MALLAVVA AND ANRversusKALSAMMANAVARA KALAMMA (SINCE DEAD) BY LEGAL HEIRS & ORS.

                  [2024] 12 S.C.R. 1884 : 2024 INSC 1021

                         Mallavva and Anr.
                                v.
                Kalsammanavara Kalamma (Since Dead)
                       by Legal Heirs & Ors.
                         (Civil Appeal No. 14803 of 2024)
                                 20 December 2024
                 [J.B. Pardiwala* and R. Mahadevan, JJ.]


                               Issue for Consideration
          Whether the original suit filed by the plaintiffs even after the
          amendment of the plaint at the stage of first appeal seeking
          possession of the suit property could be said to be time barred.
          In other words, whether the suit would be governed by Article 58
          or Article 65 of the Limitation Act, 1963.

                                      Headnotes†
          Limitation Act, 1963 – Art.58 and Art.65 – Original Plaintiff-K
          instituted suit seeking relief of declaration and injunction in
          respect of suit property – Trial Court while dismissing the suit
          held that the plaintiffs were the absolute owner of the suit
          schedule properties – Legal heirs of original plaintiff filed First
          Appeal with amendment of plaint, wherein plaintiffs prayed for
          possession of the suit property – The First Appellate Court
          allowed the application of amendment and also reversed the
          judgment and order passed by the trial Court – Appellants-
          defendants filed Second Appeal, which was dismissed – Before
          the Supreme Court, appellants contended that the suit would
          be governed by Article 58 of the Limitation Act and is liable
          to be dismissed being time barred:
          Held: As far as title to the property is concerned, the plaintiff
          was able to establish that she was the absolute owner of the suit
          schedule properties – In the First Appeal filed by the legal heirs
          of the original plaintiffs, the plaint was permitted to be amended
          and added the prayer for recovery of the possession from the
          defendants came to be added – It is true that as regards the
          findings on title and ownership, the defendants filed cross-objections
          before the First Appellate Court and those were looked into and


*Author
[2024] 12 S.C.R.                                                              1885

                      Mallavva and Anr. v.
    Kalsammanavara Kalamma (Since Dead) by Legal Heirs & Ors.

     dismissed – It is well settled that rules of procedure are intended
     to be a handmaid to the administration of justice – A party cannot
     be refused just relief merely because of some mistake, negligence,
     inadvertence or even infraction of rules of procedure – The court
     always gives relief to amend the pleading of the party, unless it
     is satisfied that the party applying was acting mala fide or that by
     his blunder, he had caused injury to his opponent which cannot be
     compensated for by an order of cost – However, the Court should
     decline amendments if a fresh suit on the amendment claims would
     be barred by limitation on the date of application – Article 65 of
     the Limitation Act lays down description of suit for possession
     of immovable property or any interest based on title – The time
     from which period it begins to run is when the possession of the
     defendant becomes adverse to the plaintiff – When the suit is based
     on title for possession, once the title is established on the basis
     of relevant documents and other evidence unless the defendant
     proves adverse possession for the prescriptive period, the plaintiff
     cannot be non-suited – In C. Mohammad Yunus v. Syed Unnissa,
     it was held that in a suit for declaration with a further relief, the
     limitation would be governed by the Article governing the suit
     for such further relief – In fact, a suit for a declaration of title to
     immovable property would not be barred so long as the right to such
     a property continues and subsists – When such right continues to
     subsist, the relief for declaration would be a continuing right and
     there would be no limitation for such a suit – The principle is that
     the suit for a declaration for a right cannot be held to be barred
     so long as Right to Property subsist. [Paras 9, 23, 29, 31, 32]

                               Case Law Cited
     Pandit Ishwardas v. State of Madhya Pradesh & Ors. (1979) 4
     SCC 163; Sampath Kumar v. Ayyakannu & Anr. [2002] Supp. 2
     SCR 397 : (2002) 7 SCC 559; Siddalingamma & Anr. v. Mamtha
     Shenoy [2001] Supp. 4 SCR 366 : (2001) 8 SCC 561; Revajeetu
     Builders and Developers v. Narayanaswamy and Sons & Ors.
     [2009] 15 SCR 103 : (2009) 10 SCC 84 – relied on.
     Khatri Hotels Private Limited & Anr. v. Union of India & Anr. [2011]
     15 SCR 299 : (2011) 9 SCC 126; Rajpal Singh v. Saroj (Deceased)
     through Legal Representatives & Anr. [2022] 19 SCR 202 : (2022)
     15 SCC 260 – held inapplicable.
     Mahila Ramkali Devi v. Nandram (Dead) through Legal
     Representatives [2015] 4 SCR 974 : (2015) 13 SCC 132; Jai Jai
1886                                                       [2024] 12 S.C.R.

                          Supreme Court Reports


     Ram Manohar Lal v. National Building Material Supply, Gurgaon
     [1970] 1 SCR 22 : (1969) 1 SCC 869; Indira v. Arumugam and
     Another (1998) 1 SCC 614; Government of Kerala & Anr. v. Joseph &
     Ors. [2023] 11 SCR 264 : 2023 SCC Online SC 961 – referred to.

                                List of Acts
     Limitation Act, 1908; Limitation Act, 1963.

                             List of Keywords
     Suit; Declaration with further relief; Amendment of plaint;
     Recovery of Possession; Limitation; Title for possession; Adverse
     possession; Declaration of title to immovable property; Application
     for amendment.

                            Case Arising From
     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 14803 of 2024
     From the Judgment and Order dated 13.06.2019 of the High Court
     of Karnataka Circuit Bench at Dharwad in RSA No. 100071 of 2019

                         Appearances for Parties
     S N Bhat, Sr. Adv., D P Chaturvedi, Tarun Kumar Thakur,
     Mrs. Parvati Bhat, Vivek Ram R, Abhay Choudhary M, Ms. Anuradha
     Mutatkar, Advs. for the Appellants.
     Rajesh Mahale, Sr. Adv., Parikshith Maliye, Anirudh Gupta, Harisha
     S.R., Advs. for the Respondents.

                Judgment / Order of the Supreme Court

                                Judgment

     J.B. Pardiwala, J.

