RAMIAHversusN. NARAYANA REDDY (DEAD) BY LRS.

                         RAMIAH                                          A
                            v.
             N. NARAYANA REDDY (DEAD) BY LRS.

                          AUGUST IO, 2004

              [ASHOK BHAN AND S.H. KAPADIA, JJ.]                         B
     Limitation Act, 1963 :

     Article 64-Applicability of-Suit for possession of /and-Filed after
13 years from dispossession-Evidence indicates ouster from possession- C
Dismissal of suit by Courts below as barred by /imitation-On appeal,
held: Suit was barred by limitation-Where the suit is based on a/legation
of plaintiff having been in possession and having subsequently lost the
possession either by dispossession or by discontinuance, Article 64 is
applicable.
                                                                         D
     Sections 64 and 65-App/icability-Ascertainment of-Held: The
applicability is to be ascertained by reference to pleadings.

      Section 14-Suit for possession-Filed after 2 years from the date of
Court's order in previous litigation, but beyond limitation period from the
date of dispossession-During the period of previous litigation, despite E
having right to seek possession, no steps taken to get possession--
Entitlement for benefit under Section 14-Held, in the circumstances ofthe
case plaintiff not entitled to the benefit.

      Respondent filed suit for recovery of possession based on title and F
permanent injunction against the appellant on the ground that appel-
lant was trying to interfere with his possession. Defence of the appellant
was that he was in possession of the suit land having purchased the
same, and that the spit ,land was Inam land and that he was registered
as Khadim tenant by the loam Abolition Authorities. Trial Court by
its order dated 7.4.1971 held that respondent was owner of only 1 acre G
21 gunthas and not the entire land admeasuring 3 acres 12 gunthas.
However, since the respondent was found to be in possession of the
entire land, permanent injunction was granted in his favour. Further
appeals by respondent were dismissed and the decree reached finality
on 24.11.1982.                                                             H
                                  425
    426               SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.
A        Appellant filed the present suit within 2 years from 24.I 1.1982 for
    possession of 1acre21 gunthas land. Trial Court held that the suit was
    barred by limitation as it was filed after 13 years from dispossession,
    since he was dispossessed in 1971. On appeal, High Court confirmed
    dismissal of the suit upholding the view of trial court.

B        In appeal to this Court, appellant contended that the suit was not
    barred by limitation as Article 64 of Limitation Act was not applicable
    as the suit instituted by the appellant was based on title and not on
    possession and Article 65 was applicable in the case as per which the
    suit was within time as the limitation of 12 years commenced from the
C   date when the possession of the defendant-respondent became adverse
    to him; and that he was entitled to benefit under Article 14 of the Act
    in view of the earlier litigation by the respondent.

          Dismissing the appeal, the Court

D       HELD : 1.1. Article 64 of the Limitation Act, 1963 (Article 142
   of the Limitation Act, 1908) is restricted to suits for possession on
   dispossession or discontinuance of possession. In order to bring a suit
   within the purview of that article, it must be shown that the suit is in
   terms as well as in substance based on the allegation of the plaintiff
E having been in possession and having subsequently lost the possession
   either by dispossession or by discontinuance. Article 65 of the Limi-
   tation Act, 1963 (Article 144 of the Limitation Act, 1908) on the other
   hand is a residuary article applying to suits for possession not
.. otherwise provided for. Suits based on plaintiffs' title in which there
p is no allegation of prior possession and subsequent dispossession alone
   can fall within Article 65. The question whether the article oflimitation
   applicable to a particular suit is Article 64 or Article 65 has to be
   decided by reference to pleadings. [429-H; 430-A-C)

G        1.2. In the earlier suit instituted by the respondent, appellant had
    admitted that he was in possession of the suit property up to 1971. The
    admission of the appellant in that suit indicates his ouster from
    possession. In the present suit instituted on 8.5.84 by the appellant, he
    has glossed over this fact. In the circumstances, both the Courts below
    were right in coming to the conclusion that the present suit was barred
H   by limitation. Article 64 is applicable to the present suit. (430-D-EJ
                RAMJAH v. N.N. REDDY [KAPADIA, J.]                    427

      Ram Surat Singh and Ors. v. Badri Narain Singh, AIR (1927) A
 Allahabad 799 and Mohammad Mahmud v. Muhammad Afaq and Ors.,
 AIR (1934) Oudh 21, referred to.

        Limitation Act by Sanjiva Row Ninth Edition, llnd Volume page
. 5_49, referred to.
                                                                             B
        2. Section 14 of the Act cannot be invoked by the appellant as the
 appellant herein had never challenged the findings on possession vide
 decree dated 7.4.1971. All throughout the period of litigation in earlier
 suit although the appellant had the right to recover possession from
 the respondent to the extent of l acre 21 gunthas in accordance with C
 law, the appellant herein did not take any steps to sue for possession
 till 8.5.1984. Consequently, the appellant was not entitled to the benefit
 of Section 14 of the Act, in the present suit. (431-A-C)

       CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5864 of D
  1999.

