HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 27.01.2015 Delivered on 03.07.2015 Court No. - 34 1. Case :- SECOND APPEAL No. - 1038 of 1996 Appellant :- Amar Chandra Respondent :- Smt. Kamla Devi And Anr. Counsel for Appellant :- Narendra Mohan Counsel for Respondent :- A.N. Bhargava, G T Tripathi, H.O.K.Srivastava, Rakesh Tiwari, Smt. Kamala Devi 2. Case :- SECOND APPEAL No. - 1130 of 1996 Appellant :- Smt. Vidyawati Respondent :- Smt. Kamla Devi And Anr. Counsel for Appellant :- A.N. Bhargava Counsel for Respondent :- Narendra Mohan, G.C. Tripathi, G.L. Tripathi, Smt. Kamla Devi Hon'ble Sudhir Agarwal,J.
1. Appeal No. 1038 of 1996 has been presented before the Court by Sri Amar Chandra (since deceased and substituted by his legal representatives), defendant no. 1 in original suit, while Appeal no. 1130 of 1996 has been filed by Smt. Vidyawati, defendant no. 2 in original suit. The appellants are aggrieved by judgment and decree dated 16.09.1996 passed by Smt. Sandhya Bhatt, XIIIth Additional District Judge, Kanpur Nagar in Civil Appeal No. 966 of 1988, whereby it has allowed appeal and set aside the judgment and decree dated 12.07.1988 passed by IVth Additional Civil Judge, Kanpur in Original Suit No. 344 of 1978, as a result whereof the suit has been decreed.
2. The Appeal No. 1038 of 1996 was admitted on 29.11.1996, I did not find from the order that this Court formulated any substantial question of law, though in the memo of appeal defendant-appellant had framed 10 substantial questions of law. However, learned counsel for the appellant pressed only two substantial questions of law, as under:
(A) Whether in the facts and circumstances of the case the suit for cancellation of sale deed was barred by time when it was filed after the limitation prescribed from the date of knowledge?
(B) Whether in the facts and circumstances of the case the Lower Appellate Court was correct in allowing the appeal even though there was enormous evidence that the knowledge in respect of sale deed received by appellant more than three years of limitation prescribed for cancellation of sale deed?
3. Second Appeal No. 1130 of 1996 was admitted on 18.12.1996 on the substantial questions of law formulated as 'A' and 'B' in the memo of appeal, which read as under:
(A) Whether the suit was barred on account of limitation and can the Lower Appellate Court decree the suit reversing the finding of Trial Court?
(B) Whether the suit is barred on account of estopple and acquiescence?
4. Learned counsel for both the parties have addressed this Court on the aforesaid questions.
5. Original Suit No. 1072 of 1974 (re-numbered as 344 of 1978), was instituted by Smt. Kamla Devi, daughter of Late Debi Dayal, in the Court of Munsif City, Kanpur impleading Sri Amar Chand son of Genda Lal and Smt. Vidyawati wife of Ram Chandra, as defendants no. 1 and 2, respectively, seeking a declaration that sale deed dated 25.09.1963, details whereof have been given in the plaint, be declared void and cancelled; and, the Sub-Registrar be required to record its cancellation under Section 31 of Specific Reliefs Act, 1963 (hereinafter referred to as the "Act, 1963"). It has further sought a decree of delivery of possession of property, detailed in the plaint as under:
"East : Adjoining Kharrail of Sri Saktoo Nai.
West: Adjoining house, Ram Dulari Gupta Bhawan of Bonde Halwai.
North: Boundary wall 42'-9" long with a door in between thereafter Nala lane and thereafter boundary wall of the back compound of Poonam Cinema.
South:Boundary wall having a door at the western end portion of 7'-4" and the rest of wall 61' thereafter common passage and the premises of Sri Ajudhi."
6. A third prayer was added by amendment seeking damages, pandente lite and future, for use and occupation of suit property by defendants, at the rate of Rs. 20/- per day.