1.   Leave granted.
2.   This appeal arises from the judgment and order passed by the High
     Court of Karnataka, Dharwad Bench dated 13.06.02019 in Regular
     Second Appeal No. 100071 of 2019 by which the Second Appeal
     filed by the appellants herein (original defendants) came to be
     dismissed thereby affirming the judgment and order passed by the
[2024] 12 S.C.R.                                                           1887

                       Mallavva and Anr. v.
     Kalsammanavara Kalamma (Since Dead) by Legal Heirs & Ors.

     First Appellate Court allowing the appeal filed by the respondents
     herein(original plaintiffs) and decreeing the suit for declaration of
     title and possession.
3.   The facts giving rise to this appeal may be summarised as under:
     a.   For the sake of convenience, the appellants herein shall be
          referred to as the original defendants and the respondents
          herein shall be referred to as the original plaintiffs.
     b.   The original plaintiff Late Kalsammanavara Kalamma instituted
          Original Suit No. 67 of 2011 in the Court of the Civil Judge and
          JFMC, Hadagali, seeking relief of declaration and injunction
          in respect of the suit property. In the said suit, the trial court
          framed the following issues:
                "1. Whether the plaintiff proves that she is the absolute
                owner and in possession of the suit properties?
                2. Whether the plaintiff proves that she belonged
                to the Kalasammanavar family, and her ancestors
                Chinmayappa and Mallappa are own brothers?
                3. Whether the plaintiff proves that the defendants are
                interfering with the peaceful possession and enjoyment
                of the suit schedule properties of the plaintiff.
                4. Whether the defendants prove that Jamani
                Mallavva has consented to change the Khatha in
                the name of defendant No.2 in respect of the suit
                properties?
                5. Whether the defendants prove that the suit is not
                maintainable without seeking the relief of possession
                by the plaintiff?
                6. Whether the defendants prove that they are in
                lawful possession and enjoyment of the suit schedule
                properties?
                7. Whether the defendants prove that the Court fee
                paid by the plaintiff is insufficient?
                8. Whether the plaintiff is entitled for the relief as
                sought for?
                9. What order or decree?
1888                                                     [2024] 12 S.C.R.

                       Supreme Court Reports


    c.   The trial court answered the issue No. 1 referred to above partly
         in affirmative and issue Nos. 2, 4, 5 and 6 respectively in the
         affirmative. The issue Nos. 3 and 7 respectively were answered
         in the negative. The trial court accordingly dismissed the suit
         with costs of Rs. 5, 000.
    d.   Before the original plaintiff could file First Appeal, she passed
         away.
         In such circumstances referred to above, her legal heirs i.e., the
         respondents herein preferred Regular First Appeal No. 80 of
         2018 in the Court of Sr. Civil Judge, Hoovina Hadagali seeking
         to challenge the judgment and decree passed by the trial court
         in Original Suit No. 67 of 2011 referred to above.
    e.   The First Appellate Court framed the following points for
         determination:
              "1. Whether the appellants/ plaintiff proved that they
              belong to Kalasammanavara family thereby they
              became the absolute owners of the suit property by
              virtue of inheritance?
              2. Whether the impugned judgment and decree is
              capricious, perverse, illegal and calls the interference
              by this court?
              3. Whether the claim of the plaintiff is barred under
              law of limitation?”
    f.   The First Appellate Court answered the points of determination
         referred to above as under:
              “Point no.1: In affirmative,
              Point no.2: Partly in affirmative,
              Point no.3: In the negative,
              Point no.4: As per final order for the following..”
    g.   It is pertinent to note that before the First Appellate Court
         the appellants herein as defendants had filed cross-objection
         challenging the findings recorded by the trial court on the issue
         Nos. 1 and 2 respectively referred to above.
[2024] 12 S.C.R.                                                               1889

                      Mallavva and Anr. v.
    Kalsammanavara Kalamma (Since Dead) by Legal Heirs & Ors.

     h.   It also appears that in the First Appeal filed by the legal heirs
          of the original plaintiffs an application for amendment of plaint
          was filed wherein, the plaintiffs prayed for possession of the suit
          property. The application seeking amendment of plaint filed by
          the legal heirs of the original plaintiff came to be allowed by the
          First Appellate Court and the plaint was accordingly amended.
     i.   The order passed by the First Appellate Court allowing the
          amendment application reads thus:
                “11. As per the findings of the trial court, the plaintiff is
                an absolute owner of suit properties. The respondents
                have filed the cross appeal challenging the said
                appeal. But the trial court comes to conclusion that the
                plaintiff is not in possession over the suit properties.
                That is the reason plaint came to be dismissed. But
                the legal heirs of the plaintiff are still contending
                that they have continued the possession over the
                suit properties. But they want to amend the plaint
                by inserting the alternative prayer of possession.
                Since the possession is a fact in issue between
                the parties, it has to be ascertained at the time of
                argument. However, the proposed amendment is just
                an alternative relief of possession, the entitlement
                of the said relief is subject to proof of the particular
                fact. If the legal heirs of plaintiff are able to establish
                the possession, seeking the possession is not
                necessary. On the other hand, if they failed to
                prove the possession as it is settled principle of law
                without seeking possession, suit for declaration is
                not maintainable when the party is not in possession
                over the properties. Hence the proposed amendment
                is just and necessary to resolve the actual dispute
                between the parties.
                12. It is settled principle of the law that appeal is the
                continuation of the proceedings and even the parties
                can amend their pleadings before the appellate court
                also subject to proof of the fact. At this juncture it is
                beneficial to refer the decision of Hon’ble High Court
                of Karnataka reported in 2016 KCCR(1) 73 in between
1890                                                [2024] 12 S.C.R.

