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2003 DIGILAW 339 (GAU)

Abdul Salem Barlaskar v. Ataur Rahman Barlaskar

2003-07-28

P.G.AGARWAL

body2003
JUDGMENT P.G. Agarwal, J. 1. Heard Mr. C.K. Sarma Baruah, learned senior counsel for the Appellant/Plaintiff and Mr. N.D. Choudhury, learned Counsel for the Respondent/Defendant. 2. This second appeal is directed against the judgment and decree dated 30.01.96 and 08.02.96 passed by the Assistant District Judge No. 2 Cachar, Silchar in Title Appeal No. 5/92. 3. The facts leading to the present second appeal may be summarized below: 4. The Appellants before us instituted Title Suit No. 80/71 claiming 10 kathas 6 lechas of land covered by RS Patta No. 35 for partition. In the above suit the preliminary decree was passed in the year 1972 and thereafter final decree was passed on 22.03.73. The decree was put into execution in Title Execution Case No. 2/74. The Respondent Ataur Rahman Barlaskar, who was Plaintiff in Title Suit No. 68/88 filed an objection against the execution of the said decree and when the objection was rejected, he filed Civil Revision No. 29/89 before this Court and the Civil Revision was finally disposed of on 30.05.89 dismissing the objections raised. 5. The Respondent Plaintiff Ataur Rahman Barlaskar (hereinafter referred to as the Plaintiff) instituted Title Suit No. 68/88 on 25.04.88 praying for declaration that the final decree passed in Title Suit No. 80/71 on 22.03.73 is liable to be set aside as it was obtained fraudulently and collusively. The Respondent also prayed for permanent injunction restraining the decree holders from execution of the decree in Title Execution Case No. 2/74. The Title Suit No. 68/88 was dismissed by the trial Court that is by the Court of Munsiff No. 1, Silchar, Cachar holding that the suit is barred by limitation. The trial Court also held that the provisions of Article 59 of the Limitation Act applies in this case and hence the suit was required to be filed within 3 years when the Plaintiff Ataur Rahman Barlaskar came to know about the decree alleged to have been obtained fraudulently. 6. The Plaintiff thereafter filed Title Appeal No. 5/92 and the learned appellate Court reversed the judgment and order passed by the trial Court and decreed the suit as prayed for. Hence the present appeal. 7. 6. The Plaintiff thereafter filed Title Appeal No. 5/92 and the learned appellate Court reversed the judgment and order passed by the trial Court and decreed the suit as prayed for. Hence the present appeal. 7. It may be mentioned here that the decree passed in Title Suit No. 80/71 was challenged by the parties contesting the earlier suit in Title Suit No. 319/81 and said suit was decreed in the year 1985 whereupon the present Appellants filed Title Suit No. 1/85 and said Title Appeal No. 1/85 was disposed of by compromise decree Ext. 7 on 01.03.88. 8. While admitting the second appeal this Court formulated the following substantial question of law: 1. Whether the judgment and decree passed by the learned lower appellate Court are illegal for not considering the provision of Section 97, Code of Civil Procedure, which lays down that the party who has not preferred any appeal from the preliminary decree for partition would be precluded from challenging the correctness of the final decree? 2. Whether the proceeding of the Title Suit No. 68/88 was rendered illegal for non-compliance of Section 57 of the Wakf Act, 1954? 3. Whether the Respondent/Plaintiff can challenge the final decree of partition made on the basis of the Commissioner's report without challenging the same in accordance with law? 4. Whether a final decree passed by a competent Court can be set aside for non-compliance of Order 20, Rule 18, Code of Civil Procedure even after the expiry of the period of Limitation provided under Article 59? 9. We propose to take up the question of limitation. There is no dispute at the Bar that Article 59 of the Limitation Act applies in the present case. 10. In the plaint, it is stated that the cause of action for the suit arose on 01.03.88 when the compromise decree Ext. 7 was passed between the present Appellant and the Plaintiff in Title Suit No. 319/81. 11. The period of limitation runs from the date of the decree, which in the present case was passed on 22.03.73. However there is no dispute at the Bar that the Plaintiff came to know about the alleged fraudulent decree in the year 1981, when they filed objections before the Executing Court in Title Execution Case No. 2/74. 11. The period of limitation runs from the date of the decree, which in the present case was passed on 22.03.73. However there is no dispute at the Bar that the Plaintiff came to know about the alleged fraudulent decree in the year 1981, when they filed objections before the Executing Court in Title Execution Case No. 2/74. In view of the provisions of Article 59 of the Limitation Act, the suit was required to be filed within a period of three years from 1981. Admittedly the suit was not filed within 1984 but it was filed in the month of April, 1988. 