A Criticism on Shri Mukund Bhavan Trust v. Shrimant Chhatrapati (2024 SC), as regards Finding on Adverse Possession

In Shri Mukund Bhavan Trust v. Shrimant Chhatrapati Udayan Raje Pratapsinh Maharaj Bhonsle (2024 KLT(Online) 3058), the Supreme Court Failed to Notice the Change as regards Onus, Under 1963 Limitation Act.

Saji Koduvath, Advocate, Kottayam

Abstract

On December 20, 2024 our Apex Court, in Shri Mukund Bhavan Trust v. Shrimant Chhatrapati Udayan Raje Pratapsinh Maharaj Bhonsle, 2024 0 KLT(Online) 3058, held –

  • a plaint deserves rejection under Order VII rule 11, CPC if the pleadings contained therein is founded on forgery or fabrication (of documents) that came to the knowledge of the plaintiff decades back,
  • for, such a claim would be hopelessly barred by limitation (as it is governed under Article 59, Limitation Act which fixes period of limitation as 3 years) [Paras 18, 20, 22, 26].

In paragraph 23 of the Judgment, while dealing with ‘adverse possession’, the Court observed as under:

  • “As per Article 65 of the Limitation Act, 1963, the possession of immovable property or any interest therein, based on title can be sought within twelve years. …. The plaintiff has failed to sue the appellant/defendant or the State for possession within twelve years.”

The Case of the Plaintiff, in Brief

  • The plaintiff filed the suit for declaration of title and recovery of the plaint properties. It was alleged in the plaint that the predecessor of the plaintiff (belonging to Gosavis family) had no right, under the original Sanad, to sell the suit properties to the Defendant Trust (under the sale deeds of 1938 and 1952).
  • Since the original Sanad was lost, the defendants had initiated a suit against the State which was compromised. In the compromise, the State accepted that it was a “soil grant”. Plaintiff was not a party to the said suit and without his knowledge, the consent decree was obtained clandestinely
  • Though it was “only a revenue grant”, the defendants have played systematic fraud in Civil Suits of 1951 and 1988 and Civil Appeal of 2001. and without any judicial pronouncements they have usurped the lands under suspicious compromises arrived at before the Court.

The Case of the Defendants, in Brief

  • The defendant Trust contended that the suit was barred by limitation. The Plaintiff or his predecessors did not take any step to assert their title and rights. The plaintiff knows fully well that the challenge to the registered sale deeds of the years 1938 and 1952 would be barred by limitation.
  • The defendant Trust had purchased 3/4th share of the suit lands mentioned in the Schedule in an auction sale conducted by the Civil Court, Pune, in the year 1938 from the previous Inamdar Gosavis family and the same was duly registered; and they had also purchased the remaining 1/4th share in the suit lands in the year 1952 by another registered sale deed.
  • The cause of action to sustain his suit is an imaginary one.

The Application under Order VII Rule 11(d) of CPC

  • The defendant filed application under Order VII Rule 11(d) of CPC r/w Articles 58, 59 and 65 of the Limitation Act, 1963, seeking rejection of the plaint saying that the alleged cause of action in 2007 is ‘purely illusory and has been stated with a view to get over the bar’ of limitation.
  • The trial Court rejected the application. It observed that the issue of limitation is a mixed question of law and facts, for which, the parties will have to lead evidence.
  • The Bombay High Court dismissed the Civil Revision Application by the defendant. Hence the SLP.
  • The Supreme Court allowed the the Order VII rule 11 petition of the defendant/appellant.

Analysis

The Court specifically considered the effect of (i) not seeking cancellation of the disputed deeds in the light of Sec. 31 of the Specific Relief Act (ii) not challenging a sale by the court in 1952 and that by the predecessors of the plaintiff and (iii) the averments in the plaint as regards fraud in relation to the compromise decrees.

