Jammu & Kashmir High Court
Shabana Durrani vs Shahbaz Khan on 19 March, 2024
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
h475
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on: 07.03.2024
Pronounced on: 19.03.2024
CFA No.35/2008
1. Shabana Durrani
2. Robina Durrani,
Both daughters of Late Abdul Gafoor Khan Durrani
R/o 295 Talab Khatian, Jammu City,
Tehsil and District Jammu.
...Appellant(s)
Through:- Mr. A.G.Sheikh, Advocate
V/s
1. Shahbaz Khan
2. Sajjad Khan
3. Sher Khan
All sons of Late Shahnawaz Khan
At present Residents of 297, Mohalla Talab Khatikan,
Jammu.
...Respondent(s)
Through:- Mr. A.K.Sharma, Advocate with
Mr. S.M.Wajahat, Advocate
Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
JUDGMENT
1. This civil first appeal arises out of a judgment and decree dated 29th March, 2008 passed by the Court of learned Additional District Judge, Jammu ["the Trial Court"], whereby and whereunder the suit of the appellants herein (hereinafter referred to as "the plaintiffs", for convenience) for declaration of title and possession has been partly allowed. The Trial Court has declared the plaintiffs as owners of the suit land but has declined the relief of possession on the ground that the plaintiffs have failed to prove that they were in possession of the suit land within twelve years before the institution of the suit [Article 142 of the Jammu & Kashmir Limitation Act, Svt. 1955 ("J&K Limitation Act")]. Factual Matrix
2. Late Sardar Mohd. Akram Khan, the grandfather of the plaintiffs, was owner of the land situate at western side of his residential house at Talab Khatikan, Jammu ["the suit land"]. This suit land was purchased by late Sardar Mohd. Akram Khan from Col. Yar Mohd. Khan by virtue of a sale deed duly registered in the office of Sub-Registrar, Jammu on 1st Jeth, 1976 Bikermi. In the year 1963, the suit land was rented out by Sardar Mohd. Akram Khan and father of the appellants to one Shahnawaz Khan, the father of the respondents (hereinafter to be referred as "defendants" for convenience). Father of the plaintiffs, Late Gafoor Khan filed a suit for ejectment against Shah Nawaz Khan, the father of the defendants, in the Court of Sub-Registrar, Munsiff, Jammu. The suit was purportedly filed within limitation. Late Shah Nawaz Khan, the defendant in the suit, filed written statement and denied the relationship of landlord and tenant. He even went to the extent of denying the title of the plaintiffs in the suit land and setting up a title in the Government.
2 CFA No.35/2008
3. In the aforesaid suit filed by Abdul Gafoor Khan against Shah Nawaz Khan following issues were struck by the Court on 07.11.1974.
i) Whether the defendant is a tenant under the plaintiff? OPP
ii) In case issue No.i is proved, whether the defendant can resist the suit for eviction filed against him? OPD
iii) Relief. OPP No issue relating to title of the suit land was framed or decided in the said suit. The Court of learned Munsiff (Sub-Registrar), Jammu dismissed the suit vide his judgment and decree dated 20 th September, 1977 while returning a specific finding that the plaintiff had failed to prove that the defendant was his tenant qua the suit land. The appeal preferred against the said judgment and decree before the learned District Judge, Jammu met the same fate. It may be pertinent to note that during pendency of the first appeal before the District Judge, the plaintiff in the suit, Abdul Gafoor Khan had died and was substituted by his legal heirs i.e. the appellants herein along with their mother, Maqsooda Begum.
4. Feeling aggrieved the plaintiffs herein in their capacity as legal heirs of Late Abdul Gafoor Khan filed Civil Second Appeal No.38/93 before this Court. The Civil Second Appeal was allowed by this Court vide judgment dated 19th March, 1997 to the limited extent that the observations made by the Trial Court and the 1st Appellate Court regarding title of the suit land were not tenable in law. The review petition filed by Late Shah Nawaz Khan, the defendant in the suit for 3 CFA No.35/2008 ejectment, also failed. The net result of this round of litigation between the parties was that the plaintiffs could not prove a jural relationship of landlord and tenant between them and the defendants. However, the issue of title to the suit land remained open and undecided.
