IMAMBUX Vs. SAWANT

JUDGEMENT

(1.) THIS second appeal by the Defendant arises out of a suit filed by Imambux for a declaration of his title to three mango trees situated in survey No. 203 of village Palnagar, and for an injunction restraining the Defendant from interfering with his possession and enjoyment of the trees. In his defence, the Defendant -Appellant denied the Plaintiff's right to the trees and claimed that he was the owner of the trees and was in possession of the trees as such. The Plaintiff's claim was decreed by the Court of the Munsiff, Dewas The decision of the trial Judge was upheld in appeal by the Additional District Judge of Dewas. The Defendant has now filed this second appeal.

(2.) HAVING heard Learned Counsel for the parties, I have reached the conclusion that this case must be remitted to the original Court for further trial. The Plaintiff had alleged that he was in possession of the trees in suit until 9th May 1942 on which date the Defendant took possession of the trees and removed the fruits and that since then the Defendant was enjoying the fruits of the trees. The Defendant had, on the other hand, pleaded that he was the owner of the trees and was always in possession of them and that the Plaintiff was never in possession of the trees. On these pleadings, the question of limitation that was raised by the Defendant and was the subject -matter of an issue in the suit was governed by Article 142 of the Limitation Act, and in that connection what the Plaintiff had to prove was that he was in possession of the trees and dispossessed there from within twelve years prior to the institution of the suit. But curiously both the Courts below applied the residuary Article 120 of the Limitation Act to the case and holding that though the Plaintiff's suit was filed on 22nd December 1948, that is to say six years after the date on which the Defendant took possession of the trees, the Plaintiff was entitled to condonation of delay under Section 14 of the Limitation Act on account of the proceedings he had taken in the Revenue Courts. Quite apart from the fact that Section 14, Limitation Act could not be invoked in the present case by the Plaintiff, the Courts below failed to see that the Plaintiff's suit was in substance for possession of the trees from which, as alleged by him, he had been dispossessed by the Defendant on 9th May 1942. The Plaintiff had no doubt claimed the relief of a declaration of title and a prohibitory injunction against the Defendant on the assumption that he was in possession of the trees. But if, as alleged by him in the plaint, he was dispossessed by the Defendant on 9th May 1942 and in subsequent years also by the deprivation of the fruits of the trees, the Plaintiff was clearly not in possession of the trees after 9th May 1942. It is difficult to see how a tree standing on Government land, as in the present case, can be possessed by a person except by the enjoyment of its fruits. It is not the allegation of the Plaintiff that though the Defendant took the fruits after 9th May 1942 he himself continued to take care of the trees and to tend them and was thus in possession of the trees. The lower Courts have not given any importance to the question of the possession of the trees although an issue was framed in regard to it. On finding that the Plaintiff has shown his title to the trees, they assumed that he was in possession of the trees. This assumption was unwarranted in the face of the clear pleadings of the parties. In my opinion, on the pleadings of the parties, the question of limitation is crucial and it cannot be determined on the evidence as it is. The case must, therefore go back to the original Court for a determination of that question after directing the Plaintiff to produce evidence to show that he was in possession of the trees and dispossessed there from within twelve years prior to the institution of the suit. It is also obvious that if the Plaintiff is not in possession of the trees, on his own statement in the plaint, then the question whether the Plaintiff's suit for a mere declaration is maintainable would also require serious consideration. If the Plaintiff chooses to amend his plaint so as to claim the relief of possession the original Court shall also consider the question of grant of that relief to the Plaintiff.