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Ayeesha Bibi And 4 Others v. S. Mohamed Ibrahim And 6 Others S
Structured Summary of the Opinion
Factual and Procedural Background
The plaintiffs (now appellants) filed Suit O.S. No. 253 of 1983 seeking declaration, partition and separate possession of their shares in the 'A', 'B' and 'C' schedule properties and other reliefs. The litigation has an extended history:
- An earlier suit, O.S. No. 39 of 1958, was instituted by Mohammed Meeran Rowther for partition and separate possession. On 9.10.1964 a preliminary decree declared Meeran Rowther entitled to a 1/5 share in all suit properties (A, B and C schedules).
- Defendants in O.S. No. 39 of 1958 appealed in A.S. No. 39 of 1965. The first plaintiff in that suit died on 10.7.1965 and legal representatives were impleaded. During the appeal, Khader Mohammed Ibrahim sought impleadment as a residuary heir (LA. No. 911 of 1965) and was impleaded on 10.2.1966. Mohammed Sikkandar also sought impleadment as a purchaser under a sale deed dated 23.6.1965 (LA. No. 48 of 1966).
- Sikkandar transferred the properties he claimed to have purchased to the defendants 1 to 3 on 24.1.1967. The appellate court disposed of A.S. No. 39 of 1965 on 2.12.1967, confirming the trial court's judgment except that the decree was modified with respect to shares in the schedule properties.
- When the matter reached this Court in S.A. No. 722 of 1968 it was ultimately compromised between parties except as regards Khader Mohammed Ibrahim; the compromise decree did not bind him (judgment dated 19.4.1973).
- Khader filed I.A. No. 455 of 1975 in O.S. No. 39 of 1958 seeking division and allotment of his residuary share; the application was dismissed on merits on 27.7.1977. He then filed a revision (C.R.P. No. 2436 of 1978) in this Court but died during its pendency; his wife and children (the present plaintiffs) were substituted. The revision was dismissed on 1.9.1982 without prejudice to the right to file a fresh suit. The present suit was filed on 12.4.1983.
- Defendants 2 and 3 contested the present suit claiming title under a sale deed dated 23.6.1965 (Ex.B-4) and a subsequent sale (Ex.B-5), and asserted adverse possession (title by ouster). They also pleaded res judicata under Order 2 Rule 2, CPC and limitation.
- At trial, plaintiffs adduced PWs 1–4 and Exs.A-1 to A-9; defendants adduced DWs 1–2 and Exs.B-1 to B-32. The trial court found defendants 2 and 3 acquired prescriptive title by ouster and that the suit was barred by limitation, but rejected the defendants' plea under Order 2 Rule 2 CPC. The first appellate court confirmed the trial court's decision. The plaintiffs brought this second appeal.
Legal Issues Presented
- Having held that the parties were co-owners, were the trial and appellate courts justified in holding that defendants 1 to 3 acquired title by adverse possession without an express plea of ouster?
- Whether Section 14 of the Limitation Act applies to the facts of this case (i.e., whether the time spent in earlier proceedings should be excluded so as to prevent the suit from being time-barred)?
Arguments of the Parties
Appellants' Arguments
- The defendants' purchase of the properties took place while an appeal (A.S. No. 39 of 1965) was pending; therefore the purchase is hit by the doctrine of lis pendens (us pendens), and time up to 1973 should be excluded from limitation.
- The appellants contended that limitation should start only from the date of disposal of the revision (C.R.P. No. 2436 of 1978) on 1.9.1982; since the suit was filed within three years thereafter, it is within time.
- On the basis above, the appellants argued there was no ouster and no adverse possession sufficient to bar their suit by limitation.
Respondents' Arguments (Defendants 2 and 3)
- The record shows defendants 2 and 3 (and their predecessors-in-title) were in possession of the suit properties from 1965 onwards, openly, hostilely and to the knowledge of all parties; they thus perfected prescriptive title by ouster long before the present suit was filed.
- On that basis, the suit is not maintainable as it is barred by limitation. Respondents relied on multiple authorities to substantiate this position.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Rajendar Singh v. Santa Singh, AIR 1973 SC 2537 | Doctrine of lis pendens (us pendens) and its limitations — used to determine whether time spent in previous proceedings should be excluded for limitation purposes | The Court relied on the dictum in this decision to reject the appellants' submission that the period up to 1.9.1982 should be excluded on the ground of lis pendens; the precedent supported the view that lis pendens does not automatically exclude time for limitation in the circumstances of this case. |
Court's Reasoning and Analysis
The Court proceeded by examining the chronology, the documentary and oral evidence and the legal principles governing acquiescence, ouster, adverse possession, lis pendens and exclusion of time under Section 14 of the Limitation Act.
