Declaration of Title & Recovery of Possession: Art. 65, not Art. 58, Limitation Act Governs

Jojy George Koduvath

Introduction

A suit for declaration is governed by Article 58 of the Limitation Act and the period of limitation is three years. However, when (i) declaration of Title and (ii) Recovery are sought for, Article 65 governs; Not, Art. 58.

Declaration of Title & Recovery: Article 65  Governs; Not, 58

Following decisions declares the law on this matter:

  • C. Natrajan v. Ashim Bai,  (2007) 14 SCC 183
  • N. Thajudeen v. Tamil Nadu Khadi and Village Industries Board, AIR 2024 SC 5641
  • State of Maharashtra v. Pravin Jethalal Kamdar, (2000) 3 SCC 460
  • Padmavathy v. Kesava Reddy, 1987-2 KLT 386, Dr. Kochuthomman, J.
  • Unnikrishnan v. Ponnu Ammal, AIR 1999 Ker. 405
  • Seshumull M. Shah v. Sayed Abdul Rashid, AIR 1991 Kar. 273
  • S. Krishnamma v. T.S. Viswajith:  2009 (4) KerLT 840
  • Gopakumar v. Kamalakshy Purushothaman, 2019-3 KHC 478
  • Aishani Chandna Mehra v. Rajesh Chandna,2019-0-Supreme(Del) 1-70; Laws (Dlh) 2019-1-288, (Rajiv Sahai Endlaw, J.) 
  • Ashok Kumar v. Gangadhar, 2007 (2) ALD 313
  • Mechineni Chokka Rao v. Sattu Sattamma, 2006 (1) ALD 116
  • K.J. Abraham v. Mrs. Mariamma Itty, ILR 2016-3 Ker 98 (Antony Dominic & Hariprasad, JJ.)

(a) In N. Thajudeen v. Tamil Nadu Khadi and Village Industries Board, AIR 2024 SC 5641, it is held as under:

  • “In the case at hand, the suit is not simply for the declaration of title rather it is for a further relief for recovery of possession. It is to be noted that when in a suit for declaration of title, a further relief is claimed in addition to mere declaration, the relief of declaration would only be an ancillary one and for the purposes of limitation, it would be governed by the relief that has been additionally claimed. The further relief claimed in the suit is for recovery of possession based upon title and as such its limitation would be 12 years in terms of Article 65 of the Schedule to the Limitation Act.
  • In C. Mohammad Yunus vs. Syed Unnissa and Others, AIR 1961 SC 808 it has been laid down that in a suit for declaration with a further relief, the limitation would be governed by the Article governing the suit for such further relief. In fact, a suit for a declaration of title to immovable property would not be barred so long as the right to such a property continues and subsists. When such right continues to subsist, the relief for declaration would be a continuing right and there would be no limitation for such a suit. The principle is that the suit for a declaration for a right cannot be held to be barred so long as Right to Property subsist.”

(b) In Gopakumar v. Kamalakshy Purushothaman, 2019-3 KHC 478; 2019-3 Ker LJ 269 it is held as under:

  • “Article 58 of the Limitation Act would be applicable in a suit for declaration, but it has no application when the relief sought in the plaint is not for a mere declaration, but coupled with other reliefs like injunction, partition, possession etc. and Article 65 of the Limitation Act would come into play giving 12 year period. In the instant case, the relevant Article which can be applied is not Article 58, but Article 65 as the suit was filed not merely for a relief of declaration, but for declaration of title and for recovery of possession of immovable property.”

(c)   In Aishani Chandna Mehra v. Rajesh Chandna,2019-0-Supreme(Del) 1-70; Laws (Dlh) 2019-1-288, (Rajiv Sahai Endlaw, J.) observed, referring his own earlier 3 judgments, as under:

  • “23. Otherwise also, I have in Sunil Kohli v. Subhash Chand Dua 2016 SCC OnLine Del 3244, Ashok Kumar v. Mohd. Rustam(2016) 227 DLT 385,  and Capital Land Builders Pvt. Ltd. v. Komal, 2018 SCC OnLine Del 11867, held –
  • (i) that in suits claiming relief with respect to immoveable property, the relief of declaration, even if claimed, is superfluous and the limitation for the suit would be governed by the limitation provided for the relief of possession; the longer limitation period provided for instituting a suit for recovery of possession would not be curtailed by the lesser limitation of three years provided for a suit for declaration;
  • (ii) that to hold otherwise would tantamount to providing two different periods of limitation for a suit for recovery of possession of immovable property based on title i.e. of three years if the suit, besides for the said relief is also for the relief of declaration of title and of twelve years, if no relief of declaration is claimed;
  • (iii) that a relief of declaration of title to immovable property is implicit in a suit for recovery of possession of immovable property based on title inasmuch as without establishing title to property, if disputed, no decree for the relief of possession also can be passed;
  • (iv) that thus, merely because a plaintiff in such a suit also specifically claims the relief of declaration of title, cannot be a ground to treat him differently and reduce the period of limitation available to him from that provided of twelve years, to three years; and,
  • (v) that when a relief of declaration is coupled with the relief of possession, the larger period of limitation for the relief of possession and not the lesser period of limitation for the relief of declaration would apply.
  • Reference in this regard may also be made to Vidur Impex and Traders Pvt. Ltd. v. Pradeep Kumar Khanna (2017) 241 DLT 481 and C. Natrajan v. Ashim Bai (2007) 14 SCC 183.”

