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CASE NO.: Appeal (civil)  5864 of 1999

PETITIONER: RAMIAH

RESPONDENT: N. NARAYANA REDDY (DEAD) BY LRs.

DATE OF JUDGMENT: 10/08/2004

BENCH: ASHOK BHAN & S.H. KAPADIA.

JUDGMENT: J U D G M E N T

KAPADIA, J.

       Being aggrieved by the judgment and order dated 27th May,  1997 passed by the High Court of Karnataka in R.F.A. No.412 of  1988, the original plaintiff has come to this Court by this appeal.  By  the impugned judgment, the High Court has dismissed the suit filed by  the plaintiff.           The short question which arises for consideration in this appeal  by special leave is \027 whether the plaintiff has proved that he was in  possession of the suit land within 12-years of the date of the suit?

       The facts on which this appeal has arisen are as follows:\027

       One Bayyanna was owner of the suit land in Survey No.19/1  admeasuring 3 acres 12 gunthas.  The suit land was Inam land.   Bayyanna sold the suit land to N. Narayana Reddy (since deceased)  father of the respondents herein, vide registered sale deed dated  4.11.1958.  N. Narayana Reddy had instituted suit no.357/60 in the  Court of Principal Second Munsiff, Bangalore for recovery of  possession based on title and for permanent injunction against the  appellant herein on the ground that the appellant was trying to  interfere with his possession.   

       The defence of the appellant herein in the above suit was that he  had purchased the suit land on 27.11.1959 from B. Bayyanna and that  he was in possession of the suit land.  His further defence was that the  suit land was Inam land and that he was registered as Khadim tenant  by the Inam Abolition Authorities.  By judgment and order dated  7.4.1971, the Principal Munsiff, Bangalore partly decreed the suit  filed by N. Narayana Reddy holding him to be the owner of only 1  acre 21 gunthas and not of the entire land admeasuring 3 acres 12  gunthas.  However, he was found to be in possession of the entire 3  acres 12 gunthas and, therefore, the Principal Munisff granted  permanent injunction in favour of N. Narayana Reddy restraining the  appellant herein from interfering with the possession of N. Narayana  Reddy on the entire suit land admeasuring 3 acres 12 gunthas with  liberty to the appellant herein to take steps to recover possession of 1  acres 21 gunthas out of the total area of 3 acres 12 gunthas by  following due process of law.  By the aforestated judgment, the  Principal Munsiff, Bangalore came to the conclusion that N. Narayana  Reddy was in possession of the entire area admeasuring 3 acres 12  gunthas; that the entire area was Inam lands and since an area  admeasuring 1 acre 21 gunthas out of total area admeasuring 3 acres  12 gunthas was regranted by the Deputy Commissioner to the  appellant herein, N. Narayana Reddy was not the owner of the entire

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area admeasuring 3 acres 12 gunthas.  

       Being aggrieved by the judgment and order dated 7.4.1971, N.  Narayana Reddy preferred Regular Appeal No.45 of 1971.  The First  Appellate Court dismissed the said Regular Appeal vide judgment  dated 13.1.1975.  Thereafter, N. Narayana Reddy filed Regular  Second Appeal No.801 of 1975 in the High Court of Karantaka,  which came to be dismissed on 24.11.1982.  Consequently, the  judgment and decree passed in suit no.357/60 dated 7.4.1971 reached  finality on 24.11.1982.

       On 8.5.1984, the appellant herein filed the present suit no.1518  of 1984 i.e. within two years from the date of the decision of the High  Court dated 24.11.1982 in RSA No.801/75 filed by N. Narayana  Reddy, for possession of land admeasuring 1 acre 21 gunthas.  The  said suit was instituted in the Court of Additional City Civil Judge,  Bangalore (hereinafter for the sake of brevity referred to as "the trial  Court").  In the said suit, it was held that the appellant herein  admittedly stood ousted in 1971 and, therefore, the said suit was  barred by limitation as it was filed after 13 years from dispossession.   Consequently, the trial Court dismissed the suit.  

       Being aggrieved, the appellant herein preferred Regular First  Appeal No.412 of 1988 under Section 96 of CPC in the High Court of  Karnataka.  By the impugned judgment, the High Court confirmed the  dismissal of the suit by the trial Court by holding that the present suit  has been filed much beyond 12 years.  By the impugned judgment, the  High Court rejected the contention advanced on behalf of the  appellant that the period of limitation commenced only after the  decision of the High Court of Karantaka in RSA No.801/75, filed by  N. Narayana Reddy, decided on 24.11.1982.  Hence, this civil appeal.  

