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Aziz Uddin v. Maqbul Husain
Structured Summary of the Court's Opinion
Factual and Procedural Background
This is an appeal under the Letters Patent by the defendant against the decision of a learned single Judge. The litigation originated from a suit by the plaintiff/respondent seeking partition and separate possession of his share in the property described in the plaint, with ancillary reliefs to close certain windows and open a door. The plaintiff also pleaded in the alternative that, if partition had already taken place, he should be awarded possession of his specific share.
The defendant's contentions at trial included that the property had already been partitioned and that the suit was time-barred. The trial court held that the plaintiff's house was separate from the rest of the house, that the suit was barred by article 142 of the Limitation Act because the plaintiff had not been in possession within 12 years, and that the suit was not barred by Order II, rule 2 of the Civil Procedure Code.
On first appeal, the lower appellate court considered whether the suit was barred by Order II, rule 2, CPC and held that it was barred, dismissing the suit. This Court (Thom, C.J. and Ganga Nath, J.) found the suit was not barred by Order II rule 2 and remanded the case for re-hearing. On re-hearing, the lower court found the suit not barred by article 142 and decreed relief (including relief in respect of the main door). The learned single Judge thereafter confirmed that decree. The present appeal challenges primarily the finding that the suit was not barred by article 142 of the Limitation Act.
Legal Issues Presented
- Whether the suit is barred by article 142 of the Limitation Act (i.e., whether the plaintiff failed to show possession or discontinuance within the 12-year period such that the statute of limitations would operate against him).
- Whether the court may decide the case on the plaintiff's evidence alone and disregard the defendant's evidence on the ground that the onus was on the plaintiff.
- Procedural/earlier issue (as part of the case history): whether the suit was barred by Order II, rule 2 of the Civil Procedure Code (this Court previously decided it was not and remanded the case).
Arguments of the Parties
Appellant's Arguments (defendant)
- The suit is time-barred under article 142 of the Limitation Act because the plaintiff failed to prove specific acts of possession within 12 years preceding the suit.
- Reliance on authority (Bindhyachal Chand v. Ram Gharib Chand and several other cases) to support the contention that non-possession within 12 years defeats the plaintiff's claim.
- An argument that, because the onus was on the plaintiff, the court should decide the matter on the plaintiff's evidence alone and not regard the defendant's evidence.
- Earlier in proceedings, the defendant also contended that partition had already occurred (a factual contention relevant to entitlement and reliefs sought).
Respondent's Arguments (plaintiff)
- The plaintiff alleged joint possession with the defendant rather than that he had been dispossessed by the defendant at any particular time; alternatively, if partition had already occurred, he sought possession of his specific share.
- The plaintiff's case, as pleaded and led in evidence, did not present the conventional fact-pattern where the plaintiff admits dispossession and alleges dispossession within 12 years by the defendant.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Bindhyachal Chand v. Ram Gharib Chand | Authorities relied on by the appellant to support dismissal where plaintiff failed to prove possession within 12 years (cases where plaintiff admitted dispossession by defendant). | The court held these decisions were not relevant to the present case because the plaintiff here did not allege dispossession by the defendant but rather joint possession; accordingly the authority did not govern the factual matrix of this suit and was rejected for that reason. |
| M'Donnell v. M'Kinty | Definition of "discontinuance" in the context of limitation: requires abandonment of possession by one person followed by actual possession by another; the statute operates where there is someone in whose favour it can run. | The court cited this to support the view that discontinuance requires both dereliction and actual possession by a successor; therefore mere non-user or vacancy does not activate the statute unless another person has taken possession. |
| Smith v. Lloyd | Principle that the statute of limitation applies to cases where the plaintiff has been out of actual possession and another has been in possession for the prescribed time (not to cases of mere want of actual possession by the plaintiff where no one else was in possession). | The court relied on this authority to reinforce that the Limitation Act runs only where someone else has been in possession for the statutory period and does not apply to mere absence of actual possession by the rightful owner if no adverse possessor exists. |
| Secretary of State for India v. Krishnamoni Gupta | Approval by the Privy Council of the principle (as stated by Parke, B., and Blackburne, C.J.) that abandonment followed by actual possession by another is required for the statute to operate; reference to Trustees, Executors, and Agency Company v. Short. | The court cited this decision as confirming the established principle that discontinuance requires both dereliction and actual possession by a successor, thereby supporting the opinion that the Limitation Act does not run where no one else had actual possession. |
| Trustees, Executors, and Agency Company v. Short | Statement that if an intruder enters and later abandons possession, the rightful owner on abandonment stands as if the intrusion had not occurred; used to illustrate the necessity of continuous adverse possession for the statute to run. | Referenced (via Krishnamoni Gupta) to support the proposition that abandonment without continued possession by an adverse party does not defeat the owner's title; the court used it to bolster the conclusion that non-user alone does not start the running of the statute. |
Court's Reasoning and Analysis
The Court undertook a fact-sensitive analysis tied closely to the legal meaning of possession and the statutory concept of discontinuance under the Limitation Act.
