SANA SINGH Vs. NANDLAL

JUDGEMENT

(1.) ART . 65 of the Limitation Act applies to suits for possession based on title. It does not apply to suits for possession based on previous possession for which proper provision is Art. 64 of the said Act. The present suit, as would be clear from the plaint, is based on title. Indeed, it is mainly a suit for permanent injunction and damages and not a suit for possession. The alternative relief of possession was added by way of amendment. Plaint clearly indicates that the appellant made several efforts to obtain declaration that the sale was not real and the sale -deed was executed as a security for loan but had failed. It was, therefore, alleged that the respondent -plaintiff was the Bhumiswami of the suit -land. Plaint Paras 7 and 8 thereafter indicate that the respondent -plaintiff sowed his crop on the disputed land which was harvested by the appellant. The harvesting has been alleged to be the unlawful interference with the possession and therefore a claim for temporary injunction. The appellant -defendant in his written statement denied these facts and submitted that he was always in possession of the suit -land and continues to be so. This defence of the appellant would rule out the application of Art. 64 of the Limitation Act as there would be no case for dispossession. The learned trial Judge has also noticed this aspect of the matter and has for that reason applied Art. 65. The learned lower appellate Court has rightly held that the suit would not be governed by Art. 64 and it would if at all be governed, by Art. 65. Art. 65 applies to a suit for possession based on title and has to be filed within a period of 12 years from the date when the possession of the defendant had become adverse to the plaintiff.

(2.) THERE is sufficient authority for the proposition that mere possession is not adverse possession. A possession to be adverse, must be hostile possession amounting to expressly or impliedly denial of title of true owner. (See S.M. Karim v. Mst. Bibi Sakilla, AIR 1964 SC 1254, Ramsillgh v.Roopsingh, 1989 RN 349 and Bhuwani Singh Rajput v. Girwar Singh, 1987 Revenue Nirnaya 295). Then, it is also the requirement of law that such a claim should be clearly pleaded and proved. If a plea has not been taken, there would neither be any occasion for the Court to frame issue upon it or allow the parties to lead evidence to prove the same.