      From the Judgment and Order dated 27.5.97 of the Kamataka High
 Court in R.F.A. No. 412 of 1988.

      P.R. Ramasesh and Ms. Vandana Jalan for the Appellants.                E
      G.V. Chandrashekhar and P.P. Singh for the Respondents.

      The Judgment of the Court was delivered by
                                                                             F
       KAPADIA, J. : Being aggrieved by, the judgment and order dated
 27th May, 1997 passed by the High Court ofKarnataka in R.F.A. No. 412
 of 1988, the original plaintiff has come to this Court by this appeal. By
 the impugned judgment, the High Court has dismissed the suit filed by the
 plaintiff.
                                                                             G
      The short question which arises for consideration in this appeal by
 special leave is - whether the plaintiff has proved that he was in
 possession of the suit land within 12-years of the date of the suit?

      The facts on which this appeal has arisen are as follows:              H
    428                SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A        One Bayyanna was owner of the suit land in Survey No. 1911
    admeasuring 3 acres 12 gunthas. The suit land was Inam land. Bayyanna
    sold the suit land to N. Narayana Reddy (since deceased) father of the .
    respondents herein, vide registered sale deed dated 4.11.1958. N. Narayana
    Reddy had instituted suit no. 357/60 in the Court of Principal Second
B   Munsiff, Bangalore for recovery of possession based on title and for
    permanent injunction against the appellant herein on the ground that the
    appellant was trying to interfere with his possession.

          The defence of the appellant herein in the above suit was that he had
    purchased the suit land on 27 .11.1959 from B. Bayyanna and that he was
C   in possession of the suit land. His further defence was that the suit land
    was Inam land and that he was registered as Khadim tenant by the Inam
    Abolition Authorities. By judgment and order dated 7.4.1971, the Principal
    Munsiff, Bangalore partly decreed the suit filed by N. Narayana Reddy
    holding him to be the owner of only I acre 21 gunthas and not of the entire
D   land admeasuring 3 acres 12 gunthas. However, he was found to be in
    possession of the entire 3 acres 12 gunthas and, therefore, the Principal
    Munisff granted permanent injunction in favour of N. Narayana Reddy
    restraining the appellant herein from interfering with the possession ofN.
    Narayana Reddy on the entire suit land admeasuring 3 acres 12 gunthas
E   with liberty to the appellant herein to take steps to recover possession of
     I acres 21 gunthas out of the total area of3 acres 12 gunthas by following
    due process of law. By the aforestated judgment, the Principal Munsiff,
    Bangalore came to the conclusion that N. Narayana Reddy was in
    possession of the entire area admeasuring 3 acres 12 gunthas; that the entire
F   area was Inam lands and since an area admeasuring 1 acre 21 gunthas out
    of total area admeasuring 3 aqes 12 gunthas was regranted by the Deputy
    Commissioner to the appellant herein, N. Narayana Reddy was not the
    owner of the entire area admeasuring 3 acres 12 gunthas.

          Being aggrieved by the judgment and order dated 7.4.1971, N.
G Narayana Reddy preferred Regular Appeal No. 45 of 1971. The First
    Appellate Court dismissed the said Regular Appeal vide judgment dated
    13.1.1975. Thereafter, N. Narayana Reddy filed Regular Second Appeal
    No. 801 of 1975 in the High Court of Karantaka, which came to be
    dismissed on 24.11.1982. Consequently, the judgment and decree passed
H   in suit no. 357/60 dated 7.4.1971 reached finality on 24.11.1982.
               RAMIAH v. N.N. REDDY [KAPADIA, J.]                      429

      On 8.5.1984, the appellant herein filed the present suit no. 1518 of A
1984 i.e. withir. two years from the date of the decision of the High Court
dated 24.11.1982 in RSA No. 801175 filed by N. Narayana Reddy, for
possession of land admeasuring I acre 21 gunthas. The said suit was
instituted in the Court of Additional City Civil Judge, Bangalore (herein-
after for the sake of brevity referred to as "the trial Court"). In the said B
suit, it was held that the appellant herein admittedly stood ousted in 1971
and, therefore, the said suit was barred by limitation as it was filed after
13 years from dispossession. Consequently, the trial Court dismissed the
suit.

      Being aggrieved, the appellant herein preferred Regular First Appeal C
No. 412 of 1988 under Section 96 of CPC in the High Court of Kamataka.
By the impugned judgment, the High Court confirmed the dismissal of the
suit by the trial Court by holding that the present suit has been filed much
beyond 12 years. By the impugned judgment, the High Court rejected the
contention advanced on behalf of the appellant that the period of limitation D
commenced only after the decision of the High Court ofKarantaka in RSA
No. 801/75, filed by N. Narayana Reddy, decided on 24.11.1982. Hence,
this civil appeal.