5. It seems that while the civil second appeal was pending and in anticipation of its result, the plaintiffs filed a suit for declaration of their title to the suit land. They also sought a decree for possession of the land under occupation of the defendants. This suit was presented on 2nd June, 1994 that is immediately after the dismissal of the appeal by the 1 st Appellate Court. The suit was filed on the basis of title to the suit land. It was contested by Shahnawaz Khan by filing his written statement. It is in this suit for declaration, the father of the defendants Late Shah Nawaz Khan took a stand that the suit land was a State land and not owned by the plaintiffs. On the basis of the pleadings of the parties, the trial Court framed the following issues:-
"1. Whether the suit is barred by the doctorine of resjudicata? OPD
2. Whether the suit is not maintainable because of pendency of second appeal with regard to the suit land in the Hon‟ble High court? OPD
3. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction, if so, what is valuation thereof?
4. Whether after the death of Mohd. Akram Khan and Abdul Gafoor Khan Durani the plaintiffs are the owners of the suit land? OPP 4 CFA No.35/2008
5. Whether the defendant is in unauthorized possession of the suit land? OPP
6. Whether the defendant is a permanent state subject of J&K, if so, what is its effect on the suit? OPD
7. To what relief, the parties are entitled to. OP Parties."
6. While the suit was pending, Shah Nawaz Khan also died and was succeeded in the suit by the defendants. With a view to discharge the onus of proof, the plaintiffs examined PW-1 Narsing Dass, PW-2 Dalip Kumar, PW-3 Shabana Durani (one of the plaintiffs), PW-4 Warayam Singh, PW-5 Mohan Lal Chopra, PW-6 Haji Mohd. Takki, PW-7 Baldev Raj, PW-8 Mulkh Raj and PW-9 Dalip Singh. However, the defendants left the suit midway and were proceeded ex-parte. Neither defendants themselves appeared in the witness box nor did they choose to lead any evidence. The trial Court considered the pleadings of the parties in the light of the evidence led on the issues framed and came to the conclusion that the plaintiffs had succeeded in establishing their title over the suit land. However, the suit was dismissed by the Trial Court on the ground that the plaintiffs had failed to prove by leading any evidence that they were in possession of the suit property within twelve years next prior to the institution of the suit. The issue-wise discussion was not made by the Trial Court. It is also important to note that the Trial Court, after holding the plaintiffs as owners of the suit land, also found them entitled to a decree for permanent injunction directing the defendants not to interfere in the pathway leading to the residential house of the plaintiffs. This is 5 CFA No.35/2008 how the Trial Court vide judgment and decree impugned partly allowed the suit.
ARGUMENTS
7. The impugned judgment and decree has been accepted by the defendants. However, same is challenged by the plaintiffs to the extent the suit has been dismissed on the ground of limitation, inter alia, on the following grounds:-
i) That the issue of limitation had not arisen out of the pleadings of the parties and, therefore, the plaintiffs had no opportunity to argue and convince the Trial Court that the suit was not barred by limitation. Reference is made to the stand taken by the defendants in the written statement. It is argued that in the absence of any such plea of limitation taken by the defendants as also in the absence of any specific issue framed by the trial Court, it was not legally permissible for the trial Court to return a finding that the suit was barred by limitation and dismiss the same on said ground.
