{"id":167958,"date":"2005-10-07T00:00:00","date_gmt":"2005-10-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/saroop-singh-vs-banto-ors-on-7-october-2005"},"modified":"2016-05-13T16:58:26","modified_gmt":"2016-05-13T11:28:26","slug":"saroop-singh-vs-banto-ors-on-7-october-2005","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/saroop-singh-vs-banto-ors-on-7-october-2005","title":{"rendered":"Saroop Singh vs Banto & Ors on 7 October, 2005"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Saroop Singh vs Banto & Ors on 7 October, 2005<\/div>\n
Author: S.B. Sinha<\/div>\n
Bench: S.B. Sinha, R.V. Raveendran<\/div>\n
           CASE NO.:\nAppeal (civil)  4426 of 1999\n\nPETITIONER:\nSaroop Singh\t\t\t\t\t\t\t\n\nRESPONDENT:\nBanto & Ors.\t\t\t\t\t\t\t\n\nDATE OF JUDGMENT: 07\/10\/2005\n\nBENCH:\nS.B. Sinha & R.V. Raveendran\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
S.B. SINHA,  J :\n<\/p>\n
\tThe first defendant in the suit is in appeal before us.   The plaintiff-
\nrespondents filed a suit for possession and permanent injunction, being Suit
\nNo.218 of 1994.\n<\/p>\n
 \tOne  Shadi admittedly was the owner of the suit property.   He left
\nbehind his widow, Indira Devi, who inherited the same.  On or about
\n7.1.1955, by a deed of gift Indira Devi donated the suit property in favour of
\nthe Appellant herein.  One Harnama son of  Jatti and Nathu son of Chetu (as
\nreversioners of said Shadi) filed a suit being Suit No.204 of 1957
\nchallenging the legality of the said deed of gift, contending that said Indira
\nDevi had a limited life interest therein.\n<\/p>\n
\tIn terms of a judgment and decree dated 31.1.1958, the said suit was
\ndecreed.   The said Indira Devi is stated to have died subsequently.  Her date
\nof death is not known.  The Appellant  First Respondent contended that she
\ndied at Haridwar in the year 1961.  While filing the aforementioned suit on
\n7.7.1994, the Respondents raised a plea that as she was not heard for a
\nperiod of seven years prior thereto,  by them and by others who would have
\nheard from her had she been alive, she was presumed to have been died .\n<\/p>\n
The plaintiffs-Respondents, as regard the earlier suit,  averred :\n<\/p>\n
\t“One Harnama son of Jatti and one Nathu son of
\nChetu challenged the gift deed mentioned above in the
\nyear 1957 through a suit No.204 and sought declaration
\nto the effect that the gift deed in dispute  shall not effect
\ntheir reversionary rights after the death of Inder Devi and
\ntheir suit was decreed on 31.1.58 by Sub-Judge, Ist Class,
\nAmbala.  However, at the same time it was observed by
\nthe Ld. Sub-Judge, that declaratory decree will ensue for
\nthe benefit of daughters of Shadi deceased.   Apart from
\nit under the customary law of Punjab Smt. Inder Devi
\nwas not absolute owner on 7.,1.1955 i.e. the day of gift of
\nthe suit properties, rather on the other hand she was only
\nhaving life interest in the suit properties  and could not
\ngift away the same to defendant No.1 as Smt. Inder Devi
\nhad already parted with the suit properties in favour of
\ndefendant No.1 and could not become absolute owner
\nwith the pasasing of Hindu Succession Act, 1956, rather