                Supreme Court Reports


        Puttamaramma V/s Giriyappa & Ors. wherein Hon’ble
        High Court in para-17 held as hereunder:
             “17. Appeal being continuation of original
             proceedings and Appellate Court having power
             to exercise all the powers vested with the trial
             Court, would necessarily have power to examine
             an application filed under Order 6, Rule 17
             CPC and it cannot be said that such power to
             entertain the application for amendment by the
             Appellate Court would not be available on the
             ground of proviso to Rule 17 of Order VI CPC
             curtailing such power which in fact it does not
             for the reasons already indicated herein above.
             An appeal being proceedings in continuation of
             original suit, it can be safely concluded that First
             Appellate Court is vested with similar power
             possessed by Court of original jurisdiction.
             Language employed in sub section (2) of Section
             107 CPC is clear, unambiguous and explicit,
             which would clearly indicate that Appellate
             Court shall have the same power and shall
             perform as nearly as may be the same duties
             as are conferred and imposed by the Code on
             Courts of original jurisdiction in respect of suits
             instituted therein.”
        In view of the dictum of Hon’ble High Court the
        First Appellate Court can exercise the power under
        Order 6 rule 17 of CPC as it is a continuation of the
        proceedings. Hence as per the detailed discussion
        above IA deserved to be allowed. Accordingly point
        No. 1 is answered in the affirmative.
        13. Point No.2:- For the aforesaid reason and
        discussion, I proceed pass the following
                               ORDER
             I.A. No. II under order 6 rule 17 read
             with Sec. 151 of C.P.C. is hereby allowed.
[2024] 12 S.C.R.                                                              1891

                      Mallavva and Anr. v.
    Kalsammanavara Kalamma (Since Dead) by Legal Heirs & Ors.

                     Appellants are permitted to amend the plaint
                     and directed to submit the amended plaint in
                     the office within 7 days from this order.
                     No order as to cost.”
     j.   The First Appellate Court reversed the judgment and order
          passed by the trial court and thereby allowed the First Appeal
          filed by the plaintiffs. The First Appellate Court while allowing
          the First Appeal observed as under:
                “40. The counsel or the respondents have argued
                that the defendants have got amended the plaint
                and also contended that the suit of the plaintiff
                as well as her legal heirs are barred under law of
                limitation as they approached the court after lapse
                of prescribed law of limitation. Further the counsel
                for the respondents have argued that since the suit
                is for the relief of declaration the plaintiff ought to
                have filed the suit within three years from the date
                of cause of action. Now they are seeking the relief
                of possession. The plaintiff shall file the suit within
                12 years from the date of dispossession. Even by
                considering the RTC extracts since 1981, defendants
                are in possession of the suit properties, totally the
                claim of the plaintiff is barred under law of limitation.
                By considering the arguments I again carefully went
                through the pleading and other materials available
                on record.
                41. Of course initially the suit is for declaration of title
                and consequential relief of permanent injunction. As
                per the provision of Article 58 of Limitation Act, in order
                to obtain any declaration three years when the right
                to sue first accrues. As per the detailed discussion
                made above of course the plaintiff has established
                her right over the suit properties. Now the legal
                heirs of plaintiff are claiming the alternative relief of
                possession. Since the plaintiff failed to prove their
                possession, they are entitled for the possession also.
                In order to entitle the possession, as per provision of
                Article 55 of Limitation Act, the limitation is 12 years
1892                                                       [2024] 12 S.C.R.

                       Supreme Court Reports


             when the possession of the defendants became
             adverse to the plaintiff. …
             As per the dictum of Hon’ble Supreme Court when
             the suit is for possession based on title, once the title
             is established unless the defendant proves adverse
             possession, the plaintiff cannot be non suited. Here
             the claim of the plaintiff by virtue of the title succeeded
             by through her ancestors. Under such circumstances
             unless the defendants have pleaded and proved that
             they are in adverse possession against to the interest
             of the plaintiff, the plaintiff cannot be non suited.
             Accordingly now it is settled principle of law that when
             the plaintiff established right, title and interest over the
             suit property and the defendants are in possession
             unless and until the defendants are proved that they
             are in adverse possession and they became owners
             over the particular property by virtue of adverse
             possession the plaintiff cannot be non suited and it
             cannot be hold that suit is barred by law of limitation.
             Admittedly the defendants nowhere have pleaded that
             they are in possession of the suit property, adverse to
             the interest and right against to the plaintiff. Under such
             circumstances this Court of the considered opinion that
             the suit is not barred by limitation as contended by
             the defendants and the suit is in time and the plaintiff
             is entitled the relief as sought for.”
                                                 (Emphasis supplied)

    k.   The operative part of the First Appellate Court’s judgment
         reads thus:
             “The appeal filed by appellants/ legal heirs of plaintiff
             under Order 41 Rule 1 and 2 r/w Sec.151 CPC is
             hereby allowed.
             The judgment and decree in OS No.67/2011 dated
             6.9.2014 on the file of Civil Judge and JMFC,
             Huvinahadagali is hereby set aside by modifying
             the findings.
             Suit of the plaintiff is hereby decreed.
[2024] 12 S.C.R.                                                           1893

                       Mallavva and Anr. v.
     Kalsammanavara Kalamma (Since Dead) by Legal Heirs & Ors.

                The legal heirs of plaintiff are hereby declared as
                an absolute owner of the suit properties and the
                defendants are hereby directed to handover the
                possession of the suit properties within 60 days from
                this order.”
     l.   The appellants herein being dissatisfied with the judgment and
          decree passed by the First Appellate Court went before the High
          Court by filing Second Appeal under Section 100 of the CPC.
     m.   The High Court found that there was no substantial question of
          law involved in the Second Appeal and accordingly proceeded
          to dismiss the same holding as under:
                “The present appellants have also contended that
                the suit for declaration and possession is barred by
                limitation under Article 58 of the Limitation Act. Since
                First Appellate Court has held that the plaintiff is the
                absolute owner of the suit property, she is entitled
                for possession, and the case is not covered under
                Article 58 of the Limitation Act. It is also not the case
                of the defendants that they are in adverse possession
                of the suit property over the statutory period, and
                they have perfected their title over suit properties
                by adverse possession. When this is not the case of
                the defendants, Article 65 of the Limitation Act has to
                be applied and consequently, the suit of the plaintiff
                cannot be held as barred by limitation. Moreover,
                when the suit of the plaintiff is based on title, the
                question of limitation does not arise. Under these
                circumstances, it is held that the appellants have not
                at all made out any substantial questions of law for
                consideration in the present appeal. Therefore, the
                appeal being devoid of merit is liable to be dismissed.
                Accordingly, the appeal is dismissed.”
4.   In such circumstances referred to above, the appellants (original
     defendants) are here before this Court with the present appeal.

