Judgment ( 1. ) APPELLANT/plaintiff has preferred this appeal under Section 100 of cpc being aggrieved by the judgment and decree dated 21-2-2005 passed by 5th additional District Judge (FTC), Satna in Regular Civil Appeal No. 36-A/2005 reversing the judgment and decree dated 29-3-2003 passed by Civil Judge Class-I, Nagod District Satna, in Civil Original Suit No. 36-A/92. ( 2. ) THIS appeal is arising out of a suit for declaration partition, separate possession, mesne profit and perpetual injunction regarding house, other movable property including the agricultural land situated at Village Marti barmendranath and also for declaration to declare the sale deed dated 28-2-1992 executed by his father Gabinath in favour of the respondent No. 4, jagdish Prasad as ab initio void alleging the same was not executed in the interest and necessity of the family. It is also prayed that the land subject matter of said sale deed be adjusted in the share of Gabinath, the father of the appellant. Initially the relief for possession of the property was not prayed but was inserted by amendment vide application no. 20-7-1996. ( 3. ) THE other averments of the plaint are not necessary to mention here as the matter has already been compromised in between co-parcener/ respondents and the appellant in the Appellate Court. The only dispute regarding respondent No. 4 is subsisting for which this appeal is preferred. The gabinath has executed a sale deed dated 18-3-1982 in favour of respondent No. 4 regarding Survey No. 143/1 (Eastern part) area 0. 042 hector and survey no. 144/1 (Eastern part) area 0. 596 hector, situated at Village Langarganwa with intention to defeat the interest of appellant and other co-parceners. ( 4. ) ALL averments of written statement are not necessary to mention here except the averments relating to respondent No. 4. In view of the said compromise. It is stated in it that long back before 13 years the partition had taken place in the family, according to Annexure A of the written statement thereafter family and its properties had not remained joint. It is also pleaded that gabinath did not possess any ancestral ornaments. The large amount was required in marriages of children of the family and a diesel pump was also purchased and to met out these expenses the loan was taken and the same was satisfied by selling the aforesaid land in consideration of Rs. 3,800/ -. It is also pleaded that gabinath did not possess any ancestral ornaments. The large amount was required in marriages of children of the family and a diesel pump was also purchased and to met out these expenses the loan was taken and the same was satisfied by selling the aforesaid land in consideration of Rs. 3,800/ -. In addition to it is also pleaded that said land was sold for the necessity of the family and out of the land of Gabinath. ( 5. ) AFTER framing the issues, the evidence was recorded on appreciation of it, Trial Court has decreed the suit for declaration of plaintiff share, with independent possession along with a direction for the land sold to respondent No. 4 from the share of Gabinath as the said transaction was not found in the interest and necessity of the family. ( 6. ) THE decree of Trial Court was challenged by both the parties the appellant and respondents 1 to 4 by there separate appeals. Appellant filed the c. R. A. 24-A/05 for modification in the declared share while respondents filed c. R. A. 36-A/05 for setting aside the decree and dismissal of the suit. During pendency of their appeal the appellant and respondent Nos. 1 (a), (b), (c), 2 and 3 have compromised the matter but the appeals were decided on merits regarding respondent No. 4 and the findings of the Trial Court that the execution of said sale deed was not for the interest and necessity of the family has been upheld but the suit was dismissed by setting aside the decree of Trial Court by holding the suit is barred by time for possession. Hence, this appeal is preferred by the appellant/plaintiff for restoring the decree of Trial Court against the respondent No. 4. ( 7. ) RESPONDENT No. 5, the State has been impleaded as formal party in view of the technical provisions of Order 1 Rule 3 (B) of CPC but no relief is sought against it. ( 8. Hence, this appeal is preferred by the appellant/plaintiff for restoring the decree of Trial Court against the respondent No. 4. ( 7. ) RESPONDENT No. 5, the State has been impleaded as formal party in view of the technical provisions of Order 1 Rule 3 (B) of CPC but no relief is sought against it. ( 8. ) LEARNED Counsel for the appellant has submitted that after declaring that the said sale deed was not executed in the interest and necessity of the family the appellate Court ought to have upheld the findings of the Trial court against the respondent No. 4 even after compromise in between the other parties because the suit was found within limitation by the Trial Court on proper appreciation, thus, in appeal there was no circumstances to dismental the same. According to his submission his prayer for declaration and possession was within limitation as per Article 109 of Limitation Act and submitted that question of limitation being substantial question of law is still open for adjudication, thus, it be admitted for hearing. ( 9. ) HAVING heard the learned Counsel for the appellant on perusal of the record of Courts below with the impugned judgments. It appears that aforesaid sale deed was executed on 18-3-1982 while instant suit was filed on 9-5-1992 at the initial stage the relief for possession was not prayed, the same was inserted in the plaint by way of an amendment application dated on 20-7-1996. Thus, the relief for possession was prayed after more than 14 years from the date of said sale deed. As per provisions of