\nher life interest continued through in the hand of
\ndefendant No.1.”\n<\/p>\n
In the said suit, the  plaintiff-respondents prayed :\n<\/p>\n
\t“It is, therefore, prayed that the suit of the
\nplaintiffs for possession as owner of the land comprised
\nin Kh\/kh. No.285\/356, Khasra  Nos. 194(8-4), 195(5-7),
\n2124(6-18), 1854(1-2), 1859(4-7), 1856(4-7), 851(4-3),
\n850\/2(0-8), 1621(0-15), and for symbolical possession as
\nowner of the land comprised in kh\/kh No.285\/337,
\nKhasra Nos.849(1-10), 850(3-7), situated within the
\nrevenue limits of village Mullanpur Garib Dass and of
\n1\/6 share of kh. No.2078(3-7) and of 1\/6 share out of
\nBara bounded as.and for permanent injunction
\nrestraining the defendant No.1 from alienating the suit
\nproperties to anybody may kindly be decreed in favour of
\nthe plaintiff against the defendants with costs.\n<\/p>\n
\tAny other relief this Ld. Court deeds fit may
\nkindly be granted to the plaintiff in the interest of
\njustice.”\n<\/p>\n
\tThe statements made in paragraph 1 was traversed by the Appellant
\nherein in paragraph 3 of the written statement, contending :\n<\/p>\n
“It is incorrect and denied.  Smt. Inder Devi who had
\nbeen absolute owner of the suit properties and she made a
\nvalid gift in favour of the answering defendant.”\n<\/p>\n
\tA plea that the suit is time-barred was also raised as an additional
\nplea.\n<\/p>\n
 \tThe learned Trial Judge in view of the pleadings of the parties, inter
\nalia, framed the following issues :\n<\/p>\n
“3.\tWhat is the effect of the judgment and decree
\ndated 31.1.1958 ?  OPP. Parties.\n<\/p>\n
4.\tWhether Smt. Inder Devi has not been heard for
\nthe last 7\/7 = years back by plaintiff and other
\nfamily members and is presumed to be dead ?
\nOPP.\n<\/p>\n
5.\tWhether plaintiffs are entitled to possession of the
\nsuit land. OPP.\n<\/p>\n
6.\tWhether suit is time barred ? OPP.”\n<\/p>\n
\tWhile dealing with Issue No.3, the Trial Court noticed that in the
\njudgment and decree passed in Suit No.204 of 1957, which was marked as
\nEx.P3 and Ex.P4, it was observed that the declaratory decree would ensue
\nthe benefit of the daughters of Shadi, who were the plaintiffs therein, and on
\nthat basis decided the said issue in favour of the plaintiff-respondents.\n<\/p>\n
 \tAs regard Issue No.4, it while holding that there was no cogent
\nevidence proving the death of Indira Devi in the year 1961 recorded a
\nfinding that she was presumed to have died on account of her untraceability
\nfor more than 7 years in terms of Section 108 of the Indian Evidence Act.
\nAs regard Issue Nos.5 and 6, the Trial Court held  :\n<\/p>\n
“The defendant has nowhere pleaded that he became
\nthe owner of the suit land by way of adverse possession.
\nNo amount of evidence can be taken into account by
\ntravelling beyond the pleadings of the parties.  The
\ndefendant has neither pleaded nor set up any adverse
\npossession over the suit property.   No period of
\nlimitation is prescribed for bringing a suit for possession
\non the basis of inheritance.  The suit for possession on
\nthe basis of inheritance can fail if defendant proves that
\nhe has perfected his title by way of adverse possession.
