Civil Suit

What is the Period of Limitation for a Suit for Possession of Immovable Property?

deeppatelj February 11, 2019 Civil Civil Suit, Law of Limitation, Suit for Possession of Immovable Property

Article 64: (Arts. 142 & 144 of the Act of 1908):

The period of limitation for a suit for possession of immovable property based on previous possession and not on title, when the plaintiff while in possession of the property has been dispossessed is twelve years and the period of limitation begins to run from the date of dispossession.

In Naran Bahara v. Mohan Majhi, (AIR 1985 Ori. 40), it has been held that under the Limitation Act, 1963, all suits for possession of immovable property have been brought under two categories namely, (i) suits based on the right of previous possession and not on proprietary title and II the suits-based on proprietary title. The first class of suits will attract Article 64 and the suits based on title will be governed by Article 65 and the time under Article 64 runs from the date when the possession of the defendant becomes adverse. The suit under Art. 64 must be brought within 12 years of the date of dispossession.

The burden of proving date of dispossession is on the plaintiff who, in order to succeed, must prove that dispossession was not prior to 12 years of the date of filing of the suit.

In Chapsibhai v. Purushottam, (AIR 1964 Bom. 287), it has been held that under Article 64 the plaintiff need not prove ownership and it is enough if he proves possession within 12 years.

Article 64 is restricted to the suits for possession or dispossession or discontinuous of possession. In order to bring a suit within the purview of the Art. 64, it must be shown that the suit is in form as well as in substance based on the allegation of the plaintiff having been in possession and having subsequently lost the possession either by dispossession or by discontinuance.

In Bhusan Lai v. Suresh, (AIR 1987 All. 25), it has been held that Art. 64 does not apply to any suit which in form or in substance is a suit for possession based on title. It is restricted to suits based only on possession.

In Taja Bibi v. Ghulam Mohammed, (AIR 1961 J&K 82), it has been held that the plaintiff cannot succeed under Art. 64 unless he makes out not only that he has possessory title over the property but also that he was in possession within 12 years next prior to the filing or the institution of the suit. He is bound to prove that he or his predecessor-in-interest was in possession within the period of 12 years next prior to the commencement of the suit and failing this he is out of cause.

In Seshrao v. Jashwant, (AIR 1969 Bom. 429), it has been held that when the lessee is and after his death his heirs are entitled to be in judicial possession even after the expiry of the lease, the heirs of the lessor cannot dispossess them forcibly. In such a case, the heirs of lessee can file a suit for possession within 12 years of such dispossession and to such suit Art. 64 is attracted.

Possession is the visible possibility of exercising physical control over a thing with the intention of doing so, either against all worlds or against all the world except certain persons. Possession may take various forms. In Gunwant Lai v. State, (AIR 1972 SC 1756), it has been held that there are two varieties of possession—

(i) Actual or real possession; and (ii) constructive possession. Therefore, possession need not be physical possession but can be constructive having power and control over the thing.

In V. Satyanarayana v. Manumayamma, (AIR 1967 SC 174), the Supreme Court has held that for the purpose of Art. 64, the possession is either actual possession or possession through a tenant who may have paid either voluntarily or through the decree of the Court to a person claiming possessory title.

In Manhoo Lai v. Malloo, (AIR 1964 All. 213), it has been held that possession may be acquired by force or by anyone who has no title. So, the animus needed for possession is present even when somebody takes forcible possession with the intention to exercise physical power over it.

In Asha Ram v. Ram Chandra, (AIR 1939 All. 161), it has been held that actual user without animus possidendi is no possession under the law. So, mere tethering or grazing cattle or storing logs or manure by one person on the land of another is not possession of such land.

In order to attract Art. 64, the plaintiff filing a suit for recovery of possession on the basis of his previous possession has to prove that while in possession he has been dispossessed. The expression ‘Dispossession’ applies when a person comes in and drives out another from possession. It imports ouster; a driving out of possession against the will of person in actual possession. Dispossession implies some amount of force or fraud. In Lakshminarayan v. Vithaldas, (AIR 1962 MP 31), it has been held that there can be no dispossession unless there is a termination of the previous possession of a person followed by actual possession by another. So, unless a person takes possession of the another there can be no dispossession by that person.

