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Allahbad High Court
S.J.HYDER
Bitola Kuer - Appellant
Versus
Ram Charan - Respondent
Decided On : 10/24/1978
ADVERSE POSSESSION - LIMITATION ACT, 1963 - ART. 65 - EXPLANATION - ADVERSE POSSESSION AGAINST HINDU WIDOW - COMPUTATION OF LIMITATION PERIOD - BURDEN OF PROOF.
Fact of the Case:
Plaintiff Bitola Kuer, daughter of Larh Kuer, filed a suit for possession of a house in dispute, claiming title through her mother, who was the daughter of Surat Singh's first wife. The defendant, Mani, claimed adverse possession. The trial court and the first court of appeal dismissed the suit, holding that the plaintiff failed to prove possession within 12 years of the suit and that the suit was barred by res judicata and limitation.
Finding of the Court:
The High Court held that the suit was not barred by res judicata as the defendant was not a party to the earlier suit relied upon. The court also held that the trial court erred in applying the Limitation Act of 1908, as the suit was instituted after the coming into force of the Limitation Act of 1963. The court further held that the burden of proving adverse possession lay on the defendant and that the courts below failed to consider the relevant legal principles in determining the issue of adverse possession.
Issues: 1. Whether the suit was barred by res judicata? 2. Whether the suit was barred by limitation? 3. Whether the defendant had acquired title to the property by adverse possession?
Ratio Decidendi: 1. Res judicata: The court held that the suit was not barred by res judicata as the defendant was not a party to the earlier suit relied upon. The court also held that the subject matter of the earlier suit was not identical to the subject matter of the present suit. 2. Limitation: The court held that the suit was not barred by limitation as the plaintiff had succeeded in proving her title and the defendant had failed to show that he was in adverse possession of the property for more than 12 years. The court also held that the Explanation to Article 65 of the Limitation Act, 1963, which provides that adverse possession against a Hindu widow begins to run only from the date of her death, was applicable in the present case. 3. Adverse possession: The court held that the burden of proving adverse possession lay on the defendant and that the courts below failed to consider the relevant legal principles in determining the issue of adverse possession.
Final Decision: The High Court allowed the appeal, set aside the decree of the lower appellate court, and remanded the case for decision in accordance with the observations made in the judgment.
2. The suit was for possession over the house in dispute. It is not necessary to burden this judgment by repeating the averments made in the pleadings of the parties. The two courts below have found as a fact that the house in dispute, which is situated in village Hardaspur in the district of Budaun belonged to one Malkhan Singh. He had a son named Surat Singh. Surat Singh married three wives-one after the other. His first wife was Jamuna Kuer from whom he had a daughter named Larh Kuer alias Lalsukh. Plaintiff Bitola Kuer is the daughter of Larh Kuer. The second wife of Surat Singh was Deva Kuer. He had no issue from the second wife. The third wife of Surat Singh was Ram Piari. Ram Piari was also issueless. When Surat Singh died, only Deva Kuer and Ram Piari were alive and they entered in possession of his extensive property as the widows of the last male owner. Relations between Deva Kuer and Ram Piari were not cordial after the death of Surat Singh. Deva Kuer and Ram Piari alienated some of the properties which they held as widows estate. Deva Kuer died first. The death of Ram Piari took place on August 26, 1947. Larh Kuer and Bitola Kuer, the present plaintiff-appellants, instituted suit No. 5 of 1949 for setting aside the said alienation and other kindred relief. The said suit was partly decreed. It was dismissed in respect of certain other reliefs. These are concurrent findings of fact which cannot be challenged in this second appeal. The trial court framed a number of issues. The suit which was instituted on April 3, 1967 was dismissed on the finding that the plaintiff Smt. Bitola Kuer has not been able to prove her possession over the said property within 12 years of the suit. The trial court in its judgment referred to original suit No 5 of 1949 filed by Larh Kuer and Bitola Kuer as plaintiffs and it held that since that suit was dismissed in so far as related to possession over the house in dispute, it went a long way to prove that Bitola Kuer or her mother Smt. Larh Kuer were not in possession of the said house. The trial court was also of the view that as the plaintiff had failed to prove possession within 12 years of the suit, it should necessarily be inferred that the defendant was in adverse possession of the house in suit for more than 12 years. The trial court held that the plaintiff s title to the property in dispute was extinguished by the adverse possession of the defendant.
3. At this stage, it may be mentioned that the sole defendant in the suit giving rise to this second appeal was one Mani. He died during the pendency of the suit and his heirs were brought on record and they are now the respondents in this second appeal.
4. The first court of appeal not only substantially affirmed the finding of the trial court on the question of limitation, it also held that the suit was barred by the principle of res judicata. The plea of res judicata was sustained on the basis of the decree in original suit No. 5 of 1949 to which I have already referred above.
5. The appellant has assailed the finding of the first court of appeal on the question of res judicata and also on the question of limitation. It may be stated at the very outset that Mani was not a party to suit No. 5 of 1949. In any view of the matter he or his legal representatives could not rely on S. 11 of the Code of Civil Procedure to non-suit the plaintiff. In order to attract the doctrine of res judicata, the following conditions must exist :-
(1) That the litigating parties in the earlier-suit and the subsequent suit are the same.
(2) That the subject-matter of the earlier suit and the later suit must be identical.
(3) The matter must have been finally decided between the parties in the earlier suit.
(4) The earlier suit must have been decided by a court of competent jurisdiction.
6. The first condition enumerated above was clearly lacking. I will presently sho
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