Holding

The respondents rightly claimed title by inheritance; the gift deed was effective only during the widow’s life, and the suit was not barred by limitation as no adverse possession was pleaded.

Summary

The appellant, Saroop Singh, claimed ownership of suit properties that had been gifted to him by the widow, Indira Devi, who possessed only a life interest under the Hindu Succession Act, 1956. The respondents, Banto and others, were reversioners who sued for possession, asserting that the widow's gift did not affect their reversionary rights and that the earlier civil decree declaring their title had become final. The trial court held the respondents were owners and that the suit was not barred by limitation because the appellant had not pleaded adverse possession. The High Court affirmed this, relying on Entry 2(b) of the Punjab Limitation (Custom) Act, 1920. On appeal, the Supreme Court held that the gift deed was valid only during the widow’s lifetime, the respondents correctly inherited the property after her death, Entry 2(b) was inapplicable, and the limitation provisions did not apply as no adverse possession was pleaded. Consequently, the appeal was dismissed.

Issues considered

The validity and effect of the widow's gift deed on reversionary rights
Whether the suit for possession is barred by limitation under the Limitation Act, 1963 or the Punjab Limitation (Custom) Act, 1920
The applicability of the presumption of death under Sections 107 and 108 of the Evidence Act to fix the date of death
The effect of the earlier civil decree on the parties' titles

Legislation cited

Hindu Succession Act, 1956s. Section 8
Indian Evidence Act, 1872s. Section 107, s. Section 108
Limitation Act, 1963s. Article 64, s. Article 65, s. Section 3
Punjab Limitation (Custom) Act, 1920s. Entry 2(b)

Subjects

gift deedreversionary rightsinheritancelimitationadverse possessionpresumption of deathHindu Succession Actcustomary lawpossession suit

Judgment

SAROOP SINGH A
v.
BANTO AND ORS.

OCTOBER 7, 2005

[S.B. SINHA AND R.V. RA VEENDRAN, JJ.] B

Hindu Succession Act, 1956-Section 8-Punjab Limitation (Custom)
Act, 1920-Entry 2(b) to the Schedule-Widow, on inheriting suit properties
of her husband, gifted the same to appellant by a gift deed-Civil Court, in C
the suit filed by reversioners, holding that the gift by the widow would not
affect reversionary rights-Presuming the death of the widow on ground that
~he was not heard of for more than 7 years, reversioners.filing a suit for
possession and permanent injunction for restraining the appellant from
·alienating the suit properties-Appellant contesting the suit on the ground
that the gift deed in his favour was valid; and that the suit is barred by D
limitation-Trial Court allowing the suit-First and second appeals of the
appellant before appellate court and High Court were dismissed-Correctness
of-Held, the reversioners rightly claimed title to suit properties by inheritance
since judgment and decree passed by Civil Court in earlier suit has attained
finality and thus the limitation under the customary law has no applicability.
E
Limitation Act, 1963-Section 3 and Article 65-Held, since the appellant
have not raised any plea of adverse possession, the suit for possession by the
reversioners on the basis of inheritance is not barred by limitation.

Evidence Act, 1872-Sections 107 and 108-'-Held, the presumption of
death of the widow not having been heard for 7 years and above is not a F
ground to presume that the widow died seven years ago prior to the institution
of the suit.

A widow, who inherited suit properties on the death of the original
owner, gifted them to appellant by a gift deed prior to 1956. Reversion'ers G
filed a suit before a trial court challenging the legality of the gift deed
contending that the widow had only a limited life interest in the suit
properties. The Civil Court decreed the suit holding that the gift deed will
not affect the reversionary rights after the death of the widow.

