Sunday, 28 July 2019

Whether Outer limitation for suit for possession based on title is lost if relief of declaration is also sought?

 It was next contended by the learned counsel that the suit
was not filed within limitation. This objection is totally
untenable. Admittedly, the possession of the land was handed
over to the Trust only in the year 1978. The suit was filed in the
year 1987. The appellants contend that the limitation for the suit
is three years as the suit is one for declaration. We are of the
view that this contention has to be rejected. We have culled out
the main prayers made in the suit hereinabove which clearly
indicate that it is a suit not only for declaration but the plaintiffs
also prayed for possession of the suit land. The limitation for
filing a suit for possession on the basis of title is 12 years and,
therefore, the suit is within limitation. Merely because one of the
reliefs sought is of declaration that will not mean that the outer
limitation of 12 years is lost. Reliance placed by the learned

counsel for the appellants on the judgment of this Court in L.C.
Hanumanthappa v. H.B. Shivakumar1 is wholly misplaced.
That judgment has no applicability since that case was
admittedly only a suit for declaration and not a suit for both
declaration and possession. In a suit filed for possession based
on title the plaintiff is bound to prove his title and pray for a
declaration that he is the owner of the suit land because his suit
on the basis of title cannot succeed unless he is held to have
some title over the land. However, the main relief is of
possession and, therefore, the suit will be governed by Article 65
of the Limitation Act, 1963. This Article deals with a suit for
possession of immovable property or any interest therein based
on title and the limitation is 12 years from the date when
possession of the land becomes adverse to the plaintiff. In the
instant case, even if the case of the defendants is taken at the
highest, the possession of the defendants became adverse to the
plaintiffs only on 19.08.1978 when possession was handed over
to the defendants. Therefore, there is no merit in this contention
of the appellants.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4478 OF 2007

SOPANRAO Vs SYED MEHMOOD 

Deepak Gupta, J.
Dated:July 03, 2019.