12. Mr. Choudhury, learned Counsel for the Plaintiff submits that in the year 1985 when the Title Suit No. 319/81 was decreed there was no executing decree which was required to be challenged and hence the cause of action arose on 01.03.88 when the decree in Title Appeal No. 1/85 was passed. The question that crops up for consideration is whether the Plaintiff is in any way concerned with the Title Suit No. 319/81 or the subsequent Title Appeal No. 1/85. The said title suit was filed by one of the party to the Title Suit No. 80/71 and the suit was challenged on certain grounds available to the above party. Admittedly in Title Suit No. 319/81, there was no challenge on the ground of fraud taken up by the Plaintiff. Although the Plaintiff had the knowledge and information about Title Suit No. 319/81, he did not get himself impleaded in that suit and he was in no way concerned with the fate of the above suit. The suit was decreed in the year 1985, on hypothecating that it could be dismissed and as a matter of fact the suit was ultimately dismissed or disposed of on compromise in the appeal, it cannot be considered as an extension of the original suit, under the circumstances, can it be said that the present Plaintiff awaited the decision in Title Suit No. 319/81 and the period of limitation that had started running against him in the year 1981 be kept in animated suspension till the decision in the suit with which he was in no way connected and the result of which was not known to the Plaintiff. 13. 13. The learned Counsel for the Appellant, on the other hand has submitted that although the present Plaintiff has alleged collusiveness in the compromise decree passed on 01.03.88 in Title Appeal No. 1/85, the compromise decree has not been challenged in the suit by the Plaintiff. The learned Counsel for the plaintiff has submitted that the Plaintiff had no reasons to challenge the said compromise decree as it did not effect the Plaintiff as the Plaintiff has challenged the earlier decree passed in Title Suit No. 80/71 on the ground of fraud. We are unable to accept such submissions. The Plaintiff on one hand states that he is not concerned with the compromise decree passed on 01.03.88 in Title Appeal No. 1/85 and on the other hand, the date of such compromise decree is claimed as the date on which the cause of action arose to file the suit and according to him the period of limitation started on that day. In view of the pendency of the Title Suit No. 319/81 with which the Plaintiff was not concerned in any manner or in which he was not a party cannot give any fresh lease of limitation to the present Plaintiff as limitation will start from the date of knowledge, irrespective of the decision of the Court in Title Suit No. 319/81. 14. The manner can be examined from another angle. The Plaintiff filed the objection against the execution of the decree in Title Execution Case No. 2/74 and the said objection was carried to the High Court in Civil Revision No. 28/81 which was disposed of on 30.05.89. The Plaintiff did not await till 30.05.89 to file the present suit as the Plaintiff was very much aware that the pendency or objection against the execution does not give him any fresh lease of limitation and the challenge to the suit or decree passed in Title Suit No. 80/71 was required to be done in accordance with law. When the objections filed by the Plaintiff himself cannot grant him any further lease of limitation how can the title suit filed by others give him any fresh lease of limitation or any cause of action? The cause of action to file the suit challenging the decree in Title Suit No. 80/71 arose on 22.03.73 when the final decree was passed. The cause of action to file the suit challenging the decree in Title Suit No. 80/71 arose on 22.03.73 when the final decree was passed. Admittedly the Plaintiff was not a party to the above suit and it came to his knowledge in the year 1981. Under Article 59 of the Limitation Act, the period of limitation will run from the date of knowledge. The suit was required to be filed within three years, i.e., on or before 1984 and the Plaintiff slept over the matter and filed the suit in the year 1988 only and hence the trial Court rightly held that the Title Suit No. 68/88 is barred by limitation. 15. The decision of the appellate Court accepting that the cause of action arose on 01.03.88, on which date the title appeal was decreed, is not correct. 16. In view of the above, we hold that the suit is barred by limitation and the substantial question of law raised in issue No. 3 is answered against the Respondent/Plaintiff. 17. In view of the above decision, we do not propose to consider the other issues. The appeal stands allowed. The judgment and decree passed by the appellate Court is set aside and the judgment and decree passed by the trial Court that is by the Court of Munsiff No. 1, Silchar, Cachar is restored. 18. The parties shall bear their own costs. Appeal allowed