     WRITTEN SUBMISSIONS ON BEHALF OF THE APPELLANTS
     a.   The High Court committed a serious error in dismissing the
          Second Appeal without even formulating any substantial
1894                                                       [2024] 12 S.C.R.

                        Supreme Court Reports


         question of law. Trial court was justified in dismissing the
         suit on the ground that the appellants herein (defendants)
         are in possession of the suit property since 1981-82 and
         the suit filed without seeking relief of possession was
         liable to be dismissed.
    b.   The plaintiff filed the present suit on 29.07.2011 with the
         prayer of declaration of title and permanent injunction.
         Significantly, there was no prayer for possession in the
         suit as originally filed. The suit was filed asserting title
         on the basis that plaintiff’s collaterals were the original
         owners of the suit properties and that the collateral
         branch remined heirless and therefore the suit property
         devolved on the plaintiff and further that the plaintiff was
         in possession of the suit properties. The Trial Court found
         that petitioners-defendants were in possession from 1981-
         1982 continuously and revenue records stood in the name
         of the petitioners-defendants since 1981-1982. All through
         the pendency of the suit before the Trial Court the plaintiff
         did not seek any amendment of the plaint to seek the relief
         of possession. Thus, the suit as framed was primarily
         one for declaration of title and consequential relief for
         injunction. The respondent-plaintiff filed an appeal before
         the First Appellate Court and during the pendency of the
         appeal filed an application for amendment of the plaint to
         incorporate the relief of possession. The said application
         for amendment was allowed by the First Appellate Court
         on 22.06.2018. Therefore, the prayer for amendment was
         made as late as 2018 though, the petitioners-defendants
         had been in possession since 1981-1982. Thus, the suit
         was barred by limitation.
    c.   The respondent – plaintiff pleaded case with regard
         to cause of action was that the petitioners-defendants
         managed to get change of Khatha in the name of the
         petitioners-defendants in the revenue records and this gave
         rise to the cause of action. It is the concurrent finding of the
         Trial Court and the First Appellate Court that the revenue
         records stood in the name of the petitioners-defendants
         since 1981-1982. The Trial Court noted at page 67 of
         its judgment that the mutation took place in favour of
[2024] 12 S.C.R.                                                          1895

                       Mallavva and Anr. v.
     Kalsammanavara Kalamma (Since Dead) by Legal Heirs & Ors.

          petitioners-defendants in the year 1981-1982. The finding
          of the Trial Court in this regard is under:
                “All the documents i.e., RORs and Patta Book of
                the suit properties revealed that in the year 1981-
                1982 the Jummani Mallavva had consented to the
                defendants to mutate their names in respect of the
                suit schedule properties and from the 1981-1682
                onwards, the name of the defendants are appearing
                in the revenue records of the suit properties.”
                Therefore, the cause of action as far back as 1981-
                1982 and the suit for declaration of title (primary
                relief) was barred under Article 58 of the Schedule
                to the Limitation Act.
5.   In such circumstances referred to above, the learned counsel prayed
     that there being merit in his appeal, the same may be allowed and
     the impugned judgment passed by the High Court be set aside.

     SUBMISSIONS ON BEHALF OF THE RESPONDENTS (ORIGINAL
     PLAINTIFFS)
     a.   The Petitioners have filed this Special Leave Petition
          against the final Judgement of the High Court of Karnataka,
          Circuit Bench at Dharwad dated 13-06-2019 in RSA
          No.100071/2019 by which the Petitioners’ second appeal
          is dismissed.
     b.   This proceeding originates from the suit bearing O.S.
          No.67 of 2011, filed by deceased Respondent seeking
          relief of declaration and injunction. The Trial Court, after
          appreciation of evidence, found the plaintiff/respondent
          to be the owner. However, the Trial Court found that the
          plaintiff is not in possession and since she had not prayed
          for possession, the suit was not maintainable and hence
          dismissed the suit.
     c.   The finding regarding declaration of ownership over the
          suit property was upheld by the first appellate court and
          in the impugned judgement by the High Court, as well.
          Hence, the finding that the plaintiff is the owner of the suit
          property is a concurrent finding of fact.
1896                                                       [2024] 12 S.C.R.

                        Supreme Court Reports


    d.   Since the trial court had found the defendant to be in
         possession, the plaintiff/respondent amended the plaint
         during the pendency of her appeal and added the relief of
         recovery of possession. The Appellate Court granted the
         relief of possession to the plaintiff/respondent while allowing
         her appeal. The decree of possession is confirmed by the
         High Court by dismissing the Petitioners’ second appeal.
    e.   On 29-11-2019, this Hon’ble Court, while issuing notice
         on this SLP, confined the notice “to consider the question
         as to whether the suit for possession (as per amended
         plaint before the First Appellate Court) was within the
         period of limitation.”
    f.   The plaintiff traced her title with the averment that
         Chinmayappa and Mallappa of Kalsammanavara family
         were brothers; though they were joint owners of the suit
         properties, the lands stood in the name of Chinmayappa;
         Chinnappa had a son called Goneppa who died issueless.
         Plaintiff is granddaughter of the younger brother Mallappa
         and hence she is the only surviving legal heir.
    g.   The plaintiff further averred that the defendants did not
         belong to the Kalsammanavara family but belonged to
         another family called Jumani family. In Jummani family,
         there was one Goneppa, whose wife was Mallamma; taking
         advantage of similarity of the names, the defendants got
         their names mutated in the Record of Rights.
    h.   The specific averment in the plaint is that the plaintiff
         learned about the illegal mutation in the year 2009 and
         thereafter she initiated Revenue proceedings to question
         the mutation, during which defendants denied her title and
         hence she filed the suit. The cause of action pleaded is in
         2010, when the defendants denied the title of the plaintiff
         for the first time.
    i.   In the written statement, the defendants pleaded that
         Chinmayappa had a son named Goneppa who had
         married Mallavva D/o Jumani Basappa, and that the
         said Wife of Goneppa is the sister of Defendant No.1’s
         Husband. It is further pleaded that Goneppa and Mallavva
[2024] 12 S.C.R.                                                          1897

