PATARIA Vs. CHITIA

JUDGEMENT

(1.) THE defendant/appellants have come up in appeal aggrieved 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 : - -

(2.) 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 possession 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 independent 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.

(3.) 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.