Art. 64 signifies the relief for possession on dispossession and not discontinuous of possession by the plaintiff accompanied by possession of another. The term ‘discontinuance’ implies a voluntary act and abandonment of possession followed by the actual possession of another.

In a case falling under Art. 64, the plaintiff must at the outset show that he had been in possession within 12 years before suit, and cannot rest merely on a proof of title. When a plaintiff sues for possession on the basis of dispossession, the burden lies on him to show that the date of his dispossession or discontinuance of possession was within 12 years of the suit. Basing adverse possession as the root of title of a suit for title may be filed and it will be governed by Art. 64 of the Limitation Act, 1963. In a suit under Art. 64, it is not for the defendant to raise and prove adverse possession in order to show that the suit is time barred and it is the plaintiff who has to prove possession and dispossession within a period of 12 years prior to the suit.

Under the Art. 64, the limitation starts from the date of dispossession of the suit and land the onus is upon the plaintiff to prove that he was dispossessed within a period of 12 years from the date of commencement of the suit for recovery of possession.

If the original owner does not come forward and assent his title by process of law within the period of limitation, his right is extinguished and the person in possession acquires absolute title.

What are the remedies against an ex parte decree?

deeppatelj January 26, 2019 Civil, Legal Awareness Appeal, Civil Suit, ex parte decree

Where the plaintiff appears but the defendant does not appear in the court when the suit is called out for hearing, and if the defendant has been duly served, the court is empowered to hear the suit ex parte, i.e., in the absence of the defendant, and pass a decree against the defendant. Thus, an ex parte decree is a decree passed by the court in the absence of the defendant. See, Order 9 Rule 11 of the Civil Procedure Code (CPC).

Following remedies are available to the defendant against whom an ex parte decree has been passed:

(1) Under the provisions of Order 9 Rule 13 of the CPC, where a decree is passed ex parteagainst a defendant, he may apply to the Court by which the decree was passed for an order to set it aside. In such a situation, if the defendant satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.

(2) The defendant may file an appeal against such ex parte decree under Section 96(2) of the CPC.

(3) Alternatively, if no such appeal is available against such decree, the defendant may file a revision against such ex parte decree under the provisions of Section 115 of the CPC.

(4) Under Order 47 Rule 1 of the CPC, the defendant may apply for review, subject to the conditions mentioned therein.

(5) If the ex parte decree has been obtained by the plaintiff by fraud, the defendant may also have the option / remedy of filing a regular suit to set aside such ex parte decree. It should be noted that, ordinarily, a suit to set aside an ex parte decree cannot be filed. However, if such decree was obtained by the plaintiff by fraud, a suit may be maintainable to set aside such decree.

STAGES OF CIVIL SUIT

deeppatelj January 31, 2016 Civil Civil Suit

Normally a civil suit has to travel through 17 main stages from institution of the suit till its judgment, they are as under :-

Sr.	Stage	Provision	Time	Option
1	Institution of Suit	Order 4, 6 and 7
2	Issue of Summons	Order 5	30	M
3	Filing of Written Statement	Order 8	30	M
4	Examination of Parties	Order 10	10	D
5	Settlement of Despute	Section 89	15	M
6	Discovery & Inspection	Order 11	30	M
7	Admission	Order 12	15	M
8	Production of Documents	Order 13	07	D
9	Framing of Issues	Order 14	15	M
10	List of Witness	Order 16	15	M
11	Summons to Witnesses	Order 16 R 1 (4)	05	M
12	Settling Date	Order 16	07	M
13	Evidence of Parties	Order 18 R 4 r/w Order 17	—-	M
14	Exhibiting of Documents	Order 18 R 4 (1) Proviso	07	D
15	Cross-exam by parties	Order 18 R 4 (2)	—-	M
16	Arguments	Order 18 R 2 (3A)	—-	D
17	Judgment	Order 20	30	M

Out of these 17 main stages the amended code does not speak about any time limit for Examination of Parties – Order 10, Settlement of Disputes – Section 89, Production of Documents – Order 13, Exhibiting of Documents – Order 18 R 4 (1) proviso and Arguments – Order 18 R 2 (3A), but in the rest of the provisions the amended code has given time limits in the provisions itself and we cannot ignore them so easily and without any rare and exceptional circumstances.