\nIn the instant case, the defendants have not set up any
\nadverse possession and consequently the suit is within
\ntime under Article 65 of the Limitation Act, 1963”\n<\/p>\n
\tThe appeal preferred thereagainst by the Appellant was dismissed.  In
\nthe Second Appeal filed before the High Court, the Appellant, inter alia,
\nraised the question of limitation. The High Court relying on or on the basis
\nof Entry  2(b) of the schedule appended to the Punjab Limitation (Customs)
\nAct, 1920, affirming the findings of the courts below that the Appellant
\ncould not prove the date of death of Indira Devi, held that the suit is not
\nbarred by limitation stating :\n<\/p>\n
“Since the defendant-appellant failed to prove the
\ndeath of Indira Devi, it cannot be said that the suit filed
\nby the plaintiffs is barred by time.  In fact the suit filed is
\nbasing on the acquisition of title on the death of Indira
\nDevi.  Thus the suit is based on title as it cannot be
\ndisputed that the plaintiffs became entitled to the suit
\nproperty on the death of their mother.  It is for the
\ndefendant-appellant to prove that he has perfected in his
\ntitle being in adverse possession for over 12 years from
\nthe date of death of Indira Devi and that the plaintiffs lost
\ntheir right to sue by efflux of time.  Under Article 65 of
\nthe Limitation Act, the burden of proof that he perfected
\nhis title by adverse possession is on the defendant-
\nappellant.”\n<\/p>\n
\tMr. P.L. Jain, the learned Senior Counsel appearing on behalf of the
\nAppellant herein, would contend that the courts below committed a manifest
\nerror of law insofar as they failed to properly interpret the provisions of
\nSections 107 and 108 of the Indian Evidence Act; as by reason thereof a date
\nof death cannot be fixed.  It was urged that Indira Devi did not become an
\nabsolute owner in terms of the provisions of the Hindu Succession Act, 1956
\nas she was not possessed of the property  on the date of coming into force
\nthereof and in that view of the matter the courts below had committed a
\nserious error in passing the impugned judgments relying on or on the basis
\nof Article 65 of the Limitation Act, 1963.  Reliance, in this connection, has
\nbeen placed on Giasi Ram and Others vs. Ramjilal and Others<\/a> [(1969) 1
\nSCC 813] <\/p>\n
\tIt was submitted  that it was for the plaintiff-Respondents to prove the
\ndate of death of Indira Devi as they have not  filed a suit based on title.\n<\/p>\n
\tMr. P.N. Mishra, the learned Senior Counsel appearing on behalf of
\nthe plaintiff-respondents, on the other hand, would contend that on the death
\nof Indira Devi, the succession reopened in view of the declaratory decree
\npassed by the Civil Court.  It was argued that having regard to the fact that
\nthe Appellant having not set up any plea of adverse possession, the suit
\ncannot be held to be barred by limitation and in that view of the matter
\nArticle 65 of the Limitation Act, 1963 will have no application.\n<\/p>\n
\tIt has not been disputed  before us that the judgment and decree
\npassed in Suit No.204 of  1957 had attained finality.  In the said suit, it was
\nheld :\n<\/p>\n
“In the present case the declaratory decree will ensue
\nfor the benefit of the daughters of Shadi deceased and the
\ndaughters’ sons who are minors.  In the circumstances,  I
\nwould in exercise of my discretion, grant the plaintiffs a
\ndecree for a declaration to the effect that the gift in
\ndispute shall not affect their reversionary rights after the
\ndeath of defendant no.1.  The parties are, however, left to
\nbear their own costs”\n<\/p>\n
\tIt is furthermore not in dispute that Indira Devi had only a life
\ninterest.  The  deed of gift dated 7.1.1955 was, therefore, held to be valid
\nonly so long as  she was alive.  On her death the succession reopened having
\nregard to the provisions of the Hindu Succession Act, 1956.  The
\nRespondents being daughters inherited the interest of  Shadi.   They were
\nalso reversioners in terms of their personal law as was opined by the Civil
\nCourt in the earlier suit.  The plaintiff-respondents, therefore, rightly claimed
\ntheir title by inheritance.\n<\/p>\n
\tEntry 2(b) of the Punjab Limitation (Customs) Act, 1920 provides for
\na limitation of three years, when a suit is filed for possession  of ancestral
\nimmovable property which has been alienated on the ground that the
\nalienation is not binding on the plaintiff according to custom.  The said
\nprovision has no application herein as the title of the suit property in favour
\nof the Respondents herein had already been declared by the Civil Court in
\nthe earlier suit, subject to the condition that they remain owners thereof.  The
\nCivil Court took into consideration the customary law as also the provisions
\nof the Hindu Succession Act while arriving at the said finding.  Moreover, a
\ndeclaratory decree obtained  by a reversioner is not binding upon actual
\nowner, in view of the decision of this Court in Shankuntla Devi vs. Kamla
\nand Others<\/a> [(2005) 5 SCC 390].\n<\/p>\n
\tIn the suit, it was not necessary for the Respondents herein to claim
\ntheir reversionary right, as the same had already been declared in the earlier
\nsuit.\n<\/p>\n
\tThis Court in Giasi Ram (supra) held :\n<\/p>\n
“The Punjab Custom (Power to Contest) Act 1 of 1920,
\nwas enacted to restrict the rights exercisable by members
\nof the family to contest alienations made by a holder of
\nancestral property. By virtue of Section 6 of the Act no
\nperson is entitled to contest an alienation of ancestral
\nimmovable property unless he is descended in the male
\nline from the great-great-grandfather of the alienor.
