# RAJ RANI & ANR v. KAILASH CHAND & ANR

- **Citation:** [1977] 3 S.C.R. 18
- **Court:** Supreme Court of India
- **Decided:** 1977-02-17
- **Bench:** M. H. Beg, P. S. KA:lASAM
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/raj-rani-anr-v-kailash-chand-anr-7182
- **Pages:** 8

## Headnote

Burden of Proof under Art. 142 of the Lin1itatio11 .. 1ct, 1908-A pluintif]
adniilting dispossession in suits based on title, had to prove that Ile was in
actual or constructive possession lVithin twelve )'enrs.
The suit property of one Kalyan Chand in the joint possession of Shital
Prasad (son 1/3), Bansidar (great grandson 1/3) and Shco Shankar SangamJal and Kripa Shankar (1!9+1!9+119 grandson')) \Vas mortgaged bv Shco
Shanker, Sangamlal and Bansidhar acting on theit own behalf and allegedly
on behalf of Krioa Shankar (who was a minor then).
Shital Prasad was not
a party to the mortgage.
When the whole house ·was sold in Court auction
on 3-10-1937, in realisation of the mortgage money decreed, one Bhagwandas
father of Kail ash Chand (Respondent No. 1) purchr:sed the said house and
took symbolical possession on 12.9.1938.
The residential portioQ of
the
house was in occupation of Knipa Shankar (Appellant's husband) and Devita
Rani w/o Shital Prasad Who established her right to 1/3 share by a decree
obtained on 22-1-1941.
Another suit filed by Bhagwandas for a declaration
and possession over 2/3 share for ejecting Krip:i. Shankar w-as decreed on
27-8-1945, and, again symbolical possession \Vas obt::iined on 21-11-46 'lJndcr
0.21 r.96 C.P.C. Kripa Shankar died in 1953 leaving behind the appellants
Raj Rani (wife) and Kali Charan (son). Respcndent No. 1 son of
the
auction purchaser Bhagwan Das filed a suit
No.
475/1959
on or
about
10-8-1959 for partition and possession over 2/3 share- of the portion in addition
to certain claims of rents illegally collected and the amount of tax unpaid by
the appellants.
The plaint allegations were : (i) The auction-purchaser has
been in possession over 2/3 part of the house \Vith Devika Rani who had. 1/3
share in the house; (ii) The defendants- had no concern \Vith 2/3 sha:re in
the said house themselves or through any other person V.'erc not in possession
or in occupation of any part of the above said hOuse at any time as ov..-ners:
(iii) The plaintiff was being obstructed in looking after the house and
r~alis
ing rents and that the defendant had misled so1ne tenants and rea1iseci the
rents due to him.
The· appellant defendants took the plea (i) the morrtgage
was not valid as the amount was not borrowed for Jegal necessity; (ii) :Even
if the house "had been sold in execution of the mortgage, they have been openly
denying the ri,ghts of the plaintiff and had been in adverse possession and
occupation of the property for more than 12 years so that, even if the plaintiff or his predecessors had any right, it had been extinguished by the operation of law limitation.
The Trial Court decreed the suit and the first appellate court confirn1ed it.
The second appeal filed in the High Court '-V~3 also
dismissed.
Allowing the appeal by special leave, the Court,
HELD:
-G
( 1) The High Court in _a second appeal and the Subordinc1te courts failed
to determine the crucial question of actual or eYen constructive possession
of the plaintiff within twelve years and give a find1:ng to that effect. [24EJ
(2) The plaintiff had to prove that he was in actual or constructive possession within twelve years. It would be enough if he establishes that he \\'as
in constructive possession within twelve years by receipts of rent or otherwise.
[25F)
(3) A decision on the question whether Art. 142 Lin1itation Act applies to
a case, really deoends upon an interpretation of the
pleadings. In
cases
governed by the former Limitation Act, at any rate, a plaintiff admitting dispossession in suits based on title, had to prove that he \Vas in actual or constructive possession within twelve years. [25C-E]
'
RAJ RANI
V. KAILASH CHAND (Beg, C.J.)
19
( 4) The allegations in the plaint amount to an allegation that by ~ss~1t
ing their ownership and inducing the tena?ts. not to pay rents to the pla1!1tdfs,
the defendants had dispossessed the plaintiff.
