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2026:CGHC:460

AFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

Judgment Reserved on 14.10.2025

Judgment Delivered on 05. 01 .2026

Judgment Uploaded on 05. 01 .2026

SA No. 127 of 2005

Kariman (Died) Through LR:

1) Balram Rajwade S/o Late Kariman Aged About 58 Years R/o Village-

Mayapur, Near Mahamaya Mandir, Ambikapur, Police Station And Tahsil

Ambikapur District Surguja C.G.

... Appellant (s)

versus

Jainath (Died) Through LRs:

1 (A) - Bhagwati Rajwade Wd/o Late Jainath Aged About 75 Years

1 (B) - Shriram Rajwade S/o Late Jainath Aged About 58 Years

1 (C) - Shankar Rajwade S/o Late Jainath Aged About 50 Years

All above R/o Village- Mayapur, Near Mahamaya Mandir, Ambikapur, Police

Station And Tahsil Ambikapur District Surguja C.G.

2 - State Of Chhattisgarh Through - Collector, Surguja, Ambikapur (C.G.)

... Respondent(s)

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__________________________________________________________

For Appellant (s) : Mr. Sandeep Patel, Advocate

For Resp No.1 (A) to 1 (C) : Mr. Aditya Kumar Mishra, Advocate

For State/Resp No.2 : Mr. Kalpesh Ruparel, Panel Lawyer

_______________________________________________________

S.B.: Hon'ble Shri Parth Prateem Sahu, Judge

CAV Judgment

1.This second appeal is filed by appellant/defendant challenging

impugned judgment and decree dated 29.01.2005 passed in Civil

Appeal No.02-A/2003 by learned Second Additional District Judge,

Ambikapur, District - Sarguja whereby learned first appellate Court set

aside the judgment and decree passed by learned trial Court and

decreed the suit in favour of plaintiff.

2.Facts relevant for disposal of this appeal are that original

plaintiff/respondent No.1 filed a civil suit seeking declaration of title and

possession of the suit property pleading therein that suit property is his

ancestral property upon which defendant has forcefully taken

possession and has encroached upon the same. In written statement,

defendant therein has pleaded that suit filed by plaintiff is barred by

limitation. They are in possession over the suit property since lifetime

of their father and by virtue of adverse possession they became owner

of suit property. It is also pleaded that plaintiff had filed an application

for demarcation of suit property in which it was reported that defendant

was in possession of suit property. Demarcation was conducted in the

year 1984 however the suit is filed after more than 12 years of

demarcation report and therefore suit for possession was barred by

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limitation. It was also pleaded that there is non-joinder of necessary

party. Other children of Bihari Ram (father of original plaintiff) were not

impleaded as party to suit and therefore suit is not maintainable in its

form. Learned trial Court upon considering pleadings made by

respective parties and evidence brought on record has dismissed the

suit holding it to be barred by limitation and further recorded a finding

that there was non-joinder of necessary party. Judgment and decree

passed by learned trial Court was put to challenge by plaintiff in appeal

filed under Section 96 of CPC and learned appellate Court by

impugned judgment and decree dated 29.01.2005 allowed the appeal

recording a finding that suit was filed within time and further recorded a

finding that in view of entry made in revenue record in the name of

plaintiff of disputed property, plaintiff alone can file suit seeking

declaration of title, possession and accordingly allowed the appeal and

decreed the suit of plaintiff granting decree of possession and

declaration of title and further awarded mesne profit.

