1. Respondent-Rewa Puri filed a Civil Suit in the Court of District Judge, Udaipur on 22nd April, 1975 claiming a decree against appellant-defendant for declaration of Plot No. 366 situated at Bhopalpura, Udaipur as of the ownership of the plaintiff and that possession of the said plot be delivered to the plaintiff which was in possession of the defendant.
2. The plaintiff's case as disclosed in the plaint is that plot No. 366 situated at Bhopalpura was allotted to the petitioner-plaintiff as Bapi in 1948 by the then City Improvement Trust, Udaipur in lieu of consideration of Rs. 457/-. In 1955 the patta of the plot was issued in the name of plaintiff. The plaintiff started construction on the plot in 1966. At that time the defendant filed a Civil Suit for permanent injunction claiming the property in question to be his for injucting the present plaintiff from carrying on construction on the plot and restrain him from interfering with his possession. The application for temporary injunction was dismissed and ultimately the suit for declaration of ownership was dismissed on 22nd January, 1975 by Munsiff Court Udaipur by holding that though the present defendant has not been able to prove his title, the suit filed was dismissed as to about his ownership. However, since the pendency of the suit the defendant has taken over the possession of the plot in question, the Court directed the present plaintiff to secure the possession by filing the suit in accordance with law. According to averments made in the plaint the defendant started claiming to be owner of the said plot since 1966 when he filed the civil suit. Further alleging that the defendant is in possession of the suit only since 1971 as trespasser which he is not entitled to retain, and that cause of action arose in December, 1971 when defendant dispossessed the plaintiff, plaintiff filed the present suit for aforesaid reliefs. It has also been averred in the plaint that plaintiff continued construction over the plot until 1969 when Municipal Council, Udaipur restrained further construction in pursuance of the order made by the Munsif Magistrate in civil suit No. 93/66. While stating when the civil suit was pending in the Court of Munsif Court, Udaipur, defendant dispossessed the plaintiff in December, 1971 which followed with proceedings u/S. 145 Cr.P.C. lodged by the plaintiff which were dismissed on 29th September, 1973.
2A. The defendant in his written statement denied the claim of the plaintiff's ownership as well as possession in question, and also the facts stated therein about the plaintiff's dispossession in December, 1971. While admitting that plot was in the name of plaintiff, it was denied that full consideration of Rs. 457/- was deposited or paid by plaintiff. It was alleged that plaintiff had deposited from time to time in totality only a sum of Rs. 168/12 as by 13th May, 1948. He did not deposit the remaining sum because the plaintiff after receiving the said amount of Rs. 169.03 as. from Gaeshlal, the present defendant, on 2nd December, 1955, had transferred the plot in favour of Ganesh Lal. Thereafter the balance amount of Rs. 281/4 Anas, plus fees Rs. 2/-, map charges Rupees 5/- totaling Rs. 288/4 Annas were deposited by Ganesh Lal Bordia on 6-10-55 and patta was delivered to Ganesh Lal on 9-2-56 after obtaining receipt from him. Ever since the issuance of patta plaintiff was never in possession of the plot in question. The defendant also denied that plaintiff made any construction on the plot in question. Filing of Civil Suit No. 93/66 (66/66 new no. 51/72) by the defendant against plaintiff and his brother Sajjanpuri, was admitted, which according to defendant was decreed in his favour on 28th Jan. 1975 against which no appeal has been made and has become final. The fact of raising construction
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in 1969 was also denied. It was alleged that even in the suit the defendant's possession in his own right since 12-11-65 has been accepted by the Court and therefore, it was asserted that the Civil Court has found as fact in favour of the present defendant that he is in possession of the plot in his own right since 12-11-1965. He alleged that he is in possession of plot under a registered sale deed executed by Ganesh Lal on 12th November, 1965 and he was also in possession of the patta since then. Along with patta of the plot in question defendant was also given the receipt executed by the plaintiff in favour of Ganesh Lal dated 2nd October, 1955 for a sum of Rs. 169/3 Annas in consideration of transfer of the plot in question to Ganesh Lal and other documents showing that Ganesh Lal has constructed boundary wall in 1959. It was alleged that since 12-11-65 defendant was in possession of the land in question as its owner and in his own right and prior to that it was in possession of his predecessor in title Ganesh Lal Bordia. The dismissal of suit was prayed. In additional pleas the defendant detailed the facts in connection with the dealings with the land by the plaintiff since beginning and his conduct in respect of the land in question and also about possession of land which was found to be with present defendant since 1965 in his own right by the learned Munsiff in his judgment and decree dt. 28-1-75, by which his suit for injunction was decreed.
