Nahan Foundry Limited vs Joginder Singh and Others

N.K. Kapoor, J.—This is unsuccessful plaintiffs regular second appeal.

Plaintiffs filed a suit for declaration to the effect that plaintiff company is the owner in possession of property situate at National Road, Ludhiana, shown in red colour in the plan attached and also for permanent injunction restraining the defendants from interfering with the possession of the plaintiff and also in the alternative claimed that the plaintiff has become owner by adverse possession. Ac-cording to the plaintiff, one Chaudhari Partap Singh son of Ch. Narain Singh was incharge of its Ludhiana office who had been duly authorised by the plaintiff to purchase land for its office at Ludhiana. Said Kartar Singh purchased the land from Lal a Tulsi Ram, Advocate, for and on behalf of the plaintiff vide registered sale deed dated 20.2.1922 but later on came to light that the suit land was purchased in his name. It is further the case of the plaintiff that subsequently Partap Singh confessed his mistake and so executed an agreement in favour of the plaintiff on 14 Badon Sammat 2001 admitting therein that he has no concern with the disputed land. Since a cloud had been cast upon the valuable right of the plaintiff despite it being in possession, so a suit for declaration and injunction and in the alternative that the plaintiff has become owner by adverse possession was filed stating specifically the day when the cause of action accrued finally.

The suit was resisted by the defendants primarily on the ground that the same is barred by time. Other averments made in the plaint were also denied by the defendant-appellant.

On the pleadings of the parties, following preliminary issue was framed:-

1) Whether the suit is within limitation? O.P.P.

2) Relief.

The trial Court decided this issue against the plaintiff on the ground that the cause of action accrued to the plaintiff when the sale deed was registered in the name of Partap Singh on 11 Bhadon Sammat 2001 i.e. August, 1944 and since the suit had been filed long after the expiry of three years as per Article 58 of the Limitation Act, the same was not held to be within limitation. Consequently, the suit was dismissed.

The lower appellate Court once again examined the matter but found no ground to differ with the conclusion arrived at by the trial Court. The lower appellate Court too by relying upon Article 58 of the Limitation Act non suited the plaintiff.

As noticed above, the suit of the plaintiff has been dismissed on the ground of limitation. Learned counsel for the appellant at the outset drew the attention to the averments made by the plaintiff in his pleadings. According to the counsel, both the Courts have erred in law in not properly perusing the averments made by the plaintiff in the plaint. According to the counsel, no doubt plaintiff sought declaration to the effect that the plaintiff is owner in possession of the suit land as well as sought an injunction restraining the defendants from interfering with the possession of the plaintiff company but in the alternative also claimed to have become owner of the property by holding adversely to defendant-respondents. This precise plea somehow escaped the notice of the Court which has consequently resulted in the passing of the impugned order. Specific reference was made to the averments made by the plaintiff in para No. 14 of the plaint and has thus argued that even if it be taken (though not conceded) that suit for declaration as prayed for was not within limitation, yet the Court could grant the desired relief in view of the specific averments made by the plaintiff in para 14 of the plaint. According to the counsel as per facts on record. Article 64 of the limitation Act is applicable.

Learned counsel for the respondents, on the other hand, argued that the plaintiffs suit is for declaration and injunction. As per averments made in the plaint the sale deed was executed in favour of the defendant on 20.7.1922 and registered on 31.7.1922 which fact was well known to the plaintiff. Despite this, plaintiff Co, by adverse possession also claims itself to be the owner for all purposes."

The reply of the defendants is as under :-

"14. Para No. 14 of the plaint is wrong and is denied. It is denied that the plaintiff company in open, hostile and continuous possession of the property for the last 56 years and has become owner by adverse possession."

A careful perusal of the plaint reveals that the plaintiff besides seeking a declaration that the plaintiff-property having been purchased by the defendant for and on behalf of the plaintiff company-in the alternative has averred that the plaintiff company has become owner by adverse possession i.e. the possession of the plaintiff company over the suit property is open, regular, continuous and hostile towards the true owner. In view of this specific stand, the suit could not be dismissed on the ground of limitation.

Articles 64 and 65 of the Limitation Act read as under :-

Description of suit Period of Time from limitation which period begins to run 1. 2. 3. 64. For possession of immovable property Twelve Years The date of based on previous possession and not on dispossesion title, when the plaintiff while in possession of the property has been dispossessed. 65. For possession of immovable property or Twelve Years When the possession any interest there in based on this. of the defendant Explanation :- For the purpose of this article. becomes adverse to the plaintiff. (a) where the suit is by a remainderman, reversioner (other than a landlord) or a devises, the possession of the defendant shall be deemed to become adverse only when the estate of the remainderman, reversioner, or devisese 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 the sale in execution of a decree when the judgment- debtor 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. 11. Under Article 65, a person claiming possession on the basis of title can institute a suit for possession within a period of twelve years i.e. after the expiry of period of 12 years when the possession of such a person become adverse to that of the plaintiff. The onus is upon a person who sets up the hostile title. In the present case, the plaintiff has claimed himself to be owner in possession of the Suit property on the ground that the property purchased by the defendant was, in fact, intended to be for the plaintiff and in the alternative asserted his right to have become owner on account of its continuous adverse possession for a period of almost 58 years. This way the courts below erred in law in applying Article 58 of the Limitation Act to non-suit the plaintiff. Otherwise to, the Courts below have not properly construed the averments made by the plaintiff in para No. 14 of the plaint. According to the plaintiff the cause of action in fact accrues on the dismissal of the appeal filed by the defendant by this court and finally on 10.1.1979 when the defendant flatly refused to accept the claim of the plaintiff. In any case, there is no need to dilate any further upon this aspect of the matter as I am of the view that suit is within limitation in view of the averments made by the plaintiff in para No. 14 of the plaint. I accept the appeal, set aside the judgment and decree of the Court below and remand the case to the trial Court for fresh trial in accordance with law. Since, the matter has remained pending for long time, the trial Court is further directed to expeditiously decide the suit preferably within six months. No unnecessary adjournment be granted to either of the parties.