1. A suit was filed by Respondent Nos. 1 to 4 herein before the
trial court against the present appellants and others in which the
main prayers were as follows:
(i) “That, the lands S.Nos.60, 62, 77, 79/2 and 78
admg. 31 acres 32 gunthas, 15 acres 22
gunthas, 27 acres 18 gunthas, 15 acres 19
gunthas and 9 acres 19 gunthas respectively
situated at village Haregaon Tq. Ausa Dist. Latur
may be declared as Inam lands of Niyamatullah
Shah Dargah Haregaon and the plaintiffs as
Inamdars of the above lands.
(ii) That, the plaintiffs be put in possession of the
lands referred to above from defendant No. 1
to 11.”
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2. The present appellants and others contested the suit.
According to the plaintiffs, the possession of the land in question
was illegally given to Namdeo Deosthan Trust (for short ‘the
Trust’) on 19.08.1978 by the Government and it was prayed that
the possession of this land be restored to the plaintiffs. The
defendants contested the suit on various grounds. One of the
main grounds raised was that the suit was not filed within the
period of limitation. It was also contended that the suit was bad
for nonjoinder
of necessary parties and it was contended that
the suit land belonged to the Trust since time immemorial and
the suit be dismissed. The trial court vide judgment dated
14.10.1992 dismissed the suit of the plaintiffs and held that the
suit was not filed within the period of limitation. It also held that
the suit is bad for nonjoinder
of parties. Lastly, the trial court
held that the plaintiffs had failed to prove that the suit land was
Inam land or the plaintiffs are Inamdars.
3. Aggrieved, the plaintiffs filed an appeal in the Court of
District Judge, Latur. The District Judge vide judgment dated
26.11.1997 reversed the judgment and decree of the trial court
and came to the conclusion that the land originally belonged to
Dargah Niyamatullah Shah Quadri (for short ‘the Dargah’) and
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the plaintiffs and Defendant No. 12 were the Inamdars of the suit
land. It further held that the Government had wrongly given the
possession of the suit property. It was also held that all
necessary parties had been joined in the suit. Finally, the first
appellate court held that the plaintiffs were entitled to a decree
for possession of the suit land and accordingly allowed the appeal
and decreed the suit in favour of the plaintiffs and Defendant No.
12 and against Defendant Nos. 1 to 11 and 15.
4. Aggrieved, the present appellants and two others filed an
appeal in the High Court of Bombay. This appeal was dismissed
vide judgment dated 29.03.2007. However, the High Court
modified the decree of the District Judge to the limited extent
that the plaintiffs and Defendant No. 12 were held to be
descendents of Mutawalis and not Inamdars. Hence, this appeal.
5. We have heard learned counsel for the parties.
6. During the pendency of this appeal, some of the plaintiffs
have died and their legal representatives were not brought on
record. Though a preliminary objection was raised that the
appeal abates as a whole, we find no merit in this preliminary
objection. The plaintiffs have been held to be descendents of
4
Mutawalis of the properties which is in the nature of a
managerial post. As such the appeal does not abate.
7. Learned counsel for the appellants submitted that the
plaintiffs had failed to prove that the land was the land of the
Dargah. The second submission was that the suit was barred by
limitation. It was also contended that the suit was not
maintainable and that the High Court had granted reliefs which
had not even been prayed for by the plaintiffs.
8. As far as the issue of title is concerned, that, in our view, is
a finding of fact arrived at by the District Judge and confirmed by
the High Court. This finding cannot be disturbed in this Court.
However, on the insistence of learned counsel for the appellants,
we have gone through the record and find that the possession of
land in question was handed over to the Trust only on
19.08.1978. Nothing has been brought on record to show that
prior to 29.01.1973 the land was entered in the name of the
Trust. In fact, as per the pleadings of the defendants a change
report had been filed before the Assistant Charity Commissioner,
Latur and the said authority, without issuing notices to the
Inamdars/Mutawalis, allowed the said application on
5
29.01.1973. The plaintiffs had no knowledge of this application
but on the basis of this order the Government handed over the
possession of the land to the Trust. It was only after the Trust
came into the possession of the land that the mutation entry
(Exhibit No.115) was made in favour of the Trust. According to
the plaintiffs, they came to know about this fact only in 1986
when some publication in this regard was made by the Assistant
Charity Commissioner in terms of Section 50A of the Bombay
Public Trusts Act, 1950 and, thereafter, they filed the suit. It was
the plaintiffs, as observed by the District Judge as well as the
High Court, who had proved that the suit land belonged to the
Dargah. According to the High Court, the plaintiffs were not
actually Inamdars and were manning the affairs of the Dargah in
the nature of Mutawalis. Evidence was led by the plaintiffs to
show that they had been held to be the successors of one
Nizamuddin, the original Mutawali of the Dargah by the
competent authority under the Hyderabad Atiyat Inquiries Act,
1952. The High Court made reference to a large number of
documentary records proved by the plaintiffs from the year 1915
onwards, which showed that the land had been granted to the
Dargah as far back in 1915. Therefore, the Dargah was shown to
6
be the owner as far back in 1325 Fasli (1915 A.D.) in the official
records. Similar entries were made in 1342 Fasli (1932 A.D.),
1943 and 1951, all of which showed that the lands were shown
as lands belonging to Dargah. The judgments of the District
Court and the High Court are based on evidence. No question of
law arises as far as ownership of land is concerned. Therefore,
this finding of fact calls for no interference.
9. It was next contended by the learned counsel that the suit
was not filed within limitation. This objection is totally
untenable. Admittedly, the possession of the land was handed
over to the Trust only in the year 1978. The suit was filed in the
year 1987. The appellants contend that the limitation for the suit
is three years as the suit is one for declaration. We are of the
view that this contention has to be rejected. We have culled out
the main prayers made in the suit hereinabove which clearly
indicate that it is a suit not only for declaration but the plaintiffs
also prayed for possession of the suit land. The limitation for
filing a suit for possession on the basis of title is 12 years and,
therefore, the suit is within limitation. Merely because one of the
reliefs sought is of declaration that will not mean that the outer
limitation of 12 years is lost. Reliance placed by the learned