3. It was also alleged that infact after the defendant has purchased the plot in question from Ganesh Lal, Plaintiff himself has agreed to purchase the land from defendant for Rs. 3800/- in December, 1965 against which a sum of Rs. 100/- and Rs. 900/- by way of cheque was also paid to the defendant, though the cheque was in the name of third party who encashed. The balance payment of the said consideration amount of Rs. 2,800/- were never given which resulted in filing a complaint u/S. 420, IPC which was ultimately settled out of the Court when Kesharimal Lodha who has secured the payment of cheque delivered made payment on Rs. 1,000/- to the defendant. On these allegations that the plaintiff has not come with clean hands by disclosing the full facts the defendant prayed for dismissal of the suit.
The following issues were framed :
4. The plaintiff produced as many as 22 documents including judgment dated 28th Jan. 1975, after which the present suit has been filed and examined apart from himself as P.W. 1, Bhuri Bai P.W. 2, P.W. 3 Shyam Lal, Sajjan Puri P.W. 4, Lagga Ram P.W. 5 as P.W. 1 to P.W. 5 in support of his claim. Defendant examined apart from himself Chandra Shekhar Joshi. He also produced number of documents Ex. A1 to Ex. A37. The trial Court found that as there was no valid transfer in accordance with law in favour of Ganesh Lal for want of a registered sale deed and the patta stood in favour of plaintiff, the property in the plot did not pass to Ganeshlal. Consequently because Ganesh Lal did not have any title he could not have passed any title even by registered deed to the defendant. He did not accept that finding under judgment dated 28th Jan. 1975 as to the possession of the land is final and binding between parties so as to operate res judicata on the ground that previous Court was not competent to try the latter suit inasmuch as the former suit was for injunction with lower valuation was presented to and tried by Munsiff Court which did not have jurisdiction to try subsequent suit for possession on the basis of title with a valuation which was beyond its pecuniary jurisdiction. Thus overlooking the finding in earlier suit it was found that Ganesh Lal was never in possession of the plot in question prior to December 1971, therefore the suit for recovery of possession filed on 22nd Jan. 1975 was within the limitation.
5. I have heard learned counsel for the parties and gone through the record of the case.
6. It will be appropriate to first examine the findings of issue No. 3 which relates to plea of res judicata raised against the plaintiff by defendant in respect of finding about possession. Plaintiff has specifically said in the plaint that he has been dispossessed from the plot in question in 1971 when during the pendency of suit filed by the present appellant in 1966, when the defendant obtained unauthorised possession of the land in question.