In such a case. even if
a
defendant in actual possession could be deemed to be initiallY.

## Text

18
RAJ RANI & ANR.
v.
KAILASH CHAND & ANR.
February 17, 1977
(M. H. BEG, C. J. AND P. S. KA:lASAM, J.J
Burden of Proof under Art. 142 of the Lin1itatio11 .. 1ct, 1908-A pluintif]
adniilting dispossession in suits based on title, had to prove that Ile was in
actual or constructive possession lVithin twelve )'enrs.
The suit property of one Kalyan Chand in the joint possession of Shital
Prasad (son 1/3), Bansidar (great grandson 1/3) and Shco Shankar SangamJal and Kripa Shankar (1!9+1!9+119 grandson')) \Vas mortgaged bv Shco
Shanker, Sangamlal and Bansidhar acting on theit own behalf and allegedly
on behalf of Krioa Shankar (who was a minor then).
Shital Prasad was not
a party to the mortgage.
When the whole house ·was sold in Court auction
on 3-10-1937, in realisation of the mortgage money decreed, one Bhagwandas
father of Kail ash Chand (Respondent No. 1) purchr:sed the said house and
took symbolical possession on 12.9.1938.
The residential portioQ of
the
house was in occupation of Knipa Shankar (Appellant's husband) and Devita
Rani w/o Shital Prasad Who established her right to 1/3 share by a decree
obtained on 22-1-1941.
Another suit filed by Bhagwandas for a declaration
and possession over 2/3 share for ejecting Krip:i. Shankar w-as decreed on
27-8-1945, and, again symbolical possession \Vas obt::iined on 21-11-46 'lJndcr
0.21 r.96 C.P.C. Kripa Shankar died in 1953 leaving behind the appellants
Raj Rani (wife) and Kali Charan (son). Respcndent No. 1 son of
the
auction purchaser Bhagwan Das filed a suit
No.
475/1959
on or
about
10-8-1959 for partition and possession over 2/3 share- of the portion in addition
to certain claims of rents illegally collected and the amount of tax unpaid by
the appellants.
The plaint allegations were : (i) The auction-purchaser has
been in possession over 2/3 part of the house \Vith Devika Rani who had. 1/3
share in the house; (ii) The defendants- had no concern \Vith 2/3 sha:re in
the said house themselves or through any other person V.'erc not in possession
or in occupation of any part of the above said hOuse at any time as ov..-ners:
(iii) The plaintiff was being obstructed in looking after the house and
r~alis
ing rents and that the defendant had misled so1ne tenants and rea1iseci the
rents due to him.
The· appellant defendants took the plea (i) the morrtgage
was not valid as the amount was not borrowed for Jegal necessity; (ii) :Even
if the house "had been sold in execution of the mortgage, they have been openly
denying the ri,ghts of the plaintiff and had been in adverse possession and
occupation of the property for more than 12 years so that, even if the plaintiff or his predecessors had any right, it had been extinguished by the operation of law limitation.
The Trial Court decreed the suit and the first appellate court confirn1ed it.
The second appeal filed in the High Court '-V~3 also
dismissed.
Allowing the appeal by special leave, the Court,
HELD:
-G
( 1) The High Court in _a second appeal and the Subordinc1te courts failed
to determine the crucial question of actual or eYen constructive possession
of the plaintiff within twelve years and give a find1:ng to that effect. [24EJ
(2) The plaintiff had to prove that he was in actual or constructive possession within twelve years. It would be enough if he establishes that he \\'as
in constructive possession within twelve years by receipts of rent or otherwise.
