- (1.) THE questions for the division bench are - " (1) Whether the case reported as AIR 1958 Rajasthan 206 and the view taken in 1971 RLW 492 require re-consideration regarding the applicability of Art. 142 of the Limitation Act, 1908, on account of the legislative changes brought about by Arts. 64 and 65 of the Limitation Act, 1963? (2) If so, whether in a suit for recovery of possession of immovable property based on title as well as on the assertion of prior posses- sion and subsequent dispossession or discontinuance of possession, Art. 144 of the Limitation Act, 1908, and not Article 142 thereof applied ?"
(2.) THE subject matter in litigation is a house situate at Sardarshahar. It belonged to one Ghanshyamdas who died in 1942, leaving behind his widow Mst. Narbada and two minor sons Mangilal and Laduram. THE suit is for possession based on dispossession. The plaintiffs sued on the allegation of title in themselves and also alleged that they were in possession but were dis-possessed by the defendants. The plaintiffs' case was that they were the owners of the house, having purchased the same from Tormal and others by a registered sale-deed dated 6-1-1961, that their venders on their part had purchased the house from Mst. Narbada widow of Ghanshamdas by a registered sale deed dated 17-7-1946, executed by her attorney on her behalf and as guardian of her two minor sons Mangilal and Laduram. According to the plaintiffs, their vendors viz. Tormal and others, were placed in possession of the suit house in pursuance of the sale, but they had not handed over possession of the entire property. At the time of the sale of the house, it was alleged that one Shrilal Asal Saria was residing in the northern portion of the home with the permission of the original vendees i. e. Tormal and others. It was averred that after the sale of the house in favour of the plaintiffs, the defendants Mangilal and Laduram continued to reside there with the permission of the plaintiffs. The plaintiffs further averred that during the period they had taken possession of the remaining portion of the house, but proceeded to say that during the period they had gone out of Rajasthan on business, the defendants took forcible possession of the portion not previously in their possession. The present suit was filed on 18 9-1963 in the Court of Senior Civil Judge, Churu. The plaintiffs alleged that they were dispossessed from the house in suit during their absence sometime in June 1963. The defendants in their written statement denied that the plaintiffs or their vendors were owners of the house in dispute or that they were ever placed in possession thereof or that the plaintiffs were dispossessed therefrom in June 1965, as alleged. They also denied that Shrilal Asal Saria was in possession of the northern portion of the house as a licensee of the plaintiffs. They pleaded that they had been in adverse possession for more than 12 years, and that the suit was barred by limitation. The court of first instance found that the plaintiffs had failed to prove that they or their predecessors-in title viz. Tormal and others, were placed in possession of the suit house i, e. , at any time from 17-4-1946 to 6-1-1961, the date of the alleged sale in their favour, or that (hey had been wrongfully dispossessed therefrom in June 1963. The court held that the suit being for possession after dispossession fell within Article 142 of Sch. I of the Limitation Act, 1908. The plaintiffs having failed to prove their possession within 12 years from the date of dispossession, the court dismissed the plaintiffs' suit for possession as barred by limitation. On appeal, the learned Single Judge remitted an issue on title. The finding of the court of first instance there on was that, though the plaintiffs had proved their title, they had failed to prove that they or their predecessors-in-title had been in possession of the suit house or their alleged dis-possession at any time within 12 years of the suit. On that finding the plaintiffs' suit ought to fail under Article 142 of the Limitation Act, 1908. When the appeal came to be re-heard by the learned Single Judge, he felt some doubt and difficulty as to the applicability of Art. 142 of the Limitation Act, 1908 due to certain observations of the Supreme Court in Nair Service So-ceity vs. K. C. Alexander (1), expressing that Articles 64 and 65 of the Limita-tation Act, 1963 were not remedial but declaratory of law. In support of the reference, the learned Single Judge has quoted at length passages from Sutherlands Statutory Construction, 3rd Edition para 5110 and Craies on Statute Law, 6th Edition p. 146. In making the reference, the learned Single Judge observes.- "the question arises to what extent the legislative changes brought about by the Limitation Act of 1963 could be regarded as the legislative declaration or legislative judgment, in view of the sharp division of the judicial opinion in the country, prior to the enactment of Arts. 64 and 65 in the Limitation Act of 1963. It will have to be considered whe- ther the changes in the law were in the nature of amendments in the law the reby or they were in the nature of consolidation or re enunciation of the previous law, according to the true legislative intent. " We fail to appreciate the reasoning of the learned Single Judge. The suit of the plaintiffs was instituted on 18-9 1963 i. e. , before the Limitation Act, 1963 was brought into force The learned Single Judge has not made any reference to Sec, 31 of the new Act, which reads as follows - "section 31.- Nothing in this Act shall - (1) enable any suit, appeal or application to be instituted, preferred or made, for which the period of limitation prescribed by the Indian Limitation Act, 1908 (9 of 1908), expired before the commencement of this Act; or (2) affect any suit, appeal or application instituted, preferred or made before, and, pending at, such commencement. " This provision makes it clear that the provisions of the new Act will have no effect in suit, appeal or application instituted, preferred or made before, and pending on the date of the enactment of the new Act and that if a suit, appeal or application had been barred under the old Act i, e. under the Limitation Act, 1908, the provisions; of the new Act cannot be invoked. Before the commencement of the new Act, Art 142 of the old Act was operative and a plaintiff to recover possession had to establish his possession with in 12 years of the suit, even in a case where he establishes title. The provisions of the new Act cannot be construed to take away the vested right of the defendant to raise a defence based on Article 142 of the old Act. When section 31 (b) of the Limitation Act, 1963 expressly states that nothing in the Act shall apply to pending suits, we fail to see how Article 64 and 65 of that Act can be called in aid to the construction of Articles 142 of the Limitation Act, 1908, as a parliamentary exposition' of the pre-existing law.