Article 58 of Limitation Act such suit against respondent No. 4 and executor of sale deed should have been filed within three years from the date of execution of sale deed, admittedly it was not filed within limitation. Beside this in view of Article 64 or 65 of the limitation Act, the suit for possession should have been filed within 12 years from 18-3-1982 and admittedly it was not filed. ( 10. Beside this in view of Article 64 or 65 of the limitation Act, the suit for possession should have been filed within 12 years from 18-3-1982 and admittedly it was not filed. ( 10. ) NOW the question which required the consideration, whether the amendment application dated 20-7-96 by which the relief for possession was inserted in plaint could have been related back to the date of the suit, the answer is affirmative then certainly the claim of the appellant was within limitation and if answer is negative then the Appellate Court has not committed any error in dismissing the suit by allowing the appeal of respondent No. 4. Such question was answered by the Apex Court in the matter of K. Raheja Constructions Ltd. Vs. Alliance Ministries and others, reported in AIR 1995 SC 1768 , in which held as under:- "4. It is seen that the permission for alienation is not a condition precedent to file the suit for specific performance. The decree of specific performance will always be subject to the condition to the grant of the permission by the competent authority. The petitioners having expressly admitted that the respondents have refused to abide by the terms of the contract, they should have asked for the relief for specific performance in the original suit itself. Having allowed the period of seven years elapsed from the date of filing of the suit, and the period of limitation being three years under Article 54 of the Schedule to the Limitation Act, 1963 any amendment on the grounds set out, would defeat the valuable right of limitation accrued to the respondent. 5. . . . . . . 6. On the facts, we hold that the application for amendment was barred by limitation. The petition is accordingly, dismissed. " ( 11. ) IT was again answered by the Apex Court in the matter of Radhika devi Vs. Bajrangi Singh and others, reported in AIR 1996 SC 2358 . ( 12. ) ACCORDING to aforesaid decision the time barred amendment could not be allowed, if it was allowed ispite. The Trial Court had no authority to decree the suit on a prayer which barred by time such finding of the Trial Court have been examined and reconsidered by the Appellate Court by virtue of Section 105 of CPC. ( 12. ) ACCORDING to aforesaid decision the time barred amendment could not be allowed, if it was allowed ispite. The Trial Court had no authority to decree the suit on a prayer which barred by time such finding of the Trial Court have been examined and reconsidered by the Appellate Court by virtue of Section 105 of CPC. Thus, in view of the aforesaid dictum of the Apex Court the appellate Court has not committed any error in setting aside the decree passed by the Trial Court in respect of respondent No. 4. ( 13. ) IN view of forgoing-discussion. I have not found any infirmity or perversity which rise any question of law, much less substantial question of law in this appeal. Thus, this appeal being devoid any merits deserves to be and is hereby dismissed at the stage of admission. There shall be nor order as to costs. Second Appeal dismissed. 2006-MPHT-5-207 , HIGH COURT OF MADHYA PRADESH Coram : Honble Mr. Justice U.C. Maheshwari Jan 02,2006 RAMESHWAR PRASAD Vs SHANTI DEVI ( 1. ) APPELLANT/plaintiff has preferred this appeal under Section 100 of cpc being aggrieved by the judgment and decree dated 21-2-2005 passed by 5th additional District Judge (FTC), Satna in Regular Civil Appeal No. 36-A/2005 reversing the judgment and decree dated 29-3-2003 passed by Civil Judge Class-I, Nagod District Satna, in Civil Original Suit No. 36-A/92. ( 2. ) THIS appeal is arising out of a suit for declaration partition, separate possession, mesne profit and perpetual injunction regarding house, other movable property including the agricultural land situated at Village Marti barmendranath and also for declaration to declare the sale deed dated 28-2-1992 executed by his father Gabinath in favour of the respondent No. 4, jagdish Prasad as ab initio void alleging the same was not executed in the interest and necessity of the family. It is also prayed that the land subject matter of said sale deed be adjusted in the share of Gabinath, the father of the appellant. Initially the relief for possession of the property was not prayed but was inserted by amendment vide application no. 20-7-1996. ( 3. ) THE other averments of the plaint are not necessary to mention here as the matter has already been compromised in between co-parcener/ respondents and the appellant in the Appellate Court. Initially the relief for possession of the property was not prayed but was inserted by amendment vide application no. 20-7-1996. ( 3. ) THE other averments of the plaint are not necessary to mention here as the matter has already been compromised in between co-parcener/ respondents and the appellant in the Appellate Court. The only dispute regarding respondent No. 4 is subsisting for which this appeal is preferred. The gabinath has executed a sale deed dated 18-3-1982 in favour of respondent No. 4 regarding Survey No. 143/1 (Eastern part) area 0. 042 hector and survey no. 144/1 (Eastern part) area 0. 