Limitation Act, 1963-Section 65 Explanation (a)-Claim of ownership of suit land by appellants after partition-Respondents claiming ownership by adverse possession and on ground of limitation-Courts below holding in favour of the respondent-Correctness of-Held, the co-sharer is not conferred a new title on partition but has an antecedent title-Hence, the limitation starts from the date the possession became adverse and not from the date of commencement of the right of ownership. Appellants-plaintiffs filed a suit before trial court for declaration of title over suit land, recovery of possession thereof and for permanent injunction from interference with their possession, against respondents- defendants. The appellants contended before the trial court that the suit land was an ancestral property belonging to the father-in-law of appellant no.1 and after his death, the property vested with the husband of appellant no.l being his son; that during the lifetime of the husband of appellant no.l, the respondents sought permission to make construction on the suit- land which was rejected by her husband; and that after the death of the husband, the respondents started constructing a compound wall without her permission. The respondents contended that they were in possession 9f the suit land for more than twelve years and that they were owners by adverse possession; and that the suit was barred by limitation. The trial court dismissed the suit on the ground that the appellants have failed to prove their title over the suit land. The first appellate court allowed the appeal of the appellants holding that they had identified the suit land and proved their title to the suit land. High Court, keeping the second appeal pending, remanded the matter to the first appellate court to decide the issue of limitation and adverse possession. On remand of the above issues, the first appellate court Held that on facts and evidence the respondents acquired title of suit land by way of adverse possession and that the suit was barred by law of limitation. The High Court confirmed the findings of the first appellate court and allowed the second appeal of the respondents. In appeal to the Court, the appellants contended that they became owners of the suit land as reversioners under registered deed of partition only in 1965 and consequently the suit filed in 1968 by the appellants was not barred by limitation; that the adverse possession in respect of suit land did not begin to run against the appellants prior to 1965; and that the respondents failed to prove three circumstances viz. hostile intention, long and uninterrupted possession and exercise of the right of exclusive ownership openly and to the knowledge of the owner, to establish ouster in claiming adverse possession. Citation: 2004 AIR 1893,2004(2 )SCR918 ,2004(3 )SCC376 ,2004(3 )SCALE172 ,2004(2 )Suppl.JT511 -Dismissing the appeal, the Court HELD: 1.1. Under the common law, there are two types of estates namely, estates in possession and estates in expectancy. Estates in remainder/reversion are estates in expectancy as opposed to estates in possession. Consequently, adverse possession against a life-tenant will not bar the reversioner/remainder from succeeding to the estate on the demise of the life-tenant. This is the reason for enacting explanation (a) to Article 65 of the said Act, which has no application to the facts of the case. [922-G-H] Ram Kisto Mandal and ANOTHER. v. Dhankisto Mandal, [1969] 1 SCR 342, distinguished. 1.2. Partition is really a process by which a joint enjoyment of the property is transformed into an enjoyment severally. In the case of partition, each co-sharer has an antecedent title and, therefore, there is no conferment of a new title. In the circumstances, the appellants cannot be heard to say that they became the owners of the property only when the partition deed was executed on 29.11.1965. Lastly, the appellants had asserted not only their own possession but also the possession of the husband of appellant no.l prior to his death. The starting point of limitation for adverse possession cannot be taken as 29.11.1965 and one has to take the date when the respondents' possession became adverse. [923-A-D] Hanamgowda v. Irgowda, AIR (1925) Bom 9, approved. Transfer of Property Act by Mula 9th Edition, referred to. 1.3. The defendants have to prove three elements viz. hostile intention, long and uninterrupted possession and exercise of the right of exclusive ownership openly and to the knowledge of the owner, to establish ouster in cases involving claim of adverse possession. However, in the present case there is a concurrent finding of fact recorded by the courts below to the effect that the respondents are in possession of the suit land from 1935 or in any event from 1941; that they have paid revenue cess from 1940; that they have paid property taxes; that their names were recorded in the revenue records and they were granted permission by the panchayat to construct compound wall. Moreover, in her deposition before the trial Court, appellant no.l had deposed that her husband had died six years prior to the institution of suit; that the suit land was in possession of her father-in-law and after his death it came in possession of her husband; that during the life time of her husband, the defendants had told her husband to allow them to construct a building on the land which he refused and that the respondents constructed the compound wall without their permission. In view of the above concurrent findings of fact recorded by the courts below on the issue of adverse possession, there is no reason to interfere in the matter. [923-E-H; 924-A] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6432 of 1998.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4
CASE NO.:
Appeal (civil) 6432 of 1998
PETITIONER:
Vasantiben P. Nayak & Ors.
RESPONDENT:
Somnath M. Nayak & Ors.
DATE OF JUDGMENT: 09/03/2004
BENCH:
ASHOK BHAN & S.H. KAPADIA
JUDGMENT:
J U D G M E N T
KAPADIA, J.
 Appellants (Plaintiffs) filed a suit bearing no.116 of
1968 in the court of Civil Judge, Narol for a declaration
that they were owners of ancestral house site land
bearing G.P. No.497 in Sarkhej, district Ahmedabad and
for recovery of possession thereof from the respondents
(defendants) and also for permanent injunction restraining
respondents from interfering with their possession over
the disputed land. According to the appellants, the suit
land was ancestral property belonging to father-in-law of
Vasantiben (appellant no.1) and after his death the
property came in possession of her husband. According
to the appellants, in the lifetime of the husband of
appellant no.1, the respondents used to tell the husband
of appellant no.1 to allow them to make construction on
the land. According to appellant no.1, her husband did
not permit the respondents to make construction till his
death, i.e. six years prior to the institution of the suit. That
even before his demise, the respondents used to tell
appellant no.1 to donate the land to the community which
she refused and soon thereafter the respondents started
constructing a compound wall without her permission. In
the circumstances, she filed a suit on 25th March, 1968 to
prevent the respondents from disturbing her possession.
 The respondents inter alia denied in the suit that the
husband of appellant no.1 was in possession of the suit
land till he died or that after his demise, the appellants
were in possession of the suit land. In the suit, they
contended that they were in possession of the suit land
for more than twelve years and that they were owners by
adverse possession. They also contended that the suit
was barred by limitation. In the suit, there was a dispute