253 H
254 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A Plaintiff-respondents, who are reversioners, filed a suit before trial
court for possession and permanent injunction for restraining the
appellant-defendant from alienating the suit properties on the basis of the
reversionary rights granted by the Civil Court in the earlier suit. The
respondents filed the suit presuming the death of the widow on the ground
that she was not heard of for 7 years prior thereto by them and by others.
B The appellant contested the suit contending that the widow was the
absolute owner of the suit properties and that she made a valid gift in his
favour through a gift deed. The appellant further pleaded that the suit
was time-barred. The trial court decreed the suit holding that the
respondents are the owners of the suit properties on the basis of the
C declaratory decree of the Civil Court in the earlier suit; that since there
was no cogent evidence of the date 11f the death of the widow, she was
presumed to have died for more than 7 years in terms of section 108 of
the evidence Act, 1872; a11d that since the appellant never pleaded to have
become owner by way of adverse possession, the suit of the respondents
for possession on the basis of inheritance is not barred by limitation under
D Article 65 of the Limitation Act, 1963. The first appeal preferred by the
appellant was dismissed. The High Court dismissed the Second Appeal
preferred by the appellant affirming the findings of the courts below and
by relying on Entry 2(b) of the Schedule appended to the Punjab
Limitation (Custom) Act, 1920.
E
In appeal to this Court, the appellant contended that the date of
death of the widow cannot by fixed by applying sections 107 and 108 of
the Evidence Act, 1872; that since the widow gifted the property to him
before the coming into force of the Hindu Succession Act 1956, she did
not become the absolute owner under the Act and hence the courts belQw
F have erred in holding that the suit of the respondents is not barred by
limitation under Article 65 of the Limitation Act, 1963; and that it was
for the respondents to prove the date of death of the widow.

The respondents contended that on the death of the widow, the
succession reopened in view of the declaratory decree of the Civil Court;
G and that since the appellant has not set up any plea of adverse possession,
the suit cannot be held to be barred by limitation and hence Article 65 of
the Limitation Act, 1963 does not apply.

Dismissing the appeal, the Court

H
SAROOP SINGH v. BANTO 255
HELD: I.I. The judgment and decree passed by the Civil Court in A
the earlier suit has attained finality. The deed of gift is valid only so long
as the widow is alive. The widow had only a life interest. On her death,
the succession reopened having regard to the provisions of the Hindu
Succession Act, 1956. The respondents, being daughters, inherited the
interest of the original owner. They were also reversioners in terms of their B
personal law as was opined by the Civil Court in the earlier suit. The
respondents, therefore, rightly claimed their title by inheritance.
(259-H; 260-C)

1.2. Entry 2(b) of the Punjab Limitation (Custom) Act, 1920 has no
application herein as the title of the suit property in favour of the C
respondents had already been declared by the Civil Court in the earlier
suit, subject to the condition that they remain owners thereof. The Civil
Court took into consideration the customary law and the provisions of the
Hindu Succession Act while arriving at the said finding. In the suit, it was
not necessary for the respondents to claim their reversionary right as the
same had already been declared in the earlier suit. The respondents have D
a better title. They were not parties in the earlier suit. They, therefor~
claimed their title independent of the declaratory decree.
(260-D, E, F; 261-E)

Giani Ram v. Ramji/al, [1969) 1 SCC 813 and Shankuntla Devi v. Kam/a
and Ors., (2005) 5 sec 390, referred to. E
1.3. Both the parties have failed to prove the date of death of the
widow. Having regard to the presumption contained in Section 108 of the
Evidence Act, 1872, the Court shall presume that she was dead having
not heard of for a period of seven years by those who would naturally
have heard of her, it she had been alive. But that by itself would not be a F
ground to presume that she had died seven years prior to the date
institution of the suit. [262-B, CJ

Lal Chand Marwari v. Mahant Ramrups Girand Anr., AIR (1926) PC
9 and LIC of India v. Anuradha, (2004) 10 SCC 131, referred to.
G
1.4. The question of applicability of the Limitation Act, 1963 does
not arise. The respondents have proved their title. It was for the appellant
to prove the acquisition of title by adverse possession. Since the appellant
did not raise any plea of adverse possession, the suit was not time barred.
Since the appellant categorically states that his possession is not adverse
as that of true owner, the logical corollary is that he did not have the H
256 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A requisite ammus. (263-E, Fl
Vasantiben Prahladji Nayak and Ors. v. Somnath Muljibhai Nayak and
Ors., (2004( 3 SCC 376; Md. Mohammad Ali (Dead) By LRs. v. Jagdish Kalita
and Ors., (2004( 1 SCC 271 and Karnataka Board of Wakf v. Government of
India and Ors., (2004( 10 SCC 779, referred to.
B
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4426of1999.

