit was filed in trial court only on 09.07.2008 and therefore, it is barred by limitation. It is also the further case of defendants/appellants that the period spent by plaintiff in the Sub Court, Madurai being the period from 1.07.2005 to 08.07.2008 in pursuing O.S. No. 147 of 2005 does not deserve to be excluded for computing limitation as the period spent by plaintiff in the Sub Court, Madurai lacks both good faith and due diligence. It is also the legal plea of defendants/appellants that good faith and due diligence are two important determinants for a litigant to get the benefit of Section 14 of Limitation Act. 15. In support of this contention, Mr. It is also the legal plea of defendants/appellants that good faith and due diligence are two important determinants for a litigant to get the benefit of Section 14 of Limitation Act. 15. In support of this contention, Mr. R. Anand, learned counsel pressed into service a decision of Hon'ble Supreme Court in Deena Vs. Bharat Singh reported in (2002) 6 SCC 336 and drew my attention to paragraph 13 of the said judgment which reads as follows :- “13. From the provisions it is clear that it is in the nature of a proviso to Order 23 Rule 2. The non obstante clause provides that notwithstanding anything contained in Rule 2 of Order 23 of the Code of Civil Procedure the provisions of sub-section (1) of Section 14 shall apply in relation to a fresh suit instituted on permission granted by the court under Rule 1 of Order 23. For applicability of the provision in sub-section (3) of Section 14 certain conditions are to be satisfied. Before Section 14 can be pressed into service the conditions to be satisfied are: (1) both the prior and subsequent proceedings are civil proceedings prosecuted by the same party; (2) the prior proceeding had been prosecuted with due diligence and good faith; (3) the failure of the prior proceeding was due to defect of jurisdiction or other cause of like nature; (4) the earlier proceeding and the later proceeding must relate to the same matter in issue; and (5) both the proceedings are in a court.” 16. A perusal of the facts in Deena case reveals that it is a case where plaintiffs therein filed a suit seeking declaration that they became owners of suit property and assailed the Collector's order in this regard. The suit was decreed by trial court and defendant carried it in appeal. During the pendency of appeal, plaintiffs withdrew the suit with permission to file a fresh suit. This was granted by exercise of powers under Order 23 Rule 2 CPC. Thereafter, plaintiffs filed a suit seeking declaration that they are owners of suit property and the order of Collector in this regard was void, inoperative and therefore, it did not affect their rights. It is in this background in Deena case, the Hon'ble Supreme Court placing reliance on Vijay Kumar Rampal Vs. Thereafter, plaintiffs filed a suit seeking declaration that they are owners of suit property and the order of Collector in this regard was void, inoperative and therefore, it did not affect their rights. It is in this background in Deena case, the Hon'ble Supreme Court placing reliance on Vijay Kumar Rampal Vs. Diwan Devi reported in AIR 1985 SC 1669 , held that plaintiff who fails to pay requisite court fee cannot claim benefit of Section 14 of Limitation Act. Hon'ble Supreme court in Deena case has clearly held that finding as to good faith or absence of it is a finding of fact. It is also clear that the facts in Deena case are clearly distinguishable as would be evident from the extract of narration of facts in Deena case and therefore, this law does not help the appellants/defendants. Further more, Deena case relied on Vijay Kumar Rampal case, wherein there was failure on the part of plaintiffs to pay the requisite court fee which was found deficient. This aspect of the matter was lucidly articulated by Supreme Court in paragraph 14 of Deena case. To be noted, in paragraph 14 of Deena case, relevant portion of Vijay Kumar Rampal case has also been extracted. I deem it appropriate to extract paragraph 14 in Deena case, which is as follows:- “14. The main factor which would influence the court in extending the benefit of Section 14 to a litigant is whether the prior proceeding had been prosecuted with due diligence and good faith. The party prosecuting the suit in good faith in the court having no jurisdiction is entitled to exclusion of that period. The expression “good faith” as used in Section 14 means “exercise of due care and attention”. In the context of Section 14 the expression “good faith” qualifies prosecuting the proceeding in the court which ultimately is found to have no jurisdiction. The finding as to good faith or the absence of it is a finding of fact. This Court in the case of Vijay Kumar Rampal v. Diwan Devi [ AIR 1985 SC 1669 ] observed: (AIR p. 1670, para 3) “The expression good faith qualifies prosecuting the proceeding in the court which ultimately is found to have no jurisdiction. The finding as to good faith or the absence of it is a finding of fact. This Court in the case of Vijay Kumar Rampal v. Diwan Devi [ AIR 