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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

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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.

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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

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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

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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

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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 immovable property or any interest therein based on title.  

Explanation - For the purposes of this article-  

(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

Twelve years When  the possession  of the  defendant becomes adverse  to  the plaintiff.

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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.

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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.

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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.

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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

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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

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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

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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

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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

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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

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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

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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/-

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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.