JAGAMOHAN GARNAIK Vs. SANKAR SAMAL

JUDGEMENT

(1.) This second appeal was referred by our learned brother Hon'ble L. Rath, J., to a larger Bench as he did not agree with the decision of our learned brother Hon'ble S.C. Mohpatra, J. in Second Appeal No. 312 of 1980 decided on 8-1-1988 (reported in 1988) (1) Orissa LR 176) on the question whether in a suit filed by the plaintiff based on title for declaration on title and possession on the admitted position that he has been dispossessed, it would be necessary for the plaintiff to prove that the dispossession in question is within twelve years from the date of institution of suit. The learned counsel appearing for the appellants as well as for the respondents agree that only the legal question may be answered by the Division Bench and the matter may be referred back to the learned single Judge for disposal of the second appeal since the second appeal has been heard by our learned brother Hon'ble L. Rath, J., in part. In view of this instead of disposing of the second appeal, we propose to answer the question formulated earlier.

(2.) It is not necessary for us to state the facts and the findings of the courts below in detail which would appear from the order of reference made by our learned brother Hon'ble L. Rath, J. The suit is one for declaration of title and confirmation of possession or in the alternative for recovery of possession. The averments in the plaint indicate that the plaintiff was dispossessed prior to the filing of the suit. The defence is a denial of plaintiffs' title as also possession as well as the defendants have perfected their title by adverse possession. Before our learned brother Hon'ble L. Rath, J. the decision of Hon'ble S.C. Mohapatra. J. in Second Appeal No. 312 of 1980: (reported in 1988 (1) Orissa LR 176) was cited for the purpose that though plaintiffs' title is established yet since plaintiffs' dispossession is admitted, plaintiffs have to prove that the said dispossession was within twelve years from the date of institution of the suit. The learned Judge (Hon'ble S.C. Mohapatra J.) came to the aforesaid conclusion relying upon Sections 3 and 27 of the Limitation Act. We have carefully examined the judgment of Hon'ble S.C. Mohapatra. J. in Second Appeal No.312 of 1980. The learned Judge in para 4 of his judgment has stated that the second appeal has been admitted on the following substantial question of law:-

(3.) Where a suit for possession of immovable property is filed basing on title, such a suit is governed by Art.65 of the Limitation Act. Where a suit for possession of immovable property is filed not on basis of title but on the basis of previous possession, such a suit is governed by Art.64 of the Limitation Act. Under the old Limitation Act, the two relevant articles in this regard were Arts. 142 and 144. Article 64 of the new Act replaces Art.142 of the old Act but is restricted to suits based on possessery title so that the owner of a property does not lose his right to the property unless the defendant in possession is able to establish his perfection of title by way of adverse possession and that is what has been provided for in Art.65. The two articles, namely Arts 64 acid 65 of the Limitation Act have brought in a material change in law as it stood under the Limitation Act of 1908 regarding suits for possession of immovable property. Under the old Act, all suits for possession whether based on title or an the ground of previous possession were being governed by Art.142 in a case where the plaintiff while in possession was dispossessed or discontinued in possession. Where the case was not one of disposession of the plaintiff or discontinuance of possession, Art.142 did not apply and suits based on title alone and not dispossession or discontinuance of possesion were governed by Art.144, unless they were specially provided for by some other articles like Arts. 47, 136, 137, 138, 140 and 141. Under the new Limitation Act suits for possession of immovable property have been brought under two categories; (i) suits based only on right of previous possession and not on proprietary title (Art.64); and (ii) suits based on proprietary title (Art.65). Under Art.64, the time runs from the date when the plaintiff while in possession has been dispossessed or has discontinued his possession, whereas under Art.65, the time runs when possession of the defendant becomes adverse to the plaintiff. Therefore, under the old Limitation Act, while in all suits for possession based on dispossession, whether the plaintiff had title or not, the burden of proof was on the plaintiff to prove that he was in possession and dispossessed within twelve years of the suit and in suits for possession based on title, the burden of proof was on the defendant to prove that his possession became adverse to the plaintiff beyond twelve years of the suit, under the new Act in a suit based on title even if dispossession is alleged, the defendant can succeed only if he proves that his possession has become adverse to the plaintiff beyond twelve years of the suit. Once the plaintiff proves his title he is not required to show that he was in possession within twelve years of the suit. Whether a suit is based on title or based on dispossession, the allegation in the plaint has to be looked into review of different case laws on Art.142 and 144 of the old Limitation Act (Act of 1908) indicates that in cases coming under Art.142, namely where the plaintiff while in possession had been dispossessed or had discontinued possession, the onus was on the plaintiff to prove that the possession or discontinuance of possession had taken place within twelve yeas of the suit and it was also made applicable to cases where the plaintiff had proved his title to the property. In cases under Art. 144 of the old Act, the onus was on the defendant to prove that he had been in adverse possesssion against the plaintiff continuously for more than twelve years immediately before the suit. Under Art.142 the time ran from the date of plaintiff's dispossession or discontinued of possession whereas under Art.144 time ran from the date in defendant's possession became adverse to the plaintiff. Under the new Act, the cases falling under Art.64, the onus will be on the plaintiff to prove that his dispossession took place within the period of limitation and in case coming under Art.65, the onus will be on the defendant to prove that he had been in adverse possesion against the plaintiff for more than the statutory period. But the real difference that has been brought out under the new Act is on the question of onus of proof.Whereas under the old Act in a suit for possession even if based on title, if the plaintiff was found to be dispossessed or discontinued his possession then the onus was on the plaintiff to prove that the said dispossession or discontinuance of possession took place within the period of limitation, the reason being that Art.142 was general in its terms and applied to all cases where the plaintiff while in possession had been dispossessed or discontinued possession. This position was found to be inequitable and unjust for a true owner and, therefore, the Law Commission in its 3rd. report suggested the change and that is how the two Arts. 64 and 65 have been engrafted whereunder a suit for possession based on title has been taken out of the purview of Art.64 even though the plaintiff being in possesison has been dispossed. In such a suit for possesion based on title, Art.65 applies under which the limitation runs from the time when the defendant's possession becomes adverse to the plaintiff and not from the time when the plaintiff was dispossessed as under Art.64. Consequently, under the present Limitation Act in a suit for possession based on title, the onus is no longer on the plaintiff to prove that his dispossession took place within the period of limitation.