\nUnder the customary law in force in the Punjab a
\ndeclaratory decree obtained by the reversionary heir in an
\naction to set aside the alienation of ancestral property
\nenured in favour of all persons who ultimately took the
\nestate on the death of the alienor for the object of a
\ndeclaratory suit filed by a reversionary heir impeaching
\nan alienation of ancestral estate was to remove a common
\napprehended injury, in the interest of the reversioners.
\nThe decree did not make the alienation a nullity  it
\nremoved the obstacle to the right of the reversioner
\nentitled to succeed when the succession opened. By the
\ndecree passed in Suit No. 75 of 1920, filed by Giani Ram
\nit was declared that the alienations by Jwala were not
\nbinding after his life time, and the property will revert to
\nhis estate. It is true that under the customary law the wife
\nand the daughters of a holder of ancestral property could
\nnot sue to obtain a declaration that the alienation of
\nancestral property will not bind the reversioners after the
\ndeath of the alienor. But a declaratory decree obtained in
\na suit instituted by a reversioner competent to sue has the
\neffect of restoring the property alienated to the estate of
\nthe alienor.”\n<\/p>\n
 \tIn this case, the Respondents herein have a better title.  They were not
\nparties in the earlier suit.  They, therefore, claimed their title independent of
\nthe declaratory decree, although such right has been noticed therein.  We
\nwould consider the question of applicability of Limitation Act little later but
\nbefore doing that we may consider the question of date of death of Indira
\nDevi.\n<\/p>\n
\tSections 107 and 108 of the Indian Evidence Act read :
\n\t“107.  Burden of proving death of person
\nknown to have been alive within thirty years.- When
\nthe question is whether a man is alive or dead, and it is
\nshown that he was alive within thirty years, the burden of
\nproving that he is dead is on the person who affirms it.\n<\/p>\n
\t108.\tBurden of proving that person is alive
\nwho has not been heard of for seven years.-Provided
\nthat when the question is whether a man is alive or dead,
\nand it is proved that he has not been heard of for seven
\nyears by those who would naturally have heard of him if
\nhe had been alive, the burden of proving that he is alive is
\nshifted to the person who affirms it.”\n<\/p>\n
Section 108 is a proviso to Section 107.\n<\/p>\n
There is neither any doubt or dispute that the date of death of Indira
\nDevi is not certain.  By reason of  the aforementioned provision, a
\npresumption of death can be raised.  In this case, however, death of Indira
\nDevi is not in question, the date of death is.  In the instant case, both the
\nparties have failed to prove the date of death of Indira Devi.  However,
\nhaving regard to the presumption contained in Section 108 of the Indian
\nEvidence Act, the Court shall presume that she was dead having not heard of
\nfor a period of seven years by those who would naturally have heard of him,
\nif he had been alive, but that by itself would not be a ground to presume that
\nshe had died seven years prior to the date of institution of the suit   <\/p>\n
In Lal Chand Marwari vs. Mahant Ramrups Gir and Another  AIR
\n1926 PC 9], it was observed :\n<\/p>\n
“Now upon this question there is, their Lordships are
\nsatisfied, no difference between the law of India as
\ndeclared in the Evidence Act and the Law of England
\n(Rango Balaji vs. Mudiyeppa (1899) 23 Bom. 296) and
\nsearching for an explanation of this very persistent
\nheresy, their Lordships find it it in the words in which the
\nrule both in India and in England is usually expressed.
