SUNDER LAL Vs. BITOLA KUNWAR

JUDGEMENT

(1.) This is the defendant's second appeal against the decree and judgment dated 24-5-1973 of the Second Temp. Civil and Sessions Judge, Budaun, decreeing plaintiff's suit for ejectment of the defendants. The suit giving rise to the instant appeal was filed by the plaintiff-respon dent for ejectment and recovery of possession over the house in suit. The suit was filed on the allegations that Malkhan Singh was the owner of the house in suit. After his death, his son Surat Singh became the owner of the house in dispute. Surat Singh died leaving behind him his three widows. The first wife died during the life time of Surat Singh leaving two daughters. Dewa Kunwar and Ram Piari, his other two wives died issueless. Smt. Lad Kunwar died leaving behind her daughter, who is plaintiff-respondent in this case. Smt. Ram Piari died on 26-8-1947 and Smt. Lad Kunwar died on 8-4-1955. After the death of Smt. Lad Kunwar, the plaintiff respondent is the only legal heir of the deceased Surat Singh. The house in dispute is her property, which was occupied by the defendants in the year 1958 without any right. Hence the suit for recovery of possession. The suit was contested by the defendants on the ground that the plaintiff was never the owner of the house in dispute and her mother was also never owner in possession of the property in dispute. According to the defendants, Bhagmal and Girdhari were in possession of the property in dispute from a very long time i. e. since the time of their ancestors. Therefore, they have acquired title by adverse possession. It was further alleged that at the time of the abolition of Zamindari, the defendants and their ancestors were in possession of the property in dispute and as such they have acquired rights under that Act. It is wrong to say that Bhagmal and Girdhari took forcible possession of the property in dispute three years after the death of Smt. Lad Kunwar. The suit was dismissed by the learned Munsif on the finding that the plaintiff was neither the owner nor had been in possession over it within 12 years and the defendants were held to be in possession since the year 1944 or 1351-F. As such, they have perfected their title by adverse possession. The plaintiff preferred an appeal against the decree and judgment of the trial Court, which was allowed by the lower appellate Court and the plaintiff's suit was decreed for ejectment of the defendants from the property in dispute. It was held by the lower appellate Court that the plaintiff is the owner of the house in dispute and the defendants have not perfected their title by virtue of adverse possession. The defendants have preferred this appeal against the decree and judgment of the lower appellate Court. It has been contended by the learned counsel for the appellant that the defendants came in possession in the year 1945 during the life time of Smt. Ram Piari. Thereafter, in the year 1949, a suit was filed by Smt. Lad Kunwar and her daughter (the plaintiff) against some persons for cancellation of certain sale- deeds and for possession in respect of zamindari property and the house in dispute. This was suit No. 5 of 1949. This was decided on the basis of a compromise and the plaintiffs suit was dismissed in respect of the house in dispute. In view of this fact, according to the learned counsel for the appel lant, the plaintiff had no title to file the present suit. It was further contended that the suit is barred by limitation as also by res-judicata. It has been contended by the learned counsel for the respondents that no decree had been passed on the basis of adverse possession against the plaintiff or plaintiff's mother. Therefore, the title of the plaintiff has not come to an end and after the death of next revisioner, she had right to file suit against the defend ants. Smt. Lad Kunwar died on 8-4-1955 and the present suit was filed on 3-4-1967. Therefore, suit is well within time. According to the learned counsel for the appellant, the possession of the defendants commenced from the year 1945 during the life time of Smt. Ram Piari and after the death of Smt. Ram Piari no suit was filed by Smt. Lad Kunwar. Therefore, the defendants acquired title by adverse possession and the plaintiff has got no right to file the present suit. He referred to Article 140 and 141 of the Indian Limitation Act, 1908. In view of Section 141 of the Act, suit for possession could be fied by a revisioner within 12 years of the death of the female owner. But in the present case, after the death of Smt. Ram Piari, no suit for possession was filed against the defendants by Smt. Lad Kunwar. Therefore, the plaintiff has got no right to file the suit and the defendants have perfected their title by adverse possession. The learned counsel relied upon Kunjaru Venkatra-manyya v. Dejappa Konde and others (AIR. 1918 Mad. 658), wherein it was held that where the widow and the mother of the last male holder of property sold it in 1845, the widow died in the year 1954 and the mother succeeded to the property and sold it again in 1957. The purchaser from the mother sued the previous vendee for possession joining the mother as defendant to the suit, but the suit was dismissed as barred by time. The mother died in 1908 and the revisioner sued to recover the possession of the property. The suit was dismiss ed on the ground that mother's right to sue for possession was barred. The revisioner's suit was also barred under the provisions of Limitation Act. It was further held that the dismissal of suit by vendee from the mother for which the mother was a party operated as res-judicata against the revisioner. The learned counsel for the appellant also made icference to paragraph 210 of the Hindu Law (by Mulla) which is to the effect that a suit by the next revisioner against the widow or other limited heir and alienee