1. This appeal is directed against the judgment and decree dated 24th February, 1999 passed by the learned Additional District Judge, Delhi thereby decreeing the suit of the plaintiff-respondent for recovery of possession of the suit premises as shown in the site plan and mesne profits/damages for use and occupation @ Rs. 1,000/- per month w.e.f. 24th September, 1993, till the vacation of premises.
2. Briefly the relevant facts leading to the present appeal are that the plaintiff-respondent herein filed a suit against the appellant-defendant for recovery of possession of a part of house bearing No. 2167, Chah Indara, Dr. H.C. Sen Road, Delhi and for grant of mesne profits/use and occupation charges with the averments that she had purchased the above numbered house vide a registered sale dated 28th June, 1984 and at that time the appellant-defendant who is the real brother of the husband of the plaintiff-respondent was in possession of two rooms on the ground floor of the said house. He subsequently constructed a kitchen and bathroom in the absence of the plaintiff. The remaining portion of the house was in occupation of other persons who vacated the same. The previous owner while transferring the house in question had informed the plaintiff that the appellant-defendant was the tenant in respect of two rooms Along with common W.C. As the plaintiff-respondent required the premises bonafide for the use of her family members, she and her husband asked the defendant to vacate the premises in his tenancy, but the defendant put off the matter on the one pretext or the other. The plaintiff accordingly filed an eviction petition as also a suit for permanent injunction against the appellant-defendant. In those proceedings, the appellant-defendant took up a defense plea that he was not a tenant of any portion of the property, but was the co-owner of the same and his possession on a portion of the property was that of a co-owner. In view of the said defense plea, the plaintiff withdraw the eviction petition and the suit on 6th September, 1996 and 9th September, 1996 respectively and filed the present suit alleging that the appellant-defendant was in unauthorised occupation of the premises and was liable to ejectment and pay mesne profits/use and occupation charges.
3. The appellant contested the suit by filing written statement alleging therein that a suit for declaration, partition and rendition of account in respect of the suit property filed by him was pending; that the suit has not been properly valued for the purpose of court fee and jurisdiction and the Court had no pecuniary jurisdiction to entertain and try the suit; the plaintiff had no locus standi and cause of action to file the suit and that the suit property was acquired with the sale proceeds of the property belonging to the family. The withdrawal of the eviction petition and the suit was stated to be pursuant to the intervention of the family friends and with the understanding and mutual agreement that the requisite documents acknowledging the rights of the appellant-defendant qua the suit property would be executed and he would continue to be the owner of the suit property, but subsequently the plaintiff and her husband backed out of the said agreement.
4. On the pleadings of the parties, the learned trial court framed the following issues:-
ISSUES :-
1. Whether the plaintiff is entitled to recover the possession of the suit premises from the defendant? OPP
2. Whether the plaintiff is entitled to recover the damages for use and occupation charges/mesne profits? If so, from which date and at what rate? OPP
3. Whether the present suit is liable to be stayed Under Section 10 CPC as alleged by the defendant? OPD.
4. Whether the present suit is bad for non-joinder of parties? If so, its effect? OPP
5. Whether the suit is properly valued for the purposes of court-fee & jurisdiction? If not so, its effect? OPP.
6. Whether this court has no pecuniary jurisdiction to try the present suit? OPD.
7. Whether the defendant is a co-owner or has become owner by virtue of adverse possession? If so, its effect? OPD.
8. Relief.
5. Parties besides relying upon a few documents had largely relied upon the oral evidence. Issues No. 3 and 4 were not pressed by the learned counsel for the defendant. Other issues are, however, answered in favor of the plaintiff and against the defendant and the suit of the plaintiff-respondent decreed as above.
6. We have heard Shri V.K. Makhija, learned senior counsel representing the appellant and Shri Vikas Singh, advocate representing the plaintiff-respondent and have given our thoughtful consideration to their submissions. Although in the memorandum of appeal, several grounds have been taken in order to assail the impugned judgment and decree but during the course of hearing, Mr. Makhija, learned senior advocate has confined his attack only to one ground viz. the suit of the plaintiff-respondent was barred by limitation and therefore it could not have been entertained and no decree could be passed by the learned trial court. In this connection, learned counsel for the appellant has emphatically urged that as per the own showing of the respondent, the appellant-defendant was in occupation of a part of the suit property much prior to her acquiring the same by means of a registered sale deed dated 28.6.84 and therefore in view of the defense putforth by the appellant-defendant to the plaintiff's suit for permanent injunction and eviction petition, a suit for recovery of possession could be filed within 12 years from 28.6.1984, the date of acquisition of the suit property by the plaintiff-respondent.