7. About the previous litigation in para 6 of the plaint the plaintiff has pleaded that in February, 1966 claiming himself to be owner of the plot in question filed the suit in the Court of Munsif, Udaipur which suit about the title was dismissed on 28th January, 1975. Because during the pendency of the suit the present defendant came in possession of the plot, the Court in earlier suit directed the plaintiff to require the possession in accordance with law. In para 7 it was pleaded by the plaintiff that defendant is not the owner of the plot and he has no right of ownership in it but he has obtained the possession of the land as trespassers since December, 1971 which he had no right to do. In para 9 the plaintiff pleaded that cause of action for the present suit have been arose in December, 1971 when defendant dis-possessed the plaintiff. The defendant had denied these allegations about obtaining possession of the plot in December, 1971. As noticed earlier the defendant not only denied the payment of consideration by the plaintiff to the Urban Improvement Authority, Udaipur by the plaintiff but it has clearly asserted that plaintiff had only deposited out of full consideration of Rs. 457/- as only a sum of Rs. 168.12 Anas by 13th May, 1948 which he recovered from Ganesh Lal on 2nd October, 1955 under the receipt dated 2nd October, 1955 and transferred the plot to Ganesh Lal and thereafter on 6th October, 1955 Ganesh Lal deposited the remaining amount due as consideration along with other incidental charges with City Improvement Trust, Udaipur and obtained patta on 9-2-56. With these assertions the defendant has also detailed the particulars about the findings recorded in previous litigation in the suit filed by him in 1966 of which reference has been made in his plaint. While admitting the defendant's prayer for temporary injunction was refused, it was pointed out that the suit was ultimately decreed by the Munsif, Udaipur on 28th January, 1975 against which no appeal was filed by the plaintiff. In the aforesaid decision between the same parties. The issue that was substantially and materially between the present parties was whether the present defendant (plaintiff in former suit) was in possession of the suit plot in his own right and was the present plaintiff (defendant in former suit) with intention to secure unlawful possession, was trying to dig foundantion on 27-2-66. The previous suit was decided on 28th January, 1975. In the said decision the present defendant was found to be in possession of the suit plot since 12th November, 1965, in his own right. The averment of the plaint that defendant has dis-possessed the plaintiff in December, 1971 has been denied to be false and incorrect. In reply to para 7 and 8 of the plaint the defendant has asserted that defendant was in possession since 12th November, 1965 in his own right which he derived from Ganesh Lal and prior to that date the said Ganesh Lal was in possession of the suit plot upto 11-11-1965 in his own right. With this denial, he has averred in additional pleas that finding in the previous suit about possession of defendant as of right was between the parties of present suit which operates as res judicata and binds the parties.
8. In these circumstances the issue No. 3 has been framed whether decision in the previous suit between the very same parties about possession of the suit property operates as res judicata. The question of possession is also relevant for decision of issue No. 4 as to limitation for filing the suit for possession on the basis of title, which is governed by Article 65 of the Limitation Act 1963. These two issues were dealt with simultaneously by the Lower Court. The finding in former suit was held to be not operating as res judicata, not between the same issue was not directly and substantially in issue in the two suits, but because for want of pecuniary jurisdiction the Court trying former suit was not computed to try the subsequent suit.
9. It may be noticed here that present suit has been filed before Code of Civil Procedure was amended in 1976 by the Code of Civil Procedure (Amendment) Act 1976 (hereinafter called the Act of 1976) and ordinarily an Act operates prospectively in the matter of procedure would not effect the proceedings which has come into force prior to commencement of new Act, unless contrary is provided by statute, either expressly or by necessary implication.
10. Section 97 of the Act of 1976 which provided in Repeal and Savings it has specifically envisaged in sub-section (3) : 'Save as otherwise provided in sub-section (2), the provisions of the Principal Act, as amended by this Act, shall apply to every suit, proceeding appeal or application, pending at the commencement of this Act or instituted or filed after such commencement, notwithstanding the fact that the right, or cause of action, in pursuance of which such suit, proceeding, appeal or application is instituted or filed, had been acquired or had accrued before such commencement.' Thus excluding the provisions of C.P.C. enumerated in sub-sec. (2) of S. 97 of the Act of 1976, provisions as amended by the Act of 1976 shall govern the present proceedings. Sub-section (2) of S. 97 of the Act of 76 does not include S. 11 of the Principal Act subject to the exception. Therefore it must be taken to be legislative mandate that amended provision of the Code of Civil Procedure so far as S. 11 is concerned govern the present proceedings.
