advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Wednesday, May 24, 2017

Order II Rule 2 CPC - Partition suit - Not applicable - Rule 2 Order 2 CPC does not apply if the cause of action in the subsequent suit is different from that of the former suit as held by this Court .- In the instant case it cannot be said that the second suit for partition was in respect of the same cause of action as that on which the previous suit was based. In respect of the cause of action of the previous suit plaintiff was not entitled to more than one relief. Hence, it could not be said that the plaintiff has omitted to sue for relief for which second suit has been filed. Suit for partition with respect to joint property is based on continuing cause of action, as such the suit for partition could not be said to be barred by Order II Rule 2 CPC

                                                                  Reportable



                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION



                        CIVIL APPEAL NO. 3110 OF 2012




BaPusaheb chimasaheb naik-
nimbalkar (dead through lrs.) & anr.    …Appellants

                                   VERSUS

mAhEsh vijaysinha rajebhosale
& ORS.
…Respondents



                               J U D G M E N T




ARUN MISHRA, J.



1.    The appeal has been  preferred  by  the  defendant  aggrieved  by  the
judgment and decree passed by the  trial  court  affirmed  by  the  District
Court and the High Court. The plaintiffs/respondents who are  the  sons  and
daughters of Anandibai, filed a suit for partition of the land comprised  in
Survey No. 43/2, area 319 acres,  36  guntas  situated  at  village  Jawali,
Taluk Phaltan, District Satara. The plaintiffs averred  that  the  land  was
ancestral property initially inherited by Jagdevrao who expired in 1928.  He
had three wives, namely, Bhagirathibai, Gajarabai and Kamalabai.  They  died
in the years 1927,  1950  and  1992  respectively.  Jagdevrao  had  one  son
Shankara Rao alias Bajirao who breathed his last on 6.2.1958.  His  daughter
Shakuntalabai died on 1.10.1962.  Shakuntalabai  died  issueless.  Anandibai
alias Sulochana, sister of Shankara Rao,  succeeded  to  the  property.  She
also died on 20.1.1977. Her property was inherited by the  plaintiffs  being
her sons and daughters. The suit was filed against Chimasaheb who  was  also
son of Jagdevrao. Chimasaheb died on 18.8.1982. Bapu Saheb,  appellant  No.1
and Vijayantadevi, appellant No.2 are his successors.

2.    Plaintiffs averred that the property originally belonged to  Parbatrao
and Jagdevrao. After death of Parbatrao, his son  Bapu  Saheb  succeeded  to
his property.  After  death  of  Jagdevrao,  names  of  his  two  sons  i.e.
Chimasaheb and  Shankara  Rao  were  mutated.  Shankara  Rao  had  only  one
daughter namely Shakuntalabai who died  on  1.10.1962.  She  was  unmarried.
Anandabai @ Sulochana succeeded to her property, being sister of her  father
i.e. daughter of Jagdevrao. Anandibai had filed a civil  suit  in  the  year
1963 for declaration of her share in certain other property.  The  suit  was
decreed and she was declared owner of ½ share. It was held  that   Anandibai
@ Sulochana was the heir of Shakuntalabai. The judgment  had  been  affirmed
by the High Court. The name of Anandibai was required to  be  mutated  after
death of Shakuntalabai. In the year 1976 the plaintiffs came  to  know  that
the name of Anandibai had not  been  mutated  over  the  land  in  question.
Anandibai @ Sulochana filed an appeal in which ex  parte  order  was  passed
against her. However as the defendants were trying to sell the land as  such
suit was filed for partition and separate possession.

3.    Defendants in their written statement contended that in  the  previous
civil suits filed by Anandibai, the property had not been included  as  such
the suit was barred by Order II Rule 2, CPC. It was also contended that  the
name of Shankara Rao was mutated during his life-time and  upon  his  death,
it was recorded in the name of Shakutalabai. The share of Shankara  Rao  was
partitioned and was allotted to the share of Chimasaheb.  Chimasaheb  denied
the plaintiff’s right in the year 1962 and had been  enjoying  the  property
as absolute owner for more than 12 years.  Therefore,  suit  was  barred  by
limitation.

4.    The  trial  court  decreed  the  suit  and  held  the  plaintiffs  and
defendants to be co-owners and in joint possession of the suit land  on  the
date of the suit. The defendants  were  not  in  exclusive  possession.  The
right, title and interest  of  Anandibai  @  Sulochana  was  not  denied  by
Chimasaheb before 16.7.1976. There was no ouster of the plaintiff. The  suit
for partition could not be said to be  barred  by  limitation.  Nor  it  was
barred by provisions of Order II Rule 2, CPC. The appellate court  had  also
affirmed the findings. The second appeal preferred had also  been  dismissed
vide impugned judgment and order, hence the appeal.