ii) That the Trial Court has failed to appreciate that the suit of the plaintiffs was covered by Article 144 of the J&K Limitation Act and in the absence of defendants having pleaded their adverse possession, the suit could not have been held barred by limitation. In support of his submissions, Mr. A.G.Sheikh, learned counsel appearing for the plaintiffs would place reliance on the following judgments:- 6 CFA No.35/2008
i) Saroop Singh v. Banto, (2005) 8 SCC 330;
ii) Prasanna and others v. Mudegowda (D) by Lrs,
AIR 2023 SC 2967;
iii) Government of Kerala and another v. Joseph and
others, AIR 2023 SC 3988;
iv) Biranchi Narayan Tripathy v. State of Orissa and
another, RSA No.433 of 2007 decided on 10th
November, 2023; and
v) State Bank of Travancore v. Aravindan Kunju
Panicker, (1972) 4 SCC274
8. Per contra, Mr. Ashok Sharma, learned counsel appearing for the defendants would argue that the judgment and decree passed by the Trial Court, dismissing the suit of the plaintiffs being barred by limitation, is perfectly legal. He submits that a suit for possession, whether it is on the basis of title or on the basis of possessory rights, is required to be filed within a period of twelve years next prior to the institution of the suit. This is so clearly provided in Article 142 of the J&K Limitation Act, which would be applicable to the case in hand. He submits that „subsisting title theory‟ propounded by the Courts right from the decision of the Privy Council till the judgment rendered by the Supreme Court in the case of Saroop Singh (supra) subsisted till Articles 142 and 144 of the Indian Limitation Act, 1908 ["the Central Act"] were amended and substituted by Articles 64 and 65 of the Limitation Act, 1963.
9. Learned counsel for the defendants also raises serious objection to the findings of fact recorded by the Trial Court with regard to the passage, the subject matter of the suit. He submits that neither there was any issue with regard to the passage nor was there enough evidence led by the plaintiffs to prove that they were entitled to use the passage. 7 CFA No.35/2008 The Trial Court without taking up the issues one by one for consideration has returned its consolidated findings directed mostly on the two issues viz. issue of title and the issue of limitation. He argues that, though, he welcomes the decision of the Trial Court on the issue of limitation, yet he is not happy with the manner in which the issue with regard to suit passage has been determined.
DISCUSSION & ANALYSIS
10. Having heard learned counsel for the parties and perused the material on record, the questions that fall for determination in this appeal can be put in the following manner:-
i) Whether in a suit for possession based on title, the limitation is to be reckoned in terms of Article 142 or Article 144 of the Limitation Act?
ii) Whether in the absence of issue of limitation framed by the Trial Court, suit of the plaintiff could be dismissed on the ground that it is barred by limitation?
iii) Whether the findings of fact returned and the relief granted on the issue of "right of the plaintiffs to use the suit passage exclusively" is supported by sufficient evidence on record?
Question No.(i)
11. This issue has been subject matter of debate in the Courts since long and it was in respect of correct interpretation and understanding of Articles 142 and 144 of the Limitation Act, 1908, which 8 CFA No.35/2008 are pari materia with Article 142 and 144 of the J&K Limitation Act. Since these two Articles are at the core of discussion, as such, before proceeding further it would be appropriate to set out these articles herein below.
Description of suit Period of limitation Time from which
period begins to run
142 For possession of immovable Twelve Years The date of the
property when the plaintiff, dispossession or
while in possession of the discontinuance.
property, has been dispossessed
or has discontinued the
possession
143 ........ .......... ........
144 For dispossession of immovable Twelve Years When the possession
property or any interest therein of the defendant
not hereby otherwise specially becomes adverse to
provided for. the plaintiff.
