Indian Kanoon - Search engine for Indian Law

x x x x x

7. In our view the act of incidental user of the suit property pleaded by the plaintiff's tenants, P. Ws. 3 and 4 at 98 Mount Road is not sufficient to attribute possession to the plaintiff.

8. On a due consideration of the matter we take the view that the plaintiff has not established her possession of the suit property at any time within 12 years of suit.

9. The learned counsel for the first respondent-plaintiff, however, contends that it is not necessary for the plaintiff to establish her possession of the suit property at any time within 12 years of suit to get recovery of possession in the suit, that once she proves her title thereto she is entitled to recover possession of the property, so long as the defendants have not perfected title by adverse possession, and that in this case the defendants have not put forward a plea that they had perfected title by adverse possession, nor have they adduced any evidence in relation to their acquiring title by adverse possession. It is true that the defendants have not specifically set up adverse possession in their written statements nor have they adduced evidence on that question. It has, therefore, to be taken that the defendants have not shown to have perfected title by adverse possession. The further question, therefore, that has to be considered is whether it is necessary for the plaintiff to show possession within 12 years of suit in order to recover possession of the property from the defendants. The learned counsel for the first respondent-plaintiff submits that, whatever be the legal position under the Limitation Act, 1908, the new Act of 1963 has completely changed that legal position, and that even in respect of suit filed earlier to the present Act the plaintiff need to prove possession within 12 years of suit for recovery of possession, if he establishes title to the suit property. The learned counsel refers to the decision of Alagiriswami, J., in Konappa Mudaliar v. Munuswami, in support of his plea. In that case the Courts below had found title in the plaintiff but had held that he was not in possession with 12 years of suit. It was contended before the learned Judge that the question whether the plaintiff who has title and who sues for possession of the property to which he is entitled should, in order to succeed in his suit, also show possession within 12 years of suit no longer arises, in view of the provisions of Articles 64 and 65 of the Limitation Act, 1963, hereinafter referred to as the new Act and that as the Supreme Court has in its decision in Nair Service Society v. K. C. Alexandar, held that the present Articles 64 and 65 are merely declaratory, the appeal has to be decided on the basis of Article 64 and 65 of the new Act rather than on the basis of Art. 142 of the Limitation Act, 1908 hereinafter called the old Act. The learned Judge dealing with that contention expressed the view that even in respect of suits filed before the new Act came into force the provisions of that Act have to be given effect to where fresh steps like appeal, etc., have to be taken, and not the provisions of the old Act, subject, of course, to the provisions of Section 30 of the new Act. According to the learned Judge the effect of Art. 142 of the old Act as interpreted by a Full Bench of this Court in Official Receiver v. Govindaraju, AIR 1940 Mad 798 (FB) is that even where a person with a title files a suit for possession but fails to show possession within 12 years of suit, he has got to fail even though the person in possession might not have completed his title by adverse possession and it is this defect that has been cured by Arts. 64 and 64 of the new Act which have been interpreted by the Supreme Court in as declaratory and not remedial, and the effect therefore of the decision of the Supreme Court is that it should always be deemed to have been the law that when a person who has title sues for possession, he need not be in possession with 12 years of suit and that he is entitled to succeed unless the defendant is able to establish that he has prescribed title by adverse possession. This view of Alagiriswami, J. that even in respect of suits filed before the commencement of the new Act, Art. 142 of the old Act cannot be applied, has also been followed by Raghavan, J. in S. A. 1272 of 1967. Raghavan, J. on the facts of the case found that the plaintiff's vendor was in possession of the suit property within 12 years of suit but, however, referred to the above decision of Alagiriswami, J. and expressed the view, following that decision, that it is not incumbent upon the plaintiff to establish possession within 12 years of suit once he establishes title.

