Judgment:
D.P. Mohapatra, J.
1. The defendants have filed this appeal assailing the judgment and decree of the Subordinate Judge, Jaipur decreeing the suit. The respondents filed Title Suit No. 5 of 1978 in the Court of the Subordinate Judge, Jaipur to declare their right, title and interest to the lands described in Schedule 'A' to the plaint; to declare that the appellants 1 to 8 have acquired no title to the 'A' Schedule land on the strength of their purchase from Laxmi Bewa and Kamala Dei; and to confirm respondents possession over the said land or in the alternative if it is found that they have been dispossessed, to direct possession of the land to be delivered to them and for other consequential reliefs.
2. The case of the plaintiffs, shorn of unnecessary details, was that, the disputed lands belonged to Darsani alias Darsan Kunda, the maternal grandfather of the plaintiffs. He had only a daughter Rani by name, who was given in marriage to one Rama Chandra Sahu. Rama Chandra Sahu lived in the house of Darsani Kunda as his illatom son-in-law. Rama Chandra and Rani were blessed with three issues, the two plaintiffs and a son, who is dead. When Darsani died in 1943 his widow Chanda wanted that Rama Chandra who had in the meantime lost his wife (Rani) and his son, should continue to live in her house. With that end in view Thanda brought Laxmi (defendant No. 9) from a poor family and got her married with Rama Chandra and both Rama Chandra and Laxmi lived in Chanda's house.
Chanda had executed a nominal deed of gift on 15-l-45 in respect of Ac. 15.00 and odd of land including the suit land and had also got the name of Rama Chandra mutated in respect of the said property just to appease the sentiment of Rama Chandra and Laxmi's father. According to the plaintiffs that deed of gift was not acted upon; the document was kept by Chanda who paid rent for the land and continued to possess it in her own right.
The reversioners of Darsan Kunda filed Title Suit No. 34 of 1945 in the Court of the Subordinate Judge, Cuttack against Chanda and Rama Chandra to declare the deed of gift invalid and inoperative. The suit was contested by Chanda and Rama Chandra taking the stand, inter alia, that the deed of gift was a nominal one. The deed of gift was declared invalid and inoperative against the reversioners of Darsana Kunda.
Rama Chandra died in 1953 leaving his widow Laxmi and adaughter Kamala. On the ill advise of some people who were out to create mischief in the family Laxmi started quarrelling with the plaintiffs and their respective husbands who had been living with Chanda after their marriage. To avoid frequent quarrels in the family and to bring about peace amongst its members, Chandra shifted Laxmi and his daughter Kamala to another apartment (Khanja) in the house. The plaintiffs learnt from Chanda that Laxmi had stealthily removed the original deed of gift and some other documents from the house while shifting.
Laxmi at the instigation of some people who were inimically disposed towards Chanda, out and removed the crops grown by Chanda from Ac. Order81 decimals of land covered under the deed of gift registered in the name of Rama Chandra Sahu. Chanda filed Title Suit No. 77 of 1955 in the Court of the Munsif, Jajpur against Laxmi and her supporters for declaration of her right, title and interest to the land and for recovery of damages. The said suit was decreed.
Chanda out of her love and affection for the plaintiffs, executed a separate deed of gift in their favour on 28-8-61 in respect of Ac. 38.00 of land including Ac. 15.97 dec. of land covered by the deed of gift executed by her (Chanda) in favour of Rama Chandra which had been declared invalid and inoperative in Title Suit No. 34 of 1945. Possession of the property was delivered to the plaintiffs and they were in possession and enjoyment of the same. The request to transfer the land in her favour having been turned down by Chanda, Laxmi became enraged and illegally, unauthorisedly, collusively and without consideration executed sale deeds in respect of Chanda's land in favour of different persons including the defendants. The plaintiffs instituted Title Suit No. 177 of 1961 in the Court of the Munsif, Jajpur against one of the transferees Kartik and Laxmi and Kamala for declaration of title and confirmation of possession in respect of the lands conveyed to Kartik. The suit was keenly contested by the vendees. The suit was decreed, the plaintiffs title to the suit land was declared and the deed of gift was declared as a nominal and inoperative document. Title Suit No. 47 of 1962 of the Court of the Munsif, Jajpur filed by Laxmi for declaration of her title on the strength of the deed of gift executed in the name of her husband Ramchandra, was dismissed. Title Appeal No. 118/7 of 1964/1966 and Title Appeal No. 119/8 of 1964/1966 filed by Laxmi were also dismissed. Second Appeal Nos. 73 and 77 of 1967 preferred by Laxmi against the decisions of the first appellate Court was also dismissed by this Court.