3.Learned counsel for the appellant submits that learned first appellate

Court erred in reversing both the findings of learned trial Court that suit

was barred by limitation and further suit was not maintainable due to

non-joinder of necessary party i.e. other siblings of plaintiff who on the

date of filing of suit were alive. He contended that in the plaint, plaintiff

himself has pleaded that plaintiff has filed an application for

demarcation before Tahsildar which was registered as revenue

proceeding and thereafter report was submitted on 11.07.1984

mentioning that at the time of demarcation defendant was found in

possession of property recorded in name of plaintiff. On 11.07.1984

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after preparation of report, plaintiff became aware of fact that defendant

is in possession of suit property, though owned by him, however, he did

not choose to file civil suit seeking possession of suit property within

prescribed time i.e. 12 years . He also contended that learned first

appellate Court taking into consideration that the application filed under

Section 145 of Cr.P.C. before Sub Divisional Magistrate on 09.07.1985

came to be dismissed on 18.06.1997, computed period of limitation

from that date i.e. 18.06.1997 which is erroneous. For computing

limitation, period of exclusion is provided under Section 14 of the

Limitation Act, 1963 (hereinafter referred to as " Limitation Act"), which

does not provide for exclusion of period expired in contesting

proceedings under Section 145 of Cr.P.C. and therefore learned first

appellate Court erred in reversing finding of learned trial Court that suit

was barred by limitation. He also contended that learned first appellate

Court further erred in recording a finding that suit was maintainable at

the instance of plaintiff only, excluding coparceners even after

recording a finding that suit property was ancestral property of plaintiff.

4.Learned counsel for the State submits that State is a formal party and

dispute is in between two private parties with regard to title and

possession over the suit property.

5.I have heard learned counsel for the parties and also perused the

record of trial Court.

6.This appeal was admitted for hearing on following substantial question

of law:

“Whether the finding arrived at by the First Appellate

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Court reversing the finding of the trial Court

particularly on the question of limitation as well as on

the issue of non-joinder of necessary party is proper

or not.”

7.So far as the first part of substantial question of law with regard to

limitation is concerned, Article 65 of the Limitation Act provides for

limitation for possession of immovable property or any interest therein

based on title. Period prescribed is 12 years and time from which the

period begins to run is also specifically mentioned as, when the

possession of defendant becomes adverse to plaintiff. In case at hand

plaintiff himself in para-7 of plaint has submitted that he moved an

application before the Tahsildar for getting the suit land demarcated.

On the application, pursuant to order of Tahsildar, demarcation was

conducted and report Ex.P-3 was submitted on 11.07.1984. It was

further pleaded that even after demarcation and its report mentioning

that land on which defendant was found in possession was owned by

plaintiff, defendant refused to vacate the suit property and handover

possession to plaintiff. In para-5 of his cross-examination, plaintiff has

further admitted that he submitted application for conducting

demarcation of suit land. Though he stated that he was found in

possession of the suit land on the date of demarcation, he further

stated that defendant was found in possession of suit land since prior

to date of demarcation.

8.From the aforementioned facts of the case, evidence of PW 1 plaintiff,

it is apparent that plaintiff became aware of the fact that, on his land

defendant is in possession, on 11.07.1984 and further defendant

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refused to vacate and, therefore, according to provision under Article

65 of the Limitation Act time begin to run from the said date i.e.

11.07.1984. Period of 12 years of limitation for filing of suit for

possession came to an end latest by 11.07.1996, however, the suit was

filed only on 23.09.1997 i.e. after more than one year of lapsing period

of filing of suit i.e. 12 years.

9.In view of specific pleading in the plaint and evidence of plaintiff, in the

opinion of this Court, learned first appellate Court erred in reversing

well reasoned finding of learned trial Court on the issue of limitation, by

recording that period of limitation would start from the date of

culmination of proceeding under Section 145 Cr.P.C., which in the

opinion of this Court, is not sustainable in eyes of law.

10.Hon’ble Supreme Court in case of Rajeev Gupta and Ors. Vs.