11. However it was held by the trial Court that amended provision does not apply to the present case. The trial Court relying on the two decisions reported in 1953 Raj LW 429 : (AIR 1954 Rajasthan 4) in which it has been laid down that decision in a prior suit delivered by a Court of inferior pecuniary jurisdiction is not binding in a suit instituted subsequently in a Court of superior pecuniary jurisdiction if the former Court did not have pecuniary jurisdiction to try the subsequent suit. concluded that decision in previous suit rendered by Munsif in the suit of much lower valuation cannot bind the present Court trying the suit of higher valuation for which the former Court did not have pecuniary jurisdiction to try. The Court also relied on decision of Calcutta High Court in (Nabin Majhi v. Tela Majhi, AIR 1978 Calcutta 440 that principle remained uneffected by the amended provision of S. 11. The trial Court held that earlier findings given about possession of the land in question between the parties in Ex. 20, the judgment dated 28th January, 1975, does not bind the District Court in the present suit and repelled all the contentions. The Court even found that the possession of Ganesh Lal was on behalf of the plaintiff and with his permission was not adverse to the plaintiff, therefore, until filing of the present suit dated 12-11-1965 by the present defendant the possession remained of the plaintiff therefore the suit which has been filed on 22nd April, 1975 is within limitation. It may be noticed that while deciding issue no. I the trial Court found that defendant has acquired possession only in 1971 contrary to which it has observed while deciding issue about res judicata. It was also found that by reading the statement of Chandra Shekhar that defendant admitted the fact that he was never in possession of the suit prior to 1971.
12. It must be noticed that finding given about the effect of decision given by Court of limited jurisdiction on the question its binding nature as res judicata in subsequent suit, as per Explanation VIII to S. 11 of the Code of Civil Procedure has received final pronouncement by the Apex Court.
13. Earlier there was a cleavage of opinion amongst the High Courts on the meaning of expression "a Court of limited jurisdiction" in Explanation VIII. The Calcutta High Court in AIR 1978 Cal 440 had taken the view that the expression "a Court of limited jurisdiction" in Explanation VIII means the Courts other than ordinary civil Courts and refers to the Courts or tribunal functioning under special laws e.g. Revenue Courts, Land Acquisition Courts, Administrative Courts, Insolvency Courts, Guardianship Courts, Probate Courts, etc. which are trying certain specific matters. On the other hand the High Courts of Kerala, Orissa and Madras had placed a wider construction on the said expression and held that it includes Court of limited pecuniary jurisdiction also.
14. It cannot be gainsaid that rule of resjudicata is founded on consideration of public policy that public interest of the public at large that a finality should be attached to the binding decisions pronounced by Courts of competent jurisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation. Sec. 11 of C.P.C. only embodies this rule with its technical format, applicable to suits, but the provision of CPC u/S. does not lay exhaustively the wholesome principles of res judicata. One may remind oneself the opinion expressed by Supreme Court in Daryao's case, AIR 1961 SC 1457.
"Now, the rule of res judicata as indicated in S. 11 of the Code of Civil Procedure has no doubt some technical aspects, for instance the rule of constructive res judicata may be said to be technical, but the basis on which the said rule rests is founded on considerations of public policy. It is in the interest of the public at large that a finality should attach to the binding decisions pronounced by Courts of competent jurisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation."
15. Provisions of CPC including that of S. 11 control the procedure of different Courts of ordinary civil jurisdiction on its own force. Prior to amendment referred to above by different Courts including that of Privy Council it was well established that where former Court otherwise having jurisdiciton in respect of subject matter of the issue in the subsequent suit, was not competent to try the same issue again in the later suit on the ground of its territorial jurisdiction only, it would not inhibit operation of principle of res judicata in respect of finding reached on earlier occasion by such Court, but where the Court trying the former suit lacks pecuniary jurisdiction to try the subsequent lis, it was construed to be lack of inherent jurisdiction of the first Court to try subsequent suit and therefore its decision would not operate as res judicata so as to preclude the Court of greater pecuniary jurisdiction trying the later suit from deciding issue afresh. So also the decision of Courts of Special jurisdiction did not bind the Courts of ordinary civil jurisdiction because of their limited jurisdiction under S. 11. It was to remedy such dichotomy in the application of wholesome rule enshrined in S. 11 that Explanation VIII was ordained by the amending Act of 1976 and was ordered to operate in relation to pending proceedings as well.