7. The plaint case set up is that, the plaintiff is owner of Plot No. 252, Muzaffarpur, Kanpur, having area of 3 Biawas alongwith other lands of Muzaffarpur (Pardevanpur). The defendant no. 1 is a trespasser on the said land having fraudulently forced his entry thereon, on the back of plaintiff, after getting some construction on the part of land, raising boundary wall in the north and south, got municipal number as House No. 420-A (new No. 45). Originally the aforesaid plot No. 252 belong to Sri Debi Dayal, father of plaintiff, wherefrom it was inherited by his son Jeevan Lal, who left house sometimes at the end of 1949 being utterly disgusted with his wife. The ancestral property of Jeevan Lal and plaintiff consisted of plots of land in Muzaffarpur and Kamalpur including Plot No. 252, Muzaffarpur, residential house No. 106 and shop no. 85 etc. Jeevan Lal left to some unknown place leaving his real sister, i.e., plaintiff and mother. Smt. Ganga Devi wife of Jeevan Lal, re-married and from her second husband, Chunnilal, defendant no. 2, Vidyawati was born. She has no right over the property left by Jeevan Lal. The mother of plaintiff and plaintiff both remain in possession over the said property of Jeevan Lal. At the end of 1956, plaintiff's mother expired. Thereafter the plaintiff remain alone in possession of all the property including plot No. 252. One Debi Deen, maternal uncle of Smt. Vidyawati, her father, Chunnilal, Ganga Ram, her mother's sister's husband, and defendant no. 1 conspired together and set up defendant no. 2 as the daughter of Jeevan Lal, entitled to succeed his property and filed Original Suit No. 1480 of 1962 for getting possession of House No. 85, in which plaintiff was residing while other house No. 106 was rented out. The said conspirators also illegally got the name of defendant no. 2 mutated. During pendency of suit, Sri Debi Deen and defendant no. 1 secretly executed a sale deed dated 25.09.1963 without knowledge of plaintiff. The plaintiff filed Original Suit No. 72 of 1965 for permanent injunction against alienation of property including land No. 252, which was decided on 18.04.1971.
8. Original Suit No. 1480 of 1962 was decided by Additional Munsif First, Kanpur holding that Smt. Vidyawati was not the daughter of Jeevan Lal and plaintiff was rightful heir to succeed suit property. The judgment of Trial Court was appealed, whereupon Lower Appellate Court remanded matter. Again the Trial Court came to the same conclusion that Smt. Vidyawati was not the daughter of Jeevan Lal and plaintiff, Kamla Devi was the rightful heir. Appeal No. 50 of 1967 filed against aforesaid judgment and decree of Trial Court was also dismissed.
9. Thereafter, Smt. Vidyawati filed Original Suit No. 75 of 1968 in the Court of Civil Judge First, Kanpur claiming that entire plots and land, house and shops including plot No. 252, Muzaffarpur, are owned by her and she is entitled to have possession thereof. This suit was also dismissed. Debi Deen was never appointed guardian of Smt. Vidyawati and Ganga Ram though was appointed as guardian but removed from that status on 01.01.1966. Ganga Ram and Debi Deen both have died. It is at that stage the defendant no. 1 sought to take possession of plot No. 252, Muzaffarpur with physical force, unlawfully and fraudulently on the basis of sale deed executed by Debi Deen on 25.09.1963. Ganga Ram also sold away another plot No. 257. When plaintiff acquired knowledge, filed Original Suit No. 567 of 1967, which has been decreed and the sale deed has been cancelled.
10. The defendant no. 1, on the basis of his forced entry, proceeded to raise construction, whereupon the plaintiff gave registered notice on 13.04.1972 and 11.11.1972. The possession of defendant no. 1 is patently illegal and unauthorised. The sale deed is fictitious and void.
11. The plaint was presented in the Court of Munsif City, Kanpur on 05.09.1974 and vide Munsarim's report dated 25.09.1974 it was placed before the Court for admission. The Court then found that suit was wrongly filed in the Court of Munsif and was cognizable by the Court of Civil Judge, Kanpur. Consequently, on 29.04.1978 an order was passed for return of plaint and presentation in the appropriate Court, whereafter the plaint was actually returned on 09.05.1978. The plaint was again presented in the Court of Second Civil Judge, Kanpur, where it was initially registered as Suit No. 54 of 1978 and later renumbered as 344 of 1978.
12. Defendant no. 1 contested the suit by filing written statement dated 23.07.1979 stating that land in question was purchased by defendant no. 1 vide sale deed dated 25.09.1963, which was executed by Debi Deen as guardian of Smt. Vidyawati and deed was duly registered on 26.09.1963. After execution of sale deed, defendant took possession of land and raised construction of House No. 420-A. At no point of time plaintiff ever protested against aforesaid construction. The land in question formerly belong to Sri Debi Deen and after his death to his son, Jeevan Lal. The plaintiff was married to one Sri Ram Kumar but thereafter she stayed with another person Sri Mahabir, which gave a great mental shock to Jeevan Lal, who left his house but is still reported to be alive. The plaintiff or her mother never inherited disputed property. The defendant no. 2 is the daughter of Jeevan Lal and Ganga Devi. The mere fact that she (Ganga Devi) got re-married, would not deprive her right as the wife of Jeevan Lal. The plaintiff or her mother were never in possession of suit property. The allegations of conspiracy etc. are denied. The defendant no. 1 denied allegation of trespass. It is alleged that he was in defence service and used to be transferred from place to place, therefore, question of his disappearance from Kanpur Nagar does not arise.
