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2020 DIGILAW 812 (BOM)

Shakuntalabai v. Ramesh

2020-07-20

ANIL SATYAVIJAY KILOR

body2020
JUDGMENT : Anil Satyavijay Kilor, J. 1. The decree dismissing the suit for possession of the house property, has been reversed by the First Appellate Court, vide its judgment and decree, dated 10.09.2003 passed in Regular Civil Appeal No. 145 of 2000, the same is under Challenge in the present appeal. 2. The facts leading to the present appeal are that the plaintiff/Yashwant filed a suit for possession of the house property. It is the case of the plaintiff that the plaintiff and Nathuji, father of defendant Nos. 1 to 3 and husband of defendant No. 4, had jointly purchased a suit house on 11.07.1951 and the same was partitioned on 31.08.1954, thereby the plaintiff became absolute owner of the house on the southern side and Nathuji became the owner of northern side. 3. It is the further case of the plaintiff that Nathuji entered into an agreement to sale with one Smt. Chadrabhagabai Kurhekar and on failure to comply the said agreement, she filed a suit for refund of earnest amount along with damages. 4. The said suit was decreed in favour of the Chandrabhagabai on 19.12.1958 and in the said Darkhast proceedings, the suit house was auctioned and purchased by the plaintiff on 24.07.1960. 5. Consequently, the sale certificate was issued in favour of the plaintiff on 08.12.1960 and thereupon the possession was handed over to the plaintiff by issuing possession receipt. 6. The plaintiff further pleaded in the suit that on 04.05.1992, Nathuji broke open the lock of the suit house and took forcible possession of the suit house and since his death on 11.09.1995, the defendants/appellants have been in possession of the suit house. 7. Thus, the plaintiff issued registered notice on 29.04.1998 to the defendants/appellants to hand over the possession of the suit house and on failure, the suit was filed for possession of the suit house and inquiry into mesne profit under Order XX, Rule 12 of Civil Procedure Code. 8. The defendants contested the suit by filing written statement. The defendants denied the case of the plaintiff that, on 04.05.1992, Nathuji took forcible possession of the suit house and further came up with a plea that Nathuji never parted with the possession of the suit house. 9. 8. The defendants contested the suit by filing written statement. The defendants denied the case of the plaintiff that, on 04.05.1992, Nathuji took forcible possession of the suit house and further came up with a plea that Nathuji never parted with the possession of the suit house. 9. The learned trial Court dismissed the suit vide its Judgment and decree dated 29.04.2000, by holding that the plaintiff failed to prove that the deceased Nathuji took forcible possession of the suit house on 04.05.1992. The learned trial Court further held that the deceased Nathuji enjoyed his portion of the suit house as a sole owner till his death. 10. The plaintiff through an appeal, questioned the correctness and legality of the judgment and decree dated 29.04.2000 passed by the 4th Joint Civil Judge Junior Division, Amravati, in Regular Civil Suit No. 307 of 1998. 11. The learned First Appellant Court reversed the decree of dismissal of the suit for possession of the suit house and thereby decreed the suit for possession, directing the defendants to deliver the vacant possession of the suit property to the plaintiff. The same is assailed in the present appeal. 12. This Court on 02.03.2005, while admitting the present second appeal, framed the following substantial question of law: "whether the suit instituted by the respondents/plaintiffs would be governed by Article 64 of the Indian Limitation Act or under Article 65 as held by the Appellant Court?" 13. Heard Shri Bhushan Mohta, learned counsel for the appellants/defendants and Shri V.S. Giramkar, learned counsel for the respondents/plaintiff. 14. Shri Mohta, learned counsel for the appellants, submits that the learned First Appellate Court has committed error in holding that mere possession of Nathuji cannot bar plaintiff for seeking possession unless it has been proved by the defendants that possession of Nathuji had become adverse on any particular day or they have become owner by adverse possession. 15. Shri Mohta, learned counsel for the appellants, argues that though the plaintiff acquired ownership in the year 1960 on the strength of the sale certificate, he did not take any steps to secure his possession. Thus, his claim for possession of the suit house, is barred by the provision of the Limitation Act, 1963. 16. Shri Mohta, learned counsel for the appellants has placed reliance on the following judgments: I) Ramiah Vs. Thus, his claim for possession of the suit house, is barred by the provision of the Limitation Act, 1963. 16. Shri Mohta, learned counsel for the appellants has placed reliance on the following judgments: I) Ramiah Vs. N. Narayana Reddy (Dead) By Lrs., : 2004 (7) SCC 541 II) Abasaheb Bali Gharge and Another Vs. Balaji Ramhari Gharge, reported in: 1995 (1) BOM. C.R. 542. III) Jawala Prasad and others Vs. Jiwan Ram and others reported in AIR (37) 1950 PEPSU 22. IV) Shyam Sunder Prasad and others Vs. Raj Pal Singh and another, reported in: 1995 (1) SCC 311 . 17. Per contra, Shri V. S. Giramkar, learned counsel for the respondents/plaintiffs, supports the impugned judgment and decree dated 10.09.2003, passed by the First Appellate Court and prays for dismissal of the present appeal. 18. To consider the rival contention of the parties, I have gone through the record and proceedings as well as judgments and decrees of both the Courts-below. 19. The Hon'ble the Supreme Court of India in the case of Shyam Sunder Prasad and others Vs. Raj Pal Singh and another, reported : 1995 (1) SCC 311 , has held in paragraph No. 3 which reads thus: "3. Article 64 of the Limitation Act, 1963 (for short, "the new Act") provides 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 of 12 years begins to run from the date of dispossession. Article 65 provides that "for possession of immovable property or any interest therein based on title, the period of limitation of 12 years begins to run when the possession of the defendant becomes adverse to the plaintiff'. Under the old Limitation Act, all suits for possession whether based on title or on the ground of previous possession were governed by Article 142 wherein the plaintiff while in possession was dispossessed or discontinued in possession. Where the case was not one of dispossession of the plaintiff or discontinuance of possession by him, Article 142 did not apply. Suits based on title alone and not on possession or discontinuance of possession were governed by Article 144 unless they were specifically provided for by some other articles. Where the case was not one of dispossession of the plaintiff or discontinuance of possession by him, Article 142 did not apply. Suits based on title alone and not on possession or discontinuance of possession were governed by Article 144 unless they were specifically provided for by some other articles. Therefore, for application of Article 142, the suit is not only on the basis of title but also for possession." 20. The Hon'ble the Supreme Court of India in the case of Ramiah Vs. N. Narayana Reddy (Dead) By Lrs. reported in : 2004 (7) SCC 541 has held in paragraph No. 9, reads thus: "9. We do not find any merit in the aforestated arguments. Article 64 of the Limitation Act, 1963 (Article 142 of the Limitation Act, 1908) is restricted to suits for possession on dispossession or discontinuance of possession. In order to bring a suit within the purview of that article, it must be shown that the suit is in terms as well as in substance based on the allegation of the plaintiff having been in possession and having subsequently lost the possession either by dispossession or by discontinuance. Article 65 of the Limitation Act, 1963 (Article 144 of the Limitation Act, 1908) on the other hand is a residuary article applying to suits for possession not otherwise provided for. Suits based on plaintiffs' title in which there is no allegation of prior possession and subsequent dispossession alone can fall within article 65. The question whether the article of limitation applicable to a particular suit is article 64 or article 65 has to be decided by reference to pleadings." 21. From the above referred judgments, it is clear that Article 64 of the Limitation Act 1963, is restricted to the suit for possession of immovable property on dispossession and discontinuation of possession and the period of limitation of 12 years begins to run from the date of possession. Whereas Article 65 of the Limitation Act, 1963 is residuary Article applying to suits for possession of immovable property or any interest therein based on title and the period of limitation of 12 years begins to run when the possession of the defendant became adverse to the plaintiff. 22. The Hon'ble the Supreme Court of India in the case of Balakrishnan Vs. Malaiyandi Konar, reported in : 2006(3)SCC, 49, has held in paragraph Nos. 22. The Hon'ble the Supreme Court of India in the case of Balakrishnan Vs. Malaiyandi Konar, reported in : 2006(3)SCC, 49, has held in paragraph Nos. 12 and 13, which reads thus: "12. The residual question is the effect of Article 134 of the Limitation Act, as appearing in the Schedule to the Limitation Act relatable to, Sections 2(j) and 3 providing for periods of limitation. Article 134 reads as follows: Description of Suit Period of Limitation Time from which period begins to run 134. For delivery of possession by a purchase of immovable property at a sale in execution of a decree. One year When the sale becomes absolute 13. The limitation for the purpose of Article 134 starts from the date of confirmation of sale. (See Ganpat Singh (dead) by Lrs. v. Kailash Shankar. In Pattam Khader Khan v. Pattem Sardar Khan and Anr. this court held that it is not from the date when sale certificate is issued that the limitation starts running. The sale becomes absolute on confirmation under Order XXI Rule 92 of the Code effectively passing title. It cannot be said to attain finality only when sale certificate is issued under Order XXI Rule 94. There can be variety of factors conceivable for which delay can be caused in issuing a sale certificate. The period of one year limitation now prescribed under Article 134 of the Limitation Act in substitution of a three year period prescribed under Article 180 of the Indian Limitation Act, 1908 is reflective of the legislative policy of finalizing proceedings in execution as quickly as possible by providing a quick forum to the auction purchaser to ask for the delivery of possession of the property purchased within that period from the date of the sale becoming absolute rather than from the date of issuance of the sale certificate. On his failure to avail such a quick remedy the law relegates him to the remedy of a regular suit for possession based on title, subject again to limitation." 23. The Division Bench of this Court in the case of Ghanshyamdas Vallabhadas Gujarathi Vs. M/s. Brijraman Rasiklal, reported in : 1984(8) Mh.L.R. 665, has observed in paragraph No. 6, which reads thus: "6. The Division Bench of this Court in the case of Ghanshyamdas Vallabhadas Gujarathi Vs. M/s. Brijraman Rasiklal, reported in : 1984(8) Mh.L.R. 665, has observed in paragraph No. 6, which reads thus: "6. It may be mentioned that an auction purchaser can apply for delivery of possession, and that application is governed by Article 134 of the First Schedule to the Limitation Act of 1963, which provides that the application has to be made within one year from the day the sale becomes absolute. The limitation for suit on the basis of title is provided in Article 65 of the First Schedule to the Limitation Act of 1963 and the limitation starts running from the time the possession of the defendant becomes adverse to the plaintiff. It is pertinent to note that in the Indian Limitation Act, 1908, Article 138 of the First Schedule provided limitation of 12 years for a suit by a purchaser at a sale in execution of a decree, when the judgment-debtor was in possession at the date of the sale and the period of limitation began from the date the sale became absolute. In the Limitation Act of 1963 the corresponding provisions are contained in Article 65 ibid and there is marked change in providing the commencement of the period of limitation. After the Limitation Act of 1963 came into force, the possession of an immovable property on the basis of title could be sought by filing a suit within 12 years from the day the possession of the defendant become adverse to the plaintiff. Thus there are two remedies available to the auction purchase. He can apply in execution for delivery of possession within a period of one year from the date the sale becomes absolute, and he can also institute a suit for recovery of possession within 12 years from the date the possession of the defendant becomes adverse to him." 24. This Court in the case of Dhudku Ganpat Mahajan Vs. Prabhakar Madhavrao Deshpande and others, reported in : 2013 (1) Mh.L.J. 809 , has held in Para Nos. 22, 23 and 24, which reads thus: "22. The Apex Court in a case of Amarjit Singh Kalra S.(dead) by L.Rs. & Ors. Vs. Pramod Gupta (dead) by L.Rs. & Ors. This Court in the case of Dhudku Ganpat Mahajan Vs. Prabhakar Madhavrao Deshpande and others, reported in : 2013 (1) Mh.L.J. 809 , has held in Para Nos. 22, 23 and 24, which reads thus: "22. The Apex Court in a case of Amarjit Singh Kalra S.