  • As regards Section 31 of the Specific Relief Act, 1963, the Apex Court found that a declaration to adjudge the sale deeds voidable must have been sought as it stood “adverse to the interest and right of the plaintiff” and caused a serious injury. (Para 19)
  • As regards the conveyance in 1952, it was found that the right to sue had first accrued to the predecessors of the plaintiff, when the properties were brought for sale by the court in1952; and that “no challenge was made to the court auction“. (Para 19.1)
  • As regards fraud in relation to the compromise decrees, the Apex Court pointed out that the averments in the plaint are “vague and general, besides baseless and unsubstantiated”; and, it was found that “no case can be culled out from the averments made in the plaint” in this respect.  It was further observed that the Plaintiff was a stranger to the suits which ended in compromise. Therefore, in view of the direct bar under Order XXIII Rule 3A of CPC, applicable to third parties as well, the plaintiff could not have sought a declaration theron (Triloki Nath Singh v. Anirudh Singh, (2020) 6 SCC 629), and the only remedy available was to approach the same court. (Para25)

The Apex Court Rejected the Plaint Observing the Following:

  • As settled in law, when an application to reject the plaint is filed, the averments in the plaint and the documents annexed therewith alone are germane (Para 11, 12).
  • Though limitation is a mixed question of fact and law and question of ‘limitation’ has to be decided after weighing the evidence on record, if the averments made in the plaint, on a bare perusal, disclosed that the reliefs were hopelessly barred by limitation, the Courts should not be hesitant to reject the suit under Order VII Rule 11 (Para 18, 26).
  • As per Section 31 of the Specific Relief Act, 1963, a declaration to adjudge the documents as void or voidable must be sought if it causes a serious injury. In the present case, the sale deeds “undisputably stand adverse to the interest and right of the plaintiff” and hence, a relief to declare them as invalid must have been sought. Though the plaintiff has pleaded the documents to be void and sought to ignore the documents, we do not think that the document is void, but rather, according to us, it can only be treated as voidable. (Para 19).
  • In paragraph 14 of the plaint, there is an averment that the original sanad was lost and a new sanad was given to the effect that the inam was a “revenue grant” based on the report of the Inam Commissioner. Again, specific dates are not mentioned in the plaint. In paragraph 25, the plaintiff alleges that “third party rights were created” by the Gosavi family without any right. Here also, the details are vague. It can be inferred that such rights ultimately culminated into court auction, in which, the property was sold to the appellant. (Para 19).
  • The Plaintiff is a “stranger to the suit properties”; the Defendants are the owners of the suit properties. It is a settled principle of law that the owners cannot be restrained from dealing with their own properties at the instance of a stranger. The said relief is again a consequential relief to the claim of title, which has been non-suited on the ground of limitation. The relief of title (founded on a plea of fraud) had to be established by the plaintiff, by a ‘declaration’. (Para 22, 24).
  • The plaintiff is to be non-suited on the ground of limitation; because, the limitation period is 3 years for both Article 58 (declaration) and Article 59 (cancellation of a decree) Limitation Act (Para 19.1, 20).
  • The case put forwarded by the Plaintiff as to fraud and compromise decrees are “vague and general, besides baseless and unsubstantiated” (only remedy on such situation lies in the same court) (Para 25).
  • It is not correct to contend that the provisions of the Limitation Act would have no application at all in the event the transaction is held to be void. [Relied on: Prem Singh v. Birbal, (2006) 5 SCC 353.]
  • The plaintiff has failed to sue the defendant for possession within twelve years of losing possession (para 23).

Nevertheless, allowing the appeal, the Apex Court observed in the penultimate paragraph as under:

  • “26. At this juncture, we wish to observe that we are not unmindful of the position of law that limitation is a mixed question of fact and law and the question of rejecting the plaint on that score has to be decided after weighing the evidence on record. However, in cases like this, where it is glaring from the plaint averments that the suit is hopelessly barred by limitation, the Courts should not be hesitant in granting the relief and drive the parties back to the trial Court.
  • We again place it on record that this is not a case where any forgery or fabrication is committed which had recently come to the knowledge of the plaintiff. Rather, the plaintiff and his predecessors did not take any steps to assert their title and rights in time. The alleged cause of action is also found to be creation of fiction. However, the trial Court erroneously dismissed the application filed by the appellants under Order VII Rule 11(d) of CPC.
  • The High Court also erred in affirming the same, keeping the question of limitation open to be considered by the trial Court after considering the evidence along with other issues, without deciding the core issue on the basis of the averments made by the Respondent No.1 in the Plaint as mandated by Order VII Rule 11 (d) of CPC.
  • The spirit and intention of Order VII Rule 11(d) of CPC is only for the Courts to nip at its bud when any litigation ex facie appears to be a clear abuse of process. The Courts by being reluctant only cause more harm to the defendants by forcing them to undergo the ordeal of leading evidence. Therefore, we hold that the plaint is liable to be rejected at the threshold.”

A Criticism

Article 65 of the Limitation Act, 1963 primarily governs the Law on Adverse Possession. According to this Article –

  • the starting point of Limitation is “When the possession of the defendant becomes adverse to the plaintiff.”

Articles 65 of the Limitation Act, 1963 reads as under:

65. For possession of immovable property or any interest therein based on title.12 yearsWhen the possession of Defendant becomes
adverse to the plaintiff.

Art. 65 underwent complete change insofar as the onus is concerned (from 1908 Limitation Act). It casts the entire burden on the claimant/trespasser to plead and prove adverse possession.

Plaintiff need not have filed the suit within 12 years of losing possession

It is noteworthy – under Article 65, the plaintiff need not have come before the court within 12 years of losing possession; the period of 12 years has significance only if the defendant asserts “adverse possession”.

  • Because, the 12-year-period stated in Article 65 is not the period of
    • “mere losing possession” by the plaintiff;
  • on the contrary, what is stated is 12 years of
    • “adverse possession”
  • from the part of the defendant (with the required animus).

Finding in Shri Mukund Bhavan Trust v. Shrimant Chhatrapati as to Recovery of Possession – Appears to be Incorrect

After definitely holding that the title claim of the plaintiff is barred by limitation under Article 58 (declaration) and Article 59 (cancellation of a decree) of the Limitation Act, the Apex Court considered, in paragraph 23 of the Judgment, as an additional ground, whether the suit is barred under Article 65 of the Limitation Act that deals with ‘adverse possession’. It is observed that the plaintiff has failed to sue the appellant/defendant or the State, for possession, within twelve years. (Therefore the suit is liable to be rejected on this ground also.)

Para 23 reads as under:

  • “23. Further, in the aforesaid suit, the Respondent No.1 also sought possession of the suit properties based on title. As per Article 65 of the Limitation Act, 1963, the possession of immovable property or any interest therein, based on title can be sought within twelve years. From the records, it is evident that the possession of the subject properties was initially with the Government of Maharashtra, then with the Gonsavis and thereafter with the Defendant No. 1 and it can be safely said that at least for a century, the Respondent No. 1 nor his predecessors have been in possession of the properties after the grant of Inam. The plaintiff has failed to sue the appellant/defendant or the State for possession within twelve years. We have already held that the title claim of the plaintiff is barred by limitation and therefore, the claim for possession is also barred and consequently, the relief of recovery of possession is also hopelessly barred by limitation.”

But it is trite law – to attract ‘Adverse Possession’ mere possession, however long,  is insufficient; it must be ‘adverse‘.

Limitation Act underwent Complete Change insofar as the ‘Onus’ 

In Government of Kerala v. Joseph, AIR 2023  SC 3988, our Apex Court (following P.T. Munichikkanna Reddy v. Revamma, (2007) 6 SCC 59) pointed out that that the Limitation Act, 1963 underwent complete change insofar as the onus is concerned (from 1908 Limitation Act). The Court observed as under:

  • “34. The law in this behalf has undergone a change. In terms of Articles 142 and 144 of the Limitation Act, 1908, the burden of proof was on the plaintiff to show within 12 years from the date of institution of the suit that he had title and possession of the land, whereas in terms of Articles 64 and 65 of the Limitation Act, 1963, the legal position has underwent complete change insofar as the onus is concerned : once a party proves its title, the onus of proof would be on the other party to prove claims of title by adverse possession….”