From the Judgment and Order dated 24.8.98 of the Punjab and Haryana
High Court in R.S.A. No. 1 of 1998.

C P.L. Jain and Balbir Singh Gupta for the Appellant.
P.N. Mishra,.. K.P. Singh, Dr. H.P. Rathi, K.S. Rana, M.M. Kashyap,
Shalman Ali and Hirender Chaudhary for the Respondents.

The Judgment of the Court was delivered by
' '-'~
..
D
S.B. SINHA, J. The first defendant in the suit is in appeal before us.
The plaintiff-respondents filed a suit for possession and permanent. injunction,
being Suit No.218 of 1994. ·
·•.
One Shadi admittedly was the owner of the suit property. He left behind
E his widow, Indira Devi, who inherited the same. On or about 7.1.195~, by a
deed of gift Indira Devi donated the suit property in favour of the Appellant
herein. One Hamama son of Jatti and Nathu son of Chetu (as reversioners of
said Shadi) filed a suit being Suit No.204 of 1957 challenging the legality of
the said deed of gift, contending that said Indira Devi had a limited life
interest therein.
F
In terms of a judgment and decree dated 31.1.1958, the said suit was
decreed. The said Indira Devi is stated to have died subsequently. Her date
of death is not known. The Appellant-First Respondent contended that she
died at Haridwar in the year !'961. While filing the aforementioned suit on
G 7.7.1994, the Respondents raised a plea that as she was not heard for a period
of seven years prior thereto, by them and by others who would have heard
from her had she been alive, she was presumed to have been died .

The plaintiffs-Respondents, as regard the earlier suit, averred :

"One Hamama son of Jatti and one Nathu son of Chetu challenged
H
SAROOP SINGH v. BANTO [SINHA, J.] 257
the gift deed mentioned above in the year 1957 through a suit No.204 A
and sought declaration to the effect that the gift deed in dispute shall
not effect their reversionary rights after the death of lnder Devi and
their suit was decreed on 31.1.58 by Sub-Judge, 1st Class, Ambala.
However, at the same time it was observed by the Ld. Sub-Judge, that
declaratory decree will ensue for the benefit of daughters of Shadi B
deceased. Apart from it under the customary law of Punjab Smt.
Inder Devi was not absolute owner on 7.1.1955 i.e. the day of gift of
the suit properties, rather on the other hand she was only having life
interest in the suit properties and could not gift away the same to
defendant No. I as Smt. Inder Devi had already parted with the suit
properties in favour of defendant No. I and could not become absolute C
owner with the passing of Hindu Succession Act, 1956, rather her life
interest continued through in the hand of defendant No. I."

In the said suit, the plaintiff-respondents prayed :

"It is, therefore, prayed that the suit of the plaintiffs for possession D ,
as owner of the land comprised in Kh/kh. No.285/356, Khasra Nos.
194(8-4), 195(5-7), 2124(6-18), 1854(1-2), 1859(4-7), 1856(4-7),
851 (4-3 ), 850/2(0-8), 1621 (0-15), and for symbolical possession as
owner of the land comprised in kh/kh No.285/337, Khasra Nos.849(1-
10), 850(3-7), situated within the revenue limits of village Mullanpur
Garib Dass and of 1/6 share ofkh. No.2078(3-7) and of 116 share out E
of Bara bounded as ...........and for permanent injunction restraining
the defendant No. I from alienating the suit properties to anybody
may kindly be decreed in favour of the plaintiff against the defendants
with costs.

Any other relief this Ld: Court deeds fit may kindly be granted to F
the plaintiff in the interest of justice."

