Case Note & Summary
The second appeal arose from a suit for recovery of possession and mesne profits filed by a trust through its managing trustee against defendants who were in possession of trust property. The trust had earlier filed a suit in 1973 for declaration of title against several defendants, including the first defendant as the 34th defendant, but did not seek possession against him in that suit. That title suit was decreed in favor of the trust, and all appeals up to a Letters Patent Appeal (LPA) were dismissed, confirming that the trust owned the property and the first defendant was a trespasser. However, no possession relief was claimed against the first defendant in that litigation. The first defendant had entered the property and constructed a house, claiming ownership under a sale deed dated 10.07.1964. After the LPA was dismissed on 22.12.1988, the trust filed the present suit on 07.12.1992 for recovery of possession and mesne profits. The trial court decreed the suit, and the first appellate court affirmed. In the second appeal, the defendants contended that the suit was barred by limitation because they had been in adverse possession since 1964, and that the earlier title suit did not stop limitation because no possession relief was sought against them. They also raised a plea under Order II Rule 2 CPC. The trust argued that the suit was filed within 12 years from the final determination of title in the LPA, and thus was within time under Article 65 of the Limitation Act. The High Court admitted the appeal only on two substantial questions revolving around limitation. The Court held that although the pendency of earlier proceedings does not by itself stop the running of limitation, in the present case the cause of action for possession arose only after the earlier title suit had finally determined the rights of the parties and rejected the first defendant’s title and adverse possession claim. Since no relief of possession was sought in the earlier suit, the trust could not have filed a suit for possession until the title was conclusively settled. Therefore, the limitation period commenced on 22.12.1988, and the suit filed on 07.12.1992 was well within the 12-year period. The Court also noted that the earlier decree declared the first defendant a trespasser, which negated any continuity of adverse possession. The appeal was accordingly dismissed, and the decree for possession was upheld.
Headnote
A) Limitation - Suit for Possession - Article 65 Limitation Act, 1963 - Cause of action for recovery of possession based on title accrues when the defendant’s possession becomes adverse. Where an earlier suit for declaration of title has been finally decided against the defendant, holding him to be a trespasser and rejecting his claim of ownership, the limitation for a subsequent suit for possession commences on the date of the final decree in that earlier suit, not from the original date of purchase. The pendency of appellate proceedings in the earlier suit does not stop limitation, but where no relief of possession was sought in the earlier suit, the cause of action for a separate possession suit arises only upon final determination of title. (Paras 10-14)
B) Adverse Possession - Claim based on purchase and construction - Permissive possession vs. adverse possession - When the defendant’s claim of adverse possession from the date of purchase was rejected in an earlier title suit which declared him a trespasser, the earlier decree negated the continuity of adverse possession. Consequently, the possession of the defendant cannot be treated as adverse for the purpose of computing limitation for a subsequent suit for possession under Article 65, as the earlier suit broke the chain of adverse possession. (Paras 12-13)
Issue of Consideration
Whether the suit for recovery of possession was barred by limitation when the defendants had been in possession since 1964 and the earlier suit for declaration of title did not seek possession against them; whether limitation started running from the date of final disposal of the earlier suit or from the original date of purchase.
Final Decision
The second appeal is dismissed. The concurrent findings of the courts below are upheld. The suit for recovery of possession and mesne profits is not barred by limitation, as the cause of action arose only upon the final decree in the earlier title suit on 22.12.1988, and the suit filed on 07.12.1992 was within 12 years under Article 65 of the Limitation Act. The decree for possession and mesne profits stands confirmed.
Law Points
- Legal points not extracted
- Suit for possession based on title
- limitation period under Article 65 Limitation Act
- 1963 commences from date of final decree in earlier declaratory suit where no possession was sought
- defendant's adverse possession claim rejected in earlier suit
- earlier decree interrupts adverse possession
- subsequent suit filed within 12 years of LPA dismissal not barred
- mere pendency of appeal does not stop limitation but cause of action arises only on final determination of title.
Case Details
2026 LawText (MAD) (07) 55
H.Lakshmi Shankar, M.R.Sreenivasan
Subadra & Ors. (Legal Heirs of T.K.Ramachari)
N.Sulochana & Ors. (Legal Heirs of T.V.Namperumal)
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Nature of Litigation
Civil suit for recovery of possession and mesne profits by a private family trust against defendants who were in possession of trust property, claiming ownership through a purchase and also claiming benefits under the Tamil Nadu City Tenants Protection Act, 1921.
