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Madhya Pradesh High Court · body

2006 DIGILAW 532 (MP)

Rama Riyu Gauli v. Sheik Matin Sheikh Usman

2006-04-13

A.K.SHRIVASTAVA

body2006
Judgment ( 1. ) FEELING aggrieved by the judgment and decree dated 10/5/1991 passed by 1st Additional Judge to the District Judge, Chhindwara in Civil Appeal No. 14-A/87 whereby the judgment and decree passed by the trial Court in Civil Suit No. 5-A/84 has been reversed and set aside, the plaintiff/ appellant has preferred the second appeal under Section 100, CPC. ( 2. ) THE plaintiff filed a suit for possession and mesne profits in respect to certain lands, the description whereof has been mentioned in the plaint. According to plaintiff, he is the owner of Khasra No. 212/1, area 0. 06 acre situated in Mouza Damua. The defendant forcibly dispossessed him from the suit land without any right in the month of March, 1973 and also demolished the small house belonging to the plaintiff. The defendant also constructed a house on the suit land in spite of the protest of the plaintiff. Thus, it was prayed by the plaintiff that the suit be decreed and possession of suit land be delivered to him by demolishing the structure illegally constructed by the defendant The plaintiff also prayed for damages Rs. 10,800/ -. ( 3. ) THE defendant by filing written statement refuted the averments made in the plaint. It has been denied in the written stated that the plaintiff is the owner of the disputed land. His title and interest on the suit land was also denied. It was further denied that in the month of March, 1973 the defendant demolished the small house belonging to the plaintiff and forcibly took possession of the suit land. It has been further pleaded that the defendant constructed the house some time in the year 1969 within the knowledge and consent of the plaintiff to which he never took any objection. In special plea, it has been pleaded by the defendant that he validly bought the land bearing Khasra No. 212/4 from the plaintiff for a consideration of Rs. 700/- in the year 1968. Since the date of purchase of the land, the defendant is continuing in possession of the suit property openly, therefore, he acquired night, title and interest in the land legally. 700/- in the year 1968. Since the date of purchase of the land, the defendant is continuing in possession of the suit property openly, therefore, he acquired night, title and interest in the land legally. In para-17 of the written statement a plea of limitation has also been raised and it has been pleaded that the suit is barred by time as defendant purchased the land in the year 1968 and thereafter in the year 1969 he constructed a house over it and, thus, the suit which was filed on 15/10/1983 is barred by prescribed period of limitation. ( 4. ) THE trial Court framed necessary issues and after recording the evidence decreed the suit of plaintiff. ( 5. ) THE defendant/respondent, being dissatisfied by the judgment and decree of the trial Court, preferred first appeal before the lower appellate Court which has been allowed by the impugned judgment and decree and the suit has been dismissed. Hence this second appeal has been filed by the plaintiff. ( 6. ) THIS Court on 30/10/1991 admitted the second appeal on the following substantial question of law: Whether the learned lower appellate Court was justified in taking into consideration the receipt dated 11. 12. 58 in view of the facts and circumstances of the case ? On 5/12/2005 this Court passed the following orders: On perusal of whole record of this appeal, I found that the substantial question of law has not been properly framed. On 30. 10. 1991 the following substantial question of law was framed: Whether the learned lower appellate Court was justified in taking into consideration the receipt dated 11. 12. 1968 in view of the facts and circumstances of the case ? On perusal of record of the trial Court, it is very much cleear that the unregistered receipt was taken on record and probably that reaceipt was given back to the defendant and thereafter, on filing of an application under Oder 41 Rule 27 (1) (a) read with Section 151 of Cr. P. C. , the First Appellate Court took that receipt on record. Therefore, this fact is not material in deciding this appeal that the First Appellate Court was justified or not in taking into consideration the receipt dated 11. 12. 1968. P. C. , the First Appellate Court took that receipt on record. Therefore, this fact is not material in deciding this appeal that the First Appellate Court was justified or not in taking into consideration the receipt dated 11. 12. 1968. Therefore, in my opinion the substantial question of law should be as follows: Whether the First Appellate Court erred in holding on the basis of. unregistered receipt dated 11. 12. 1968 that the defendant is owner of the disputed land and, therefore, he is entitled to retain his possession and thereby the suit is barred by limitation ? Since, the new substantial question of law is framed, therefore, it would be in the interest of justice to re-hear the arguments. ( 7. ) I have heard Shri Umesh Trivedi, learned Counsel for the appellant and also perused the record. After having heard learned Counsel for the appellant, I am of the view that this appeal deserves to be dismissed. ( 8. ) UNDER Section 3 of the Indian Limitation Act, every suit instituted, appeal preferred and application made after the prescribed period of limitation shall be dismissed although limitation has not been set up as a defence. Although this provision is subject to the provisions contained in Sections 4 to 24 (inclusive ). ( 9. ) IN the present case there is a definite stand of the defendant chat suit is barred by prescribed period of limitation because in the year 1963 the plaintiff sold the disputed land to him and in the year 1969 he raised construction over it. ( 10. ) THOUGH in para-3 of the plaint it has been pleaded by the plaintiff that in the month of March, 1973 the defendant demolished the small house belonging to the plaintiff, meaning thereby he was dispossessed in the year 1973, but, this plea of the plaintiff was specifically denied by the defendant in his written statement. Thus, under Sections 101 and 102 of the Indian Evidence Act, the plaintiff was duty bound to prove this fact that he was illegally dispossessed in the month of March, 1973. In this regard learned lower appellate Court has taken into consideration the oral and documentary evidence of the parties and has arrived at a finding of fact that the plaintiff was dispossessed in the year 1968. In this regard learned lower appellate Court has taken into consideration the oral and documentary evidence of the parties and has arrived at a finding of fact that the plaintiff was dispossessed in the year 1968. For the ready reference, it would be appropriate to see para-6 of the statement of the plaintiff that he became ill as a result of which he took a loan of Rs. 700/- from the defendant. Since the defendant took possession of his land, therefore, he did not return the amount. This material piece of evidence of the plaintiff has been taken into consideration by the lower appellate Court. ( 11. ) THE defendant submitted Ex. D/2 and D/3 in the trial Court which indicates that he is in possession of the suit land since 1970. The first appellate Court has also held in para-15 of its judgment that the plaintiff did not say in his testimony that he was dispossessed in the year 1973. Since the burden of proof was on the plaintiff to prove that he was dispossessed in the year 1973 by the defendant and as there is no evidence in that regard of plaintiff in his testimony therefore, it is not proved that he was dispossessed in the year 1973. The first appellate Court, on the basis of the oral and documentary evidence, arrived at a pure finding of fact in paras 14 to 17 of its judgment that on the basis or Ex. D/2 and D/3 it is proved that after, the land was purchased by the defendant the defendant started to construct the house. There is evidence of defendant that he constructed the house in 1969. Thus, the suit of plaintiff is barred by prescribed period of limitation as it was not filed within 12 years. This fact is not proved that plaintiff was dispossessed in the month of March, 1973. ( 12. ) MERELY because, the first appellate Court took the unregistered receipt dated 11/12/1953 on record in order to show that the defendant is the owner of the suit property would not render its entire judgment to be otiose. Even if the said receipt is ignored, the suit of plaintiff cannot be said to be within limitation: The substantial question of law is answered accordingly. ( 13. Even if the said receipt is ignored, the suit of plaintiff cannot be said to be within limitation: The substantial question of law is answered accordingly. ( 13. ) IN the result, I do not find any merit in the appeal and the same is hereby dismissed with no order as to costs.