                       Mallavva and Anr. v.
     Kalsammanavara Kalamma (Since Dead) by Legal Heirs & Ors.

          died issueless leaving behind Defendant No.1’s husband
          as the Class II heir and thus defendants have succeeded
          to the property. It is further pleaded that Goneppa’s wife
          Mallavva had consented to change the Khatha in the
          name of Defendant No.2 under Mutation No.11/81-82
          and Defendant No.1 came into lawful possession and
          enjoyment of the property after the mutation was effected.
          The defendants have not raised any plea regarding
          adverse possession. After the plaint was amended by
          including the prayer for possession, the defendants
          amended the written statement and added Para 14(a)
          that the suit is barred by limitation.
     j.   The First Appellate Court has held that initially the suit was
          for declaration covered by Article 58 of the Limitation Act
          and after amendment, the plaintiff has sought possession
          which is covered under Article 65 of the Limitation Act
          which is 12 years from the date when the possession of
          the defendants becomes adverse to the plaintiff. Further
          the Appellate Court has noted that unless the defendants
          plead and establish that they are in adverse possession
          and became owners by virtue of adverse possession, the
          plaintiff, whose title is proved cannot be non-suited on the
          ground of limitation.
     k.   The above-mentioned finding of the First Appellate Court
          is confirmed with regard to the question of limitation is
          upheld by the High Court.
     l.   The argument of the Senior Counsel for the Petitioner
          that the present suit is barred by limitation under Article
          58 of the Limitation Act cannot be accepted. Article 58 is
          a residuary provision for seeking declaration. Only Article
          65 applies to a suit for possession. In the present case,
          the notice issued by this Hon’ble Court is limited to the
          question whether the amended prayer for possession is
          barred by limitation.
6.   In such circumstances referred to above, the learned counsel
     prayed that there being no merit in this appeal, the same may be
     dismissed.
1898                                                        [2024] 12 S.C.R.

                         Supreme Court Reports


     ANALYSIS
7.   Having heard the learned counsel appearing for the parties and
     having gone through the materials on record, the only question that
     falls for our consideration is whether the High Court committed any
     error in passing the impugned judgment and order.
8.   We take notice of the order passed by this Court dated 29.11.2019.
     The same reads thus:
          “Delay condoned.
          Issue notice to consider the question as to whether the
          suit for possession (as per amended plaint before the
          First Appellate Court) was within the period of limitation.
          Status quo, existing as on today, shall be maintained.
          Call for the records from the Trial Court as well as the
          First Appellate Court.”
     Thus, the only point that falls for our consideration is whether the
     original suit filed by the plaintiffs even after the amendment of the
     plaint at the stage of first appeal seeking possession of the suit
     property could be said to be time barred. In other words, whether the
     suit would be governed by Article 58 or Article 65 of the Limitation
     Act, 1963?
9.   It is not in dispute that the trial court even while dismissing the suit
     held the plaintiffs to be the absolute owner of the suit schedule
     properties. It is also not in dispute that the plaintiff came to be non-
     suited as the appellants herein (original defendants) were found to
     be in lawful possession and enjoyment of the suit schedule properties
     and the plaintiffs had failed to seek relief of possession of the suit
     properties as scheduled in the plaint. Thus, so far as title to the
     property is concerned, the plaintiff was able to establish that she
     was the absolute owner of the suit schedule properties. In the First
     Appeal filed by the legal heirs of the original plaintiffs, the plaint was
     permitted to be amended and added the prayer for recovery of the
     possession from the defendants came to be added. It is true that
     as regards the findings on title and ownership, the defendants filed
     cross-objections before the First Appellate Court and those were
     looked into and dismissed. However, as stated above notice was
     issued by this Court only to consider the issue of period of limitation.
[2024] 12 S.C.R.                                                          1899

                      Mallavva and Anr. v.
    Kalsammanavara Kalamma (Since Dead) by Legal Heirs & Ors.

10. In view of the aforesaid, we shall discuss into the position of law as
    regards the applicability of Article 58 or Article 65 of the Limitation
    Act in the present litigation.
11. We must first look into Sections 3(1) and 27 and also Articles 58,
    65 and 113 of the Limitation Act respectively.
12. Section 3(1) of the said Act reads as follows:
          “3. Bar of Limitation.-(1) Subject to the provisions contained
          in sections 4 to 24 (inclusive), every suit instituted, appeal
          preferred, and application made after the prescribed period
          shall be dismissed, although limitation has not been set
          up as a defence.”
13. A mere reading of the said section would reveal that if any suit or
    appeal or application has been filed beyond the prescribed period
    of limitation mentioned in the Limitation Act, the same is liable to
    be dismissed even though the plea of limitation has not been taken
    as a defence.
14. Section 27 of the said Act reads as follows:
          “27. Extinguishment of right to property.-At the determination
          of the period hereby limited to any person for instituting
          a suit for possession of any property, his right to such
          property shall be extinguished.”
15. It means, as far as a suit for possession is concerned, the same
    should be filed before expiry of the period mentioned in the Limitation
    Act and if the same is filed beyond the period of limitation, the right
    of plaintiff over such property shall become extinguished.
16. Article 58 of the Limitation Act reads as follows:

            “Description of   Period of        Time from which
            suit              limitation       period begins to run
            To obtain         Three years      When the right to
            any other                          sue first accrues”
            declaration
     From a cursory look of the provision of the said Article, it is easily
     discernible that apart from the declaratory suits mentioned in Articles
     56 and 57, any other declaratory suit should be filed within three
     years from the date when right to sue first accrues.
1900                                                      [2024] 12 S.C.R.