[25F)
(3) A decision on the question whether Art. 142 Lin1itation Act applies to
a case, really deoends upon an interpretation of the
pleadings. In
cases
governed by the former Limitation Act, at any rate, a plaintiff admitting dispossession in suits based on title, had to prove that he \Vas in actual or constructive possession within twelve years. [25C-E]
'
RAJ RANI
V. KAILASH CHAND (Beg, C.J.)
19
( 4) The allegations in the plaint amount to an allegation that by ~ss~1t
ing their ownership and inducing the tena?ts. not to pay rents to the pla1!1tdfs,
the defendants had dispossessed the plaintiff.
In such a case. even if
a
defendant in actual possession could be deemed to be initiallY. a co-sharer,
the plaintiff wou)d be really assef!ing that the .co-sh~rcr had ~tspossessed or
ousted him.
Hence an ouster having been admitted in the plaint the burden
would lie upon the plaintiff of proving his case. t~at .the ouster h~d taken place
\Vithin twelve years as Art. 142 <;if the old Ln~lltat10!1 Act applied t? such a
case. In the instant case, even if the symboltc dehvery of posses.ston to a
co-sharer could be said to have interrupted any adverse possession,
that
interruption toOk place beyond twelve years [23B-C1
Bindilyachal Chand & Ors. v. Ram Gharib Chand & Ors. AIR 1934 All.
993, referred to.
Manikyala Rao v. f\Tarasimhaswanii AIR 1966 SC 470, distinguished.
Appeal allo\ved a~d case r~mand~d. to first ~ppellat~ ~ou~t to determine
\vhether plaintiff was in possession w1th1n the penod of hm1tat1on.
OVIL APPELLATE JURISDICTION : Civil Appeal No. 1984 of 1968.
(Appeal by Special Leave from
Judgment and Decree
dated
4.12.1967 of the Allahabad High Court in Second Appeal No. 3224
of 1963)
s. C. Manchanda, M. L. Chitravanshi and M. V. Goswami, for
the appellants.
J. P. Goyal, V. C. Prashar and Shreepal Singh, for respondents.
The Judgmep.t of \he Court was delivered by
A
c
D
BEG, C. J. This is the defendant's appeal by special leave against
E
the judgment and decree of the Allahabad High Court decreeing the
suit of the plaintiff respondent for partition and separate possession of
2/3 share of House No. 397 in Katra, Allahabad.
The plaintiff
claimed to be the sole heir of the auction purchaser of the house in
October, 1937, at a Court sale in execution of a mortgage decree.
The house had been mortgaged by Sharda Prasad representing the line
of one son of Kalyan Chand, the common ancestor and
original
F
owner, and Sheo Shankar and Sangam Lal representing the line of
another son of Kalyan Chand.
Kripa Shanker, now represented by
the two appellants, his widow and son, was said to be a minor, and
although, his brothers acted on his behalf, the defendants alleged
that the loan and the mortgage were not binding upon him for want
of legal necessity.
Shital Prasad, a son of Kalyan Chand, was not a
party to the mortgage deed.
Hence, Sita] Prasad's share could not
G
be said to have been sold.
On 12th September, 1938, symbolical
possess10nwas taken by_ the auction purchaser, and, again in 1946,
m proceeding for execut10n of a decree.
But, the house continued
to J;ie in ~he occupation of Kripa Shanker, the husband of the appellant
Ra1 Ram and the father of the appellant Kali Charan. Devika Rani,
widow of Sh1tal 'Prasad, who had filed a sui•t in 1937 for the declarat10n o~ her nghts to l/ 3 of the house, after her objections under
H
O;der XXT, Rufo 100 of the Code of Civil Procedure had been dismISsed, and obtamed a decree from the appellate Court on 22nd
,
;B
·C
F
H
20
'.SUJ'REME COURT REPORTS
[1977] 3 s.c.R.
January, 1941, ;with the result that Shital Prasad'". 1/3 share went
out, had not been impleaded in the suit now before us.
In 1945,
the respondentcauction purchas~r (now represented by son, Respondent No. 'l) had filed a suit against Kripa Shanker and another for a
declaration of his Tights in respect of 2/3 share in a11other house and
the ejectment of Kripa Shanker and Prayag Das from that house.
