PATEL NARANBHAI MARGHABHAI AND ORS. versus DECEASED DHULABHAI GALBABHAI AND ORS.

Citation: [1992] 3 S.C.R. 384 · Decided: 15-05-1992 · Supreme Court of India · Bench: N.M. KASLIWAL · Disposal: Dismissed

Judgment (excerpt)

A 
PATEL NARANBHAI MARGHABHAI AND ORS. 
v. 
DECEASED DHULABHAI GALBABHAI AND ORS. 
MAY 15, 1992 
B 
[N.M. KASLIWAL AND K. RAMASWAMY, JJ.) 
Bombay Agricultural Debtors Relief Act, 1947-Sections 32(2)(v), 
38(3), 51-A read with sections 27, 3, Schedule Limitation Act-Suit for 
recovery of possession of property-Limitation-Determination-Non-
C prescription of period of /imitation-Legislative intention of-whether Section 
27 applicable. 
D 
Constitution of India 1950-Arlic/e 136-Appeal under-Appreciation 
of evidence-Plea of auction-Purchase of hypothica, adverse posses-
sion-Proof of-Award of mesne profit by executing Court-Legality of. 
The predecessor of the respondents mortgaged the suit-lands to the 
predecessor of the appellants, under the provisions of the Bombay Agricul-
tural Debtors Relief Act, 1947. 
The mortgagor/debtor committed default in the payment. The 
E mortgagee initiated an execution to realise the debt due amount of Rs. 
3000/-, whereunder a compromise was effected. Pursuant to compromise, 
though the debt was discharged, the mortgagee continued in possession. 
F 
'Ille respondents, the legal representatives of the mortgagor laid 
execution for recovery of the possession of the hypothica. 
'.fhe appellants, the legal representatives of the mortgagee raised 
objections that the award was barred by limitation; that the mortgagee 
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perfected title by adverse possession; that the lands were sold by the 
Collector for the recovery of octroi duty in which the mortgagee purchased 
G the property; ancJ that the character of the mortgagee stood transferred 
into an ownership and thereby the appellants were not liable to surrender 
possessions. 
The Civil Court allowing the application of the respondents, directed 
the appellants to deliver the possession and to pay mesne profit at the rate 
H of Rs. 5000 per year from three years preceding the date of application till 
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PATEL MARGHABHAI v. GALBABflA.I 
385 
the date of delivery of possession. 
When the appellants moved the High Court against the order of the, 
lower Court, the High Court declined to interfere with the finding of the' 
Civil Court. 
The appellants challenged the High Court's judgment in the present 
appeal by special leave, contending that the evidence disclosed that the : 
mortgagee purchased the hypothica at an auction conducted by the Col· · 
lector and thereby he became the owner and the appellants were not liable 
to deliver possession of the lands to the respondents; that the appellants 
perfected their title by adverse possession; that for possession, the execu· 
tion should be laid within 12 years and as the respondents laid execution i 
after 22 years, the execution was barred by limitation; and that the execut· · 
ing court had no power to award mesne profits. 
Dismissing the appeal, this Court, 
' 
HELD: 1.01. When a person is obliged to institute a suit for posses· 
1 
sion of any property then by operation of section 27 of the Limitation Act 
at the determination of the period thereby limited his right to such 
property shall be extinguished. Section 3 of the Limitation Act bars institu· 
tion of his suit after the prescribed period and the suit shall be dismissed 
though limitation has not been set up as a defence. [390H] 
1.02. The right to any property would be extinguished only wh'!n 
limitation in that behalf has been prescribed and the owner or person 
entitled to possession failed to lay the suit by presentation of a plaint to . 
the proper officer within the prescribed period by the schedule to the 
1 
Limitation Act.[391C] 
1.03. The suit for possession under section 27 of the Limitation Act 
is a suit in respect of which the period of limitation has been prescribed 
i.e. computed as per the provisions of the Limitation Act. It is clear from 
the words 'period hereby limited' in section 27 that it would be applicable 
to a suit and that the limitation prescribed is the one in the schedule to 
the Limitation Act. Section 27, therefore, does apply to the suit for posses· 
sion laid in the specified Civil Court under the Act.[3910] 
1.04. The words in section 27 that at the determination of the 'period 
hereby limited' to any person for instituting a suit for possession would 
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386 
SUPREME COURT REPORTS 
[1992) 3 S.C.R. 
A imply that the limitation has begun to run against a person for instituting 
a suit under s.9 of C.P.C. and had expired. The Legislature advise

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