16. There was a difference of opinion amongst various High Courts of country about effect on the aforesaid amendment on its applicability to a case where the Court trying former suit lacked pecuniary (jurisdiction) to try the subsequent suit. The said conflict has now been resolved by the Apex Court in Sulochana Amma v. Narayanan Nair (1994) 2 SCC 14 : (AIR 1994 SC 152) by holding that the expression Court of limited jurisdiction also covered the Court of limited pecuniary jurisdiction. The Court while reaching its conclusion referring to the aforesaid decision of the Calcutta High Court, said that :
"Calcutta High Court took a very narrow view in limiting the scope of explanation VIII to the decisions of the Courts of special jurisdiction like probate, insolvency, land acquisition Courts, Rent Controller, Land Revenue Tribunal etc. In Daryao v. State of U.P. (AIR 1961 SC 1457) this Court held that the doctrine of res judicata is in the interest of public at large and a finality should be attached to the binding decisions pronounced by Courts of competent jurisdiction, and it is also in the public interest that individual should not be vexed twice over with the same kind of litigation."
17. Thus decision of Calcutta High Court was impliedly overruled. Likewise no assistance can be drawn from cases decided by Courts prior to aforesaid amendment in C.P.C. under the old provision.
18. Referring to decision in Gulam Abbas v. State of U.P. (1982) 1 SCC 71, page 90 : (AIR 1981 SC 2198) said that Explanation VIII inserted by the Amending Act of 1975, was intended to serve this purpose and to clarify this position.
To keep the litigation unending, successive suits could be filed in the first instance in the Court of limited pecuniary jurisdiction and later in a Court of higher jurisdiction, and the same issue shall be subject of trial again, leading to conflict of decisions. It is obvious from the objects underlying Explanation VIII, that by operation of the non obstante clause finality is attached to a decree of civil Court of limited pecuniary jurisdiction also to put an end to the vexatious litigation and to accord conclusiveness to the issue tried by a competent Court, when the same issue is directly and substantially in issue in a later suit between the same parties or their privies by operation of S. 11. The parties are precluded from raising once over the same issue for trial.
It is settled law that Explanation to a section is not a substantive provision by itself. It is entitled to explain the meaning of the words contained in the section or clarify certain ambiguities or clear them up. It becomes a part and parcel of the enactment. Its meaning must depend upon its terms. Sometimes it would be added to include something within it or to exclude from the ambit of the main provision or some condition or words occurring in it. Therefore, the explanation normally should be so read as to harmonise with and to clear up any ambuguity in the same section.
19. The question was again raised in Supreme Court in Church of South India Trust Association v. Telugu Church Council (1996) 2 SCC 520 : (AIR 1996 SC 987). The Court followed its earlier decision in Sulochana Amma v. Narayanan Nair (AIR 1994 SC 152) (supra) and held that Explanation VIII thus removes the limitation that were placed on the principle of res judicata as applicable in India by the Privy Council in Misir Raghobardial v. Rajah Sheo Baksh Singh (1883) ILR 9 Cal 439. It would be rather incongruous to read a limitation in the applicability of the said principle by construing the competence of the Court to mean that the Court which has decided the earlier suit must have the territorial jurisdiction to try the subsequent suit. Such a construction would be running against the trend in the development of law in this field. We are, therefore, of the opinion that S. 11 of the present Code (excluding Explanation VIII) envisages that the judgment in a former suit would operate as a res judicata if the Court which decided the said suit was competent to try the same by virtue of its pecuniary jurisdiction and the subject-matter to try the subsequent suit and that it is not necessary that the said Court should have had territorial jurisdiciton to decide the subsequent suit.