regarding the identity of the land. In the suit, there was a
dispute regarding title of the appellants over the suit land.
By the judgment and order dated 10th November, 1975,
the trial court dismissed the suit on the ground that the
appellants have failed to prove their title over the suit
land. Being aggrieved, the appellants went by way of civil
appeal no.133 of 1976 to the District Court, Ahmedabad
which came to the conclusion that the appellants had
identified the suit land. Further, the District Court came to http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4
the conclusion that the appellants had proved their title to
the suit land. Consequently, the appeal was allowed vide
judgment and order dated 27th March, 1978.
Being aggrieved, the respondents herein went by
way of second appeal under section 100 CPC to the High
Court being appeal no.360 of 1978. By judgment and
order dated 22nd January, 1997, the High Court came to
the conclusion that the lower appellate court could not
have passed the decree for possession in favour of the
appellants without deciding the issue of limitation and
adverse possession. Consequently, keeping the Second
Appeal pending before it, the High Court called for the
findings on the above two issues from the District Court,
Ahmedabad. On remand of the above issues, the District
Court found that the respondents were in possession
since 1934 as indicated by the books of accounts and
revenue receipts for payments made to its revenue
assessment. The District Court further found that the
respondents have been paying land revenue from 1940.
The District Court further found that the gram panchayat
had even permitted the respondents to construct the
compound wall vide a resolution (Ex.132). In the
circumstances, the District Court came to the conclusion
that the respondent had acquired title by way of adverse
possession. On the point of limitation, the District Court
found that the respondents were in possession from 1935
or in any event from 1941 whereas the suit has been filed
only on 25th March, 1968 for possession and
consequently the suit was barred by law of limitation.
Therefore, both the issues were decided in favour of the
respondents herein by the District Court vide judgment
dated 30th April, 1997. The High Court which was seized
of the second appeal no.360 of 1978 after hearing the
parties confirmed the findings of the District Court on
above two issues and accordingly disposed of the second
appeal vide impugned judgment dated 28th April, 1998.
Hence, the original plaintiffs have come by way of civil
appeal to this Court.
 Shri Ramesh Singh, learned counsel appearing on
behalf of the appellants submitted that the appellants
became owners of the suit land as reversioners under
registered deed of partition dated 29th November, 1965
and consequently the suit filed by the appellants was
neither barred by limitation nor by adverse possession.
He contended that the High Court had erred in holding
that adverse possession in respect of suit land begin to
run against the appellants prior to 29th November, 1965.
In this connection, he has placed reliance on explanation
(a) to Article 65 of the Limitation Act (hereinafter referred
to as "the said Act"). In support of his above argument,
learned counsel for the appellants has also placed
reliance on the judgment of this Court in the case of
Ram Kisto Mandal & Anr. v. Dhankisto Mandal
reported in [(1969) 1 SCR 342].
We do not find merit in the above argument
advanced on behalf of the appellants. In the case of Ram
Kisto Mandal & Anr. v. Dhankisto Mandal (supra), it
has been held by this Court that the right of the
reversioner to recover possession of the property within
twelve years from the death of the widow is not only
based on provisions of the limitation act but on the
principles of Hindu Law and the general principles that the http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4
right of a reversioner is in the nature of spes successionis
(estate in expectancy) and such reversioner does not
trace his title through the widow. Under the common law,
there are two types of estates namely, estates in
possession and estates in expectancy. Estates in
remainder/reversion are estates in expectancy as
opposed to estates in possession. Consequently,
adverse possession against a life-tenant will not bar the
reversioner/remainder from succeeding to the estate on
the demise of the life-tenant. This is the reason for
enacting explanation (a) to Article 65 of the said Act,
which has no application to the facts of this case.
 At this stage, it is important to bear in mind that
partition is really a process by which a joint enjoyment of
the property is transformed into an enjoyment severally.
In the case of partition, each co-sharer has an antecedent
title and, therefore, there is no conferment of a new title.
(See Transfer of Property Act by Mulla 9th Edition Page
77). In the circumstances, the appellants cannot be
heard to say that they became the owners of the property
only when the partition deed was executed on 29th
November, 1965. Lastly, the facts above-mentioned
show that the appellants had asserted not only their own
possession, they had also asserted the possession of
Prahladji (husband of appellant no.1 and father of
remaining appellants) prior to his death. In the case of
Hanamgowda v. Irgowda reported in [AIR 1925 Bom. 9],
it has been held that in cases of adverse possession, the
starting point of limitation does not commence from the
date when the right of ownership arises to the plaintiff but
it commences from the date when the defendants’
possession became adverse. Therefore, in the present
case, the starting point of limitation for adverse
possession cannot be taken as 29th November, 1965 and
one has to take the date when the respondents’
possession became adverse. For all the above reasons,
there is no merit in the above arguments advanced on
behalf of the appellants.
Shri Ramesh Singh, learned counsel appearing on
behalf of the appellants next contended that in the
present case the respondents have failed to prove the
ouster along with other three circumstances, namely,
hostile intention; long and uninterrupted possession; and
exercise of the right of exclusive ownership openly and to
the knowledge of the owner. We do not find any merit in
this argument. It is correct to say that the defendants
have to prove three elements mentioned above to
establish ouster in cases involving claim of adverse
possession. However, in the present case, there is a
concurrent finding of fact recorded by the courts below to
the effect that the respondents are in possession of the
suit land from 1935 or in any event from 1941; that they
have paid revenue cess from 1940; that they have paid
property taxes; that their names were recorded in the
revenue records and they were granted permission by the
panchayat to construct compound wall. Moreover, in her
deposition before the trial Court, appellant no.1 had
deposed that her husband had died six years prior to the
institution of suit; that the suit land was in possession of
her father-in-law and after his death it came in possession
of Prahlad (husband); that during the life time of Prahlad,
the defendants had told Prahlad to allow them to
construct a building on the land which he refused and that http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4
the respondents constructed the compound wall without
their permission. In view of the above concurrent findings
of fact recorded by the courts below on the issue of
adverse possession, we do not see any reason to
interfere in the matter.
 For the aforestated reasons, civil appeal stands
dismissed, with no order as to costs.
25941