(dead) by L.Rs. & Ors. Vs. Pramod Gupta (dead) by L.Rs. & Ors. reported in : AIR 2003 SC 2588 has observed that, laws of procedure are meant to regulate effectively, assist, aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice. 23. Moreover, after the sale certificate is issued the Court has either to proceed under Order 21 Rule 95 or U/O 21 Rule 96 of the C.P.C. Once the Court has exercised its jurisdiction U/O 21 Rule 96 of the C.P.C. by delivering the symbolical possession, the execution could not have proceeded further and the execution proceedings has to come to an end. In that case, the plaintiffs/auction purchasers will have a right to file a suit under its ordinary civil rights in the Civil Court. The plea of limitation in such a case would not be available to the defendants, who was a judgment debtor. Within the prescribed period of limitation the application was filed by the auction purchaser in the execution proceedings for delivery of possession. The Court in view of the facts and circumstances existing then, could not have handed over the actual physical possession, but handed over the symbolical possession. Nonetheless, the possession stood delivered though symbolically. Thereafter, the auction purchasers got an independent right to file a suit for possession on the basis of title, in such a case the suit would be governed by Article 65 of the Limitation Act and provisions of O/21 Rule 95 and/or Sec. 47 of the C.P.C. as it stood then would not be applicable. In fact, resort to the said provisions would be without jurisdiction. In view of that, the suit was perfectly maintainable. 24. As far as the aspect of limitation is concerned, the question of adverse possession is mixed question of law and fact. In fact, resort to the said provisions would be without jurisdiction. In view of that, the suit was perfectly maintainable. 24. As far as the aspect of limitation is concerned, the question of adverse possession is mixed question of law and fact. The defendants nowhere pleaded about perfecting their title by adverse possession, nor have pleaded any dates since when their possession became hostile. In absence of any pleadings about adverse possession, the said question could not have been considered by the lower Appellate Court for the first time in appeal or by this Court in the second appeal. Sec. 3 of the Limitation Act would be applicable in case the question is a pure question of law on the basis of the admitted facts. In the present case, the suit was based on title. The symbolical possession has been delivered to the plaintiffs in the year 1956. The same would arrest the period of limitation as is envisaged to file an application U/O 21 Rule 95 of the C.P.C. In view of that, no question of limitation would arise, nor it would amount to extinguishment of right within the meaning of Sec. 28 of the Limitation Act 1908." 25. In the present matter, it is undisputed that the sale certificate was issued in favour of the plaintiff on 08.12.1960 and the possession was handed over by issuing possession receipt in the execution proceedings under Order XXI, Rule 95 of Code of Civil Procedure. The defendant-Shakuntala Nathuji Harne in her cross-examination, has categorically stated that Yashwant was residing in the suit house for 20 years. In view of the said statement, if the case of the plaintiff is considered about dispossession, the plaintiff was dispossessed on 04.05.1992 and the suit was filed for possession on 14.07.1998. Therefore, according to me, even if the suit is considered to be based on dispossession, same has been filed within 12 years from the date of dispossession. 26. The learned trial Court while disbelieving the plaintiff's case of dispossession, has not considered the admission of the defendant-Shakuntalabai that Yashwant was in possession of the suit house for 20 years. Thus, the learned trial Court did not consider the vital admission of the defendant-Shakuntalabai given in her cross-examination, while dealing with the issue of dispossession. 27. 26. The learned trial Court while disbelieving the plaintiff's case of dispossession, has not considered the admission of the defendant-Shakuntalabai that Yashwant was in possession of the suit house for 20 years. Thus, the learned trial Court did not consider the vital admission of the defendant-Shakuntalabai given in her cross-examination, while dealing with the issue of dispossession. 27. As stated above, the plaintiff became absolute owner of the suit property on 08.12.1960 on issuance of sale certificate and the possession receipt was issued in the execution proceedings under Order XXI, Rule 95 of the Code of Civil Procedure, in favour of the plaintiff. In the said backdrop, if the case of the defendants that Nathuji never parted with the possession of the suit house after the sale certificate and the possession receipt was issued to the plaintiff, the suit needs to be treated as a suit based on title and in that event, limitation of 12 years will begin to run from the date of possession of the defendants would become adverse under Article 65 of the Limitation Act. 28. Admittedly, the defendants nowhere pleaded about perfecting their title by adverse possession nor have pleaded any dates of adverse possession. 29. In the circumstances referred above, the symbolical possession delivered to the plaintiff in the year 1960, would arrest the period of limitation as envisaged to file the application under Order XXI, Rule 95 of Code of Civil Procedure and thus, no question of limitation to file suit for possession, would arise unless the possession of the defendants became adverse to the plaintiff. 