12. Admittedly, suit in the instant case was filed by the plaintiffs on the basis of their title to the suit land. The plaintiffs sought a decree of declaration that they were owners of the suit land and hold title on the basis of a sale deed. The suit was instituted on 2 nd June, 1994 and, therefore, was governed by the J&K Limitation Act. It is also not in dispute that the defendants had not raised the plea of limitation nor did the Trial Court frame any issue on the point. The Trial Court, however, relied upon Section 3 of the Limitation Act and came to the conclusion that the suit instituted after the period of limitation prescribed therefor in First Schedule is liable to be dismissed even, though, the limitation has not been set up as a defence, however, the Trial Court did not take into consideration that this proposition contained in Section 3 was subject to 9 CFA No.35/2008 the provisions contained in Section 4 to 25. The trial Court also did not take note of the fact that the issue of limitation in the given facts and circumstances of the suit was a mixed question of fact and law. The Trial Court even miserably failed to appreciate that there was good deal of confusion on the interpretation and application of Article 142 and 144 of the J&K Limitation Act insofar as suit for recovery of possession from the trespasser was concerned. Had the Trial Court accorded adequate opportunity to both the sides to address their arguments on the issue, the Trial Court would have certainly come to know that there were two opinions of the Courts available on record. In this view of the matter, this Court would be perfectly justified in remanding the case to the Trial Court for adjudication on the issue of limitation afresh after affording adequate opportunity of being heard to both the parties. However, having regard to the fact that the parties are litigating since 1974, it would be sheer travesty of justice, if they are relegated back to the Trial court for adjudication of their rights afresh. It is in these circumstances, I have ventured to take up the issue for determination in this appeal.
13. It needs to be appreciated that suits for recovery of possession of immovable property can be filed in following eventualities providing different limitations for such eventualities:-
a) A suit for recovery of possession of immovable property under Section 6 of the Specific Relief Act The Limitation provided for such suit is six months when the dispossession occurs. In such suit for possession, the plaintiff is not 10 CFA No.35/2008 required to establish his title. The suit would lie even when the defendant sets up his title in such suit.
b) A suit for recovery of possession based on title.
In such a suit only defence available to the defendant is that he has perfected his title by adverse possession. The period of limitation is twelve years and the time from which the period begins to run is when the possession of the defendant become adverse to the plaintiff meaning thereby that an owner of immovable property cannot be denied possession by the defendant unless he pleads and proves that he is in adverse possession for the last minimum twelve years. Obviously such suit would be covered by Article 144 of the Limitation Act.
c) Suit for possession on the basis of possessory rights.
A suit for possession of immovable property otherwise than on the basis of title that is suit for possession on the basis of earlier possession. The limitation herein would again be twelve years to be reckoned from the date of dispossession or discontinuance of possession. Prima facie such a suit would be covered by Article 142 of the J&K Limitation Act.
14. The confusion that has been created by the different opinions right from the Privy Council is that Article 142 would be applicable even if suit for possession is based on title. It would mean that, if a person, who is owner of the immovable property, is divested of his possession or has failed to take over the possession of his property, twelve years next prior 11 CFA No.35/2008 to the institution of the suit he shall lose his right to recover the possession. It would further mean that in such situation, defendant would be entitled to enjoy the property without even pleading and proving his adverse possession. This view held by various Courts, in my opinion, has produced anomalous results. It has not only rendered Article 144 otiose but has clearly overlooked the specific provisions of Article 142 of the Limitation Act. From a reading of Article 142, it clearly transpires that it envisages a suit for possession of immovable property when the plaintiff while in possession of the property has been dispossessed or has discontinued the possession. The expression "while in possession"
without referring to while being owner in possession clearly denotes that what was envisaged under Article 142 was a suit for possession of immovable property based on possessory title only. This would fall in accord with Article 144 of the J&K Limitation Act, which takes care of the eventuality where the suit is filed on the basis of title and the defendant claims adverse possession. If we read Articles 142 and 144 of the J&K Limitation Act in harmony and without making them to contest with each other, a clear, unambiguous and logical result will emerge that Article 142 would be applicable only to the suit for recovery of possession of immovable property filed on the basis of possessory title and in a suit for recovery of possession filed on the basis of title, the only defence available to the defendant to resist the possession of the owner is by way of setting up title by adverse possession. Such suit is clearly referable to Article 144 of the J&K Limitation Act. 12 CFA No.35/2008
15. I shall not be venturing to survey the entire case law right from the decision of Privy Council in the case of Mohima Chunder Mozooindar and others v. Mohesh Chunder Neoghi and others, ILR 16 Calcutta 473 (1), as this exercise has been elaborately undertaken by the Delhi High Court in the case of Delhi Cloth & General Mills Co. Ltd. V. Ganga Charan Sharma, ILR 1980 Delhi 196. As is apparent from a reading of the judgment of Delhi High Court(supra), there have all along been two views about applicability of Article 142 of the Limitation Act. One view supported the subsisting title theory and laid down that Article 142 does not make any distinction whether the suit for recovery of possession of immovable property is based on title or possessory right. It ordains that a suit for possession where the plaintiff, while in possession, has been dispossessed or has discontinued the possession, ought to be filed within a period of twelve years prior to the institution of the suit. The other theory supported by some of the High Courts is that Article 142 would be applicable only in the suits, which are filed on the basis of possessory rights and to bring the suit within limitation he must show that the plaintiff was dispossessed or discontinued his possession within twelve years prior to the institution of the suit. The suit for recovery of possession based on title can only be resisted by the defendant by setting up adverse possession and, therefore, clearly covered under Article 144 of the Limitation Act.
