Order II Rule 2 CPC – Partition suit – Not applicable – Rule 2 Order 2 CPC does not apply if the cause of action in the subsequent suit is different from that of the former suit as held by this Court .- In the instant case it cannot be said that the second suit for partition was in respect of the same cause of action as that on which the previous suit was based. In respect of the cause of action of the previous suit plaintiff was not entitled to more than one relief. Hence, it could not be said that the plaintiff has omitted to sue for relief for which second suit has been filed. Suit for partition with respect to joint property is based on continuing cause of action, as such the suit for partition could not be said to be barred by Order II Rule 2 CPC

Reportable

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3110 OF 2012
BaPusaheb chimasaheb naik-
nimbalkar (dead through lrs.) & anr. …Appellants

VERSUS

mAhEsh vijaysinha rajebhosale
& ORS.
…Respondents

J U D G M E N T
ARUN MISHRA, J.

1. The appeal has been preferred by the defendant aggrieved by the
judgment and decree passed by the trial court affirmed by the District
Court and the High Court. The plaintiffs/respondents who are the sons and
daughters of Anandibai, filed a suit for partition of the land comprised in
Survey No. 43/2, area 319 acres, 36 guntas situated at village Jawali,
Taluk Phaltan, District Satara. The plaintiffs averred that the land was
ancestral property initially inherited by Jagdevrao who expired in 1928. He
had three wives, namely, Bhagirathibai, Gajarabai and Kamalabai. They died
in the years 1927, 1950 and 1992 respectively. Jagdevrao had one son
Shankara Rao alias Bajirao who breathed his last on 6.2.1958. His daughter
Shakuntalabai died on 1.10.1962. Shakuntalabai died issueless. Anandibai
alias Sulochana, sister of Shankara Rao, succeeded to the property. She
also died on 20.1.1977. Her property was inherited by the plaintiffs being
her sons and daughters. The suit was filed against Chimasaheb who was also
son of Jagdevrao. Chimasaheb died on 18.8.1982. Bapu Saheb, appellant No.1
and Vijayantadevi, appellant No.2 are his successors.

2. Plaintiffs averred that the property originally belonged to Parbatrao
and Jagdevrao. After death of Parbatrao, his son Bapu Saheb succeeded to
his property. After death of Jagdevrao, names of his two sons i.e.
Chimasaheb and Shankara Rao were mutated. Shankara Rao had only one
daughter namely Shakuntalabai who died on 1.10.1962. She was unmarried.
Anandabai @ Sulochana succeeded to her property, being sister of her father
i.e. daughter of Jagdevrao. Anandibai had filed a civil suit in the year
1963 for declaration of her share in certain other property. The suit was
decreed and she was declared owner of ½ share. It was held that Anandibai
@ Sulochana was the heir of Shakuntalabai. The judgment had been affirmed
by the High Court. The name of Anandibai was required to be mutated after
death of Shakuntalabai. In the year 1976 the plaintiffs came to know that
the name of Anandibai had not been mutated over the land in question.
Anandibai @ Sulochana filed an appeal in which ex parte order was passed
against her. However as the defendants were trying to sell the land as such
suit was filed for partition and separate possession.

3. Defendants in their written statement contended that in the previous
civil suits filed by Anandibai, the property had not been included as such
the suit was barred by Order II Rule 2, CPC. It was also contended that the
name of Shankara Rao was mutated during his life-time and upon his death,
it was recorded in the name of Shakutalabai. The share of Shankara Rao was
partitioned and was allotted to the share of Chimasaheb. Chimasaheb denied
the plaintiff’s right in the year 1962 and had been enjoying the property
as absolute owner for more than 12 years. Therefore, suit was barred by
limitation.

4. The trial court decreed the suit and held the plaintiffs and
defendants to be co-owners and in joint possession of the suit land on the
date of the suit. The defendants were not in exclusive possession. The
right, title and interest of Anandibai @ Sulochana was not denied by
Chimasaheb before 16.7.1976. There was no ouster of the plaintiff. The suit
for partition could not be said to be barred by limitation. Nor it was
barred by provisions of Order II Rule 2, CPC. The appellate court had also
affirmed the findings. The second appeal preferred had also been dismissed
vide impugned judgment and order, hence the appeal.

