Vasantiben Prahladji Nayak and ors. Vs. Somnath Muljibhai Nayak and ors. - Court Judgment

Excerpt:
property - civil procedure code (cpc) - section 100; limitation act - schedule - article 65 - appellants filed suit for declaration of title and recovery of possession on ground of being owners of ancestral house - challenged on ground of adverse possession and bar of limitation by respondents - dismissed by trial court - reversed by district court - on second appeal, high court remanded matters of adverse possession and bar of limitation to district court - district court holding that respondent acquired title by adverse possession and since respondents having being in possession from 1935, and suit for recovery of possession having being filed on 25th march, 1968, suit was barred by limitation - high court confirming findings of district court, allowed appeal - plea of appellants that since they become owners of suit land as reversioners under registered deed of partition, suit filed by appellants was neither barred by limitation nor by adverse possession - appeal to supreme court - as partition is really a process by which joint enjoyment of property is transformed into an enjoyment severally and each co-sharer has an antecedent title, there being no confernment of new title, appellants could not be allowed to allege that they had become owners of property only when partition deed was executed - since point of limitation does not commence from date when right of ownership arises to plaintiff, but from date when defendant's possession became adverse, suit was rightly held to be barred by limitation - there being concurrent findings of courts below to the effect that respondents were in a possession of suit land from 1935, held that no. interference was warranted with judgment of high court - [s.k. dass, acting c.j.,; k. subba rao,; n. rajagopala ayyangar,; raghuvar dayal, jj.] the appellant was a registered dealer carrying on business in bidis. for the year 1949-50, i.e., for the period from october 22, 1949 to november 9, 1950 he submitted only one return on october 5, 1950 for one quarter and defaulted in respect of the other quarters. he was served a notice on august 13, 1954 under s. 11(1) and (2) of the c.p. and berar sales tax act, 1947, in respect of the turnover for the said period. there after, he filed the returns, but in the assessment proceedings he contended inter alia, that the proceedings before the sales tax commissioner were barred by time. this contention was rejected and his tax liability was determined. then the appellant moved the high court in writ petition. in the other appeal no. 102/1961, the appellant had not filed any return for the year 1950-51 i.e. for the period from november 10, 1950 to october 31, 1951. he was served a notice on october 15, 1954, under s. 11(4) of the act. the said notice was within 3 years from october 16, 1951 which fell within the 4th quarter of the concerned year. the appellant then, filed his returns under protest and contended that the assessment proceedings were barred by limitation under s. 11(a) of the act. this plea was re- jected and his tax liability was determined. the appellant then, filed another writ petition for a similar relief. both the writ petitions were heard together and the learned single judge relying on a decision in firm sheonarayan matadin v. sales tax officer, raipur, quashed the said assessments. the respondent then, filed letters patent appeals before the division bench and by a common judgment the orders of the learned single judge were set aside. in this court, the appellant contended : (1) the expression "escaped assessment" in s. 11-a of the act would apply also to a case where there was no assessment at all ; (2) even if the first assessment proceedings were pending before the appropriate authority, it could only make the assessment within three years from the date of the commencement of the said proceedings, which would start only after the appropriate authority issued a notice under s. 10(1) or s. 11(2) or s. 11(5) of the act; (3) in the present case no proceedings in respect -of the said assessment were pending and (4) as only a part of the fourth quarter in the second appeal falls within three years, the proceedings in respect of the said entire quarter would be barred under s. 11-a of the act and, in any view only the turnover escaped in respect of the period between november 10, 1950 to october 31, 1951 could be assessed. the respondent mainly contended that whatever may be said in the case of an unregistered dealer, in the case of a registered dealer the proceedings commence from the date fixed in the registration certificate within which the said dealer has a statutory obligation to furnish his return. held : (raghubar dayal, j. dissenting) : the expression "escaped assessment" in s. 11-a of the act includes that of a turnover which has not been assessed at all, because for one reason or other