During pendency of Title Suit No. 177/61, Laxmi executed series of sale deeds fraudulently and collusively and without consideration in order to harass the plaintiffs. One such sale deed was in respect of Schedule 'A' land, executed by her on 29-5-1962 in favour of Ankura Behera, grandfather of defendants 1 to 4 and in the names of defendants 5 to 8. The plaintiffs contend that the sale deeds, like the sale deed which was the subject matter of Title Suit No. 177 of 1961 were also declared as invalid and inoperative, inasmuch as, Laxmi and Kamala had no manner of right and title to the disputed properties and they were never in possession of it. As such, defendants I to 8 derived no title and possession to the disputed properties by their purchases from Laxmi and Kamala. They were also not in possession of the said land. Since the sale deeds cast clouds over the plaintiffs' right, title and interest to the properties in question, they filed the suit seeking the reliefs noted earlier.
3. Defendants 1 to 7 in their joint written statement denied the claim of the plaintiffs over the suit properties. They refused the material allegations in the plaint. According to them the gift deed dated 15-1-45 and the mutation effected on the basis of that document were not nominal; the gift was acted upon and the properties were in possession of Laxmi and Kamala. It was the case of the defendants that according to the family custom Rama Chandra who was illatom son-in-law and was living in the family was entitled to succeed to the property of the father-in-law Darsani Kunda and for recognition of that right, the deed of gift was executed in his favour by Darsani Kunda's widow, Chanda. It was the further case of the defendants that the 'A' Schedule lands along with other lands totalling No 15.97 dec. were in possession of Rama Chandra in his own right openly, peacefully, continuously and adversely since 1944 till his death. After his death Laxmi possessed the same till she transferred the suit land in 1962 to Ankur and defendants 5 to 8, where after the defendants possessed the property. The defendants contended that they have perfected their right, title and interest to the suit lands by adverse possession.
4. Considering the pleadings of the parties the trial court framed six issues including the issues. Have the plaintiffs, right title and interest over the suit land (issue No, 4) and have the defendants perfected title by adverse possession (issue No. 5).
5. The plaintiffs examined three witnesses including Bhimsen Kayastha, husband of plaintiff No. 1 in support of their case. Four witnesses were examined on behalf of the defendants including defendant No. 5. Padmalav Mallik. A number of documents were exhibited on behalf of the parties.
6. The learned trial judge on assessment of the oral and documentary evidence adduced before him held that the defendants failed to discharge the onus to prove adverse possession over the suit land by Rama Chandra and his successors from 1944 to 1953. He also held that the case of the defendants that Laxmi was possessing the suit land through bhag tenants was an imaginary myth. He refused to place any reliance on the statement made by the defendants 1 to 3 and held that Laxmi could not be said to have possessed the suit land at any point of time and the question of adverse possession by her, therefore, did not arise. As a corollary and consequence of this finding, the trial Judge held that defendants 1 to 8 could not derive any title to the disputed land under the sale deed Ext. B, executed by Laxmi and Kamala. The Trial Judge, further held that no prevailing custom pertaining to inheritance by the illatom son-in-law of the properties of his father-in-law, was established by the defendants. Regarding the claim of title by adverse possession by the defendants the court held that defendants 1 to 8 having purchased the suit lands on 29-5-62 under the sale deed (Ext. B), even if it is assumed that they were in possession of the land since then it could not be held that they have acquired title by adverse possession by the date of institution of the suit, i.e., on 4-5-74, when the suit was filed in the court of the Munsif, Jaipur. Regarding the claim of the plaintiffs, the finding of the trial court was that they have got right, title and possession by virtue of gift deeds Exts. 9 and 10, executed by Chanda in their favour; otherwise also they have right to the properties after the death of Chanda by way of inheritance as daughters of her (Chanda) predeceased daughter. On these findings the trial court decreed the suit.