1985 SC 1669 ] observed: (AIR p. 1670, para 3) “The expression good faith qualifies prosecuting the proceeding in the court which ultimately is found to have no jurisdiction. Failure to pay the requisite court fee found deficient on a contention being raised or the error of judgment in valuing a suit filed before a court which was ultimately found to have no jurisdiction has absolutely nothing to do with the question of good faith in prosecuting the suit as provided in Section 14 of the Limitation Act.”” 17. Therefore, as Deena case is clearly distinguishable on facts, the same does not help the appellants/defendants in the instant case. More over, as alluded to supra, in Deena's case itself, Hon'ble Supreme Court has held that finding as to good faith or absence of it is a finding of fact. Two more aspects to be borne in mind in this regard. The order dated 16.6.2008 made by Sub Court permitting the plaintiff to present the suit in appropriate court having pecuniary jurisdiction within one month was not assailed by defendants. Defendants gave legal quietus to the same. 18. Another aspect to be borne in mind is, this is not a case where there was any failure on the part of plaintiff to pay the court fee, which was found to be deficient. This was a case where the suit was filed based on the value of the suit property as contained in Ex.A.1, but the value had increased as the suit was filed 10 years post Ex.A.1 and on being pointed out, the plaintiff readily agreed to value the suit property as on the date of institution of the suit, but the Sub Court did not have pecuniary jurisdiction of the same as it was over Rs.5,00,000/-. Under such circumstances, with the leave of the Sub Court, plaintiff paid the appropriate court fee in the trial court as per the value of the suit property as on the date of inspection of the suit. 19. Be that as it may, it was pointed out by Mr. Under such circumstances, with the leave of the Sub Court, plaintiff paid the appropriate court fee in the trial court as per the value of the suit property as on the date of inspection of the suit. 19. Be that as it may, it was pointed out by Mr. R. Anand, learned counsel for appellants/defendants that even when the plaintiff filed the suit in Sub Court on 01.07.2005, they knew that the suit property was valued at Rs.2,83,000/- by the Advocate Commissioner in the bare injunction suit. Learned counsel also referred to the memo dated 08.11.2006 filed by plaintiff in Sub Court to emphasis that plaintiff knew for sure that the suit property had been valued at over Rs.2,80,000/- by the Advocate Commissioner in the bare injunction suit. This also does not help the appellants/defendants as even if the suit property had been valued at Rs.2,80,000/-, it would still have been filed only in Sub Court as the pecuniary jurisdiction of the Sub Court was upto Rs.5,00,000/-. 20. With regard to good faith qua Section 14 of Limitation Act, Mr. V. Ramakrishnan, learned counsel for sole respondent/plaintiff referred to Vijay Kumar Rampal case which in turn has been referred to in Deena case by Supreme Court. Mr. Ramakrishnan, pressed into service Vijay Kumar Rampal case reported in AIR 1985 SC 1669 and referred to paragraph 3 of the same. Relying on this, Mr. Ramakrishnan, submitted that mere defective valuation or improper computation of court fees does not disclose lack of good faith on the part of plaintiff. Paragraph 3 of Vijay Kumar Rampal case reads as follows : “3. Mr. Sharma learned Counsel for the respondents urged that want of due care and attention coupled with negligence in not properly valuing suits for pecuniary jurisdiction and not paying court-fees as computed under Sec.7(v)(b) of the Court-fees Act would clearly show lack of good faith and if that be so, learned Judge of the High Court was right in holding that the suits are barred by limitation. We are at a loss to understand and appreciate the contention of Shri Sharma as well as the approach of the learned Judge. Section 14 of the Limitation Act provides for exclusion of time of proceeding bona fide in court without jurisdiction. We are at a loss to understand and appreciate the contention of Shri Sharma as well as the approach of the learned Judge. Section 14 of the Limitation Act provides for exclusion of time of proceeding bona fide in court without jurisdiction. In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding against the defendant shall be excluded where the proceeding relates to the same matter in issue and is prosecuted in a good faith in a court which from a defect of jurisdiction is unable to entertain it. The expression good faith qualifies prosecuting the proceeding in the Court which ultimately is found to have no jurisdiction. Failure to pay the requisite court- fee found deficient on a contention being raised or the error of judgment in valuing a suit filed before a Court which was ultimately found to have no jurisdiction has absolutely nothing to do with the question of good faith in prosecuting the suit as provided in Section 14 of the Limitation Act. The High Court in our opinion was in error in holding that defective valuation and improper computation of court-fees discloses lack of good faith on the part of the plaintiff.” (underlining made by me to supply emphasis and highlight) 21. I have no difficulty in accepting the submission of Mr. V. Ramakrishnan. As alluded to supra, this is not a case where there was failure on the part of plaintiff to pay court fee that was found to be deficient. Therefore, the plaintiff is entitled to benefit of Section 14 of Limitation Act. 22. This takes us to the next aspect of limitation plea. This aspect is whether the possession of suit property by defendants on and from 13.7.1994 (Ex.A.1) became adverse to that of plaintiff. 