R.C. Lahoti, J.
The defendant/appellants have come up in appeal agrrieved by the judgment and decree of the lower appellate Court directing a suit for declaration of title and recovery of possession over certain agricultural lands to be decreed in reversal of the decree of the trial Court which had dismissed the suit.
Vide order dated 27-3-78, this Court admitted the appeal for hearing parties on the following substantial questions of law :--
(a) Is the plea of adverse possession the only defence permissible in law and available to defendant in a suit for declaration of title and possession ?
(b) Will Article 65 of the Limitation Act govern a lis in which the plaintiffs suit for declaration of their title and for possession, if the plaintiffs are found to be not in possession of the land and the suit is resisted by the defendants on the ground of antecedent acquisition of title independent of and without reference to the plaintiffs or their predecessors-in-title ?
It cannot be disputed at the stage of second appeal that the plaintiff/respondents are the purchasers of the suit property under registered deeds of sale from the recorded Bhumiswamis of the land and hence they are the Bhumiswamis The land is alleged to have been encroached upon by the defendant/appellants. Though, the defendant/appellants had disputed the title of the plaintiffs in their written statement but the only plea which now deserves consideration is : if the plaintiffs and their predecessors-in interest had never been in ossession of the property would their suit be barred by time ?
The defendants plea on point of limitation prevailed with the trial Court which held the suit barred by time and hence dismissed the same. The lower appellate Court has reversed that finding holding that once the title of the plaintiffs was proved their right to recover possession could not be lost except on plea taken and proved by the defendants that they had successfully prescribed hostile title resulting in extinction of the title of the plaintiffs. This is apart from the fact that the lower appellate Court has on indepedent evaluation of evidence arrived at a finding that the plea of the defendants that the plaintiffs had not been in possession of the suit property within 12 years of the suit was meritless.
The suit was filed on 29-1-1973. It is a suit for possession of property based on proprietary title and not merely possessory title. It would, therefore, be governed by Article 63 of the Limitation Act, 1963 which came into force on 1-1-1964.
Articles 64 and 65 of the new Act have stolen a march over their predecessor Articles 142 and 144 of the Limitation Act, 1908 by postulating and providing for something which was much needed. The Statement of Objectives and Reasons speaks :--
Articles 142 and 144 of the existing Act have given rise to a good deal of confusion with respect to suits for possession by owners of property. Article 64 as proposed replaces Art. 142, but is restricted to suits based on possessory title so that an owner of property does not lose his right to the property unless the defendant in possession is able to prove adverse possession.
In Ram Narain & another v. Narbada Prasad 1972 JLJ SN 138 (Shivdayal, J. as his Lordship then was) observed :--
There is no Article in the present Limitation Act corresponding to Article 142 of the 1908 Act Article 64 of the present Act applies only to suits which are based on title. The Legislature, in its wisdom scraped out all complications which used to arise under Article 142 of the Limitation Act, 1908. The law is not quite clear and simple. Under the old Act of 1908, Article 142 applied to all cases of dispossession or discontinuance of possession, including those in which the person dispossessed was owner of the property, while Article 144 was a residuary Article, which applied when Article 142 did not apply In other words, even the owner had to bring a suit for possession of immovable property within the period of 12 years from the date of his possession or discontinuance of possession and it was immaterial whether the defendant or his predecessor-in-interest was in possession during this period. But now such suits have been excluded from the purview of Article 64 inasmuch as that Article applies only to suits based on previous possession and not on title, that is to say, it applies only to suits based on possessory title and not on proprietary title.
In the present case, the plaintiff had based his suit on proprietary title and not on the basis of previous possession. Article 64 was, therefore, wholly irrelevant and it was Article 65 which applied to the present case.
In Mst. Leela Bai v. Jamna Prasad 1971 MPLJ SN 127. P. K. Tare J. (as his Lordship then was) observed :
Where a suit be for possession on an allegation of dispossession, it was Article 142 of Schedule I of the Indian Limitation Act, 1908, that was applicable under the old Act. Article 144 would govern cases of adverse possession only.
It is Article 65 of the Limitation Act, 1963, that is applicable to the present case. If this Article applies, then clearly the suit of the appellant was within time as the respondent failed to plead much less to prove any adverse possession. The distinction between the present Article 65 and Article 64 of the Limitation Act, 1963, is that any suit based on title is governed by Article 64. As such, these two Articles slightly differ from Articles 142 and 144 of the Indian Limitation Act, 1908.
W. W. Chitaley and V. B. Bakhale in their celebrated commentary on the Limitation Act (1976 Edn. Volume II, at page 157) have consisely summed up the change in law in the following terms :--
There was a difference of opinion as to whether Art. 142 of the Limitation Act of 1908 was confined to suits for possession on the ground of possessory title, or whether it was applicable to all cases of dispossession, whether the plaintiff was suing merely on his possessory title or on his proprietary title also. The general trend of opinion was that the article would apply to all cases of dispossession, whether the plaintiff sued on his proprietary or on his possessory title (5). The contrary view was, however, taken in some decisions (6) that the article was confined to suit on possessory title and could not apply to suits based on proprietary title, even though it was a case of dispossession. Article 64 of the present Act now specifically provides for suits for possession of immovable property based on previous possession and not on title when the plaintiff while in possession has been dispossessed. Thus the articlte is restricted to suits based on possessory title as opposed to suits based on proprietary title. Article 65 applies to suits for possession based on titlle even though the plaintiff while in possession was dispossessed. In such cases, therefore, the mere lapse of a period of 12 years from the date of dispossession will not make the suit time-barred unless the defendant can prove that he has been in adverse possession continuously for a period 12 years before the suit.
A learned single Judge of Allahabed High Court in
The suit was on the basis of title and was governed by Art. 65 of the Limitation Act, 1963. The plaintiff could not be nonsuited if she failed to prove her possession over the property in dispute within 12 years of the date of the institution of the suit. According to the finding recorded by the two Courts below, the plaintiff had succeeded in proving her title. She could be denied the relief of possession only if the defendant succeeded in showing that he was in adverse possession of the property in dispute for more than 12 years.
It is, thus, clear that a suit for possession of immovable property or in the interest therein being based on title and not merely possessory title is governed by Article 65 of the new Limitation Act. Once the title of the plaintiff is proved, a suit cannot be defeated unless and until the defendant has pleaded and proved acquisition of title in him by adverse possession. A mere failure on the part of the plaintiff in alleging and proving his possession over the suit property at any time within the period of 12 years calculated back from the date of the suit would be immaterial and irrelevant.
In the case at hand, the defendant/appellants have no where in their written statement taken the plea of adverse possession. The plea not taken cannot be taken to be proved also
For the foregoing reasons no fault can be found with the judgment and decree of the lover appellate Court. The appeal is held to be devoid of any merit and liable to be dismissed. It is dismissed accordingly. Judgment and decree of the lower appellate Court are affirmed, though without any order as to the costs before this Court. Counsel''s fee Rs. 150/- if, certified.