Remedy Sought
Plaintiff (trust) sought recovery of possession of the suit property and mesne profits from defendants, relying on an earlier declaratory decree that established the trust's title and declared the first defendant a trespasser.
Filing Reason
The plaintiff filed the suit after a prior title suit (O.S.No.749 of 1973) had been finally decided up to the Letters Patent Appeal stage in favor of the trust, but that suit had not sought possession against the first defendant. The trust now sought possession based on the settled title.
Previous Decisions
The trial court decreed the suit on 19.09.2006, ordering recovery of possession and mesne profits. The first appellate court (A.S.No.236 of 2007) confirmed the decree on 22.02.2019. Earlier, in O.S.No.749 of 1973, the trust's title was declared, and the first defendant was held to be a trespasser; that decree was affirmed in A.S.No.1070 of 1975 on 02.09.1983 and in L.P.A.No.5 of 1984, which was dismissed on 22.12.1988.
Issues
a) Are the Courts below justified in decreeing the suit ignoring the admitted and established facts, that from 10.07.1964, the defendants are in possession and enjoyment of the suit property in their own right and by constructing a house, openly in hostile manner to the interest of the plaintiff or the alleged trust he claims to represent, which clearly proves their case of adverse possession and also bars the present suit filed after 12 years?
b) Is the conclusion of the Courts below that limitation will start to run only from the disposal of the earlier suit by the High Court in exhibit A5, sustainable in law, as the earlier proceedings was not for recovery of possession and whether such a conclusion is sustainable in view of the legal principle that mere pendency of a suit or proceedings will not arrest the mere running of limitation as enunciated under Section 9 of the Limitation Act?
Submissions/Arguments
Appellants: The defendants contended that they had been in open and hostile possession since 10.07.1964, constructing a house and claiming adverse possession; the suit filed in 1992 was barred by limitation. They argued that pendency of earlier proceedings did not stop limitation and that the earlier suit did not seek possession against them, so the present suit was timebarred and also barred under Order II Rule 2 CPC.
Respondents: The plaintiff trust argued that the suit was filed within 12 years from the dismissal of the LPA on 22.12.1988, well within the period under Article 65 of the Limitation Act; the earlier title suit had finally declared the trust's title and the first defendant's status as a trespasser, and no cause of action for possession accrued until that decree became final.
Ratio Decidendi
Where an earlier suit for declaration of title has been finally decided against the defendant, holding him to be a trespasser and rejecting his claim of adverse possession, the cause of action for a subsequent suit for possession based on title accrues on the date of the final decree in the earlier suit. The limitation period under Article 65 of the Limitation Act, 1963 for such a possession suit commences from that date, not from the original date of purchase or entry. The pendency of appellate proceedings in the earlier suit does not by itself stop the running of limitation, but when the earlier suit did not seek the relief of possession, the right to sue for possession matures only upon the final determination of title. The earlier decree, having negatived the defendant’s adverse claim, also breaks the continuity of adverse possession.
Judgment Excerpts
In such circumstances, merely because the said decree was challenged by the first defendant herein by preferring an appeal and also an LPA in L.P.A.No.5 of 1984, I do not see how the plaintiff's hands were in any manner tied from initiating appropriate proceedings for recovery of possession from the first defendant.
The principle that mere pendency of a suit or proceedings will not arrest the mere running of limitation as enunciated under Section 9 of the Limitation Act.
Procedural History
The plaintiff trust filed O.S.No.2451 of 1996 before the II Additional District Munsif Court, Tiruchirappalli, for recovery of possession and mesne profits against the first defendant (T.K.Ramachari). The trial court decreed the suit on 19.09.2006. The defendants appealed in A.S.No.236 of 2007 before the I Additional Subordinate Judge, Tiruchirappalli, which dismissed the appeal on 22.02.2019. The defendants then filed the present second appeal under Section 100 CPC. Earlier, the plaintiff had filed O.S.No.749 of 1973 for a declaration of title against several defendants, and the first defendant was impleaded as the 34th defendant in 1976. That suit was decreed on 23.09.1973, and the decree was affirmed in A.S.No.1070 of 1975 on 02.09.1983 and in L.P.A.No.5 of 1984, which was dismissed by the High Court on 22.12.1988. No relief of possession was sought against the first defendant in the earlier suit.
Acts & Sections
- Civil Procedure Code, 1908: Section 100, Order II Rule 2
- Limitation Act, 1963: Article 65, Section 9
- Tamil Nadu City Tenants Protection Act, 1921:
