2017 (4) TMI 1443 - SC - Indian Laws

Partition of ancestral property - suit barred by limitation or not - absolute owner or not - HELD THAT - In the instant case possession never became adverse to the Plaintiffs. There is concurrent finding recorded that the Plaintiffs were in joint possession of the disputed land on the date of filing of the suit. The Defendants have taken the plea of ouster and the suit has been filed beyond 12 years of death of Shakuntalabai but they have not been able to prove their adverse possession. On the contrary the finding is that Chimasaheb admitted the title of Anandibai. The finding is that till 1976, Chimasaheb never denied the title of Anandibai - As adverse possession has not been concurrently found by the three courts and in this case the starting point of limitation would not be the date of death of Shakuntalabai in the year 1962 as she was full owner, as such suit could not be said to be barred by limitation. Suit being barred by Order II Rule 2 of the Code of Civil Procedure or not? - HELD THAT - The cause of action of the suit in the present case for partition is different and dispute as to mutation had been subsequently decided. Thus, the suit for partition as filed, could not be said to be barred by Order II Rule 2 Code of Civil Procedure. The Defendants were trying to sell the property in the year 1979 as such the Plaintiffs in the suit prayed for partition and separate possession. Plaintiffs could not have claimed interest in the land in the life-time of Anandibai and the cause of action in the previous suit for declaration of title filed by Anandibai was materially different. In the instant case it cannot be said that the second suit for partition was in respect of the same cause of action as that on which the previous suit was based. In respect of the cause of action of the previous suit Plaintiff was not entitled to more than one relief. Hence, it could not be said that the Plaintiff has omitted to sue for relief for which second suit has been filed. Suit for partition with respect to joint property is based on continuing cause of action, as such the suit for partition could not be said to be barred by Order II Rule 2 Code of Civil Procedure. Submission to the contrary is too tenuous to be accepted. Appeal dismissed - decided against appellant.

Summary

Issues Involved:
1. Limitation under Article 65(b) of the Limitation Act, 1963.
2. Bar under Order II Rule 2 of the Code of Civil Procedure.

Detailed Analysis:

Limitation under Article 65(b) of the Limitation Act, 1963:
The Appellants contended that the suit was barred by limitation under Article 65(b) of the Limitation Act, 1963, as Anandibai became entitled to the property upon the death of Shakuntalabai in 1962. They argued that the possession of Chimasaheb became adverse from that date, making the suit filed in 1979 beyond the 12-year limitation period. However, the Court rejected this argument, stating that Explanation (b) to Article 65 applies only when the property is claimed independently of the rights of a Hindu or Mohammedan female. In this case, Shakuntalabai was the full owner of the property, and Anandibai inherited the property through her. Therefore, the limitation period did not commence upon Shakuntalabai's death. The Court cited several precedents, including Hashmat Begam and Anr. v. Mazhar Husain and Ors. (1888) ILR 10 All. 343 and Ranbir Singh and Ors. v. Kartar Singh and Ors. AIR 2003 SC 1858, to support its decision that the suit was not barred by limitation.

Bar under Order II Rule 2 of the Code of Civil Procedure:
The Appellants also argued that the suit was barred by Order II Rule 2 of the Code of Civil Procedure because the property in question was not included in the previous suit filed by Anandibai in 1963. The Court found that the earlier suit was based on a different cause of action, specifically a deed from 1957, whereas the current suit was based on the death of Shakuntalabai in 1962 and subsequent inheritance by Anandibai. The Court noted that the cause of action in the previous suit for declaration of title was materially different from the current suit for partition. The Court referenced State of M.P. v. State of Maharashtra (1977) 2 SCC 288 and Bengal Waterproof Ltd. v. Bombay Waterproof Mfg. Co. (1997) 1 SCC 99 to emphasize that Order II Rule 2 does not apply when the causes of action are different.

Conclusion:
The Court concluded that the suit was neither barred by limitation under Article 65(b) of the Limitation Act, 1963, nor by Order II Rule 2 of the Code of Civil Procedure. The appeal was dismissed with costs of ?25,000 to be paid by the Appellants to the Supreme Court Bar Association Welfare Trust within two months.