20. In view of aforesaid it is abundantly clear the trial Court has clearly committed an error in placing reliance on 1953 Raj LW 429 : (AIR 1954 Raj 4), a decision rendered with reference to provision of CPC before amendment and AIR 1978 Cal 440 in construing Explanation VIII of S. 11 as to its scope of operation, which has been impliedly overruled by the Supreme Court. It must in the circumstance be held that decision in the former suit by the Munsiff, on the issue between the same parties which was before it directly and substantially will bind the Court trying subsequent suit in which same issue has been raised directly and substantively between the same parties. There is no denial and there cannot be, that in the former suit berween the parties to present suit the issue substantially and directly in issue was whether Onkarlal was in possession of the suit plot, which he could protect by way of injunction. He claimed it to be as owner. The Court found Onkarpuri to be in possession of plot and further found that though he was not owner but was in possession in his own right and was entitled to protect it until evicted in accordance with law. Consequently I have no hesitation in holding that finding as to possession and nature of possession given in the earlier suit between Ravapuri and Omkarlal, the present plaintiff and defendant who were in opposite position in previous suit, binds them and cannot be reopened between them. It is not in dispute that earlier suit was filed by Omkarlal (present defendant) against Revapuri (present plaintiff) and his brother for injucting the defendant therein from interferring with plaintiff's possession which was claimed to be with Omkarlal in his own right as title holder based on a valid title. In the said suit the defendant (Revapuri) denied the ownership and possession of Omkarlal and claimed that he was in possession of the plot. It is not in dispute and cannot be disputed that the question of possession and suit property and nature of such possession, if any, of the defendant was directly and substantially in issue between Onkarlal and Revapuri and finding on that issue shall bind the parties, and prohibit trial of the same once again between them, if the same arose between them or persons claiming through them subsequently again. It does not also need much explaining that present suit has been filed by the same Revapuri for recovering the possession of same suit land against same Onkarlal on the basis of his title and alleged dispossession in 1971. The suit has been filed in 1975. The defendant as already noticed has claimed his own possession since 1965 denying that plaintiff was ever in possession of the suit property and there was any occasion to dispossess the plaintiff in December, 1971. Suit for recovery of possession on the basis of title was also urged to be barred by limitation. On the pleadings of parties the question about nature of such possession of Omkarlal and the date since when Onkarlal is in possession of the property is once again directly and substantially in issue between the same parties.
21. Since I have reached the conclusion that findings given in earlier decision operates as res judicata, it would be profitable to examine the findings given in that suit. In this connection, it would be profitable to draw attention to the decision of Supreme Court in Durgah Committee v. Syed Hussain Ali, AIR 1961 SC 1402 wherein the Court examined the scope of enquiry to find out the effect of findings made in any judicial proceedings and said :
"In dealing with the effect of finding recorded by the Judicial Commissioner, we cannot lose sight of the fact that we are not construing terms of a statute but we are attempting to find out the effect of the findings made in judicial proceedings. The said findings cannot, therefore, be divested from the rest for the reasons given in the judgment.........
22. Keeping in view the aforesaid observations, it would be profitable to draw attention to the findings recorded in earlier suit between the parties.
