S.A. Shah, J.
1. This is an appeal filed by the appellant (original plaintiff) whose suit has been dismissed on a preliminary ground that such a suit is not maintainable in law.
2. The short facts leading to this appeal, briefly stated are, that the appellant-plaintiff filed a suit, being Special Civil Suit No. 78 of 1972 in the Court of the learned Joint Civil Judge Senior Division, Jamnagar, for a declaration and injunction that he had become the owner of the suit land, bearing Survey No. 311 admeasuring 3 acres and 8 gunthas situated in the Sim of Jamnagar, by adverse possession. It is averred in the plaint that the defendants were owners of the suit land, and they filed a suit, being Civil Suit No. 8 of 1956 against the appellant-plaintiff in the Court of the Mamlatdar, Jamnagar, for recovering possession under the Mamlatdars' Courts Act, 1906. In that suit before the Court of the Mamlatdar the present plaintiff filed a written statement and challenged the right of the present respondents-defendants on the ground that he was in possession of the suit land for more than 12 years and, therefore, he had become the owner by adverse possession and the defendants had no right, title or interest in the suit land. However, the Mamlatdar decreed the said suit in favour of the present defendants by his order dated 24/26-12-1956 24/26-12-1956 . According to the appellant-plaintiff, the said decree of the Mamlatdar is barred by limitation and it has become unexecutable. It is further averred in the plaint that the plaintiff was in possession of the suit land from 10-7-1956, and thereafter from 26-12-1956, and is enjoying peaceful possession of the suit land continuously and adversely for a period exceeding 12 years. The defendants have never objected the said possession and, therefore, after 12 years the title of the defendants in the suit property has been extinguished and the plaintiff has become owner thereof and is, therefore, entitled to a declaration and injunction as prayed for.
3. Defendant No. 10 filed his written statement at Ex. 29, contending inter alia, that the suit is not bona fide and is not maintainable. Several other contentions are also raised therein, which I do not propose to deal with, since issue No. 3-A was raised by the learned trial Judge regarding the maintainability of the suit, and the same was ordered to be heard as a preliminary issue. After hearing the arguments of the parties, the learned trial Judge relying upon the decision of the Supreme Court in Nair Service Society Ltd. v. K.C. Alexander : [1964]1SCR316 , came to the conclusion that the suit was not maintainable, and dismissed the same.
4. Since the suit is decided on a preliminary issue, we shall have to accept the averments made in the plaint only for the limited purpose of considering whether the conclusion arrived by the learned trial Judge is maintainable or not. The plaintiff has in terms averred in the plaint that in spite of the decision of the Mamlatdar in the aforesaid suit to evict him in year 1956, he has continued to be in possession of the suit land adversely for more than 12 years. The decree of the Mamlatdar is dated 24/26-12-1956 24/26-12-1956 , and the present suit is filed in October 1972 i.e. after a period of about 15 to 16 years, and therefore, according to the averments made in the plaint, the plaintiff is in possession of the suit land for more than 12 years.
5. Mr. Suresh M. Shah for the appellant-plaintiff has raised the following contentions before me:
(1) On expiry of the period of limitation of 12 years all the right, title and interest of the true owner extinguish.
(2) On extinguishment of such right of the original owner, the title to the immoveable property does not remain in the air, and the same is automatically vested in the trespasser who has completed 12 years of his possession.
(3) On completion of 12 years, the plaintiff became the owner of the suit land and is, therefore, entitled for a declaration and injunction against all persons including the original owner.
In support of his contentions, Mr. Shah has relied upon the provisions of Section 28 of the Limitation Act 1908 (i.e. Section 27 of the Limitation Act, 1963), The said section reads
28. Extinguishment of right to property.- At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.
Provisions of this section, in my opinion, are very clear. This section relates to a suit for possession of immovable property, and on expiry of the period of limitation, right of a person instituting the suit to such property will be extinguished Article 65 of the Limitation Act which deals with limitation provides that for possession of immovable property or any interest therein based on title, the period of limitation is 12 years from the date when the possession of the defendant becomes adverse to the plaintiff. Therefore, a person with the title to the property has a right to file a suit for possession within 12 years, and non-exercise of such right by filing a suit for possession extinguishes his right in such property. In other words, on completion of the period of limitation of 12 years, the rights of the title holder extinguish and he ceases to be the owner or title-holder.
