Supreme Court of India
Mallavva vs Kalsammanavara Kalamma (Since Dead) By … on 20 December, 2024
2024 INSC 1021
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 14803 OF 2024
(arising out of SLP (CIVIL) NO. 29135 OF 2019)
MALLAVVA AND ANR. ….. APPELLANT(S)
VERSUS
KALSAMMANAVARA KALAMMA …..RESPONDENT(S)
(SINCE DEAD) BY LEGAL HEIRS & ORS.
JUDGMENT
J.B. PARDIWALA, J.:
1. Leave granted.
2. This appeal arises from the judgment and order passed by the
High Court of Karnataka, Dharwad Bench dated 13.06.02019 in
Regular Second Appeal No. 100071 of 2019 by which the
Second Appeal filed by the appellants herein (original
Signature Not VerifiedDigitally signed by
CHANDRESH
Date: 2024.12.20
16:45:52 IST
Reason:defendants) came to be dismissed thereby affirming the
Page 1 of 35
judgment and order passed by the First Appellate Courtallowing the appeal filed by the respondents herein(original
plaintiffs) and decreeing the suit for declaration of title and
possession.
3. The facts giving rise to this appeal may be summarised as
under:
a. For the sake of convenience, the appellants herein shall be
referred to as the original defendants and the respondents
herein shall be referred to as the original plaintiffs.
b. The original plaintiff Late Kalsammanavara Kalamma
instituted Original Suit No. 67 of 2011 in the Court of the Civil
Judge and JFMC, Hadagali, seeking relief of declaration and
injunction in respect of the suit property. In the said suit, the
trial court framed the following issues:
“1. Whether the plaintiff proves that she is the
absolute owner and in possession of the suit
properties?
2. Whether the plaintiff proves that she belonged to
the Kalasammanavar family, and her ancestors
Chinmayappa and Mallappa are own brothers?
3. Whether the plaintiff proves that the defendants are
interfering with the peaceful possession and
Page 2 of 35
enjoyment of the suit schedule properties of the
plaintiff.
4. Whether the defendants prove that Jamani
Mallavva has consented to change the Khatha in the
name of defendant No.2 in respect of the suit
properties?
5. Whether the defendants prove that the suit is not
maintainable without seeking the relief of possession
by the plaintiff?
6. Whether the defendants prove that they are in
lawful possession and enjoyment of the suit schedule
properties?
7. Whether the defendants prove that the Court fee
paid by the plaintiff is insufficient?
8. Whether the plaintiff is entitled for the relief as
sought for?
9. What order or decree?
c. The trial court answered the issue No. 1 referred to above
partly in affirmative and issue Nos. 2, 4, 5 and 6 respectively
in the affirmative. The issue Nos. 3 and 7 respectively were
answered in the negative. The trial court accordingly
dismissed the suit with costs of Rs. 5, 000.
d. Before the original plaintiff could file First Appeal, she passed
away.
Page 3 of 35
In such circumstances referred to above, her legal heirs i.e.,
the respondents herein preferred Regular First Appeal No. 80
of 2018 in the Court of Sr. Civil Judge, Hoovina Hadagali
seeking to challenge the judgment and decree passed by the
trial court in Original Suit No. 67 of 2011 referred to above.
e. The First Appellate Court framed the following points for
determination:
“1. Whether the appellants/ plaintiff proved that they
belong to Kalasammanavara family thereby they became
the absolute owners of the suit property by virtue of
inheritance?
2. Whether the impugned judgment and decree is
capricious, perverse, illegal and calls the interference by
this court?
3. Whether the claim of the plaintiff is barred under law
of limitation?”f. The First Appellate Court answered the points of
determination referred to above as under:
“Point no.1: In affirmative,
Point no.2: Partly in affirmative,
Point no.3: In the negative,
Point no.4: As per final order for the following..”Page 4 of 35
g. It is pertinent to note that before the First Appellate Court theappellants herein as defendants had filed cross-objection
challenging the findings recorded by the trial court on the
issue Nos. 1 and 2 respectively referred to above.
h. It also appears that in the First Appeal filed by the legal heirs
of the original plaintiffs an application for amendment of
plaint was filed wherein, the plaintiffs prayed for possession
of the suit property. The application seeking amendment of
plaint filed by the legal heirs of the original plaintiff came to
be allowed by the First Appellate Court and the plaint was
accordingly amended.
i. The order passed by the First Appellate Court allowing the
amendment application reads thus:
“11. As per the findings of the trial court, the plaintiff is
an absolute owner of suit properties. The respondents
have filed the cross appeal challenging the said
appeal. But the trial court comes to conclusion that
the plaintiff is not in possession over the suit
properties. That is the reason plaint came to be
dismissed. But the legal heirs of the plaintiff are still
contending that they have continued the possession
over the suit properties. But they want to amend the
plaint by inserting the alternative prayer of possession.
