Madras High Court
Ayeesha Bibi, Shahul Hameed, Rahiatul ... vs S. Mohamed Ibrahim, Mohamed Abdul ... on 13 September, 2002
Equivalent citations: (2002)3MLJ695
Author: M. Karpagavinayagam
Bench: M. Karpagavinayagam
JUDGMENT M. Karpagavinayagam, J.
1. The plaintiffs are the appellants herein. Having lost before both the Courts below, they have filed this second appeal.
2. The appellants, as plaintiffs, filed the suit for declaration, partition and separate possession of their share in 'A', 'B' and 'C' schedule properties and for other reliefs.
3. According to the plaintiffs, originally one Mohammed Meeran Rowther filed a suit in O.S. No.39 of 1958 for partition and separate possesion. On 9-10-1964, a preliminary decree was passed, whereunder, it was declared that the said Mhoamed Meeran Rowther would be entitled to 1/5 share in all the suit properties, namely, 'A', 'B' and 'C' schedule properties.
4. The defendants in the suit O.S. No.39 of 1958 filed appeal before the appellate Court in A.S. No.39 of 1965. Since the first plaintiff died in that suit on 10-7-1965, the other plaintiffs were impleaded as legal representatives of the deceased plaintiff. During the pendency of the appeal, one Khader Mohammed Ibrahim filed an application in I.A. No.911 of 1965 to implead himself as one of the residuary heirs of the deceased plaintiff. Accordingly, he was impleaded on 10-2-1966. Similarly, pending appeal, one Mohammed Sikkandar, claiming himself to be a purchaser from the plaintiff/Mohamed Meeran Rowther, under a sale deed dated 23-6-1965, filed a petition in I.A. No.48 of 1966 to get himself impleaded as a party to the suit. The said Sikkander sold the properties which were purchased by him on 24-1-1967 to the defendants 1 to 3 in the present suit. Ultimately, in the appeal which was disposed of 2-12-1967. While confirming the judgement and decree of the trial Court in other respects, the appellate Court modified the decree to the effect that the plaintiffs therein were entitled to 1/5 share in 'A' and 'B' schedule properties and 1/10 share in 'C' schedule property.
5. When the matter was taken up to this Court in S.A. No.722 of 1968, ultimately, the matter was compromised between the parties, except in respect of Khader Mohammed Ibrahim, who claimed as residuary heir of the deceased plaintiff and the same was dismissed on 19-4-1973. It was held in that judgement of this Court that the compromise decree will not bind the said Khader Mohammed Ibrahim.
6. Thereafter, the said Khader Mohammed Ibrahim filed an application in I.A. No 455 of 1975 in the earlier suit in O.S. No.39 of 1958 to divide the properties and allot the share to him as a residuary heir of the deceased plaintiff and pass a final decree. This was dismissed on merits on 27-7-1977.
7. As against the said order in I.A. No.455 of 1975, the said Khader Mohammed Ibrahim filed a revision before this Court in C.R.P. No.2436 of 1978. Pending revision, he died and therefore, the present plaintiffs, namely, the wife and children of the said Khader Mohammed Ibrahim were brought on record as legal heirs of the deceased. Ultimately, on 1-9-1982, the said revision was dismissed by this Court without prejudice to the rights of the petitioners in the revision, if any, to file a fresh suit. Thereafter, the present suit has been filed on 12-4-1983 seeking the abovesaid reliefs.
8. The defendants 2 and 3 contested the suit in O.S. No.253 of 1983 (the present suit), claiming their right under the sale deed dated 23-6-1965 executed by the Mohammed Meeran in favour of Sikkander and the sale deed executed by Sikkander in favour of the defendants 2 and 3 under Ex.B-5 and also claimed adverse possession, thereby, prescribed title by ouster. They further contended that the suit is barred by res-judicata under Order 2 Rule 2 C.P.C. and limitation.
9. After framing necessary issues, in the trial Court, on behalf of the plaintiffs, P.Ws.1 to 4 were examined and Exs.A-1 to A-9 were marked and on behalf of the defendants, D.Ws.1 and 2 were examined and Exs.B-1 to B-32 were marked. Ultimately, the trial Court found that the defendants 2 and 3 acquired prescriptive title by ouster over the suit properties by adverse possession and the suit is barred by limitation. However, on the question of bar under Order 2 Rule 2 C.P.C., the trial Court rejected the defendants' plea. Challenging the same, the plaintiffs filed appeal before the lower appellate Court, which in turn, confirmed the judgement and decree of the trial Court. Hence, the second appeal.
10. At the time of admission of the second appeal, this Court, by order dated 4-1-1991, formulated the following substantial questions of law:-
"(i) Having held that the relationship between the plaintiffs/appellants and the defendants 1 to 3, the respondents herein, is that of co-owners, are the trial Court and the first appellate Court justified in holding that the defendants 1 to 3 have prescribed title by adverse possession without a plea of ouster?
(ii) Whether the trial Court as well as the appellate Court are right in holding that Section 14 of the Limitation Act does not apply to the facts of this case? "
11. In elaboration of the above substantial questions of law, Mr. S.V. Jayaraman, learned Senior Counsel representing M/s. N. Maninarayanan, on behalf of the appellants, would contend that the defendants purchased the suit properties pending appeal in A.S. No.39 of 1965 and therefore, their purchase is hit by the doctrine of "lis pendens", and since the limitation period starts only from 1973 onwards, it cannot be said that there was an ouster, since the suit was filed within 12 years.
