KALOORAM Vs. MANGILAL

JUDGEMENT

(1.) This is defendants' second appeal arising out of a suit for possession of a portion of -suit house situated at Neem Chowk, Ratlam. The plaintiffs case, in brief, was that Jeetmal, father of the plaintiff, and Manakchand, father of the defendants, were brothers and members of a Joint Hindu Family and that on 10th December 1922, a partition was effected between the members of the joint Hindu family, as a result of which, a portion of the suit house came into possession of the plaintiffs father. It was further averred that the suit properly was then let out to one Pannalal Sanwara and after his death the leased premises were in occupation of his son Mangilal Sanwara, who vacated the leased premises, which was then locked by the plaintiffs father. It was further averred that on 15th July 1949, defendant No. 1 unlawfully broke open the lock and forcibly took possession of the suit property. The plaintiff instituted the suit on 6-5-1961 for recovery of possession of the suit property and for mesne profits. The suit was resisted by the defendants inter alia on the ground that it was barred by limitation. The trial court found that the plaintiff had failed to establish that the suit property was let out by the plaintiffs father to Pannalal Sanwara and that Mangilal s/o. Pannalal had handed over the possession of the premises in question to the plaintiffs father. The trial Court further found that the plaintiff failed to establish that defendant No. 1 had on 15-7-1949 taken possession of the suit property. The trial Court further held that as the plaintiff had failed to establish that he had been dispossessed within 12 years next before the institution of the suit, the plaintiffs suit was barred by limitation by virtue of the provisions of Article 142 of the Limitation Act, 1908. In this view of the matter, the trial Court dismissed the plaintiffs suit. On appeal, the lower appellate Court held that the trial Court erred in applying the provisions of the Limitation Act, 1908, and that the provisions of Article 65 of the Limitation Act, 1963 were attracted. The lower appellate Court further held that as the defendants failed to prove their adverse possession for more than 12 years, the trial court was, therefore, not justified in holding that the suit was barred by limitation. The lower appellate Court, therefore, decreed the plaintiffs suit. Hence, the defendants have preferred this appeal.

(2.) Shri Sanghi, learned counsel for the defendant-appellants, contended that the lower appellate Court erred in law in applying the provisions of the Limitation Act, 1963 even though the suit was filed on 6th May 1961 when the old Limitation Act of 1908 was in force. It was contended that the suit was based on title and dispossession and hence, the provisions of Article 142 of the Limitation Act, 1908 were attracted. The learned counsel further contended that the plaintiff had failed to establish that the defendants had taken possession of the suit property on 15-7-1949 and dispossessed the plaintiff, as alleged by the plaintiff. It was, therefore, urged that as the plaintiff had failed to establish that the defendants had taken possession of the suit property within 12 years next before the date of institution of the suit, the trial Court was right in holding that the suit was barred by limitation. The learned counsel further contended that in any event, the lower appellate Court erred in passing a decree for possession of even that portion of the suit house on the ground floor, of which possession was not claimed by the plaintiff. In reply, Shri Garg, learned counsel for the plaintiff- respondent, conceded that the provisions of the Limitation Act, 1963 would not apply in the instant case and that the suit would be governed by the provisions of the Limitation Act, 1908. He, however, contended that in view of the admission of the defendants that parties were in joint possession of the suit property, the provisions of Article 144 of the Limitation Act, 1908 were attracted and that as the defendants had failed to establish that they had perfected their title by adverse possession, the lower appellate Court was right in decreeing the plaintiffs suit. The learned counsel, however, conceded that while decreeing the plaintiffs suit, the lower appellate Court had erred in passing a decree for possession of that portion of the suit house on the ground floor, of which possession was not claimed by the plaintiff.

(3.) Before I proceed to appreciate the main question raised in this appeal as to whether the provisions of Article 142 or Article 144 of the Limitation Act, 1908 are attracted in the instant case, it is necessary to note a few facts, which are no longer disputed. It is admitted that on 21-2-1950, the defendants had filed a suit in the Court of Additional District Judge, Ratlam, claiming partition of joint family property, which included, amongst other property, the suit house situated at Neem Chowk, Ratlam, alleging that the joint family property was in joint possession of all the coparceners. That suit was dismissed by the learned Additional District Judge, Ratlam, by his judgment Ex. P-3. The present defendants, who were plaintiffs in that suit, thereupon preferred an appeal before the High Court, which was dismissed, vide judgment Ex. P-4 passed by this Court on 22nd March 1966. It was held by this Court that it was clearly established that by the year 1922, there was a partition between the members of the Joint Hindu Family and that the back portion of the suit house situated at Neem-Chowk, which is the property in dispute in the instant case, had fallen to the share of the plaintiffs father Jeetmal, who remained in exclusive possession of the property fallen to his share for more than 12 years. In view of this judgment, it was not rightly disputed before me that the title to the back portion of the house at Neem Chowk, Ratlam, which is the subject-matter of present suit, vested in the plaintiffs father and that he had been In exclusive possession thereof for more than 12 years since the year 1922. Now the plaintiff instituted the present suit against the defendants alleging that the defendants had forcibly taken possession of the suit property on 15th July 1949. The question for consideration is whether in view of the pleadings of the parties, the provisions of Article 142 or Article 144 of the Limitation Act, 1908 would be attracted.