                         Supreme Court Reports


17. Article 65 of the Limitation Act reads as follows:

           “Description of     Period of           Time from which
           suit                Limitation          period begins to
                                                   run
           For possession      Twelve years        When the
           of immovable                            possession of
           property or any                         the defendant
           interest therein                        becomes
           based on title                          adverse to the
                                                   plaintiff”
     From a plain reading of the said Article, it is made clear that a suit
     filed for recovery of possession based on title should be filed within
     a period of 12 years when possession of the defendant becomes
     adverse to the plaintiff concerned.
18. Article 65 of the Limitation Act, 1963 is corresponding to Article 142
    of the Limitation Act, 1908, wherein it is stated that the plaintiff who
    based his case on title has to prove not only title, but also possession
    within 12 years of the date of suit. The said Article has undergone a
    metamorphic change in view of Article 65 of the Limitation Act, 1963.
    The vital distinction between Articles 142 of the Limitation Act, 1908
    and Article 65 of the Limitation Act, 1963 is that as per Article 142 of
    1908 Act, the plaintiff has to prove not only title, but also possession
    within 12 years of the date of suit, whereas, as per Article 65 of 1963
    Act, a suit for possession based on title has to be filed within 12
    years when possession becomes adverse to the concerned plaintiff.
19. Article 113 reads as follows:

           “Description of       Period of     Time from which
           application           Limitation    period begins to run
           Any suit for          Three years When the right to
           which no period                   sue accrues.”
           of limitation
           is provided
           elsewhere in this
           Schedule.
     It means, if no prescribed period of limitation is provided elsewhere
     in the Limitation Act, 1963, as per Article 113 of the said Act, a suit
[2024] 12 S.C.R.                                                      1901

                      Mallavva and Anr. v.
    Kalsammanavara Kalamma (Since Dead) by Legal Heirs & Ors.

     must be instituted within a period of 3 years when the right to sue
     accrues.
20. From the conjoint reading of the said Sections and Articles of the
    Limitation Act, 1963, the Court has to find out as to whether the
    reliefs sought for in the present suit would come within the contour
    of Article 58 or any other Article of Limitation Act, 1963.
21. Article 58 comes within the purview of Part-Ill of Limitation Act, 1963
    and the same deals with suits relating to declarations.
22. The chronology of the following events is important:
     i.     The original suit was instituted in the year 2011
     ii.    The suit came to be dismissed on 6.09.2014
     iii.   First appeal was filed on 30.10.2014.
     iv.    An application seeking amendment of plaint was filed
            along with first appeal on 30.10.2014.
     v.     The application seeking amendment of plaint with a view
            to add the prayer for recovery of possession was allowed
            vide order dated 22.06.2018.
     vi.    The Regular appeal came to be allowed on 27.10.2018.

     AMENDMENT OF PLAINT AT THE STAGE OF FIRST APPEAL
23. It is well settled that rules of procedure are intended to be a handmaid
    to the administration of justice. A party cannot be refused just relief
    merely because of some mistake, negligence, inadvertence or even
    infraction of rules of procedure. The court always gives relief to
    amend the pleading of the party, unless it is satisfied that the party
    applying was acting mala fide or that by his blunder, he had caused
    injury to his opponent which cannot be compensated for by an order
    of cost. (Mahila Ramkali Devi v. Nandram (Dead) through Legal
    Representatives : (2015) 13 SCC 132.
24. In Jai Jai Ram Manohar Lal v. National Building Material Supply,
    Gurgaon reported in (1969) 1 SCC 869, this Court held that the
    power to grant amendment to pleadings is intended to serve the
    needs of justice and is not governed by any such narrow or technical
    limitations.
1902                                                       [2024] 12 S.C.R.

                        Supreme Court Reports


25. In Pandit Ishwardas v. State of Madhya Pradesh & Ors. reported
    in (1979) 4 SCC 163, this Court observed:
         “4. We are unable to see any substance in any of the
         submissions. The learned counsel appeared to argue on
         the assumption that a new plea could not be permitted at
         the appellate stage unless all the material necessary to
         decide the plea was already before the court. There is no
         basis for this assumption.
         5. There is no impediment or bar against an appellate court
         permitting amendment of pleadings so as to enable a party
         to raise a new plea. All that is necessary is that the appellate
         court should observe the well-known principles subject
         to which amendments of pleadings are usually granted.
         Naturally one of the circumstances which will be taken
         into consideration before an amendment is granted is the
         delay in making the application seeking such amendment
         and, if made at the appellate stage, the reason why it
         was not sought in the trial court. If the necessary material
         on which the plea arising from the amendment may be
         decided is already there, the amendment may be more
         readily granted than otherwise. But, there is no prohibition
         against an appellate court permitting an amendment at the
         appellate stage merely because the necessary material is
         not already before the court.”
26. In Sampath Kumar v. Ayyakannu & Anr. reported in (2002) 7 SCC
    559, it has been held as follows:
         “An amendment once incorporated relates back to the
         date of the suit. However, the doctrine of relation back
         in the context of amendment of pleadings is not one of
         universal application and in appropriate cases the Court
         is competent while permitting an amendment to direct that
         the amendment permitted by it shall not relate back to the
         date of the suit and to the extent permitted by it shall be
         deemed to have been brought before the Court on the
         date of which the application seeking the amendment
         was filed.”
                                                 (Emphasis supplied)
[2024] 12 S.C.R.                                                          1903

                      Mallavva and Anr. v.
    Kalsammanavara Kalamma (Since Dead) by Legal Heirs & Ors.

27. In Siddalingamma & Anr. v. Mamtha Shenoy reported in (2001)
    8 SCC 561, this Court held as follows:
          “… On the doctrine of relation back, which generally
          governs amendment of pleadings unless for reasons
          the court excludes the applicability of the doctrine in a
          given case, the petition for eviction as amended would
          be deemed to have been filed originally as such and the
          evidence shall have to be appreciated in the light of the
          averments made in the amended petition. The High Court
          though set aside the order of the trial court but it is writ
          large from the framing of the order of the High Court,
          especially the portions which we have extracted from the
          order of the High Court and reproduced in earlier part of
          this judgment, that the learned Single Judge of the High
          Court also was not seriously doubting the genuineness
          of the landlady’s requirement on the material available
          on record but was not feeling happy with the contents of
          the eviction petition as originally filed and an overzealous
          attempt on the part of the landlady in projecting her sister’s
          sons and grandchildren as her own. …”
                                                 (Emphasis supplied)

28. This Court in Revajeetu Builders and Developers v. Narayanaswamy
    and Sons & Ors., reported in (2009) 10 SCC 84, laid down some
    basic principles which the Court should keep in mind while allowing
    or rejecting the application for amendment. Para 63 of the said
    judgment reads thus:
          “63. On critically analysing both the English and Indian
          cases, some basic principles emerge which ought to be
          taken into consideration while allowing or rejecting the
          application for amendment:
                (1) whether the amendment sought is imperative for
                proper and effective adjudication of the case;
                (2) whether the application for amendment is bona
                fide or mala fide;
1904                                                       [2024] 12 S.C.R.