6. The next question that arises for consideration is as to who will be the owner of the property after extinguishment of the title of the true owner? It is a settled law that the property must vest in somebody. The natural consequence, therefore, will be the vesting of the property in the person who has completed the title by adverse possession. On this point there are several decisions of various High Courts, but I will refer only to the binding decision of the Bombay High Court in Fakirappa Jotappa Malemani v. Ningappa Shidlingappa Matti AIR 1943 Bombay 265. In that case the plaintiff sued for an injunction to restrain the defendant from interfering with the plaintiff's passage across the defendants' plot of land, and to remove an obstruction to the passage. The facts in that case were that in year 1924 defendant No. 4 who at that time possessed the land both of the plaintiff and of the defendants, sold to the predecessor of the plaintiff the suit plot, and ultimately in 1935, the plaintiff acquired that plot. Defendant No. 4 in year 1924 was a minor and, therefore, the Court considered that under Indian law a contract by a minor was wholly void and, therefore, the plaintiff acquired no title under the conveyance of 1924, but after 12 years, possession he would acquire a title under Section 23 of the Limitation Act, 1908, which provided that at the determination of the period limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. The Court further pointed out that the said section only extinguished the right, and did not provide in terms in whom that right was to vest. But the title to immoveable property cannot be left in the air, and, it is clear that on extinguishment of the true owner's title, title must follow possession and vest in the trespasser who has got a title by possession. In my opinion, therefore, on completion of the period of limitation not only that the title of the original owner is extinguished, but at the same time the person who is in adverse possession acquires title on the immoveable property and such person can maintain a suit for declaration and injunction even against the true owner who has lost title on account of his ouster for a period exceeding 12 years.
7. The learned trial Judge has relied on the following observations of the Supreme Court in Nair Service Society Ltd.'s case (Supra):
It cannot be disputed that person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of Limitation applicable to the case, his right is for ever extinguished and the possessory owner acquires an absolute title.
In my opinion, the aforesaid observations of the Supreme Court are in consonance with the observations of the Bombay High Court. The Supreme Court has in terms observed that if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of Limitation applicable to the case, his right is for ever extinguished and the possessory owner acquires an absolute title. In the instant case the rightful owner has come after 12 years and, therefore, his title having extinguished, the possessory owner has acquired absolute title.
8. The learned trial Judge appears to have made confusion on relying upon the provisions of the Specific Relief Act, 1963 in respect of a suit for possession after 12 years in which question of title arises. In my opinion, having regard to the provisions of Sections 5 and 6 (old Sections 8 and 9) of the Specific Relief Act, and Articles 64 and 65 of the Limitation Act, 1963, the legal position will be as under:
(1) A person who is in possession of immoveable property if dispossessed without the authority of law can file a suit against such person within a period of six months under Section 6 of the Specific Relief Act, and in such a case he is entitled to possession even against a rightful owner.
(2) If a person in possession is dispossessed without the authority of law, he can file a suit within 12 years (Article 64 of the Limitation Act) relying upon his possessory title against any body except the true owner.
(3) If a person has completed 12 years of possession, and if dispossessed without the authority of law, he can obtain possession against all persons including the true owner because the title of the true owner is extinguished after 12 years of his dispossession.
Therefore, a person who is in possession of immoveable property for a period exceeding 12 years, the right, title and interest of the original owner in the said property having been extinguished on the expiry of 12 years of his dispossession, the property will vest in the person who is in adverse possession, and he becomes the full and absolute owner, as observed by the Bombay High Court in case of Fakirappa Jotappa Malemani (supra) and which observations get support from the decision of the Supreme Court in case of Nair Service Society Ltd. (Supra). In the aforesaid view of the matter, the finding of the learned trial Judge is not correct, and the Supreme Court has not made any observations which support the case of the defendants. Those observations are not contrary to the observations made by the Bombay High Court in the aforesaid decision.
9. In view of the discussions made above, 1 hold that the judgment and decree of the learned trial Judge requires to be set aside. Since the trial Court has not decided other issues, but has dismissed the suit of the plaintiff only on a preliminary issue, the matter shall have to be remanded with a direction that the trial Court will decide other issues in accordance with law, and the observations made by me in this judgment are merely based on the averments made in the plaint, which are not final and still requires to be proved. Therefore, all the observations regarding facts in this judgment are tentative, and are made only for the purpose of deciding the legal issue, on the basis of the averments made in the plaint.
10. Mr. Deepak K. Trivedi, learned Advocate for respondent Nos. 8 and 9, has urged that the suit was decided on preliminary issue by the trial Court, and his clients are out of possession of the suit land for a number of years, and in that view of matter, this Court should not pass any order as to the costs. Mr. Shah for the appellant has left this question regarding costs at the discretion of the Court. I think that interest of justice will be served if it is directed that the costs will be the costs in the cause, i.e. the costs will be borne by the party who ultimately loses in the suit.
In the result, therefore, the appeal is allowed. The judgment and decree of the trial Court are set aside, and the matter is remanded to the trial Court for decision on other issues in accordance with law after recording the evidence and hearing the parties. The costs will be the costs in the cause.