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IN THE HIGH COURT OF BOMBAY
B.A. Masodkar A.D. Tated, JJ.
Ghanshyamdas Vallabhadas Gujrathi... Appellant.
Versus
Brijraman Rasiklal ... Respondent.
First Appeal No. 35 of 1982, decided on 15-3-1984.
Advocates appeared :
R.M. Purandare, for appellant.
C.R. Dalvi, for respondent.
LIMITATION ACT, 1963 - ARTICLE 65 - SECTION 47 OF THE CODE OF CIVIL PROCEDURE - POSSESSION OF IMMOVABLE PROPERTY - ADVERSE POSSESSION - SUIT FOR RECOVERY OF POSSESSION - LIMITATION - REMEDY OF AUCTION PURCHASER - DECLARATION - LIMITATION ACT, 1963 - ARTICLE 58.
Fact of the Case:
The plaintiff purchased the defendant's property in an auction sale in 1953 and obtained a sale certificate. The plaintiff's name was also recorded as the owner in the municipal records. The defendant continued to possess the property and failed to deliver possession to the plaintiff despite assurances. The plaintiff filed a suit for recovery of possession in 1978.
Finding of the Court:
The court held that the defendant's possession was never adverse to the plaintiff, and therefore, the suit was not barred by limitation under Article 65 of the Limitation Act, 1963. The court also held that the suit was not barred by section 47 of the Code of Civil Procedure, as the plaintiff had two remedies available: to apply for delivery of possession in execution within one year from the date the sale became absolute, or to institute a suit for recovery of possession within 12 years from the date the possession of the defendant became adverse to him.
Issues: 1. Whether the suit was barred by limitation under Article 65 of the Limitation Act, 1963? 2. Whether the suit was barred by section 47 of the Code of Civil Procedure?
Ratio Decidendi: 1. The court held that the defendant's possession was never adverse to the plaintiff, and therefore, the suit was not barred by limitation under Article 65 of the Limitation Act, 1963. The court relied on the evidence of the plaintiff's witness, who testified that the defendant never asserted title hostile to the plaintiff and that the defendant had sent letters to the plaintiff assuring him that he could take possession of the property out of Court. 2. The court held that the suit was not barred by section 47 of the Code of Civil Procedure, as the plaintiff had two remedies available: to apply for delivery of possession in execution within one year from the date the sale became absolute, or to institute a suit for recovery of possession within 12 years from the date the possession of the defendant became adverse to him. The court noted that the defendant never raised any question concerning the nature of the rights purchased by the plaintiff at the auction sale and that the defendant had accepted the plaintiff's title and offered to deliver possession out of Court.
Final Decision: The court dismissed the appeal and upheld the trial court's decree for possession of the property in favor of the plaintiff.
2. The defendant resisted the claim on the ground that the suit was barred by limitation. He also contended that the suit as brought was not tenable.
3. On the above pleadings, the learned trial Judge raised necessary issues and after referring them to trial he held that the defendant failed to prove that he perfected his title to the suit property by adverse possession. He found that the suit was within time and that the plaintiff was entitled to the possession of the property except C.T.S. No. 2043. On these findings he decreed the plaintiff's suit for possession of the said property and directed enquiry into future mesne profits under Order XX, Rule 12(1)(c) of the Code of Civil Procedure, 1908.
4. The learned Counsel for the appellant-defendant raised two contentions before us. The first was that the suit was barred by limitation under Article 65 of the First Schedule to the Limitation Act, 1963, and the second was that the suit was not tenable in view of the provisions of section 47 of the Code of Civil Procedure.
5. The plaintiff became the owner of the suit property by virtue of the auction sale in its favour and they have been mutated in its name. The evidence of Narayan Ramchandra Kakade (P.W. 1), who is in the employment of the plaintiff, shows that the defendant never asserted title hostile to the plaintiff. On the contrary, from time to time he sent letters, which are Exhibits 49 to 53, and in those letters he always assured the plaintiff that he could take possession of the suit property out of Court at any time. It shows that the defendant had no hostile animus and never wanted to assert title hostile to the plaintiff. It is pertinent to note that the defendant has not entered into the witness-box. Though the corpus was with the defendant, there was no animous on his part to claim title hostile to the plaintiff, and therefore, his possession never became adverse to the plaintiff. Article 65 of the First Schedule to the Limitation Act of 1963 provides 12 years' period of limitation for possession of an immovable property based on title, and the period of limitation begins to run when the possession of the defendant becomes adverse to the plaintiff. In the present case possession of the defendant was never adverse to the plaintiff, at least till 1975 when the plaintiff requested him to attorn the tenants to it and he failed to do so. The present suit was instituted in the year 1978, that is, well within 12 years from the day
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