7. From the discussions in the foregoing paragraphs the position that emerges is that the plaintiffs based their claim to the suit property on inheritance as heirs of their mother Rani and also on the deed of gifts, Exts. 9 and 10, executed in their favour by Chanda, widow of Darsani. Defendant No. 9, Laxmi's claim to the suit property was based on the customary rule of inheritance allegedly prevalent in the family by which an illatom son-in-law was entitled to inherit properties of his father-in-law. The remaining defendants being purchasers from Laxmi based their claim on the sale deeds executed in their favour and alternatively on the plea of acquisition of title by adverse possession by their vendor Laxmi Bewa and by themselves. They however, admitted the positions that the so-called customary rule of inheritance was contrary to law and the deed of gift allegedly executed by Chanda in favour of Rama Chandra was held to be invalid and inoperative in the previous suit.
8. In view of the conflicting claims of the parties noted above, the moot question which arises for determination is whether the defendants can be said to have perfected their title to the suit property by adverse possession.
The question of adverse possession is a mixed question of fact and law. Therefore, it is necessary to notice the facts relevant for the purpose. Chandra executed the deeds of gift Exts. 9 and 10 in favour of the plaintiffs on 28-8-61. The plaintiffs filed Title Suit No. 177 of 1961 in the court of the Munsif, Jajpur against Laxmi, Kamala and Kartik Sahu assailing the sale deed executed by Laxmi in favour of Kartik Sahu. During pendency of the said suit, Laxmi executed sale deed, Ext. B on 29-5-1962 in the name of Ankura Behera, grandfather of defendants 1 to 4 and in the names of defendants 5 to 8 in respect of the suit lands. As noticed earlier, Title Suit No. 177 of 1961 was decreased in favour of the plaintiffs and the gift deed dated 15-1-1945 executed by Chanda in favour of Rama Chandra was declared to be nominal and inoperative. Laxmi filed Title Suit No. 47 of 1962 in the court of the Munsif, Jajpur for declaration of her title to the property which was dismissed and the decision was confirmed in the first appellate court and in this Court. Since the sale deed dated 29-5-1962, Ext. B cast cloud in the interest of the plaintiffs' property they filed the present suit in the court of the Munsif, Jaipur on 4-5-1974, valuing the suit at Rs. 1675/- which was the amount of consideration mentioned in the sale deed. On the challenge raised by the defendants for valuation of the suit, the learned Munsif determined it at Rs. 8,000/-. Finding that he had no jurisdiction to entertain the suit, the learned Munsif returned the plaint on 24-1-1978 for presentation before the proper Court. The plaint was presented in the court of the Subordinate Judge on the same day. The question is on which date will the suit be taken to have been filed for the purpose of computing the period of adverse possession; whether it is 4-5-1974 when the suit was filed in the court of the Munsif on 24-1-78 when the plaint was presented in the court of the Subordinate Judge. As a corollary to this arises the question whether the suit can be said to have been filed within the period of limitation. To answer this question it is necessary to consider whether the period between 4-5-74 to 24-1-78 is to be excluded under the provisions of Section 14 of the Limitation Act. If this question is answered in the affirmative and it is held that the plaintiffs are entitled to the benefit of Section 14 of the Limitation Act then the material date for computation of the period of limitation and adverse possession will be 4-5-74 and consequently the plea of adverse possession by the defendants has to be negatived since it falls short of statutory period of 12 years, even assuming that from the date of their purchase, on 29-5-1962 (Ext. B) the defendants have been possessing the suit property adversely. The learned trial judge as noted earlier, answered the question in favour of the plaintiffs and negatived the plea of adverse possession. The learned counsel for the appellants assailed the said finding.
9. Section 14 of the Limitation Act provides for exclusion of time of proceeding bona fide in a court without jurisdiction. The provisions in the section lay down, inter alia, that in computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
Sub-section (2) of the said section contains similar provisions in respect of computation of the period of limitation for any application. Sub-section (3) lays down that the provisions of Sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under Rule 1 of Order 23, CPC on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court of other cause of a like nature.
From the provisions noted above it is clear that any period during which the suit/ proceeding was kept pending in a court which is held or found to have no jurisdication, is to be excluded if the plaintiff/ petitioner was prosecuting the proceeding in good faith in that court.
