SRI SHYAM SUNDER PRASAD AND ORS. versus SRI RAJPAL SINGH AND ANR.

Citation: [1994] SUPP. 6 S.C.R. 193 · Decided: 29-11-1994 · Supreme Court of India · Bench: K. RAMASWAMY, N.P. SINGH, N. VENKATACHALA · Disposal: Dismissed

Judgment (excerpt)

SRI SHY AM SUNDER PRASAD AND ORS. 
A 
v. 
SRI RAJ PAL SINGH AND ANR. 
NOVEMBER.29, 1994 
[K. RAMASWAMY, N.P. SINGH AND N. VENKATACHALA, JJ.] 
B 
Limitation Act, 1908-Artic/e 142-Suit for declaration of title and 
possession-Burden of proof-Plaintiff to prove his possession is within 12 
years from date of filing of suit and of his title to the property. 
The plaintiff filed Title Suit for declaration of title to and C 
possession of a plot as owner. The trial court decreed the suit. The 
appellate court found that though the plaintiff had title and possession 
at one point of time but there was no definite date of dispossession or 
discontinuation of· the plaintiff Schedule property. The plaintiff had 
failed to prove possession· of the suit land within 12 years of the suit D 
when the possession was discontinued. The suit was dismissed therefore 
as barred by limitation under Article 142 of the limitation Act, 1908. 
This appeal had been filed from the judgment of the High Court 
dismissing the second Appeal in limine. 
The question for consideration was on whom the burden of proof E 
lies in a suit based on title and for possession. 
Dismissing the appeal, this Court 
·' 
HELD : Under ~he old Limitat~on Act, 1908, all suit for possession 
whether based on title or on the ground of previous possession were F 
' governed by Article 142 wherein. the plaintiff while in possession was 
dispossessed or disc~ntinued in possession. In view of Article 142, the 
burden, undoubtedly, is o~ the plaintiff to prove that he has title to and 
has been in pos.s~ssion of ~he property within ll years from the date of 
the filing of the suit. It is necessary for the plaintiff, therefore, when the 
suit is laid on the basis of title, to .establish not only that he has title to G 
the property but a.lso he was dispossessed or discontinued his previous 
possession within 12 years on the date of the filing of the suit. When the 
defendant did not come to' the court to establish his adverse possession 
by prescription; the burden of proof does not rest on the defendant. 
The burden, therefore, is always on the plaintiff to prove that he had H 
193 
194 
SUPREME COURT REPORTS 
[1994) SUPP. 6 S.C.R 
A 
possession within 12 years from the date of the filing of the suit and he 
has title to the property. [195 A, D, E] 
. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3298 of 
1984. 
. 
B . 
From the Judgment and Order dated 29-8-83 of the Patna High Court 
c 
D 
in A.No. 262of1980.. 
· 
B.B. Singh for the Appellants. 
The following Order of the Court was delivered : 
This appeal by special leave arises from the judgment of the High 
Court at Patna iri ·Second Appeal No. 262/90 dated August 29, 1993 
dismissing the Second Appeal in limini. The appellant-plaintiff filed Title 
Suit No. 238/26 of 1962-65 for declaration of title to and possession ·of Plot 
No. 1093 and 1994 as owner and for possession of Plot No. 1095 as ljradar. 
1be trial court decreed the suit, the appellate court found that though the . 
plaintiff had title and possession at one point of time but there is no definite 
date of dispossession or discontinuation of the plaint-schedule property. 
The plaintiff had failed to prove possession of the suit land within 12 years 
of the suit when the possession was discontinued. It is not known as to 
when he came into possession. The suit was, therefore, barred by limitation 
E-
under Article 142 of the Limitation Act, 1908 for short 'the old Act'. It was 
· accordingly dismissed. 
F 
G 
H 
Article -142 of the First Schedule and First Division to the old 
Limi~i~n Act, provides that "for possession of immovable property when 
._the plaintiff, while in possession of the property, has been dispossessed or , 
has discontinued the possession," the period Of 12 years begins to run from 
the date of dispos~ssion or discontinuation. Article 144 adumbrates that 
"for possession of immovable property or. any interest therein not hereby 
otherwise specially provided for'', the suit shall be laid within 12 years 
· when the possession of the defendant becomes adverse to the plaintiff. 
Article 64 of the Limitation Act, 1963 (for short, 'the new Act') 
provides that "for possession of immovable property based on previous 
possession and not on title, when the plaintiff while in possession of the 
property has been dispossessed," the period of limitation of 12 years begins 
to run from the date of dispossession. Article 65 provides that "for 
poss

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