5.    It was contended by Mr. J.P. Cama, learned  senior  counsel  appearing
on behalf of the appellants that the suit was clearly barred  by  limitation
as per the provisions contained in Article  65(b)  of  the  Limitation  Act,
1963. It was also urged that the possession was adverse to the  interest  of
the plaintiffs, as they were claiming through Shakuntalabai,  Hindu  female,
who died in the year 1962, suit filed beyond 12 years in the year 1979,  was
clearly barred  by  limitation.  Apart  from  that,  the  property  was  not
included in the earlier suit preferred by  Anandibai  as  such  the  instant
suit filed by the plaintiffs was clearly barred by the provisions  contained
in Order II Rule 2, CPC.

6.    It was urged by Mr. S.B. Deshmukh,  learned  senior  counsel  for  the
respondents that Article 65(b) is not attracted  as  Shakuntalabai  was  the
full owner of the property and concurrent  findings  had  been  recorded  by
three courts  that  the  defendants  were  not  in  adverse  possession  and
plaintiffs were in joint possession on the date of filing of  the  suit.  As
the cause of action for earlier suit for declaration of title filed  in  the
year 1963 was different, the plaintiffs had succeeded to the  property  left
by Anandibai in the year 1977. In the earlier civil suit for declaration  of
title,  it  was  held  that  Anandibai  had  succeeded  to  the   share   of
Shakuntalabai. Subsequent suit for partition could not be said to be  barred
by the provisions contained in Order II Rule 2, CPC. The  earlier  suit  for
declaration of title filed by Anandibai was  with  respect  to  a  different
property.

7.    First we advert to the question of limitation as urged  on  behalf  of
the appellants on the strength of the provisions  contained  in  Article  65
Explanation (b) which is extracted under:

      “Article 65:

|65. For possession of        |Twelve years|When the       |
|immovable property or any    |            |possession of  |
|interest therein based on    |            |the defendant  |
|title.                       |            |becomes adverse|
|Explanation - For the        |            |to the         |
|purposes of this article-    |            |plaintiff.     |
|(a) Where the suit is by a   |            |               |
|remainder man, a reversioner |            |               |
|(other than a landlord) or a |            |               |
|devisee, the possession of   |            |               |
|the defendant shall be deemed|            |               |
|to become adverse only when  |            |               |
|the estate of the            |            |               |
|remainder-man, reversioner or|            |               |
|devisee, as the case may be, |            |               |
|falls into possession;       |            |               |
|(b) Where the suit is by a   |            |               |
|Hindu or Muslim entitled to  |            |               |
|the possession of immovable  |            |               |
|property on the death of a   |            |               |
|Hindu or Muslim female, the  |            |               |
|possession of the defendant  |            |               |
|shall be deemed to become    |            |               |
|adverse only when the female |            |               |
|dies;                        |            |               |
|(c) Where the suit is by a   |            |               |
|purchaser at a sale in       |            |               |
|execution of a decree when   |            |               |
|the judgment-debtor was out  |            |               |
|of possession at the date of |            |               |
|the sale, the purchaser shall|            |               |
|be deemed to be a            |            |               |
|representative of the        |            |               |
|judgement- debtor who was out|            |               |
|of possession.”              |            |               |


8.    It was submitted on behalf of the  appellants  that  Anandibai  became
entitled to possession of the property on the death of Shakuntalabai in  the
year 1962. The name of  Chimasaheb,  original  defendant,  was  mutated  and
possession of  Chimasaheb  became  adverse  w.e.f.  the  date  of  death  of
Shakuntalabai in the year 1962. Thus the suit preferred  by  the  plaintiffs
in the year 1979 beyond a period of  12  years,  was  hopelessly  barred  by
limitation. We are unable to accept the submission  as  Explanation  (b)  to
Article 65 of the Act is applicable only in the case where property  is  not
claimed through the female but independently of  woman  who  has  died.  The
word “entitled” contained in Explanation (b) to Article 65 clearly  means  a
person is entitled independently of the right of  the  Hindu  or  Mohammedan
female.  In  case  she  is  absolute  owner  Article  65(b)  will  have   no
application. In other words, it is necessary to trace the right  to  someone
else and not to the Hindu or Mohammedan female, as the case may be.  In  the
instant case, Shakuntalabai, daughter of Shankara Rao became absolute  owner
of the property on 6.2.1958  and  on  her  death  on  1.10.1962,  the  right
accrued to Anandibai on the basis of  inheritance  made  from  Shakuntalabai
who was the owner of the ½ share in question. When the property  is  claimed
from a woman, Hindu or Mohammedan, who was the full owner, it could  not  be
said that Anandibai or  the  plaintiffs  became  entitled  to  the  property
independently of the rights of female  i.e.  Shakuntalabai.  Thus  the  suit
filed by such heir of female for separate possession/partition would not  be
governed by Explanation (b) to Article 65. In such a case  limitation  would
not commence as per Explanation (b) to Article 65 on death of female  Hindu.
However, the starting point of limitation for computation of 12 years  would
be the date of start of adverse possession otherwise.

