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.
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
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
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
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:-
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.
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
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
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
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
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.
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
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.
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.
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
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
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
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:-
"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
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
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.
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
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.
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