Key elements of the Court's analysis (as reflected in the opinion):
- Documentary evidence: Although the defendants claimed possession under Ex.B-4 (23.6.1965) and Ex.B-5 (24.1.1967), both Courts below found Ex.B-4 not genuine. Notwithstanding that finding, both courts concluded that defendants and their predecessors had been in possession from 1965 onwards, openly and to the knowledge of the plaintiffs and predecessor-in-title.
- On lis pendens and exclusion of time: The appellants argued that the purchase during the pendency of the appeal invoked lis pendens and that time should be excluded up to 1.9.1982. The Court rejected this argument, relying on the Supreme Court's decision in Rajendar Singh v. Santa Singh to hold that lis pendens is intended to prevent private dealings that frustrate a pending Court's power, but does not automatically extend to excluding time for limitation in the present circumstances.
- On Section 14 of the Limitation Act: Section 14 concerns exclusion of time spent in bona fide proceedings in a court without jurisdiction but requires that the plaintiff must have prosecuted prior proceedings with due diligence. The Court held Section 14 (and Section 14(1) as referenced) did not apply here because the plaintiffs had not pursued an appropriate suit within the prescribed period; instead Khader Mohammed Ibrahim had filed an interlocutory/final decree application (I.A. No. 455 of 1975) and later revision, showing awareness that a separate suit was required. Thus the ingredients for exclusion under Section 14(1) were absent.
- On co-owner possession and ouster: The Court reiterated the settled principle that the mere entry or possession by one co-owner is not presumed to be adverse to other co-owners. Possession becomes adverse only when the title of other co-owners is denied and the right of enjoyment of the property is repudiated with notice to the other co-owners. The Court found that the plaintiffs had knowledge of the ouster: a plaintiff witness (P.W.2) admitted that after Exs. B-4 and B-5 the defendants alone enjoyed the properties against the plaintiffs' interests. That admission indicated the plaintiffs knew defendants claimed exclusive rights and that ouster occurred from 1965 onwards.
- Conclusion of factual-legal application: Given the admitted materials and findings of both courts below regarding open and hostile possession from 1965, the Court concluded the findings that defendants acquired title by adverse possession (ouster) and that the suit was time-barred were not incorrect.
Holding and Implications
Holding: The Court concluded that there is no substantial question of law in the second appeal and therefore the second appeal is DISMISSED.
Implications and direct consequences:
- The dismissal upholds the findings of the trial and first appellate courts that defendants 2 and 3 acquired prescriptive title by ouster and that the plaintiffs' suit was barred by limitation.
- The Court found Section 14 of the Limitation Act inapplicable on the facts; the plaintiffs could not rely on exclusion of time based on prior proceedings to cure the delay in instituting a separate suit.
- No substantial question of law was held to arise from the case; the opinion does not indicate that any new legal precedent was laid down beyond applying established principles. The order records: "No costs."
This summary is prepared exclusively from the content of the provided opinion. No facts or holdings beyond those expressly stated in the opinion have been added.
1. The plaintiffs are the appellants herein. Having lost before both the Courts below, they have filed this second appeal.
2. The appellants, as plaintiffs, filed the suit for declaration, partition and separate possession of their share in ‘A’, ‘B’ and ‘C schedule properties and for other reliefs.
3. According to the plaintiffs, originally one Mohammed Meeran Rowther filed a suit in O.S No. 39 of 1958 for partition and separate possession. On 9.10.1964, a preliminary decree was passed, whereunder, it was declared that the said Mohamed Meeran Rowther would be entitled to 1/5 share in all the suit properties, namely, ‘A’, ‘B’ and ‘C schedule properties.
4. The defendants in the suit O.S No. 39 of 1958 filed appeal before the appellate Court in A.S No. 39 of 1965. Since the first plaintiff died in that suit on 10.7.1965, the other plaintiffs were impleaded as legal representatives of the deceased plaintiff. During the pendency of the appeal, one Khader Mohammed Ibrahim filed an application in LA. No. 911 of 1965 to implead himself as one of the residuary heirs of the deceased plaintiff. Accordingly, he was impleaded on 10.2.1966 Similarly, pending appeal, one Mohammed Sikkandar, claiming himself to be a purchaser from the plaintiff/Mohamed Meeran Rowther, under a sale deed dated 23.6.1965, filed a petition in LA. No. 48 of 1966 to get himself impleaded as a party to the suit. The said Sikkander sold the properties which were purchased by him on 24.1.1967 to the defendants 1 to 3 in the present suit. Ultimately, in the appeal which was disposed of 2.12.1967 While confirming the judgment and decree of the trial Court in other respects, the appellate Court modified the decree to the effect that the plaintiffs therein were entitled to V5 share in ‘A’ and ‘B’ schedule properties and 1/10 share in ‘C schedule property.
