(Appeal under Section 100 of CPC against the decree in A.S.no.15-1997 dated 23/3/1999 on the file of the Court of the Senior Civil Judge, Nirmal preferred against the decree in O.S.No.115 of 1984 dated 27.1.1997 on the file of the court of the Junior Civil Judge, Bhainsa).

Common Judgment:

S.A.No.477 of 1999 is preferred by the defendants in O.S.No.115 of 1984 on the file of the Junior civil Judge, Bhainsa. The plaintiff filed the suit seeking declaration of title and recovery of possession of the suit land to an extent of Ac.6-00 in Sy.No.62 more fully described in the plaint schedule and for manse profits.

2. S.A.No.478 of 1999 if preferred by the defendants in O.S.No.119 of 1984 on the file of the Junior Civil Judge, Bhainsa. The plaintiff filed the suit in the said suit for declaration of title and possession of the suit land to an extent of Ac.4-29 guntas in Sy.No.62/a with manse profits.

3. The trial was conducted and both parties adduced both oral and documentary evidence in both the suits. As the defendants are common in both the suits, they were clubbed and a common Judgment was delivered by the trial Court decreeing both the suits as prayed for without costs. The defendants, being aggrieved by the common Judgment of the trial Court, dated 27-01-1997, preferred A.S.No.15 of 1997 on the file of the Senior Civil Judge, Nirmal against the Judgment and decree in O.S.No.115 of 1984 and A.S.No.16 of 1997 on the file of the Senior Civil Judge, Nirmal was filed against the decree and Judgment in O.S.No.119 of 1984. The learned Senior Civil Judge dismissed both the appeals by confirming the Judgment and decree of the trial Court in all respects. Being aggrieved by the common Judgment of he Appellate Court, the defendants preferred the present Appeals As both the Appeals arose out of the common Judgment, they are clubbed and this common Judgment is delivered.

4. The plaintiffs in both the suits purchased the respective suit properties from the father of the defendants through registered sale deeds dated 21-07-1972 and 12-01-1973. Afterwards, the defendants filed a suit for partition covered by O.S.No.12 of 1973 on the file of the District Munisiff, Bhainsa on 01-03-1973. In the said suit, it was claimed that the suit properties are ancestral properties of late Linganna and D-1 in the said suit filed a written statement denying that the suit lands are ancestral properties and further asserted that the suit land is his self-acquired property. The suit was decreed on 31-03-1975 and the defendants took possession of the property by dispossessing the plaintiff on 09-05-1981 by treating the suit properties as ancestral properties. But by taking into consideration the evidence adduced by the plaintiffs, the trial Court came to a conclusion that the suit properties were self-acquired properties of the father of the defendants and the executed the registered sale deeds in favour of the plaintiff and they are not liable for partition among the coparceners, therefore, the plaintiffs are entitled for he decrees as prayed for and it was confirmed by the Appellate Court. Being aggrieved by the same, the present appeals are preferred.

5. In the grounds of Appeal, the appellants raised the following substantial questions of law to be considered by his Court:

1. The Court below having noted that the plaintiff is dispossessed by bailiff on 9.5.1981 in execution of the decree the plaintiff failed to invoke the provisions of Or.21 R.98 to 103 of CPC for restoration of possession within one year and as such dismissed the suit as barred by limitation.

2. The Court below having noted that the plaintiff was dispossessed in execution of the decree by a competent Court on 9.5.1981 and the suit was presented for declaration of title and possession on 12.12.1984 dismissed the suit as bared by limitation as per Arts. 58 to 113 of the Indian Limitation Act, 1963 and have seriously erred in allowing the plaintiff to invoke Arts.64 and 65 for restoration of possession of the suit land.

3. The Court below having framed an issue as to whether the suit schedule property is liable to be partitioned in equity towards the share of Linganna the father of the appellant and the vendor of he plaintiff failed to record the finding whether there was any legal necessity of sale and whether there so called kartha was addicted to vices and aside tracking the same decreed the suit on the ground that the suit land is self acquired resulting into irreparable injustice to the appellant.

4. The decree passed by both the Courts below there was an opportionment of the suit schedule property in equity is negation to the suit claim and in self-conflict vitiating the same in toto.

5. The Court below seriously erred in maintaining the suit for declaration and possession instead of suit for partition and allotment or opportionment of the suit claim property to the vendor of the plaintiff as per the equities and the decree passed in a nullity.

6. During the course of arguments, the learned counsel for the appellants-defendants submitted that the Judgments of he courts below are challenged on two grounds i.e.,

1) that the suits are bared by limitation and

2) Whether the Courts below are justified in holding that the decree and Judgment in O.S.No.12 of 1973 is null and void and is not binding on the plaintiffs.

7. It is an admitted fact that the plaintiffs are the purchasers of the property from the father of the defendants through the registered sale deeds prior to the filling of the suit for partition. The defendants in the said suit did not show the purchasers as parties to the suit, therefore, the decrees of the partition were obtained behind their back and they have no knowledge about the suit proceedings till they were dispossessed from the land in the execution proceedings on 09-05-1981, therefore, the trial Court came to a conclusion that the suit schedule property is not liable for partition and the plaintiffs are entitled for declaration of title and recovery of possession. The appellate Court also expressed the same view by confirming the Judgment and decree of the trial Court.