no assessment proceedings were initiated and therefore, no assessment was made in respect thereof. commissioner of income-tax, bombay v. pirojbai' n. contrac- tor, (1937) 5 i.t.r. 338, maharaj' kumar kamal singh v. com- missioner of income-tax, bihar and orissa, [1959] supp. - s.c.r. 10 maharajadhiraj sir kameshwar singh v. state of bihar, [1960] 1 s.c.r. 332, commissioner of income-tax, bombay v. narsee nagsee & co. [1960] 3 s.c.r. 988 and state of madras v. balu chettiar, (1956) 7 s.t.c. 519,relied on. the assessment proceedings under the sales tax must be held to be pending from the time the said proceedings were initiated until they were terminated by a final order of assessment. before the final order of assessment, it could not be said that the entire turnover or a part thereof of a dealer had escaped assessment, for, the assessment was not completed and, if completed, it might be that the entire turnover would be caught in the net. in re lachhiram basantlal, (1930) i.l.r. 58 cal. 909 and rajendra nath mukherjee v. income-tax commissioner, (1938) l.r. 61 i.a. 10, referred to. under sub-section (1) of s. 10, the commissioner need not issue a notice to a registered dealer for furnishing the relevant returns, but a statutory obligation is imposed on the said dealer to do so by such dates and to such authority as may be prescribed. in the case of a registered dealer there are four variations in the matter of assessment of his 'turnover : (1) he submits a return by the date prescribed and pays the tax due in terms of the said return; the commissioner accepts the correctness of the return and appropriates the amount paid towards the tax due for the period covered by the return. (2) the commissioner is not satisfied with the correctness of the return ; he issues a notice to him under s. 11(2), and makes an enquiry as provided under the act, but does not finalize the assessment. (3) the registered dealer does not submit a return; the commissioner issues a notice under s. 10(3) and s. 11(4) of the act. (4) the registered dealer does not submit any return for any period and the commissioner issues notice to him beyond three years. in the case of a registered dealer the proceedings before the commissioner starts factually when a return is made or when a notice is issued to him either under s. 10(3) or under s. 11(2) of the act. the acceptance of the contention that the statutory obligation to file a return initiates the proceedings is to invoke a fiction not sanctioned by the act. bisesar house v. state of bombay (1958) 9 s.t.c. 654 and ramakrishna ramnath v. sales tax officer, nagpur, (1960) 11 s.t.c. 811, distinguished. a statutory obligation to make a return within a prescribed time does not proprio vigore initiate the assessment proceedings before the commissioner; but the proceedings would commence after the return was submitted and would continue till a final order of assessment was made in regard to the said return. in the first case, therefore, the tribunal had no jurisdiction to issue a notice under s. 11-a with respect to the quarters other than that covered by return made by the appellant. in the second case, the commissioner had jurisdiction to assess the turnover in respect of the entire fourth quarter, but as it was done without showing separately the assessment of tax payable in respect of each quarter, this court cannot confine the relief to be given to the appellant in these appeals to the period barred under s. 1 1-a of the act. the appeals, therefore must be allowed. per raghubar dayal, j.--the turnover for the years 1949-50 and 1950-51 could not be said to be turnover which escaped assessment, within the meaning of that expression in s. 11-a of the act and therefore, the notices issued by the assistant commissioner of sales tax in 1954 under s. 11(2) cannot be said to be notices issued under s. 11-a beyond the period within which they could have been issued. the proceedings for the assessment commence against the registered dealer from the prescribed date for his submitting the return which he is required to submit by sub- section (1) of s. 10. no notice is necessary to be issued to him for the submitting of the return for the purpose of assessment. the statute, by the provisions of sub-section, (1) of s. 10, gives him the required notice to the effect that he is to submit the necessary returns by the dates prescribed by the rules. the registration certificate issued to him mentions the period of the dealer's year, the prescribed return period and the dates by which the dealer had to furnish the returns. the registered dealer is, in this way, in no worse position than an ordinary dealer who receives a notice for -submitting the returns by a certain date. in the case of the unregistered dealer, the proceedings commence by the issue of a notice under subsection (1) of s. 10. there is no time limit fixed for the sales tax officer to take action against the registered dealer