5. When the matter was taken up to this Court in S.A No. 722 of 1968, ultimately, the matter was compromised between the parties, except in respect of Khader Mohammed Ibrahim, who claimed as residuary heir of the deceased plaintiff and the same was dismissed on 19.4.1973 It was held in that judgment of this Court that the compromise decree will not bind the said Khader Mohammed Ibrahim.
6. Thereafter, the said Khader Mohammed Ibrahim filed an application in LA. No 455 of 1975 in the earlier suit in O.S No. 39 of 1958 to divide the properties and allot the share to him as a residuary heir of the deceased plaintiff and pass a final decree. This was dismissed on merits on 27.7.1977
7. As against the said order in LA. No. 455 of 1975, the said Khader Mohammed Ibrahim filed a revision before this Court in C.R.P No. 2436 of 1978. Pending revision, he died and therefore, the present plaintiffs, namely, the wife and children of the said Khader Mohammed Ibrahim were brought on record as legal heirs of the deceased. Ultimately, on 1.9.1982, the said revision was dismissed by this Court without prejudice to the rights of the petitioners in the revision, if any, to file a fresh suit. Thereafter, the present suit has been filed on 12.4.1983 seeking the abovesaid reliefs.
8. The defendants 2 and 3 contested the suit in O.S No. 253 of 1983 (the present suit), claiming their right under the sale deed dated 23.6.1965 executed by Mohammed Meeran in favour of Sikkander and the sale deed executed by Sikkander in favour of the defendants 2 and 3 under Ex.B-5 and also claimed adverse possession, thereby, prescribed title by ouster. They further contended that the suit is barred by res judicata under Order 2, Rule 2, C.P.C and limitation.
9. After framing necessary issues, in the trial Court, on behalf of the plaintiffs, P.Ws.1 to 4 were examined and Exs.A-1 to A-9 were marked and on behalf of the defendants, D.Ws.1 and 2 were examined and Exs.B-1 to B-32 were marked. Ultimately, the trial Court found that the defendants 2 and 3 acquired prescriptive title by ouster over the suit properties by adverse possession and the suit is barred by limitation. However, on the question of bar under Order 2 Rule 2 C.P.C, the trial Court rejected the defendants’ plea. Challenging the same, the plaintiffs filed appeal before the lower appellate Court, which in turn, confirmed the judgment and decree of the trial Court. Hence, the second appeal.
10. At the time of admission of the second appeal, this Court, by order dated 4.1.1991, formulated the following substantial questions of law:-
“(i)Having held that the relationship between the plaintiffs/appellants and the defendants 1 to 3, the respondents herein, is that of co-owners, are the trial Court and the first appellate Court justified in holding that the defendants 1 to 3 have prescribed title by adverse possession without a plea of ouster?
(ii)Whether the trial Court as well as the appellate Court are right in holding that Section 14 of the Limitation Act does not apply to the facts of this case? “
11. In elaboration of the above substantial questions of law, Mr. S.V Jayaraman, learned Senior Counsel representing M/s. N. Maninarayanan, on behalf of the appellants, would contend that the defendants purchased the suit properties pending appeal in A.S No. 39 of 1965 and therefore, their purchase is hit by the doctrine of “Us pendens”, and since the limitation period starts only from 1973 onwards, it cannot be said that there was an ouster, since the suit was filed within 12 years.
12. Learned Senior Counsel for the appellants would further contend that the starting point of limitation would be only from the date on which the revision in C.R.P No. 2436 of 1978 before this Court was disposed of, namely, on 1.9.1982 and the said suit has been filed within three years thereafter and that therefore, there can be no bar on limitation.
13. In reply to the above said arguments of learned Senior Counsel for the appellants, Mr. Subbiah, the learned counsel appearing for the respondents 2 and 3 would state that the materials available on record would prove that the defendants 2 and 3 have perfected title by adverse possession through ouster for more than the statutory period and therefore, the suit is not maintainable. He would cite number of authorities for substantiating his submissions.
14. Both the learned counsel have filed their respective written submissions. I have carefully considered the rival contentions of learned counsel for the parties and perused the records.