5. It was contended by Mr. J.P. Cama, learned senior counsel appearing
on behalf of the appellants that the suit was clearly barred by limitation
as per the provisions contained in Article 65(b) of the Limitation Act,
1963. It was also urged that the possession was adverse to the interest of
the plaintiffs, as they were claiming through Shakuntalabai, Hindu female,
who died in the year 1962, suit filed beyond 12 years in the year 1979, was
clearly barred by limitation. Apart from that, the property was not
included in the earlier suit preferred by Anandibai as such the instant
suit filed by the plaintiffs was clearly barred by the provisions contained
in Order II Rule 2, CPC.

6. It was urged by Mr. S.B. Deshmukh, learned senior counsel for the
respondents that Article 65(b) is not attracted as Shakuntalabai was the
full owner of the property and concurrent findings had been recorded by
three courts that the defendants were not in adverse possession and
plaintiffs were in joint possession on the date of filing of the suit. As
the cause of action for earlier suit for declaration of title filed in the
year 1963 was different, the plaintiffs had succeeded to the property left
by Anandibai in the year 1977. In the earlier civil suit for declaration of
title, it was held that Anandibai had succeeded to the share of
Shakuntalabai. Subsequent suit for partition could not be said to be barred
by the provisions contained in Order II Rule 2, CPC. The earlier suit for
declaration of title filed by Anandibai was with respect to a different
property.

7. First we advert to the question of limitation as urged on behalf of
the appellants on the strength of the provisions contained in Article 65
Explanation (b) which is extracted under:

“Article 65:

|65. For possession of |Twelve years|When the |
|immovable property or any | |possession of |
|interest therein based on | |the defendant |
|title. | |becomes adverse|
|Explanation – For the | |to the |
|purposes of this article- | |plaintiff. |
|(a) Where the suit is by a | | |
|remainder man, a reversioner | | |
|(other than a landlord) or a | | |
|devisee, the possession of | | |
|the defendant shall be deemed| | |
|to become adverse only when | | |
|the estate of the | | |
|remainder-man, reversioner or| | |
|devisee, as the case may be, | | |
|falls into possession; | | |
|(b) Where the suit is by a | | |
|Hindu or Muslim entitled to | | |
|the possession of immovable | | |
|property on the death of a | | |
|Hindu or Muslim female, the | | |
|possession of the defendant | | |
|shall be deemed to become | | |
|adverse only when the female | | |
|dies; | | |
|(c) Where the suit is by a | | |
|purchaser at a sale in | | |
|execution of a decree when | | |
|the judgment-debtor was out | | |
|of possession at the date of | | |
|the sale, the purchaser shall| | |
|be deemed to be a | | |
|representative of the | | |
|judgement- debtor who was out| | |
|of possession.” | | |
8. It was submitted on behalf of the appellants that Anandibai became
entitled to possession of the property on the death of Shakuntalabai in the
year 1962. The name of Chimasaheb, original defendant, was mutated and
possession of Chimasaheb became adverse w.e.f. the date of death of
Shakuntalabai in the year 1962. Thus the suit preferred by the plaintiffs
in the year 1979 beyond a period of 12 years, was hopelessly barred by
limitation. We are unable to accept the submission as Explanation (b) to
Article 65 of the Act is applicable only in the case where property is not
claimed through the female but independently of woman who has died. The
word “entitled” contained in Explanation (b) to Article 65 clearly means a
person is entitled independently of the right of the Hindu or Mohammedan
female. In case she is absolute owner Article 65(b) will have no
application. In other words, it is necessary to trace the right to someone
else and not to the Hindu or Mohammedan female, as the case may be. In the
instant case, Shakuntalabai, daughter of Shankara Rao became absolute owner
of the property on 6.2.1958 and on her death on 1.10.1962, the right
accrued to Anandibai on the basis of inheritance made from Shakuntalabai
who was the owner of the ½ share in question. When the property is claimed
from a woman, Hindu or Mohammedan, who was the full owner, it could not be
said that Anandibai or the plaintiffs became entitled to the property
independently of the rights of female i.e. Shakuntalabai. Thus the suit
filed by such heir of female for separate possession/partition would not be
governed by Explanation (b) to Article 65. In such a case limitation would
not commence as per Explanation (b) to Article 65 on death of female Hindu.
However, the starting point of limitation for computation of 12 years would
be the date of start of adverse possession otherwise.

