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CASE NO.: Appeal (civil)  4426 of 1999

PETITIONER: Saroop Singh

RESPONDENT: Banto & Ors.

DATE OF JUDGMENT: 07/10/2005

BENCH: S.B. Sinha & R.V. Raveendran

JUDGMENT: J U D G M E N T

S.B. SINHA,  J :

       The first defendant in the suit is in appeal before us.   The plaintiff- respondents filed a suit for possession and permanent injunction, being Suit  No.218 of 1994.   

       One  Shadi admittedly was the owner of the suit property.   He left  behind his widow, Indira Devi, who inherited the same.  On or about  7.1.1955, by a deed of gift Indira Devi donated the suit property in favour of  the Appellant herein.  One Harnama son of  Jatti and Nathu son of Chetu (as  reversioners of said Shadi) filed a suit being Suit No.204 of 1957  challenging the legality of the said deed of gift, contending that said Indira  Devi had a limited life interest therein.

       In terms of a judgment and decree dated 31.1.1958, the said suit was  decreed.   The said Indira Devi is stated to have died subsequently.  Her date  of death is not known.  The Appellant \026 First Respondent contended that she  died at Haridwar in the year 1961.  While filing the aforementioned suit on  7.7.1994, the Respondents raised a plea that as she was not heard for a  period of seven years prior thereto,  by them and by others who would have  heard from her had she been alive, she was presumed to have been died .  

The plaintiffs-Respondents, as regard the earlier suit,  averred :                  "One Harnama son of Jatti and one Nathu son of  Chetu challenged the gift deed mentioned above in the  year 1957 through a suit No.204 and sought declaration  to the effect that the gift deed in dispute  shall not effect  their reversionary rights after the death of Inder Devi and  their suit was decreed on 31.1.58 by Sub-Judge, Ist Class,  Ambala.  However, at the same time it was observed by  the Ld. Sub-Judge, that declaratory decree will ensue for  the benefit of daughters of Shadi deceased.   Apart from  it under the customary law of Punjab Smt. Inder Devi  was not absolute owner on 7.,1.1955 i.e. the day of gift of  the suit properties, rather on the other hand she was only  having life interest in the suit properties  and could not  gift away the same to defendant No.1 as Smt. Inder Devi  had already parted with the suit properties in favour of  defendant No.1 and could not become absolute owner  with the pasasing of Hindu Succession Act, 1956, rather  her life interest continued through in the hand of  defendant No.1."

In the said suit, the  plaintiff-respondents prayed :

       "It is, therefore, prayed that the suit of the

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plaintiffs for possession as owner of the land comprised  in Kh/kh. No.285/356, Khasra  Nos. 194(8-4), 195(5-7),  2124(6-18), 1854(1-2), 1859(4-7), 1856(4-7), 851(4-3),  850/2(0-8), 1621(0-15), and for symbolical possession as  owner of the land comprised in kh/kh No.285/337,  Khasra Nos.849(1-10), 850(3-7), situated within the  revenue limits of village Mullanpur Garib Dass and of  1/6 share of kh. No.2078(3-7) and of 1/6 share out of  Bara bounded as\005\005\005\005.and for permanent injunction  restraining the defendant No.1 from alienating the suit  properties to anybody may kindly be decreed in favour of  the plaintiff against the defendants with costs.

       Any other relief this Ld. Court deeds fit may  kindly be granted to the plaintiff in the interest of  justice."

       The statements made in paragraph 1 was traversed by the Appellant  herein in paragraph 3 of the written statement, contending :

"It is incorrect and denied.  Smt. Inder Devi who had  been absolute owner of the suit properties and she made a  valid gift in favour of the answering defendant."

       A plea that the suit is time-barred was also raised as an additional  plea.   

       The learned Trial Judge in view of the pleadings of the parties, inter  alia, framed the following issues :

"3.     What is the effect of the judgment and decree  dated 31.1.1958 ?  OPP. Parties.

4.      Whether Smt. Inder Devi has not been heard for  the last 7/7 = years back by plaintiff and other  family members and is presumed to be dead ?  OPP.

5.      Whether plaintiffs are entitled to possession of the  suit land. OPP.

6.      Whether suit is time barred ? OPP."

       While dealing with Issue No.3, the Trial Court noticed that in the  judgment and decree passed in Suit No.204 of 1957, which was marked as  Ex.P3 and Ex.P4, it was observed that the declaratory decree would ensue  the benefit of the daughters of Shadi, who were the plaintiffs therein, and on  that basis decided the said issue in favour of the plaintiff-respondents.   