16. This confusion continued to rein till on the basis of recommendations made by the Law Commission in its third report 13 CFA No.35/2008 submitted in the year 1956 proposing revision of Limitation Act, 1908, the Law of Limitation was amended. In its report, the Law Commission, in particular, discussed Articles 142 and 144 of the Limitation Act, 1908. The Commission pointed out that the case law on these two Articles "had introduced a great deal of confusion" and as it stands, "seems to favour a trespasser against an owner". The blame for this anomaly was placed on the subsisting title theory. It was the opinion of the Law Commission that Full Bench decisions of the High Court of Allahabad and Madras High Court, which had followed the „subsisting title theory‟ were not strictly in accord with the language of Article 142. After thorough discussion, the Law Commission went on to say :-
"We propose that this hardship should be remedied. If the defendant wants to defeat the right of the plaintiff he must establish his adverse possession for over 12 years which has the effect of extinguishing the title of the owner by the operation of section 28 of the Limitation Act read with Article 144. If he fails to do so there is no reason for non- suiting the plaintiff merely because he was not able to prove possession within 12 years."
17. The Law Commission further proposed that "in order to avoid injustice and inequity to the true owner and to simplify the law, Article 142 should be restricted to suits based on possessory title". These recommendations of the Law Commission were implemented while amending the law of limitation and substituting the old Limitation Act by The Limitation Act, 1963. Articles 142 and 144 were replaced by Articles 64 and 65 of the new Act.
14 CFA No.35/2008
18. With a view to better understand the clarity brought about by Articles 64 and 65 of the Limitation Act, 1963, it would be necessary to set out the aforesaid two Articles from the Schedule of the Limitation Act, 1963. These read as under:-
Description of suit Period of Time from which limitation period begins to run 64 For possession of immovable property Twelve years. The date of based on previous possession and not dispossession. on title, when the plaintiff while in possession of the property has been dispossessed 65 For possession of immovable property or Twelve years When the any interest therein based on title. possession of the Explanation.--For the purposes of this defendant becomes article-- adverse to the
(a)where the suit is by a remainderman, a plaintiff. reversioner (other than a landlord) or a devisee, the possession of the defendant shall be deemed to become adverse only when the estate of the remainderman, reversioner or devisee, as the case may be, falls into possession;
(b) where the suit is by a Hindu or Muslim entitled to the possession of immovable property on the death of a Hindu or Muslim female, the possession of the defendant shall be deemed to become adverse only when the female dies;
(c)where the suit is by a purchaser at a sale in execution of a decree when the judgmentdebtor was out of possession at the date of the sale, the purchaser shall be deemed to be a representative of the judgment-debtor who was out of possession.