Since the possession is a fact in issue between thePage 5 of 35
parties, it has to be ascertained at the time of
argument. However, the proposed amendment is just
an alternative relief of possession, the entitlement of
the said relief is subject to proof of the particular fact.
If the legal heirs of plaintiff are able to establish the
possession, seeking the possession is not necessary.
On the other hand, if they failed to prove the
possession as it is settled principle of law without
seeking possession, suit for declaration is not
maintainable when the party is not in possession over
the properties. Hence the proposed amendment is
just and necessary to resolve the actual dispute
between the parties.
12. It is settled principle of the law that appeal is the
continuation of the proceedings and even the parties
can amend their pleadings before the appellate court
also subject to proof of the fact. At this juncture it is
beneficial to refer the decision of Hon’ble High Court
of Karnataka reported in 2016 KCCR(1) 73 in between
Puttamaramma V/s Giriyappa & Ors. wherein Hon’ble
High Court in para-17 held as hereunder:
“17. Appeal being continuation of original
proceedings and Appellate Court having power
to exercise all the powers vested with the trial
Court, would necessarily have power to examine
an application filed under Order 6, Rule
17 CPC and it cannot be said that such power to
entertain the application for amendment by the
Appellate Court would not be available on the
ground of proviso to Rule 17 of Order
VI CPC curtailing such power which in fact it
does not for the reasons already indicated herein
above. An appeal being proceedings in
continuation of original suit, it can be safely
concluded that First Appellate Court is vestedPage 6 of 35
with similar power possessed by Court of original
jurisdiction. Language employed in sub section
(2) of Section 107 CPC is clear, unambiguous
and explicit, which would clearly indicate that
Appellate Court shall have the same power and
shall perform as nearly as may be the same
duties as are conferred and imposed by the Code
on Courts of original jurisdiction in respect of
suits instituted therein.”In view of the dictum of Hon’ble High Court the First
Appellate Court can exercise the power under Order 6
rule 17 of CPC as it is a continuation of the
proceedings. Hence as per the detailed discussion
above IA deserved to be allowed. Accordingly point
No. 1 is answered in the affirmative.
13. Point No.2:- For the aforesaid reason and
discussion, I proceed pass the following
ORDER
I.A. No. II under order 6 rule 17 read
with Sec. 151 of C.P.C. is hereby allowed.
Appellants are permitted to amend the plaint
and directed to submit the amended plaint in
the office within 7 days from this order.
No order as to cost.”
j. The First Appellate Court reversed the judgment and order
passed by the trial court and thereby allowed the First Appeal
Page 7 of 35
filed by the plaintiffs. The First Appellate Court while allowing
the First Appeal observed as under:
“40. The counsel or the respondents have argued
that the defendants have got amended the plaint
and also contended that the suit of the plaintiff as
well as her legal heirs are barred under law of
limitation as they approached the court after
lapse of prescribed law of limitation. Further the
counsel for the respondents have argued that
since the suit is for the relief of declaration the
plaintiff ought to have filed the suit within three
years from the date of cause of action. Now they
are seeking the relief of possession. The plaintiff
shall file the suit within 12 years from the date of
dispossession. Even by considering the RTC
extracts since 1981, defendants are in
possession of the suit properties, totally the
claim of the plaintiff is barred under law of
limitation. By considering the arguments I again
carefully went through the pleading and other
materials available on record.
41. Of course initially the suit is for declaration of
title and consequential relief of permanent
injunction. As per the provision of Article 58 of
Limitation Act, in order to obtain any declaration
three years when the right to sue first accrues. As
per the detailed discussion made above of
course the plaintiff has established her right over
the suit properties. Now the legal heirs of plaintiff
are claiming the alternative relief of possession.
Since the plaintiff failed to prove their
possession, they are entitled for the possession
also. In order to entitle the possession, as per
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provision of Article 55 of Limitation Act, the
limitation is 12 years when the possession of the
defendants became adverse to the plaintiff. …
As per the dictum of Hon’ble Supreme Court
when the suit is for possession based on title,
once the title is established unless the defendant
proves adverse possession, the plaintiff cannot
be non suited. Here the claim of the plaintiff by
virtue of the title succeeded by through her
ancestors. Under such circumstances unless
the defendants have pleaded and proved that
they are in adverse possession against to the
interest of the plaintiff, the plaintiff cannot be non
suited. Accordingly now it is settled principle of
law that when the plaintiff established right, title
and interest over the suit property and the
defendants are in possession unless and until
the defendants are proved that they are in
adverse possession and they became owners
over the particular property by virtue of adverse
possession the plaintiff cannot be non suited and
it cannot be hold that suit is barred by law of
limitation. Admittedly the defendants nowhere
have pleaded that they are in possession of the
suit property, adverse to the interest and right
against to the plaintiff. Under such
circumstances this Court of the considered
opinion that the suit is not barred by limitation as
contended by the defendants and the suit is in
time and the plaintiff is entitled the relief as
sought for.”