8. The learned counsel for the appellants submitted that as it was the ancestral property and as the decree in O.S.No.12 of 1973 has become final, it is binding on the plaintiffs and they are not entitled for the decree as prayed for. He further submitted that as there was concurred finding of fact by the Courts below, this Court being the second appellate Court is not expected to consider the merits on factual aspects and also not expected to interfere with the concurred finding of fact, unless it is established by the appellants that there was perversity in the Judgments of the Courts below. But, the learned counsel for the appellants could not point out any findings of perversity in the Judgment of the Courts below, therefore, the Judgments of the Courts below on concurrent finding of fact cannot be interfered.

9. So far as the limitation aspect is concerned, the learned counsel for the appellants submitted that as the plaintiffs were dispossessed on 09-05-1981, the suit ought to have been filed within three years from the date as provided under Article 58 of the Limitation Act, 1963 (for short the), but as the plaintiffs filed the suit beyond the period of limitation, the suit is liable to be dismissed and the Judgment of the Courts below are liable to be set aside.

10. The learned counsel for the appellants further contended that as the suits were filed for declaration of title, it is covered by Article 58 of the Limitation Act, whereas the learned counsel for the respondents submitted that as the suits were filed for recovery of possession also on the basis of the title, article 58 of Act is not applicable and it comes within the purview of Article 65 of the. When Article 65 is applicable, the period of limitation is 12 years, therefore, the suit is well within time and the Courts below also rightly held that the suit is not barred by limitation and it is maintainable under law.

11. In the light of the above contentions, it is essential to refer to the relevant Articles of the.

12. Article 58 of the indicates that whenever a suit is filed for obtaining any other declarations not covered by the Articles, the period of limitation is three years and the period begins to run when the right to sure first accrues. Under Article 65 of the, it is mentioned that whenever a suit is filed for possession of immovable property or any interest therein based on title, the period of limitation for filing the suit is 12 years and the period begins to run when the possession of the defendants comes adverse to the plaintiff.

13. So, from Article 58 of the, it is clear that if it is a suit for declaration simplicitor without asking for any ancillary relief, the period of limitation is three years. According to Article 65 of the, whenever a suit for recovery of possession is filed basing on a title, the period of limitation is twelve years.

14. Now, it has to be verified whether the present suits are filed for declaration of title and recovery of possession and whether the period of limitation applicable to the present suits is three years or twelve years.

15. The learned counsel for the appellants relied on the following Judgments in support of his contention that Article 58 of the is applicable to the present suits:

16. In MD. Noorul Hoda v. Bibi Raifunnisa & Ors (1996 (1) Supreme 242) the Supreme Court, while dealing with Articles 59 and 113 of the Limitation Act, 1963, considered the question that when the factum of granting preliminary and final decrees touching upon the suit land became known to the plaintiff, when he claimed title to the property as owner and the dependence as the Benamider, when the Binamider came to know for the first time about the passing of the preliminary decree in 1973 and final decree in 1974, Article 113 is inapplicable to facts of the case and the suit is hopelessly barred by limitation.

17. Articles 58 and 65 of the did not come for consideration before the Supreme Court in the above decision, therefore, the decision is not applicable to the facts of the present case.

18. In Mabeeba Begum v. Gulam Rasool, (1999 (4) ALT 496), a learned single Judge of this Court, while considering Article 59 of the, held that:

In view of the clear provisions under Section 31 of the Specific Relief Act and Article 59 of the Limitation Act, there is no property foundation laid under the law by the respondent-plaintiff herein on the maintainability of the suits without seeking cancellation of the red sand to bring it within the periods of limitation. The cause of action as shown in these cases has no basis. In fact, the cause of action, if any, has arisen as long back as in the year 1976. The suits filed on 21-9-1989 and 17-8-1986, therefore, are barred by limitation under Article 59 of the Limitation Act.

In this decision also, the court did not consider the scope of Articles 58 and 65 of the, therefore, the principle laid down in the above Judgment is not applicable to the facts of the present case.

19. In K. Ramayamma v. K. Rama Rao (1999 (4) ALT 118 [LQ/TelHC/1999/374] ), a learned single Judge of this Court held that:

In a suit for partition, the question as to the validity and the effect of a settlement deed would not possibly be gone into and may not warrant to find its correctness, unless an independent suit is filed by the parties to the transaction challenging such transaction on any permissible grounds. It cannot be held that a party without taken recourse to the remedy of a separate suit for challenging a completed transaction will be entitled to get over the transaction by merely taking the plea of fraud. It is also well accepted that no relief can be granted to the defendant party inspite of the plaintiffs failing to prove or establish his claim, therefore, the bar is starting against a party defendant in making an attempt to avoid a document to which is a party by taking the mere plea of fraud without the same being declared void in a suit filed under Section 31 of the Specific Relief Act.

The above decision is also not applicable to the facts and circumstances of the present case.