That the present suit having been filed on 24.4.96, was patently beyond a period of 12 years and therefore barred by Article 64 of the Limitation Act, 1963. The contention at a first glance appears to be convincing but if we go deeper in the matter, it would be found devoid of any merit.
7. It may be noticed at the very outset that neither in the written statement nor in the memorandum of appeal any objection was taken by the appellant-defendant about the suit of the plaintiff-respondent being barred by limitation and consequently no issue was framed on this aspect. However, as the issue of limitation is largely a legal issue and germane to the very maintainability of the civil suit, it is well settled that it can be raised at any stage of the proceedings i.e. at the trial stage or even at the appellate state. Even otherwise in terms of Section 3 of the Limitation Act, it is the duty of the civil court entertaining the civil suit to satisfy itself that the suit has been filed within limitation.
8. Article 64 of the Limitation Act, 1963 prescribed a period of 12 years for filing a suit 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, the period of limitation to be computed from the date of dispossession. Article 65 also prescribes a period of 12 years for filing a suit for possession of immovable property or any interest thereon based on title and the period is to be computed from the date when the possession of the defendant becomes adverse to the plaintiff. Since in the case in hand, the plaintiff-respondent had based her claim on the strength of her title to the suit property, title having been acquired by means of a registered sale deed dated 28th June, 1984, in our opinion, it is Article 65 which would govern the present suit. On the facts and circumstances of the case, the important question which awaits decisions is as to whether the said period of 12 years is to be computed from the date when plaintiff-respondent acquired title to the property on 28th June, 1984 or from the year 1992 or 1994 when the appellant-defendant started claiming his co-ownership in the property or by adverse possession. Learned counsel for the respondent has urged that it is the later date i.e. the year 1992 when the appellant-defendant had started claiming adverse possession to the suit property which would be relevant for computing the period of 12 years. As against this, the submission of learned counsel for the appellant is that the date when the appellant had put up his defense plea of adverse possession cannot be said to be the starting point for running the limitation as the possession of the defendant had come adverse to the plaintiff from the date she acquired the suit property by means of a sale deed. In support of his contention, he has placed reliance upon the Supreme Court decision in the case of Smt. Raj Rani and Anr. v. Kailash Chand and Anr. wherein this question was raised and has been answered as under :-
"If the plaintiff's assertion was that the defendants had dispossessed him it did not matter whether the defendants represented a co-sharer or not. In that event, the plaintiff's case would certainly be deemed to be one in which the assertion of dispossession was there.
In the present case the allegations amount to an allegation that, by asserting their own ownership and inducing the tenants not to pay rents to the plaintiff, the defendants had dispossessed the plaintiff. In such a case, even if a defendant would be really asserting that the co-sharer had dispossessed or ousted him. Hence, an ouster having been admitted in the plaint, the burden would lie upon the plaintiff of proving his case that the ouster had taken place within twelve years."
9. It was also held in this case that the correct procedure for the trial court to adopt was not only to frame an issue on the question of limitation but to determine whether it was governed by Article 142 or 144 of the Limitation Act (old Act). In our view, this authority is of no help to the appellant and does not advance his case in any manner. In our considered opinion, it is the year 1992 when the possession of the defendant can be said to have become adverse to the plaintiff which would be the starting point for computation of the prescribed period of 12 years. The present suit having been admittedly filed on 24.9.96 was, therefore, much within the prescribed period of limitation. No other point was urged before us. Even otherwise the findings recorded by the learned Additional District Judge on the remaining issues are fully justified on the basis of the evidence and material brought on record and we see no reason to differ with the same. In the result, this appeal fails and is hereby dismissed and the judgment and decree of the learned trial court is upheld.
Parties are left to bear their own costs in these proceedings.