23. While learned counsel for appellants/defendants contended that it is adverse, learned counsel for respondent/plaintiff contended that there is no animus possidendi and pressed into service Annakili S.A. Vedanayagam case reported in AIR 2008 SC 346 for the principle that animus possidendi is a well known requisite ingredient of adverse possession. Learned counsel referred to paragraphs 21 and 22 of Annakili case which read as follows : “21. We cannot accept the submission of Mr. Learned counsel referred to paragraphs 21 and 22 of Annakili case which read as follows : “21. We cannot accept the submission of Mr. Dayan Krishnan that it was obligatory on the part of the respondents to file a suit for declaration of their title also. As the title of the respondents in the suit property had already been adjudicated upon, a suit for recovery of possession on the basis of the said title attracted Article 65 of the Schedule appended to the Limitation Act, 1963. In terms of the said provision, it was for the appellant to show that she and her predecessor had been in possession of the suit property on the basis of the hostile title and as a result whereof the title of the plaintiff-respondent extinguished. 22. Claim by adverse possession has two elements: (1) the possession of the defendant should become adverse to the plaintiff; and (2) the defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi as is well known is a requisite ingredient of adverse possession. It is now a well-settled principle of law that mere possession of the land would not ripen into possessory title for the said purpose. Possessor must have animus possidendi and hold the land adverse to the title of the true owner. For the said purpose, not only animus possidendi must be shown to exist, but the same must be shown to exist at the commencement of the possession. He must continue in the said capacity for the period prescribed under the Limitation Act. Mere long possession, it is trite, for a period of more than 12 years without anything more does not ripen into a title.” 24. In the light of the well settled principle qua animus possidendi which has been lucidly stated by Hon'ble Supreme Court in Annakili case in the paragraphs extracted supra, I have no difficulty in coming to the conclusion that in the facts and circumstances of this case, possession of suit property by defendants on and from 13.7.1994 (date of execution of Ex.A.1) does not become adverse to that of plaintiff and therefore, the plea of limitation on the basis of Article 65 of the Limitation Act deserves to be rejected. 25. Therefore, I have no difficulty in answering both points of determination against appellants/defendants and in favour of respondent/plaintiff. 25. Therefore, I have no difficulty in answering both points of determination against appellants/defendants and in favour of respondent/plaintiff. Be that as it may, as would be evident from the narration supra, issue No.3 framed by trial court touches upon limitation. Issue No.3 has been answered by trial court in one paragraph consisting of two sentences. This is in paragraph 7 of trial court judgment and the same reads as follows :- “7. Issue No.3:- The plaintiff purchased the property on 13.7.1994 and filed a suit for recovery of property on 1.7.2005 and within 12 years. Hence, this court is of the opinion that the suit is not barred by limitation, this issue is answered accordingly.” 26. The aforesaid answer to issue No.3 in one paragraph consisting of two sentences is cryptic. However, the plea of limitation has to be necessarily examined by a Court even if the same has not been set up as defence. It is mandated in sub-section (1) of section 3 of Limitation Act, which reads as follows : “3. Bar of limitation.- (1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.” 27. Therefore, I have examined the plea of limitation. More over, this being a first appeal under Section 96 of CPC and this court being the last court of facts, all aspects of the matter qua plea of limitation have been sifted and analysed. 28. Owing to all that have been set out supra, I find no reason whatsoever to interfere with, much less dislodge the judgment and decree of trial court. This appeal fails and the same is dismissed, confirming the judgment and decree of court below. Considering the nature of the matter and the trajectory of the litigation as well as the length of the litigation, this appeal is dismissed with costs throughout.