(3.) SHRI L. R. Mehta, learned counsel for the appellants, with his usual erudition and consumate skill, tried to bring in Articles 64 and 65 of the new Act as aid to construction of Articles 142 and 144 on the hypothesis that the new Act was only declaratory and not remedial. It was said that, 'whatever be the legal position under the 1908 Act, the new Act 1963 had completely changed that legal position' and that, 'the subsequent Act of Parliament was a 'parliamentary exposition' of the law as it stood prior to the enactment of the 1963 Act and, there fore, even in respect of the suits filed earlier to the new Act, the plaintiff need not prove possession within 12 years of the suit for recovery of possession, if he establishes title to the suit property. ' It was, therefore, said that the dychotorny between the two classes of suits falling under Articles 142 and 144 was clearly brought out by enacting Articles 64 and 65 which, he asserts, as the learned Single judge has in his order of reference, was a 'parliamentary exposition' of law as it stood prior to the enactment of the new Act. According to him, Article 142 of Sch I of the Limitation Act, 1908, therefore, only applied to suits based on possessory title, i. e. , where the plaintiffs sought the relief of possession on the strength of his prior possession followed by subsequent dis-possession. In support of the contention, strong reliance was placed on the observations of the Supreme Court in Nair Service Society vs. K. C. Alexandar (1 ). Learned counsel drew our attention to the long title of the Limitation Act, 1963 which shows that it is an act to consolidate and amend the law for the limitation of suits, etc. He also relied on the objects and reasons of the new Act. We fail to approciate this line of reasoning. Nothing really turns on the long title. The Limitation Act, 1908, was also, as its long title states, was an Act to consolidate and amend the law relating to the Limitation of suits The objects and reasons of the Limitation Act, 1963 no doubt states that, 'articles 142 and 144 of the Limitation Act, 1908 have given rise to a good deal of confusion with respects to suits for possession by owners of property'. It was, therefore, proposed 'to replace Article 142 by Article 64. but it is restricted to suits based on possessory title so that an owner of property does not lose his right to property unless the defendant in possession is able to prove the adverse possession'. J They further state that, 'article 65 is new and deals with suits based on title'. Merely because Art. 64 of the new Act was now restricted to suits based on possessory title, that would not, in our mind, curtail the ambit of Article 142 of the old Act. In Nair Service Society vs. K. C. Alexander (1) their Lordships of the Supreme Court while considering the relative Scope of sections 8 and 9 of the Specific Relief Act, 1963, had observed - "the uniform view of the courts is that if sec. 9 of the Specific Relief Act is utilised the plaintiff need not prove title and the title of the defendant does not avail him. When, however, the period of 6 months has passed questions of title can be raised by the defendant and if he does so the plaintiff must establish a better title or fail. In other words, the right is only restricted to possession only in a suit under sec. 9 of the Specific Relief Act but that does not bar a suit on prior possession within 12 years and title need not be proved unless the defendant can prove one. The present amended Arts. 64 and 65 bring out this difference. Art. 64 enables a suit within 12 years from dispossession, for possession of immovable property based on possession and not on title, when the plaintiff while in possession of the property has been dispossessed. Art. 65 is for possession of immovable property or any interest therein based on title The amendment is not remedial but declaratory of the law. " Relying on the above observations that the law as laid down by Articles 64 and 65 of the new Act is only declaratory and not remedial, Shri Mehta, learned counsel for the appellants, strenuously contends that Articles 64 and 63 should be deemed to have been the law even before the commencement of the new Act and that where a person who has got title sues for possession is entitled to succeed even without showing possession within 12 years of the suit, unless defendants are able to establish that they have perfected title by adverse possession. He urges that, in a suit based on title coupled with allegation of possession and dispossession, or permissive possession. Art. 144 will apply, when it is found that the plaintiff has proved his title, but his allegations of possession and dispossession, or of permissive possession were untrue. He further contends that in view of the change in law, Art. 142 of the old Act should be interpreted as being limited to suits based on possessory title. In support of these contentions the learned counsel relied upon the decision of Alagiriswami J , in K. Mudiliar vs. K. Munuswami Pillai (2) and that of Dharmadhikari J. , in Madhao Pandurang vs. Yashwant (3 ). We are afraid, the contentions cannot be accepted. The decisions relied upon do not, in our opinion, lay down the correct law. ;