(Emphasis supplied)
k. The operative part of the First Appellate Court’s judgment
reads thus:
Page 9 of 35
“The appeal filed by appellants/ legal heirs of
plaintiff under Order 41 Rule 1 and 2 r/w Sec.151
CPC is hereby allowed.
The judgment and decree in OS No.67/2011
dated 6.9.2014 on the file of Civil Judge and JMFC,
Huvinahadagali is hereby set aside by modifying
the findings.
Suit of the plaintiff is hereby decreed.
The legal heirs of plaintiff are hereby declared
as an absolute owner of the suit properties and the
defendants are hereby directed to handover the
possession of the suit properties within 60 days
from this order.”l. The appellants herein being dissatisfied with the judgment
and decree passed by the First Appellate Court went before
the High Court by filing Second Appeal under Section 100 of
the CPC.
m. The High Court found that there was no substantial question
of law involved in the Second Appeal and accordingly
proceeded to dismiss the same holding as under:
“The present appellants have also contended
that the suit for declaration and possession is
barred by limitation under Article 58 of thePage 10 of 35
Limitation Act. Since First Appellate Court has
held that the plaintiff is the absolute owner of the
suit property, she is entitled for possession, and
the case is not covered under Article 58 of the
Limitation Act. It is also not the case of the
defendants that they are in adverse possession
of the suit property over the statutory period, and
they have perfected their title over suit properties
by adverse possession. When this is not the case
of the defendants, Article 65 of the Limitation Act
has to be applied and consequently, the suit of
the plaintiff cannot be held as barred by
limitation. Moreover, when the suit of the plaintiff
is based on title, the question of limitation does
not arise. Under these circumstances, it is held
that the appellants have not at all made out any
substantial questions of law for consideration in
the present appeal. Therefore, the appeal being
devoid of merit is liable to be dismissed.
Accordingly, the appeal is dismissed.”
4. In such circumstances referred to above, the appellants (original
defendants) are here before this Court with the present appeal.
WRITTEN SUBMISSIONS ON BEHALF OF THE APPELLANTS
a. The High Court committed a serious error in
dismissing the Second Appeal without even
formulating any substantial question of law. Trial
court was justified in dismissing the suit on the
ground that the appellants herein (defendants) are
Page 11 of 35
in possession of the suit property since 1981-82
and the suit filed without seeking relief of
possession was liable to be dismissed.
b. The plaintiff filed the present suit on
29.07.2011 with the prayer of declaration of title
and permanent injunction. Significantly, there was
no prayer for possession in the suit as originally
filed. The suit was filed asserting title on the basis
that plaintiff’s collaterals were the original owners
of the suit properties and that the collateral
branch remined heirless and therefore the suit
property devolved on the plaintiff and further that
the plaintiff was in possession of the suit
properties. The Trial Court found that petitioners-
defendants were in possession from 1981-1982
continuously and revenue records stood in the
name of the petitioners-defendants since 1981-
1982. All through the pendency of the suit before
the Trial Court the plaintiff did not seek any
amendment of the plaint to seek the relief of
possession. Thus, the suit as framed was primarily
one for declaration of title and consequential relief
for injunction. The respondent-plaintiff filed an
appeal before the First Appellate Court and during
the pendency of the appeal filed an application for
amendment of the plaint to incorporate the relief
of possession. The said application for
amendment was allowed by the First Appellate
Court on 22.06.2018. Therefore, the prayer for
amendment was made as late as 2018 though, the
petitioners-defendants had been in possession
since 1981-1982. Thus, the suit was barred by
limitation.
c. The respondent – plaintiff pleaded case with
regard to cause of action was that the petitioners-
defendants managed to get change of Khatha in
the name of the petitioners-defendants in the
Page 12 of 35
revenue records and this gave rise to the cause of
action. It is the concurrent finding of the Trial Court
and the First Appellate Court that the revenue
records stood in the name of the petitioners-
defendants since 1981-1982. The Trial Court noted
at page 67 of its judgment that the mutation took
place in favour of petitioners-defendants in the
year 1981-1982. The finding of the Trial Court in this
regard is under:
“All the documents i.e., RORs and Patta Book of
the suit properties revealed that in the year
1981-1982 the Jummani Mallavva had
consented to the defendants to mutate their
names in respect of the suit schedule
properties and from the 1981-1682 onwards, the
name of the defendants are appearing in the
revenue records of the suit properties.”Therefore, the cause of action as far back as
1981-1982 and the suit for declaration of title
(primary relief) was barred under Article 58 of the
Schedule to the Limitation Act.
5. In such circumstances referred to above, the learned counsel
prayed that there being merit in his appeal, the same may be
allowed and the impugned judgment passed by the High Court
be set aside.