       Mr. P. R. Ramasesh, learned counsel appearing on behalf of the  appellant contended that the plaintiff had instituted the suit for  possession based on title and not on the basis of previous possession  and, therefore, under article 65 of the Limitation Act, 1963 the suit  was well within the time as the limitation of 12-years commenced  from the date when the possession of the defendant became adverse to  the plaintiff.  He contended that article 64 was not applicable to the  facts of the present case as the suit instituted by the appellant for  possession of immovable property was based on title and not on the  basis of previous possession.  It was further urged that the appellant  was entitled to the benefit of section 14 of the Limitation Act, 1963,  as the earlier litigation instituted by N. Narayana Reddy came to an  end only on 24.11.1982 when the High Court in RSA No.801/75  confirmed the decree dated 7.4.1971 passed by the Principal Munsiff  in suit no.357/60.         We do not find any merit in the aforestated arguments.  Article  64 of the Limitation Act, 1963 (Article 142 of the Limitation Act,  1908) is restricted to suits for possession on dispossession or  discontinuance of possession.  In order to bring a suit within the  purview of that article, it must be shown that the suit is in terms as  well as in substance based on the allegation of the plaintiff having  been in possession and having subsequently lost the possession either  by dispossession or by discontinuance.  Article 65 of the Limitation  Act, 1963 (Article 144 of the Limitation Act, 1908) on the other hand  is a residuary article applying to suits for possession not otherwise  provided for.  Suits based on plaintiffs’ title in which there is no  allegation of prior possession and subsequent dispossession alone can  fall within article 65.  The question whether the article of limitation  applicable to a particular suit is article 64 or article 65 has to be  decided by reference to pleadings.  The plaintiff cannot invoke article  65 by suppressing material facts.  In the present case, in suit  no.357/60 instituted by N. Narayana Reddy in the Court of Principal  Munsiff, Bangalore, evidence of the appellant herein was recorded.  In

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that suit, as stated above, the appellant was the defendant.  In his  evidence, appellant had admitted that he was in possession of the suit  property up to 1971.  This admission of the appellant in that suit  indicates ouster from possession of the appellant herein.  In the  present suit instituted by the appellant, he has glossed over this fact.   In the circumstances, both the Courts below were right in coming to  the conclusion that the present suit was barred by limitation. The  appellant was ousted in 1971.  The appellant had instituted the present  suit only on 8.5.1984.  Consequently, the suit has been rightly  dismissed by both the Courts below as barred by limitation.   

       In the case of Ram Surat Singh & others v. Badri Narain  Singh reported in [AIR 1927 Allahabad 799], it has been held that if  the suit is for possession by a plaintiff who says that while he was in  possession of the property he was dispossessed, then he must show  possession within 12-years under article 142 (now article 64) of the  Limitation Act.  To the same effect is the ratio of the judgment in the  case of Mohammad Mahmud v. Muhammad Afaq & others reported  in [AIR 1934 Oudh 21].  In the commentary on the Limitation Act by  Sanjiva Row [Ninth Edition \026 IInd Volume page 549] it has been  stated that the question as to which of the two articles would apply to  a particular case should be decided by reference to pleadings, though  the plaintiff cannot be allowed by skilful pleading to avoid the  inconvenient article.  On facts of the case, we find that the article 64 is  applicable to the present suit.  Consequently, the suit has been rightly  dismissed by both the Courts below.   

       In the present case, on the facts of this case as stated above,  section 14 of the Limitation Act, 1963 cannot be invoked by the  appellant as the appellant herein had never challenged the findings on  possession recorded by the Principal Munsiff vide decree dated  7.4.1971.  In the present case, earlier suit no.357/60 was filed by the  said N. Narayana Reddy, which was partly decreed and, therefore, he  preferred Regular Appeal No.45/71 which was dismissed by the First  Appellate Court on 13.1.1975.  Thereafter, N. Narayana Reddy filed  RSA No.801/75 which was dismissed by the High Court on  24.11.1982.  All throughout this period, although the appellant had the  right to recover possession from N. Narayana Reddy to the extent of 1  acre 21 gunthas in accordance with law, the appellant herein did not  take any steps to sue for possession till 8.5.1984.  Consequently, the  appellant was not entitled to the benefit of section 14 of the Limitation  Act, 1963.     

       For the foregoing reasons, we do not find any merit in this civil  appeal and the same is accordingly dismissed, with no order as to  costs.