23. The Court has found in former suit against the present defendant that in the absence of their being any registered sale deed in favour of Ganeshlal, his predecessor in title, no title vested in Ganesh Lal which he could pass to Omkarlal, but Ganeshlal was in possession of the suit plot from beginning in his own right and w.e.f. the date he transferred his rights in suit property by registered sale deed dt. 12-11-65, the plaintiff Onkarlal is in possession of suit plot in his own right. It may be profitable to recount the facts in this connection that plaintiff had been allotted the plot in question in 1948 for consideration of Rs. 457/- erstwhile City Improvement Committee, Udaipur. According to the pleading of the plaintiff the plaintiff has acquired the ownership of plot by payment of remaining amount and obtained Patta in his name. The defendant's case is that though originally allotment was made in favour of plaintiff Ravapuri in 1948 for a sum of Rs. 457/- the plaintiff initially deposited only Rs. 168/12 as, in 1948 which amount was paid by the said Ganeshlal to the plaintiff on 2nd October, 1955 and thereafter said Ganeshlal paid balance amount which was due against the allotment consideration to the City Improvement Committee and obtained Patta from the Improvement Committee in 1956. The patta was issued in the name of Revapuri is not in dispute. It was because of the condition that allotment of land was not transferable before completion of construction, no allotment could have been made in favour of Ganeshlal on the basis of alleged transaction between Revapuri and Ganeshlal and therefore, no title came to vest in Ganeshlal. Consequently Ganeshlal also could not transfer the title to the defenant. However, the suit for injunction was not dismissed in spite of the findings as regards title against the defendant because the Court found by its decision in Ex. 20 as under :
24. After referring the evidence the Court concluded :
24A. It is on these findings the former suit was decreed. On the principle of res judicata the Court trying the present suit is not entitled to retry the same issue again and came to different conclusion about possession. The finding that Onkarlal is in possession of suit since 26-11-65 in his own right has to be accepted and consequently it must be held that plaintiff has failed to prove his dispossession on December 1971. It is held that Omkarlal was in possession of the suit property since 26-11-65 in his own right which he derived from Ganeshlal and was adverse to the plaintiff.
25. The chain of events proved on the record of this case also leaves no room for doubt that the possession of plot was never acquired by the present plaintiff. The plaintiff was allotted the plot in question in 1948 for a consideration of Rs. 457/- by the then City Improvement Committee on pursuance of which he paid only a sum of Rs. 168/12 as. in 1948. No money was paid by him thereafter is duly proved on record. Ex. A/29 and Ex. A/30 are two post cards written in the hands of plaintiff Onkarlal and addressed to Phoolchand Bordia brother of Ganeshlal Bordia. In post card dt. 17-7-55 about the plot in question it has been clearly written :
"Have you heard further about the decision of your brother reg. the plot please let me know very early. In case he retains it well and good, but if not, I shall have to take steps to get the refund immediately, as I shall be in absolute need of money in Oct. 1955. It is likely that there will be one more operation of my wife during this month. Please give this matter top priority".
26. This request was reiterated in post card dt. 25-7-55 Ex. A/30 as under :
"As regards the plot please let me know the decision of your brother if he takes it well and good. Otherwise I shall have to take some step to get the refund expedited. I shall be in very urgent need of money in middle of Oct. 1955 when my wife will undergo one more operation. I therefore expect a quick reply from you. I am preparing to come that side in the first week of next month if possible I shall take a cheque from you."
27. Prior to these by letter dt. 27-5-53 Ex. A/28 the plaintiff has sent authorisation papers to Phoolchand Bordiya for getting refund of the plot money from the City Improvement Trust.
28. All these documents have been proved by Onkarlal to be written by plaintiff in his own handwriting to Phoolchand. There is no cross-examination of defendant Onkarlal on the question that these letters were written by Rewapuri except asking to whom such letters have been written to which defendant has responded that the same has been written to Phoolchand Bordiya. It is admitted position that Ganeshlal is the brother of Phoolchand. This conduct of the plaintiff in relation to plot in question is followed by execution of receipt for Rs. 169/3 as. dt. 2-10-55 from Ganeshlal in lieu of plot No. 366 in Bhopalpura vide Ex. A/26, which reads as under :
"Received a sum of Rs. 169/3/- (Rupees one hundred sixty nine and annas three only) in lieu of the part cash of plot No. 366 in Bhopalpura, transferred on the name of Shri Ganeshlal Bordiya of Udaipur."
29. This document has been produced in original and proved to be in the handwriting of plaintiff Rewapuri by defendant Onkarlal.