BEST JUDGEMENT - NO COURT PASS ORDER FOR FAVOURINGS- SEC.5 LIMITATION ACT

                                                              REPORTABL

                                                                     E


                IN THE SUPREME COURT OF INDIA

                 CIVIL APPELLATE JURISDICTION




             CIVIL APPEAL NO. 2909-2913 OF 2005





Lanka Venkateswarlu (D) by LRs.                          .. Appellants


VERSUS


State of A.P. & Ors                                                ..Respondents





                             J U D G M E N T





SURINDER SINGH NIJJAR, J.




1.    These appeals are directed against the order passed



by   a   Division   Bench   of   the   High   Court   of   Judicature   of



Andhra   Pradesh   at   Hyderabad   in   CMP   Nos.   21114,



21115,   21116,   21117   and   21118   of   2003   dated   19th



August,   2003.     By   the   aforesaid   order,   the   High   Court



has allowed all the petitions/applications.


2.    In   the   applications/petitions,   respondent   No.3,



herein, had sought the following directions:-



      "
        CMP
                 No.   21114/2003:                 Petition   under

      Order   22   Rule   4   of   the   CPC   praying     that   in

      the circumstances stated in the affidavit titled

      therewith,   the   High   Court   will   be   pleased   to

      permit the petitioners to bring the above stated

      persons   as   legal   representatives   of   the

      deceased          sole         respondent         in              Appeal

      No. 8 of 1985 on the file of the High Court.


      CMP   No.   21115/2003:  Petition   U/s   praying

      that   the   High   Court   may   be   pleased   to   set

      aside   the   dismissal   Order   dated   6.2.98   in   AS

      No.8 of 1985 and to restore the appeal to file.


      CMP No. 21116/2003: Petition Under Order 9

      Rule 9 read with section 151 CPC, praying that

      the High Court may be pleased to set aside the

      abatement   caused   due   to   the   death   of   sole

      respondent i.e. Lanka Venkateswarlu.


      CMP No. 21117/2003:

      Between

      Sri D.E.V Apparao               ...Petitioner/impleaded

      Petitioner   in   AS   No.8   of   1985   on   the   file   of

      High Court



                   And:



      1.     The   State   of   A.P.   rep.   by   District

             Collector, Visakhapatnam.



      2.     The Tahsildar, Visakhpatnam

                                       ...Respondent/Appellants



      3.     Lanka                   Venkateswarlu                       (died)

                                                        ...Respondent


                                                                                   2


      Petition under Order 1 Rule 10 CPC, prays this

      Hon'ble   Court   may   be   pleased   to   permit   the

      petitioners   society   to   be   impleaded   as

      appellant No.3 along with the appellants No. 1

      and   2   in   AS.   8   of   1985   on   the   file   of   the

      Hon'ble Court to prosecute the appeal.


      CMP   No.   21118/2003:    Petition   U/s   5   of

      Limitation Act praying the High Court may be

      pleased   to   condone   the   delay   of   883   days   in

      filing   the   petition   seeking   to   set   aside   the

      dismissal order dated 6.2.1998.



      These   petitions   coming   on   for   hearing,   upon

      perusing   the   petition   and   the   affidavit   filed   in

      support   thereof   and   upon   hearing   the

      arguments   of   Govt.   pleader   for   Appeal   for

      Petitioners in CMP Nos. 21114, 21115, 21116,

      21118   of   2003   and   of   Mr.   K.   Sarva   Bhouma

      Rao,   Advocate   for   petitioner   in   CMP

      No.   21117   of   2003   and   of   Mr.   M.S.R.

