C. Natrajan v. Ashim Bai, (SC) BS132725
SUPREME COURT OF INDIA

Before:- S.B. Sinha and Harjit Singh Bedi, JJ.

Civil Appeal No. 4803 of 2007 (Arising out of SLP(C) No. 18129 of 2006). D/d. 11.10.2007.

C. Natrajan - Appellant

Versus

Ashim Bai & Anr. - Respondents

For the Appellant :- K.K. Mani, R. Thiagarajan, C.K.R. Levin Sekar and Mayur R. Shah, Advocates.

For the Respondents :- K.S. Mahadevan, Rajesh Kumar and S. Krishna Kumar, Advocates.

A. Civil Procedure Code, Order 7 Rule 11(d) - Rejection of plaint - An application for rejection of the plaint can be filed if the allegations made in the plaint even if given face value and taken to be correct in their entirety appear to be barred by any law - The question as to whether a suit is barred by limitation or not would, therefore, depend upon the facts and circumstances of each case - For the said purpose, only the averments made in the plaint are relevant - At this stage, the court would not be entitled to consider the case of the defence. 2005(4) RCR (Civil) 334 (SC) relied.

[Para 7]

B. Limitation Act, 1963, Articles 64 and 65 - Adverse possession - If the plaintiff has filed the suit claiming title over the suit property in terms of Articles 64 and 65 of the Limitation Act, 1963, burden would be on the defendant to prove that he has acquired title by adverse possession. (2004)1 SCC 271 relied.

[Para 15]

C. Limitation Act, 1963, Articles 58 and 65 - Suit for declaration of title to property - Limitation is 3 years under Article 58 of Limitation Act - However, suit has been filed for possession, as a consequence of declaration of the plaintiff's title, Article 58 will have no application - If the plaintiff is to be granted a relief of recovery of possession, the suit could be filed within a period of 12 years -

[Paras 13 and 15]

Cases Referred :-

Propet and Kotecha property v. S.RI State Association, 15(4) CTC 489.

Popat and Kotecha Property v. State Bank of India Staff Association, 2005(4) RCR (Civil) 334 : [(2005)7 SCC 510].

Balasaria Construction (P) Ltd. v. Hanuman Seva Trust [(2006)5 SCC 658].

Md. Mohammad Ali (dead) by LRs. v. Jagdish Kalita [(2004)1 SCC 271].

P.T. Munichikkanna Reddy v. Revamma, 2007(2) RCR (Civil) 847 : 2007(2) R.A.J. 621 : (2007)6 SCC 59.

Binapani Paul v. Pratima Ghosh, 2007(2) RCR (Civil) 801 : 2007(3) R.A.J. 7 : (2007)6 SCC 100

Kamakshi Builders v. Ambedkar Educational Society, 2007(3) RCR (Civil) 222 : 2007(1) RCR (Rent) 627 : 2007(3) R.A.J. 219 : [ AIR 2007 Supreme Court 2191].

Bakhtiyar Hussai (dead) throuth LRs v. Hafiz Khan [CA Nos. 497- 498/01 D/. 24.09.2007].

Bishun Dayal v. Kesho Prasad, ( AIR 1940 Privy Council 202).

Prem Lala Nahata v. Chandi Prasad Sikaria, 2007(1) RCR (Civil) 870 : 2007(1) R.A.J. 588 : [(2007)2 SCC 551].

S.M. Karim v. Mst. Bibi Sakina [(1964)6 SCR 780].

N.V. Srinivasa Murthy v. Mariyamma, 2005(3) RCR (Civil) 414 .

JUDGMENT

S.B. Sinha, J. - Leave granted.

Appellant herein filed a suit against the respondents claiming, inter alia, for the following reliefs :

2. The said suit was filed in the year 2001. Cause of action of the said suit was said to have arisen in 1994 when the defendants allegedly trespassed over the suit property. Respondent on or about 8.8.2001 filed an application under Order 7 Rule 11(d) of the Civil Procedure Code praying for rejection of the plaint on the premise that the suit was barred by limitation, inter alia, stating :

3. I beg to submit that the averments are made knowing to be false. The following admitted facts would clearly establish the same.

3. In the counter affidavit filed on behalf of the petitioner, it was stated :

4. The learned Principal Subordinate Judge, Chengalpet, by reason of its judgment and order dated 31.3.2006 rejected the said application of the respondent, opining :

5. Respondent preferred a civil revision petition thereagainst. By reason of the impugned order, a Division Bench of the High Court reversed the said judgment of the Trial Court opining that the period of limitation, as per Article 58 of the Limitation Act, expired in 1997 itself, stating :

6. Order 7 Rule 11(d) of the Civil Procedure Code reads as under :

7. An application for rejection of the plaint can be filed if the allegations made in the plaint even if given face value and taken to be correct in their entirety appear to be barred by any law. The question as to whether a suit is barred by limitation or not would, therefore, depend upon the facts and circumstances of each case. For the said purpose, only the averments made in the plaint are relevant. At this stage, the court would not be entitled to consider the case of the defence. {See [Popat and Kotecha Property v. State Bank of India Staff Association, 2005(4) RCR (Civil) 334 : [(2005)7 SCC 510]}.

