B.P. Katakey, J.
1. The appellant herein as plaintiff instituted TS 3/1980 on 5-4-1980 in the Court of learned Asstt. District Judge at Karimganj, which was subsequently transferred to the Court of the learned Civil Judge (Jr. Division) No. 1 (now, Munsiff No. 1) at Karimganj and re-numbered as TS 284/1993, praying for declaration of her occupancy right in respect of the land measuring 2 bighas, described in Schedule to the plaint, for confirmation of possession as well as for declaration that the sale deed dated 20-5-1977 executed by the predecessor in interest of the present proforma respondent Nos. 5 to 8 is void, fake, fraudulent and inoperative and also for permanent injunction against the respondent Nos. 1, 2 and 3 (defendant Nos. 1, 2 & 3 in the suit). The suit was contested by the defendant Nos. 1, 3 and 5 by filing a joint written statement. The plaintiff in the suit contended inter alia that she is in possession of the land by virtue of the purchase vide sale deed dated 18-5-1970 and the defendant No. 6 having no right, title and possession, sold the said suit land to the predecessor-in-interest of the defendant Nos. 1 to 5 by executing a sale deed on 20-5-1977 without her knowledge, about which she came to know on 19-3-1980 when the defendant Nos. 1, 2 and 3 informed her and requested to hand over the possession of the suit land. It has further been contended in the plaint that the defendant No. 6 and the predecessor-in-interest of defendant Nos. 1, 2 & 5 and 7 to 10 created a collusive sale deed in respect of the suit land. The defendant Nos. 1, 3 and 5 contested the suit by filing written statement stating inter alia that the husband of the plaintiff Kumud Ranjan Dey (defendant No. 6) was the original owner of the suit land as the said land was purchased out of his own fund in the name of the plaintiff and, thereafter he sold the land to the defendants by a registered deed of sale and put into possession. It has also been contended In the written statement that since then the defendants have been in possession of the suit land by growing crops and by constructing house thereon and the suit has been brought by the plaintiff in collusion with her husband (defendant No. 6) with the false averments.
2. Though the plaintiff initially prayed for confirmation of possession in the plaint, on the prayer made by her, the prayer portion of the plaint was amended vide order dated 12-11-1992 whereby the plaintiff has sought for recovery of khas possession. The defendant Nos. 1, 3 and 5, after the amendment, filed additional written statement contending inter alia that the suit is barred by limitation as they are possessing the suit land with the knowledge of the plaintiff and the public in general.
3. The learned trial Court on the basis of the evidences on record, both oral and documentary vide judgment dated 18-3-2000 decreed the suit of the plaintiff declaring her right, title and interest over the suit land and also for recovery of khas possession. Being aggrieved, the defendant Nos. 1 to 5 (respondent Nos. 1 to 5 herein) preferred Title Appeal No. 21/2000 in the Court of the learned Civil Judge (ST. Division) at Karimganj (now, Civil Judge), which was allowed by the learned first appellate Court vide judgment and decree dated 19-4-2003 by setting aside the judgment and decree passed by the learned trial Court and dismissing the suit of the plaintiff and hence, the present appeal.
4. This appeal was initially admitted for hearing vide order dated 21-8-2003 on the following substantial questions of law:
(i) Whether the learned lower appellate Court erred in law in holding that defendant No. 6 had title to the suit land as benamdar although the defendants failed to lead any evidence at all to the said effect?
(ii) Whether the sale made by the defendant No. 6 is bad for violation Section 8 of the Assam (Temporarily Settled Areas) Tenancy Act, 1971 and the Rules framed there under?
5. However, the substantial question of law has been re-framed vide order dated 5-6-2008, after hearing the learned Counsel for the parties and on a consideration of the pleadings and evidence on record, which reads as follows:
Whether the learned Appellate Court erred in law in dismissing the appellant/plaintiffs suit based on title only for her omission to incorporate the prayer for relief of recovery of possession of the suit land within 12 years of her dispossession therefrom?