Prashant Garg and Ors. (2025 SCC OnLine SC 889), while

considering the issue “whether the suit was barred by limitation” has

observed thus:

“17. A coordinate Bench of this Court, in its decision of

Khatri Hotels (P) Ltd. v. Union of India, examined the

position under Article 120 of the Limitation Act, 1908

vis-à-vis Article 58 of the Limitation Act to observe that

the right to sue would accrue when there was a clear

and unequivocal threat of infringement of the plaintiff's

right. However, while the former provision simply

stated that the period of limitation commenced when

the right to sue accrues, in a marked linguistic

departure, the latter provision stated that the limitation

would commence when the right to sue “first” accrued.

Having observed so, this Court held that:

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“30. While enacting Article 58 of the 1963 Act,

the legislature has designedly made a

departure from the language of Article 120 of

the 1908 Act. The word ‘first’ has been used

between the words ‘sue’ and ‘accrued’. This

would mean that if a suit is based on multiple

causes of action, the period of limitation will

begin to run from the date when the right to sue

first accrues. To put it differently, successive

violation of the right will not give rise to fresh

cause and the suit will be liable to be dismissed

if it is beyond the period of limitation counted

from the day when the right to sue first

accrued.”

(emphasis supplied)

18. Khatri Hotels (P) Ltd. (supra) noticed the decision

of a three-Judge Bench in Rukhmabai v. Lala

Laxminarayan wherein the legal position was stated

thus:

“34. The legal position may be briefly stated

thus : The right to sue under Article 120 of the

Limitation Act accrues when the defendant

has clearly and unequivocally threatened to

infringe the right asserted by the plaintiff in the

suit. Every threat by a party to such a right,

however ineffective and innocuous it may be,

cannot be considered to be a clear and

unequivocal threat so as to compel him to file

a suit. Whether a particular threat gives rise to

a compulsory cause of action depends upon

the question whether that threat effectively

invades or jeopardizes the said right.”

(emphasis supplied)

19. Khatri Hotels Pvt. Ltd. (supra) was noticed and

applied by a bench of three-Judges in Shakti Bhog

Food Industries Ltd. v. Central Bank of India, although

in the context of Order VII Rule 11, CPC. It was held

thus:

“17. The expression used in Article 113 of the

1963 Act is ‘when the right to sue accrues’,

which is markedly distinct from the expression

used in other Articles in First Division of the

Schedule dealing with suits, which

unambiguously refer to the happening of a

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specified event. Whereas, Article 113 being a

residuary clause and which has been invoked

by all the three courts in this case, does not

specify happening of particular event as such,

but merely refers to the accrual of cause of

action on the basis of which the right to sue

would accrue.

18. Concededly, the expression used in Article

113 is distinct from the expressions used in

other Articles in the First Division dealing with

suits such as Article 58 (when the right to sue

‘first’ accrues), Article 59 (when the facts

entitling the plaintiff to have the instrument or

decree cancelled or set aside or the contract

rescinded ‘first’ become known to him) and

Article 104 (when the plaintiff is ‘first’ refused

the enjoyment of the right). The view taken by

the trial court, which commended to the first

appellate court and the High Court in the

second appeal, would inevitably entail in

reading the expression in Article 113 as -

when the right to sue (first) accrues. This

would be rewriting of that provision and doing

violence to the legislative intent. We must

assume that Parliament was conscious of the

distinction between the provisions referred to

above and had advisedly used generic

expression ‘when the right to sue accrues’ in

Article 113 of the 1963 Act. Inasmuch as, it

would also cover cases falling under Section

22 of the 1963 Act, to wit, continuing breaches

and torts.”

20. Shakti Bhog Food Industries Ltd. (supra)

also noticed the earlier three-Judge bench

decision in Union of India v. West Coast

Paper Mills Ltd. There, the distinction between

Article 58 and Article 113 of the Limitation Act

was noticed and delineated as under:

“21. A distinction furthermore, which is

required to be noticed is that whereas in

terms of Article 58 the period of three

years is to be counted from the date

when ‘the right to sue first accrues’, in

terms of Article 113 thereof, the period of

limitation would be counted from the date

‘when the right to sue accrues’. The

distinction between Article 58 and Article

113 is, thus, apparent inasmuch as the

right to sue may accrue to a suitor in a

given case at different points of time and,

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thus, whereas in terms of Article 58 the

period of limitation would be reckoned

from the date on which the cause of

action arose first, in the latter the period

of limitation would be differently

computed depending upon the last day

when the cause of action therefor arose.”