10. The Supreme Court in the case of Vijay Kumar Rampal v. Diwan Devi reported in AIR 1985 SC 1669, interpreting section 14 held that the expression 'good faith' qualifies prosecuting the proceeding in the Court which ultimately is found to have no jurisdiction. Failure to pay the requisite court-fee found deficient on a counter being raised or the error of judgment in valuing a suit filed before a court which was ultimately found to have jurisdiction has absolutely nothing to do with the question of good faith in prosecuting the suit as provided in Section 14 of the Act. The Apex Court did not approve the view taken by the Jammu and Kashmir High Court that defective valuation and improper computation of Court-fees disclosed lack of good faith on the part of the plaintiff. In the decided case, as in the present case, the plaint was ordered to be returned by the District Judge for presentation in the Court of Subordinate Judge and the next day the plaintiff took the plaint and on the same day presented it to the proper court. It was held that he could not be denied the benefit of Section 14 merely on the ground that there was improper valuation of suit and negligence in computing court-fees.
A Division Bench of the Calcutta High Court in the case of Suraj Nath Prasad Kedarnath v. Union of India, reported in AIR 1975 Calcutta 203 considering the conditions requisites for application of Section 14 observed that in order to get the benefit of the provision of Section 14 the court must be satisfied that the person acted in good faith, and proceeded with the case with due diligence. The question depends on the facts of each case. Mere filing a suit in a wrong court in the absence of evil intention does not prima facie show want of good. If the plaintiff proceeds honestly the question of want of good faith does not arise, even if he acts negligently. If a person files a suit in a court in the belief that the said court has got jurisdiction to entertain the same, without evil intention but honestly to have his remedy, it cannot be said that the suit was not filed in good faith. In that case a suit for compensation against a Railway was filed in the Original Side of the Calcutta High Court on the basis of a High Court decision holding that the giving of notice under Section 80, CPC constitutes a part of the cause of action so as to give territorial jurisdiction but the suit was dismissed by the High Court for want of jurisdiction 10 years thereafter, it was held that the benefit of Section 14 was available to the plaintiff when he filed a fresh suit in the proper court without any unnecessary delay. It could not be said that the plaintiff had not acted in good faith in not withdrawing the suit immediately when the High Court had taken a contrary view in a subsequent decision during the pendency of the suit holding that notice under Section 80 did not form a part of the cause of action.
Similar view has been taken by the different High Courts in the cases reported in AIR 1933 Lahore 652 (Mul Chand v. Allah Yar Khan, AIR 1954 Pepsu 45 (Chet Singh v. Bir Singh), AIR 1957 Patna 139 (Kamta Prasad Singh v. Ram Narayan Lall), and AIR 1978 Delhi 92 (Mohan Lal Goala v. Siri Krishna).
11. The consensus view that emerges from the decided cases noted above is that Section 14 of the Limitation Act should be liberally construed; unless there is sufficient material to come to a finding that the plaintiff had acted dishonestly and with lack of good faith, he cannot be denied the benefit of the provisions of Section 14. In the present case there is no evidence to show that there was any lack of bona fide or due diligence on the part of the plaintiffs in filing the suit in the court of the Munsif, Jaipur. They valued the suit at Rs. 1675, the amount which had been stated in the sale deed (Ext. B) executed by defendant No. 9 in favour of predecessor in interest of defendants 1 to 4 and in the names of defendants 5 to 8. It has therefore to be held that in this case the plaintiffs are entitled to the benefit of Section 14 and the learned trial Judge has rightly held so. It follows consequentially that the suit is to be taken to have been filed on 4-5-74 when it was filed in the court of the Munsif and not on 24-1-78 when the plaint was presented in the court of the Subordinate Judge.