SUBMISSIONS ON BEHALF OF THE RESPONDENTS
(ORIGINAL PLAINTIFFS)
Page 13 of 35
a. The Petitioners have filed this Special Leave
Petition against the final Judgement of the High Court
of Karnataka, Circuit Bench at Dharwad dated 13-06-
2019 in RSA No.100071/2019 by which the
Petitioners’ second appeal is dismissed.
b. This proceeding originates from the suit bearing
O.S. No.67 of 2011, filed by deceased Respondent
seeking relief of declaration and injunction. The Trial
Court, after appreciation of evidence, found the
plaintiff/respondent to be the owner. However, the
Trial Court found that the plaintiff is not in possession
and since she had not prayed for possession, the suit
was not maintainable and hence dismissed the suit.
c. The finding regarding declaration of ownership
over the suit property was upheld by the first
appellate court and in the impugned judgement by
the High Court, as well. Hence, the finding that the
plaintiff is the owner of the suit property is a
concurrent finding of fact.
d. Since the trial court had found the defendant to be
in possession, the plaintiff/respondent amended the
plaint during the pendency of her appeal and added
the relief of recovery of possession. The Appellate
Court granted the relief of possession to the
plaintiff/respondent while allowing her appeal. The
decree of possession is confirmed by the High Court
by dismissing the Petitioners’ second appeal.
e. On 29-11-2019, this Hon’ble Court, while issuing
notice on this SLP, confined the notice “to consider
the question as to whether the suit for possession (as
per amended plaint before the First Appellate Court)
was within the period of limitation.”
Page 14 of 35
f. The plaintiff traced her title with the averment that
Chinmayappa and Mallappa of Kalsammanavara
family were brothers; though they were joint owners
of the suit properties, the lands stood in the name of
Chinmayappa; Chinnappa had a son called
Goneppa who died issueless. Plaintiff is
granddaughter of the younger brother Mallappa and
hence she is the only surviving legal heir.
g. The plaintiff further averred that the defendants
did not belong to the Kalsammanavara family but
belonged to another family called Jumani family. In
Jummani family, there was one Goneppa, whose wife
was Mallamma; taking advantage of similarity of the
names, the defendants got their names mutated in
the Record of Rights.
h. The specific averment in the plaint is that the
plaintiff learned about the illegal mutation in the year
2009 and thereafter she initiated Revenue
proceedings to question the mutation, during which
defendants denied her title and hence she filed the
suit. The cause of action pleaded is in 2010, when
the defendants denied the title of the plaintiff for the
first time.
i. In the written statement, the defendants pleaded
that Chinmayappa had a son named Goneppa who
had married Mallavva D/o Jumani Basappa, and that
the said Wife of Goneppa is the sister of Defendant
No.1’s Husband. It is further pleaded that Goneppa
and Mallavva died issueless leaving behind
Defendant No.1’s husband as the Class II heir and
thus defendants have succeeded to the property. It
is further pleaded that Goneppa’s wife Mallavva had
consented to change the Khatha in the name of
Page 15 of 35
Defendant No.2 under Mutation No.11/81-82 and
Defendant No.1 came into lawful possession and
enjoyment of the property after the mutation was
effected. The defendants have not raised any plea
regarding adverse possession. After the plaint was
amended by including the prayer for possession, the
defendants amended the written statement and
added Para 14(a) that the suit is barred by limitation.
j. The First Appellate Court has held that initially the
suit was for declaration covered by Article 58 of the
Limitation Act and after amendment, the plaintiff has
sought possession which is covered under Article 65
of the Limitation Act which is 12 years from the date
when the possession of the defendants becomes
adverse to the plaintiff. Further the Appellate Court
has noted that unless the defendants plead and
establish that they are in adverse possession and
became owners by virtue of adverse possession, the
plaintiff, whose title is proved cannot be non-suited
on the ground of limitation.
k. The above-mentioned finding of the First Appellate
Court is confirmed with regard to the question of
limitation is upheld by the High Court.
l. The argument of the Senior Counsel for the
Petitioner that the present suit is barred by limitation
under Article 58 of the Limitation Act cannot be
accepted. Article 58 is a residuary provision for
seeking declaration. Only Article 65 applies to a suit
for possession. In the present case, the notice issued
by this Hon’ble Court is limited to the question
whether the amended prayer for possession is
barred by limitation.
Page 16 of 35
6. In such circumstances referred to above, the learned counsel
prayed that there being no merit in this appeal, the same may be
dismissed.
ANALYSIS
7. Having heard the learned counsel appearing for the parties and
having gone through the materials on record, the only question
that falls for our consideration is whether the High Court
committed any error in passing the impugned judgment and order.
8. We take notice of the order passed by this Court dated
29.11.2019. The same reads thus:
“Delay condoned.
Issue notice to consider the question as to whether
the suit for possession (as per amended plaint
before the First Appellate Court) was within the
period of limitation.
Status quo, existing as on today, shall be
maintained.