      Subramanyam,   Advocate   for   the   respondents

      in   CMP   Nos.   21114,   21115,   21116,   21118   of

      2003   and   G.P.   for   Appeal   for   the   respondents

      in CMP No. 21117 of 2003."




3.    We   may   now   briefly   notice   the   relevant   facts   as



stated  in the  pleadings   of  the  parties   and the  impugned



order   of   the   High   Court.   The   predecessor   of   the



appellants,   i.e.,   Shri   Lanka   Venkateswarlu,   (hereinafter



referred to as   `original plaintiff'), brought a suit O.S. No.



72 of 1979 before the  subordinate judge Visakhapatnam




                                                                          3


for   the   declaration   of   his   title   as   the   absolute   owner   of



the suit schedule property and for permanent injunction



restraining   respondents   Nos.   1   and   2   from   interfering



with his peaceful possession. The suit schedule property,



to   the   extent   of   2   acres   was,   according   to   the   original



plaintiff, covered by survey No. 73/12 in Thokada village.



He   had   purchased   the   suit   schedule   property   by   a



registered   sale   deed   dated   15th  July,   1961   from   one



Gonna Appanna son of Venkataswamy of China Gantyda



village.   The   original   plaintiff   was   constrained   to   file   the



aforesaid suit on coming to know that respondent Nos. 1



and 2 were claiming the suit schedule land to be "banjar



land"   which   vested   in   the   Government.     He   had   also



learned   that   the   land   was   in   imminent   danger   of   being



illegally alienated by the respondent Nos. 1 and 2.   They



were claiming that the land was required to issue Pattas



to weaker sections of society.





4.     Respondent   Nos.   1   and   2   were   impleaded   as   the



defendants   to   the   suit.     Subsequently,   the   suit   was




                                                                          4


transferred to the Court of IVth Additional District Judge,



Visakhapatnam and renumbered as O.S. No. 83 of 1981.





5.    The   aforesaid   averments   of   the   original   plaintiffs



were controverted by the respondent Nos. 1 and 2.  It was



claimed   that   the   plaint   schedule   property   was   not



covered by old survey No. 73/12 of the original village of



Thokada.  The boundaries as well as survey number were



stated   to   be   fictitious,   forged   and   imaginary.     Even   the



ownership   of   the   ancestors   of   the   vendor   of   the   original



plaintiff   of   the   suit   schedule   land   was   denied.   Further,



the   alleged  sale   deed   dated   15th  July,   1961   between   the



original plaintiff and the vendor was denied.   It was also



stated   that   the   original   plaintiff   was   not   in   possession



and enjoyment of the plaint schedule property.



 



6.    On   the   pleadings   of   the   parties,   the   trial   court



framed six issues. Issue No. 1 pertains to the title of the



original plaintiff to the schedule property.  Issues No.2 &



3 were  with  regard  to,  whether  the  original  plaintiff   was




                                                                       5


entitled   to  relief   of  declaration   and   injunction   as  prayed



for.  Issue No.4 was whether the suit is not maintainable.



A   perusal   of   the   judgment   of   the   trial   court   shows   that



the   suit   was   hotly   contested   on   each   and   every   issue.



Issues   1,   2,   3,   4   and   6   were   decided   in   favour   of   the



original   plaintiff   and   against   the   defendants,   i.e.,



respondent   Nos.   1   and   2.   Issue   No.5   with   regard   to



valuation of the suit was not pressed by the government



pleader.   The   suit   was   decreed   by   judgment   dated



24th September, 1982.





7.     The respondents challenged the aforesaid judgment



and   decree   by   filing   an   appeal   before   the   High   Court   of



Andhra   Pradesh   being   A.S.   No.   8   of   1985.     The   sole



respondent,   i.e.,   original   plaintiff   died   on   25th  February,



1990.        Therefore,   the   Advocate   appearing   for   the



deceased   original   plaintiff   being   the   `sole   respondent'   in



the   appeal   filed   a   memo   before   the   High   Court   giving



intimation   about   the   death   of  his  client.   The   memo  was



filed   after   giving   notice   to   the   advocate   for   respondent




                                                                          6


Nos.   1   and   2,   who   were   appellants   in   the   aforesaid



appeals.   In   spite   of   such   intimation,   respondent   Nos.   1



and   2   failed   to   bring   the   legal   representatives   of   the



deceased original plaintiff on record.





8.    From the judgment of the High Court it is apparent



that the appeal came up for hearing on 24th  April, 1997.



At   that   stage,   the   counsel   for   the   appellants   again



brought   to   the   notice   of   the   Court   that   his   client   has



passed   away   on   25th  February,   1990.     The   High   Court



directed the government pleader to take steps to bring on



the   record   the   legal   representatives   of   the   original



plaintiff and posted the matter for hearing on 16th  June,



1997.     It   appears   that   no   actions   were   taken   by   the



respondents to comply with the order passed by the High



Court   on   24th  April,   1997.     Therefore,   on   6th  February,



1998,   Justice   V.   Rajagopala   Reddy,   J.   passed   the



following order:-



      "Appeal   under   Section   96   CPC   against   the

      order   of   the   Court   of   the   IV   Addl.   District

      Judge,   Visakhapatnam   dt.24.09.1982   in   O.S.