1. Relevance of authorities relied on by appellant: The Court held that the authorities invoked by the appellant (e.g., Bindhyachal Chand) were not apt because they concern cases where the plaintiff expressly admitted his dispossession and alleged wrongful dispossession by the defendant within the statutory period. In such cases, if the plaintiff fails to prove dispossession within 12 years, the defendant's long possession may be inferred and the suit barred. That factual pattern was absent here.
2. Onus and use of evidence: The Court rejected the appellant's submission that the case must be decided on the plaintiff's evidence alone because the onus was on him. The Court emphasized that when both parties produce evidence, the court must consider the whole body of evidence and not ignore the defendant's evidence merely because the onus nominally lay on the plaintiff. If the defendant elects to lead evidence, he cannot thereafter ask the court to ignore that evidence.
3. Legal notion of possession and discontinuance: The Court explained the distinction between actual and constructive possession. If a property is vacant and incapable of physical enjoyment (for example, ruins or lands submerged by a river), the owner is in constructive possession until someone else obtains actual possession. The Limitation Act (article 142) requires adverse possession by another person for a continuous statutory period before it can run against the owner. The Court relied on established authorities (M'Donnell v. M'Kinty; Smith v. Lloyd; Secretary of State for India v. Krishnamoni Gupta; Trustees, Executors, and Agency Company v. Short) to state that discontinuance means dereliction of possession by the owner followed by actual possession by another; mere non-use by the owner does not activate the statute.
4. Application to the facts found by the lower court: The lower court had found that neither party established actual possession of the house until the respondent (plaintiff) admittedly fastened the front door — and that it was not clear precisely when, though the plaintiff said 1924 but it could not have been before 1921. The property had been in ruins and not subject to acts of physical possession prior to 1921. The defendant first locked the outer door in 1921; until that point the plaintiff (or his predecessor) had constructive possession because no one else had actual possession. Thus, the discontinuance of the plaintiff's constructive possession attributable to the defendant's acts occurred in 1921. Because that event falls within 12 years of the suit, the cause of action was not barred by article 142.
The Court therefore concluded there was no merit in the appellant's contention and that the time-bar argument based on article 142 failed on both the legal principles applied and the factual findings about when dispossession first occurred.
Holding and Implications
Holding: The appeal is DISMISSED WITH COSTS.
Implications:
- The direct effect is that the lower court's decree (finding the suit not barred by article 142 and granting the reliefs described, including with respect to the main door) was affirmed and the defendant's appeal failed.
- The Court's reasoning clarifies that the Limitation Act (article 142) will not operate against an owner simply because of non-user or vacancy; there must be an actual adverse possession by another for the statutory period. In the present case the Court applied that established principle to the factual finding that dispossession occurred in 1921 and therefore within 12 years of the suit.
