1980 PLP 1957 (CLC)

This is plaintiff s second appeal which has arisen out of a suit for possession over the land in dispute had ripened into ownership prescription. Previous to the instant suit between the parties, a suit instituted by the defendant-respondent against the on the basis of adverse possession having continued for a period than 12 years which suit was dismissed even upto the High Court ground of prematurely and wherein it was held by that Court that the possession of the defendant-respondent (plaintiff in that case) had been established adverse only for a period of S years before the institution of the suit which was done on 2nd February, 1965. That suit was finally adjudicated upon by the High Court on 16th April, 1968 vide judgment of the High Court brought on record by the plaintiff-appellant. The instant suit or possession of the land in dispute was brought in the Court of first instance on 13th May, 1969 claiming that the period which was spent in litigation between the parties remained suspended so far as question of limitation was concerned and as such he was entitled to the possession of the land in dispute of which he was admittedly a true owner According to him, limitation would be deemed to have started afresh from the date of the judgment-of the High Court in regard to the previous suit. The defendant-respondent controverted the suit of the plaintiff. 1t was asserted by the defendant-respondent that the suit was time barred and that his adverse possession having continued for more than 12 year: had ripened into ownership by way of prescription and that the previous suit in no way interrupted the continuity of adverse possession. Besides. it was contended that it was held by the High Court in the previous suit that as per admission of the plaintiff-appellant (defendant in the previous suit), the defendant-respondent had been in adverse possession since 8 years before the institution of that suit. Thus the pleadings of partied gave rise to the following issues relevant to this appeal (1) Whether the suit was within limitation ? O. P. P. (2) ...................................... (3) Whether the possession of the defendant over the suit land fir being more than 12 years has rippened into-ownership ? O. P. .D Arguments were heard. It was found by the Courts below that the suit of the plaintiff was barred by limitation though they differ in that finding on Issue No. 3 with regard to adverse possession. Both the issues, namely No. 1 and No. 3 are taken together as materially and substan tially they will have the same result in disposal of the appeal one way of the other. The sole point for determination of this case is whether the previous litigation between the parties with regard to the property in dispute had the effect of interrupting the continuity of the adverse possession of the respondent or not ? It was simply said by the trial Court on Issue No. 3 that as no proof could be adduced by the defendant, it was determined against him while the appellate Court appreciated the evidence of the defendant in the light of the finding of the High Court in the previous suit which was to the effect that the defendant was in adverse possession of the land in dispute 8 years before the institution of that suit though premature at the time of its institution. It was for over a year that the instant suit was instituted after the dismissal of the previous suit finally in the High Court in 1468. As per finding of the High Court in the previous suit, the plaintiff-appellant would be deemed to have been dispossessed from the land in suit from the day adverse possession is established over the land in suit. Thus it was incumbent upon the plaintiff to bring a suit within the period of 12 years under the provisions of Limitation Act from the day of ouster or disclaimer of his possession. In such a situation arising out of the suit which was clearly brought after a period of limitation prescribed, neither a provision of law enacted nor any case-law is available -which could attract or warrant suspension of that period towards calculating the period of limitation which was spent in a previous litigation between the parties where plaintiff (now defendant-respondent) was a claimant of the title of the land in suit by adverse possession against the defendant (now plaintiff -appellant) who was the true owner of the land in suit. The owner of the land in dispute took no steps for recovery of the possession which he was entitled to take within 12 years from the ouster or the disclaimer established in a previous suit. In my view, no benefit for the period spent in the previous litigation started by the opposite-party to set up adverse possession could be given to the owner of the property who took no steps for possession within the time prescribed by law as way for bringing a suit for possession of his property was open to him and there was nothing to preclude him from doing so within limitation prescribed for such a suit. So for failure of any steps to be taken by the plaintiff in that direction for possession of the suit land within the time prescribed, the adverse possession claimed by his adversary will continue. In the circumstances of the present case, the previous suit of the defendant for his statutory right being prematured cannot rest the running of period of limitation because the decision in that suit does not disturb or affect the nature of his possession, it rather emphasizes the fact that the possession of the respondent was adverse, Therefore, the suit of the plaintiff-appellant becomes time barred and. the possession of the defendant-respondent over the land in suit being adverse for more than 12 years before the institution of the suit gives him good title as such and so the findings of the lower Appellate Court are quite in accordance with law, which stand endorsed by this Court. Accordingly this appeal fails and is hereby dismissed, but with no order as to costs. M. Y. M. Appeal dismissed