Orissa High Court
Jagamohan Garnaik And Ors. vs Sankar Samal And Ors. on 20 April, 1989
Equivalent citations: AIR1990ORI124, AIR 1990 ORISSA 124, (1988) 22 REPORTS 333, 1989 (1) ORISSALR 610, (1989) 68 CUTLT 123
Author: G.B. Patnaik
Bench: G.B. Patnaik
JUDGMENT G.B. Patnaik, J.
1. This second appeal was referred by our learned brother Hon'ble L. Rath, J., to a larger Bench as he did not agree with the decision of our learned brother Hon'ble S. C. Mohpatra, J. in Second Appeal No. 312 of 1980 decided on 8-l-1988 (reported in 1988) (1) Orissa LR 176) on the question whether in a suit filed by the plaintiff based on title for declaration on title and possession on the admitted position that he has been dispossessed, it would be necessary for the plaintiff to prove that the dispossession in question is within twelve years from the date of institution of suit. The learned counsel appearing for the appellants as well as for the respondents agree that only the legal question may be answered by the Division Bench and the matter may be referred back to the learned single Judge for disposal of the second appeal since the second appeal has been heard by our learned brother Hon'ble L. Rath, J., in part. In view of this instead of disposing of the second appeal, we propose to answer the question formulated earlier.
2. It is not necessary for us to state the facts and the findings of the courts below in detail which would appear from the order of reference made by our learned brother Hon'ble L. Rath, J. The suit is one for declaration of title and confirmation of possession or in the alternative for recovery of possession. The averments in the plaint indicate that the plaintiff was dispossessed prior to the filing of the suit. The defence is a denial of plaintiffs' title as also possession as well as the defendants have perfected their title by adverse possession. Before our learned brother Hon'ble L. Rath, J. the decision of Hon'ble S. C. Mohapatra, J. in Second Appeal No. 312 of 1980 : (reported in 1988 (1) Orissa LR 176) was cited for the purpose that though plaintiffs' title is established yet since plaintiffs' dispossession is admitted, plaintiffs have to prove that the said dispossession was within twelve years from the date of institution of the suit. The learned Judge (Hon'ble S. C. Mohapatra J.) came to the aforesaid conclusion relying upon Sections 3 and 27 of the Limitation Act. We have carefully examined the judgment of Hon'ble S. C. Mohapatra, J. in Second Appeal No. 312 of 1980. The learned Judge in para 4 of his judgment has stated that the second appeal has been admitted on the following substantial question of law :-
"When possession of the defendant is admitted by plaintiff since 1970 but the plaintiff failed to prove his title and possession, prior to disposessison, whether the plaintiff can get decree for title and possession on the doctrine that possession follows title?"
Having said so, the learned Judge after referring to Sections 3 and 27 of the Limitation Act came to the conclusion :--
".....Where, however, the defendant is admittedly, in possession adverse to the plaintiff's interest, plaintiff is to prove that such possession was within 12 years of the institution of the suit....."
This conclusion of Hon'ble S. C. Mohapatra, J. in Second Appeal No. 312 of 1980 has not been found favour with by our learned brother Hon'ble L. Rath, J. in Second Appeal No. 329 of 1981 and, therefore, the matter was referred to a Division Bench.
3. Where a suit for possession of immovable property is filed basing on title, such a suit is governed by Article 65 of the Limitation Act. Where a suit for possession of immovable property is filed not on basis of title but on the basis of previous possession, such a suit is governed by Article 64 of the Limitation Act. Under the old Limitation Act, the two relevant articles in this regard were Articles 142 and 144. Article 64 of the new Act replaces Article 142 of the old Act but is restricted to suits based on possessory title so that the owner of a property does not lose his right to the property unless the defendant in possession is able to establish his perfection of title by way of adverse possession and that is what has been provided for in Art. 65. The two articles, namely Articles 64 and 65 of the Limitation Act have brought in a material change in law as it stood under the limitation Act of 1908 regarding suits for possession of immovable property. Under the old Act, all suits for possession whether based on title or on the ground of previous possession were being governed by Article 142 in a case where the plaintiff while in possession was dispossessed or discontinued in possession. Where the case was not one of disposession of the plaintiff or discontinuance of possession, Article 142 did not apply and suits based on title alone and not dispossession or discontinuance of possesion were governed by Article 144, unless they were specially provided for by some other articles like Articles 47, 136, 137, 138, 140 and 141. Under the new Limitation Act suits for possession of immovable property have been brought under two categories; (i) suits based only on right of previous possession and not on proprietary title (Article 64); and (ii) suits based on proprietary title (Article 65). Under Article 64, the time runs from the date when the plaintiff while in possession has been dispossessed or has discontinued his possession, whereas under Article 65, the time runs when possession of the defendant becomes adverse to the plaintiff. Therefore, under the old Limitation Act, while in all suits for possession based on dispossession, whether the plaintiff had title or not, the burden of proof