      Mr. P. R. Ramasesh, learned counsel appearing on behalf of the E
appellant contended that the plaintiff had instituted the suit for possession
based on title and not on the basis of previous possession and, therefore,
under article 65 of the Limitation Act, 1963 the suit was well within the
time as the limitation of 12-years commenced from the date when the
possession of the defendant became adverse to the plaintiff. He contended F
that article 64 was not applicable to the facts of the present case as the suit
instituted by the appellant for possession of immovable property was based
on title and not on the basis of previous possession. It was further urged
that the appellant was entitled to the benefit of section 14 of the Limitation
Act, 1963, as the earlier litigation instituted by N. Narayana Reddy came
to an end only on 24.11.1982 when the High Court in RSA No. 801/75 G
confirmed the decree dated 7.4.1971 passed by the Principal Munsiff in
suit no. 357160.

      We do not find any merit in the aforestated arguments. Article 64
of the Limitation Act, 1963 (Article 142 of the Limitation Act, 1908) is H
    430                SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A restricted to suits for possession on dispossession or discontinuance of
  possession. In order to bring a suit within the purview of that article, it
  must be shown that the suit is in terms as well as in substance based on
  the allegation of the plaintiff having been in possession and having
  subsequently lost the possession either by dispossession or by discontinu-
B ance. Article 65 of the Limitation Act, 1963 (Article 144 of the Limitation
  Act, 1908) on the other hand is a residuary article applying to suits for
  possession not otherwise provided for. Suits based on plaintiffs' title in
  which there is no allegation of prior possession and subsequent disposses-
  sion alone can fall within article 65. The question whether the article of
C limitation applicable to a particular suit is article 64 or article 65 has to
  be decided by reference to pleadings. The plaintiff cannot invoke article
  65 by suppressing material facts. In the present case, in suit no. 357160
   instituted by N. Narayana Reddy in the Court of Principal Munsiff,
   Bangalore, evidence of the appellant herein was recorded. In that suit, as
   stated above, the appellant was the defendant. In his evidence, appellant
D had admitted that he was in possession of the suit property up to 1971. This
   admission of the appellant in that suit indicates ouster from possession of
   the appellant herein. In the present suit instituted by the appellant, he has
   glossed over this fact. In the circumstances, both the Courts below were
   right in coming to the conclusion that the present suit was barred by
E limitation. The appellant was ousted in 1971. The appellant had instituted
   the present suit only on 8.5.1984. Consequently, the suit has been rightly
   dismissed by both the Courts below as barred by limitation.

          In the case of Ram Surat Singh & others v. Badri Narain Singh
F reported in AIR ( 1927) Allahabad 799, it has been held that if the suit is
    for possession by a plaintiff who says that while he was in possession of
    the property he was dispossessed, then he must show possession within 12-
    years under article 142 (now article 64) of the Limitation Act. To the same
    effect is the ratio of the judgment in the case of Mohammad Mahmud v.
    Muhammad Afaq & Others reported in AIR (1934) Oudh 21. In the
G   commentary on the Limitation Act by Sanjiva Row, [Ninth Edition Ilnd
    Volume page 549] it has been stated that the question as to which of the
    two articles would apply to a particular case should be decided by reference
    to pleadings, though the plaintiff cannot be allowed by skilful pleading to
    avoid the inconvenient article. On facts of the case, we find that the article
H   64 is applicable to the present suit. Consequently, the suit has been rightly
                RAMIAH v. N.N. REDDY (KAPADIA, J.]                        431

 dism:ssed by both the Courts below.                                             A
        Jn the present case, on the facts of this case as stated above, section
  14 of the Limitation Act, 1963 cannot be invoked by the appellant as the
  appellant herein had never challenged the findings on possession recorded
  by the Principal Munsiffvide decree dated 7.4.1971. In the present case, B
  earlier suit no. 357160 was filed by the said N. Narayana Reddy, which was
. partly decreed and, therefore, he preferred Regular Appeal No. 45/71
  which was dismissed by the First Appellate Court on 13. J.1975. Thereafter,
  N. Narayana Reddy filed RSA No. 801/75 which was dismissed by the
  High Court on 24.11.1982. All throughout this period, although the C
  appellant had the right to recover possession from N. Narayana Reddy to
  the extent of I acre 21 gunthas in accordance with law, the appellant herein
  did not take any steps to sue for possession till 8.5.1984. Consequently,
  the appellant was not entitled to the benefit of section 14 of the Limitation
  Act, 1963.
                                                                                 D
      For the foregoing reasons, we do not find any merit in this civil appeal
 and the same is accordingly dismissed, with no order as to costs.

 K.K.T.                                                   Appeal dismissed.