15 CFA No.35/2008
19. By Article 64, which is a replacement of Article 142 of the Limitation Act, 1908, (J&K Limitation Act), it is now amply clarified that the limitation provided in Article 64 would be attracted in suits for possession of immovable property based on previous possession and not on title. The expression "not on title" is added on to Article 64 with a view to clear the mist surrounding the interpretation of Article 142 of the Limitation Act, 1908. It would, therefore, not be correct to hold that with the coming into operation of the Limitation Act, 1963 and engrating of Article 64 in the Schedule appended therewith, the legal position has undergone a change rather the expression "not on title" used in Article 64 is clarificatory in nature and in line with the one of the two views, which was prevalent even before promulgation of the Limitation Act, 1963.
20. It is equally important to notice that in the Bill which sought to implement the 3rd Report of the Law Commission on the Limitation Act, 1908, it was said in respect of Articles 142 and 144 of the Limitation Act then in force that these Articles had given rise to a good deal of confusion with respect to the suit for possession by owners of the property and, therefore, Article 64, as proposed, would replace 142 and would be restricted to suits based on possessory title so that owner of the property does not lose his right on property unless the defendant in possession is able to prove adverse possession. I have already rendered my opinion that the change brought about by the amending Act i.e. the Limitation Act, 1963 by bringing Articles 64 to replace Articles 142 was only clarificatory in nature and Article 142, as it stood before the 16 CFA No.35/2008 promulgation of the Limitation Act, 1963, also very clearly provided limitation for suits for possession of immovable property based on previous possession i.e. possessory title. The suits for possession based on title were clearly covered by Article 144, which is now replaced by Article 65 of the Limitation Act, 1963.
21. It also needs to be clarified that with the promulgation of the Jammu & Kashmir Reorganization Act, 2019, The J&K Limitation Act stands repealed and is replaced by the Limitation Act, 1963. Articles 64 and 65 of the Schedule to the Limitation Act, 1963 have now removed the ambiguity, which was created by two set of decisions on the point by the Courts of law and would pose no difficulty in future. But, as stated above, I am in agreement with the view expressed by the Single Bench of Delhi High Court in Delhi Cloth & General Mills (supra) that even Article 142 of the erstwhile Limitation Act, which was in pari materia with Article 142 of the J&K Limitation Act, would be applicable only to suits for recovery of possession of immovable property based on possessory rights and not to the suits based on title. Most of the judgments relied upon by Mr. A.G.Sheikh, learned counsel for the petitioner, turn on the interpretation of Articles 64 and 65 of the Limitation Act, 1963. I am in agreement with Mr. Sheikh that in the instant case, suit which was based on title, the only defence available to the defendants was to assert their adverse possession and prove that this possession had been hostile, uninterrupted and for a continuous period of twelve years. To set up adverse possession, the defendant must first concede that the plaintiff is 17 CFA No.35/2008 owner of the suit property. The adverse possession can only be pleaded against rightful owner of the property. Indisputably, in the earlier round as well as in the instant round of litigation, the defendants never accepted the plaintiffs as owners of the suit land rather they set up a title in the State. In such situation, even if the defendants are proved to be in possession of the suit property for more than twelve years, their possession cannot be termed as "adverse possession".
22. Obviously, the defendants have no defence to offer to the suit for recovery of possession filed by the plaintiffs based on their title. There is ample evidence on record of the suit to demonstrate that the plaintiffs have, sufficiently, by oral as well as documentary evidence, proved their title to the suit property.
23. In terms of Article 144 of the J&K Limitation Act, starting point of limitation would not commence from the date when the right of ownership arises to the plaintiff but would commence from the date defendant‟s possession becomes adverse. Animus possidendi is one of the ingredients of adverse possession. Unless the person possessing the land had a requisite animus the period for prescription does not commence. In the instant case, the defendants categorically denied that the plaintiffs are owner of the suit land and, therefore, could not have claimed that their possession was adverse to the true owner [see Vasantiben P. Nayak & Ors vs Somnath M. Nayak & Ors, (2004)3 SCC 376]. The issue of adverse possession has been elaborately dealt with by the Supreme Court 18 CFA No.35/2008 in its recent judgment in the case of Government of Kerala v. Joseph and others, AIR 2023 SC 3988. Referring to the earlier judgment, the Supreme Court has held that a party claiming adverse possession must prove that his possession is „nec vi, nec clam, nec precario' i.e. peaceful, open and continuous. The possession must be adequate, in continuity, in publicity and in extent, to show that his possession is adverse to the true owner. It must start with a wrongful dispossession of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. It is, thus, trite that mere possession of land would not ripen into possessory title for ousting the rightful owner. The possessor must have animus possidendi and hold the land adverse to the title of the true owner.