       As regard Issue No.4, it while holding that there was no cogent  evidence proving the death of Indira Devi in the year 1961 recorded a  finding that she was presumed to have died on account of her untraceability  for more than 7 years in terms of Section 108 of the Indian Evidence Act.   As regard Issue Nos.5 and 6, the Trial Court held  :

"\005The defendant has nowhere pleaded that he became  the owner of the suit land by way of adverse possession.   No amount of evidence can be taken into account by  travelling beyond the pleadings of the parties.  The  defendant has neither pleaded nor set up any adverse  possession over the suit property.   No period of  limitation is prescribed for bringing a suit for possession

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on the basis of inheritance.  The suit for possession on  the basis of inheritance can fail if defendant proves that  he has perfected his title by way of adverse possession.   In the instant case, the defendants have not set up any  adverse possession and consequently the suit is within  time under Article 65 of the Limitation Act, 1963\005"

       The appeal preferred thereagainst by the Appellant was dismissed.  In  the Second Appeal filed before the High Court, the Appellant, inter alia,  raised the question of limitation. The High Court relying on or on the basis  of Entry  2(b) of the schedule appended to the Punjab Limitation (Customs)  Act, 1920, affirming the findings of the courts below that the Appellant  could not prove the date of death of Indira Devi, held that the suit is not  barred by limitation stating :

"\005Since the defendant-appellant failed to prove the  death of Indira Devi, it cannot be said that the suit filed  by the plaintiffs is barred by time.  In fact the suit filed is  basing on the acquisition of title on the death of Indira  Devi.  Thus the suit is based on title as it cannot be  disputed that the plaintiffs became entitled to the suit  property on the death of their mother.  It is for the  defendant-appellant to prove that he has perfected in his  title being in adverse possession for over 12 years from  the date of death of Indira Devi and that the plaintiffs lost  their right to sue by efflux of time.  Under Article 65 of  the Limitation Act, the burden of proof that he perfected  his title by adverse possession is on the defendant- appellant."                             

       Mr. P.L. Jain, the learned Senior Counsel appearing on behalf of the  Appellant herein, would contend that the courts below committed a manifest  error of law insofar as they failed to properly interpret the provisions of  Sections 107 and 108 of the Indian Evidence Act; as by reason thereof a date  of death cannot be fixed.  It was urged that Indira Devi did not become an  absolute owner in terms of the provisions of the Hindu Succession Act, 1956   as she was not possessed of the property  on the date of coming into force  thereof and in that view of the matter the courts below had committed a  serious error in passing the impugned judgments relying on or on the basis  of Article 65 of the Limitation Act, 1963.  Reliance, in this connection, has  been placed on Giasi Ram and Others vs. Ramjilal and Others [(1969) 1  SCC 813]            It was submitted  that it was for the plaintiff-Respondents to prove the  date of death of Indira Devi as they have not  filed a suit based on title.

       Mr. P.N. Mishra, the learned Senior Counsel appearing on behalf of  the plaintiff-respondents, on the other hand, would contend that on the death  of Indira Devi, the succession reopened in view of the declaratory decree  passed by the Civil Court.  It was argued that having regard to the fact that  the Appellant having not set up any plea of adverse possession, the suit  cannot be held to be barred by limitation and in that view of the matter  Article 65 of the Limitation Act, 1963 will have no application.

       It has not been disputed  before us that the judgment and decree  passed in Suit No.204 of  1957 had attained finality.  In the said suit, it was  held :

"\005In the present case the declaratory decree will ensue  for the benefit of the daughters of Shadi deceased and the  daughters’ sons who are minors.  In the circumstances,  I  would in exercise of my discretion, grant the plaintiffs a  decree for a declaration to the effect that the gift in

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dispute shall not affect their reversionary rights after the  death of defendant no.1.  The parties are, however, left to  bear their own costs\005"

       It is furthermore not in dispute that Indira Devi had only a life   interest.  The  deed of gift dated 7.1.1955 was, therefore, held to be valid  only so long as  she was alive.  On her death the succession reopened having  regard to the provisions of the Hindu Succession Act, 1956.  The  Respondents being daughters inherited the interest of  Shadi.   They were  also reversioners in terms of their personal law as was opined by the Civil  Court in the earlier suit.  The plaintiff-respondents, therefore, rightly claimed  their title by inheritance.   

       Entry 2(b) of the Punjab Limitation (Customs) Act, 1920 provides for  a limitation of three years, when a suit is filed for possession  of ancestral  immovable property which has been alienated on the ground that the  alienation is not binding on the plaintiff according to custom.  The said  provision has no application herein as the title of the suit property in favour  of the Respondents herein had already been declared by the Civil Court in  the earlier suit, subject to the condition that they remain owners thereof.  The  Civil Court took into consideration the customary law as also the provisions  of the Hindu Succession Act while arriving at the said finding.  Moreover, a  declaratory decree obtained  by a reversioner is not binding upon actual  owner, in view of the decision of this Court in Shankuntla Devi vs. Kamla  and Others [(2005) 5 SCC 390].