11.In the aforementioned decision, Hon’ble Supreme Court used words

“right to sue accrues”.

12.In case of Laxman through LRs Vs. Gajanand and Anr. (2019 SCC

OnLine Chh 217), this Court has observed the provision under Section

14 of the Limitation Act, 1963 and concluded that Section 14 of the

Limitation Act has no application whatsoever in respect of proceedings

under Section 145/147 of Cr.P.C., therefore, in that view of matter this

Court is of the considered opinion that plaintiff’s suit was hopelessly

barred by limitation, finding recorded by learned first appellate Court is

patently illegal and perverse in law and therefore it cannot be

sustained.

13.In case at hand also, according to provision under Article 65 of the

Limitation Act, period began to run for plaintiff from the date when

possession of defendant became adverse i.e. 11.07.1984. The

Demarcation report Ex.P-3 was prepared mentioning that defendant is

in possession of land owned by plaintiff and therefore 12 years period

is to be computed from 11.07.1984 and not from the date of

culminating of proceedings under Section 145 of Cr.P.C. i.e.

18.06.1997. Said finding recorded by learned first appellate Court is

contrary to law and therefore it is not sustainable. Accordingly said

finding is set aside.

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14.In case at hand, original plaintiff- Jainath in pleadings of plaint has

pleaded that original defendant No. 1-Kariman in the year 1984 under

influence of villagers forcefully took possession of the land bearing kh.

no.2289 measuring 0.057 hectares stating it to be his own land. When

plaintiff objected to it, defendant No.1 along with help of villagers tried

to assault him. It is also pleaded that on advice given by villagers he

submitted an application for demarcation of the land before Tahsildar,

based upon which demarcation was conducted on 11.07.1984 in

Revenue Case No.14-A-83-84. It is also pleaded that upon

demarcation held in front of plaintiff, defendant and other villagers, it

became clear that the suit land was in the ownership of plaintiff but

even then defendant No.1 refused to remove his possession from suit

land.

15.Copy of demarcation report is placed in record as Ex.P-3 which is

dated 11.07.1984. Plaintiff is examined as PW1. In Para-5 of his

evidence, he admitted that when demarcation was done by Tahsildar,

land was recorded in his name but in possession of defendant Kariman

was found from prior date of demarcation. He also admitted that after

demarcation, panchnama was also recorded . It is also admission of

plaintiff that defendant refused to remove his possession from suit land

and thereafter he filed application under Section 145 of Cr.P.C.

16.From the facts pleaded in plaint and evidence of plaintiff it is crystal

clear that defendant was in possession of suit land much earlier to

filing of an application for demarcation which was in the knowledge of

plaintiff and therefore he submitted an application for demarcation. It is

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also clear that after preparation of demarcation report and panchnama

and getting knowledge of defendant being in possession of land,

recorded in name of plaintiff, refused to handover possession of suit

land to plaintiff. Refusal of leaving possession of land recorded in name

of plaintiff, possession of defendant became adverse to plaintiff on the

date of demarcation i.e. 11.07.1984. Plaintiff, immediately after getting

knowledge of possession of defendant on his land pursuant to

demarcation report dated 11.07.1984 and refusal of defendant to

remove his possession from suit land, had not filed the suit for

declaration of title and possession.

17.Article 58 of Limitation Act provides for limitation "to obtain any other

declaration" and period of limitation is prescribed as "three years" and

starting point of limitation is also specified as "when the right to sue

first accrues". Plaintiff has not filed suit within three years from the date

of demarcation of land.