Call for the records from the Trial Court as well as
the First Appellate Court.”Thus, the only point that falls for our consideration is whether the
original suit filed by the plaintiffs even after the amendment of the
Page 17 of 35
plaint at the stage of first appeal seeking possession of the suitproperty could be said to be time barred. In other words, whether
the suit would be governed by Article 58 or Article 65 of the
Limitation Act, 1963?
9. It is not in dispute that the trial court even while dismissing the suit
held the plaintiffs to be the absolute owner of the suit schedule
properties. It is also not in dispute that the plaintiff came to be
non-suited as the appellants herein (original defendants) were
found to be in lawful possession and enjoyment of the suit
schedule properties and the plaintiffs had failed to seek relief of
possession of the suit properties as scheduled in the plaint. Thus,
so far as title to the property is concerned, the plaintiff was able
to establish that she was the absolute owner of the suit schedule
properties. In the First Appeal filed by the legal heirs of the original
plaintiffs, the plaint was permitted to be amended and added the
prayer for recovery of the possession from the defendants came
to be added. It is true that as regards the findings on title and
ownership, the defendants filed cross-objections before the First
Appellate Court and those were looked into and dismissed.
Page 18 of 35
However, as stated above notice was issued by this Court only to
consider the issue of period of limitation.
10. In view of the aforesaid, we shall discuss into the position of law
as regards the applicability of Article 58 or Article 65 of the
Limitation Act in the present litigation.
11. We must first look into Sections 3(1) and 27 and also Articles 58,
65 and 113 of the Limitation Act respectively.
12. Section 3(1) of the said Act reads as follows:
“3. Bar of Limitation.-(1) Subject to the provisions
contained in sections 4 to 24 (inclusive), every suit
instituted, appeal preferred, and application made
after the prescribed period shall be dismissed,
although limitation has not been set up as a
defence.”
13. A mere reading of the said section would reveal that if any suit or
appeal or application has been filed beyond the prescribed period
of limitation mentioned in the Limitation Act, the same is liable to
be dismissed even though the plea of limitation has not been
taken as a defence.
Page 19 of 35
14. Section 27 of the said Act reads as follows:
“27. Extinguishment of right to property.-At the
determination of the period hereby limited to any
person for instituting a suit for possession of any
property, his right to such property shall be
extinguished.”
15. It means, as far as a suit for possession is concerned, the same
should be filed before expiry of the period mentioned in the
Limitation Act and if the same is filed beyond the period of
limitation, the right of plaintiff over such property shall become
extinguished.
16. Article 58 of the Limitation Act reads as follows:
“Description Period of limitation Time from which
of suit period begins to run
To obtain Three years When the right to sue
any other first accrues”
declarationFrom a cursory look of the provision of the said Article, it is easily
discernible that apart from the declaratory suits mentioned in
Articles 56 and 57, any other declaratory suit should be filed
within three years from the date when right to sue first accrues.
17. Article 65 of the Limitation Act reads as follows:
Page 20 of 35
“Description Period of Time from which
of suit Limitation period begins to runFor possession Twelve
of When the
immovable years possession of the
property or any defendant becomes
interest therein adverse to the
based on title plaintiff”From a plain reading of the said Article, it is made clear that a suit
filed for recovery of possession based on title should be filed
within a period of 12 years when possession of the defendant
becomes adverse to the plaintiff concerned.
18. Article 65 of the Limitation Act, 1963 is corresponding to Article
142 of the Limitation Act, 1908, wherein it is stated that the
plaintiff who based his case on title has to prove not only title, but
also possession within 12 years of the date of suit. The said Article
has undergone a metamorphic change in view of Article 65 of the
Limitation Act, 1963. The vital distinction between Articles 142 of
the Limitation Act, 1908 and Article 65 of the Limitation Act, 1963
is that as per Article 142 of 1908 Act, the plaintiff has to prove not
only title, but also possession within 12 years of the date of suit,
whereas, as per Article 65 of 1963 Act, a suit for possession based
Page 21 of 35
on title has to be filed within 12 years when possession becomes
adverse to the concerned plaintiff.
19. Article 113 reads as follows:
“Description Period of Time from which
of application Limitation period begins to runAny suit for which Three years When the right to sue
no period of accrues.”
limitation is
provided elsewhere
in this Schedule.
It means, if no prescribed period of limitation is provided
elsewhere in the Limitation Act, 1963, as per Article 113 of the said
Act, a suit must be instituted within a period of 3 years when the
right to sue accrues.
20. From the conjoint reading of the said Sections and Articles of the
Limitation Act, 1963, the Court has to find out as to whether the
reliefs sought for in the present suit would come within the
contour of Article 58 or any other Article of Limitation Act, 1963.
21. Article 58 comes within the purview of Part-Ill of Limitation Act,
1963 and the same deals with suits relating to declarations.
Page 22 of 35
22. The chronology of the following events is important:
i. The original suit was instituted in the year 2011
ii. The suit came to be dismissed on 6.09.2014
iii. First appeal was filed on 30.10.2014.
iv. An application seeking amendment of plaint was
filed along with first appeal on 30.10.2014.
v. The application seeking amendment of plaint
with a view to add the prayer for recovery of
possession was allowed vide order dated
22.06.2018.
vi. The Regular appeal came to be allowed on
27.10.2018.