      No. 83/81.


                                                                       7


        

      This   appeal   coming   on   for   orders   under

      Rule 64 of the Appellate Side Rules of the High

      Court on the failure of the Appellant herein.



      1. To take steps to bring on record the LRs. of

              the deceased sole respondent.



      In   the   presence   of   G./P.   for   Excise   for   the

      Appellant   and   of   Mr.   M.S.R.   Subramanyam,

      Advocate for the respondent No.1.



      It is ordered as follows:



      1.      That the Appellant do within one week from

              the   date   of   this   order   comply   with   the

              requisitions   of   the   Office   referred   to   above

              and;



      2.      That in default of compliance with the said

              requisitions   within   the   time   prescribed   in

              clause   1   supra,   the   Appeal   shall   stand

              dismissed   as   against   the   sole   respondent

              herein."




9.    The   aforesaid   order   was   admittedly   not   complied



with.   Consequently, the appeal stood abated in terms of



the   order   dated   6th  February,   1998.   It   appears   that



thereafter   CMPSR   No.   49656   of   2000   was   moved   by



respondent   Nos.   1   and   2   seeking   condonation   of   883



days delay in filing the petition to set aside the dismissal



order   dated   6th  February,   1998.   The   application   was




                                                                           8


accompanied by an affidavit where it is candidly admitted



by   respondent   No.2   that   the   order   dated   6th  February,



1998   was   not   complied   with.     It   was   further   admitted



that   as   the   order   dated   6th  February,   1998   was   not



complied with, the default order came into force and the



appeal stood dismissed.





10.    In   this   affidavit,   the   explanation   given   is   that   the



predecessors   of   the   officer,   who   affirmed   the   affidavit



dated 11th  July, 2000 came to know about the dismissal



of   the   appeal   during   the   course   of   investigation   in



original   O.S.   No.   6   of   2000   which   had   been  filed  by   the



widow and the children of the deceased original plaintiff,



i.e.,   sole   respondent   in   the   appeal.     It   is   also   admitted



that thereafter, an application was filed for setting aside



the   order   of   abatement   dated   6th  February,   1998,   but,



without   any   application   seeking   condonation   of   delay   of



883   days   in   filing   the   petition.     To   cover   the   foresaid



lapse,   CMP   No.   21118   of   2003   was   filed   seeking



condonation of delay of 883 days in filing the petition.




                                                                         9


11.    Thereafter   CMPSR   No.   58644   of   2000   was   filed   on



17th  August, 2000 with a prayer to condone the delay of



3703   days   to   bring   the   legal   representatives   on   record.



CMPSR   No.   58646   of   2000   was   filed   to   bring   the   legal



representatives   of   the   deceased   original   plaintiff   on



record   and   CMPSR   No.   58645   of   2000   to   set   aside   the



order of dismissal in AS No. 8 of 1985 dated 6th February,



1998   was   filed.     These   applications   were   subsequently



numbered   as   noted   in   the   heading   of   the   impugned



judgment.





12.    It   appears   from   the   impugned   order   of   the   High



Court and CMPSR No. 58644 of 2000 was numbered as



CMP no. 17186 of 2000 on 17th  August, 2000 and listed



before   the   Court   on   27th  September,   2000.     The   High



Court granted two weeks time for filing the counter. The



aforesaid   CMP   was   posted   for   hearing   before   the   bench



on 16th  October, 2000 (Venkatanarayan,J.). At that time,



counsel for the deceased original plaintiff submitted that




                                                                     1


his client had died  in 1990 and he had no instructions.



Therefore,   the   Court   directed   to   issue   notice   to   the



parties   on   the   petition.     Even   at   that   stage   the



government   pleader   did   not   bring   to   the   notice   of   the



Court   that   the   applications   filed   by   respondent   Nos.   1



and 2 to set aside the order of dismissal and to bring the



legal   representatives   on   record   were   pending



consideration.





13.    Thereafter it appears the matter was adjourned on a



number   of   occasions   from   27th  June,   2001   to   9th  April,



2002.     Surprisingly,   on   3rd  June,   2002   the   government



pleader again took time from the Court to verify whether



any separate application was filed for   restoration of the



appeal and whether any such application was pending or



not.   Thereafter   the   matter   was   not   pursued   by   the



government pleader.





14.    In the meantime, the alleged beneficiaries  to whom



Pattas  had  been  granted  by   the  Government   Poramboke




                                                                     1


in   the   year   1979   filed   CMP   No.   21705   of   2000,   seeking



permission   of   the   Court   to   come   on   record   as   the   third



appellant in the appeal.  In the impugned order, it is also



pointed   out   that   the   pendency   of   the   applications   had



come to the notice of the Court intermittently. It appears



that   the   application   to   condone   the   delay   in   filing   the



petition for setting aside the order of dismissal was filed,



when the lapse was pointed by the Court.