13. In the additional pleas the plea of adverse possession was taken alleging that defendant has perfected his title to the land in suit by adverse, open and hostile possession. The suit is barred by limitation. The defendant no. 1 is a bona fide purchaser and is entitled for protection under Section 41 of Transfer of Property Act, 1882 (hereinafter referred to as the "Act, 1882").
14. The Trial Court formulated issues as under:
"1. Whether the suit is under valued and the court fee paid is insufficient?
2. Whether the plaintiff is the owner of the disputed land of Plot No. 252, Mujaffarpur, Kanpur?
3. Whether the sale deed dated 25.9.63 executed by the defendant no. 2 in favour of defendant no. 1 is null and void?
4. Whether the suit is bad for non-joinder of parties, if so, its effect?
5. Whether the defendant No. 1 is in forceful possession of the disputed plot, if so, its effect?
6. Whether the suit is barred by time?
7. Whether the suit is barred by the provisions of Specific Relief Act?
8. To what relief, the plaintiff is entitled?
9. D;k oknh fookfnr laifRr dk usdfu;r [kjhnnkj ceksvkotk gSA ;fn gka rks bldk izHkko\ "9. Whether the plaintiff is a bona fide buyer of the disputed property in lieu of conclusion? If so, its effect?"
10.D;k okn LVkfiy rFkk ,SdohlsUl ds fl)kUr ls ckf/kr gSA** "10. Whether the suit is barred by the doctrine of Estoppal and Acquiescence?"
11.Whether the defendant is entitled for protection of Section 41 of T.P. Act as alleged in para 22 of W.S.?
(English translation by the Court)
15. Issue no. 1 was answered in favour of plaintiff but issue 2 which was crucial for decision of suit was decided in negative, i.e., against plaintiff. Issue 3 was also answered in favour of defendant 1 and against plaintiff. While considering issue 4 the Court held that suit was not bad for non-joinder of any necessary or proper party since none could be shown. The issue 5 was answered in favour of defendant no. 1 and against plaintiff. Issues 7 and 9 were taken together and held that since plaintiff was not owner of property, sale deed dated 25.09.1963 was not illegal. Issues 10 and 11 were answered in affirmation. While considering issue 6, regarding limitation, it is said that suit was not barred by limitation as it would deem to have been filed in 1974 after having knowledge of sale deed on 30.04.1974. Issue 8 was answered against plaintiff and suit was dismissed.
16. The plaintiff preferred First Appeal No. 966 of 1988, wherein the Lower Appellate Court (hereinafter referred to as the "LAC") formulated following two points for determination:
(I) Whether defendant no. 2, Vidyawati was owner of plot No. 252, Muzaffarpur, Kanpur?
(II) Whether defendant no. 2 is entitled for protection under Section 41 of Act, 1882?
17. Before LAC Sri Amar Chand was defendant no. 2. Both these questions were answered in favour of plaintiff and consequently the suit was decreed vide judgment and decree dated 16.09.1996.
18. Learned counsel for the parties agreed that out of four substantial questions of law, three in substance deal with the question of limitation. The substantial questions in Second Appeal No. 1038 of 1996 and question No. '(I)' in Second Appeal No. 1130 of 1996, relates to limitation.
19. The question of limitation has to be considered in the context of the prayer made in the suit. The first prayer is for delivery of possession of suit property to plaintiff from defendant. The second prayer is for declaration of sale deed as void and to cancel the same. The third relief is for damages, pendente lite and future expenses etc.
20. The facts stated in the plaint makes it clear that possession of suit property was requested on the basis of title to the suit property and not on the basis of previous possession. The limitation prescribed in Article 65 of the Limitation Act, 1963 (hereinafter referred to as the "Act, 1963"), therefore, would apply, which is 12 years from the date "when possession of defendant becomes adverse to plaintiff". Though the Court is clearly of the view that it is Article 65 which is applicable in the case but I find no hesitation in considering, whether the suit was within limitation or not by looking to Article 64 of Act, 1963 also, where limitation prescribed is 12 years "from the date of dispossession".