18.Article 65 of the Limitation Act provides "for possession of immovable

property or any interest therein based on title". Period of limitation is

specified as "twelve years" and starting point of limitation is specified

as "when the possession of defendant becomes adverse to plaintiff".

As discussed in preceding paragraphs, plaintiff after getting knowledge

that defendant No.1 was in possession of his land requested him to

vacate his land to which he refused and thereafter the plaintiff

submitted an application for demarcation before Tahsildar in the year

1984. Demarcation was conducted and report was submitted on

11.07.1984. Demarcation was done in presence of plaintiff, defendant

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and other villagers as per pleading of plaint. Even if case of plaintiff is

to be considered that before demarcation it was not clear as to

whether the defendant was in forceful possession of land of plaintiff or

not, but then on the date of demarcation, plaintiff became aware of the

fact that defendant was in illegal and forceful possession of his land

(suit land) on 11.07.1984. It is also case of plaintiff that after

demarcation when he requested to defendant No.1 to vacate the land,

he refused. Period of limitation so far as it relates to possession under

Article 65 of the Act of 1963 would start running from date of

demarcation made and it became adverse to plaintiff on the suit land

and therefore the limitation so far as it relates to seek possession of

suit property began to run from 11.07.1984 and according to provision

under Article 65 of the Act of 1963 period of 12 years came to an end

on 11.07.1996. Suit was filed only on 23.09.1997 i.e. after more than

one year and two months of period of limitation of 12 years came to an

end.

19.In the aforementioned facts of case as pleaded by plaintiff in the plaint

and his evidence, demarcation report Ex.P-3 and provision of Article 65

of the Act of 1963 the suit filed by plaintiff for possession was beyond

the period of limitation.

20.Learned first appellate Court has only considered the plea of adverse

possession raised by defendant No.1 in his written statement and issue

framed in this regard wherein learned trial Court had recorded a finding

that defendant No.1 has perfected his title based on adverse

possession, however, failed to consider that it is a suit filed by plaintiff

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for possession and therefore the prime consideration would be whether

the suit filed for possession was within the period of limitation and it is

burden upon the plaintiff to prove the fact that suit was within limitation.

However, learned trial Court escaped consideration of the provision

under Article 65 of Limitation Act 1963.

21.Learned first appellate Court further recorded that proceeding under

Section 145 of Cr.P.C. filed by plaintiff was dismissed on 18.06.1997

and therefore cause of action arose on that date, which in the opinion

of this Court, is erroneous.

22.Provision under Section 145 of Cr.P.C. deals with "procedure where

dispute concerning land or water is likely to cause breach of peace".

Relevant portion of Section 145 of Cr.P.C. is extracted below for ready

reference:

"145. Procedure where dispute concerning

land or water is likely to cause breach of

peace- (1) Whenever an Executive Magistrate is

satisfied from a report of a police officer or upon

other information that a dispute likely to cause a

breach of the peace exists concerning any land or

water or the boundaries thereof, within his local

jurisdiction, he shall make an order in writing,

stating the grounds of his being so satisfied, and

requiring the parties concerned in such dispute to

attend his Court in person or by pleader, on a

specified date and time, and to put in written

statements of their respective claims as respects

the fact of actual possession of the subject of

dispute.

x x x

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x x x

(4) The Magistrate shall then, without reference to

the merits or the claims of any of the parties, to a

right to possess the subject of dispute, peruse the

statements so put in, hear the parties, receive all

such evidence as may be produced by them, take

such further evidence, if any as he thinks

necessary, and , if possible decide whether and

which of the parties, was, at the date of the order

made by him under sub-section (1), in possession

of the subject of dispute;

Provided that if it appears to the Magistrate

that any party has been forcibly and wrongfully

dispossessed within two months next before the

date on which the report of a police officer or other

information was received by the Magistrate, or

after that date and before the date of his order

under sub-Section (1), he may treat the party so

dispossessed as if that party had been in

possession on the date of his order under Sub-

Section (1)

x x x

(6) (a) If the Magistrate decides that one of the

parties was, or should under the proviso to sub-

section (4) be treated as being, in such possession

of the land subject, he shall issue an order

declaring such party to be entitled to possession

thereof until evicted there from in due course of

law, and forbidding all disturbance of such

possession until such eviction; and when he

proceeds, under the proviso to sub-Section (4),

may restore to possession the party forcibly and

wrongfully dispossessed."

x x x

x x x

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23.From bare perusal of aforementioned provision it is apparent that in

exercise of provision under Section 145 of Cr.P.C. title of parties to

dispute is not to be decided but SDM in exercise of such powers only

protects the possession and under proviso to sub-Section (4) of

Section 145 Cr.P.C. the period of dispossession of applicant therein is

also specified to be within 2 months next before the date on which

report of police officers or other information was received.

24.In case at hand, in para-5 of pleading of plaint, plaintiff pleaded that in

the year 1984 defendant forcefully took possession of suit land. In

Ex.P-3 demarcation report placed mentioning that it is found that on

suit land defendant No.1 has forcefully took possession about 2-3

years prior and is cultivating the land and possession is not recorded in

revenue record. At the time of demarcation, plaintiff, defendant No.1

along with other villagers remained present. Ex.P-4 is the copy of order

passed by SDM on 18.06.1997 in proceeding under Section 145 of

Cr.P.C. SDM in the order, upon appreciation of evidence brought on

record, has recorded that dispute arose from the date of demarcation

when it is reported that the land in dispute is of the plaintiff. Witness

examined on behalf of applicant therein/plaintiff have stated these

facts. SDM taking note of proviso to sub-Section (4) of Section 145 of

Cr.P.C. found that applicant therein i.e plaintiff was not in possession

within 2 months next before the date of application. Plaintiff (PW1) in

para-2 of his cross-examination has admitted that defendant No.1 had

taken forceful possession since last about 15 years. He also admitted

that possession of defendant No.1 over the suit land is prior to

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demarcation.

25.From evidence of plaintiff, it is evident that possession of defendant

No.1 on suit land was prior to date of demarcation. However, he has

not specified the period and therefore even otherwise the proceedings

of Section 145 of Cr.P.C. which was taken note of by the First Appellate

Court for arriving at conclusion that suit was filed within time from the

date or order of SDM under provision of Section 145 Cr.P.C., is no help

of him, more so, when SDM has recorded a finding that the possession

of non-applicant was much prior to 2 months from the date of

information received by Magistrate and dismissed the application.

26.In the case at hand, when possession of defendant was crystallized in

the proceedings of demarcation and defendant No.1 refused to

handover possession of suit land, possession of defendant becomes

adverse to plaintiff and therefore the period of limitation started to

running from the date of demarcation i.e. 11.07.1984 and. Therefore.

the suit filed by plaintiff for possession was barred by limitation under

Article 65 of the Limitation Act.

27.Finding recorded by learned First Appellate Court that the suit was

within limitation is perverse to evidence available on record and is also

contrary to provision under Article 65 of the Limitation Act, and hence, it

is not sustainable in the eyes of law. Accordingly, the said finding of

learned First Appellate Court is set aside.

28.As this Court in discussions made in preceding paragraphs have held

that suit filed by plaintiff is barred by limitation, therefore, consideration

of the second part of question of law with regard to non-joinder of

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necessary party, in the opinion of this Court, is not necessary.

29.In view of discussions made above, this appeal is allowed. Impugned

judgment and decree passed by learned First Appellate Court is set

aside and the judgment and decree passed by learned trial Court is

affirmed.

30.Accordingly, question of law is decided.

31.No order as to cost.

32.Decree be drawn accordingly.

Sd/-

(Parth Prateem Sahu)

Judge

Praveen