Article 65 of Limitation Act

Article 65 Schedule/part V of limitation act relates to suits for possession based on title while Art. 64 deals
with suits based on possession and not on title. In the case of Art. 64, the onus lies on the plaintiff to prove
his possession within 12 years, while in the case of Art. 65 it is for the defendant to prove when his
possession became adverse. In a suit governed by Art. 64 the nature of possession is not material but under
Art. 65 the possession to be a material is adverse possession of the defendant.

In Ramaiah v. N.R. Narayana Reddy, (2004 AIR SCW 4695), it is pointed out by the Supreme Court that the
Article 64 is restricted to suits for possession on dispossession or discontinuance of possession, whereas Art.
65 is the residuary Article and applies to suits for possession not otherwise provided for, that the suits based
on the plaintiffs title in which there is no allegation of prior possession and subsequent dispossession alone
can fall within the Art. 65 and that the question whether Art. 64 or Art. 65 applies to a particular suit has to
be decided by the pleadings and the plaintiff cannot invoke Art. 65 on suppressing material facts. Under Art.
64 limitation commences from the date of dispossession whereas under Art. 65 it commences from the date
when the possession of the defendant became adverse.

In Chandra Kanta v. Gokul, (AIR 1975 Gau. 13), it has been held that a plaintiff may sue for possession both
on the ground of title and on the ground of dispossession. If he proves his title, he is entitled to decree for
possession under the defendant establishes title by adverse possession and Article to be applied is Art. 65. If
he fails to prove title but succeeds in proving possession and dispossession within 12 years he will get
recovery of possession but not declaration of title and to such suit at present Art. 64 would apply.

In Rama Bhattacharjee v. Md. Bachu Sheik, (AIR 2005 Gau. 18), it has been held that when the plaintiff’s
rights, title and interest in respect of the suit-land has been declared in an earlier suit which attained finality,
the plaintiff’s subsequent suit for possession based on such title declared is governed by Art. 65 and not Art.
64.

The explanation (a) to Art. 65 indicates a suit by a remainder man, a reversioner (other than a landlord) or a
devisee for possession of the property will attract Art. 65. An estate in remainder is that expectant portion or
ulterior estate, which on the creation of a particular estate, is at the same time conveyed away, by the owner
to another who is to enjoy it immediately after the determination of such particular estate. A remainder does
not like reversion, arise any operation of law, but is always created by act of parties.

In Skimner v. Kunwar, (AIR 1929 PC 158), it has been held that where P grants an estate X for life with
remainder to Y. Y is the remainder man within the meaning of clause (a) and he becomes entitled to
possession of that estate on the death of X. Even a person to whom the property is limited by a contingent
remainder will still be remainder man.
One who claims a vested remainder under a partition decree comes within this clause. Similarly, where an
estate is subject to an encumbrance or even where the equity of redemption itself is settled by an instrument
so as to create an estate in remainder in a person, such a remainder man also comes within this clause. The
reversioners are the heirs of the last full owner who would be entitled to succeed to the estate of such owner
on the death of a widow or other limited owner.

If a life-tenant be dispossessed, the reversioner or remainder man is in time if he institutes the suit for
possession of immovable property within 12 years of the death of the life-time, and if successive life estate
had been created the remainder man or the reversioner will be in time if he institutes the suit for possession
within 12 years of the death of the last life-tenant.

A devisee is one to whom immovable property is given by Will and one to whom lands or other real estate
are devised. In Smt. Balmain Chandra Kala Devi v. Smt. Pokraj Kuer, (AIR 1963 Pat. 2), it has been held
that a suit by the devisee for declaration that the sale of the property of the testatrix is invalid and for
recovery of possession is a suit based on title and the Art. 65 will be attracted as it is in effect a suit for
possession and not one for cancellation of sale.

Explanation (b) to the Article 65 covers the suits for possession of immovable property by a Hindu or a
Muslim entitled to possession to such property on the death of Hindu or Muslim female. The word ‘Hindu’
for the purpose of this Explanation means not only a person who is ethnologically a Hindu but also a person
who has the legal status of Hindu and is governed in the matter of inheritance by the Hindu Law. As per
Section 2 of the Hindu Succession Act, Hindu is a person who is a Hindu by religion in any of the form of
developments including virashaiva, lingayat or a follower of Brahma, Prarthana or Arya Samaj or any
person who is a Buddhist, Jain or Sikh by religion and any other person who is not a Muslim, Christian,
Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the
Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if
the Hindu Succession Act had not been passed.