9. In Hashmat Begam & Anr. v. Mazhar Husain & Ors. (1888) ILR 10 All.
343, a Division Bench has opined that the word “entitled” has to be
understood in Explanation (b) to Article 65 as meaning “entitled
independently of the right of the Hindu or Muhammadan female”. Similar view
has been taken in Ghisa Singh & Anr. v. Gajraj Singh AIR 1916 Oudh 50,
Mohammad Yaqub v. Bijai Lal AIR 1918 Oudh 32, and Zarif un-nisa & Ors. v.
Chaudhri Shafiq-uz-zaman & Ors. AIR 1923 Oudh 185. Explanation (b) to
Article 65 is not applicable to a heir of Hindu or Mohammedan female who is
full owner of the property as it could not be said that the person became
entitled to the property independently of the right of the female but
derives right through her. Hence, the suit by such a heir could not be said
to be governed by Explanation (b) to Article 65 as held in Hashmat Begam &
Anr. (supra), Ghisa Singh (supra), Mohammad Yaqub (supra), Zarif un-nisa &
Ors. (supra); and Malkarjun Mahadev Belure v. Amrita Tukaram Dambare & Ors.
AIR 1918 Bom. 142 on consideration of provisions of Article 141 of the
Limitation Act.

10. Learned counsel appearing on behalf of the appellant has relied upon
the decision of this Court in Jagat Ram v. Varinder Prakash (2006) 4 SCC
482. In the said case Smt. Kirpi was given life interest in the suit
property as long as she was alive and after her death the property was to
be inherited by her daughter Smt. Manshan. The trial court dismissed the
suit as barred by limitation. The first appeal was allowed which was
challenged before the High Court in the second appeal and the same was
allowed by the High Court. It was held that Kirpi had no right of
maintenance. The case was covered by section 14(2) of the Hindu Succession
Act and not by section 14(1). The suit filed in the year 1982 was barred by
limitation as the widow who had life interest, had died on 5.9.1967 and the
suit for possession was not filed within 12 years of her death. This Court
opined that the suit was barred by limitation, relying upon Article 65(b),
this Court has laid down thus :

“3. Sunder had executed, during his life time, a gift deed on
23.6.1920 in favour of his daughter Smt Manshan (mother of the plaintiff).
He died on 17.9.1941. On 3.8.1945 Smt. Kirpi, widow of Sunder, filed suit
against Smt Manshan which finally resulted in a compromise to the effect
that Smt Kirpi will enjoy the suit property as long as she was alive and
after her death the property will be inherited by her daughter Manshan. It
appears that on 23.8.1958, Smt Kirpi executed an adoption deed in favour
her second daughter’s son, namely Varinder Prakash – the defendant and also
executed gift deed in his favour. Smt Manshan, mother of the plaintiff,
filed a suit on 27.5.1959 for cancellation of the gift deed and for a
declaration that the adoption was illegal. The suit was decreed by the
trial court on 16.1.1960. On 5.9.1967, Smt. Kirpi, widow of Sunder, died.
The decree obtained by Smt Manshan was ultimately challenged in Letters
Patent Appeal before the High Court by the defendant, which was dismissed
on 18.11.1981.