under sub-sections (2) and (4) of s. 11. he does not contravene art. 14, if he takes action against a registered dealer under sub-section (2) or sub- section 4 of s. 11 even after the expiry of three years from the period whose turnover is to be assessed. - by the judgment and order dated 10th, november, 1975, the trial court dismissed, the suit on the ground that the appellants have failed to prove their title over the suit land. 7. shri ramesh singh, learned counsel appearing on behalf of the appellants next contended that in the present case the respondents have failed to prove the ouster along with other three circumstances, namely, hostile intention;s.h. kapadia, j. 1. appellants (plaintiffs) filed a suit bearing no. 116 of 1968 in the court of civil judge, narol for a declaration that they were owners of ancestral house site land bearing g.p. no.497 in sarkhej, district ahmedabad and for recovery of possession thereof from the respondents (defendants) and also for permanent injunction restraining respondents from interfering with their possession over the disputed land. according to the appellants, the suit land was ancestral property belonging to father-in-law of vasantiben (appellant no. 1) and after his death the property came in possession of her husband. according, to the appellants, in the lifetime of the husband of appellant no. 1, the respondents used to tell the husband of appellant no. 1 to allow them to make construction on the land. according to appellant no. 1, her husband did not permit the respondents to make construction till his death, i.e. six years prior to the institution of the suit. that even before his demise, the respondents used to tell appellant no. 1 to donate the land to the community which she refused and soon thereafter the respondents started constructing a compound wall without her permission. in the circumstances, she filed a suit on 25th march, 1968 to prevent the respondents from disturbing her possession.2. the respondents inter alia denied in the suit that the husband of appellant no. 1 was in possession of the suit land till he died or that after his demise, the appellants were in possession of the suit land. in the suit, they contended that they were in possession of the suit land for more than twelve years and that they were owners by adverse possession. they also contended that the suit was barred by limitation. in the suit, there was a dispute regarding the identity of the land. in the suit, there was a dispute regarding title of the appellants over the suit land. by the judgment and order dated 10th, november, 1975, the trial court dismissed, the suit on the ground that the appellants have failed to prove their title over the suit land. being aggrieved, the appellants went by way of civil appeal no. 133 of 1976 to the district court, ahmedabad which came to the conclusion that the appellants had identified the suit land. further, the district court came to the conclusion that the appellants had proved their title to the suit land. consequently, the appeal was allowed vide judgment and order dated 27th march, 1978.3. being aggrieved, the respondents herein went by way of second appeal under section 100 cpc to the high court being appeal no. 360 of 1978. by judgment and order dated 22nd january, 1997, the high court came to the conclusion that the lower appellate court could not have passed the decree for possession in favour of the appellants without deciding the issue of limitation and adverse possession. consequently, keeping the second appeal pending before it, the high court called for the findings on the above two issues from the district court, ahmedabad. on remand of the above issues, the district court found that the respondents were in possession since 1934 as indicated by the books of accounts and revenue receipts for payments made to its revenue assessment. the district court further found that the respondents have been paying land revenue from 1940. the district court further found that the gram panchayat had even permitted the respondents to construct the compound wall vide a resolution (ex.132). in the circumstances, the district court came to the conclusion that the respondent had acquired title by way of adverse possession. on the point of limitation, the district court found that the respondents were in possession from 1935 or in any event from 1941 whereas the suit has been filed only on 25th march, 1968 for possession and consequently the suit was barred by law of limitation. therefore, both the issues were decided in favour of the respondents herein by the district court vide judgment dated 30th april, 1997. the high court which was seized of the second appeal no. 360 of 1978 after hearing the parties confirmed the findings of the district court on above two issues, and accordingly disposed of the second appeal vide impugned judgment dated 28th april, 1998. hence, the original plaintiffs have come./, by way of civil