24. The onus is on the person, who claims adverse possession to establish the date on which he came in possession, nature of possession, the factum of possession, knowledge to the true owner, duration of possession and that possession was open, undisturbed and hostile to the owner. The plea of adverse possession must be pleaded and proved by leading adequate cogent evidence. The plea of adverse possession not directly raised in pleadings or in issues at the stage of trial, would not be permitted to be raised for the first time at the stage of appeal. It is also well settled that claim of independent title and adverse possession at the same time amounts to contradictory pleas. This principle has been elaborated by the Supreme Court in the case of Annasaheb Bapusaheb Patil & Ors. Etc. vs Balwant And Balasaheb Babusaheb, (1995) 2 SCC 543 in the following manner:-
19 CFA No.35/2008
"Where possession could be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another, does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all."
25. In the instant case, as we have seen there are no pleadings by the defendants claiming to be in adverse possession of the suit land and obviously there is no such issue framed by the Trial Court. The issue of adverse possession is an issue of a fact and needs to be determined in the light of evidence on record. There is no evidence brought on record by the defendants to even remotely assert adverse possession of the suit land. The defendant have all along denied the title of the plaintiffs to the property and claimed that they were in possession of the suit land, which they claimed belonged to the State. In such a situation, it cannot be inferred that the plea of adverse possession was even available to the defendants.
26. In view of the interpretation of Article 142 of the J&K Limitation Act and holding that Article 142 would be applicable only to the suits based on possessory title and not to the suits for recovery of possession on the basis of title to the suit property, the findings of fact 20 CFA No.35/2008 returned by the Trial Court that the suit was barred by limitation are not sustainable. The suit was clearly covered by Article 144 of the J&K Limitation Act and in the absence of any plea of adverse possession taken by the defendant(s) in the written statement, the suit ought to have been held within limitation and decreed on establishment of title by the plaintiffs.
27. So far as the plea of Mr. Ashok Sharma that the suit passage was not subject matter of adjudication in the suit is concerned, the same is belied by the record. The plaintiffs have specifically pleaded and also prayed for a decree of permanent prohibitory injunction restraining the defendants from interfering or causing interference in the peaceful possession of the suit passage. It is true that a specific issue with regard to the suit passage has not been framed, yet the parties were aware of the pleadings in this regard. The plaintiffs have also led their evidence but defendants choose not to contest the suit.
28. That apart, if the suit for recovery of possession is decreed in favour of the plaintiffs and the defendants are evicted from the suit land, as a necessary corollary, the plaintiffs would become entitled to the exclusive use of the passage. From this point of view, I am not inclined to interfere with the decree passed by the Trial Court in respect of the suit passage.
29. Before I close, I must fairly state that I am aware that in some of the judgments of the Supreme Court there is a passing reference 21 CFA No.35/2008 to the position obtaining in respect of Article 142 of the Limitation Act, 1908 and the changes that were brought about by Articles 64 and 65 of the Limitation Act, 1963. In the case of Saroop Singh (supra), in para 28 of the judgment, Hon‟ble Supreme Court has held thus:-
"28. The statutory provisions of the Limitation Act have undergone a change when compared to the terms of Articles 142 and 144 of the schedule appended to the Limitation Act, 1908, in terms whereof it was imperative upon the plaintiff not only to prove his title but also to prove his possession within twelve years, preceding the date of institution of the suit. However, a change in legal position has been effected in view of Articles 64 and 65 of the Limitation Act, 1963. In the instant case, plaintiff- respondents have proved their title and, thus, it was for the first defendant to prove acquisition of title by adverse possession. As noticed hereinbefore, the first defendant- Appellant did not raise any plea of adverse possession. In that view of the matter the suit was not barred."
