BAPUSAHEB CHIMASAHEB NAIK-NIMBALKAR (DEAD THROUGH LRS.) & ANR.versusMAHESH VIJAYSINHA RAJEBHOSALE & ORS.

                       [2017] 3 S.C.R. 387


  BAPUSAHEB CHIMASAHEB NAIK-NIMBALKAR (DEAD                           A
                   THROUGH LRS.) & ANR.
                                v.
       MAHESH VIJAYSINHA RAJEBHOSALE & ORS.
                  (Civi!Appea!No. 3110of2012)                         B
                         APRIL25, 2017
       (ARUN MISHRA AND S. ABDUL NAZEER, JJ.]
.      Limitation Act, 1963 -Art. 65 Explanation (b) -Applicability-
Held: Art. 65 Explanation (b) is not applicable to a heir of Hindu C
or Mohammedan female who is full owner of the property as it could
not .be said that the person became entitled to fhe property
independently of the right of the female but derives right through
her - Suit by such a heir is not governed by Art. 65 Explanation (b) -
 On facts, property was claimed from a Hindu woman-SB, who was D
fall owner, on her death in 1962 - It could not be said that AB-heir
 of such female or the plaintiffs became entitled to the property
 independently of the rights of SB - Thus, the suit filed by AB for
separate possession/partition would not be governed by Art. 65
 Explanation (b) - Limitation would not commence as per Art. 65 on
 death of female Hindu but the starting point of limitation for E
 computation of 12 years would be the date of start of adverse
possession otherwise - However, concurrent finding that defendants
 were not in adverse possession and plaintiffs were in joint posses~on
 of the disputed land on the date offiling of the suit - Starting point
 of limitation would not be the date of death of SB in 1962 as she F
 was fall owner, as such suit filed in 1979 beyond period of 12 years
 not barred.
       Code of Civil Procedure, 1908 - Or. II, r. 2 -Applicability -
Held; Or. JI, r. 2 does not apply if the cause ofaction in the subsequent
suit is different from that of the former suit - On facts, the second
suit for partition was not in respect of the same cause of action as G
that on which the previous suit was based - It was on the basis of
death of absolute owner SB in the year 1962, AB became owner
and plaintiffs had in turn inherited from AB - Cause of action in
the previous suit for declaration of title filed by AB was materially
                                                                       H
                                387
388             SUPREME COURT REPORTS                          [2017] 3 S.C.R.


A different - Thus, the cause of action of the suit for partition being
      different and dispute as to mutation had been subsequently decided,
      suit for partition as filed, could not be said to be barred by Or. JI 1: 2.
            Dismissing the appeal, the Court
         HELD: 1.1Article65(b) of the Limitation Act, 1963 applies
B 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
c 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 said
  Explanation would apply to their suit and they would be entitled
D to a period of 12 years from the widow's death within which to
  bring the suit. [Para 12)[398-E-G]
            Jagat Ram v. Varinder Prakash (2006) 4 SCC 482:
            [2006) 3 SCR 207 - distinguished.
 E           Hashmat Begam & Anr. v. Mazhar Husain & Ors. (1888)
             ILR 10 All. 343; Ghisa Singh & Anr. v. Gajraj Singh
             AIR 1916 Oudh 50; Mohammad Yaqub v. Bijai Lal AIR
             1918 Oudh 32; Zarif un-nisa & Ors. v. Chaudhri Shafiq-
             uz-zaman & Ors. AIR 1923 Oudh 185; Malkarjun
             Mahadev Belure v. Amrita Tukaram Dambare & Ors.
 F           AIR 1918 Born. 142; Ranbir Singh & Ors. v. Kartar
             Singh & Ors. AIR 2003 SC 1858 : [2003) 2 SCR 291;
             Amar Singh & Ors. v. Sewa Ram & Ors. AIR 1960
             Punjab 530; Harak Singh v. Kai/ash Singh and Anr.
             AIR 1958 Pat. 581; Mt. Lukai W/o Kati/cram and Ors.
 G           .v. Niranjan Dayaram and Ors. AIR 1958 MP 160 -
             referred to.
         1.2 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
 H property independently of the right of the female but derives right
 BAPUSAHEB CHlMASAHEB NAlK-NlMBALKAR v. MAHESH 389
            VIJAYSlNHA RAJEBHOSALE