                         Supreme Court Reports


                (3) the amendment should not cause such prejudice
                to the other side which cannot be compensated
                adequately in terms of money;
                (4) refusing amendment would in fact lead to injustice
                or lead to multiple litigations;
                (5) whether the proposed amendment constitutionally
                or fundamentally changes the nature and character
                of the case; and
                (6) as a general rule, the Court should decline
                amendments if a fresh suit on the amendment
                claims would be barred by limitation on the date of
                application.”
                                                  (Emphasis supplied)

29. Thus, the dictum as laid in the above referred judgment of this Court
    is that the Court should decline amendments if a fresh suit on the
    amendment claims would be barred by limitation on the date of
    application.
30. The submission on the part of the appellants herein is that the suit
    would be governed by Article 58 of the Limitation Act and is liable to
    be dismissed being time barred whereas the submission on the part
    of the respondents (original plaintiffs) is that the suit is governed by
    Article 65 of the Limitation Act and even on the date when the First
    Appellate Court permitted the plaint to be amended, the same was
    well within limitation.
31. It is well settled that when there are several reliefs claimed in a suit,
    the limitation period would be that of the main relief, the limitation for
    ancillary relief being ignored. The argument of the learned counsel
    appearing for the appellants herein is not sustainable in law as
    it proceeds on the assumption as if old Article 142 of the earlier
    Limitation Act was in force wherein the plaintiff who based his case
    on title had to prove not only title but also possession within twelve
    years of the date of the suit. The said provision of law as observed
    aforesaid has undergone a metaphoric sea change as we find under
    the Limitation Act. Article 65 reads as under:
[2024] 12 S.C.R.                                                         1905

                      Mallavva and Anr. v.
    Kalsammanavara Kalamma (Since Dead) by Legal Heirs & Ors.


                  “Description of     Period of        Time from
                  Suit                limitation       which period
                                                       begins to run
            65. For possession        Twelve years     When the
                of immovable                           possession of
                property or any                        the defendant
                interest therein                       becomes
                based on title                         adverse to the
                                                       plaintiff.”


     It is, therefore, obvious that when the suit is based on title for
     possession, once the title is established on the basis of relevant
     documents and other evidence unless the defendant proves adverse
     possession for the prescriptive period, the plaintiff cannot be
     non-suited. [See: Indira v. Arumugam and Another reported in
     (1998) 1 SCC 614.]
32. In C. Mohammad Yunus v. Syed Unnissa reported in AIR 1961
    SC 808, it has been laid down that in a suit for declaration with a
    further relief, the limitation would be governed by the Article governing
    the suit for such further relief. In fact, a suit for a declaration of title
    to immovable property would not be barred so long as the right to
    such a property continues and subsists. When such right continues
    to subsist, the relief for declaration would be a continuing right and
    there would be no limitation for such a suit. The principle is that the
    suit for a declaration for a right cannot be held to be barred so long
    as Right to Property subsist.
33. This Court in Government of Kerala & Anr. v. Joseph & Ors.
    reported in 2023 SCC Online SC 961 has held as under:
           “35. Mere possession over a property for a long period
           of time does not grant the right of adverse possession
           on its own;
           (a) In Gaya Prasad Dikshit v. Dr. Nirmal Chander
           (two-Judge Bench)(1984) 2 SCC 286, this court observed-
                 “1… It is not merely unauthorised possession on
                 termination of his licence that enables the licensee
1906                                                      [2024] 12 S.C.R.

                      Supreme Court Reports


             to claim title by adverse possession but there must
             be some overt act on the part of the licensee to show
             that he is claiming adverse title. It is possible that
             the licensor may not file an action for the purpose
             of recovering possession of the premises from the
             licensee after terminating his licence but that by itself
             cannot enable the licensee to claim title by adverse
             possession. There must be some overt act on the
             part of the licensee indicating assertion of hostile title.
             Mere continuance of unauthorised possession even
             for a period of more than 12 years is not enough.”
             xxx               xxx             xxx
        47. It has also been held in the case of State of
        Uttrakhand v. Mandir Sri Laxman Sidh Maharaj (2017) 9
        SCC 579 (two-Judge Bench):
             “…The courts below also should have seen that
             courts can grant only that relief which is claimed by
             the plaintiff in the plaint and such relief can be granted
             only on the pleadings but not beyond it. In other
             words, courts cannot travel beyond the pleadings
             for granting any relief…”
        48. Mandir Sri Laxman Sidh Maharaj (supra) was relied
        on in Dharampal (Dead) v. Punjab Wakf Board (2018) 11
        SCC 449 (two-Judge Bench) on the same principle.
        49. Claim of independent title and adverse possession at
        the same time amount to contradictory pleas. The case
        of Annasaheb Bapusaheb Patil v. Balwant (1995) 2 SCC
        543 (two-Judge Bench) elaborated this principle as:
             “15. Where possession can be referred to a lawful
             title, it will not be considered to be adverse. The
             reason being that a person whose possession can
             be referred to a lawful title will not be permitted to
             show that his possession was hostile to another’s
             title. One who holds possession on behalf of another,
             does not by mere denial of that other’s title make his
             possession adverse so as to give himself the benefit
             of the statute of limitation. Therefore, a person who
[2024] 12 S.C.R.                                                            1907

                      Mallavva and Anr. v.
    Kalsammanavara Kalamma (Since Dead) by Legal Heirs & Ors.

