CIVIL APPELLATE JURISDICTION v. Sou Jaibunissa & Ors.

trial Court in Regular Civil Suit No.216 of 1991 came to be set aside and the said Suit came to be dismissed. 2 The Appellants herein are the original Plaintiff Nos.1 to 3, the Respondent No.1 herein is the Original Defendant No.1, the Respondent No.2 herein is the original Plaintiff No.4, and the Respondent Nos. 3 to 5 herein are the original Defendant Nos. 2 to 4. The Plaintiffs and the Defendant Nos. 2 to 4 are the heirs of one Gulab Bandu Kalwat. The suit property is the land 2 sa-630.10.sxw bearing Gat No.205 situated at village Kadegaon, Tal. Khanapur, Dist.Sangli. It appears that in the year 1974, the said Gulab was in need of money and therefore he approached the husband of the Defendant No.1 who accordingly paid him Rs.1000/-, in token thereof the said Gulab executed an Agreement to Sale of the suit property on 10/4/1974 for the security of Rs.1000/- in favour of the husband of the Defendant No.1. The possession of the said land was not handed over to the Defendant No.1. It is alleged that the husband of the Defendant No.1 was serving as a Talathi, and therefore, he got the said agreement executed from the said Gulab. It is alleged that on the basis of the said Agreement to Sale, the Defendant No.1 mutated her name in the record of rights in the year 1974-75 and started causing obstruction to the peaceful possession of the said Gulab over the suit property. This gave rise to the said Gulab filing Regular Civil Suit No.179 of 1975 against the husband of Defendant No.1. It appears that the husband of the Defendant No.1 died in the year 1979 and since the heirs were not brought on record the said suit as such abated in the year 1980. It is required to be noted that the husband of the Defendant No.1 did not file any suit for specific performance of the said agreement dated 10/4/1974 against the said Gulab or the Plaintiffs, and as a consequence of the dismissal of the said suit filed by the said Gulab, the Defendant No.1 is in possession of the suit land. The Plaintiffs therefore filed the instant Suit being Regular Civil Suit No.216 of 1991 for possession of the suit property based on title. 3 sa-630.10.sxw 3 The defence taken by the Defendant No.1 was of adverse possession and a plea was also taken that the suit as filed was beyond limitation. The Defendant No.1 also claimed protection of her possession on the basis of Section 53A of the Transfer of Property Act. In so far as aspect of limitation is concerned, it was the case of the Defendant No.1 that it has not been stated by the Plaintiffs as to when the Defendant No.1 came in possession and when the Plaintiffs lost their possession. 4 The parties went to trial and on the basis of the evidence on record, the trial Court rejected the case of the Defendant No.1 of adverse possession as the trial Court was of the view that the same could not co-exist with the case of the Defendant No.1 that he had acquired right in the property by virtue of Agreement to Sale dated 10/4/1974. The trial Court was also of the view that the Defendant No.1 was also not entitled to protection of her right under Section 53A of the Transfer of Property Act. The trial Court in respect of the said aspect also held that since the Defendant No.1 has claimed adverse possession against the heirs of the said deceased Gulab, she is not entitled to take the benefits of the Agreement to Sale dated 10/4/1974. In so far as issue of limitation is concerned, the trial Court held that since the Plaintiffs have filed the said suit on the basis of title, Article 65 would be applicable and resultantly held that the suit as filed was within limitation. The trial Court therefore by Judgment and Order dated 28/4/1997 decreed the suit and directed the Defendant No.1 to hand over the possession of the suit property being Gat No.205 admeasuring 0-46 Hectors and ordered an enquiry 4 sa-630.10.sxw into the mense profits. 5 Aggrieved by the decreeing of the suit by the trial Court, the Defendants filed Regular Civil Appeal No.268 of 1997. The Lower Appellate Court confirmed the finding of the trial Court in so far as aspect of adverse possession and protection sought under Section 53A of the Transfer of Property Act is concerned. However, so far as issue of limitation is concerned, the Lower Appellate Court held that in view of the fact that the Plaintiffs are claiming the possession admittedly on the ground that they were in possession prior to 1/4/1974, held that Article 64 and not Article 65 of the Limitation Act would be applicable. The Lower Appellate Court was of the view that Article 65 of the Limitation Act is a residuary Article covering the cases where the suits are filed on the basis of title. The Lower Appellate Court held that in the instant case, admittedly, the Plaintiffs have claimed to be in possession prior to the