       In the suit, it was not necessary for the Respondents herein to claim  their reversionary right, as the same had already been declared in the earlier  suit.

       This Court in Giasi Ram (supra) held :                  "The Punjab Custom (Power to Contest) Act 1 of 1920,  was enacted to restrict the rights exercisable by members  of the family to contest alienations made by a holder of  ancestral property. By virtue of Section 6 of the Act no  person is entitled to contest an alienation of ancestral  immovable property unless he is descended in the male  line from the great-great-grandfather of the alienor.  Under the customary law in force in the Punjab a  declaratory decree obtained by the reversionary heir in an  action to set aside the alienation of ancestral property  enured in favour of all persons who ultimately took the  estate on the death of the alienor for the object of a  declaratory suit filed by a reversionary heir impeaching  an alienation of ancestral estate was to remove a common  apprehended injury, in the interest of the reversioners.  The decree did not make the alienation a nullity \027 it  removed the obstacle to the right of the reversioner  entitled to succeed when the succession opened. By the  decree passed in Suit No. 75 of 1920, filed by Giani Ram  it was declared that the alienations by Jwala were not  binding after his life time, and the property will revert to  his estate. It is true that under the customary law the wife  and the daughters of a holder of ancestral property could  not sue to obtain a declaration that the alienation of  ancestral property will not bind the reversioners after the  death of the alienor. But a declaratory decree obtained in  a suit instituted by a reversioner competent to sue has the  effect of restoring the property alienated to the estate of  the alienor."

       In this case, the Respondents herein have a better title.  They were not  parties in the earlier suit.  They, therefore, claimed their title independent of  the declaratory decree, although such right has been noticed therein.  We

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would consider the question of applicability of Limitation Act little later but  before doing that we may consider the question of date of death of Indira  Devi.         Sections 107 and 108 of the Indian Evidence Act read :         "107.  Burden of proving death of person  known to have been alive within thirty years.- When  the question is whether a man is alive or dead, and it is  shown that he was alive within thirty years, the burden of  proving that he is dead is on the person who affirms it.

       108.    Burden of proving that person is alive  who has not been heard of for seven years.-Provided  that when the question is whether a man is alive or dead,  and it is proved that he has not been heard of for seven  years by those who would naturally have heard of him if  he had been alive, the burden of proving that he is alive is  shifted to the person who affirms it."                              Section 108 is a proviso to Section 107. There is neither any doubt or dispute that the date of death of Indira  Devi is not certain.  By reason of  the aforementioned provision, a  presumption of death can be raised.  In this case, however, death of Indira  Devi is not in question, the date of death is.  In the instant case, both the  parties have failed to prove the date of death of Indira Devi.  However,  having regard to the presumption contained in Section 108 of the Indian  Evidence Act, the Court shall presume that she was dead having not heard of  for a period of seven years by those who would naturally have heard of him,  if he had been alive, but that by itself would not be a ground to presume that  she had died seven years prior to the date of institution of the suit    In Lal Chand Marwari vs. Mahant Ramrups Gir and Another \026 AIR  1926 PC 9], it was observed : "Now upon this question there is, their Lordships are satisfied,  no difference between the law of India as declared in the  Evidence Act and the Law of England (Rango Balaji vs.  Mudiyeppa (1899) 23 Bom. 296) and searching for an  explanation of this very persistent heresy, their Lordships find it  it in the words in which the rule both in India and in England is  usually expressed.  These words taken originally from In re  Phene’s Trusts  (L.R. 5 Ch.139)  run as follows :- "If a person has not been heard of for seven years, there is a  presumption of law that he is dead; but at what time within that  period he died is not a matter of presumption but of evidence,  and the onus of proving that the death took place at any  particular time within the seven years lies upon the person who  claims a right to the establishment of which that fact is  essential." Following these words, it is constantly assumed \026 not  perhaps unnaturally \026 that where the period of disappearance  exceeds seven years, death, which may not so.  The  presumption is the same if the period exceeds seven years.  The  period is one and continuous, though it may be divisible into  three or even four periods of seven years.  Probably the true  rule would be less liable to be missed, and would itself be stated  more accurately, if, instead of speaking of a person who had not  been heard of for seven years, it described the period of  disappearance as one of not less than seven years."