(d)   In Ashok Kumar v. Mohd. Rustam, 2016 SCC OnLine Del 466: MANU/DE/0197/2016
(Rajiv Sahai Endlaw, J.), it was held as under:

  • “16. Article 58 of the Schedule to the Limitation Act, for the relief of declaration, undoubtedly provides limitation of three years from the date when the cause of action accrues. However I am of the opinion that once the plaintiff, besides suing for declaration of title also sues for recovery of possession of immovable property on the basis of title, the limitation for such a suit would be governed by the limitation provided for the relief of possession and not by limitation provided for the relief of declaration. To hold otherwise would tantamount to providing two different periods of limitation for a suit for recovery of possession of immovable property based on title i.e. of three years if the suit besides for the said relief is also for the relief of declaration of title and of twelve years as aforesaid if no relief of declaration is claimed. A relief of declaration of title to immovable property is implicit in a suit for recovery of possession of immovable property based on title inasmuch as without establishing title to property, if disputed, no decree for the relief of possession also can be passed. Thus, merely because a plaintiff in such a suit also specifically claims the relief of declaration of title, cannot be a ground to treat him differently and reduce the period of limitation available to him from that provided of twelve years, to three years. “ (referred to in Vidur Impex and Traders Pvt. Ltd. v. Pradeep Kumar Khanna, 2017- 241 Del LT 481)

(e) In Suhrid Singh @ Sardool Singh vs Randhir Singh, AIR 2010 SC 2807, 2010-12 SCC 112, it is observed as under: 

  • “6. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non-est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to ‘A’ and ‘B’ — two brothers. `A’ executes a sale deed in favour of `C’. Subsequently `A’ wants to avoid the sale. `A’ has to sue for cancellation of the deed. On the other hand, if `B’, who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by `A’ is invalid/void and non- est/ illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and court fee is also different. If `A’, the executant of the deed, seeks cancellation of the deed, he has to pay ad-valorem court fee on the consideration stated in the sale deed. If `B’, who is a non-executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs. 19.50 under Article 17(iii) of Second Schedule of the Act. But if `B’, a non- executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad-valorem court fee as provided under Section 7(iv)(c) of the Act. Section 7(iv)(c) provides that in suits for a declaratory decree with consequential relief, the court fee shall be computed according to the amount at which the relief sought is valued in the plaint. The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of Section 7.”

 (f)   In S. Krishnamma v. T.S. Viswajith:  2009 (4) KerLT 840, it is held that Article 58 is not applicable for declaration that is sought only as an ancillary relief. It is held as under:

  • “When a declaration regarding the void character of the document is sought for that is which would not govern the period of limitation for the suit. The consequential relief sought for is to be treated as main relief governing the period of limitation for the suit. (See Mrs. Indira Bhalchandran Gokhale v. Union of India & Another-AIR 1990 Bombay 98). Therefore declaration prayed for in this case as relief Nos. 1 and 2 were unnecessary, and even if made, need only be treated as ancillary to the main relief of partition of immovable properties and the claim that appellant is entitled to get family pension.”

(g) In Ashok Kumar v. Gangadhar, 2007 (2) ALD 313, 2007 (3) ALT 561, it is held:

  • “If the contention of the defendants that Article 58 applies to the suit for possession based on title where declaration of title is also sought, is accepted, it would amount to ignoring the relief for recovery of possession and application of Article 65 to a suit for possession and taking away the right of the plaintiff to prove that the suit is within 12 years from the date when the possession of the defendant becomes adverse to the plaintiff.  If such a suit were to be decided with reference to Article 58 on the ground that the declaration is sought for, application of Article 65 to the suit for possession would be rendered otiose.  Such a construction would be opposed to all principles of interpretation of statutes.  Therefore different Articles of the Limitation Act will have to be interpreted harmoniously.  When such an interpretation is given to Articles 58 and 65 and when the suit is filed for declaration of title to the suit property with consequential relief of possession in my humble view Article 65 of the Limitation Act would apply and not Article 58 of the Limitation Act”.