\nThese words taken originally from In re Phene’s Trusts
\n(L.R. 5 Ch.139)  follows :-\n<\/p>\n
\tFollowing these words, it is constantly
\nassumed  not perhaps unnaturally  that where the
\nperiod of disappearance exceeds seven years, death,
\nwhich may not so.  The presumption is the same if the
\nperiod exceeds seven years.  The period is one and
\ncontinuous, though it may be divisible into three or
\neven four periods of seven years.  Probably the true
\nrule would be less liable to be missed, and would
\nitself be stated more accurately, if, instead of speaking
\nof a person who had not been heard of for seven
\nyears, it described the period of disappearance as one
\nof not less than seven years.”\n<\/p>\n
In LIC of  India  vs. Anuradha [(2004) 10 SCC 131], this Court held :\n<\/p>\n
“12. Neither Section 108 of the Evidence Act nor logic,
\nreason or sense permit a presumption or assumption
\nbeing drawn or made that the person not heard of for
\nseven years was dead on the date of his disappearance or
\nsoon after the date and time on which he was last seen.
\nThe only inference permissible to be drawn and based on
\nthe presumption is that the man was dead at the time
\nwhen the question arose subject to a period of seven
\nyears’ absence and being unheard of having elapsed
\nbefore that time. The presumption stands unrebutted for
\nfailure of the contesting party to prove that such man was
\nalive either on the date on which the dispute arose or at
\nany time before that so as to break the period of seven
\nyears counted backwards from the date on which the
\nquestion arose for determination. At what point of time
\nthe person was dead is not a matter of presumption but of
\nevidence, factual or circumstantial, and the onus of
\nproving that the death had taken place at any given point
\nof time or date since the disappearance or within the
\nperiod of seven years lies on the person who stakes the
\nclaim, the establishment of which will depend on proof
\nof the date or time of death.”\n<\/p>\n
\tHowever, the date of death of Indira Devi would not assume any
\nsignificance, as would appear from the discussions made hereinafter.\n<\/p>\n
 \tIn the instant case, the question of applicability of the Limitation Act
\ndoes not arise.  The Appellant-first defendant could have legitimately raised
\na plea that Indira Devi having died in the year 1961, his possession
\nthereafter has become adverse to the true owner and, thus, on the expiry of
\nthe statutory period of limitation he had perfected his title by adverse
\npossession.  But, he did not raise such a plea.  Even before us, Mr. Jain
\ncategorically stated that the Appellant does not intend to raise such a plea.\n<\/p>\n
\tArticles 64 and 65 of the Limitation Act read thus :
\n”\n<\/p>\n
Description of suit
\nPeriod of
\nLimitation
\nTime from which
\nperiod begins to
\nrun\n<\/p>\n
64.
\nFor possession of immovable
\nproperty based on previous
\npossession and not on title,
\nwhen the plaintiff while in
\npossession of the property has
\nbeen dispossessed
\nTwelve years
\nThe date of
\ndispossession.\n<\/p>\n
65.