The statements made in paragraph I was traversed by the Appellant
herein in paragraph 3 of the written statement, contending :

"It is incorrect and denied. Smt. lnder Devi who had been absolute G
owner of the suit properties and she made a valid gift in favour of the
answering defendant."

,. A plea that the suit is time-barred was also raised as an additional plea.

The learned Trial Judge in view of the pleadings of the parties, inter H
258 SUPREME COURT REPORTS [2005) SUPP. 4 S.C.R.

A alia, framed the following issues :
"3. What is the effect of the judgment and decree dated 31.1.1958?
OPP. Parties.

4. Whether Smt. Inder Devi has not been heard for the last 7/7'h.
years back by plaintiff and other family members and is presumed
B to be dead ? OPP.

5. Whether plaintiffs are entitled to possession of the suit land.
OPP.
6. Whether suit is time barred ? OPP."
c ,While dealing with Issue No.3, the Trial Court noticed that in the
judgment and decree passed in Suit No.204 of 1957, which was marked as
Ex.P3 and Ex.P4, it was observed that the declaratory decree would ensue the
benefit of the daughters of Shadi, who were the plaintiffs therein, and on that
basis decided the said issue in favour of the plaintiff-respondents.
D
As regard Issue No.4, it while holding that there was n.o cogent evidence
proving the death of Indira Devi in the year 1961 recorded a finding that she
was presumed to have died on account of her untraceability for more th~n 7
years in terms of Section 108 of the Indian Evidence Act. As regard Issue
Nos.5 and 6, the Trial Court held :
E
" ........ The defendant has nowhere pleaded that he became the owner
of the suit land by way of adverse possession. No amount of evidence
can be taken into account by travelling beyond the pleadings of the
parties. The defendant has neither pleaded nor set up any adverse
possession over the suit property. No period of limitation is prescribed
F for bringing a suit for possession on the basis of inheritance. The suit
for possession on the basis of inheritance can fail if defendant proves
that he has perfected his title by way of adverse possession. In the
instant case, the defendants have not set up any adverse possession
and consequently the suit is within time under Article 65 of the
G Limitation Act, 1963"

The appeal preferred thereagainst by the Appellant was dismissed. In
the Second Appeal filed before the High Court, the Appellant, inter a/ia,
raised the question of limitation. The High Court relying on or on the basis
of Entry 2(b) of the schedule appended to the Punjab Limitation (Customs)
H Act, 1920, affirming the findings of the courts below that the Appellant could
SAROOP SINGH v. BANTO [SINHA, J.] 259
not prove the date of death of Indira Devi, held that the suit is not barred by A
limitation stating :

" ....... Since the defendant-appellant failed to prove the death of Indira
Devi, it cannot be said that the suit filed by the plaintiffs is barred by
time. In fact the suit filed is basing on the acquisition of title on the
death of Indira Devi. Thus the suit is based on title as it cannot be B
disputed that the plaintiffs became entitled to the suit ·property on the
death of their mother. It is for the defendant-appellant to prove that
he has perfected in his title being in adverse possession for over 12
years from the date of death of Indira Devi and that the plaintiffs lost
their right to sue by efflux of time. Under Article 65 of the Limitation C
Act, the burden of proof that he perfected his title by adverse
possession is on the defendant-appellant."

Mr. P.L. Jain, the learned Senior Counsel appearing on behalf of the
Appellant herein, would contend that the courts below committed a manifest
error of law insofar as they failed to properly interpret the provisions of D
Sections 107 and 108 of the Indian Evidence Act; as by reason thereof a date
of death cannot be fixed. It was urged that Indira Devi did not become an
absolute owner in terms of the provisions of the Hindu Succession Act, 1956
as she was not possessed of the property on the date of coming into force
thereof and in that view of the matter the courts below had committed a
serious error in passing the impugned judgments relying on or on the basis E
of Article 65 of the Limitation Act, 1963. Reliance, in this connection, has
been placed on Giasi Ram and Ors. v. Ramjila/ and Ors., [(1969) I SCC
813]

It was submitted that it was for the plaintiff-Respondents to prove the F
date of death of Indira Devi as they have not filed a suit based on title.