15.    Thereafter, it seems that without the adjudication of



any   of   the   applications   on   merits,   the   appeal   was   listed



for   hearing   before   the   Bench,   which   culminated   into



passing the judgment and order dated 19th August, 2003,



subject   matter   of   the   present   appeal.   By   the   aforesaid



judgment, the High Court has allowed all the applications



restored the appeal posted it for hearing on 25th  August,



2003.





16.    This   Court   while   issuing   notice   in   the   SLP



on 15th  December, 2003  directed  that "in  the  meantime,




                                                                       1


proceedings   in   the   appeal   pending   in   the   High   Court



shall   remain   stayed".   Therefore,   it   is   evident   that   the



situation today is as it was when the order was passed on



6th  February,   1998,   i.e.,   appeal   filed   by   the   respondent



Nos. 1 and 2 stood abated and hence dismissed.





17.    We   have   heard   the   learned   counsel   for   parties.



Mr.   P.S.   Narasimha,   senior   advocate,   appearing   for   the



appellant submitted that the impugned order of the High



Court   cannot   be   justified   on   any   legal   ground.     He



submits   that   the   High   Court   having   itself   recorded   the



utter   negligence   of   the   respondents   in   pursuing   the



appeal at every stage, without any justification, condoned



the   delay.   The   learned   senior   counsel   pointed   out   that



there   was   no   explanation,   much   less   any   plausible



explanation to justify the delay of 3703 days in filing the



application   for   bringing   on   record   the   LRs.   of   the   sole



respondent   or   for   the   delay   in   filing   the   application   for



setting   aside   the   order   dated   6th  February,   1998.   It   was



further   submitted   that   there   was   no   justification   to




                                                                        1


      permit the respondent No.3 to be impleaded as a party in



      the   appeal.     Learned   counsel   relied   on   the   judgment   of



      this   Court   in   the   case   of  Balwant   Singh   (dead)  Vs.


      Jagdish
                   Singh1
                                in   support   of   the   submission   that   the


      law   of   limitation   has   to   be   enforced   in   its   proper



      prospective.   Even   though   the   Courts   have   power   to



      condone   the   delay,   it   can   not   be   condoned   without   any



      justification. Such an approach would result in rendering



      the provisions contained in the Limitation Act redundant



      and inoperative.





      18.    On   the   other   hand,   learned   counsel   for   the



      respondents relied on the judgments of this Court in the



      case   of  N.   Balakrishnan  Vs.  M.
                                                             Krishnamurthy2
                                                                                 ,


      Mithailal Dalsangar Singh & Ors.  Vs.  Annabai Devram


      Kini & Ors.3  and Sardar Amarjit Singh Kalra (dead) by


      LRs  Vs.   Pramod
                                Gupta (dead) by LRs.4
                                                                 and submitted





1  (2010)8 SCC 685

2 (1998) 7 SCC 123

3 (2003) 10 SCC 691

4 (2003) 3 SCC 272

                                                                              1


      that   the   High   Court   in   condoning   the   delay   has   merely



      advanced the cause of substantial justice.





      19.    We   have   considered   the   submissions   made   by   the



      learned counsel.  At the outset, it needs to be stated that



      generally speaking, the courts in this country, including



      this   Court,   adopt   a   liberal   approach   in   considering   the



      application   for   condonation   of   delay   on   the   ground   of



      sufficient   cause   under   Section   5   of   the   Limitation   Act.



      This   principle   is   well   settled   and   has   been   set   out



      succinctly   in   the   case   of  Collector,   Land   Acquisition,


      Anantnag & Ors. Vs. Katiji & Ors.5





      20.    In the case of  M. Balakrishnan (supra), this Court



      again reiterated the principle  that rules  of limitation are



      not   meant   to   destroy   the   rights   of   parties.     They   are



      meant   to   see   that   the   parties   do   not   resort   to   dilatory



      tactics, but seek their remedy promptly.





5 (1987) 2 SCC 107

                                                                              1


21.    In the case of  Sardar Amarjit Singh Kalra (supra),



this Court again emphasized that provisions contained in



the   Order   22   CPC   were   devised   to   ensure   continuation



and   culmination   in   an   effective   adjudication   and   not   to



retard further progress of the proceedings. The provisions



contained   in   the   Order   22   are   not   to   be   construed   as   a



rigid   matter   of   principle,   but   must   ever   be   viewed   as   a



flexible   tool   of   convenience   in   the   administration   of



justice.     It   was   further   observed   that   laws   of   procedure



are meant to regulate effectively, assist and aid the object



of   doing   a   substantial   and   real   justice   and   not   to



foreclose   even   adjudication   on   merits   of   substantial



rights of citizen under personal, property and other laws.



In   the   case   of  Mithailal   Dalsangar   Singh   and   Ors.   Vs.


Annabai Devram Kini & Ors, (Supra), this Court again


reiterated that in as much as abatement results in denial



of hearing on the merits of the case, the provision of an



abatement   has   to   be   construed   strictly.   On   the   other



hand,   the   prayer   of   setting   aside   abatement   and   the





                                                                         1


dismissal   consequent   upon   abatement   had   to   be



considered liberally. It was further observed as follows:-



       "The   Courts   have   to   adopt   a   justice   oriented

       approach           dictated                  by         the              uppermost

       consideration   that ordinarily a litigant   ought

       not to be denied an opportunity of having a lis

       determined on  merits unless he has, by gross

       negligence,   deliberate   inaction   or   something

       akin   to   misconduct,   disentitled   himself   from

       seeking the indulgence of the court."