x x x x x

6. In our view, the High Court was right in holding that the suit
was barred by, limitation. Article 65 of the Limitation Act, 1963
prescribes the period of limitation for possession of immovable property or
any interest based on title where the suit is by a Hindu or Muslim entitled
to possession of immovable property on the death of a Hindu or Muslim
female. Article 65(b) in express terms provides that “the possession of the
defendant shall be deemed to become adverse only when the female dies”. The
limitation prescribed is 12 years beginning from the date when the
possession of the defendant becomes adverse to the plaintiff. Learned
counsel submitted that in view of Article 65 of the Limitation Act, 1963
the suit had to be filed within 12 years from the date on which the
possession of the defendant became adverse and, therefore, it was
immaterial as to when the Hindu female died. It is not possible to sustain
the contention because the article itself provides that the possession of
the defendant shall be deemed to become adverse only when the female dies.
Thus, there is no scope for the argument that limitation does not run from
the date on which the Hindu female died and that it would start running
from some other date. In our view, the High Court has rightly held that the
suit should have been filed by the plaintiff within 12 years of the death
of the Hindu female, namely Smt Kirpi, and the same having not been filed
within 12 years was barred by limitation. Much was sought to be made of the
pending litigation relating to the adoption and gift deed executed in
favour of the defendant. It was contended before us that since the matter
was still pending and though the plaintiff’s suit had been decreed on
16.1.1960, the plaintiff could not have filed the instant suit till such
time as the Letters Patent. Appeal was not dismissed by the High Court i.e.
till 18.11.1981. The submission has no substance because in the litigation
which was pending before the High Court the plaintiff had not claimed
possession of the suit land. The High Court has rightly pointed out that
even if the plaintiff had sought amendment of the pleadings in the pending
matter and claimed decree for possession, the legal position would have
been different. He having not done so, he should have filed the suit for
possession of the suit land within 12 years of the death of Smt. Kirpi,
which he failed to do.”

The decision is totally distinguishable as Kirpi had life-time
interest and the plaintiffs became entitled to possession on the demise of
said widow on 5.9.1967. The suit was filed on 14.12.1982 and it was held to
be barred by limitation. In the instant case Shakuntalabai was not having
life-interest but she was the full owner of the property, thus Article
65(b) has no application to the instant case.

11. Another decision of this Court in Ranbir Singh & Ors. v. Kartar Singh
& Ors. AIR 2003 SC 1858 may also be referred to, in which this Court had
observed in the backdrop of the fact that the widow had inherited the life
estate in the ancestral property of her husband and brother. The parties
were governed by custom under which a widow having life estate in the
ancestral property does not have the right of alienation. Way-back in 1936
the widow made an oral gift of some of the properties to collaterals of her
deceased husband. On the demise of widow in 1968, her daughter-plaintiff
filed a suit against the collaterals for possession of the shares in the
properties. It was held that the suit was not governed by the Punjab Act of
1920 and suit for possession could be filed within 12 years from the date
of cause of action that had arisen to plaintiff on the death of her mother
on 2.9.1968, obviously under Article 65(b) but the same was again a case
where mother was having a life interest. In the instant matter, as
Shakuntalabai was not having a life interest, Article 65(b) of the Act has
no application.

12. Article 65(b) applies where the female was a ‘limited owner’ with
regard to the disputed property. Hence, if the sale is not for legal
purposes, it would not be binding on the estate, the husband’s heirs who
would be entitled to inherit the estate after the widow’s death, would be
entitled on such death to sue for the recovery of the property from the
purchaser. As their right would be one derived from the husband and not
from the widow, it would be independent of the widow and they would be the
persons “entitled to sue for possession of the property on the death of the
widow” within the meaning of Explanation (b) to Article 65. Hence, the
above Explanation will apply to their suit and they would be entitled to a
period of 12 years from the widow’s death within which to bring the suit as
held by Full Bench verdicts in Amar Singh & Ors. v. Sewa Ram & Ors. AIR
1960 Punjab 530, Harak Singh v. Kailash Singh and Anr. AIR 1958 Pat. 581;
and Mt. Lukai W/o Katikram and Ors. vs. Niranjan Dayaram and Ors. AIR 1958
MP 160.