30. The learned lower Appellate Court while reversing the judgment and decree of the trial Court, has observed thus: "21. As to point No. 2:- The learned Judge held that claim of the plaintiff is barred by limitation because the plaintiff did not file any application for getting the possession on the strength sale certificate within 12 years. Infact, approach of the learned judge is basically wrong. As to point No. 2:- The learned Judge held that claim of the plaintiff is barred by limitation because the plaintiff did not file any application for getting the possession on the strength sale certificate within 12 years. Infact, approach of the learned judge is basically wrong. As per the provisions of Article 134 of the Limitation Act auction purchaser can file the application U/O 21 rule 95 of the C.P.C. for getting possession within 1 year but this was not only remedy and even if such application is not filed or no possession came to be had by resorting to this provisions, the remedy of the auction purchaser to claim possession can not be said to be barred and auction purchaser has option even to file suit which is governed by the provisions of article 65 of the Limitation Act. The remedy under order 21 rule 95 is summary remedy and the remedy under article 65 of the Limitation Act is the substantive remedy and omission on the part of the auction purchaser to take possession within one year of the date, when the sale became absolute does not extinguishes title as has been held in the case reported in : AIR 1955 Cal 400 (Province of Bengal V. Probeshchandra). So whatever that has been laid down under article 134 of the Limitation Act, is that auction purchaser should file Application U/O. 21 rule 95 C.P.C., within one year, but if he does not take possession or does not get either, then his title does not stand extinguished. It has been held in the case reported in : 1984 Mah. L.R. 685 (Ghanshyamdas V. Brijraman) that both remedies i.e. one article 134 and another article 65 are open to the auction purchaser for getting possession. Plaintiff has lead evidence by producing possession receipt Ex. 39 to show that he has acquired possession. Even if we assume for the sake of argument that he did not get possession, even then his remedy to secure possession U/A 65 of the Limitation Act cannot be lost. According to the defendants, Natthuji has never lost possession and was in possession till his death. 39 to show that he has acquired possession. Even if we assume for the sake of argument that he did not get possession, even then his remedy to secure possession U/A 65 of the Limitation Act cannot be lost. According to the defendants, Natthuji has never lost possession and was in possession till his death. Even if we discard the story of the plaintiff of forcible possession, mere possession of Natthuji may be continuous can not debar plaintiff from seeking possession unless it has been proved by defendants that possession of the Natthuji had become adverse on any particular day or they have became owner by adverse possession. So unless adverse possession is proved, claim of the title holder under article 65 of the Limitation Act can not be defeated. In short right of owner to seek possession on the strength of title can only defeated by proving acquisition of ownership by adverse possession. If we go through the written statement filed by the present defendants, then there is not even a whisper that possession of Natthuji or present defendants had become owner by adverse possession. The hostile intention to claim right over property is conspicuously absent in the present case so as to defeat claim of the plaintiff, being barred by limitation. Hence, I hold that the claim of the plaintiff is within limitation, in view of the provisions of Article 65 of the Limitation Act. Hence, I answer point in the affirmative." 31. In view of discussion made herein above and the findings recorded by the First Appellate Court as regards to the point of limitation, is just and proper and sustainable in the eyes of Law and needs no interference. 32. The judgment cited by Shri Mohta, learned counsel for the appellant, namely, Abasaheb Bali Gharge and and another Vs. Balaji Ramhari Gharge, reported in : 1995 (1) Bom. C.R. 542 and Jawala Prasad and others Vs. Jiwan Ram and others, reported in AIR (37) 1950 PEPSU 22, are of no help to the appellants. 33. In the said backdrop, I have no hesitation to hold that no substantial question of law is involved in the present appeal, hence, the same is liable to be dismissed. 34. Accordingly the appeal is dismissed. No order as to costs.