was on the plaintiff to prove that he was in possession and dispossessed within twelve years of the suit and in suits for possession based on title, the burden of proof was on the defendant to prove that his possession became adverse to the plaintiff beyond twelve years of the suit, under the new Act in a suit based on title even if dispossession is alleged, the defendant can succeed only if he proves that his possession has become adverse to the plaintiff beyond twelve years of the suit. Once the plaintiff proves his title he is not required to show that he was in possession within twelve years of the suit. Whether a suit is based on title or based on dispossession, the allegation in the plaint has to be looked into. A review of different case laws on Article 142 and 144 of the old Limitation Act (Act of 1908) indicates that in cases coming under Article 142, namely where the plaintiff while in possession had been dispossessed or had discontinued possession, the onus was on the plaintiff to prove that the possession or discontinuance of possession had taken place within twelve years of the suit and it was also made applicable to cases where the plaintiff had proved his title to the property. In cases under Article 144 of the old Act, the onus was on the defendant to prove that he had been in adverse possesssion against the plaintiff continuously for more than twelve years immediately before the suit. Under Article 142 the time ran from the date of plaintiff's dispossession or discontinunce of possession whereas under Article 144 time ran from the date in defendant's possession became adverse to the plaintiff. Under the new Act, the cases falling under Article 64, the onus will be on the plaintiff to prove that his dispossession took place within the period of limitation and in case coming under Article 65, the onus will be on the defendant to prove that he had been in adverse possesion against the plaintiff for more than the statutory period. But the real difference that has been brought out under the new Act is on the question of onus of proof. Whereas under the old Act in a suit for possession even if based on thtle, if the plaintiff was found to be dispossessed or discontinued his possession then the onus was on the plaintiff to prove that the said dispossession or discontinuance of possession took place within the period of limitation, the reason being that Article 142 was general in its terms and applied to all cases where the plaintiff while in possession had been dispossessed or discontinued possession. This position was found to be inequitable and unjust for a true owner and, thereore, the Law Commission in its 3rd. report suggested the change and that is how the two Articles 64 and 65 have been engrafted whereunder a suit for possession based on title has been taken out of the purview of Article 64 even though the plaintiff being in possesison has been dispossed. In such a suit for possesion based on title, Article 65 applies under which the limitation runs from the time when the defendant's possession becomes adverse to the plaintiff and not from the time when the plaintiff was dispossessed as under Article 64. Consequently, under the present Limitation Act in a suit for possession based on title, the onus is no longer on the plaintiff to prove that his dispossession took place within the period of limitation.
4. The aforesaid position of law as is apparent from an interpretation of Articles 64 and 65 of the Limitation Act cannot be said to be affected in any manner in view of Section 3 or Section 27 of the Limitation Act. Section 3 of the Limitation Act says that a suit filed after the prescribed period shall be dismissed even though limitation has not been set up as defence. In other words, a Court can dismiss a suit on the ground of limitation even if the defence has not raised that plea, where on the face of the pleadings, the Court comes to the conclusion that the suit is barred by limitation. Section 27 lays down an exception to the general principle that limitation bars only the remedy and does not extinguish the right and such exception is in so far as suits for possession of properties are concerned. But neither Section 3 nor Section 27 has anything to do with the onus of proof or burden of proof. We fail to understand how Section 3 or Section 27 changes the legal position arising out of Articles 64 and 65 of the Limitation Act. Even Mr. Misra, the learned counsel appearing for the defendants-appellants, does not press the decision of Hob'ble S. C. Mohapatra, J. into service and fairly states that the said decision is unsupportable in law. In view of the clear position emerging out of the provisions of Articles 64 and 65 of the Limitation Act, we would answer the question posed before us by holding that when a plaintiff files a suit for declaration of title and possession basing his claim on his title and admits dispossession, then he is not to be required to prove that his dispossession was within twelve years of the filing of the suit and he can succeed on establishing his title and will fail only when the defendant proves that he has perfected his title by way of adverse possession and Section 3 or Section 27 of the Limitation Act does not change the aforesaid legal position in any manner. In our opinion, the decision in Second Appeal No. 312 of 1980 (reported in 1988 (1) Orissa LR 176) (Khetrabasi Patra v. Guru Charan Patra) decided on 8-1-1988 by Hon'ble S. C. Mohapatra, J. has not at all been correctly decided and the law laid down therein is accordingly overruled.
5. The second appeal may now be placed before our learned brother Hon'ble L. Rath, J. for hearing and final disposal, Das, J.
6. I agree.