Although that suit was in respect of another house, the defendants
alleged that, in that suit, the auction purchaser had said that the house
in dispute in the case now before us was also in ·possession of Kripa
Shanker as a trespasser.
Kripa Shanker died in 1953 leaving the
appellants in possession as his heirs.
The suit now before us was filed on 10th August, 1959. It was
alleged there that,
although the auction purchaser had
obtained
possession of the whole house, yet, Smt. Devika Rani, the widow of
Shital Prasad having continued in
possession over 113 share, her
claim to that portion had been accepted so that it was no longer in
dispute.
But, i<t was alleged that the auction purchaser has been in
possession over 2/3 part of the house together with Devika Rani who
had 1/3 share in the house.
It was also alleged that, after the death
of Devika Rani, one Sankata Prasad, defendant No. 3, had started
giving himself out as the owner of 1/3 share on the basis of a giftdeed of 1953 in his favour, and that defendant No. 1, Raj Rani, had
been giving out that Sankata Prasad had
executed a sak-deed io,1
favour of Kripa Shanker, defendant No. 2.
In para 8 of the pla:.,1t,
however, it is alleged:
"The defendants had no concern with the
2/3 share in the said: house themselves or through any other person
nor were they ever in possession or in occupation of any part of above
owners''. It is also alleged in the plaint that the plaintiff--auction
purchaser's son had been, and, before
him
the
auction-purchaser
had been in possession of the house.
Furthermore it is alleged that
"Raj Rani had, in collusion with Sankata Prasad, defendant No. 3,
obtained a false sale-deed in favour of defendant No. 2 in respect of
the I /3 share of the said house and misled some tenants in the said
house and illegally prevented them from paying to the plaintiff his
share in the rent".
The plaintiff, therefore, claimed to be entitled to
recover the rents also of amounts wrongly realised by the defendants
I and 2, the appellants before us. In paragraph l 0 of the plaint, it was
stated that the defendants did not pay any taxes to the Municipal
Board which had to file suit for their recovery which were decreed.
The plaintiff, however,
alleged that he had pai"l up the
decretal
amounts in excess of the 2/3 share which belonged to the plaintiff.
The plaintiff also alleged that he was being obstructed in looking
after the house and realising rents.
Hence, according to the plaintiff,
he had to se~ve a notice dated 23rd April, 1959, asking the defendants to partition the property.
The plaintiff alleged that the cause
of action "accrued to the plaintiff firstly in 1956 and aiter tbat on the
end of each month when the defendants illegally received i>laintiff'>
share in the rent from the tenants and did not pay to the plaintiff and
then on 15-11-58 when the plaintiff has to oav excess amount to the
Municipal Board on account of the defendants and the on 23-~-59.
and, lastly, in May, 1959, when the defendants refused to parlltton
L
~·
RAJ RANI
V,
KAILASH CHAND (Beg, CJ.)
21
the plaintiff's share in the said house, within the jurisdiction of this
Court and this Court has the jurisdiction to try this suit",
The defendants-appellants had
denied
any
concern with
the
mortgage.
Apparantly, their case was that as _the husband_ of Raj
Rani, appellant No. 1 and the father of Kali Charan, appellant No. 2,
was a minor at the time of the alleged mortgage and his brother,
not having borrowed the money for any legal necessity, could not
bind Kripa Shanker or his heirs.
Furthermore, the defendants pleaded that, even if the house bad been sold in execution of the mortgage
decree, the defendants-appellants "have been openly denying the rights
of the plaintiff and bad been in adverse possession and occupation of
the property for more than 12 years so that even if the plaintiff or
his predecessors had any right, it bad been extinguished by the operation of law of limitation".
The first question, on pleadings set out above, for the trial Court
to determine was : has the plaintiff come with a plea of dispossession
by the defendants so that Article 142 of the old Limitafron Act was
applicable to the case, or, had the defendants, having set up the plea
of adverse possession, to establish an ouster in order to discharge their
burden of proof under Article 144 of the Limitation Act ? In view of
section 3 of the
old
Limitation
Act,
i't
was
incui:nbent
on
the
Court
to
determine
whether
the suit
was filed
within
time, even if the plea of limitation bad lfOt been taken, when the
·question had been raised.