appeal to this court.4. shri ramesh singh, learned counsel appearing on behalf of the appellants submitted that the appellants became owners of the suit land as reversioners under registered deed of partition dated 29th november, 1965 and consequently the suit filed by the appellants was neither barred by limitation nor by adverse possession. he contended that the high court had erred in holding that adverse possession in respect of suit land begin to run against the appellants prior to 29th november, 1965. in this connection, he has placed reliance on explanation (a) to article 65 of the limitation act (hereinafter referred to as 'the said act'). in support of his above argument, learned counsel for the appellants has also placed reliance on the judgment of this court in the case of ram kisto mandal and anr. v. dhankisto mandal reported in : [1969]1scr342 .5. we do not find merit in the above argument advanced on behalf of the appellants. in the case of ram kisto mandal and anr. v. dhankisto mandal (supra), it has been held by this court that the right of the reversioner to recover possession of the property within twelve years from the death of the widow is not only based on provisions of the limitation act but on the principles of hindu law and the general principles that the right of a reversioner is in the nature of spes successions (estate in expectancy) and such reversioner does not trace his title through the widow. under the common law, there are two types of estates namely, estates in possession and estates in expectancy. estates in remainder/reversion are estates in expectancy as opposed to estates in possession. consequently, adverse possession against a life-tenant will not bar the reversionary/remainder from succeeding to the estate on the demise of the life-tenant. this is the reason for enacting explanation (a) to article 65 of the said act, which has no application to the facts of this case.6. at this stage, it is important to bear in mind that partition is really a process by which a joint enjoyment of the property is transformed into an enjoyment severally. in the case of partition, each co-sharer has an antecedent title and, therefore, there is no conferment of a new title. (see transfer of property act by mulla 9th edition page 77). in the circumstances, the appellants cannot be heard to say that they became the owners of the property only when the partition deed was executed on 29th november, 1965. lastly, the facts above-mentioned show that the appellants had asserted not only their own possession, they had also asserted the possession of prahladji (husband of appellant no. 1 and father of remaining appellants) prior to his death. in the case of hanamgowda v. irgowda reported in [air 1925 bom. 9], it has been held that in cases of adverse possession, the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but it commences from the date when the defendants' possession became adverse. therefore, in the present case, the starting point of limitation for adverse possession cannot be taken as 29th november, 1965 and one has to take the date when the respondents' possession became adverse. for ail the above reasons, there is no merit in the above arguments advanced on behalf of the appellants.7. shri ramesh singh, learned counsel appearing on behalf of the appellants next contended that in the present case the respondents have failed to prove the ouster along with other three circumstances, namely, hostile intention; long and uninterrupted possession; and exercise of the right of exclusive ownership openly and to the knowledge of the owner. we do not find any merit in this argument. it is correct to say that the defendants have to prove three elements mentioned above to establish ouster in cases involving claim of adverse possession. however, in the present case, there is a concurrent finding of fact recorded by the courts below to the effect that the respondents are in possession of the suit land from 1935 or in any event from 1941; that they have paid revenue cess from 1940; that they have paid property taxes; that their names were recorded in the revenue records and they were granted permission by the panchayat to construct compound wall. moreover, in her deposition before the trial court, appellant no. 1 had deposed that her husband had died six years prior to the institution of suit; that the suit land was in possession of her father-in-law and after his death it came in possession of prahlad (husband); that during the life time of prahlad, the defendants had told prahlad to allow them to construct a building on the land which he refused and that the respondents constructed the compound wall without their permission. in view of the above concurrent findings of fact recorded by the courts below on the issue of adverse possession, we do not see any reason to interfere in the matter.8. for the aforestated reasons, civil appeal stands dismissed, with no order as to costs.