20. The learned counsel for the respondents relied on a Judgment of the Court in Pavan Kumar & Anr. V. K. Gopalakrishna & Ors (1989 (2) Law Summery 334), wherein a learned single Judge of this court considered the scope of Sections 58, 69 and 113 of the Limitation Act, 1963 and held that:

Where a suit is filed on title but claiming declaration of title to the suit property with consequential relief of possession, Article 65 of the Limitation Act would apply and Art. 58 applies only to a case where declaration simpliciter is sought without consequential relief. Act suit for declaration of title and consequential relief. As the suit for declaration of title and consequential relief of possession was filed within 12 years from the date when the defendant dispossessed the plaintiff in execution of the decree, when the possession of the defendants became adverse to the plaintiff, cannot be held to be barred by limitation.

A person other than a judgment debtor who has been dispossessed of immovable property by the holder of a decree for the possession of such property or where such property has been sold in execution of a decree by the purchaser thereof, and who has not chosen to file and application under Order 21, Rule 99, Rule 101 C.P.C. does bar him from filing a suit to establish his right in and title to the property of which he is dispossessed and for recovery of possession thereof.

21. In Mohd. Yunus v. Syed Unnissa (AIR 1961 SC 808 [LQ/SC/1961/61] ), the plaintiff filed a suit for declaration with the consequential relief of injunction against the defendants. Some of the defendants did not deny the title of the plaintiff. In those circumstances, the Supreme Court held as follows:

A suit for declaration with a consequential relief of injunction is not a should for declaration simplicitior; it is a suit for declaration with further relief. Whether the further relief claimed in a particular case as consequential upon a declaration is adequate must always depend upon the facts and circumstances of each case.

22. In Keshab lal Goswami v. Bholanath Gangopadya (94 (1926) Indian Cases Page 342), a Division bench of the Calcutta High Court held that a suit which in essence is one for declaration of title and recovery, of possession, is governed by Article 144 (old) and not Art. 148 (old) of Schedule I to the Limitation Act. In that case the plaintiff filed the suit for declaration and recovery of possession from the mortgagee of the properties in question. The defence was that the mortgage debt was discharged and thereafter there was an oral sale of the property in favour of the mortgages and that their possession had become adverse to that of the mortgagor. The Court held that the suit was filed for declaration of title and recovery of possession and that no relief was claimed against the defendants on the footing of their being mortgages and to such a suit Art. 148 of the First Schedule to Limitation Act could not be applied and the correct article to be applied was Art. 144.

23. In M. Narasimhaswami v. M. China Venkata Sivayya (1961 (1) An. W.R. 135) a Division Bench of our High Court has held that the suit by an alienee from an undivided coparcener for partition is covered by Art. 144 (old) as it is in essence a suit for partition and delivery of possession of the property sold to him by allotting it to his vendor and as there would be adverse possession as against the alienee if the property continued in the possession of the alienor or of the other coparceners.

24. In the instant case also, the plaintiffs suit is based on title and the consequential relief of possession was also sought for. The plaintiffs in these suits established before the lower Court that it is the self-acquired property of D-1s father and they purchased it under two different sale deeds. In such a case, the suit is governed by Article 65 of the as it was filed within 12 years of the dispossession. But it is for the defendants to show that the plaintiff was out to possession for mote than 12 years. In the instant case, there is no such situation and the suit was filed immediately after completion of three years from the date of dispossession. If the contention of the defendants that Article 58 applies to the suit for possession based on title where declaration of title is also sought, is accepted, it would amount to ignoring the relief for recovery of possession and application of Article 65 to a suit for possession and taking away the right of the plaintiff to prove that the suit is within 12 years from the date when the possession of the defendant becomes adverse to the plaintiff. If such a suit were to be decided with the reference to Article 58 on the ground that the declaration is sought for, application of Article 65 to the suit for possession would be rendered otiose. Such a construction would be opposed to all principles of interpretation of statues. Therefore different articles of the Limitation Act will have to be interpretation harmoniously. When such an interpretation is given to Articles 58 and 65 and when the suit is filed for declaration of title to the suit property with consequential relief of possession in my humble view Article 65 of the Limitation Act would apply and not Article 58 of the Limitation Act. Article 58 applies to a case where declaration simplicitor is sought for without possession my humble view Article 65 of the Limitation Act would apply and not Article 58 of the Limitation Act. Article 58 applies to a case where declaration simplicitor is sought for without any further relief. It appears that this aspect has been the subject matter of consideration of Law Commission recommended for the amendment of Article 58 of Schedule I of Limitation Act by adding without seeking further relief after the word declaration in the first column of Article 58 of the Schedule.

25. From the above discussion, it follows that the suits having been brought within 12 years from the date when the defendants dispossessed the plaintiff in execution of the decree in a partition suit and when the possession of the defendants became adverse to the plaintiff, cannot be held to be barred by limitation.

26. In the light of the foregoing discussion, I hold that both the suits were filed within time. Under the present set of circumstance, Article 65 of the is applicable and in such circumstances, the suit is not barred by limitation. The substantial questions of law regarding the limitation are answered accordingly.

27. In the result, both the Appeals are dismissed by confirming the Judgments of the Courts below in all respects.