AMENDMENT OF PLAINT AT THE STAGE OF FIRST APPEAL
23. It is well settled that rules of procedure are intended to be a
handmaid to the administration of justice. A party cannot be
refused just relief merely because of some mistake,
negligence, inadvertence or even infraction of rules of
procedure. The court always gives relief to amend the
pleading of the party, unless it is satisfied that the party
applying was acting mala fide or that by his blunder, he had
caused injury to his opponent which cannot be compensated
for by an order of cost. (Mahila Ramkali Devi v. Nandram
(Dead) through Legal Representatives : (2015) 13 SCC 132.
Page 23 of 35
24. In Jai Jai Ram Manohar Lal v. National Building Material
Supply, Gurgaon reported in (1969) 1 SCC 869, this Court
held that the power to grant amendment to pleadings is
intended to serve the needs of justice and is not governed by
any such narrow or technical limitations.
25. In Pandit Ishwardas v. State of Madhya Pradesh & Ors.
reported in (1979) 4 SCC 163, this Court observed:
“4. We are unable to see any substance in any of the
submissions. The learned counsel appeared to argue on
the assumption that a new plea could not be permitted
at the appellate stage unless all the material necessary
to decide the plea was already before the court. There is
no basis for this assumption.
5. There is no impediment or bar against an appellate
court permitting amendment of pleadings so as to
enable a party to raise a new plea. All that is necessary
is that the appellate court should observe the well-
known principles subject to which amendments of
pleadings are usually granted. Naturally one of the
circumstances which will be taken into consideration
before an amendment is granted is the delay in making
the application seeking such amendment and, if made
at the appellate stage, the reason why it was not sought
in the trial court. If the necessary material on which the
plea arising from the amendment may be decided is
already there, the amendment may be more readily
granted than otherwise. But, there is no prohibition
against an appellate court permitting an amendment at
the appellate stage merely because the necessary
material is not already before the court.”
Page 24 of 35
26. In Sampath Kumar v. Ayyakannu & Anr. reported in (2002) 7
SCC 559, it has been held as follows:
“An amendment once incorporated relates back to
the date of the suit. However, the doctrine of relation
back in the context of amendment of pleadings is not
one of universal application and in appropriate cases
the Court is competent while permitting an
amendment to direct that the amendment permitted
by it shall not relate back to the date of the suit and
to the extent permitted by it shall be deemed to have
been brought before the Court on the date of which
the application seeking the amendment was filed.”
(Emphasis supplied)
27. In Siddalingamma & Anr. v. Mamtha Shenoy reported in (2001) 8
SCC 561, this Court held as follows:
“… On the doctrine of relation back, which generally
governs amendment of pleadings unless for reasons
the court excludes the applicability of the doctrine in
a given case, the petition for eviction as amended
would be deemed to have been filed originally as
such and the evidence shall have to be appreciated
in the light of the averments made in the amended
petition. The High Court though set aside the order of
the trial court but it is writ large from the framing of
the order of the High Court, especially the portions
which we have extracted from the order of the High
Court and reproduced in earlier part of this
judgment, that the learned Single Judge of the High
Court also was not seriously doubting the
genuineness of the landlady’s requirement on the
material available on record but was not feeling
happy with the contents of the eviction petition as
originally filed and an overzealous attempt on the
Page 25 of 35
part of the landlady in projecting her sister’s sons
and grandchildren as her own. …”
(Emphasis supplied)
28. This Court in Revajeetu Builders and Developers v.
Narayanaswamy and Sons & Ors., reported in (2009) 10 SCC
84, laid down some basic principles which the Court should
keep in mind while allowing or rejecting the application for
amendment. Para 63 of the said judgment reads thus:
“63. On critically analysing both the English and
Indian cases, some basic principles emerge which
ought to be taken into consideration while allowing
or rejecting the application for amendment:
(1) whether the amendment sought is
imperative for proper and effective
adjudication of the case;
(2) whether the application for amendment
is bona fide or mala fide;
(3) the amendment should not cause such
prejudice to the other side which cannot be
compensated adequately in terms of money;
(4) refusing amendment would in fact lead to
injustice or lead to multiple litigations;
(5) whether the proposed amendment
constitutionally or fundamentally changes the
nature and character of the case; and
(6) as a general rule, the Court should decline
amendments if a fresh suit on the amendmentPage 26 of 35
claims would be barred by limitation on the
date of application.”
(Emphasis supplied)
29. Thus, the dictum as laid in the above referred judgment of this
Court is that the Court should decline amendments if a fresh suit
on the amendment claims would be barred by limitation on the
date of application.