  through her. Hence, the suit by such a heir could not be said to A
  be governed by Explanation (b) to Article 65. It cannot be said
  that the suit preferred by the plaintiffs in the year 1979 beyond a
  period of 12 years, was hopelessly barred by limitation, as
  Explanation (b) to Article 65 of the Act is applicable only in the
  case where property is not claimed through the female but B
  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 C
   female, as the case may be. In the instant case, SB, daughter of
   SR became absolute owner of the property on 6.2.1958 and on
   her death on 1.10.1962, the right accrued to AB on th~ basis of
   inheritance made from SB who was the owner of the % share in
   question. When the property is claimed from a woman, Hindu or D
   Mohammedan, who was the full owner, it could not be said that
   AB or the plaintiffs became entitled to the property independently
   of the rights of female i.e. SB. 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 E
    female Hindu. However, the starting point of limitation for
    computation of 12 years would be the date of start of adverse
    possession otherwise. [Paras 8, 9)(395-B-E; 396-A]
         1.3 In the instant case, possession never became adverse
  to the plaintiffs. There is concurrent finding recorded that the F
  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 SB
  but they have not been able to prove their adverse possession.
  On the contrary the finding is that C admitted the title of AB.
  The finding is that till 1976, C never denied the title of AB. As G
  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 SB in the year 1962 as she was full owner,
   as such suit could not be said to be barred by limitation. [Para
   13][398-H; 399-A-B)                                                H
390          SUPREME COURT REPORTS                       [2017] 3 S.C.R.


A        2.1 Order II, Rule 2 CPC does not apply if the cause of
  action in the subsequent suit is differe~t from that of the former
  suit. In the instant case, 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 AB in the year 1963. At that time the
  property in question was not included in the suit. It had been
B
  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 SB in the year 1962, AB became owner and
  plaintiffs had in turn inherited from AB. Thu·s, the cause of action
c of the suit in the instant 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
D
  in the land in the life-time of AB and the cause of action in the
  previous suit for declaration of title filed by AB was materially
  different. [Paras 15, 14] [399-C-F]
        2.2 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
E 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. [Para 16)(400-C]
          State of M.P. v. State of Maharashtra (1977) 2 SCC
F         288 : [1977) 2 SCR 555; State of Maharashtra v.
          National Construction Co. (1996) 1 SCC 735 : [1996)
          1 SCR 293; Bengal Waterproof Ltd. v. Bombay
          Waterproof Mfg. Co. (1997) 1 SCC 99: [1996J 8 Suppl.
          SCR 695; Deva Ram v. lshwar Chand (1995) 6 SCC
G         733 : [1995) 4 Suppl. SCR 369; Gurbux Singh v.
          Bhooralal AIR 1964 SC 1810 - referred to.
                          Case Law Reference
          (1888) ILR 10 All. 343           referred to     Para9
          AIR 1918 Born. 142               referred to     Para9
H
BAPUSAHEB CHlMASAHEB NAlK-NIMBALKAR v. MARESH                                 391
           VlJAYSlNHA RAJEBHOSALE

      (2006) 3 SCR 207                    distinguished Para 10               A

      (2003) 2 SCR 291                    referred to      Para 11
      AIR 1960 Punjab 530                 referred to      Para 12
      AIR 1958 Pat. 581                   referred to      Para 12
                                                                              B
      AIR 1958 MP 160                     referred to      Para 12
      (1977) 2 SCR 555                    referred to      Para 15
      (1996] 1 SCR 293                    referred to      Para 15
      (1996] 8 Suppl. SCR 695             referred to      Para 15            c
      (1995] 4 Suppl. SCR 369             referred to       Para 15