In T. Anjanappa v. Somalingappa, (2006) 7 SCC 570, it has been held as under:

  • “20. It is well-recognised proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner’s title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former’s hostile action.” (Quoted in: Chatti Konati Rao v. Palle Venkata Subba Rao, AIR 2011 SC 1480, 2010 14 SCC 316)

In Mallikarjunaiah v. Nanjaiah, 2019-15 SCC 756, it is held as under:

  • “It is a settled principle of law that mere continuous possession howsoever long it may have been qua its true owner is not enough to sustain the plea of adverse possession unless it is further proved that such possession was open, hostile, exclusive and with the assertion of ownership right over the property to the knowledge of its true owner.”

The law on this point (i.e., mere possession, however long,  is insufficient; but, it must be “adverse“, to attract ‘Adverse Possession’) is laid down in the following decisions also:

  • Government of Kerala v. Joseph, AIR 2023  SC 3988
  • Uttam Chand v. Nathu Ram, 2020-11 SCC 263, AIR  2020 SC 461,
  • Ravinder Kaur Grewal v. Manjit Kaur (2019) 8 SCC 729
  • Ram Nagina Rai v. Deo Kumar Rai, 2019-13 SCC 324
  • Mallikarjunaiah v. Nanjaiah, 2019-15 SCC 756
  • Chatti Konati Rao v. Palle Venkata Subba  Rao, 2010-14 SCC 316
  • T. Anjanappa v. Somalingappa – 2006(7) SCC 570.
  • Karnataka Board of Wakf v. Govt. of India – (2004) 10 SCC 779.
  • Thakur Kishan Singh v. Arvind Kumar, 1994-6 SCC 591
  • Gaya Prasad Dikshit v. Dr. Nirmal Chandar 1984(2) SCC 286.

A Brief Note on Article 65

  • Article 65 deals with recovery based on title.
  • Under Article 65, in a suit on title, previous period in dispossession of plaintiff is immaterial. The onus is no longer on the plaintiff to prove that his dispossession took place within the period of limitation. (Jagannath Garnaik v. Sankar Samal, AIR 1990 Ori 124; State of Orissa v Jhunjhunwalla, 1986 CLT 55)  
  • Under Article 65, once title is established by the plaintiff, plaintiff cannot be non-suited, unless defendant establishes adverse possession.  (Indira v. Arumugam, AIR 1999 SC 1549; Bhushan Lal v. Suresh Kumar, AIR 1987 All 25,  Manikyala Rao v. Narasimhaswami, AIR 1996 SC 470; Mallavva v. Kalsammanavara Kalamma, 2024 INSC 1021.)
  • Under Article 65, if plaintiff could not prove his title, he will fail; and in such a case, whether the defendant proves title (or not) is immaterial. (Ranjit Kumar Bhowmik v.  Subodh Kumar Roy, (2004) I WBLR 228: (2004) 2 CHN 180).

‘Deemed Knowledge’ as to Registration to ‘Persons Acquiring such Property

The Apex Court (in Shri Mukund Bhavan Trust v. Shrimant Chhatrapati) referred to Dilboo v. Dhanraji, AIR 2000 SC 3146 : 2000-7 SCC 702, held as under:

  • “20…… Whenever a document is registered the date of registration becomes the date of deemed knowledge. In other cases where a fact could be discovered by due diligence then deemed knowledge would be attributed to the plaintiff because a party cannot be allowed to extend the period of limitation by merely claiming that he had no knowledge.”

It is noteworthy that the ‘deemed knowledge’ as to registration is confined to ‘persons acquiring such property or any part of, or share or interest in, such property’ alone, as per Section 3 Explanation 1 of the TP Act. It reads as under:

  • “Explanation I – Where any transaction relating to immoveable property is required by law to be and has been effected by a registered instruments, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or (where the property is not all situated in one sub-district….”