(h) It is held in Mechineni Chokka Rao v. Sattu Sattamma, 2006 (1) ALD 116, as under:

  • “10…. It is obvious that Article 58 is in the nature of residuary provision among the declaratory suits. Indubitably the relief of declaration can be sought for in respect of an immovable property or movable property, or in respect of an instrument, or in respect of a decree, or in respect of an adoption. Thus, various types of declaratory reliefs can be sought for pertaining to those categories. Therefore, the relief of declaration alone appears to be not the criterion for prescribing the period of limitation but the subject-matter of the suit in respect of which the declaration is sought for, appears to be germane for consideration.”
  • “13. The problem can be viewed in a different dimension. The right over an immovable property will get extinguished as can be seen from Section 27 of the Act only after the expiry of the period prescribed for filing the suit for possession as per Articles 64 and 65 of the Act. Therefore, if the period falls short of the requisite period of 12 years the right over an immovable property will not get extinguished. When the person has a right over an immovable property which right is not extinguished as yet, he can lay the suit in respect of an immovable property even praying for the relief of declaration at any time within the period of 12 years at the end of which, his right would get extinguished. When we consider this clear mandate contained in Section 27 f the Act, it becomes manifest that a declaratory relief in respect of an immovable property can be sought for at any time within the period of 12 years after which the right will get automatically extinguished, notwithstanding the fact that Article 58, the residuary Article for filing declaratory suits, prescribes a period of three years limitation. … ….”

(i)   In C. Natrajan v. Ashim Bai, AIR 2008 SC 363; (2007) 14 SCC 183, our Apex Court held as under:

  • “13. If the plaintiff is to be granted a relief of recovery of possession, the suit could be filed within a period of 12 years. It is one thing to say that whether such a relief can be granted or not after the evidences are led by the parties but it is another thing to say that the plaint is to be rejected on the ground that the same is barred by any law. If the suit has been filed for possession, as a consequence of declaration of the plaintiffs title, Article 58 will have no application.”

(j)  State of Maharashtra v. Pravin Jethalal Kamdar, (2000) 3 SCC 460, was a suit for declaration in respect of a right of pre-emption and also for possession. It was contended that the deed was null and void. Our Apex Court held that merely for the fact that the plaintiff, besides the relief of possession, sought declaration also was of no consequence, and that in such a case the governing article of the Schedule to the Limitation Act would be Article 65. It is observed as under:

  • “As already noticed, in Bhim Singhji’s case, (AIR 1981 SC 234) (supra) Section 27(1) insofar as it imposes a restriction on transfer of any urban or urbanisable laid with a building or a portion of such building, which is within the ceiling area, has been held to be invalid. Thus, it has not been and cannot be disputed that the order dated 26th May, 1976, was without jurisdiction and nullity. Consequently, sale deed executed pursuant to the said order would   also be a nullity. It was not necessary to seek a declaration about the invalidity of the said order and the sale deed. The fact of plaintiff having sought such a declaration is of no consequence. When possession has been taken by the appellants pursuant to void documents, Article 65 of the Limitation Act will apply and the limitation to file the suit would be 12 years. When these documents are null and void, ignoring them a suit for possession simpliciter could be filed and in the course of the suit it could be contended that these documents are nullity. In Ajudh Raj v. Moti S/o. Mussadi, (1991) 3 SCC 136: (1991 AIR SCW 1576: AIR 1991 SC 1600) this Court said that if the order has been passed without jurisdiction, the same can be ignored as nullity, that is, non-existent in the eyes of law and is not necessary to set it aside; and such a suit will be governed by Article 65 of the Limitation Act. …..”

(k)   In Seshumull M. Shah v. Sayed Abdul Rashid , AIR 1991 Kar. 273, Karnataka High Court observed that a suit where possession is claimed as a consequence of the declaration, it would be governed by Article 65 and not Article 58 of the Limitation Act.

(l)  If plaintiff has clear title in a suit for recovery on the strength of that title, plaintiff is not obliged to seek declaration (Padmavathy v. Kesava Reddy, 1987-2 KerLT 386, Dr. Kochuthomman, J.; Unnikrishnan v. Ponnu Ammal, AIR 1999 Ker. 405)

(m)  In page 752 of the Treatise by B. B. Mitra, the Limitation Act, 23rd Edition, reads as under:

  • “Article 65, and not Article 58, was attracted because no separate declaration was necessary, and the suit was essentially a suit for possession attracting Article 65. (State of Maharashtra v. Praveen, AIR 2000 SC 1099)”

Declaration Stands as Subservient to main prayer of Recovery

In K.J. Abraham v. Mrs. Mariamma Itty, ILR 2016-3 Ker 98 (Antony Dominic & Hariprasad, JJ.), held as under:

  • “27. Article 56 of the Act deals with declaration of forgery of an instrument and Article 57 deals with matters relating to validity of an adoption. Article 58 is the residuary Article for matters not falling within Articles 56 and 57 of the Act. It is well settled that Article 58 will apply only to a suit for declaration simplicitor.