21. The distinction between Article 64 and 65 is, when right to possession as an incident of title is claimed by an owner, usufructuary, mortgagee etc., it will be Article 65 which will apply but if possession is claimed not on the basis of title but previous possession, it is Article 64 which will be applicable. In Nair Service Society Ltd vs Rev. Father K. C. Alexander & Ors, AIR 1968 SC 1165 the Court said that, Article 64 contemplates suit by persons based wholly and solely on the strength of previous possession of plaintiff and is independent of position of plaintiff as owner, mortgagee, lessee etc. In suits based on possession the plaintiff's legal status is irrelevant. Such suit can be filed by owners-mortgagees not qua owners or mortgagees and also by trespassers. On the contrary, if plaintiff wants to assert and vindicate his right to possession qua owner, mortgagee, lessee etc. he must prove his title as such and his suit would fall under Article 65. In a suit governed by Article 64 if the defendant can prove a better title, the suit will fail but otherwise it may be decreed. In other words, a person having trespasser title over property for which he has only to prove his previous possession and dispossession, it would be governed by Article 64.
22. In Qadir Bux vs Ramchand And Ors., AIR 1970 All 289 this Court said that a suit for possession under Act, 1963 has to be governed either by Article 64 or 65. No such suit can be governed by both Articles. Suits which are governed by Article 65 are based purely on plaintiff's title.
23. In order to attract Article 65 if a person has got possession even if under a void sale his possession would be adverse to the real owner and by possessing for more than 12 years he acquires title by adverse possession. Any action against him by real owner has to be filed within 12 years of such possession otherwise suit for possession would be barred by limitation.
24. In respect of second relief the period of limitation prescribed under Article 58 would be attracted, which reads as under:
Description of suit Period of limitation Time from which period beings to run
58. To obtain any other declaration Three years When the right to suit first accrues.
25. The sale deed in question sought to be cancelled is dated 25.09.1963. The case set up by defendant, Amar Chand was that construction was started immediately after execution of sale deed in 1963. The plaintiff, however, pleaded knowledge in 1971 only.
26. In para 10 of the plaint, it was stated that defendant no. 1 secretly executed sale deed dated 25.09.1963 and got it registered without knowledge of plaintiff. It remained secret for the reason that defendants no. 1 or 2 never tried to take possession of Plot No. 252, Muzaffarpur till 1971 or even when plaintiff filed Original Suit No. 72 of 1965 decided on 18.04.1971, for permanent injunction against alienation and therein also defendants never disclosed that land in suit was actually sold away by him and hence there was no question of granting injunction.
27. Defendant no. 1 in para 2 of the written statement said that the sale deed was executed on 25.09.1963 and registered on 26.09.1963. After purchase of plot in question, defendant took possession thereof and raised construction thereon. The said premises was renumbered as House No. 420-A. The cost incurred by him in construction was not less than 25,000/-. Plaintiff never protested at that time and, therefore, suit is barred by the provisions of acquiescence and estopple.
28. The Trial Court while considering issue 10, has clearly accepted this fact that defendant's contention that he raised construction in 1963, immediately after execution of sale deed, was correct; and construction was in due notice of plaintiff. The same finding has come up while deciding issue no. 5 also where the Trial Court has said as under:
^^bl izdkj lk{; ls ;g fl) gS fd fookfnr laifRr ij cSukek fy[kkus ds i'pkr o"kZ 1963 esa izfroknh la01 dkfct gqvkA oknuh dk ;g dFku Lohdkj fd;s tkus ;ksX; ugha gS fd izfroknh la0 1 us fookfnr laifRr ij tcjnLrh dCtk dj fy;k gSA** "Thus, it is proved on the strength of evidence that defendant no. 1 took possession over the disputed property in 1963 after getting the sale-deed executed? The statement of the lady plaintiff that defendant no. 1 has forcibly taken possession over the disputed property, does not deserve to be accepted?"
(English translation by the Court)
29. The LAC in the impugned judgment has observed as under:
"According to Amarchand the constructions were made in 1963 immediately after the execution of sale deed in his favour. The pleading and the evidence of the plaintiff shows that the plaintiff acquired the knowledge of the impugned sale deed in the year 1971 and on the basis of these findings the suit was held to be within time by the court below."
30. I find no basis for aforesaid finding of LAC for the purpose of considering limitation inasmuch as when knowledge was acquired by plaintiff regarding execution of sale deed that is not the commencement of limitation either under Article 58, 64 of 65. The plaintiff's case that no effort was made by defendant no. 1 to take possession of disputed property for more than 8 years was not found correct. On the contrary, Trial Court has recorded a specific finding, while discussing different issues, that construction was raised by defendant no. 1 in 1963 itself after execution of sale deed. It has accepted this plea taken by defendant no. 1 as proved and otherwise version taken by plaintiff as incorrect. The LAC has not shown anything to reverse this finding. That being so, the very basic plea that knowledge was acquired by plaintiff in 1971 failed being self contradictory and unsubstantiated.