9.    In Hashmat Begam & Anr. v. Mazhar Husain & Ors.  (1888)  ILR  10  All.
343, a Division Bench  has  opined  that  the  word  “entitled”  has  to  be
understood  in  Explanation  (b)  to  Article  65   as   meaning   “entitled
independently of the right of the Hindu or Muhammadan female”. Similar  view
has been taken in Ghisa Singh & Anr. v.  Gajraj  Singh  AIR  1916  Oudh  50,
Mohammad Yaqub v. Bijai Lal AIR 1918 Oudh 32, and Zarif un-nisa  &  Ors.  v.
Chaudhri Shafiq-uz-zaman & Ors. AIR  1923  Oudh  185.   Explanation  (b)  to
Article 65 is not applicable to a heir of Hindu or Mohammedan female who  is
full owner of the property as it could not be said that  the  person  became
entitled to the property independently  of  the  right  of  the  female  but
derives right through her. Hence, the suit by such a heir could not be  said
to be governed by Explanation (b) to Article 65 as held in Hashmat  Begam  &
Anr. (supra), Ghisa Singh (supra), Mohammad Yaqub (supra), Zarif  un-nisa  &
Ors. (supra); and Malkarjun Mahadev Belure v. Amrita Tukaram Dambare &  Ors.
AIR 1918 Bom. 142 on consideration of  provisions  of  Article  141  of  the
Limitation Act.

10.   Learned counsel appearing on behalf of the appellant has  relied  upon
the decision of this Court in Jagat Ram v. Varinder  Prakash  (2006)  4  SCC
482. In the said case Smt.  Kirpi  was  given  life  interest  in  the  suit
property as long as she was alive and after her death the  property  was  to
be inherited by her daughter Smt. Manshan. The  trial  court  dismissed  the
suit as barred by  limitation.  The  first  appeal  was  allowed  which  was
challenged before the High Court in the  second  appeal  and  the  same  was
allowed by the  High  Court.  It  was  held  that  Kirpi  had  no  right  of
maintenance. The case was covered by section 14(2) of the  Hindu  Succession
Act and not by section 14(1). The suit filed in the year 1982 was barred  by
limitation as the widow who had life interest, had died on 5.9.1967 and  the
suit for possession was not filed within 12 years of her death.  This  Court
opined that the suit was barred by limitation, relying upon  Article  65(b),
this Court has laid down thus :

      “3. Sunder had  executed,  during  his  life  time,  a  gift  deed  on
23.6.1920 in favour of his daughter Smt Manshan (mother of  the  plaintiff).
He died on 17.9.1941. On 3.8.1945 Smt. Kirpi, widow of  Sunder,  filed  suit
against Smt Manshan which finally resulted in a  compromise  to  the  effect
that Smt Kirpi will enjoy the suit property as long as  she  was  alive  and
after her death the property will be inherited by her daughter  Manshan.  It
appears that on 23.8.1958, Smt Kirpi executed an  adoption  deed  in  favour
her second daughter's son, namely Varinder Prakash – the defendant and  also
executed gift deed in his favour. Smt  Manshan,  mother  of  the  plaintiff,
filed a suit on 27.5.1959 for cancellation  of  the  gift  deed  and  for  a
declaration that the adoption was illegal.  The  suit  was  decreed  by  the
trial court on 16.1.1960. On 5.9.1967, Smt. Kirpi, widow  of  Sunder,  died.
The decree obtained by Smt Manshan  was  ultimately  challenged  in  Letters
Patent Appeal before the High Court by the defendant,  which  was  dismissed
on 18.11.1981.