counsel for the appellants on the judgment of this Court in L.C.
Hanumanthappa v. H.B. Shivakumar1 is wholly misplaced.
That judgment has no applicability since that case was
admittedly only a suit for declaration and not a suit for both
declaration and possession. In a suit filed for possession based
on title the plaintiff is bound to prove his title and pray for a
declaration that he is the owner of the suit land because his suit
on the basis of title cannot succeed unless he is held to have
some title over the land. However, the main relief is of
possession and, therefore, the suit will be governed by Article 65
of the Limitation Act, 1963. This Article deals with a suit for
possession of immovable property or any interest therein based
on title and the limitation is 12 years from the date when
possession of the land becomes adverse to the plaintiff. In the
instant case, even if the case of the defendants is taken at the
highest, the possession of the defendants became adverse to the
plaintiffs only on 19.08.1978 when possession was handed over
to the defendants. Therefore, there is no merit in this contention
of the appellants.
1 (2016) 1 SCC 332

10. It was also urged that the plaintiffs had prayed that they
were Inamdars and that the High Court had created a new case
for the plaintiffs by declaring them to be Mutawalis. It was
argued that since plaintiffs had not claimed the relief that they
were Mutawalis, the High Court could not have granted this
relief. Reliance has been placed on a judgment of this Court in
the case of Bachhaj Nahar v. Nilima Mandal2. Para 22 of the
said judgment reads as follows:
“22. The observation of the High Court that when a
plaintiff sets forth the facts and makes a prayer for a
particular relief in the suit, he is merely suggesting
what the relief should be, and that it is for the court,
as a matter of law, to decide upon the relief that
should be granted, is not sound. Such an observation
may be appropriate with reference to a writ
proceeding. It may even be appropriate in a civil suit
while proposing to grant as relief, a lesser or smaller
version of what is claimed. But the said observation is
misconceived if it is meant to hold that a civil court
may grant any relief it deems fit, ignoring the prayer.”
(emphasis supplied)
11. In our view, the aforesaid judgment does not help the
appellants and, in fact, helps the respondents. The judgment
clearly lays down that the lesser relief or smaller version of the
relief claimed or prayed for can be granted. The plaintiffs claimed
the status of Inamdars which is a higher position than that of
2 (2008) 17 SCC 491

Mutawalis. The High Court has granted a lesser or lower relief
and not a higher relief or totally new relief and, therefore, we
reject this contention also.
12. It was also urged that the civil court had no jurisdiction to
decide the suit. No such objection was raised before the trial
court. This objection was raised before the High Court but has
been rightly rejected. The issue in this case was whether the
properties were properties of the Dargah or not and the issue was
not whether the properties are wakf properties or not. The High
Court rightly held that the plaintiffs were not claiming any
personal right in the land but only claiming rights of
management over the property of the Dargah. We agree with the
finding of the High Court that the civil court had the jurisdiction
to decide the suit.
13. At this stage, it would be pertinent to point out that the
appellants/defendants, during the course of this appeal, have
filed a number of applications to place on record certain
documents which were not on the record of the trial court. No
explanation has been given in any of these applications as to why
these documents were not filed in the trial court. These

documents cannot be looked into and entertained at this stage.
The defendants did not file these documents before the trial
court. No application was filed under Order XLI Rule 27 of the
Code of Civil Procedure, 1908 for leading additional evidence
before the first appellate court or even before the High Court.
Even the applications filed before us do not set out any reasons
for not filing these documents earlier and do not meet the
requirements of Order XLI Rule 27 of the Code of Civil Procedure.
Hence, the applications are rejected and the documents cannot
be taken into consideration.
14. In view of the above discussion, we find no merit in the
appeal and the same is dismissed. Pending application(s), if any,
shall stand disposed of.
....................................J.
(N. V. RAMANA)
....................................J.
(DEEPAK GUPTA)
....................................J.
(INDIRA BANERJEE)
New Delhi
July 03, 2019
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