22.    The         concepts         of               liberal                    approach         and



reasonableness in exercise of the discretion by the Courts



in condoning delay, have been again stated by this Court



in the case of  Balwant Singh (supra), as follows:-



       "25.   We   may   state   that   even   if   the   term

       "sufficient   cause"   has   to   receive   liberal

       construction,   it   must   squarely   fall   within   the

       concept of reasonable time and proper conduct

       of   the   party   concerned.     The   purpose   of

       introducing liberal construction normally is to

       introduce the concept of "reasonableness" as it

       is understood in its general connotation."



       "26.  The law of limitation is a substantive law

       and   has   definite   consequences   on   the   right

       and   obligation   of   party   to   arise.     These

       principles   should   be   adhered   to   and   applied

       appropriately   depending   on   the   facts   and

       circumstances   of   a   given   case.     Once   a

       valuable   right   has   accrued   in   favour   of   one

       party   as   a   result   of   the   failure   of   the   other

       party to explain the delay by showing sufficient


                                                                                                  1


       cause   and   its   own   conduct,   it   will   be

       unreasonable   to   take   away   that   right   on   the

       mere   asking   of   the   applicant,   particularly

       when   the   delay   is   directly   a   result   of

       negligence,   default   or   inaction   of   that   party.

       Justice   must   be   done   to   both   parties   equally.

       Then alone the ends of justice can be achieved.

       If   a   party   has   been   thoroughly   negligent   in

       implementing its rights and remedies, it will be

       equally   unfair   to   deprive   the   other   party   of   a

       valuable right that has accrued to it in law as

       a result of his acting vigilantly."




23.    Let   us   now   examine   as   to   whether   the   High   Court



was justified in condoning the delay in the peculiar facts



of   the   presence   case.     The   High   Court   in   its   judgment



records the following conclusions:-



       "(1)   The   Government   Pleader   having   filed   the

       appeal   on   18.2.1983   has   taken   three   long

       years to get the appeal numbered.



       (2)   The   sole   respondent   died   in   1990.   The

       learned   counsel   for   the   respondent   submits

       that   he   served   a   letter   on   the   learned

       Government   Pleader   bringing   to   his   notice

       about   the   death   of   his   client   in   1990   itself.

       Since the letter is not traced we are not giving

       much importance to that fact.  But at the same

       time this fact was brought to the notice of the

       Government   Pleader   on   24.2.1997   when   the

       appeal was listed for hearing.



       (3) Even though the Court gave sufficient time

       the   Government   Pleader   has   not   taken   any

       steps to bring LRs. on record.


                                                                          1


      (4)   After   one   year   the   Court   passed   a

      Conditional Order on 6.2.1998 and the appeal

      was   dismissed   for   not   bringing   the   LRs.   on

      record.



      (5)      After   two   more   years   the   concerned

      officials   of   the   Government   and   the

      Government   Pleader   in   office   at   the   relevant

      point   of   time,   filed   some   applications,   which

      are not in order.



      (6)      Even   then   they   have   not   bestowed   any

      attention   either   to   comply   with   the   defects   in

      filing   the   application   or   in   getting   the   orders

      are   passed   on   these   applications.     But   at   the

      same   time   they   went   on   taking   time   without

      knowing   for   what   purpose   they   were   taking

      time.



      In the result an appeal which would have been

      disposed of in 1997 remained pending all these

      years mainly due to the negligence on the part

      of the Government Pleader in office.



Thereafter   at   the   two   stages,   the   High   Court   records



that:-



      "In   the   normal   course   we   would   have   thrown

      out   these   applications   without   having   second

      thought in the matter.............."



      "We have already observed that in the normal

      course   we   would   have   dismissed   the

      applications   for   severe   latches   on   the   part   of

      the appellants and their counsel."





                                                                        1


24.    Having recorded the aforesaid conclusions, the High



Court   proceeded   to   condone   the   delay.     In   our   opinion,



such a course was not open to the High Court, given the



pathetic   explanation   offered   by   the   respondents   in   the



application seeking condonation of delay.





25.    This is especially so in view of the remarks made by



the   High   Court   about   the   delay   being   caused   by   the



inefficiency   and   ineptitude   of   the   government   pleaders.



The   displeasure   of   the   Court   is   patently   apparent   from



the   impugned   order   itself.     In   the   opening   paragraph   of



the   impugned   order   the   High   Court   has,   rather



sarcastically, dubbed the government pleaders as without



merit   and   ability.     Such   an   insinuation   is   clearly



discernable  from   the   observation   that   "This   is   a   classic



case, how the learned government pleaders appointed on



the   basis   of   merit   and   ability  (emphasis   supplied)  are



discharging their function protecting the interest of their



clients".     Having   said   so,   the   High   Court,   graphically



narrated   the   clear   dereliction   of   duty   by   the   concerned




                                                                     2


government   pleaders   in   not   pursuing   the   appeal   before



the High Court diligently.  The High Court has set out the



different   stages   at   which   the   government   pleaders   had



exhibited   almost   culpable   negligence   in   performance   of



their duties.  The High Court found the justification given



by the government pleaders to be unacceptable.  Twice in



the   impugned   order,   it  was   recorded   that  in   the   normal



course,   the   applications   would   have   been   thrown   out



without having a second thought in the matter.    Having



recorded   such   conclusions,   inexplicably,   the   High   Court



proceeds to condone the unconscionable delay.