6. During the pendency of the appeal, as the respondent No. 5 (defendant No. 5 in the suit) died, her name was struck off from the list of respondents vide order dated 20-12-2007 passed in the appeal, as her legal heirs are already on record, being respondent Nos. 1 to 4. The names of proforma respondent Nos. 9 to 13 were also struck off from the list of respondents pursuant to the order dated 14-10-2004 passed in MC 2885/2004, as no relief has been claimed against them and they never contested the suit.
7. Heard Mr. G.N. Sahewalla, learned Counsel for the appellant as well as Mr. P. K. Roy, learned Counsel for the respondent Nos. 1 to 4.
8. Mr. Sahewalla, learned senior counsel, challenging the judgment and decree passed by the first appellate Court and in support of the substantial question of law formulated by this Court vide order dated 5-6-2008, has submitted that it appears from the impugned judgment that the learned first appellate Court is in fact not sure whether the suit filed by the appellant comes under Article 64 or Article 65 of the Limitation Act, as the learned Court below has, while dismissing the suit filed by the plaintiff/appellant by allowing the appeal filed by the present respondent Nos. 1 to 4, recorded the finding that the suit filed by the plaintiff/appellant is barred under Articles 64 and 65 of the Limitation Act. According to learned senior counsel, as in the suit filed by the plaintiff/appellant, there is a prayer for declaration of occupancy right in respect of the schedule property, apart from the recovery of khas possession, it comes under Article 65 of the Limitation Act and, therefore, to non-suit the plaintiff on the ground of limitation, the burden lies on the defendants to prove the date when their possession has adverse to the interest of the plaintiff, as the period of 12 years limitation runs from the date when such possession has become adverse to the interest of the plaintiff. It has further been submitted that it is apparent from the judgment passed by the learned first appellate Court that there is absolutely no finding recorded relating to the adverse possession of the present respondent Nos. 1 to 4 and also the date on which their possession became adverse to the interest of the plaintiff and, on the other hand, the learned Court below has allowed the appeal and dismissed the suit of the plaintiff on the ground of limitation. It has been submitted that as the learned lower appellate Court has held that the defendants are in possession of the suit land with effect from 20-5-77 i.e. the date of execution of the sale deed by the defendant No. 6 in favour of the predecessor-in-interest of defendant Nos. 1 to 5, the suit is not barred by limitation, having filed on 5-4-80, under Article 65 of the Limitation Act.
9. Mr. Roy, learned Counsel for the respondents, on the other hand, supporting the judgment and decree passed by the learned lower appellate Court, has submitted that as the suit is for recovery of khas possession, even though on the basis of the title, the plaintiff has to bring the suit within 12 years from the date of dispossession and, in the instant case, there being finding recorded by the learned Court below that defendant Nos. 1 to 5 are in possession of the suit land since 20-5-77, the plaintiffs prayer for recovery of khas possession which was introduced by way of amendment vide order dated 12-11-92 is barred by time, in view of the provisions contained in Article 64 of the Limitation Act. In any case, according to Mr. Roy, the possession of the predecessor-in-interest of the defendant Nos. 1 to 5 became adverse on 20-5-77 i.e. the date when the defendant No. 6 executed the sale deed and put him in possession of the suit land and, thereafter, his successor-in-interest being openly and publicly in possession of the suit land without there being any objection from the true owner, the defendants' possession became adverse from 20-5-77 and, in the instant case, the prayer for amendment for recovery of khas possession having been introduced on 12-11-92, the suit is clearly barred by time even under Article 65 of the Limitation Act, as held by the learned first appellate Court. In support of his contention, Mr. Roy has placed reliance on a decision of the Apex Court in Ramaiah v. N. Narayan Reddy (Dead) by L.Rs. : AIR2004SC4261 .