30. The submission on the part of the appellants herein is that the
suit would be governed by Article 58 of the Limitation Act and is
liable to be dismissed being time barred whereas the
submission on the part of the respondents (original plaintiffs) is
that the suit is governed by Article 65 of the Limitation Act and
even on the date when the First Appellate Court permitted the
plaint to be amended, the same was well within limitation.
31. It is well settled that when there are several reliefs claimed in a
suit, the limitation period would be that of the main relief, the
limitation for ancillary relief being ignored. The argument of the
learned counsel appearing for the appellants herein is not
sustainable in law as it proceeds on the assumption as if old
Article 142 of the earlier Limitation Act was in force wherein the
plaintiff who based his case on title had to prove not only title but
Page 27 of 35
also possession within twelve years of the date of the suit. The
said provision of law as observed aforesaid has undergone a
metaphoric sea change as we find under the Limitation Act.
Article 65 reads as under:
“Description of Period of Time from
Suit limitation which period
begins to run
65. For possession Twelve When the
of immovable years possession of
property or any the defendant
interest therein becomes
based on title adverse to the
plaintiff.”
It is, therefore, obvious that when the suit is based on title for
possession, once the title is established on the basis of relevant
documents and other evidence unless the defendant proves
adverse possession for the prescriptive period, the plaintiff
cannot be non-suited. [See: Indira v. Arumugam and Another
reported in (1998) 1 SCC 614.]
32. In C. Mohammad Yunus v. Syed Unnissa reported in AIR 1961
SC 808, it has been laid down that in a suit for declaration with a
further relief, the limitation would be governed by the Article
Page 28 of 35
governing the suit for such further relief. In fact, a suit for a
declaration of title to immovable property would not be barred
so long as the right to such a property continues and subsists.
When such right continues to subsist, the relief for declaration
would be a continuing right and there would be no limitation for
such a suit. The principle is that the suit for a declaration for a
right cannot be held to be barred so long as Right to Property
subsist.
33. This Court in Government of Kerala & Anr. v. Joseph & Ors.
reported in 2023 SCC Online SC 961 has held as under:
“35. Mere possession over a property for a long period
of time does not grant the right of adverse possession
on its own;
(a) In Gaya Prasad Dikshit v. Dr. Nirmal
Chander (two-Judge Bench)(1984) 2 SCC 286, this
court observed-
“1… It is not merely unauthorised possession on
termination of his licence that enables the licensee
to claim title by adverse possession but there must
be some overt act on the part of the licensee to
show that he is claiming adverse title. It is possible
that the licensor may not file an action for the
purpose of recovering possession of the premises
from the licensee after terminating his licence but
that by itself cannot enable the licensee to claim
title by adverse possession. There must be some
overt act on the part of the licensee indicating
assertion of hostile title. Mere continuance of
Page 29 of 35
unauthorised possession even for a period of more
than 12 years is not enough.”
xxx xxx xxx
47. It has also been held in the case of State of
Uttrakhand v. Mandir Sri Laxman Sidh Maharaj (2017)
9 SCC 579 (two-Judge Bench):
“…The courts below also should have seen that
courts can grant only that relief which is claimed
by the plaintiff in the plaint and such relief can be
granted only on the pleadings but not beyond it.
In other words, courts cannot travel beyond the
pleadings for granting any relief…”
48. Mandir Sri Laxman Sidh Maharaj (supra) was
relied on in Dharampal (Dead) v. Punjab Wakf Board
(2018) 11 SCC 449 (two-Judge Bench) on the same
principle.
49. Claim of independent title and adverse
possession at the same time amount to contradictory
pleas. The case of Annasaheb Bapusaheb
Patil v. Balwant (1995) 2 SCC 543 (two-Judge Bench)
elaborated this principle as:
“15. Where possession can be referred to a
lawful title, it will not be considered to be
adverse. The reason being that a person whose
possession can be referred to a lawful title will
not be permitted to show that his possession was
hostile to another’s title. One who holds
possession on behalf of another, does not by
mere denial of that other’s title make his
possession adverse so as to give himself the
benefit of the statute of limitation. Therefore, a
person who enters into possession having a
lawful title, cannot divest another of that title by
pretending that he had no title at all.”
50. This principle was upheld in the case of Mohan
Lal v. Mirza Abdul Gaffar (1996) 1 SCC 639 (two-Judge
Bench) –
Page 30 of 35
“4. As regards the first plea, it is inconsistent with
the second plea. Having come into possession
under the agreement, he must disclaim his right
thereunder and plead and prove assertion of his
independent hostile adverse possession to the
knowledge of the transferor or his successor in
title or interest and that the latter had acquiesced
to his illegal possession during the entire period
of 12 years, i.e., up to completing the period of his
title by prescription nec vi, nec clam, nec
precario. Since the appellant’s claim is founded
on Section 53-A, it goes without saying that he
admits by implication that he came into
possession of the land lawfully under the
agreement and continued to remain in
possession till date of the suit. Thereby the plea
of adverse possession is not available to the
appellant.”