31. In fact the question of limitation has been considered by both the courts below in quite casual manner.
32. For the purpose of a declaration, limitation commenced from the date of cause of action. Similarly, for the purpose of restoration of possession, limitation would commence from the date one is dispossessed or the defendant's possession become adverse. In the present case findings of Trial Court which have not been reversed by LAC that construction commenced by defendant no. 1 in 1963. This belied otherwise stand taken by plaintiff and, therefore, for the purpose of commencement of limitation, the cause of action would arise in 1963 itself. The sale deed was executed in 1963. Defendant got possession of disputed property in 1963 and raised construction. The factum of raising construction and its knowledge to plaintiff has been found proved by Trial Court. This finding has not been shown incorrect/ contrary to record by LAC. The cause of action to the plaintiff, therefore, for declaration of any kind to plaintiff accrues in 1963 and if limitation under Article 58 is attracted the suit in 1974 was obviously barred by limitation. Once the suit for declaration becomes barred by limitation, it takes away right of plaintiff to claim possession on the basis of title and, therefore, Article 65 would also become inapplicable.
33. In order to attract Article 64 the plaintiff was bound to plead its previous possession. However, this fact has not been pleaded anywhere in the plaint. It is not the case of plaintiff that he was in possession of disputed property at any point of time and was dispossessed. In fact no specific pleading with regard to date of actual dispossession of plaintiff has been given in the entire plaint though for the purpose of considering question of limitation this was an important fact. In a very vague manner it is said that till 1971 defendant has not done anything but this fact has neither been specified nor proved by plaintiff. The LAC has not considered the matter in this respect at all and in a casual fashion has dealt with question of limitation.
34. With respect to execution of document, the plaintiff said that when in 1971 defendant no. 1 attempted to raise construction, she sent notice and made inquiry then came to know about execution of sale deed. When the plaintiff failed to prove commencement of construction in 1971 and attempt of defendant to take possession in 1971, the subsequent fact also becomes uncreditworthy. Possession of defendant goes back to 1963 when sale deed was executed and defendant had also raised construction. This is a fact stand proved as per finding of Trial Court. In absence of anything otherwise it would be justified to draw inference that plaintiff acquired knowledge in 1963 when defendant no. 1 raised construction over disputed land but did not raise any objection. However, the period of 12 years will not commence from 1963 but even earlier for the reason that in 1963 also the plaintiff was never in possession and also that is not his case. Therefore, the plaintiff being out of possession since ling or atleast nothing has been pleaded as to since when he was in possession, it is clear that period of limitation with respect to dispossession has expired long back and, therefore, suit was apparently barred by limitation. The finding regarding construction raised in 1963 has been given by Trial Court and not reversed by LAC. In fact the courts below have misdirected themselves that for the purpose of limitation they have assumed as if limitation was to be seen, whether suit was barred by limitation in 1974 or when it was renumbered in 1978 or whether Section 14 of Limitation Act was attracted in the case in hand. In fact, if suit filed in 1974 was within limitation, the mere fact that plaint was returned and suit was presented again and renumbered in 1978 would make no difference as it would be deemed to be within limitation. But the moot question is, whether it was within limitation in 1974 or not.
35. I have no hesitation in holding, when construction was made by defendant no. 1 in 1963 itself and this finding given by Trial Court is not reversed by LAC, the limitation would commence from 1963 for Article 1958, and that being so, suit for declaration is barred by limitation in 1974. So far as delivery of possession is concerned, since no period of possession within 12 years before the date of filing of suit has been pleaded or proved by plaintiff, for this purpose also suit is clearly barred by limitation. Therefore, both questions in Second Appeal No. 1038 of 1996 and question No. '(I)' in Second Appeal No. 1130 of 1996, are answered in favour of appellant and it is held that suit itself was barred by time and the judgment and decree of Lower Appellate Court cannot sustain.
36. Now coming to substantial question no. (II) in Second Appeal No. 1130 of 1996. Once this finding attain finality that construction commenced in 1963 and there was no otherwise finding given by Lower Appellate Court, for the purpose of removal of construction and restoration of possession also, the suit was barred not only by principle of estopple and acquiescence but limitation also. This question, therefore, is also answered in favour of appellant.
37. In the result, both appeals are allowed. The judgment and decree dated 16.09.1996 passed by Lower Appellate Court, is hereby set aside and the Original Suit No. 344 of 1978 stands dismissed.
38. No costs.
Order Date :-03.07.2015 AK