12. Learned Senior Counsel for the appellants would further contend that the starting point of limitation would be only from the date on which the revision in C.R.P. No.2436 of 1978 before this Court was disposed of, namely, on 1-9-1982 and the said suit has been filed within three years thereafater and that therefore, there can be no bar on limitation.
13. In reply to the above said arguments of learned Senior Counsel for the appellants, Mr. Subbiah, the learned counsel appearing for the respondents 2 and 3 would state that the materials available on record would prove that the defendants 2 and 3 have perfected title by adverse possession through ouster for more than the statutory period and therefore, the suit is not maintainable. He would cite number of authorities for substantiating his submissions.
14. Both the learned counsel have filed their respective written submissions. I have carefully considered the rival contentions of learned counsel for the parties and perused the records.
15. On a perusal of the records, it is seen that though the claim of the defendants that they were in possession of the properties from 1965 by virtue of Ex.B-4, dated 23-6-1965 and Ex.B-5, dated 24-1-1967, both the Courts below would hold that Ex.B-4 document is not a genuine document. In the above context, both the Courts below would hold that the defendants 2 and 3 and their predecessors-in-title were in possession of the suit properties from the year 1965 onwards to the knowledge of all the parties concerned, including that of the predecessor-in-title of the deceased plaintiff and the other plaintiffs thereafater and their possession had been open, hostile, peaceful and knowledge of every one.
16. According to learned Senior Counsel for the appellants, the earlier second appeal was disposed of by this Court on 19-4-1973 and the revision before this Court was dismissed on 1-9-1982 and therefore, the suit has been filed within time and therefore, the suit is not barred by limitation and the same is within time. His further contention is that since the subject matter in dispute was hit by the doctrine of "lis pendens", and the time till 1-9-1982 has to be excluded. But this submission cannot be accepted, as found by both the Courts below, in view of the dictum laid down by the Supreme Court in a decision reported in RAJENDAR SINGH VS. SANTA SINGH .
17. On going through the judgements impugned, it is clear that the doctrine of "lis pendens" is intended to strike at the attempts by parties to a litigation to circumvent the jurisdiction of a Court, in which a dispute of rights or interests in immovable property is pending, by private dealings, which may remove the subject matter of litigation from the ambit of the Court's power to decide a pending dispute or frustrate a decree.
18. Section 14 of the Limitation Act deals with the exclusion of time of proceeding bona-fide in Court without jurisdiction. Therefore, there are certain conditions for the applicability of Section 14 of the Limitation Act. One of these is that the plaintiff should have prosecuted, with due diligence, the civil proceedings founded upon the same cause of action. But the said Section which is the only provision of the statute specifically dealing with the exclusion of time spent in another litigation, would not obviously apply to the case now before this Court. The only mode of relief open for the plaintiffs was to have instituted the suit of their own, within the prescribed period of limitation. Admittedly, in this case, they have instituted the suit long after the period of limitation had expired.
19. The above aspects have been dealt with in detail by the trial Court. Khader Mohammed Ibrahim who claims himself as a residuary heir of the deceased plaintiff, instead of filing the suit within time, has filed final decree application for partition of his residuary share in I.A. No.455 of 1975 in O.S. No.39 of 1958. The said application in I.A. No.455 of 1975 was dismissed on merits and then the matter was taken up to this Court by way of revision in C.R.P. No.2436 of 1978 and ultimately, the revision was dismissed by this Court and the judgement copy is in Ex.A-6, which would reveal that at the time of filing final decree application in I.A. No.455 of 1975, the said Khader Mohammed Ibrahim was aware of the fact that he has to file a separate suit only to establish the quantum of share in the suit properties. This is clear from the order of the trial Court under Ex.B-8 dated 27-7-1977 passed in I.A. No.455 of 1975. This is reiterated in this Court's order also in Ex.A-6 when the revision was disposed of on 1-9-1982. Therefore, the ingredients mentioned in Section 14(1) of the Limitation Act cannot be said to be present in the present case.
20. As indicated above, Khader Mohammed Ibrahim had knowledge that he was ousted by his co-owners in 1965 itself and thereafter, in 1966, by the defendants 2 and 3.
21. It is settled law that the possession of a co-owner cannot be considered to be adverse to the other co-owner. The entry and possession of a land by one co-owner is not presumed to be adverse. The possession becomes different when the title of some of the members has been denied and their right of enjoyment of the properties has been repudiated to their knowledge. From that moment, the character of the possession of the hostile co-owner changes and it becomes adverse possession who have knowledge of the ouster and the limitation time begans to run against them.
22. In this case, after the death of Khader Mohamed Ibrahim, the plaintiffs herein and the defendants have become co-owners of the suit properties. The defendants 2 and 3 claim that they alone are in exclusive possession and enjoyment of the suit properties. The plaintiffs have another claim that they are in possession and enjoyment of the suit properties. As a matter of fact, P.W.2 examined on behalf of the plaintiffs has admitted that after the execution of Exs.B-4 and B-5, the defendants alone have been enjoying the suit properties against the interest of the plaintiffs. This admission would go to show that the plaintiffs came to know that the defendants are claiming exclusive right over the suit properties and as such, they are ousted from the suit properties from 1965 onwards.
23. In the light of the said admitted materials, this Court would not hold that the findings with reference to the ouster and adverse possession and the filing of the suit after expiry of the period of limitation are wrong. Consequently, it has to be held that there is no substantial question of law in the second appeal and the same is liable to be dismissed.
24. The second appeal is dismissed. No costs.