In LIC of  India  vs. Anuradha [(2004) 10 SCC 131], this Court held :

"12. Neither Section 108 of the Evidence Act nor logic,  reason or sense permit a presumption or assumption  being drawn or made that the person not heard of for  seven years was dead on the date of his disappearance or  soon after the date and time on which he was last seen.  The only inference permissible to be drawn and based on

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the presumption is that the man was dead at the time  when the question arose subject to a period of seven  years’ absence and being unheard of having elapsed  before that time. The presumption stands unrebutted for  failure of the contesting party to prove that such man was  alive either on the date on which the dispute arose or at  any time before that so as to break the period of seven  years counted backwards from the date on which the  question arose for determination. At what point of time  the person was dead is not a matter of presumption but of  evidence, factual or circumstantial, and the onus of  proving that the death had taken place at any given point  of time or date since the disappearance or within the  period of seven years lies on the person who stakes the  claim, the establishment of which will depend on proof  of the date or time of death."

       However, the date of death of Indira Devi would not assume any  significance, as would appear from the discussions made hereinafter.   

       In the instant case, the question of applicability of the Limitation Act  does not arise.  The Appellant-first defendant could have legitimately raised  a plea that Indira Devi having died in the year 1961, his possession  thereafter has become adverse to the true owner and, thus, on the expiry of  the statutory period of limitation he had perfected his title by adverse  possession.  But, he did not raise such a plea.  Even before us, Mr. Jain  categorically stated that the Appellant does not intend to raise such a plea.   

       Articles 64 and 65 of the Limitation Act read thus : "

Description of suit Period of  Limitation Time from which  period begins to  run 64. For possession of immovable  property based on previous  possession and not on title,  when the plaintiff while in  possession of the property has  been dispossessed Twelve years The date of  dispossession. 65. For possession of immovable  property or any interest  therein based on title. Explanation.-For the purposes  of this article \026 (a)     where the suit is by a  remainderman, a  reversioner (other than  a landlord) or a devisee  the possession of the  defendant shall be  deemed to become adv  erse only when the  estate of the  remainderman,  reversioner or devisee,  as the case may bay,

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falls into possession; (b)     where the suit is by a  Hindu or Muslim  entitled to the  possession of  immovable property on  the death of a Hindu or  Muslim female, the  possession of the  defendant shall be  deemed to become  adverse only when the  female adverse only  when the female dies; (c)     where the suit is by a  purchaser at a sale in  execution of a decree  when the judgment- debtor was out of  possession at the date  of the sale, the  purchaser shall be  deemed to be a  representative of the  judgment-debtor who  was out of possession.

Twelve years When the  possession of the  defendant  becomes adverse  to the plaintiff                                                                                         "    

       The statutory provisions of the Limitation Act have undergone a  change when compared to the terms of Articles 142 and 144 of the schedule  appended to the Limitation Act, 1908, in terms whereof it was imperative  upon the plaintiff not only to prove his title but also to prove his possession  within twelve years, preceding the date of institution of the suit.  However, a  change in legal position has been effected in view of Articles 64 and 65 of  the Limitation Act, 1963.  In the instant case, plaintiff-respondents have  proved their title and, thus, it was for the first defendant to prove acquisition  of title by adverse possession.  As noticed hereinbefore, the first defendant- Appellant did not raise any plea of adverse possession.  In that view of the  matter the suit was not barred.           In terms of Article 65 the starting point of limitation does not  commence from the date when the right of ownership arises to the plaintiff  but commences from the date defendant’s possession  becomes adverse.   [See Vasantiben Prahladji Nayak and Others vs. Somnath Muljibhai Nayak  and Others  (2004) 3 SCC 376]

       ’Animus possidendi’ is one of the ingredients of adverse possession.   Unless the person possessing the land has a requisite animus the period for  prescription does not commence.  As in the instant case, the Appellant  categorically states that his possession is not adverse  as that of true owner,  the logical corollary is that he did not have the requisite animus.   [See Md.  Mohammad Ali (Dead) By LRs. Vs. Jagdish Kalita and Others, (2004) 1  SCC 271, para 21]

       Yet again in  Karnataka Board of Wakf vs. Government of India and  Others [(2004) 10 SCC 779], it was observed :  "\005Physical fact of exclusive possession and the animus  possidendi to hold as owner in exclusion to the actual  owner are the most important factors that are to be

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accounted in cases of this nature. Plea of adverse  possession is not a pure question of law but a blended  one of fact and law. Therefore, a person who claims  adverse possession should show: (a) on what date he  came into possession, (b) what was the nature of his  possession, (c) whether the factum of possession was  known to the other party, (d) how long his possession has  continued, and (e) his possession was open and  undisturbed. A person pleading adverse possession has  no equities in his favour. Since he is trying to defeat the  rights of the true owner, it is for him to clearly plead and  establish all facts necessary to establish his adverse  possession."

       In view of our findings aforementioned, we are of the opinion that  there is no merit in this appeal, which is accordingly dismissed.  No costs.