30. The fact that plaintiff himself has deposited only Rs. 168/12 as. is proved from plaintiff's own statement. He also states that balance sum of Rs. 288/- and odd were deposited by Ganeshlal, albeit he claimed that he deposited the same through Ganeshlal. He also admits that all acts in relation to plot were being done by Ganeshlal, though not as holder of his power of attorney. He also admits that he used to instruct Phoolchand Bordiya to do all these acts, which he gets done through his brother Ganeshlal, and he was bound by these acts. Yet strangely he says that he has not met Ganeshlal a resident of Udaipur where plot is situated, in whose possession admittedly Patta and receipt of payment for the plot were and plaintiff claims to have constructed over the plot in 1959. It is too abnormal to be believed that a person, who was in dire need of money in July 1955 and was prepared to seek refund of Rs. 168/- from the City Improvement Trust, if Ganeshlal was not prepared to purchase, for which authorisation was also made in 1953, would suddenly find funds to deposit himself the balance amount in Oct. 1953 and, even if this were to be true, would have sent the amount to Ganeshlal to be deposited on his behalf. He further claims to have raised construction over the same plot alleged to be in his possession since 1951, will not even care to meet the gentlemen to secure title deeds which to his knowledge were in his possession and with whose acts he considered himself bound does not sound credible. This conduct only corroborates the case of the defendant that he having agreed to sell the plot in question to Ganeshlal, and obtained the money invested by him on 2-10-1955, had no interest left in it so as to do anything to secure or enquire about title deeds in respect of the plot in question, and Ganeshlal in whose favour he has executed receipt Ex. A/28 and who had admittedly deposited the balance amount, thereafter remained in possession of the suit plot in his own right, so also the Patta and receipt from Revapuri remained in his possession, and he constructed the boundary wall in 1959, on the plot in his own right, to the knowledge of all concerned and not as licensee of plaintiff. Though the plaintiff had agreed to sell the plot in favour of Ganeshlal, formal transfer by registered sale could not take place because under the term of allotment, the plot could not have been transferred by allottee unless construction was made over it. Not only this but by his conduct plaintiff allowed Ganeshlal to project himself the owner of the property. He could not have evicted Ganeshlal from the suit plot on principles of part performance u/S. 53A of the T.P. Act. The defendant being a transferee for value from Ganeshlal, was claiming his right through Ganeshlal, whose possession was protected u/S. 53A. So also defendant's possession is protected against the claim of plaintiff.
31. If for any reason the document Ex.A/26 cannot be treated an agreement to sale the suit plot in writing, so as to invite operation of Sec. 53A of the Transfer of Property Act, the possession of Ganeshlal since 1955 and at least from 1959, when he raised certain construction on the plot in question must be treated to be adverse to the plaintiff and after Ganeshlal transferred his interest if any in law along with possession of the plot to defendant Onkarlal, he too remained in possession of the property in his own right and adverse to plaintiff. The plaintiff never came with a case that Ganeshlal was in possession of the suit plot as his licensee. On the contrary he came with a plea that Ganeshlal was never in possession of the suit plot and that he was dispossessed by defendant only in December 1975. The trial Court seriously erred in making out a new case for plaintiff by treating Ganeshlal as licensee of plaintiff to find the suit within limitation from the date of transfer in favour of Onkarlal. Even from the finding of trial Court it is implicit that actual possession of the plot was with Ganeshlal.
32. Infact the plaintiff came with specific plea that he was dispossessed only in Dec. 1975 contrary to an earlier binding finding and has failed to prove the case of dispossession pleaded by him. Once he failed to prove it no presumption could be raised in the absence of any pleading or proof as to the nature of Ganeshlal's possession to be permissible. In such circumstances, it must be held that plaintiff has failed to prove that he was dispossessed from suit property within 12 years of filing the suit and the defendant has proved that possession of the defendant as well as his predecessor-in-title was adverse to plaintiff since 1955 or at least since 1959 when Ganeshlal raised some construction in the suit plot, on which anvil the suit of plaintiff will be barred under Act 65 of the Limitation Act, 1963.
33. The trial Court clearly erred in not appreciating that on taking any of the alternative position in view of the facts proved on record plaintiff is not entitled to a decree for possession against defendant respondent.
34. As a result of aforesaid discussion the appeal is allowed, the judgment and decree of the lower Court is set aside and the suit of the plaintiff is dismissed with costs.