from her for declaration that the alienation is not binding on the reversioner is representatives suit on behalf of the revisioners and a decree fairly and properly passed in such a suit, whether it is for or against the revisioner, operates as res-judicata between not only the next revisioner, but the whole body of the revisioners on the one hand and the alienee and its representative on the other. It has been contended by the learned counsel for the respondents that para 210 of the Hindu Law has no application to the facts of the present case. Para 210 is applicable in a case where the suit is filed by revisioner for a declaration that the alienation is not binding on the revisioner and the decree, whether it is for or against the next revisioner, operates as res-judicata between not only the next revisioner but the whole body of the revisioners. But in the present case, no such suit for a declaration that the alienation is not binding on the revisioner was filed against the defendants. According to the learned counsel, para 210 of Hindu Law is applicable wherein it is provided that adverse possession against widow is not adverse against next revisioner. There is one exception of this rule that where a decree founded upon adverse possession has been obtained against the widow during her life time, the next revisioner is barred and he does not get the benefit of Article 141 of the Limitation Act. In the instant case, no decree founded upon adverse posses sion has been obtained against the widow in her life time. Therefore, the plaintiff, who is next revisioner, is not barred and entitled to get the benefit of Article 141 of the Limitation Act. On consideration of Article 201 of the Hindu Law and Article 141 of the Indian Limitation Act, 1908, it appears that any person in adverse possession over the land of a widow inherited from her husband cannot acquire any right in her life time. This benefit will not come to an end after the death of the widow, if she is followed by another female heir. This state of affair will conti nue, even if one female is followed by another and so on. The person in adverse possession will not acquire right on the basis of his adverse possession in this state of affair and he would be liable for ejectment on a suit of the revisioner after the death of a female filed within the period prescribed under Article 141 of the Limitation Act. The learned counsel for the respondent urged that 1918 Mad. 659 (supra) is based on the old Limitation Act of 1859, where there was no similar provisions like Article 141 of the Indian Limitation Act 1908. He relied upon Kalipda Chakrabarti and another v. Srnt. Palani Bala Devi and others (A. I. R. 1953 S. C. 125), wherein it has been held that; "except where a decree has been obtained fairly and properly and with out fraud and collusion against the Hindu female heir in respect to a property held by her as a limited owner, the cause of action for a suit to be instituted by a revisioner to recover such property either against an alienee from the female heir or a trespasser who held adversely so far accrues only on which has been recognised in the law of Limitation in this country ever since 1871, seems to be quite in accordance with the acknowledged principles of Hindu Law. The right of revisionery heirs is in nature of spes successions, and as the revisioners do not trace their title through or from the widow, it would be manifestly unjust if they are to lose their rights simply because the widow has suffered the pro perty to be destroyed by the adverse possession of a stranger. " Ram Kristo Mandal and another v. Dhankisto Mandal and others (A. I. R 1969 S. C. 204), relied upon by the learned counsel for the respondent, runs as follows: "a person who has been in adverse possession for 12 years or more of property inherited by a widow from her husband by any Act or omission on her part is not entitled on that ground to hold it adversely as against the next revisioners on the death of such a widow. The next revisioner is entitled to recover possession of the property, if it is immo vable, within 12 years from the widow's death under Article 141 but is in accord with the principle of Hindu Law and the general principles that as the right of a revisioner is in the nature of spes succes-sionis and he does not trace that title through or from the widow, it would be manifestly unjust if he is to lose his right by the negligence or sufferance of the widow. " In view of the facts discussed above, I am of the view that the suit, filed by the plaintiff against the defendants for ejectment was not barred by Article 141 of the Indian Limitation Act, 1908, and the defendants have not acquired any title on the basis of their adverse possession. It was lastly contended by the learned counsel for the appellant that in view of the fact that suit No. 5 of 1949 referred above was dismissed, therefore, the plaintiff had no title to file the present suit. The learned counsel relied upon Vaithialinga Mudaliar and others v. Srirangath Anni and others (A. I. R, 1925 P. C, 249), wherein it has been held that a Hindu widow represents the estate in suits brought by her or against her for possession of the estate or any part of it, and she and the revisioners are equally bound by any final decree which a Court makes in such a suit, provided that the suit was fought out according to law and was not collusive or fraudulent. Adverse possession which bars her, bars also the revisionery heirs after her. But in this case, no suit was filed against the defendants by Smt. Lad Kunwar which may be said to be binding on the plaintiff. Therefore, this contention of the learned counsel for the appellant has also got no force. In view of what has been discussed above, I find no force in this appeal, which is accordingly dismissed. However, there is no order as to costs. .