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2014 Supreme(Bom) 595
In the High Court of Bombay at Nagpur
A.P. BHANGALE, J.
Shakuntala
Versus
Chandrabhan & Another
Second Appeal No. 8 of 2000
Decided On : 06-03-2014
For the Appellant:R.R. Shrivastava, Advocate.
For the Respondents:R.M. Sharma, h/f. Anand Parchure, Advocates.
Headnote:Civil Procedure Code, 1908 - Order II, Rule 2 - Limitation Act, Article 136 - Limitation for execution of decree. - Limitation of 12 years for execution of decree starts when decree is capable of being executed. - The remedy for recovery of possession on the same ground is barred as time for execution has expired. The suit is, thus, challenged as barred by limitation as also in view of Order II, Rule 2 of the Code of Civil Procedure.
Article 136 of the Limitation Act, 1963 provided limitation of 12 years for execution of the decree or order of the Civil Court (Except decree granting mandatory injunction). Period of Twelve years is computable from the time the decree became enforceable or from the date of the first default on the part of the judgment debtor to comply with the decree. Thus, the limitation starts when the decree is capable of being executed. Irrespective of the bar by limitation to execute the decree, such decree is still a conclusive evidence of the matter decided by it. Thus, for the purposes unconnected with the execution of the decree, validity of the decree is not affected. The judgment debtor may be punished for his disobedience to the decree passed or for contempt of the Court. The doctrine of res judicata would prevent the second suit on the same cause of action. But fresh suit by the plaintiff on the different cause of action on the basis of the title is not barred. In other words, fresh suit by owner of immovable property upon a different cause of action is not barred. It is for the plaintiff to aver the cause of the suit by stating the fact in the plaint which if traversed is required to be proved by the plaintiff to support his right to the judgment of the Court. When the plea of adverse possession was taken in a suit based on title, Article 65 of the Limitation Act, 1963 was attracted. Period of 12 years of limitation is computable from the date i.e. 5.5.1990 in the present case. The first Appellate Court rightly held the suit as well within limitation.
Looking to the legal position discussed as above, the first Appellate Judge has rightly set aside the judgment and order of dismissal of the suit by the trial Court by allowing the first appeal and passing decree as prayed for by the plaintiff holding the defendant liable jointly and severally to deliver possession to the plaintiff and directing the defendants to deliver vacant possession of the suit house to the plaintiff
1. This appeal arose out of the Judgment and Order dated 28.10.1999 passed in the Regular Civil Appeal No.263 of 1996 by the 4th Additional District Judge, Nagpur which was allowed. The said appeal was filed challenging the Judgment and Order dated 11.3.1996 passed in Regular Civil Suit No.1395 of 1990 by Civil Judge (J.D.), Nagpur whereby the suit was dismissed. For the sake of convenience, the parties are referred to in the judgment by their nomenclature in title of the plaint respectively.
2. Heard the submissions at the bar.
3. This Second Appeal was admitted upon the following substantial questions of law.
(i) Is it not that if the decree dated 28-07-1968 in Civil Suit No.1998/1967 is not executed within a period of 12 years as per article 136 of the Limitation Act, 1963, the right of the owner to obtain possession of the suit property gets lost?
(ii) Is it not if the decree dated 28-07-1968 in Civil Suit No.2998/1967 is not executed within a period of 12 years as per article 136 of the Limitation Act, 1963, the owners are not entitled in law to file a fresh suit to obtain possession of the same property which was the subject matter of the Civil Suit No.2998/1967?
I answer the above questions in the negative for the following reasons.
4. One Smt. Sheeladevi Diwanchand Midha, who had purchased the suit property from Shri Haricharanlal Govindprasad Agrawal, sold the suit property to the plaintiff. The plaintiff claimed ownership of the suit premises on the basis of the registered Sale deed dated 19.10.1984. (Exh.45).
5. In the past, Haricharanlal had sued his tenant of the suit premises Shri Ganpat Ramgirkar. The notice to quit was issued on 05.07.1965. But the tenant did not vacate the house. The plaintiffs had instituted the proceedings under the Rent Control law. Original plaintiffs had filed the suit for declaration and recovery of possession of the house bearing No.312/03, Ward no. 29, Garud khamb Road, Nagpur. The suit house was originally owned by Haricharanlal Govindprasad who had instituted the suit for recovery of possession against the original defendant being Suit No.2998 of 1967 decreed on 23.07.1968. But the defendants denied the title of the plaintiff as landlord. Thus, the present suit on title was instituted by the plaintiff after issuing notice to the defendant. The plaintiff contended that assuming that Haricharanlal did not file the execution proceedings, the defendant’s legal representatives cannot become the owner of the suit premises. The title suit was disputed on the ground that the landlord Haricharanlal had failed to execute the decree and hence, the remedy for recovery of possession on the same ground is barred as time for execution has expired. The suit is, thus, challenged as barred by limitation as also in view of Order II, Rule 2 of the Code of Civil Procedure.
6. The trial Court held that the plaintiffs were owners of the suit premises, but the suit was untenable in the present form and proceeded to dismiss the suit.
7. The first Appellate court held that when a plea of adverse possession is raised, Article 65 is attracted and it is the Civil Court and not the Revenue Court which can decide the plea of adverse possession. The party raising the plea for adverse possession must plead and prove that his possession of the suit property was hostile assertion by the defendant to the knowledge of the owner, uninterrupted, open, continuous, animus possidendi for the period of prescription i.e. 12 years or more. T. Anjanappa & Ors. v. Somalingappa & Anr. [(2006) 7 SCC 570], stating : “It is well recognised proposition in law that mere possession, however long, does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession, the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is advers