In Arumugam v. Raja Gopal, (AIR 1976 SC 939), it has been held that a person may be a Hindu either by
birth or by conversion although no ceremony or purification or expiration is necessary to legalise
conversion.

In Dhanurjaya v. Sukra, (AIR 1987 Ori. 205), the Supreme Court has held that a person born to a Hindu
father and Christian mother if brought up as a Hindu is also a Hindu.

In order to attract the Explanation (b) to Art. 65, the following conditions are required:

(i) The deceased should have been a Hindu or Muslim female with a limited estate; (ii) the deceased as well
as the plaintiff should both of them be Hindus or Muslims; (iii) the suit by the plaintiff should be for
possession; (iv) the property should be immovable; (v) the right to possession should arise on the death of
the female limited owner; and (vi) the person who is in possession of such immovable property should be a
stranger.

The Explanation (b) to Art. 65 applies only to suits by reversioners in respect of the property of which they
are entitled to recovery of possession and which was in possession of the defendant on the date of death of
the female. In Venkat Subbarao v. G. Subbarao, (AIR 1964 AP 326), it has been held that the Explanation
(b) to Art. 65 is not applicable when in respect of the suit for possession by the reversioners the time to file
the suit commenced to run against the last full owner as in such a case it continues to run and is not
suspended or arrested by the fact that the last full owner is succeeded by a female entitled to women’s
limited estate.

In S.G. Iyer v. S.S. Iyer, (AIR 1972 Mad. 269), it has been held that even a suit by a Hindu daughter for
possession of her share in her father’s estate on the death of her mother or stepmother is governed by the
Explanation (b) to Art. 65.

In Sheik Abdul Rahaman v. Sheik Wali Mohammed, (AIR 1923 Pat. 72), it has been held that when a
Muslim widow who had been in i possession of her husband’s property in lieu of her unsatisfied dower sold
away the property, a suit brought on widow’s death by the heir of the husband for possession of the property
is governed by the Article 65 and Explanation (b) is attracted.

Under Explanation (b) to Art. 65, the right to possession arises on the death and the limitation starts from the
time when the female dies.

In V.P. Nayak v. S.M. Nayak, [2004 (3) ICC 533 (SC)], it is held that the right of the reversioners to recover
possession of the property within 12 years of the death of the widow, the life tenant is not only based on the
provisions of the Limitation Act, 1963 but on the principles of Hindu Law and the general principles that the
right of a reversioner is in the nature of spes successions and such reversioner does not trace title through the
widow, the life tenant, and consequently the adverse possession against the widow, life tenant will not bar
the reversioner/remainder man from succeeding to the estate on the demise of the life tenant and this is the
reason for enacting the Explanation (a) to Article 65 of the Limitation Act, 1963.

Explanation (c) to Art. 65 provides that where the judgment-debtor was out of possession at the time of the
sale in execution of a decree, in any suit for possession by the purchaser he shall be deemed to be the
representative of the judgment-debtor.

The effect of Explanation (c) is that the time which has run against the judgment-debtor with a cause of
action will be added on to the time which runs against the auction-purchaser to reckon total period of
limitation under Art. 65. So, the entire period which has run against the judgment- debtor and the auction-
purchaser will have to be reckoned for computing the period of limitation.

In a suit falling under Art. 65 plaintiff must establish his title to the property; he need not prove that he was
in possession within 12 years. If he fails to prove his title the suit fails, and the question of adverse
possession does not arise in such a case.

In Annasaheb v. Balwant, (AIR 1995 SC 895), it has been held that under Art. 65, the burden is on the
defendants to prove affirmatively that he is in possession in hostile assertion i.e. a possession which is
expressly or impliedly in denial of the title of the true owner.

In Atul Chandra Adhikari v. State of Orissa, (AIR 1995 Ori. 233), it has been held that the burden of proving
that the possession of the suit land was adverse and for statutory period lies on the defendant who claims
title by adverse possession and that the patty selling up title by adverse possession has to affirmatively prove
his or her possession over statutory period and presumption and probability cannot be substituted for
evidence. When the adverse possession is pleaded, the area of land and the age of possession must be stated
specifically.