- The opinion does not purport to lay down any novel legal principle or to create new precedent beyond applying and affirming established authorities; its effect is confined to the parties and the facts before the Court.
End of summary — all content strictly reflects only the information contained in the provided opinion.
Thom, C.J and Ganga Nath, J.:— This is an appeal under the Letters Patent by the defendant against the decision of a learned single Judge of this Court. It arises out of a suit brought against him by the plaintiff respondent for partition and separate possession over his share in the property described in the plaint, and for the closing of some windows and the opening of a door. The plaintiff claimed, in the alternative, that if it be found that the partition has already taken place, he may be awarded possession over the specific share owned by him. The defendant contended that the property had already been partitioned and that the suit was time barred. The trial court found that the house of the plaintiff was separate from the rest of the house, that the suit was barred by article 142 of the Limitation Act as the plaintiff had not been in possession within 12 years of the suit and that it was not barred by order II, rule 2, of the Civil Procedure Code. On appeal the lower appellate court went into the question whether the suit was barred by order II, rule 2, of the Civil Procedure Code, and found that it was barred and dismissed the suit. On appeal this Court found that the suit was not barred by order II rule 2. It remanded the case for re-hearing by the lower court. The lower court re-heard it and found that the suit was not barred by article 142; and gave a decree for relief (e) and in respect of the main door of the house. The decree of the lower court was confirmed by the learned single Judge.
The only point that has been urged by the learned counsel for the appellant is that the suit is barred by article 142 of the Limitation Act. He has contended that the plaintiff has failed to prove any specific acts of his possession within 12 years and the suit therefore must be dismissed under article 142. He has relied on Bindhyachal Chand v. Ram Gharib Chand(1) and several other cases. These decisions are not relevant to the present case. Plaintiff has not come in this suit with the allegation that he has been dispossessed at any time by the defendant. On the other hand, he alleges that he has been in joint possession with the defendant over the property in suit. The decisions relied on by the learned counsel deal with the cases where the plaintiff came with an admission of his dispossession at the time of his suit and an allegation that he had been dispossessed by the defendant within 12 years, and where it was found that the plaintiff had not been in possession within 12 years of the suit. The cases, where the controversy about possession is between only two parties, namely the plaintiff and the defendant, and where the plaintiff admits the defendant's possession but alleges that he was dispossessed within 12 years of the suit by the defendant and the defendant contends that he has been in possession for more than 12 years and the suit is time barred, stand on entirely a different footing. There, if one party is not in possession, the other party is or must be held to be in possession. So in such cases, if the plaintiff fails to prove that he was dispossessed within 12 years, the inevitable inference and finding must be that his dispossession took place and the defendant has been in possession for more than 12 years before the suit. It is in such cases that the plaintiff cannot be allowed to say that if he has failed to prove his possession by evidence his possession must be presumed, as the title is with him because in spite of his title the other party is found to be in possession. The presumption that possession follows title is rebutted by the fact that the defendant is found in possession.
It was further contended by the learned counsel for the appellant that the case must be decided on the plaintiff's evidence alone and the defendant's evidence should not be looked at because the onus was on the plaintiff. This argument is not sound. There can be no question of any decision on the basis of onus of proof where both the parties produce evidence. It is the duty of the court to arrive at a correct finding on the whole evidence before it. If there is any lacuna in the plaintiff's evidence but it is supplied by the defendant's evidence, it would be not only unfair but would lead to injustice if the court were to depend on the plaintiff's evidence only where the onus lay on him. It is, however, open to the defendant not to lead any evidence where the onus is upon the plaintiff; but, after having gone into evidence, he cannot ask the court not to look at and act on it. It is his evidence and he is bound by it. If the defendant does not produce any evidence and the plaintiff fails to discharge the burden that lay on him, his suit would fail, as there is nothing else on which the court may record any finding.
A property cannot remain without an owner and without being in possession of somebody. The possession may be actual or constructive. In case of actual possession there can be no difficulty as to who is in possession. But if no one is in actual possession, it must be deemed to be in constructive possession of its owner and it is in such a case that the legal presumption that possession follows title applies.