Hon’ble Apex Court in case of Salem Bar cited supra has given a landmark in each of the provision. In the light of this judgment every thing was set right. Till the preparation of this paper Hon’ble Apex Court, High courts of various states including Hon’ble Bombay High Court has delivered judgments in respect of all the 17 stages as mentioned above.

Now once a party has filed the suit then he has to comply all the provisions one by one within the stipulated time. If the table shown as above is effectively implemented then no prejudice is likely to be caused to either of the parties and it will be a milestone in disposing off the civil suit in a stipulated time and that too within the framework of law, respecting the intention of the legislature. Now it is for us to decide whether to follow the provisions or the practice while interpreting and implementing the provisions of amended code.

In the amended code most of the provisions contains time limits for a particular stage. Maximum of the provisions are mandatory in nature and in very few of them the discretion lies with the court.

Plaintiff has to file the plaint complying the provisions in all respect as contemplated under Order 4 r/w Order 6 and 7 of the code.
Plaintiff has to issue summons within 30 days from the institution of suit.
After the service of summons defendant has to file his written statement within 30 days from the receipt of summons as per Order 8 R 1 of the code
No further time exceeding 90 days after date of service of summons be extended for filing written statement as per proviso to Order 8 R 1 of the code.
Within 10 days from the filing of written statement court has to examine the parties so as to explore the possibilities of compromise in between the parties and to refer the matter of settlement under section 89 of the code.
If parties fail to compromise the matter then court has to keep the matter for discovery and inspection within the time span of 7 – 10 – 10 – 3 days, as per Order 11 of the code.
Then to adjourn the matter for admission within the time span of 15 days as per Order 12 of the code.
Then parties have to file the original documents prior to framing of issues within the time span of 7 days, as per Order 13 of the code.
Court has to frame the issues within 15 days as per Order 14 of the code.
Parties have to file the list of witnesses within 15 days from the date of framing of issues as per Order 16 of the code.
Plaintiff has to issue summons to the witnesses either for adducing evidence or for production of documents within 5 days of filing of list as per Order 16 R 1 (4) of the code.
Parties have to settle the date of evidence as per Order 16 of the code.
Plaintiff has to file the affidavits of all his witnesses within 3 adjournments as per Order 18 R 4 r/w Order 17 of the code.
Court has to exhibit the documents considering their proof and admissibility with a reasoned order as per proviso to Order 18 R 4 (1) of the code.
Cross examination of the plaintiff and his witnesses on day to day until all the witnesses in attendance have been examined as per Order 18 R 4 (2) r/w Order 17 R 2 (a) of the code.
Defendant has to issue summons to the witnesses either for adducing evidence or for production of documents as per Order 16 R 1 (4) of the code.
Defendant has to file the affidavits of all his witnesses within 3 adjournments as per Order 18 R 4 r/w Order 17 of the code.
Court has to exhibit the documents considering their proof and admissibility with a reasoned order as per proviso to Order 18 R 4 (1) of the code.
Cross examination of the defendant and his witnesses on day to day until all the witnesses in attendance have been examined as per Order 18 R 4 (2) r/w Order 17 R 2 (a) of the code.
Parties have to conclude their arguments within 15 days from the completion of their respective evidence as per Order 18 R 2 (3A) of the code.
Court has to delivered judgment forthwith or on or before 30 days and not exceeding 60 days from the date of conclusion of the arguments as per Order 20 R 1 of the code.