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Madhya Pradesh High Court · body

2006 DIGILAW 1407 (MP)

Bhuvaniram v. Gangabai

2006-12-08

N.K.MODI

body2006
JUDGMENT 1. Being aggrieved by the judgment and decree dated 10.11.2003 passed by Additional District Judge, Bhanpura, District Mandsaur in Civil Appeal No. 13-A/2003 whereby the judgment and decree dated 22.10.2001 passed in Civil Suit No. 49-A/1991 by Civil Judge, Class-II Bhanpura, District Mandsaur was confirmed, the present appeal has been filed. 2. Short facts giving rise to this appeal are that the appellant filed a suit on 19.7.1991 for specific performance of the agreement to sale and for permanent injunction alleging that the predecessor-in-title of the respondents Kaluram was the owner of the land bearing Survey No. 2241 measuring 1.254 hectors situated at Village Bhesoda, Tehsil Bhanpura, District Mandsaur. It was alleged that Kaluram entered into an agreement to sale of the suit property to appellant on 9.6.1976 for a consideration of Rs. 6,000/- out of which Rs. 5,200/- was paid to deceased Kaluram prior to the execution of agreement and the balance amount was paid on 24.6.1976 after the execution of agreement. It was alleged in the plaint that since the entire amount was paid, therefore, appellant was entitled to get the sale-deed executed. It was further alleged that cause of action was accrued to the appellant on 10.7.1991 when the respondents refused to execute the sale-deed, hence it was prayed that the respondents be directed to execute the sale-deed in favour of appellant and the respondents be also restrained not to interfere in possession of the appellant. 3. The suit was contested by the respondents on various grounds including on the ground that Kaluram was not the absolute owner of the suit property and possession of suit land was never given by Kaluram to the appellant and also on the ground that the suit is barred by law of limitation. Hence, it was prayed that the suit be dismissed. 4. On the basis of pleadings of the parties, learned trial Court framed the issues, recorded the evidence and dismissed the suit against which an appeal was filed which was also dismissed, hence this appeal. 5. Learned counsel for the appellant Shri Amit Agrawal submits that the judgment and decree passed by learned Courts below is illegal and deserves to be set-aside. It is submitted that one of the ground for dismissal of the suit was that agreement was of the year 1976 while the suit was filed on 19.7.1991 which was barred by law of limitation. It is submitted that one of the ground for dismissal of the suit was that agreement was of the year 1976 while the suit was filed on 19.7.1991 which was barred by law of limitation. Learned counsel submits that since there was no time limit mentioned in the agreement dated 2.8.1974, therefore, the learned Courts below committed error in holding that the suit was barred by law of limitation. It is submitted that name of Kaluram was recorded in the year 1991 and the suit was filed immediately thereafter. 6. Learned counsel further submits that so far as question relating to limitation is concerned, it is a mixed question of law and facts, therefore, it can be seen by this Court at the time of admission of second appeal. For this reliance was placed in the matter of Banarsi Das v. Kanshi Ram [ AIR 1963 SC 1165 ] wherein the Hon 'bie apex Court has observed that "the High Court has overlooked the fact that even upon the argument addressed before it on behalf of Kanshi Ram, the question of limitation was not one purely of law but was a mixed question of fact and law and, therefore, it was not proper for it to be raised for the first time in argument. We are satisfied that what the High Court has done has caused prejudice to some of the parties to the suit and on that ground alone, we would be justified in setting aside its decision. If the High Court felt overwhelmed by the provisions of section 3 of the Limitation Act, it should at least have given an opportunity to the parties which supported the decree of the trial Court to meet the plea of limitation by amending their pleadings. After allowing the pleadings to be amended, the High Court should have framed an issue and remitted it for a finding to the trial Court. Instead of doing so, it has chosen to treat, the pleading of one of the defendants as conclusive not only on the question of fact but also on the question of law and dismissed the suit. It is quite possible that had an opportunity been given to the defendants they could have established, in addition to proving the dates on which the summonses were served, that the suit was not barred by time because of acknowledgements. It is quite possible that had an opportunity been given to the defendants they could have established, in addition to proving the dates on which the summonses were served, that the suit was not barred by time because of acknowledgements. In the course of the discussion, the High Court has said that it was not suggested before it by anyone that the claim was not barred by reason of acknowledgements. Apparently, no such argument was advanced before it on behalf of the plaintiff and the defendant Banarsi Das because the counsel were apparently taken by surprise and had no opportunity to obtain instructions on this aspect of the case. We are clearly of opinion that the High Court was in error in allowing the plea of limitation to be raised before it particularly by defendants who had not even filed a written statement in the case. We do not think that this was a fit case for permitting an entirely new point to be raised by a non-contesting party to the suit. "Further reliance was placed on a decision in the matter of Bapuram Dutta v. Himeswari Bora [AIR 1992 Gauhati 4] wherein after following the decision of Hon'ble apex Court reported in [ AIR 1963 SC 1165 ] it was held that the question of limitation was not one purely of law but was a mixed question of facts and law. 7. Shri Amit Agrawal, learned counsel for the appellant further submits that the suit was also filed on the ground that Kaluram was not the absolute owner of the suit property. It is submitted that undisputedly Kaluram having one of the share in the suit property and his share was not divided with Harish who happens to be the son of deceased Kaluram and who is respondent No.2 herein and has been examined as DW-2 and has admitted in para 5 of his cross-examination that it is correct that as per family arrangement the suit property fell into the share of Kaluram. 8. It is submitted that in the facts and circumstances of the case, learned Courts below committed error in not taking into consideration this material aspect of the evidence wherein Harish son of Kaluram himself admitted this fact that partition has taken place and he was in possession of suit property. 8. It is submitted that in the facts and circumstances of the case, learned Courts below committed error in not taking into consideration this material aspect of the evidence wherein Harish son of Kaluram himself admitted this fact that partition has taken place and he was in possession of suit property. For this reliance was placed in the matter of Ishwar Dass Jain v. Sohan Lal [ (2000) 1 SCC 434 ] wherein the Hon'ble apex Court has observed that there are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered, would have led to an opposite conclusion. The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate Court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible. In either of the above situations, a substantial question of law can arise. 9. From perusal of the record, it appears that the alleged agreement is dated 24.4.1976 for a consideration of Rs. 6,000/- and at the time of execution of agreement no consideration was paid as it is mentioned in the agreement that no amount was paid earlier and Rs. 5,200/- was paid after execution of agreement. On the basis of this agreement which was alleged to have been executed on 2.4.1976 the suit was filed on 19.7.1991 which is after 15 years. From perusal of the record, it is also evident that Kaluram was not recorded Bhumiswami of the suit property. In the facts and circumstances of the case, this Court is of the view that no illegality has been committed by the learned Courts below in dismissing the suit field by the appellant. In view of this, appeal stands dismissed. No order as to costs.