Section 3 ( 1) provided :
"3 (I), Subject to the
prov1s1on
contained
in
>ections
4 to 24 (mclusive), every suit instituted, appeal preferred,
and application made after the prescribed period shall be
dismissed, although limitation has not been set up as a
defence''.
The correct procedure for the Court to adopt was not only to frame
an issue on the question of limitation but to determine whether it
was governed by Article 142 or by
Article 144 of the Limitation
A
B
c
D
E
Act The trial Court did frame an issue indicating that Article 142
F
was applicable.
This was issue No. 2 framed as follows :
"Whether the suit is within limitation"?
The trial Court observed :
"lt ls also true that if the suit of the
plaintiff is not established to be within limitation, that is to say that,
if the possession of the plaintiff is not even with_in 12 years, the suit
must fail as the rights of the plaintiffs would be deemed to have been
extinguished by the adverse possession of defendants 1 and 2. or.
their predecessor-in-interest, namely, Kripa Shankar".
All this shows
that the trial Court was applying Article 142 of the old Limitation
Act We do not, however, find any finding given by the trial Court
on the question whether, and, i•I so when and how, the plaintiff was
'in actual or constructive possession of any part of the house. If
Article 142 applied, it meant that the plaintiff had admitted dispo-
·ssession. If this was the
case, the following finding by the trial
Court on the trial of the plaintiff seems to us to be premature :
G
H
A
B
c
D
E
F
G
H
22
SUPREME COURT REPORTS
[1977] 3 S.C.R.
"Now it will be noted that there has not been any partition between the plaintiff on the one hand and the other one
third share holder Smt. Deoka or her snccessor-in-interest
on the other hand.
Smt. Deoka was admittedly a relation
of Kripa Sh~nker and there is nothing
unusual if Smt.
Deoka had allowed Kripa Shanker to continue to live in the
suit premises under the protection of her 1 /3 share. The
consi•stent Municipal receipts, the litigation with tenants,
and over all the title deeds of the plaintiff; they all go to
lend support to the plaintiff's case".
In the first appeal against that judgment, it was again not decided
anywhere what Article of the Umitation Act applied to the case. It
appears to us that the appellate Court had also not come to the grips
with the real question to be determined. It said :
"It was alleged that Kripa Shanker had taken possession over the house. The learned counsel for the appe!lant
argued that these documents showed that
Kripa Shanker
was in possession over the entire house and that Bhagwan
Das never obtained
actual possession over it and only
symobolical possession was delivered to him in this suit,
It must be borne in mind that Bhagwan Das was owner
to only 2/3rd share and I/3rd belonged to Mst. Deoki, who
was real aunt of Kripa Shanker, and unless Bhagwan Das
had got his share partitioned, he could not obtain actual
possession over any portion of the house and as such only
symbolical possession was delivered to him.
The question
only is whether he remained in joint possession or not ? It
is contended from the side of the appellants that he was not
in possession and Kripa Shanker was in adverse possei;sion
at least from 1945, and that this suit was filed in 1'>59,
that is after more than 12 years when the defendant appellants had already perfected their title by adverse possession.
This symbolical possession was delivered on 21st of November, 1946.
This suit was filed in 1959 that is more than
12 years after and, therefore, there is force in the contention
that it must be proved that Bhagwan Das was
i'n
joint
possession. · Bhagwan Das was a co-sharer alon~ with Mst.
Deoki. Mst. Deoki's share ultimately came to the defendant appellant in 1957 and as such in 1957 the defendant
appellant became co-sharer with the plaintiff resnonr1ent.