30. There is passing reference to these Articles in the cases of Prasanna and others (supra) and Raj Rani and another v. Kailash Chand and another, (1977) 3 SCC 468, but these are merely the passing references to the position of law in respect of Article 142 of the Limitation Act, 1908 prior to the promulgation of the Limitation Act, 1963 and the changes which were brought about by Articles 64 and 65 of the Limitation Act, 1963. However, the issue as to whether Article 142 of the Limitation Act, 1908 (J&K Limitation Act) was applicable to the suits for possession based on possessory rights or to the suits based on title has not been thoroughly debated, discussed and decided by any judgment of the Hon‟ble Supreme Court.
22 CFA No.35/2008
31. Having regard to the aforesaid aspect, I have independently and of course, being persuaded by the view taken by the Delhi High Court in Delhi Cloth and General Mills Co. Ltd. (supra), arrived at an opinion that there is no substantial difference between the erstwhile Article 142 of the Limitation Act, 1908 (J&K Limitation Act) and Article 64 of the Limitation Act, 1963. The Article 64 has not brought about any change in the position of law on the subject and must be held to be a provision clarificatory in nature stating the position of law without any ambiguity. Article 142, as it stood, was applicable only to the suits for recovery of possession of immovable property based on possessory rights of the plaintiffs and in such situation, it was incumbent upon the plaintiff to plead and prove that he was dispossessed or discontinued his possession within twelve years prior to the institution of the suit. Suits for recovery of possession based on title were covered by Article 144 of the Limitation Act, 1908 and, therefore, only defence available to the defendant was to plead adverse possession and to prove that he had been in adverse possession of the suit property for a minimum period of twelve years prior to institution of suit.
32. I am also aware that in one of the judgment rendered by me in the case of Bashir Ahmed and others v. Mohd Yousaf Mir and others, (CSA No.7/2006 decided on 30.01.2024) there is passing observation made by this Court in paragraph No.12 of the judgment that Article 142 is available in a case where the plaintiff while in possession of the property on the basis of title or otherwise has been dispossessed or has 23 CFA No.35/2008 discontinued the possession. This observation made was without any proper debate or discussion on any issue framed in the aforesaid case. It may be noted that in the aforesaid case, it was on fact not proved that the plaintiff was dispossessed or discontinued his possession twelve years next prior to the institution of the suit. The Court, on the basis of the evidence on record, came to the conclusion that the plaintiff was in constructive possession of the suit property and had not been dispossessed by the defendants prior to twelve years of the institution of the suit. I am stating so, as the aforesaid passing observations made by this Court in the case of Bashir Ahmed Sheikh and others v. Mohd. Yousuf Mir and others may not be taken as an expression of contradictory opinion by this Court.
33. For the foregoing reasons, I find merit in this appeal and the same is, accordingly, allowed. The plaintiffs are, therefore, held entitled to the following decree:-
i) A decree of declaration that the plaintiffs are owners of the suit land.
ii) Decree for the possession of the suit land in favour of the plaintiffs by eviction of the defendants from the land under the shed of defendants as depicted in red colour in the site plan measuring 55 x 21 feet.
24 CFA No.35/2008
iii) Decree of mandatory injunction directing the defendants to remove the shed raised on the suit land as also for removal of the debris thereof.
iv) Decree of permanent prohibitory injunction restraining the defendants from interfering or causing any interference in the gate/pathway to the residential house of the plaintiffs measuring 21 x 8.8 feet without colour in the site plan and land measuring North and South 21 feet, East 25 feet and West 22 feet marked green in the site plan.
Registrar Judicial to draw the decree sheet, accordingly.
(Sanjeev Kumar)
Judge
JAMMU
19.03.2024
Vinod, PS Whether the order is speaking : Yes/No
Whether the order is reportable: Yes/No
25 CFA No.35/2008