Registration is not a notice in rem

In Parganas Lawyers Clerks Association  v. State, AIR 1986  Cal. 205, it is unequivocally held as to Registration of deeds – “It is not a notice in rem“.

The law expounded in Explanation to Sec. 3 of the TP Act cannot be used as a shield to protect from the criminal actions on willful suppression of facts, in a criminal matter, as held in Kuldip Singh v. State, AIR 1954 P&H 31, it was observed as under:

  • “The object of the explanation to Section 3 is to safeguard the interests of a third party who has acquired a good title under a previous registered instrument but it does not in any way alter or modify the criminal liability of a person who deliberately suppresses certain facts or misstates certain facts.”

Law on this point is vividly explained in the following decisions:

  • Kuldip Singh v. State, AIR 1954 P&H 31
  • Parganas Lawyers Clerks Association  v. State, AIR 1986  Cal. 205,
  • Godhan Son of Pola v. Ram Bilas, AIR 1995 All. 357
  • R. Ravichandran v. The State of Tamil Nadu, 2002-2-LW 590
  • Arabia Bibi v. Sarbunnisa (2011, R. Subbiah, J.),
  • Ranjit Singh v. Punjab State, 2014-4 LawHerald 3533; 2014-3 RCR(Civ) 766

Read Blog: Does Registration of a Document give Notice to the Whole World?

Conclusion

(i) Law as to seeking declaration

The Apex Court vividly expounded the law as regards adjudging the documents as void or voidable invoking Section 31 of the Specific Relief Act, 1963. The Court pointed out that the plaintiff being challenged (i) the sale made by his predecessor itself, and also (ii) the auction sale conducted by a Civil Court, it was necessary to seek declarations in those regard.

(ii) Law on Adverse Possession

Nonetheless, as shown above, it is beyond doubt that mere possession, however long, is not sufficient to bring home the doctrine of adverse possession; but, it must have been held “adverse” to the interests of the true owner for the stipulated period and must have been tracked with the required animus from the part of the claimant.

Therefore, it can be stated – in accordance with Article 65 of the Limitation Act, 1963,

  • unless the defendant asserts and proves ‘adverse possession’, the possession of immovable property or any interest therein, based on title need not be sought (by the plaintiff) within twelve years of losing possession.

Read Blog: How to Plead Adverse Possession? Adverse Possession: An Evolving Concept

End Notes – 1

Law on Section 31 of the Specific Relief Act, 1963

Whether a declaration to adjudge the documents as void or voidable must be sought if it causes a serious injury?

End Notes – 2

Relevant portion of Section 3 of the Transfer of Property Act, 1882:

“3. Interpretation clause

……

  • “a person is said to have notice” of a fact when he actually knows that fact, or when, but for wilful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it.
  • Explanation I.—Where any transaction relating to immoveable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or, where the property is not all situated in one sub-district, or where the registered instrument has been registered under sub-section (2) of section 30 of the Indian Registration Act, 1908 (16 of 1908), from the earliest date on which any memorandum of such registered instrument has been filed by any Sub-Registrar within whose sub-district any part of the property which is being acquired, or of the property wherein a share or interest is being acquired, is situated:
  • Provided that—(1) the instrument has been registered and its registration completed in the manner prescribed by the Indian Registration Act, 1908 (16 of 1908), and the rules made thereunder, (2) the instrument or memorandum has been duly entered or filed, as the case may be, in books kept under section 51 of that Act, and(3)the particulars regarding the transaction to which the instrument relates have been correctly entered in the indexes kept under section 55 of that Act.
  • Explanation II.—Any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof.
  • Explanation III.—A person shall be deemed to have had notice of any fact if his agent acquires notice thereof whilst acting on his behalf in the course of business to which that fact is material:
  • Provided that, if the agent fraudulently conceals the fact, the principal shall not be charged with notice thereof as against any person who was a party to or otherwise cognizant of the fraud.”

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