      AIR 1964 SC 1810                    referred to       Para 15
     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3110
of2012.                                                                       D
      From the Order dated 03.03.2008 of the High Court of Judicature
at Bombay in Second Appeal No. 370 of2006 and dated 08.10.2008 in
Review Petition No. 6 of 2008.
      J.P. Cama, Sr. Adv. and Dilip Annasaheb Taur, Advs., for the
Appellants.                                                                   E
      S. B. Deshmukh, Jayant Bhushan, Sr. Advs., Sandeep S.
Deshmukh, Nar Hari Singh, Shashibhushan P. Adgaonkar, Rana Sandeep
Busa, Adv. for the Respondents.
      The Judgment of the Court was delivered by
                                                                               F
       ARUN MISHRA, J. l. The appeal has been preferred by the
defendant aggrieved by the judgment and decree pa.ssed 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      G
plaintiffs averred that the land was ancestral property initially in~erited
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
                                                                               H
392           SUPREME COURT REPORTS                         [2017] 3 S.C.R.


A Bajirao who breathed his last on 6.2.1958. His daughter Shakuntalabai
  died on 1.10.1962. Shakuntalabai died issue less. 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
B also son of Jagdevrao. Chimasaheb died on 18.8.1982. Bapu Saheb,
  appellant No. I 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 ahd Shankara Rao were mutated. Shankara Rao
C 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 Yi share.
D It wa~ held that Anandibai @Sulochana was the heir ofShakuntalabai.
  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
E 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
F 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 ofChimasaheb. Chimasaheb denied the plaintiff's right in the year
  1962 and had been enjoying the property as absolute owner for more
G 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 ofAnandibai@Sulochana was not denied by'
H Chimasaheb before 16.7.1976. There was no ouster of the plaintiff. The '
BAPUSAHEB CHIMASAHEB NAIK-NIMBALKAR v. MAHESH                                393
    VIJAYSINHA RAJEBHOSALE [ARUN MISHRA, J.]

suit for partition could not be said to be barred by limitation. Nor it was A
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 vi de 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 B
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 Shak\mtalabai,
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 C
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 D
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 fo the
property left by Anandibai in the year 1977. In the earlier civil suit for E
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.
                                                                             F
       7. First we advert to the question oflimitation as urged on behalf
of the appellants on the strength of the provisions contained inArticle 65
Explanation (b) which is extracted under:
         "Article 65:
     65. For possession of       Twelve years         When the               G
     immovable property or                            possession of
     any interest therein                             the defendant
     based on title.                                  becomes
                                                      adverse to the
                                                      plaintiff.
                                                                             H
394             SUPREME COURT REPORTS                    [2017] 3 S.C.R.



A
        Explanation - For the
        purposes of this article-

        (a) Where the suit is by a
        remainder man, a reversioner
B       (other than a landlord) or a
        devisce, the possession of the
        defend ant shall be deemed to
        become ad verse only when the
        estate of the remainder-man,
c       reversioner or devisee, as the
        case may be, falls into
        possession;

        (b) Where the suit is by a
        Hindu or Muslim entitled to
D
        the possession of immovable
        property on the death of a
        Hindu or Muslim female, the
        possession of the defendant
        shall be deemed to become
E
        adverse only when the female
        dies;

        (c) Where the suit is by a
        purchaser at a sale in
F       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
G       of the judgement- debtor who
        was out of possession."


           8. It was submitted on behalf of the appellants that Anandibai
H     became entitled to possession of the property on the death of
BAPUSAHEB CHIMASAHEB NAIK-NIMBALKAR v. MARESH                                  395
    VIJAYSINHA RAJEBHOSALE [ARUN MISHRA, J.]

