RAM SURAT SINGH Vs. BADRI NARAIN SINGH

JUDGEMENT

(1.) To my mind this is a clear case and has been misconstrued in the Courts below owing to two fallacies against which I have frequently protested. I think the Courts have misunderstood it probably because they did not actually study Arts. 142 and 144, Limitation Act, which deal with totally distinct matters which unfortunately are constantly confused, even by decisions in the High Court. Secondly, the lower appellate Court committed the fault of deciding the limitation issue only instead of disposing of all the issues so that the Court of appeal could give a final decision if it was wrong. Now the case will have to go back. It is a difficult task to decide in every case what cause of action the plaintiff intended to set up when the controversy is about the Art. in the Limitation Act, partly because the pleading is not consistent and also because I am afraid pleaders have by bitter experience got into the habits of claiming possession when really the relief which they claim is declaratory, because they have had so many cases of declaratory relief dismissed under the Specific Relief Act.

(2.) But reading between the lines the plaintiff claims title. You cannot call it an ejectment suit, because the plaintiff alleged in para. 5 that the defendant 2 was never in possession. What he probably meant to say was that in some way or another the defendant had threatened the plaintiff's possession, or had cast some cloud or threat upon the plaintiff's title, and on the face of it, it is odd and inconsistent to claim recovery of possession from a person who at the same time you say was never in possession, and a suit for possession against a person who has never been in possession must fail. But defendant 2 cured any defect which there was in the plaint. Two negatives do not make an affirmative but two defective pleadings sometimes make an intelligible cause of action, and it is quite obvious that the real issue was that the defendant claimed to have been in adverse possession. By para. 3 she pleaded that since the death of Ranjit Singh she alone had been in proprietary possession, and issue 3 was framed on that plea. Now I have exhausted myself in trying to explain the irreconcilable cases and to make clear the difference between Arts. 142 and 144 in a judgment by a Bench to which I was a party reported in the case of Jai Chand V/s. Girwar Singh [1919] 41 All. 669 in which I endeavoured to explain and enforce the decision of the Privy Council in the case of Secy. of State V/s. Chelikani Rama Rao A.I.R. 1916 P.C. 21 which I regard as a command to the High Courts in India, and as having overruled several decisions in this and other High Courts. If the suit is for possession by a plaintiff who says that while he was in possession of the property he was dispossessed or has gone out of possession, then he must show possession within 12 years because the suit must be brought within 12 years of the date of the dispossession, and nobody can be dispossessed who is not already in possession, nor can you retain possession unless you are in possession. But in every other case in which a plaintiff claims possession of immovable property, it must be a case under Art. 144, because it is a case not otherwise specifically provided, and in such a case limitation only begins to run where the defendant's possession becomes adverse. The result of that is that the onus lies on the defendant to plead and prove that his possession became adverse and continued adverse for more than 12 years before the suit. In this case the defendant alleged it. She has failed to prove it in this sense that both the Courts have got off the rails and have found not in favour of the defendant, which was the only way in which the defence could succeed, but against the plaintiff. The first Court says that the suit ought to have been brought within 12 years of the date of the death of Ranjit Singh. That is quite irrelevant. It had to find that the defendant had been in adverse possession continuously since the death of Ranjit Singh in order to entitle the defendant to succeed on this issue. The lower appellate Court has done practically the same thing. In a judgment, which I can only describe as vague, it finally comes to the conclusion that the plaintiff's right of possession arose on the death of Ranjit Singh. It may have done so, but before the defendant could succeed on this pleashe had to obtain a finding that she had been in adverse possession.

(3.) I suspect that the findings favourable to the defendant in both the Courts on this misdirection were obtained by citing to the learned Judge the old authorities under Section 142, which do not apply, and that probably those who argued the case are just as much responsible as those who have decided it, but the defendant having pleaded it, an issue having been framed upon it, both Courts having decided it, and the defendant having failed to obtain from either Court a finding that her possession had been continuous and adverse for more than 12 years, the matter has been decided unfavourably to the defendant and is no longer, to my mind, a relevant issue in the suit and ought to be treated as decided in favour of the plaintiff. The rest of the case must go down for the disposal of the remaining issues.