                                  x x x x x

      6.    In our view, the High Court was right in holding that  the  suit
was  barred  by,  limitation.  Article 65 of  the   Limitation   Act,   1963
prescribes the period of limitation for possession of immovable property  or
any interest based on title where the suit is by a Hindu or Muslim  entitled
to possession of immovable property on  the  death  of  a  Hindu  or  Muslim
female. Article 65(b) in express terms provides that "the possession of  the
defendant shall be deemed to become adverse only when the female dies".  The
limitation  prescribed  is  12  years  beginning  from  the  date  when  the
possession of the  defendant  becomes  adverse  to  the  plaintiff.  Learned
counsel submitted that in view of Article 65 of  the  Limitation  Act,  1963
the suit had to be filed  within  12  years  from  the  date  on  which  the
possession  of  the  defendant  became  adverse  and,  therefore,   it   was
immaterial as to when the Hindu female died. It is not possible  to  sustain
the contention because the article itself provides that  the  possession  of
the defendant shall be deemed to become adverse only when the  female  dies.
Thus, there is no scope for the argument that limitation does not  run  from
the date on which the Hindu female died and  that  it  would  start  running
from some other date. In our view, the High Court has rightly held that  the
suit should have been filed by the plaintiff within 12 years  of  the  death
of the Hindu female, namely Smt Kirpi, and the same having  not  been  filed
within 12 years was barred by limitation. Much was sought to be made of  the
pending litigation relating to  the  adoption  and  gift  deed  executed  in
favour of the defendant. It was contended before us that  since  the  matter
was still pending and though  the  plaintiff's  suit  had  been  decreed  on
16.1.1960, the plaintiff could not have filed the  instant  suit  till  such
time as the Letters Patent. Appeal was not dismissed by the High Court  i.e.
till 18.11.1981. The submission has no substance because in  the  litigation
which was pending before the  High  Court  the  plaintiff  had  not  claimed
possession of the suit land. The High Court has  rightly  pointed  out  that
even if the plaintiff had sought amendment of the pleadings in  the  pending
matter and claimed decree for possession,  the  legal  position  would  have
been different. He having not done so, he should have  filed  the  suit  for
possession of the suit land within 12 years of  the  death  of  Smt.  Kirpi,
which he failed to do.”



      The  decision  is  totally  distinguishable  as  Kirpi  had  life-time
interest and the plaintiffs became entitled to possession on the  demise  of
said widow on 5.9.1967. The suit was filed on 14.12.1982 and it was held  to
be barred by limitation. In the instant case Shakuntalabai  was  not  having
life-interest but she was the full  owner  of  the  property,  thus  Article
65(b) has no application to the instant case.

11.   Another decision of this Court in Ranbir Singh & Ors. v. Kartar  Singh
& Ors. AIR 2003 SC 1858 may also be referred to, in  which  this  Court  had
observed in the backdrop of the fact that the widow had inherited  the  life
estate in the ancestral property of her husband  and  brother.  The  parties
were governed by custom under which  a  widow  having  life  estate  in  the
ancestral property does not have the right of alienation. Way-back  in  1936
the widow made an oral gift of some of the properties to collaterals of  her
deceased husband. On the demise of widow  in  1968,  her  daughter-plaintiff
filed a suit against the collaterals for possession of  the  shares  in  the
properties. It was held that the suit was not governed by the Punjab Act  of
1920 and suit for possession could be filed within 12 years  from  the  date
of cause of action that had arisen to plaintiff on the death of  her  mother
on 2.9.1968, obviously under Article 65(b) but the same  was  again  a  case
where mother  was  having  a  life  interest.  In  the  instant  matter,  as
Shakuntalabai was not having a life interest, Article 65(b) of the  Act  has
no application.

12.   Article 65(b) applies where the female  was  a  ‘limited  owner’  with
regard to the disputed property.  Hence,  if  the  sale  is  not  for  legal
purposes, it would not be binding on the estate,  the  husband’s  heirs  who
would be entitled to inherit the estate after the widow’s  death,  would  be
entitled on such death to sue for the recovery  of  the  property  from  the
purchaser. As their right would be one derived  from  the  husband  and  not
from the widow, it would be independent of the widow and they would  be  the
persons “entitled to sue for possession of the property on the death of  the
widow” within the meaning of Explanation  (b)  to  Article  65.  Hence,  the
above Explanation will apply to their suit and they would be entitled  to  a
period of 12 years from the widow’s death within which to bring the suit  as
held by Full Bench verdicts in Amar Singh & Ors. v.  Sewa  Ram  &  Ors.  AIR
1960 Punjab 530, Harak Singh v. Kailash Singh and Anr.  AIR 1958  Pat.  581;
and Mt. Lukai W/o Katikram and Ors. vs. Niranjan Dayaram and  Ors. AIR  1958
MP 160.