Relying on the above observation that the law as laid down by Arts. 64 and 65 of new Act is only declaratory and not remedial, Alagiriswami J., has expressed that Arts. 64 and 65 should be deemed to have been the law even before the commencement of the new Act and that where when a person who has got title sues for possession is entitled to succeed even without showing possession within 12 years of suit, unless defendants are able to establish that they have perfected title by adverse possession, and that Art. 142 of the old Act cannot be applied after the new Act came into force, even in respect of suits filed earlier. With respect, we are not able to accept the view of Alagiriswami, J. The decision of the Supreme Court above referred to does not, in our view, touch this aspect, and it observations that Arts. 64 and 65 of the new Act are declaratory of the existing law cannot be construed so as to take away the effect and operation of Art. 142 of the old Act. In fact we find that their Lordships of the Supreme Court have accepted as correct the following dictum laid down in Perry v. Clissold, 1907 AC 73:

13. Alagiriswami, J. in has opined that the decision of the Full Bench in AIR 1940 Mad 798 (FB) in holding that a plaintiff suing in ejectment is not entitled to succeed unless he shows in addition to title that he has been in possession of the suit property within 12 years of suit no longer applies, in view of the decision of the Supreme Court in . The said decision of the Full Bench is based on the earlier rulings of the Privy Council rendered in Mohima Chander Mozumdar v. Mohesh Chunder Neogi, (1889) ILR 16 Cal 473 (PC), Mohamad Amanulla Khan v. Badan Singh, (1890) ILR 17 Cal 137 (PC) and Dharani Kanta Lahiri v. Gabar Ali Khan, (1913) 25 Mad LJ 95 (PC) wherein the Privy Council had laid down the principle that a person seeking to recover possession of immovable property should not only prove that he had been dispossessed of the same within 12 years immediately preceding the suit, and that the onus is not upon the defendant to prove adverse possession for a period of 12 years. The view of the Full Bench was that even persons having title should show their possession at some point of time within 12 years of suit under Art. 142 of the old Act. Thus Art. 142 has been applied even to suits on title, where the plaintiff alleges prior possession and later dispossession by the defendant, and Art. 144 was treated only as a residuary Article. The question is whether the law laid down by the Full Bench and which was prevailing before the commencement of the new Act is incorrect in the context of the observation made by the Supreme Court in that Arts. 64 and 65 of the new Act are only declaratory of the existing law. In the case before the Supreme Court the plaintiff had filed a suit for possession and mesne profits in respect of certain Government poramboke lands, on the ground that he had been in possession of the same for about 70 years, and that the defendant had trespassed thereon on the basis of an alleged lease from the Government. It was contended by the defence that the plaintiff, a prior trespasser cannot maintain a suit against a latter trespasser who had the authority of the true owner either originally or subsequently, after the period of six months prescribed for establishing a possessory title under Section 9 of the Specific Relief Act. It was found on facts that the plaintiff was in possession of the lands from 1924, that he was disposed on October 16, 1939 and that the suit for possession had been filed on October 13, 1942. Hence the main controversy between the parties was whether the plaintiff could maintain a suit for possession without proof of title basing himself only on his prior possession and later dispossession by the defendant after the expiry of six months prescribed for suits under S. 9 of the Specific Relief Act. It was contended before the Supreme Court that Ss. 8 and 9 of the Specific Relief Act provided for two exclusive categories of suits, one based on title and another based on possession, that a possessory suit can only be filed within 6 months of dispossession as provided under S. 9 and that any suit filed for recovery of possession after six months can only be on title. In rejecting that contention the Supreme Court held that S. 8 does not provide for any specific category of suits, that it only refers to the procedure contemplated by the Civil Procedure Code, that a possessory suit can be maintained even after six months under Article 142 of the old Act, and that the plaintiff can maintain the suit based on his prior possession even though he had not filed a suit within 6 months of his dispossession under S. 9 of the Specific Relief Act. The Supreme Court expressed that the distinction between a suit on title and a possessory suit has been clearly brought out by Articles 64 and 65 of the new Act and that those Articles are merely declaratory. Their Lordships of the Supreme Court have not expressed the view that the law laid down by the Full Bench in AIR 1940 Mad 798 (FB) is no longer good and that Article 142 of the old Act cannot be applied to suits on title. In fact their Lordships had referred to the decision of the Privy Council in (1913) 25 Mad LJ 95 (PC) which had been followed by the Full Bench and they merely distinguished that case on another point without expressing any dissent from the view expressed by the Privy Council in that case that: