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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) follows :-

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

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

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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,

falls into possession;

(b) where the suit is by a

Hindu or Muslim

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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

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

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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.