Agreement to Sale dated 10/4/1974 and which possession was discontinued after the said date, and therefore, Article 64 would be attracted. The Lower Appellate Court was of the view that once that be so the period of 12 years would have to be reckoned from 10/4/1974 i.e. the date of the Agreement to Sale, and therefore the suit had to be filed in the year 1986, and the suit filed in the year 1991 was beyond the period of limitation as prescribed by Article 64 of the Limitation Act. The Lower Appellate Court therefore held that the finding of the trial Court that suit was within limitation was erroneous as the 5 sa-630.10.sxw trial Court has wrongly applied Article 65. The Lower Appellate Court therefore by the impugned Judgment and Order dated 28/11/2005 has allowed the Appeal and dismissed the suit of the Plaintiffs. 6 The learned counsel appearing for the Appellants Shri Kulkarni sought to rely upon the judgment of the Apex Court reported in (2007) 11 SCC 285 in the matter of Bhag Mal alias Ram Bux and ors v/s Munshi (Dead) by LRs and ors. The issue before the Apex Court in the said case was as to when the abatement attains finality. This was on the touch stone of Order XXII Rules 3 and 9 of the Code of Civil Procedure. The Apex Court held that on failure to make an application for making LRs of the deceased a party and for setting aside the abatement, order of abatement of the suit/appeal becomes a final order even though the same may not amount to a decision on merits. In my view, the said Judgment would have no application in the fact situation of the present case where no such issue arises, and the issue is as to when the cause of action for filing the suit arises which in the instant case is in the year 1974 when the Defendant No.1 was put in possession. 7 The learned counsel appearing for the Appellants Shri Kulkanri also relied upon the Judgment of the Apex Court reported in (1996) 1 SCC 639 in the matter of Mohan Lal (Deceased) Through His LRs Kachur and ors v/s. Mirza Abdul Gaffar and anr. The said case concerns Section 53A of the Transfer of Property Act. The Apex Court has held that plea based on Section 6 sa-630.10.sxw 53A is available only by way of defence, and unless there are specific pleadings that the party is ready and willing to perform his part of the contract by paying the remaining consideration, he is not entitled to retain possession of the land under Section 53A of the Transfer of Property Act. In the fact situation of the present case, the said Judgment has no application, as both the Courts below have held that the benefit of Section 53A cannot be given to the Defendant No.

1. 8 The next Judgment relied upon by the learned counsel for the Appellants is the Judgment of the Apex Court reported in (2009) 16 SCC 517 in the matter of Hemaji Waghaji Jat v/s. Bhikahabi Khengarbhai Harijan and ors. The said judgment concerns Articles 64 and 65 of the Limitation Act, and sets out the requirements to sustain a plea of adverse possession. In my view, the said judgment would also have no application as in the instant case the plea of adverse possession taken up by the Defendant No.1 has been rejected by both the trial Court as well as the Lower Appellate Court. 9 On the other hand, the learned counsel appearing for the Respondent No.1 Shri Shekhar Jagtap relied upon the Judgment of the Apex Court reported in 2004 CLR (Vol.2) 441 in the matter of Ramiah v/s. N Narayana Reddy, which Judgment is an exposition on the requirements of Article 64 of the Limitation Act. It has been held by the Apex Court in the said Judgment that Article 64 of the Limitation Act is restricted to suits for 7 sa-630.10.sxw possession on dispossession or discontinuance of possession. It has been held by the Apex Court that in order to bring a suit within the purview of that Article, it must be shown that the suit is in terms as well as in substance based on the allegation of the Plaintiff having been in possession and having subsequently lost the possession either by dispossession or by discontinuance. Article 65 of the Limitation Act, 1963 on the other hand is a residuary Article applying to suits for possession not otherwise provided for. Suits based on plaintiffs’ title in which there is no allegation of prior possession and subsequent dispossession alone can fall within Article 65. In my view, the said Judgment which has been relied upon by the Courts below would apply on all fours to the instant case. 10 Having heard the learned counsel for the parties and having perused the impugned Judgment and order passed by the Courts below, in my view, no substantial question of law arises for consideration of this Court. The above Second Appeal is accordingly dismissed. 11 In view of the dismissal of the above Second Appeal, Civil Application No.959 of 2008 does not survive and the same to accordingly to