It is not the law that if a land is left vacant and no other person is in possession, the plaintiff must fail unless he shows actual possession, that is, by positive acts of user and enjoyment within 12 years of the suit. The land may be in capable of actual enjoyment as in the case of diluvion by a river. In such a case, if the plaintiff shows his possession down to the period of diluvion his possession will continue so long as the land continues to be submerged. Mere absence of possession of the rightful owner is not sufficient to defeat his title. His title cannot be defeated unless some other person or successive persons has or have been in possession thereof for a continuous period of 12 years. It is necessary that there must have been adverse possession in order to bring the statute into operation. It does not run unless there is a person in whose favour it can run. An owner is not barred by simple non-user for any length of time., so long as no other person has been in possession. The owner remains in point of law in possession till he is dispossessed by another person obtaining actual possession.
“Discontinuance” in article 142 of the Limitation Act means that a person in possession goes out and is followed into possession by another person, because unless he is so followed he will in law be deemed to continue in possession, and therefore there will be no discontinuance. In M'Donnell v. M'Kinty Blackburne, C.J, observed at page 516: “The word ‘discontinuance’ I understand to mean an abandonment of possession by one person, followed by the actual possession of another person. This, I think, must be its meaning; for if no one succeed to the possession vacated or abandoned, there could be no one in whose favour or for whose protection the Act could operate. To constitute discontinuance there must be both dereliction by the person who has the right, and actual possession, whether adverse or not to be protected… In confirmation of these remarks I may here refer to all the authorities which have been cited and which prove, if proof was required, that actual possession is the object of the statute, and that to apply its provisions to any other case would be to violate its plain meaning and policy.”
In Smith v. Lloyd(2) Baron Parke observed at page 194: “We have not the slightest doubt that the title of the grantees of the mines is not barred in this case under the 3 and 4 Will 4, c. 27, section 3, for we are clearly of opinion that statute applies not to cases of want of actual possession by the plaintiff, but to cases where he has been out of it, and Another in possession for the prescribed time;… and we entirely concur in the judgment of Blackburne, C.J, in M'Donnell v. M'Kinty and the principle upon which that decision is founded.” This observation of Baron Parke was approved of at page 535 by their Lordships of the Privy Council in Secretary of State for India v. Krishnamoni Gupta where it was observed: “In the case of the Trustees, Executors, and Agency Company v. Short(3) it was laid down by this Board that ‘if a person enters upon the land of another and holds possession for a time, and then without having acquired title under the statute abandons possession, the rightful owner on the abandonment is in the same position in all respects as he was before the intrusion took place.’ And the opinion of Parke, B., is there quoted that there must be both absence of possession by the person who has the right and actual possession by another to bring the case within the statute.”
The finding which has been arrived at on the evidence before it by the lower court is that “Neither party can establish any possession over the house until the respondent admittedly fastened up the front door. As I have said it is not apparent precisely when he did this: the plaintiff's statement was that it was in 1924, but it cannot have been prior to 1921 as the house was still open then for the house of the labourers working on the mosque.” It has also been found by the lower court that the property was in ruins, and was not capable of any act of physical possession over it. The defendant's possession in the present case dates back to the time (1921) when he for the first time locked the outer door. Before that the property lay in ruins, and no act of physical possession was done by the plaintiff. Though neither the plaintiff nor his predecessor was in actual physical possession over the property in dispute before 1921 it must be deemed to have continued in their constructive possession as no one else was in possession. It was only in 1921 that the defendant stepped in and locked the outer door and dispossessed the plaintiff for the first time. Whether article 142 or article 144 of the Limitation Act be applied to the present case, the discontinuance of the possession of the plaintiff occurred only in the year 1921, that is, within 12 years of the suit. The suit was therefore, evidently not time barred. There is no force in this appeal. It is therefore ordered that it be dismissed with costs.
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