8. Applicability of one or the other provision of the Limitation Act per se cannot be decisive for the purpose of determining the question as to whether the suit is barred under one or the other article contained in the Schedule appended to the Limitation Act.

9. The question which was raised before the learned Trial Judge was different from the question raised before the High Court. Before the learned Trial Judge, as noticed hereinbefore, the provisions of the Limitation Act were brought in with reference to the identification of the property. It was not contended that the suit was barred by limitation in terms of Article 58 of the Limitation Act, 1963. The High Court, therefore, in our opinion, ex facie committed an error in arriving on the aforementioned finding. The scope of applicability of the Limitation Act vis-a-vis Order 7 Rule 11 of the Civil Procedure Code has been considered in some recent decisions of this Court to which we may advert to.

10. In Popat and Kotecha Property v. State Bank of India Staff Association [(2005)7 SCC 510], this Court, inter alia, opined :

It was further opined :

11. However, we may notice that another Division Bench of this Court, in Balasaria Construction (P) Ltd. v. Hanuman Seva Trust & Ors. [(2006)5 SCC 658], stated the law thus :

12. In the said decision, it may be placed on record, on the question as to whether Order 7 Rule 11(d) can be applied when a suit was filed on the premise that a suit is barred by limitation, this Court noticed :

13. If the plaintiff is to be granted a relief of recovery of possession, the suit could be filed within a period of 12 years. It is one thing to say that whether such a relief can be granted or not after the evidences are led by the parties but it is another thing to say that the plaint is to be rejected on the ground that the same is barred by any law. If the suit has been filed for possession, as a consequence of declaration of the plaintiff's title, Article 58 will have no application.

14. Learned counsel appearing on behalf of the respondent, however, placed strong reliance upon a decision of this Court in S.M. Karim v. Mst. Bibi Sakina [(1964)6 SCR 780] to contend that alternative plea cannot be considered for arriving at a conclusion that he has been dispossessed.

15. The law of limitation relating to the suit for possession has undergone a drastic change. In terms of Articles 142 and 144 of the Limitation Act, 1908, it was obligatory on the part of the plaintiff to aver and plead that he not only has title over the property but also has been in possession of the same for a period of more than 12 years. However, if the plaintiff has filed the suit claiming title over the suit property in terms of Articles 64 and 65 of the Limitation Act, 1963, burden would be on the defendant to prove that he has acquired title by adverse possession.

16. In Md. Mohammad Ali (dead) by LRs. v. Jagdish Kalita and Ors. [(2004)1 SCC 271], it was held :

{See also P.T. Munichikkanna Reddy & Ors. v. Revamma & Ors., 2007(2) RCR (Civil) 847 : 2007(2) R.A.J. 621 : [(2007)6 SCC 29]; Binapani Paul v. Pratima Ghosh & Ors., 2007(2) RCR (Civil) 801 : 2007(3) R.A.J. 7 : [(2007)6 SCC 100]; Kamakshi Builders v. Ambedkar Educational Society & Ors., 2007(3) RCR (Civil) 222 : 2007(1) RCR (Rent) 627 : 2007(3) R.A.J. 219 : [ AIR 2007 Supreme Court 2191] and Bakhtiyar Hussai (dead) throuth LRs v. Hafiz Khan & Ors. [CA Nos. 497-498/01 decided on 24.09.2007]}.

17. In S.M. Karim (supra), this Court was considering a question of Benami as also adverse possession. In the aforementioned context, it was opined :

{See also Prem Lala Nahata & Anr. v. Chandi Prasad Sikaria, 2007(1) RCR (Civil) 870 : 2007(1) R.A.J. 588 : [(2007)2 SCC 551]}.

Such a question does not arise for our consideration herein.

18. We have noticed hereinbefore that the defendant, inter alia, on the plea of identification of the suit land vis-a-vis the deeds of sale, under which the plaintiff has claimed his title, claimed possession. The defendant did not accept that the plaintiff was in possession. An issue in this behalf is, therefore, required to be framed and the said question is, therefore, required to be gone into. Limitation would not commence unless there has been a clear and unequivocal threat to the right claimed by the plaintiff. In a situation of this nature, in our opinion, the application under Order 7 Rule 11(d) was not maintainable. The contentions raised by the learned counsel for the respondent may have to be gone into at a proper stage. Lest it may prejudice the contention of one party or the other at the trial, we resist from making any observations at this stage.

19. For the reasons mentioned above, the impugned judgment cannot be sustained. The same is, therefore, set aside. The appeal is allowed with costs. Counsel's fee assessed at Rs. 25,000/- (twenty five thousand).

Appeal allowed.