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2005 DIGILAW 674 (PAT)

Md. Ekram Alias Md. Ekramul Haque v. Sk. Jhaksha

2005-08-02

S.N.HUSSAIN

body2005
Judgment 1. Heard learned counsel for the parties. 2. The petitioners are defendants third parties in Title Suit No. 163 of 2003 which was filed by opposite party no. 1 for declaration of title and also for declaration that the entries in the survey Khatiyan in respect of the suit land in the name of defendant was illegal and not binding. 3. The petitioners are aggrieved by order dated 29.9.2004 passed in the aforesaid suit by which the learned Subordinate Judge 7, Bhagalpur rejected the petition of the defendant-petitioners and refused to decide the issue of limitation first as a preliminary issue and deferred the limitation matter to be considered alongwith the other issues at the time of final adjudication of the suit. 4. The learned counsel for the petitioners submits that during the revisional survey originally the names of the defendants were recorded but under the proceeding of Section 106 of the Bihar Tenancy Act the names of the plaintiffs we recorded whereafter in revision under section 108 of the Act the defendants name was again recorded. The final publication was made on 18.11.1976 whereas the aforesaid suit was filed in May, 2003 after more than 26 years. Hence, according to him the suit against the entries in the revisional survey Khatiyan was clearly barred by law of limitation as the provisions of Article 58 of the Limitation Act, 1963 was applicable and such suit should have been filed within three years from the date of the final publication of the survey Khatiyan. Learned counsel for the petitioners further submits that under the provision of Section 3 of the Limitation Act it was the duty of the Court to decide the question of limitation as there was no occasion for continuing the suit unnecessarily for a long period when it can be decided and disposed of on the preliminary issue. 5. Learned counsel for the petitioners further submits that under the provision of Section 3 of the Limitation Act it was the duty of the Court to decide the question of limitation as there was no occasion for continuing the suit unnecessarily for a long period when it can be decided and disposed of on the preliminary issue. 5. Learned counsel for the petitioners relies upon a decision of the Apex Court in the case of Union of India vs. West Coast Paper Mills Ltd. reported in A.I.R. 2004 Supreme Court 1596 in which a distinction was made between Article 58 and Article 113 of the Limitation Act and it was held that in terms of Article 58 the period of limitation would be counted from the date on which cause of action arose first whereas in terms of Article 113 the period of limitation would be differently computed depending upon the cause of action therefor arose. He relies upon another decision of the Hon ble Apex Court in the case of Secretary, Ministry of Works & Housing vs. Mohinder Singh Jagdev & Ors. reported in 1996(6) S.C.C. 229 in which it was held that if any proceeding has been initiated after the expiry of the period of limitation, the Court is bound to take note thereof and has to dismiss the suit, if it is barred by limitation. It was also held that the limitation of three years begins to run when the right to sue first accrues and the right to sue first accrues when the person receives notice or information about the order which is challenged and once the limitation starts running, until its running of limitation has been stopped by an order of the competent civil court or any other competent authority, it cannot stop, hence, after expiry of three years and plaintiff looses his right to sue for the declaration concerned. 6. Learned counsel for the petitioner further relies upon a decision of this Court in the case of Gulzar Mahto vs. Most. 6. Learned counsel for the petitioner further relies upon a decision of this Court in the case of Gulzar Mahto vs. Most. Ram Dulari Devi reported in 2001(3) P.L.J.R. 472 in which it has been held that in the said case the revisional survey khatiyan was finally published on 2nd January, 1973 and the suit could not be filed within three years of the final publication so the suit was apparently barred by law of limitation so far the relief regarding wrong survey entry was concerned. Accordingly, he submits that the impugned order of the learned Court below is illegal, arbitrary and perverse. 