In 1957, 12 years had not passed and even if it is assumed
that Bhagwan Das or the plaintiff r!'sPondent w<ts n()t in
joint possession, the;•r right had not ceased in 1957. It was
observed by the Supreme Court of India in the case
P. Laxmi Reddv v. L. Laxmi Reddv (in 1957 A.LR. Snoreme
Court 314), 'the burden of making out ouster is
on
the
person claiming to displace the lawful title of co-heir by his
adverse possession'.''
If the plaintiff's assertion was that the defendants had di'ipossessed him it did not matter whether the defendants, represented a
'
,<
RAJ RANI V. KAILASH CHAND (Beg, C.J.)
23
co-sharer or not.
In that event, the plaintiff's case would certainly
be deemed to be one in which the assertion of dispossession
was
there. In the case before us, it appears that the rights of Kripa
Shanker, on the plaintiff's asserti<on that he had been a party to the
mortgage, had come to an end by the sale of his rights in the property and delivery of possession to the auction purchaser.
His heirs
could only be in adverse possession and not holding through Kripa
Shanker on the plaintiff's own assertions.
In fact, they have not
claimed to be holding through Kdpa Shanker.
In any event, the
allegations in the plaint appear to us to amount to an allegation that,
by asserting their own ownership and inducing the tenants not to
pay rents to the plaintiff, the defendants had dispossessed' the plaintiff.
'In such a case, even if rn defendant in actual possession could
be deemed to be i•nitially a co,sharer, the plaintiff would be really
asserting that the co-share!:_ had dispossessed or ousted him.
Hence.
an ouster having been admitted iu the plaint, the burden would lie
upon the plaintiff of proving his case that the ouster had taken place
within twelve years.
On any other view, the distinction between
articles 142 and 144 of the former Umitation Act, which is important in this case, would vanish.
In a case between co-sharers, Bindhyachal Chand & Ors. v. Ram
<Gharib Chand & Ors.,(') a "Full Bench of the Allahabad High Court
had examined the difficulties which -arise when a co-sharer
sues
another on the allegation that he had been dispossessed.
Sulaiman,
C.J., pointed out that article 144 was a residuary article which
applied to suits for possession of immovable properly which could
not fall elsewhere.
As regards the distinction betwl'en articles 142
and 144, he observed (at p. 997) :
"No doubt in many cases the distinction is very fine,
and the line of demarcation between. dispossession and
adverse possession is thin.
But) the question in each case
is one of burden of proof, and it is incumbent on the plaintiff, when he admits his dispossession, to establish his possession within twelve years".
He went on to point out (at p. 998) :
"Ordinarily, the possession of one co-owner, who
1s
entitled to joint possession of the whole property, is referable to his title, and he cannot ask the Court to presume
that his possession was illegal or adverse to the other coowner.
It follows that if one co-owner is in actual possession of the joint properly, and the other co-owner is either
absent or is not in actual possession, the latter would still
be in constructive possession of his property through his
co-owner.
There would be prima facie no case where the
possession of one co-owner was illegal and was' necessarily
adverse to that of the other co-owner.
The presumption
would be that they are both in joint possession.
But,
it
cannot_ be denied that one co-owner can dispossess another
(!)A.LR. 1934 All. 993.
3-240SCI/77
A
B
c
D
E
F
G
H
A
B
c
D
E
F
G
H
24
SUPREME COURT REPORTS
[ 1977] 3 S.C.R.
co-owner and can exercise adverse possession over a joint
property.
If, therefore, the plaintiff, a co-owner, admits
that he has been dispossessed and that, at any rate, for a
short period prior to the suit, the possession of his co-owner
was adverse to him, then he cannot fall back on a mere
presumption of joint possession in his favour and succeed
without showing any other circumstances whatsoever".
The following observations of the learned Chief Justice are also
useful (at p. 998) :
"Personally speaking. I do not think that the plaintiff
can by cleverly drafli'ng his plaint evade the burden of proof
which Art. 142 casts upon one who is suing for possession
on the ground of dispossession.