Shakuntalabai in the year 1962. The name of Chimasaheb, original               A
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
                                                                               8
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     C
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 Y2 share in question. When the property is            D
 claimed from a woman, Hindu or Mohammedan, who was the full owner,
 it could not be said thatAnandibai or the plaintiffs became entitled to the
 property independently of the rights offemale 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         E
 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 & Am: v. Mazhar Husain & Ors. (1888)
ILR 10 All. 343, a Division Bench has opined that the word "entitled" f
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 G
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
                                                                            H
396            SUPREME COURT REPORTS                             [2017] 3 S.C.R.


A 65 as held in Hashmat Begam & Am: (supra), Ghisa Singh (supra),
  Mohammad Yaqub (supra), Zarif un-nisa & Ors. (supra); and
      Malkarjun Mahade11 Belure 11. Amrita Tukaram Dambare & Ors.
      AIR 1918 Born. 142 on consideration of provisions ofArticle 141 of the
      Limitation Act.
B        10. Learned counsel appearing on behalf of the appellant has relied
  upon the decision of this Court in Jagat Ram 11. Varinder Prakash
  (2006) 4· SCC 482. Jn the said c·ase 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
C which was challenged before the High Court in the second appeal and
  the same was allowed by the High Court. lt was held that Kirpi had no
  right of maintenance. The case was covered by section 14(2) of the
  Hiuuu 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
D 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
E           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. lt appears that on
            23.8.1958, Smt Kirpi executed an adoption deed in favour her
F           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.
G           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.
                                       xxxxx
              6. Jn our view, the High Court was right in holding that the suit
H
BAPUSAHEB CHIMASAHEB NAIK-NIMBALKAR v. MAHESH 397
    VIJAYSINHA RAJEBHOSALE [ARUN MISHRA, J.]

    was barred by, limitation. Article 65 of the Limitation Act, 1963 A
    prescribes the period of limitation for possession of immovabl.e
    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 B
    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 c
    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 D
    the Hindu female died and that it would start running from some
     other date. ln 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 E
     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 F
     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 ifthe 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 G
     not done so, he should have filed the suit for possession ofthc suit
     land within 12 years of the death ofSmt. Kirpi, which he failed to
     do."
     The decision is totally distinguishable as Kirpi had life-time interest
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398            SUPREME COURT REPORTS                         [2017] 3 S.C.R.


A 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.
B           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 4 widow
  having life estate in the ancestral prope11y does not have the right of
C 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
D 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.
E        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 hdrs 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
F 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
G bring the suit as held by Full Bench verdicts in Amar Singh & Ors. v.
  Sewa Ram & Ors. AIR 1960 Punjab 530, Harak Singh v. Kai/ash
  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
H plaintiffs. There is concurrent finding recorded that the plaintiffs were in
BAPUSAHEB CHlMASAHEB NAlK-NlMBALKAR v. MAHESH 399
    VlJAYSlNHA RAJEBHOSALE [ARUN MISHRA, J.]

joint possession of the disputed land on the date of filing of the suit. The A
defendants have taken the plea of ouster and the suit)ias 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
                                                                             8
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 ofShakuntalabai 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 C
as to the suit being barred by Order 11 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. lt 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 D
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 11 Rule 2 CPC. The E
 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 ofaction in the previous suit for declaration of title filed by
 Anandibai was materially different.                                             F
        15. Rule 2 Order 2 CPC does not apply if the cause of action in
 the subsequent suit is different from tha,t of the former suit as held by
 this Court in State of M.P. v. State of Maharashtra (1977) 2 SCC 288.
 1n State of Maharashtra v. National Construction Co. (1996) 1 SCC
 735, when the first suit was filed to enforce bank guarantee whereas G
 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
       ~                                                                        H
400                SUPREME COURT REPORTS                     [2017] 3 S.C.R.


A 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
B 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. Jshwar 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
c previous suit was based. In respect of the cause ofaction 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 prnperty is
  based on continuing cause of action, as such the suit for partition could
D not be said to be barred by Order 11 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 Trnst
E within a period of two months from today.


      Nidhi Jain                                               Appeal dismissed.