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2001 DIGILAW 469 (PNJ)

Jagdev Singh v. Paul Singh

2001-04-27

R.L.ANAND

body2001
JUDGMENT R.L. Anand, J. - This is a Civil Revision filed by Shri Jagdev Singh against Shri Paul Singh and it has been directed against the judgment and decree dated 29.1.1999, passed by the Civil Judge (Jr. Division), Ludhiana who decreed the suit of the plaintiff-respondent Shri Paul Singh for recovery of possession of the disputed property shown as red in the site plan Ex.P.4 and marked by the words "ABCD". 2. In short, the case set up by the plaintiff-respondent Paul Singh was that he is the owner of the site in question and he was illegally dispossessed by the defendant-petitioner on 30.5.1994 and that the defendant-petitioner has encroached upon forcibly the property the breaking over the wall and amalgamated the property in his property. In short the case of the plaintiff-respondent was that since he has been illegally dispossessed by the defendant-petitioner, therefore, he filed the suit for possession under Section 6 of the Specific Relief Act. 3. The suit was contested by the defendant who took the various pleas in the written-statement but did not take the plea of limitation that the suit is barred by limitation. The trial court framed the following issues :- 1. Whether the plaintiff is entitled to the possession of the suit property ? OPP 2. Whether the suit is bad for non-joinder of the necessary parties ? OPD 3. Whether the present suit is liable to be stayed under Section 10 of the CPC ? OPD 4. Whether the suit is not properly valued for the purposes of court-fees and jurisdiction ? OPD 5. Whether the plaintiff has no locus standi to file the present suit ? OPD 6. Relief. The parties led oral as well as documentary evidence in support of their case and it has been decided by the trial court that plaintiff-respondent was dispossessed by the defendant-petitioner and the decree of possession was passed vide the impugned judgment and decree dated 29.1.1999. 4. Not satisfied with the impugned judgment and decree of the trial Court, the defendant-petitioner has filed the present petition. 5. I have heard Shri H.S. Mann, learned counsel appearing on behalf of the petitioner and Shri G.S. Bhatia, learned Counsel appearing on behalf of the respondent and with their assistance have gone through the record of the case. 6. 4. Not satisfied with the impugned judgment and decree of the trial Court, the defendant-petitioner has filed the present petition. 5. I have heard Shri H.S. Mann, learned counsel appearing on behalf of the petitioner and Shri G.S. Bhatia, learned Counsel appearing on behalf of the respondent and with their assistance have gone through the record of the case. 6. Section 6 of the Specific Relief Act lays down that if any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit. Meaning thereby that the suit under Section 6 of the Specific Relief Act is like a summary proceeding in which the question of title is not adjudicated and on the strength of the possessive title the suit can be instituted by a person if he has been wrongly dispossessed by any person. Section 6(2) further lays down that no suit under this Section shall be brought after the expiry of six months from the date of the dispossession or against the Government. 7. The case set up by the plaintiff-respondent before the trial Court was that he was dispossessed on 30.5.1994. The suit was instituted on 28.11.1994. Therefore, it is within limitation. In this regard I may refer to para No. 4 of the plaint in which the plaintiff had alleged as follows :- "that cause of action arose to the plaintiff on 30.5.1994, when the defendant illegally and wrongly broke upon the wall "DC" and encroached upon the room "ABCD" which was an integral part of the whole house measuring 289 square yards". Thus, according to the plaintiff the suit could be instituted up to 30.11.1994 but it has been instituted on 28.11.1994, therefore, it is within limitation. 8. In the written statement, the defendant-petitioner simply denied this para by stating that no cause of action had accrued to the plaintiff. 9. Now, the learned counsel appearing on behalf of the petitioner submits that it is the admission of the plaintiff-respondent that he was allegedly dispossessed from the suit property on 20.5.1994 and, therefore, the suit of the plaintiff-respondent is prima facie barred by time. 9. Now, the learned counsel appearing on behalf of the petitioner submits that it is the admission of the plaintiff-respondent that he was allegedly dispossessed from the suit property on 20.5.1994 and, therefore, the suit of the plaintiff-respondent is prima facie barred by time. In support of his contention learned counsel for the petitioner submits that earlier Jagdev Singh defendant-petitioner filed a suit for injunction in the Court of Smt. Rekha Mittal, which was decreed and in that suit the respondent plaintiff took a specific plea that he was dispossessed by the present petitioner on 20.5.1994 and if cause of action arose to the plaintiff-respondent on 20.5.1994, then the present suit was instituted on 28.11.1994 is liable to be dismissed on the ground of limitation. 10. Meeting the argument of his legal adversary, Shri Bhatia, learned counsel for the plaintiff-respondent submitted that the defendant-petitioner had never taken the objection of limitation before the trial Court and in these circumstances, this plea is not now open to the petitioner. 11. I am not in a position to subscribe to the argument of Shri Bhatia in view of Section 3 of the Limitation Act which lays down as follows :- "Subject to the provisions contained in Sections 4 to 24 (inclusive) every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence". The plea of the limitation is a mis-question of law and fact. Even if the defendant-petitioner has not taken the plea of limitation and if the suit of the plaintiff-respondent is prima facie barred, the defendant-petitionershould be allowed to raise this plea specifically before the trial Court especially in view of the admission made by the plaintiff-respondent in the previous suit. What would be the ultimate effect at the suit regarding the limitation is not to be decided by me otherwise it might got prejudice to both the parties. Therefore, I allow this revision and set aside the judgment and decree of the trial Court, remand the case to the trial Court to frame specific issue with regard to the limitation and after giving opportunities to both the parties decide that issue within six months from the receipt of the copy of this order and the file of the trial Court be sent back. The parties through their counsel are directed to appear before the trial Court on 21.5.2001. Revision allowed.