51. The Court in Uttam Chand (supra) has reiterated
this principle of adverse possession.
52. Burden of proof rests on the person claiming
adverse possession.
53. This Court, in P.T. Munichikkanna
Reddy v. Revamma (2007) 6 SCC 59 (two-Judge
Bench), it held that initially the burden lied on the
landowner to prove his title and title. Thereafter it
shifts on the other party to prove title by adverse
possession. It was observed:—
“34. The law in this behalf has undergone a
change. In terms of Articles 142 and 144 of
the Limitation Act, 1908, the burden of proof was
on the plaintiff to show within 12 years from the
date of institution of the suit that he had title and
possession of the land, whereas in terms of
Articles 64 and 65 of the Limitation Act, 1963, the
legal position has underwent complete change
insofar as the onus is concerned : once a party
proves its title, the onus of proof would be on the
Page 31 of 35
other party to prove claims of title by adverse
possession….”
54. The Court reiterated this principle in the case
of Janata Dal Party v. Indian National Congress (2014)
16 SCC 731 (two-Judge Bench):
“…the entire burden of proving that the possession
is adverse to that of the plaintiffs, is on the
defendant…””
34. The decision of this Court in the case of Khatri Hotels Private
Limited & Anr. v. Union of India & Anr. reported in (2011) 9 SCC
126 relied upon by the learned counsel appearing for the
appellants is of no avail. In the said case, the Court was
concerned only with Article 58 of the Limitation Act. The Court
noted that while enacting Article 58 of the Limitation Act, the
legislature had designedly made a departure from the language
of Article 120 of the Limitation Act, 1908. The Court noted that
the word “first” has been used between the words “sue” and
“accrued”. The Court said that the same would mean that if a suit
is based on multiple causes of action, the period of limitation
would begin to run from the date when the right of sue first
accrued. In other words, the Court held that successive violation
of the right would not give rise to fresh cause and the suit would
Page 32 of 35
be liable to be dismissed if it was beyond the period of limitationcounted from the day when the right to sue first accrued.
35. The decision in the case of Rajpal Singh v. Saroj (Deceased)
through Legal Representatives & Anr. reported in (2022) 15
SCC 260, relied upon by the learned counsel appearing for the
appellants is also of no avail. In the said case, this Court
observed as under:
“14. The submission on behalf of the original plaintiff
(now represented through her heirs) that the prayer
in the suit was also for recovery of the possession
and therefore the said suit was filed within the period
of twelve years and therefore the suit has been filed
within the period of limitation, cannot be accepted.
Relief for possession is a consequential prayer and
the substantive prayer was of cancellation of the sale
deed dated 19-4-1996 and therefore, the limitation
period is required to be considered with respect to
the substantive relief claimed and not the
consequential relief. When a composite suit is filed
for cancellation of the sale deed as well as for
recovery of the possession, the limitation period is
required to be considered with respect to the
substantive relief of cancellation of the sale deed,
which would be three years from the date of the
knowledge of the sale deed sought to be cancelled.
Therefore, the suit, which was filed by the original
plaintiff for cancellation of the sale deed, can be said
to be substantive therefore the same was clearly
barred by limitation. Hence, the learned trial court
ought to have dismissed the suit on the ground that
the suit was barred by limitation. As such the learned
first appellate court was justified and right in settingPage 33 of 35
aside the judgment and decree passed by the
learned trial court and consequently dismissing the
suit. The High Court has committed a grave error in
quashing and setting aside a well-reasoned and a
detailed judgment and order passed by the first
appellate court dismissing the suit and
consequently restoring the judgment and decree
passed by the trial court.”
36. Thus, it appears that two reliefs were prayed for. One for
cancellation of the Sale Deed and the second for recovery of
possession. The Court treated the relief for possession as
consequential prayer and the relief for cancellation of Sale Deed
as the substantive prayer.
37. In such circumstances referred to above, the Court held that if a
composite suit is filed for cancellation of Sale Deed as well as for
recovery of possession, the limitation period should be
considered with respect to the substantive relief of cancellation
of Sale Deed which would be three years from the date of
knowledge of Sale Deed sought to be cancelled.
38. The dictum as laid in Rajpal Singh (supra) cannot be made
applicable to the facts and circumstances of the case on hand.
The reason is simple. Ordinarily when, a suit is filed for
cancellation of Sale Deed and recovery of possession, the same
Page 34 of 35
would suggest that the title of the plaintiff has already been lost.
By seeking to get the Sale Deed set aside on the grounds as may
have been urged in the plaint, the plaintiff could be said to be
trying to regain his title over the suit property and recover the
possession. In such circumstances, the period of limitation
would be three years and not twelve years.
39. In view of the aforesaid discussion, this appeal fails and is
hereby dismissed.
…………………………………….J.
(J. B. Pardiwala)
…………………………………….J.
(R. Mahadevan)
New Delhi.
20th December, 2024.
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