GHAMANDI Vs. SUKH DEVI

JUDGEMENT

(1.) A decree for possession by redemption was passed in favour of Smt. Sukh Devi against the mortgagees. In execution Ghamandi and others (other than the judgment-debtors) were dispossessed and Smt. Sukh Devi got possession on 3rd of June, 1960. After dispossessed Ghamandi and others filed an application under Order 21 Rule 100 of the Civil Procedure Code (for short 'the Code'), and claimed restoration of possession on the ground that they were not the judgment-debtors and were in possession as tenants of the mortgagor. Vide order dated 25th October, 1960, Annexure P-5, the Executing Court held that Ghamandi and others could not be dispossessed as they were tenants of the mortgagor and ordered restoration of possession. Smt. Sukh Devi challenged that order in appeal and ultimately by order dated 25th May, 1973, Annexure D.5, passed by the appellate Court, it was decided that the possession has to be restored to Ghamandi and others. On 5th November, 1973, possession was in fact restored to Ghamandi and others and on 17.11.1973, vide Annexure D.2, execution proceedings were consigned. On 19.11.1973 Smt. Sukh Devi filed a suit for possession against Ghamandi and others on the basis of title. Ghamandi and others contested the suit and the important pleas, which deserve to be noticed, are that they were owners of the property by way of adverse possession and the suit was barred by time. It is also important to notice that it was not pleaded that they were the tenants of the mortgagor and as tenants were entitled to retain possession.

(2.) The trial Court dismissed the suit as time-barred on the basis that Article 11-A of the Limitation Act, 1908 , was applicable, where-under suit under Order 21 Rule 103 of the Civil Procedure Code (for short 'the Code'), should have been filed within one year of the order dated 25th October, 1960, Annexure P.5, and the one filed on 19.11.1973 was time-barred. However, on merits it was held that the plaintiff is the owner and the defendants have not been able to prove the ownership.

(3.) On Smt. Sukhdevi's appeal, the lower appellate Court held that the suit did not fall under Order 21 Rule 103 of the Code as Smt. Sukh Devi continued to be in possession in spite of order dated 25th October, 1960 till 5th November, 1973, and was a simple suit for possession on the basis of title for which limitation was 12 years from the date of dispossession. Accordingly, the appeal was allowed and the suit for possession was decreed. This is second appeal by Ghamandi and others.