13. In the instant case possession never became adverse to the
plaintiffs. There is concurrent finding recorded that the plaintiffs were
in joint possession of the disputed land on the date of filing of the suit.
The defendants have taken the plea of ouster and the suit has been filed
beyond 12 years of death of Shakuntalabai but they have not been able to
prove their adverse possession. On the contrary the finding is that
Chimasaheb admitted the title of Anandibai. The finding is that till 1976,
Chimasaheb never denied the title of Anandibai. Be that as it may. As
adverse possession has not been concurrently found by the three courts and
in this case the starting point of limitation would not be the date of
death of Shakuntalabai in the year 1962 as she was full owner, as such suit
could not be said to be barred by limitation.

14. Coming to the second question raised on behalf of the appellants as
to the suit being barred by Order II Rule 2 of the CPC, suffice it to say
that the earlier suit based on different cause of action for a declaration
for one-half of the share in certain other properties was filed by
Anandibai in the year 1963. At that time the property in question was not
included in the suit. It had been found by courts below, the suit of 1963
was based on different cause of action on the basis of deed of 1957 whereas
in the instant case, cause of action is different. It is on the basis of
death of absolute owner Shakuntalabai in the year 1962, Anandibai became
owner and plaintiffs had in turn inherited from Anandibai. Thus the cause
of action of the suit in the present case for partition is different and
dispute as to mutation had been subsequently decided. Thus, the suit for
partition as filed, could not be said to be barred by Order II Rule 2 CPC.
The defendants were trying to sell the property in the year 1979 as such
the plaintiffs in the suit prayed for partition and separate possession.
Plaintiffs could not have claimed interest in the land in the life-time of
Anandibai and the cause of action in the previous suit for declaration of
title filed by Anandibai was materially different.

15. Rule 2 Order 2 CPC does not apply if the cause of action in the
subsequent suit is different from that of the former suit as held by this
Court in State of M.P. v. State of Maharashtra (1977) 2 SCC 288. In State
of Maharashtra v. National Construction Co. (1996) 1 SCC 735, when the
first suit was filed to enforce bank guarantee whereas second suit to claim
damages for breach of underlying contract, this Court laid down that the
subsequent suit was not barred by Order 2 Rule 2 CPC. In the case of
continuing or recurring wrong there would be corresponding continuing or
recurring causes of action when the first suit was based on infringement of
plaintiff’s trade mark, second suit was on the continuing act or
infringement of its trade mark and continuous passing of action subsequent
to filing of the earlier suit, in Bengal Waterproof Ltd. v. Bombay
Waterproof Mfg. Co. (1997) 1 SCC 99, it was held that the cause of actions
in two suits were different as such the bar of Order II Rule 2 CPC was not
attracted. The essential requirement for applicability of Order II Rule 2
CPC is to establish the identity of causes of action in the previous suit
and the subsequent suit so as to attract the bar as held in Deva Ram v.
Ishwar Chand (1995) 6 SCC 733 and Gurbux Singh v. Bhooralal AIR 1964 SC
1810.

16. In the instant case it cannot be said that the second suit for
partition was in respect of the same cause of action as that on which the
previous suit was based. In respect of the cause of action of the previous
suit plaintiff was not entitled to more than one relief. Hence, it could
not be said that the plaintiff has omitted to sue for relief for which
second suit has been filed. Suit for partition with respect to joint
property is based on continuing cause of action, as such the suit for
partition could not be said to be barred by Order II Rule 2 CPC. Submission
to the contrary is too tenuous to be accepted.

17. Resultantly, the appeal being devoid of merits, deserves dismissal
and the same is hereby dismissed. Costs of Rs.25,000/- to be paid by
appellants to the Supreme Court Bar Association Welfare Trust within a
period of two months from today.

……………………….J.
(Arun Mishra)
……………………….J.
(S. Abdul Nazeer)
NEW DELHI;
APRIL 25, 2017.

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