Mr. P.N. Mishra, the learned Senior Counsel appearing on behalf of
the plaintiff-respondents, on the other hand, would contend that on the death
of Indira Devi, the succession reopened in view of the declaratory decree
passed by the Civil Court. It was argued that having regard to the fact that G
the Appellant having not set up any plea of adverse possession, the suit
cannot be held to be barred by limitation and in that view of the matter
Article 65 of the Limitation Act, 1963 will have no application.

It has not been disputed before us that the judgment and decree passed
in Suit No.204 of 1957 had attained finality. In the said suit, it was held : H
260 SUPREME COURT REPORTS (2005] SUPP. 4 S.C.R.

A " ...... In the present case the declaratory decree will ensue for the
benefit of the daughters of Shadi deceased and the daughters' sons
who are minors. In the circumstances. I would in exercise of my
discretion, grant the plaintiffs a decree for a declaration to the effect
that the gift in dispute shall not affect their reversionary rights after
the death of defendant no. I. The parties are, however, left to bear
B their own costs"

It is furthermore not in dispute that Indira Devi had only a life interest.
The deed of gift dated 7.1.1955 was, therefore, held to be valid only so long
as she was alive. On her death the succession reopened having regard to the
C provisions of the Hindu Succession Act, 1956. The Respondents being
daughters inherited the interest of Shadi. They were also reversioners in
terms of their personal law as was opined by the Civil Court in the earlier
suit. The plaintiff-respondents, therefore, rightly claimed their title by
inheritance .....

D Entry 2(b) of the Punjab Limitation (Customs) Act, 1920 provides for
a limitation of three years, when a suit is filed for possession of ancestral
immovable property which has been alienated on the ground that the alienation
is not binding on the plaintiff according to custom. The said provision has
no application herein as the title of the suit property in favour of the
Respondents herein had already been declared by the Civil Court in the
E earlier suit, subject to the condition that they remain owners thereof. The
Civil Court took into consideration the customary law as also the provisions
of the Hindu Succession Act while arriving at the said finding. Moreover, a
declaratory decree obtained by a reversioner is not binding upon actual owner,
in view of the decision of this Court in Shankuntla Devi v. Kam/a and Ors.,
p 12005] 5 sec 390.

Jn the suit, it was not necessary for the Respondents herein to claim
their reversionary right, as the same had already been declared in the earlier
suit.

G This Court 'in Giasi Ram (supra) held :

"The Punjab Custom (Power to Contest) Act 1 of 1920 was enacted
to restrict the rights exercisable by members of the family to contest
alienations made by a holder of ancestral property. By virtue of Section
6 of the Act no person is entitled to contest an alienation of ancestral .·
H immovable property unless he is descended in the male line from the
SAROOP SINGH v_ BANTO [SINHA. J.] 261
great-great-grandfather of the alienor. Under the customary law in A
force in the Punjab a declaratory decree obtained by the reversionary
heir in an action to set aside the alienation of ancestral property
enured in favour of all persons who ultimately took the estate on the
death of the alienor for the object of a declaratory suit filed by a
reversionary heir impeaching an alienation of ancestral _estate was to B
remove a common apprehended injury, in the interest of the
reversioners. The decree did not make the alienation a nullity-it
removed the obstacle to the right of the reversioner entitled to succeed
when the succession opened. By the decree passed in Suit No. 75 of
1920, filed by Giani Ram it was declared that the alienations by
Jwala were not binding after his life time, and the property will revert C
to his estate. It is true that under the customary law the wife and the
daughters of a holder of ancestral property could not sue to obtain a
declaration that the alienation of ancestral property will not bind the
reversioners after the death of the alienor: But a\ declaratory decree
obtained in a suit instituted by a reversioner competent to sue has the
effect of restoring the property alienated to the estate of the alienor." D

In this case, the Respondents herein have a better title. They were,.not
parties in the earlier suit. They, therefore, claimed their title independent of
the declaratory decree, although such. right has been noticed therein. We
would consider the question of applicability of Limitation Act little later but E
before doing that we may consider the question of date of death of Indira
Devi.

Sections I 07 and !08 of the Indian Evidence Act read :

"107. Burden of proving death of person known to have been
alive within thirty years.- When the question is whether a man is F
alive or dead, and it is shown that he was alive within thirty years,
the burden of proving that he is dead is on the person who affirms
it.

I08. Burden of proving that person is alive who has not been G
heard of for seven years.-Provided that when the question is whether
a man is alive or dead, and it is proved that he has not been heard
of for seven years by those who would naturally have heard of him
if he had been alive, the burden of proving that he is alive is shifted

- to the person who affirms it."
H
262 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A Section I08 is a proviso to Section I07.

There is neither any doubt or dispute that the date of death of Indira
Devi is not certain. By reason of the aforementioned provision, a presumption
of death can be raised. In this case, however, death of Indira Devi is not in
question, the date of death is. In the instant case, both the parties have failed
B to prove the date of death of Indira Devi. However, having regard to the
presumption contained in Section I08 of the Indian Evidence Act, the Court
shall presume that she was dead having not heard of for a period of seven
years by those. who would naturally have heard of him, if he had been alive,
but that by itself would not be a ground to presume that she had died seven
C years prior to the date of institution of the suit

In Lal Chand Marwari v. Mahant Ramrups Girand Anr., AIR (1926)
PC 9), it was observed :

"Now upon this question there is, their Lordships are satisfied, no
difference between the law of India as declared in the Evidence Act
D
and the Law of England (Rango Balaji v. Mudiyeppa (1899) 23 Born.
296) and searching for an explanation of this very persistent heresy,
their Lordships find it in the words in which the rule both in India
and in England is usually expressed. These words taken originally
from In re Phene's Trusts (L.R. 5 Ch.139) follows :-
E
"If a person has not been heard of for seven years, there is a
presumption of law that he is dead; but at what time within that
period he died is not a matter of presumption but of evidence, and the
onus of proving that the death took place at any particular time within
the seven years lies. upon the person who claims a right to the
F establishment of which that fact is essential."

Following these words, it is constantly assumed-not perhaps
unnaturally that where the period of disappearance exceeds seven
years, death, which may not so. The presumption is the same if the
period exceeds seven years. The period is one and continuous, though
G it may be divisible into three or even four periods of seven years.
Probably the true rule would be less liable to be missed, and would
itself be stated more accurately, if, instead of speaking of a person
who had not been heard of for seven years, it described the period of .~.

H
disappearance as one of not less than seven years."

-
SAROOP SINGH v. BANTO [SINHA, J.] 263
In LIC of India v. Anuradha. [2004) 10 SCC 131, this Court held: A
"12. Neither Section 108 of the Evidence Act nor logic, reason or
sense permit a presumption or assumption being drawn or made that
the person not heard of for seven years was dead on the date of his
disappearance or soon after the date and time on which he was last
seen. The only inference permissible to be drawn and based on the B
presumption is that the man was dead at the time when the question
arose subject to a period of seven years absence and being unheard
of having elapsed before that time. The presumption stands unrebutted
'} for failure of the contesting party to prove that such man was alive
either on the date on which the dispute arose or at any time before C
that so as to break the period of seven years counted backwards from
the date on which the question arose for determination. At what point
of time the person was dead is not a matter of presumption but of
evidence, factual or circumstantial, and the onus of proving ~at the
death had taken place at any given point of time or date since the
disappearance or within the period of seven years lies on the person D
who stakes the claim, the establishment of which will depend on
proof of the date or time of death."

However, the date of death of Indira Devi would not assume any
significance, as would appear from the discussions made hereinafter.
E
In the instant case, the question of applicability of the Limitation Act
does not arise. The Appellant-first defendant could have legitimately raised
a plea that Indira Devi having died in the year 1961, his possession thereafter
has become adverse to the true owner and, thus, on the expiry of the statutory
period of limitation he had perfected his title by adverse possession. But, he F
did not raise such a. plea. Even before us, Mr. Jain categorically stated that
the Appellant does not intend to raise such a plea.