12. The next contention raised on behalf of the appellants was that the court below ought to have held that the defendants perfected their title by adverse possession. It was the submission of the learned counsel for the appellants that since the suit was one for declaration of title and confirmation of possession, mere filing of the suit or even a decree passed in it, could not have arrested adverse possession of the defendants which had commenced from 1962 when they purchased the properties. There is no dispute over the legal position that filing of the suit for declaration and confirmation of possession or a decree raised on such a suit does not arrest running of adverse possession. If on the other hand the suit was for recovery of possession; then adverse possession gets suspended on filing of the suit. This position is supported by the decision of a Division Bench of this Court in the case of Artabandnu Mohapatra v. Bisweswar Bhutia, reported in AIR 1979 Orissa 110, wherein Mr. Justice R. N. Mishra (as his Lordship then was) observed that running of adverse possession is arrested and the same position continues until the decree for recovery continues to be executable. The contrary view taken by the learned single Judge of this Court in the case of Damodar Jev Thakur v. Hema Narayan Misra, reported in AIR 1969 Orissa 54 was overruled. Similar view has also been taken by the other High Courts. In the case of Moti v. Roshan, reported in AIR 1971 Him Pra 5, the Court construing Article 64 of the Limitation Act 1963, held that a decree not accompanied by actual, effective assertion of rights and taking possession of these rights, does not help to stop adverse possession running.
In AIR 1958 Calcutta 437 (Achhiman Bibi v. Abdur Rahim Naskar, a Division Bench of the Court observed that there is considerable difference between a suit for mere declaration and a suit for declaration coupled with a prayer for possession. It is true that by a decree for declaration without more the position of a person in wrongful occupation will not be disturbed, even if the decree be passed in his presence; if such person continues in possession even after the declaratory decree, he may, nevertheless, acquire prescriptive title; but if the suit for declaration is coupled with a claim for possession and such suit is decreed in the presence of the person in wrongful occupation, the decree arrests the running of time against the true owner; if the person in wrongful possession continues in possession even after the decree, the wrongful possession does not ripen into prescriptive title by efflux of time.
In the case of Mst. Sultan Jehan Begum v. Gul Mohd., reported in AIR 1973 Madh Pra 72, a Division Bench of that Court construing section 28 and Articles 142 and 144 of the Limitation Act, 1908 held that when a person entitled to possession of his property brings his suit not only for declaration but also for possession against the person in adverse possession within the period prescribed by law and a decree for possession is passed in his favour his right to possession is not extinguished, irrespective of the time spent in the suit, and the execution. The very institution of the suit arrests the period of adverse possession relates back to the date of the suit. Section 28 of the Act merely declares when the right of the person out of possession is extinguished; it is not correct to say that it confers title on the person in adverse possession there is a distinction between a suit for a declaration simpliciter and a suit for a declaration coupled with possession; in the latter case only the decree passed arrests the period of adverse possession.
13. I may notice here a few decisions taking a different view on the facts of the cases in question. In AIR 1982 Jammu and Kashmir 141 (Avtar Singh v. Th. Atma Singh, a Division Bench of the Court, observed that it is well settled that neither institution of a suit for declaration nor a decree passed in it, can cause any interruption in the continuous adverse possession of a party which has commenced earlier to the institution of suit. Where a person having no title remained in possession of suit house for a period of twelve years, his possession was clearly adverse to the rights of the owner. The owner not only lost the remedy but also his title in the suit house under section 28.
In the case of Jaimni Das v. Phulla Khan, reported in AIR 1930 Lahore 472, it was held that a decree, not accompanied by actual effective assertion of rights and taking possession of these rights, does not help to stop adverse possession running.
14. The question therefore arises whether the present suit can be said to be merely a suit for declaration of title and not one for declaration of title coupled with recovery of possession. As discussed earlier, the averments and the prayer in the plaint clearly show that the plaintiffs while asserting that they were continuing in possession and such possession should be confirmed also prayed that in case they are found to be out of possession, recovery of possession should be decreed. It is clear that they are particular about recovery of possession. A fair reading and reasonable construction of the plaint, in my view, clearly shows that the plaintiffs filed the suit for declaration of title as well as for recovery of possession. Therefore, applying the principles laid down in the aforementioned decision of this Court and other cases, filing of the suit in May, 1974 arrested the running of adverse possession in the present case. In these circumstances, the learned trial Judge rightly negatived the claim of the defendants for acquisition of title to the suit property by adverse possession.
15. From the discussions in the foregoing paragraphs, it is clear that all the contentions raised on behalf of the appellants to assail the decision of the court below are devoid of merits. The appeal is therefore dismissed, but in the circumstances of the case there will be no order for cost of the appeal,