15. On a perusal of the records, it is seen that though the claim of the defendants that they were in possession of the properties from 1965 by virtue of Ex.B-4, dated 23.6.1965 and Ex.B-5, dated 24.1.1967, both the Courts below would hold that Ex.B-4 document is not a genuine document. In the above context, both the Courts below would hold that the defendants 2 and 3 and their predecessors-in-title were in possession of the suit properties from the year 1965 onwards to the knowledge of all the parties concerned, including that of the predecessor-in-title of the deceased plaintiff and the other plaintiffs thereafter and their possession had been open, hostile, peaceful and knowledge of every one.
16. According to learned Senior Counsel for the appellants, the earlier second appeal was disposed of by this Court on 19.4.1973 and the revision before this Court was dismissed on 1.9.1982 and therefore, the suit has been filed within time and therefore, the suit is not barred by limitation and the same is within time. His further contention is that since the subject matter in dispute was hit by the doctrine of “lis pendens”, and the time till 1.9.1982 has to be excluded. But this submission cannot be accepted, as found by both the Courts below, in view of the dictum laid down by the Supreme Court in a decision reported in Rajendar Singh v. Santa Singh, AIR 1973 SC 2537.
17. On going through the judgments impugned, it is clear that the doctrine of “lis pendens” is intended to strike at the attempts by parties to a litigation to circumvent the jurisdiction of a Court, in which a dispute of rights or interests in immovable property is pending, by private dealings, which may remove the subject matter of litigation from the ambit of the Court's power to decide a pending dispute or frustrate a decree.
18. Section 14 of the Limitation Act deals with the exclusion of time of proceeding bonafide in Court without jurisdiction. Therefore, there are certain conditions for the applicability of Section 14 of the Limitation Act. One of these is that the plaintiff should have prosecuted, with due diligence, the civil proceedings founded upon the same cause of action. But the said Section which is the only provision of the statute specifically dealing with the exclusion of time spent in another litigation, would not obviously apply to the case now before this Court. The only mode of relief open for the plaintiffs was to have instituted the suit of their own, within the prescribed period of limitation. Admittedly, in this case, they have instituted the suit long after the period of limitation had expired.
19. The above aspects have been dealt with in detail by the trial Court. Khader Mohammed Ibrahim who claims himself as a residuary heir of the deceased plaintiff, instead of filing the suit within time, has filed final decree application for partition of his residuary share in LA. No. 455 of 1975 in O.S No. 39 of 1958. The said application in I.A No. 455 of 1975 was dismissed on merits and then the matter was taken up to this Court by way of revision in C.R.P No. 2436 of 1978 and ultimately, the revision was dismissed by this Court and the judgment copy is in Ex.A-6, which would reveal that at the time of filing final decree application in I.A No. 455 of 1975, the said Khader Mohammed Ibrahim was aware of the fact that he has to file a separate suit only to establish the quantum of share in the suit properties. This is clear from the order of the trial Court under Ex.B-8 dated 27.7.1977 passed in I.A No. 455 of 1975. This is reiterated in this Court's order also in Ex.A-6 when the revision was disposed of on 1.9.1982 Therefore, the ingredients mentioned in Section 14(1) of the Limitation Act cannot be said to be present in the present case.
20. As indicated above, Khader Mohammed Ibrahim had knowledge that he was ousted by his co-owners in 1965 itself and thereafter, in 1966, by the defendants 2 and 3.
21. It is settled law that the possession of a co-owner cannot be considered to be adverse to the other co-owner. The entry and possession of a land by one co-owner is not presumed to be adverse. The possession becomes different when the title of some of the members has been denied and their right of enjoyment of the properties has been repudiated to their knowledge. From that moment, the character of the possession of the hostile co-owner changes and it becomes adverse possession who have knowledge of the ouster and the limitation time begans to run against them.
22. In this case, after the death of Khader Mohamed Ibrahim, the plaintiffs herein and the defendants have become co-owners of the suit properties. The defendants 2 and 3 claim that they alone are in exclusive possession and enjoyment of the suit properties. The plaintiffs have another claim that they are in possession and enjoyment of the suit properties. As a matter of fact, P.W.2 examined on behalf of the plaintiffs has admitted that after the execution of Exs.B-4 and B-5, the defendants alone have been enjoying the suit properties against the interest of the plaintiffs. This admission would go to show that the plaintiffs came to know that the defendants are claiming exclusive right over the suit properties and as such, they are ousted from the suit properties from 1965 onwards.
23. In the light of the said admitted materials, this Court would not hold that the findings with reference to the ouster and adverse possession and the filing of the suit after expiry of the period of limitation are wrong. Consequently, it has to be held that there is no substantial question of law in the second appeal and the same is liable to be dismissed.
24. The second appeal is dismissed. No costs.
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