Articles 64 and 65 of the Limitation Act read thus :
Description of suit Period of Time from which
Limitation period begins to G
run
64. For possession of Twelve years The date of
immovable property based dispossession
on previous possession
and not on title, when
H
the plaintiff while in
264 SUPREME COURT REPORTS [2005) SUPP. 4 S.C.R.

A possession of the
property has been
dispossessed .
65. For possession of Twelve years When the possession
immovable property or of the defendant
B any interest therein based becomes adverse to
on title. the plaintiff
Explanation.-For the purposes
of this article -
(a) where the suit is by a
remainderman, a
c reversioner (other than a
landlord) or a devisee the
possession of the
defendant shall be deemed
to become adverse only
D when the estate of the
remainderman, reversioner
or devisee, as the case may
bay, falls into possession;

(b) where the suit is by a -----------------------
E Hindu or Muslim entitled
to the possession of
immovable property on the
death of a Hindu or
Muslim female, the
F possession of the
defendant shall be deemed
to become adverse only
when the female adverse
only when the female dies;
,--, (c) where the suit is by a
J
purchaser at a sale in
execution of a decree when
the judgment-debtor was
out of possession at the
date of the sale, the
H purchaser shall be deemed
SAROOP SINGH v. BANTO (SINHA • .1.) 265
to be a representative of A
the judgment-debtor who
was out of possession.
The statutory provisions of the Limitation Act have undergone a change
when compared to the terms of Articles I42 and I 44 of the schedule appended
to the Limitation Act, 1908, in terms whereof it was imperative upon the B
plaintiff not only to prove his title but also to prove his possession within
twelve years, preceding the date of institution of the suit. However, a change
in legal position has been effected in view of Articles 64 and 65 of the
Limitation Act, 1963. In the instant case, plaintiff-respondents have proved
their title and, thus, it was for the first ·defendant to prove acquisition of title
by adverse possession. As noticed hereinbefore, the first defendant-Appellant C
did not raise any plea of adverse possession. In that view of the matter the
suit was not l:iaired.

In terms of Article 65 the starting point of limitation does not commence
from the date when the right of ownership arises to the plaintiff but commences D
from the date defendant's possession becomes adverse. [See Vasantiben
Prahladji Naycik and Ors. v. Somnath Muljibhai Nayak and Ors., (2004] 3
sec 376]
'Animus possidendi' is one of the ingredients of adverse possession.
Unless the person possessing the land has a requisite animus the period for E
prescription does not commence. As in the instant case, the Appellant
categorically states that his possession is not adverse as that of true owner,
the logical corollary is that he did not have the requisite animus. [See Md.
Mohammad Ali (Dead) By LRs. v. Jagdish Kalila and Ors., (2004] I SCC
271, para 21]
F
Yet again in Karna/aka Board of Wakf v. Government of India and
Ors., (2004] 10 SCC 779, it was observed :

"Physical fact of exclusive possession and the animus possidendi to
hold as owner in exclusion to the actual owner are the most important
factors that are to be accounted in cases of this nature. Plea of adverse G
possession is not a pure question of law but a blended one of fact and
law. Therefore, a person who claims adverse possession should show:
(a) on what date he came into possession, (b) what was the nature of
his possession, (c) whether the factum of possession was known to
the other party, (d) how long his possession has continued, and (e) H
266 SUPREME COURT REPORTS (2005] SUPP. 4 S.C.R.

A his possession was open and undisturbed. A person pleading adverse
possession has no· equities in his favour. Since he is trying to defeat
the rights of the true owner, it is for him to clearly plead and establish
all facts necessary to establish his adverse possession."

In view of our findings aforementioned, we are of the opinion that
B there is no merit in this appeal, which is accordingly dismissed. No costs.
B.S. Appeal dismissed.