7. On the other hand, learned counsel for the opposite parties vehemently opposes the contention of the learned counsel for the petitioners and submits that any Issue with respect to mixed question of law and fact cannot be decided as a preliminary issue and hence the learned Court below after arriving at a finding that the question of limitation is a mixed question of fact and law has rightly decided to consider it alongwith other issues after the evidence had been led by the parties. In support of his submission learned counsel for the petitioners relies upon a decision in the case of Mankuwar Asaram vs. Mt. Bodhi Mukundi & Ors. reported in A.I.R. 1957 (Madhya Pradesh) 211 in which it was held that limitation would be counted when the danger became eminent. He further relies on another decision in the case of Ghuiam Mohammad Khan and Ors. vs. Samundar Khan & Ors. reported in A.I.R. 1936 Lahore 37 in which it was held that the record or sale-deed can be challenged only when the plaintiff becomes aggrieved and not when the entry was made. He also relies upon another decision in the case of Thiruvambari Rubber Co. Ltd. vs. N.K. Damodaran Nair & Ors. reported in A.I.R. 1984 Kerala 191 in which it was held that mixed question of law and fact cannot be a subject matter for preliminary issue as evidence would be required and only pure question of law can be decided as a preliminary issue. He submits that the same view has been expressed by the Hon ble Apex Court in the case of Ganesh Prasad Dubey vs. State of Bihar reported in A.I.R. 1972 Supreme Court Page 2397. 8. He submits that the same view has been expressed by the Hon ble Apex Court in the case of Ganesh Prasad Dubey vs. State of Bihar reported in A.I.R. 1972 Supreme Court Page 2397. 8. In the aforesaid circumstances, he submits that the learned Court below was justified in not deciding the-issue of limitation as a preliminary issue as it was a mixed question of facts and law and evidence had to be gone into which cannot be done under the provision of Order 14 Rule 2 of the C.P.C., hence he submits that the impugned order of the learned Court below is legal and does not require any interference. 9. After hearing learned counsel for the parties and after perusing the materials on record it is quite apparent that plaintiffopposite party challenged the survey entry in the name of the defendant. Earlier when the original records of right were being prepared even at that time the name of the defendants were recorded but the same was challenged by the plaintiff under section 106 of the B.T. Act in which the plaintiffs name was recorded. Against the said proceeding a revisional proceeding under section 108 of the B.T. Act was initiated in which the names of the defendants were again recorded. Hence, it is quite apparent that the plaintiffs were aggrieved by the entry of the name of the defendants in the revisional survey and contested the same till the proceeding under section 108 of the B.T, Act was disposed of on 26.3.91 by which the final publication of the Survey khatiyan dated 18.11.76 was affirmed. Hence, the suit having been filed in May, 2003 was filed more than twelve years thereafter. 10. In such circumstances it cannot be validly said that the plaintiffs became (aggrieved only when their title and possession was challenged by the defendants, rather an apparent and clear cloud was cast on the claim of title and possession of the plaintiff when the survey authorities decided the matter against them and the survey khatiyan was published in the name of the defendants and order in proceeding under section 108 B.T. Act was passed, which were the basis of the claim of the other side. Accordingly in terms of Article 58 of the Limitation Act the period of limitation would be reckoned from the date on which the cause of action arose first which is either 18.11.76 on which date revisional khatiyan was finally published or in the year 1991 when the proceeding under section 108 of the B.T. Act was decided against the plaintiff. 11. In the aforesaid facts and circumstances, the defendant has raised a valid question of limitation for being decided as a preliminary issue as if the suit is time barred with respect to any relief claimed therein, there is no occasion for going into the details of other issues which would unnecessarily delay the proceeding. Further more, a duty has been cast upon the Court under the provision of Section 3 of the Limitation Act to decide the question of limitation first and hence it was incumbent upon the learned Court below to decide that issue as a preliminary issue and to pass an order after considering the claims of the parties. 12. So far the requirement of evidence is concerned, the final survey as well as the order in the proceeding under section 108 of the B.T. Act are public documents whereas the filing of the suit is apparent from the record of the suit itself and apart from them only the provision of law and case laws have to be considered. In the aforesaid circumstances, the learned Court below has failed to exercise the jurisdiction vested in it and the duty cast upon it by the specific provision of law. 13. Hence, the impugned order of the learned Court below is set aside and the matter is remitted to the learned Court below for fresh consideration of the question of limitation as a preliminary issue without being influenced either by the impugned order or by this order and the matter should be decided expeditiously on merits in accordance with the specific provision of law. Accordingly, this revision is allowed.