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Allahbad High Court
M.N.SHUKLA
Udho - Appellant
Versus
Khimian - Respondent
Decided On : 05/26/1978
LIMITATION ACT - ART. 142 AND 144 - DISTINCTION - SUIT FOR POSSESSION OF IMMOVABLE PROPERTY - GOVERNING ARTICLE - BURDEN OF PROOF.
Fact of the Case:
Plaintiffs filed a suit for possession of two rooms, alleging ownership and tenancy of the defendants. The trial court decreed the suit, and the appellate court affirmed the decree. The defendants appealed, arguing that the suit was barred by limitation under Art. 142 of the Limitation Act, as the plaintiffs had failed to prove possession within 12 years prior to the suit.
Finding of the Court:
The court held that Art. 142 of the Limitation Act did not apply to the facts of the case, as the plaintiffs had not alleged dispossession or discontinuance of possession. The court further held that the residuary Art. 144 of the Limitation Act applied, and that the burden of proving adverse possession rested on the defendants.
Issues: 1. Whether the suit was barred by limitation under Art. 142 of the Limitation Act? 2. Whether the defendants had proved adverse possession.
Ratio Decidendi: 1. Art. 142 of the Limitation Act applies to suits for possession of immovable property based on the ground of dispossession or discontinuance of possession. Where Art. 142 is applicable, the burden of proof lies on the plaintiff to show that the date of dispossession or discontinuance of possession which gave him the cause of action for the suit was within 12 years preceding the suit. 2. Art. 144 of the Limitation Act applies to suits for possession of immovable property not specially provided for in any other Article of the Act. Where Art. 144 is applicable, the plaintiff alleging his title must succeed if the title is proved and his suit cannot be dismissed unless the defendant proves his adverse possession.
Final Decision: The court dismissed the appeal, holding that the plaintiffs were entitled to a decree for possession as the defendants had failed to prove adverse possession.
The suit giving rise to this second appeal was instituted by the predecessors-in-interest of the plaintiff-respondents in the court of Munsif, Moradabad on 18-10-1966 for possession over two rooms situate in the city of Moradabad on the allegations that the property was purchased by one Uttam, father of the respondents by means of a registered sale-deed dated 29-1-1902 and since then the plaintiffs had been in possession thereof as owners, that some thatched houses were originally built up on the said property and the same had undergone changes and alterations, that Udho, defendant No. 1 had originally taken the said rooms for the purpose of tethering his cattle from Uttam s predecessor as licensee but later on Udho started paying rent to him and thus he became the tenant of the disputed property. It was alleged that Udho also paid rent to the father of the plaintiffs that the present plaintiffs had filed an earlier suit No. 335 of 1964 in the court of the Munsif, Moradabad on the basis of tenancy, which was, however, dismissed on the ground of a legal defect in the notice on 31-8-1965 and also on the finding that the plaintiffs had failed to prove that there existed the relationship of landlord and tenant between the parties. The plaintiffs, therefore, filed the present suit for ejectment against the defendants on the basis of their title. The defendants filed their written statement alleging that they had been residing in the disputed accommodation by virtue of their being the owners, that Uttam never let out the disputed accommodation to the defendants, that the plaintiffs had never been in possession within 12 years preceding the filing of the suit and the suit was barred by limitation. The defendants also took the plea that they had acquired rights of ownership by virtue of their being in adverse possession for a period of more than 12 years. Some other pleas were also raised which are no longer relevant.
2. The trial court decreed the suit for recovery of possession after eviction of the defendants from the accommodation in dispute and on appeal the decree was affirmed. The findings recorded by the courts below are:
(i) that the plaintiffs are the owners of the disputed property,
(ii) that the defendants were the tenants of the plaintiffs,
(iii) that the suit was barred by time as the plaintiffs had failed to prove their possession within 12 years prior to the suit, and
(iv) that the defendants had not become owners by adverse possession.
3. As I have already indicated, the plaintiffs had brought, an earlier suit also on the allegation of tenancy which they had failed to establish but in the present suit the courts below have arrived at a contrary finding and the first question which arises is as to whether the finding recorded in the earlier suit No. 335 of 1964 to the effect that the relationship of landlord and tenant did not exist between the defendants and the plaintiffs would operate as res judicata in the present case. Admittedly that suit was between the same parties and it had been brought on the allegation of tenancy of the defendants and the following issue was struck by the trial court as issue No. 1 in that case:
" Whether there existed a relationship of landlord and tenant between the parties as alleged?"
4. Holding that there was no reliable evidence on behalf of the plaintiffs in support of their plea the issue was decided against the plaintiffs in that suit. That judgment became final between the parties and it is neither claimed nor is there any evidence of that decree having been challenged in appeal.
5. As has been repeatedly emphasised, it is not possible to postulate any hard and fast rule as to whether a previous decision in a suit for rent does or does not operate as res judicata in a subsequent suit based on title. The answer would ultimately depend upon the fact as to whether the issue raised in the subsequent suit was directly and substantially in issue in the former suit and this would
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