                enters into possession having a lawful title, cannot
                divest another of that title by pretending that he had
                no title at all.”
          50. This principle was upheld in the case of Mohan Lal v.
          Mirza Abdul Gaffar (1996) 1 SCC 639 (two-Judge Bench) -
                “4. As regards the first plea, it is inconsistent with the
                second plea. Having come into possession under the
                agreement, he must disclaim his right thereunder and
                plead and prove assertion of his independent hostile
                adverse possession to the knowledge of the transferor
                or his successor in title or interest and that the latter
                had acquiesced to his illegal possession during the
                entire period of 12 years, i.e., up to completing the
                period of his title by prescription nec vi, nec clam, nec
                precario. Since the appellant’s claim is founded on
                Section 53-A, it goes without saying that he admits
                by implication that he came into possession of the
                land lawfully under the agreement and continued to
                remain in possession till date of the suit. Thereby
                the plea of adverse possession is not available to
                the appellant.”
          51. The Court in Uttam Chand (supra) has reiterated this
          principle of adverse possession.
          52. Burden of proof rests on the person claiming adverse
          possession.
          53. This Court, in P.T. Munichikkanna Reddy v. Revamma
          (2007) 6 SCC 59 (two-Judge Bench), it held that initially
          the burden lied on the landowner to prove his title and
          title. Thereafter it shifts on the other party to prove title
          by adverse possession. It was observed:—
                “34. The law in this behalf has undergone a change.
                In terms of Articles 142 and 144 of the Limitation Act,
                1908, the burden of proof was on the plaintiff to show
                within 12 years from the date of institution of the suit
                that he had title and possession of the land, whereas
                in terms of Articles 64 and 65 of the Limitation Act,
1908                                                        [2024] 12 S.C.R.

                         Supreme Court Reports


                1963, the legal position has underwent complete
                change insofar as the onus is concerned : once a
                party proves its title, the onus of proof would be on
                the other party to prove claims of title by adverse
                possession….”
          54. The Court reiterated this principle in the case of Janata
          Dal Party v. Indian National Congress (2014) 16 SCC 731
          (two-Judge Bench):
                “…the entire burden of proving that the possession is
                adverse to that of the plaintiffs, is on the defendant…””
34. The decision of this Court in the case of Khatri Hotels Private
    Limited & Anr. v. Union of India & Anr. reported in (2011) 9 SCC
    126 relied upon by the learned counsel appearing for the appellants
    is of no avail. In the said case, the Court was concerned only with
    Article 58 of the Limitation Act. The Court noted that while enacting
    Article 58 of the Limitation Act, the legislature had designedly made
    a departure from the language of Article 120 of the Limitation Act,
    1908. The Court noted that the word “first” has been used between
    the words “sue” and “accrued”. The Court said that the same would
    mean that if a suit is based on multiple causes of action, the period
    of limitation would begin to run from the date when the right of sue
    first accrued. In other words, the Court held that successive violation
    of the right would not give rise to fresh cause and the suit would
    be liable to be dismissed if it was beyond the period of limitation
    counted from the day when the right to sue first accrued.
35. The decision in the case of Rajpal Singh v. Saroj (Deceased)
    through Legal Representatives & Anr. reported in (2022) 15 SCC
    260, relied upon by the learned counsel appearing for the appellants
    is also of no avail. In the said case, this Court observed as under:
          “14. The submission on behalf of the original plaintiff (now
          represented through her heirs) that the prayer in the suit
          was also for recovery of the possession and therefore
          the said suit was filed within the period of twelve years
          and therefore the suit has been filed within the period of
          limitation, cannot be accepted. Relief for possession is
          a consequential prayer and the substantive prayer was
          of cancellation of the sale deed dated 19-4-1996 and
[2024] 12 S.C.R.                                                         1909

                      Mallavva and Anr. v.
    Kalsammanavara Kalamma (Since Dead) by Legal Heirs & Ors.

          therefore, the limitation period is required to be considered
          with respect to the substantive relief claimed and not
          the consequential relief. When a composite suit is filed
          for cancellation of the sale deed as well as for recovery
          of the possession, the limitation period is required to
          be considered with respect to the substantive relief of
          cancellation of the sale deed, which would be three years
          from the date of the knowledge of the sale deed sought
          to be cancelled. Therefore, the suit, which was filed by
          the original plaintiff for cancellation of the sale deed,
          can be said to be substantive therefore the same was
          clearly barred by limitation. Hence, the learned trial court
          ought to have dismissed the suit on the ground that the
          suit was barred by limitation. As such the learned first
          appellate court was justified and right in setting aside the
          judgment and decree passed by the learned trial court
          and consequently dismissing the suit. The High Court
          has committed a grave error in quashing and setting
          aside a well-reasoned and a detailed judgment and order
          passed by the first appellate court dismissing the suit and
          consequently restoring the judgment and decree passed
          by the trial court.”
36. Thus, it appears that two reliefs were prayed for. One for cancellation
    of the Sale Deed and the second for recovery of possession. The
    Court treated the relief for possession as consequential prayer and
    the relief for cancellation of Sale Deed as the substantive prayer.
37. In such circumstances referred to above, the Court held that if a
    composite suit is filed for cancellation of Sale Deed as well as for
    recovery of possession, the limitation period should be considered
    with respect to the substantive relief of cancellation of Sale Deed
    which would be three years from the date of knowledge of Sale
    Deed sought to be cancelled.
38. The dictum as laid in Rajpal Singh (supra) cannot be made applicable
    to the facts and circumstances of the case on hand. The reason is
    simple. Ordinarily when, a suit is filed for cancellation of Sale Deed
    and recovery of possession, the same would suggest that the title of
    the plaintiff has already been lost. By seeking to get the Sale Deed
1910                                                     [2024] 12 S.C.R.

                            Supreme Court Reports


     set aside on the grounds as may have been urged in the plaint, the
     plaintiff could be said to be trying to regain his title over the suit
     property and recover the possession. In such circumstances, the
     period of limitation would be three years and not twelve years.
39. In view of the aforesaid discussion, this appeal fails and is hereby
    dismissed.

     Result of the case: Appeal dismissed.



     †
         Headnotes prepared by: Ankit Gyan