13.    In  the  instant  case  possession  never  became  adverse   to   the
plaintiffs. There is concurrent finding recorded that  the  plaintiffs  were
in joint possession of the disputed land on the date of filing of the  suit.
The defendants have taken the plea of ouster and the  suit  has  been  filed
beyond 12 years of death of Shakuntalabai but they have  not  been  able  to
prove their  adverse  possession.  On  the  contrary  the  finding  is  that
Chimasaheb admitted the title of Anandibai.  The finding is that till  1976,
Chimasaheb never denied the title of  Anandibai.  Be  that  as  it  may.  As
adverse possession has not been concurrently found by the three  courts  and
in this case the starting point of limitation  would  not  be  the  date  of
death of Shakuntalabai in the year 1962 as she was full owner, as such  suit
could not be said to be barred by limitation.

14.   Coming to the second question raised on behalf of  the  appellants  as
to the suit being barred by Order II Rule 2 of the CPC, suffice  it  to  say
that the earlier suit based on different cause of action for  a  declaration
for one-half  of  the  share  in  certain  other  properties  was  filed  by
Anandibai in the year 1963. At that time the property in  question  was  not
included in the suit. It had been found by courts below, the  suit  of  1963
was based on different cause of action on the basis of deed of 1957  whereas
in the instant case, cause of action is different. It is  on  the  basis  of
death of absolute owner Shakuntalabai in the  year  1962,  Anandibai  became
owner and plaintiffs had in turn inherited from Anandibai.  Thus  the  cause
of action of the suit in the present case for  partition  is  different  and
dispute as to mutation had been subsequently decided.  Thus,  the  suit  for
partition as filed, could not be said to be barred by Order II Rule  2  CPC.
The defendants were trying to sell the property in the  year  1979  as  such
the plaintiffs in the suit prayed for  partition  and  separate  possession.
Plaintiffs could not have claimed interest in the land in the  life-time  of
Anandibai and the cause of action in the previous suit  for  declaration  of
title filed by Anandibai was materially different.

15.   Rule 2 Order 2 CPC does not apply  if  the  cause  of  action  in  the
subsequent suit is different from that of the former suit as  held  by  this
Court in State of M.P. v. State of Maharashtra (1977) 2 SCC  288.  In  State
of Maharashtra v. National Construction Co.  (1996)  1  SCC  735,  when  the
first suit was filed to enforce bank guarantee whereas second suit to  claim
damages for breach of underlying contract, this Court  laid  down  that  the
subsequent suit was not barred by Order  2  Rule  2  CPC.  In  the  case  of
continuing or recurring wrong there would  be  corresponding  continuing  or
recurring causes of action when the first suit was based on infringement  of
plaintiff’s  trade  mark,  second  suit  was  on  the  continuing   act   or
infringement of its trade mark and continuous passing of  action  subsequent
to filing  of  the  earlier  suit,  in  Bengal  Waterproof  Ltd.  v.  Bombay
Waterproof Mfg. Co. (1997) 1 SCC 99, it was held that the cause  of  actions
in two suits were different as such the bar of Order II Rule 2 CPC  was  not
attracted. The essential requirement for applicability of Order  II  Rule  2
CPC is to establish the identity of causes of action in  the  previous  suit
and the subsequent suit so as to attract the bar as  held  in  Deva  Ram  v.
Ishwar Chand (1995) 6 SCC 733 and Gurbux Singh  v.  Bhooralal  AIR  1964  SC
1810.

16.   In the instant case it  cannot  be  said  that  the  second  suit  for
partition was in respect of the same cause of action as that  on  which  the
previous suit was based. In respect of the cause of action of  the  previous
suit plaintiff was not entitled to more than one  relief.  Hence,  it  could
not be said that the plaintiff has omitted  to  sue  for  relief  for  which
second suit has been  filed.  Suit  for  partition  with  respect  to  joint
property is based on continuing cause  of  action,  as  such  the  suit  for
partition could not be said to be barred by Order II Rule 2 CPC.  Submission
to the contrary is too tenuous to be accepted.

17.   Resultantly, the appeal being devoid  of  merits,  deserves  dismissal
and the same is hereby  dismissed.  Costs  of  Rs.25,000/-  to  be  paid  by
appellants to the Supreme Court  Bar  Association  Welfare  Trust  within  a
period of two months from today.



                                                                ……………………….J.
                                                               (Arun Mishra)




                                              ............................J.
                                                           (S. Abdul Nazeer)
NEW DELHI;
APRIL 25, 2017.







No comments:

Post a Comment

Note: Only a member of this blog may post a comment.