10. There is no dispute to the fact that the original plaint, which was filed in T.S. 3/80 the plaintiff has prayed for declaration of occupancy right i.e. the right over the schedule property. The plaintiff, however, initially prayed for confirmation of possession, which was subsequently amended to recovery of khas possession vide order dated 12-11-92 passed by the learned trial Court by allowing such amendment. The defendant Nos. 1 to 5 in their written statement have taken the plea of adverse possession, apart from the plea that the plaintiff is the benami purchaser as the land was initially purchased by defendant No. 6 in the name of the plaintiff from out of his own fund and, therefore, defendant No. 6 has the right to sell the property as has been done in favour of the predecessor-in-interest of the defendant Nos. 1 to 5 by the Regd. Deed of sale dated 20-5-77. The learned trial Court as noticed above, decreed the suit. However, the learned first appellate Court set aside the said judgment and decree passed by the learned trial Court and dismissed the suit, on the ground of limitation. The learned first appellate Court, while allowing the appeal and dismissing the suit, however, has declared the right, title and interest of the plaintiff even though it has held that the land was originally purchased by the defendant No. 6 in the name of the plaintiff from out of his own fund and such transaction was benami transaction, in view of the provisions contained in Benami Transaction (Prohibition) Act, 1988. The said finding relating to the plaintiffs right, title and interest has not been disputed by the present defendant Nos. 1 to 5, either by filing any appeal or by filing any cross-objection.
11. While dismissing the suit of the plaintiff on the ground of limitation, the learned Court below has observed as follows:.A suit for declaration of title
and recovery of khas possession is to be instituted within the period of 12 years from the date of dispossession vide Articles 64 and 65 of Limitation Act, Therefore, though the plaintiff may have right title but the same is barred by lapse of time.
12. It appears from the aforesaid finding recorded by the learned first appellate Court that it got confused as to whether Article 64 or Article 65 of the Limitation Act is applicable in the instant case. The provisions of Articles 64 and 65 of the Limitation Act are applied in different circumstances. Article 64 is applied when a suit is filed for possession of immovable property based on previous possession and not on title when the plaintiff while in possession of the property has been dispossessed. The period of limitation of 12 years starts running from the date of dispossession. On the other hand, Article 65 is applied when a suit is filed for possession of immovable property or any interest therein based on title and the limitation of 12 years runs from the date when the possession of the defendant becomes adverse to the plaintiff.
13. The instant suit being the suit for declaration of occupancy right i.e. the title over the schedule property and also for recovery of khas possession and also initially for confirmation and possession and subsequently amended for recovery of khas possession, the suit is definitely governed under the provisions of Article 65 of the Limitation Act and the period of 12 years limitation for bringing the suit runs from the date when the defendants' possession becomes adverse to the plaintiff. When a plea of adverse possession is taken by the defendant in the written statement, the burden heavily lies on the defendant to prove such adverse possession. Therefore, it is the defendants' duty to prove the date on which their possession became adverse to the interest of the plaintiff, so as to non-suit the plaintiff on the ground of limitation.
14. As noticed above, the learned first appellate Court has allowed the appeal and dismissed the suit by setting aside the judgment and decree passed by the learned trial Court by holding that the suit of the plaintiff is barred by limitation, only on the ground that the suit has not been filed within 12 years from the date of dispossession by the defendants, without however, deciding as to whether the defendants' possession has become adverse to the interest of the plaintiff and, if so, from which date? The decision of the Apex Court in Ramaiah AIR 2004 SC 4261 (supra) on which the learned Counsel for the respondents has placed reliance, in view of the facts of this case, is not applicable, as in that case the suit was filed for recovery for possession in respect of a land, title on which was declared in the previous suit between the parties and there was no prayer for declaration of title.
15. The first appellate Court being the final Court on facts, it has to give a finding relating to the adverse possession of the defendants and also the date on which the possession of the defendants had become adverse to the interest of the plaintiff, for deciding the question of the limitation under Article 65 of the Limitation Act, which having not been done, the judgment and decree passed by the first appellate Court is set aside. The matter is remitted to the learned first appellate Court for giving a decision as indicated above, on the basis of the materials already available on record. Since the suit has been instituted in the year 1980, the learned first appellate Court is directed to decide the appeal afresh within a period of three months from the date of appearance of the parties. It is made clear that the learned first appellate Court shall not go into the issue relating to right, title and interest of the plaintiff over the suit land, as such finding has attained its finality. The parties are directed to appear before the learned first appellate Court on 29-9-2008 for taking necessary orders from that Court.
16. The appeal is, accordingly allowed to the extent indicated above. No costs.
Registry is directed to send down the records to the learned first appellate Court, so as to reach the said Court on or before 26-9-2008.