26.    We   are   at   a   loss   to   fathom   any   logic   or   rationale,



which could have impelled the High Court to condone the



delay   after   holding   the   same   to   be   unjustifiable.     The



concepts   such   as   "liberal   approach",   "justice   oriented



approach",   "substantial   justice"   can   not   be   employed   to



jettison   the   substantial   law   of   limitation.   Especially,   in



cases   where   the   Court   concludes   that   there   is   no



justification for the delay.   In our opinion, the approach




                                                                          2


adopted by the High Court tends to show the absence of



judicial balance and restraint, which a Judge is required



to   maintain   whilst   adjudicating   any   lis   between   the



parties.  We are rather pained to notice that in this case,



not   being   satisfied   with   the   use   of   mere   intemperate



language,   the   High   Court   resorted   to   blatant   sarcasms.



The   use   of   unduly   strong   intemperate   or   extravagant



language in a judgment has been repeatedly disapproved



by  this  Court   in  a  number  of  cases.    Whilst  considering



applications for condonation of  delay under  Section  5 of



the Limitation Act, the Courts do not enjoy unlimited and



unbridled discretionary powers.  All discretionary powers,



especially   judicial   powers,   have   to   be   exercised   within



reasonable   bounds,   known   to   the   law.     The   discretion



has to be exercised in a systematic manner informed by



reason.     Whims   or   fancies;   prejudices   or   predilections



can   not   and   should   not   form   the   basis   of   exercising



discretionary powers.





                                                                   2


27.    The   order   of   the   High   Court,   in   our   opinion,   is



based   purely   on   the   personal   perceptions   and



predilections   of   the   Judges   on   the   bench.     The   latent



anger and hostility ingrained in the expressions employed



in   the   judgment   have   denuded   the   judgment   of



impartiality.     In   its   desire   to   castigate   the   government



pleaders   and   the   Court   staff,   the   High   Court   has



sacrificed the "justice oriented approach", the bedrock of



which is fairness and impartiality.  Judges at all levels in



this   country   subscribe   to   an   oath   when   entering   upon



office of Judgeship, to do justice without fear or favour, ill



will or malice.  This commitment in form of a solemn oath



is   to   ensure   that   Judges   base   their   opinions   on



objectivity   and   impartiality.     The   first   casualty   of



prejudice   is   objectivity   and   impartiality.     It   is   also   well



known   that  anger   deprives   a  human   being  of   his  ability



to reason.  Judges being human are not immune to such



disability.    It is of  utmost importance that  in expressing



their opinions, Judges and Magistrates be guided only by



the considerations of doing justice.   We may notice here




                                                                         2


       the   observations   made   by   a   Constitution   Bench   of   this



       Court   in   the   case   of  State   of   U.P.  Vs.  Mohammad


       Naim
               6
                 ,   which   are   of   some   relevance   in   the   present


       context.     In   Paragraph   11   of   the   judgment,   it   was



       observed as follows:-



              "If there is one principle of cardinal importance

              in   the   administration   of   justice,   it   is   this:   the

              proper   freedom   and   independence   of   Judges

              and Magistrates must be maintained and they

              must   be   allowed   to   perform   their   functions

              freely   and   fearlessly   and   without   undue

              interference   by   any   body,   even   by   this   Court.

              At the same time it is equally necessary that in

              expressing   their   opinions   Judges   and

              Magistrates   must  be  guided by  considerations

              of   justice,   fair-play   and   restraint.   It   is   not

              infrequent that sweeping generalisations defeat

              the   very   purpose   for   which   they   are   made.   It

              has   been   judicially   recognised   that   in   the

              matter of making disparaging remarks against

              persons   or   authorities   whose   conduct   comes

              into consideration before courts of law in cases

              to   be   decided   by   them,   it   is   relevant   to

              consider   (a)   whether   the   party   whose   conduct

              is   in   question   is   before   the   court   or   has   an

              opportunity of explaining or defending himself;

              (b) whether there is evidence on record bearing

              on   that   conduct,   justifying   the   remarks;   and

              (c)   whether   it   is   necessary   for   the   decision   of

              the   case,   as   an   integral   part   thereof,   to

              animadvert   on   that   conduct.   It   has   also   been

              recognised that judicial pronouncements must

              be judicial in nature, and should not normally

              depart from sobriety, moderation and reserve."


6  (1964) 2 SCR 363

                                                                                    2


28.    We   are   of   the   considered   opinion   that   the   caustic



remarks made by the High Court, against the government



pleaders and the Court staff clearly exhibits a departure



from the principles quoted above.





29.    We are of the considered opinion that the judgment



of   the   High   Court   is   unsustainable   either   in   law   or   in



equity.     Consequently,   the   appeals   are   allowed.     The



impugned   judgment   of   the   High   Court   is   set   aside   with



no order as to costs.





                                         ...................................J.

                                          [B.Sudershan Reddy]





                                        ...................................J.

                                         [Surinder Singh Nijjar]


New Delhi;

February 24, 2011.                            





                                                                       2