Question of limitation arises only when Adverse Possession

  • Q. of limitation comes if only Plaintiff has clear title and the defendant bases his claim on Adv. Possn.
    If defendant has title, or better title, it is immaterial when he got it (i.e., title deed). He has to just point it out.

In K.J. Abraham v. Mrs. Mariamma Itty, ILR 2016-3 Ker 98 (Antony Dominic & Hariprasad, JJ.), held as under:

  • 30. It is clear from Article 65 of the Act that a right to recover possession of immovable property by a person on the claim of title can be defeated by another person after 12 years if only he establishes that he was holding possession of the property adverse to the person first mentioned. In other words, in a suit for recovery of possession of immovable property based on title, the question of limitation will arise only when the defendant pleads and proves adverse possession for a continuous period of 12 years. The above statement can be amplified by saying that in such a case, if the defendant fails to plead and prove adverse possession for the statutory period, there will be no bar for the plaintiff in getting recovery of possession of the property on the basis of title even after 12 years. The obvious reason is that a claim based on title paramount is a superior claim and it can be defeated only in a manner provided by law.

Recovery of Possession on Title – Declaration Subservient to Main Prayer

K.J. Abraham v. Mrs. Mariamma Itty, ILR 2016-3 Ker 98 (Antony Dominic & Hariprasad, JJ.), further held as under:

  • 37. Upshot of the discussion is that the above principles can be applied to the facts and circumstances of this case and therefore, it can only be held that the predominant nature of the suit is one for recovery of possession of property on the strength of title and declaration is only subservient to the main prayer. That is claimed only to dispel the cloud cast on the plaintiffs’ title. So much so, Article 58 of the Act has no application and Article 65 of the Act applies in this case.”

The Kerala High Court (K.J. Abraham v. Mrs. Mariamma Itty, ILR 2016-3 Ker 98) referred the following decisions:

  • (i) Amrendra Pratap Singh v. Tej Bahadur   Prajapati, AIR 2004 SC 3782. (Adverse possession is a fact, which is to be specifically pleaded and proved.)
  • (2) Mst. Gulkandi v. Prahlad, AIR 1968 Raj 51. (It was contended by the plaintiff that certain documents were not binding on him as he was not a party thereto. The court held that there was no necessity to cancel or set aside those documents and therefore Article 91 of the old Act was not applicable. It was also held that Article 144 of the old Act, prescribing a period of 12 years in the case of recovery of possession of property, would be applied.)
  • (3) Pavan Kumar v. K. Gopalakrishnan, AIR 1998 AP 247. (The suit was essentially and primarily a suit for possession based on title and a mere fact that a declaration of title was also sought therein did not bring it within Article 58 or Article 113 of the Act so as to attract the three years period of limitation; a formal declaration of title was sought only by way of an abundant caution.)
  • (4) Rama Pujhari v. Gouri   Bewa, AIR 2006 Ori 129. (A suit in which declaratory and recovery of possession reliefs are claimed on the basis of the contention that the impugned document was void ab initio can only be viewed as a suit predominantly for recovery of possession and Article 65 of the Act applies.) 
  • (5) Seshumull M. Shah v. Sayed Abdul Rashid, AIR 1991 Kar 273. (Article 58 of the Act will not apply for a suit for possession as a consequence of declaration.)
  • (6) State of Maharashtra v. Pravin Jethalal Kamdar, AIR 2000 SC 1099. (The fact of plaintiff having sought such a declaration (documents void) is of no consequence. Article 65 of the Limitation Act will apply.)

If Title Established, Plaintiff cannot be non-suited, unless Adv. Possession proved

In Indira v. Arumugam, AIR 1999 SC 1549, it was held that a plaintiff cannot be non-suited, in a suit based on title, unless the defendant proves adverse possession for the prescriptive period. It is held as under:

  • “It is, therefore, obvious that when the suit is based on title for possession, once the title is established on the basis of relevant documents and other evidence unless the defendant proves adverse possession for the prescriptive period, the plaintiff cannot be non-suited……” (Followed in: Mallavva v. Kalsammanavara Kalamma, 20 Dec 2024, 2024 INSC 1021)

Same principle is applied in the following decisions also:

  • Saroop Singh v. Banto, (2005) 8 SCC 330,
  • M. Durai v. Muthu, (2007) 3 SCC 114,
  • P.T. Munichikkanna Reddy v. Revamma, (2007) 6 SCC 59
  • Neelam Gupta v. Rajendra Kumar Gupta ((2024) 2 SCR 326; 2024 INSC 769: C.T. Ravikumar and Sanjay Kumar, JJ.

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