When a plaintiff falsely
alleges that he is in possession and wants a relief, to which
the owner in possession is entitled, e.g., for partition, i•njunction, joint possession, etc., and it i~ found that he was in
fact not in possession but had been dispossessed, technically
speaking, the suit would fall under s. 42, Specific Reli'ef Act
and would be dismissed on the ground that he had omitted
to ask for a consequential relief and had failed
to prove
his case.
But, a Court may allow him to change his ground
and give him a decree for possession, treating his claim as
one for recovery of possession on the basi~ of dispossession,
provided he succeeds in showing that his dispossession took
place within 12 years".
It seems to us that, in the case now before us, Lhe High Court, on
a second appeal to it, also failed to determine the crucial question of
actual or e\ en constructive possession of the plaintiff within twelve
years.
It said :
"The argument advanced before me is that after
the
decree in suit No. 57 of 1945 the possession
of
Kripa
Shanker became adverse and, as the suit for partition was not
filed with 12 years of the date of the decree, the suit was
barred by limitation.
A large number of authoritie., were
cited before me on the point. It was urged that it a member
of an undivided Hindu family sells his undivided share and
the alience does not bring a suit for partition and possession
over his share within 12 years of the date of the alienation
the possession of the alienor and all the other coparceners
woukl be adverse and the suit for partition after the expiry
of 12 years from the date of the alienation would be barred
by time.
Some of the authorities cited by the karned counsel for the appellant, to which I do not consider it necessary
to refer, would seem to support his contention.
Learned
counsel for the respondent, however, has cited before me the
latest case
of the Supreme! Court in Manikayala Rao v.
Narasimhaswami (AIR 1966 SC 470)".
The case relied upon by the High Court is distinguishable on two
grounds : firstly, it was not a case where the plaintiff, on the pleadings in tl1e plaint could be fairly said to have admitted dispossession
..
ji;i
RAJ RANI V. KAILASII CHAND (Beg, C.J.)
25
or ouster by setting up that the alleged co-sharer in possession was
denying the rights of the plaintiff; and, secondly, delivery of symbolical possession there was said to have interrupted adverse possession
which could, therefore, not be continuously for twelve years.
In the
case before us, even if a symbolic delivery of possession to a co-sharer
could be said to have interrupted any adverse possession, that interruption took place beyond 12 years.
Hence, it was the duty of the
plaintiff to have shown by cogent evidence how, by receipt of rent
or an admission by the defendan:s or o'herwise, he or his predecessorin-interest could be deemed to be in actual or constructive possession
as an owner or as a co-sharer with the defendants over the house in dispute.
We may observe that the
difficulty in
deciding the
question
whether article 142 or article 144, Limitation Act applies to a case,
which really depends upon an interpretation of the pleadings, was
sought to be removed in the Limitation Act of 1963 by a more clarified position in article 64 and 65 of Limitation Act of 1963.
The
reasons given for this change were :
"Article 142 and 144 of the cxis•ing Act have given rise
'.o 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 suit based on possessory
ti.le so that an owner of property docs not lose his right to
the property unless the defendant in possession is able to
prove adverse possession".
In other words, in cases governed by the former Limitation Act, at
any rate, a plaintiff admitting dispossession, in suits based on title,
had to prove that he was in actual or constructive possession within
twelve years.
Hence, the change in law.
We do not, however,
propose to examine or lay down here the exact position under the
amended law of limitation under the act of 1963.
Th~ result is that, in the case before us, the palintiff had to prove
A
B
c
D
E
that he was in actual or constructive possession within twelve years.
F
It would be
enough if he establishes
that he was in constructive
poosession within twelve years by receipt of rent or otherwise. There
is no finding to tha'. effect given by the High Court or by the Subordinate Courts.
We, therefore, allow this
appeal, set aside the
judgments and
orders of the High Court and of the first appellate Court.
We smd
the case back to the first appellate Court, which is the final Court of
facts, to determine, on the evidence already on record, whether the
plaintiff was in actual or constructive possession within twelve years
of the filing of the suit. If the plaintiff can establish that, the suit
will have to be decreed.
Otherwise, the suit must fail.
The costs
will abide the results.
s.:a.
Appeal allowed
and case remanded.
G
H