RAJ RANI & ANR. versus KAILASH CHAND & ANR.

Citation: [1977] 3 S.C.R. 18 · Decided: 17-02-1977 · Supreme Court of India · Bench: M. HAMEEDULLAH BEG · Disposal: Appeal(s) allowed

Judgment (excerpt)

18 
RAJ RANI & ANR. 
v. 
KAILASH CHAND & ANR. 
February 17, 1977 
(M. H. BEG, C. J. AND P. S. KA:lASAM, J.J 
Burden of Proof under Art. 142 of the Lin1itatio11 .. 1ct, 1908-A pluintif] 
adniilting dispossession in suits based on title, had to prove that Ile was in 
actual or constructive possession lVithin twelve )'enrs. 
The suit property of one Kalyan Chand in the joint possession of Shital 
Prasad (son 1/3), Bansidar (great grandson 1/3) and Shco Shankar Sangam-
Jal and Kripa Shankar (1!9+1!9+119 grandson')) \Vas mortgaged bv Shco 
Shanker, Sangamlal and Bansidhar acting on theit own behalf and allegedly 
on behalf of Krioa Shankar (who was a minor then). 
Shital Prasad was not 
a party to the mortgage. 
When the whole house ·was sold in Court auction 
on 3-10-1937, in realisation of the mortgage money decreed, one Bhagwandas 
father of Kail ash Chand (Respondent No. 1) purchr:sed the said house and 
took symbolical possession on 12.9.1938. 
The residential portioQ of 
the 
house was in occupation of Knipa Shankar (Appellant's husband) and Devita 
Rani w/o Shital Prasad Who established her right to 1/3 share by a decree 
obtained on 22-1-1941. 
Another suit filed by Bhagwandas for a declaration 
and possession over 2/3 share for ejecting Krip:i. Shankar w-as decreed on 
27-8-1945, and, again symbolical possession \Vas obt::iined on 21-11-46 'lJndcr 
0.21 r.96 C.P.C. Kripa Shankar died in 1953 leaving behind the appellants 
Raj Rani (wife) and Kali Charan (son). Respcndent No. 1 son of 
the 
auction purchaser Bhagwan Das filed a suit 
No. 
475/1959 
on or 
about 
10-8-1959 for partition and possession over 2/3 share- of the portion in addition 
to certain claims of rents illegally collected and the amount of tax unpaid by 
the appellants. 
The plaint allegations were : (i) The auction-purchaser has 
been in possession over 2/3 part of the house \Vith Devika Rani who had. 1/3 
share in the house; (ii) The defendants- had no concern \Vith 2/3 sha:re in 
the said house themselves or through any other person V.'erc not in possession 
or in occupation of any part of the above said hOuse at any time as ov..-ners: 
(iii) The plaintiff was being obstructed in looking after the house and 
r~alis­
ing rents and that the defendant had misled so1ne tenants and rea1iseci the 
rents due to him. 
The· appellant defendants took the plea (i) the morrtgage 
was not valid as the amount was not borrowed for Jegal necessity; (ii) :Even 
if the house "had been sold in execution of the mortgage, they have been openly 
denying the ri,ghts of the plaintiff and had been in adverse possession and 
occupation of the property for more than 12 years so that, even if the plain-
tiff or his predecessors had any right, it had been extinguished by the opera-
tion of law limitation. 
The Trial Court decreed the suit and the first appel-
late court confirn1ed it. 
The second appeal filed in the High Court '-V~3 also 
dismissed. 
Allowing the appeal by special leave, the Court, 
HELD: 
-G 
( 1) The High Court in _a second appeal and the Subordinc1te courts failed 
to determine the crucial question of actual or eYen constructive possession 
of the plaintiff within twelve years and give a find1:ng to that effect. [24EJ 
(2) The plaintiff had to prove that he was in actual or constructive pos-
session within twelve years. It would be enough if he establishes that he \\'as 
in constructive possession within twelve years by receipts of rent or other-
wise. 
[25F) 
(3) A decision on the question whether Art. 142 Lin1itation Act applies to 
a case, really deoends upon an interpretation of the 
pleadings. In 
cases 
governed by the former Limitation Act, at any rate, a plaintiff admitting dis-
possession in suits based on title, had to prove that he \Vas in actual or const-
ructive possession within twelve years. [25C-E] 
' 
RAJ RANI 
V. KAILASH CHAND (Beg, C.J.) 
19 
( 4) The allegations in the plaint amount to an allegation that by ~ss~1t­
ing their ownership and inducing the tena?ts. not to pay rents to the pla1!1tdfs, 
the defendants had dispossessed the plaintiff. 
In such a case. even if 
a 
defendant in actual possession could be deemed to be initiallY. a co-sharer, 
the plaintiff wou)d be really assef!ing that the .co-sh~rcr had ~tspossessed or 
ousted him. 
Hence an ouster having been admitted in the plaint the burden 
would lie upon the plaintiff of proving his case. t~at .the ouster h~d taken place 
\Vithin twelve years as Art. 142 <;if the old Ln~

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