\nFor possession of immovable
\nproperty or any interest
\ntherein based on title.\n<\/p>\n
Explanation.-For the purposes
\nof this article\n<\/p>\n
(a)\twhere the suit is by a
\nremainderman, a
\nreversioner (other than
\na landlord) or a devisee
\nthe possession of the
\ndefendant shall be
\ndeemed to become adv
\nerse only when the
\nestate of the
\nremainderman,
\nreversioner or devisee,
\nas the case may bay,
\nfalls into possession;\n<\/p>\n
(b)\twhere the suit is by a
\nHindu or Muslim
\nentitled to the
\npossession of
\nimmovable property on
\nthe death of a Hindu or
\nMuslim female, the
\npossession of the
\ndefendant shall be
\ndeemed to become
\nadverse only when the
\nfemale adverse only
\nwhen the female dies;\n<\/p>\n
(c)\twhere the suit is by a
\npurchaser at a sale in
\nexecution of a decree
\nwhen the judgment-\n<\/p>\n
debtor was out of
\npossession at the date
\nof the sale, the
\npurchaser shall be
\ndeemed to be a
\nrepresentative of the
\njudgment-debtor who
\nwas out of possession.\n<\/p>\n
Twelve years
\nWhen the
\npossession of the
\ndefendant
\nbecomes adverse
\nto the plaintiff
\n\t\t\t\t\t\t\t\t\t\t\t”\n<\/p>\n
\tThe statutory provisions of the Limitation Act have undergone a
\nchange when compared to the terms of Articles 142 and 144 of the schedule
\nappended to the Limitation Act, 1908, in terms whereof it was imperative
\nupon the plaintiff not only to prove his title but also to prove his possession
\nwithin twelve years, preceding the date of institution of the suit.  However, a
\nchange in legal position has been effected in view of Articles 64 and 65 of
\nthe Limitation Act, 1963.  In the instant case, plaintiff-respondents have
\nproved their title and, thus, it was for the first defendant to prove acquisition
\nof title by adverse possession.  As noticed hereinbefore, the first defendant-
\nAppellant did not raise any plea of adverse possession.  In that view of the
\nmatter the suit was not barred.\n<\/p>\n
\tIn terms of Article 65 the starting point of limitation does not
\ncommence from the date when the right of ownership arises to the plaintiff
\nbut commences from the date defendant’s possession  becomes adverse.
\n[See Vasantiben Prahladji Nayak and Others vs. Somnath Muljibhai Nayak
\nand Others<\/a>  (2004) 3 SCC 376]<\/p>\n
\t‘Animus possidendi’ is one of the ingredients of adverse possession.
\nUnless the person possessing the land has a requisite animus the period for
\nprescription does not commence.  As in the instant case, the Appellant
\ncategorically states that his possession is not adverse  as that of true owner,
\nthe logical corollary is that he did not have the requisite animus.   [See Md.
\nMohammad Ali (Dead) By LRs. Vs. Jagdish Kalita and Others, (2004) 1
\nSCC 271, para 21]<\/p>\n
\tYet again in  Karnataka Board of Wakf vs. Government of India and
\nOthers<\/a> [(2004) 10 SCC 779], it was observed :
\n “Physical fact of exclusive possession and the animus
\npossidendi to hold as owner in exclusion to the actual
\nowner are the most important factors that are to be
\naccounted in cases of this nature. Plea of adverse
\npossession is not a pure question of law but a blended
\none of fact and law. Therefore, a person who claims
\nadverse possession should show: (a) on what date he
\ncame into possession, (b) what was the nature of his
\npossession, (c) whether the factum of possession was
\nknown to the other party, (d) how long his possession has
\ncontinued, and (e) his possession was open and
\nundisturbed. A person pleading adverse possession has
\nno equities in his favour. Since he is trying to defeat the
\nrights of the true owner, it is for him to clearly plead and
\nestablish all facts necessary to establish his adverse
\npossession.”\n<\/p>\n
\tIn view of our findings aforementioned, we are of the opinion that
\nthere is no merit in this appeal, which is accordingly dismissed.  No costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Saroop Singh vs Banto & Ors on 7 October, 2005 Author: S.B. Sinha Bench: S.B. Sinha, R.V. Raveendran CASE NO.: Appeal (civil) 4426 of 1999 PETITIONER: Saroop Singh RESPONDENT: Banto & Ors. DATE OF JUDGMENT: 07\/10\/2005 BENCH: S.B. Sinha & R.V. Raveendran JUDGMENT: J U D G M E N T […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-167958","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSaroop Singh vs Banto & Ors on 7 October, 2005 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/saroop-singh-vs-banto-ors-on-7-october-2005\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Saroop Singh vs Banto & Ors on 7 October, 2005 - 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