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2004 DIGILAW 450 (MP)

Suhas Shrivastava v. Mst. Gyaso

2004-05-08

A.K.SHRIVASTAVA

body2004
JUDGMENT A.K. Shrivastava, J. 1. This second appeal has been preferred by the defendants/appellants against judgment of reversal passed by 1st appellate Court decreeing the suit of the plaintiffs. 2. No exhaustive statement of facts are necessary for the disposal of this appeal, suffice it to say that a suit for declaration that the plaintiffs are in possession of the land in question and the patta which has been given to defendant No. 1 by Tahsildar and in pursuance to the said Patta, defendant No. 1 did not acquire any right; mutation in favour of defendant No. 1 is void ab initio; the sale deed executed by defendant No. 1 in favour of defendant No. 2 and thereafter to defendant No. 3 are null and void and by these sale deeds, the defendants did not acquire any right, title and interest. The plaintiffs further prayed a decree of injunction restraining the defendants from interfering in their possession. 3. The defendants submitted their joint written statement and denied the plaint averments. A specific plea in respect to the point of limitation was raised. According to the defendants, the suit is barred by prescribed period of limitation. 4. The learned trial Judge, framed the issues and issue No. 6 was framed in respect to the point of limitation. 5. The learned trial Judge after recording the evidence dismissed the suit and while deciding issue No. 6, it was categorically held that the suit is barred by prescribed period of limitation. The learned trial Judge, dismissed the suit in toto. 6. The appeal preferred by the plaintiffs has been dismissed by the impugned judgment and decree. 7. This second appeal was admitted on 1-5-1999 on the following substantial question of law : Whether, the suit as filed by the plaintiffs is barred by limitation and liable to be dismissed. 8. Shri O. P. Shrivastava, learned counsel for the appellants has submitted that the learned trial Judge while deciding issue No. 6 gave a specific finding that the suit is barred by prescribed period of limitation and hence, it was incumbent upon the appellate court to have decided this point. According to learned counsel, it does not transpire that the plaintiffs in their appeal ever argued the point of limitation before the appellate Court. 9. According to learned counsel, it does not transpire that the plaintiffs in their appeal ever argued the point of limitation before the appellate Court. 9. Per contra, Shri D. D. Bansal, learned counsel appearing for the respondents, in his usual vehemence, argued in support of the impugned judgment and submitted that though specifically the point of limitation has not been dealt by learned appellate court, however, if the impugned judgment is read in its entirety, one could infer that the suit is within limitation. Buttressing his submission, learned counsel for the respondents has placed reliance on Gangubai Bablya Chaudhary and Others v. Sitaram Bhalchandra Sukhtankar and Others etc. AIR 1983 SC 742 and Devi Singh v. Board of Revenue for Rajastiian and Others, /SC/0567/1994 : (1994) 1 SCC 215 . It has been proponed by learned counsel for the respondents that the plaintiffs are having better title and therefore, according to the decision of the Apex Court in the case of M. Kallappa Setty v. M.V. Lakshminarayan Rao, AIR 1972 SC 2299 , the suit of the plaintiffs has been rightly decreed. The learned counsel, at last, by taking aid of the decision of Supreme Court in the case of Mohan Lal v. Nihal Singh, (2001) 8 SCC 584 argued that the finding of possession is a finding of fact and it cannot be assailed in second appeal. 10-11. Before dealing with the rival submissions of learned counsel for the parties, it would be apposite to refer section 3(1) of the Indian Limitation Act, 1963 which reads as under : 3. Bar of Limitation. - (1) 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. (Emphasis added). On going through the aforesaid provision, it is clear like a noon day that if a suit is barred by prescribed period of limitation, irrespective of the fact that the point of limitation has not been set up as a defence it has to be dismissed. Thus, the Legislature has cast a heavy duty upon the Court to examine on tire touch stone of the case put forth by the parties and to decide whether the suit is within limitation or not, although, the point of limitation has not been set up as a defence. 12. Thus, the Legislature has cast a heavy duty upon the Court to examine on tire touch stone of the case put forth by the parties and to decide whether the suit is within limitation or not, although, the point of limitation has not been set up as a defence. 12. There is a specific finding that the trial Court while deciding issue No. 6 that the suit is barred by prescribed period of limitation. The learned trial Judge while arriving such a conclusion by appreciating and marshalling documentary and oral evidence came to hold that the suit is barred by time. Thus, in all fairness, the appellate Court ought to have considered this legal aspect by giving a specific finding in this regard. Since, there is no specific finding of the appellate Court that whether the suit is in time or not in my opinion, the first appellate Court has committed a substantial error of law in passing the impugned judgment. 13. In this view of the matter, since, there is no specific finding of appellate court in respect to the point of limitation, the impugned judgment is hereby set aside and the case is remitted back to the appellate Court to re-decide the appeal. The appellate Court while deciding the point of limitation, may also consider that what would be the impact if the plaintiffs have not challenged the order issued by Tehsildar granting patta dated 27-3-1962 in favour of the defendant No. 1 Panju and in that regard, the decision of the Apex Court in the case of Jugraj Singh and Another v. Jaswant Singh and Others, AIR 1971 SC 761 , may be considered. 14. In the result, the appeal succeeds and is hereby allowed. The impugned judgment and decree passed by the appellate Court is hereby set aside and the case is sent back to the first appellate Court to re-decide the first appeal dealing specifically the point of limitation. The parties are directed to bear their own costs.