596 hector, situated at Village Langarganwa with intention to defeat the interest of appellant and other co-parceners. ( 4. ) ALL averments of written statement are not necessary to mention here except the averments relating to respondent No. 4. In view of the said compromise. It is stated in it that long back before 13 years the partition had taken place in the family, according to Annexure A of the written statement thereafter family and its properties had not remained joint. It is also pleaded that gabinath did not possess any ancestral ornaments. The large amount was required in marriages of children of the family and a diesel pump was also purchased and to met out these expenses the loan was taken and the same was satisfied by selling the aforesaid land in consideration of Rs. 3,800/ -. In addition to it is also pleaded that said land was sold for the necessity of the family and out of the land of Gabinath. ( 5. ) AFTER framing the issues, the evidence was recorded on appreciation of it, Trial Court has decreed the suit for declaration of plaintiff share, with independent possession along with a direction for the land sold to respondent No. 4 from the share of Gabinath as the said transaction was not found in the interest and necessity of the family. ( 6. ) THE decree of Trial Court was challenged by both the parties the appellant and respondents 1 to 4 by there separate appeals. Appellant filed the c. R. A. 24-A/05 for modification in the declared share while respondents filed c. R. A. 36-A/05 for setting aside the decree and dismissal of the suit. During pendency of their appeal the appellant and respondent Nos. Appellant filed the c. R. A. 24-A/05 for modification in the declared share while respondents filed c. R. A. 36-A/05 for setting aside the decree and dismissal of the suit. During pendency of their appeal the appellant and respondent Nos. 1 (a), (b), (c), 2 and 3 have compromised the matter but the appeals were decided on merits regarding respondent No. 4 and the findings of the Trial Court that the execution of said sale deed was not for the interest and necessity of the family has been upheld but the suit was dismissed by setting aside the decree of Trial Court by holding the suit is barred by time for possession. Hence, this appeal is preferred by the appellant/plaintiff for restoring the decree of Trial Court against the respondent No. 4. ( 7. ) RESPONDENT No. 5, the State has been impleaded as formal party in view of the technical provisions of Order 1 Rule 3 (B) of CPC but no relief is sought against it. ( 8. ) LEARNED Counsel for the appellant has submitted that after declaring that the said sale deed was not executed in the interest and necessity of the family the appellate Court ought to have upheld the findings of the Trial court against the respondent No. 4 even after compromise in between the other parties because the suit was found within limitation by the Trial Court on proper appreciation, thus, in appeal there was no circumstances to dismental the same. According to his submission his prayer for declaration and possession was within limitation as per Article 109 of Limitation Act and submitted that question of limitation being substantial question of law is still open for adjudication, thus, it be admitted for hearing. ( 9. ) HAVING heard the learned Counsel for the appellant on perusal of the record of Courts below with the impugned judgments. It appears that aforesaid sale deed was executed on 18-3-1982 while instant suit was filed on 9-5-1992 at the initial stage the relief for possession was not prayed, the same was inserted in the plaint by way of an amendment application dated on 20-7-1996. Thus, the relief for possession was prayed after more than 14 years from the date of said sale deed. Thus, the relief for possession was prayed after more than 14 years from the date of said sale deed. As per provisions of Article 58 of Limitation Act such suit against respondent No. 4 and executor of sale deed should have been filed within three years from the date of execution of sale deed, admittedly it was not filed within limitation. Beside this in view of Article 64 or 65 of the limitation Act, the suit for possession should have been filed within 12 years from 18-3-1982 and admittedly it was not filed. ( 10. ) NOW the question which required the consideration, whether the amendment application dated 20-7-96 by which the relief for possession was inserted in plaint could have been related back to the date of the suit, the answer is affirmative then certainly the claim of the appellant was within limitation and if answer is negative then the Appellate Court has not committed any error in dismissing the suit by allowing the appeal of respondent No. 4. Such question was answered by the Apex Court in the matter of K. Raheja Constructions Ltd. Vs. Alliance Ministries and others, reported in AIR 1995 SC 1768 , in which held as under:- "4. It is seen that the permission for alienation is not a condition precedent to file the suit for specific performance. The decree of specific performance will always be subject to the condition to the grant of the permission by the competent authority. The petitioners having expressly admitted that the respondents have refused to abide by the terms of the contract, they should have asked for the relief for specific performance in the original suit itself. Having allowed the period of seven years elapsed from the date of filing of the suit, and the period of limitation being three years under Article 54 of the Schedule to the Limitation Act, 1963 any amendment on the grounds set out, would defeat the valuable right of limitation accrued to the respondent. 5. . . . . . . 6. On the facts, we hold that the application for amendment was barred by limitation. The petition is accordingly, dismissed. " ( 11. ) IT was again answered by the Apex Court in the matter of Radhika devi Vs. Bajrangi Singh and others, reported in AIR 1996 SC 2358 . ( 12. 5. . . . . . . 6. On the facts, we hold that the application for amendment was barred by limitation. The petition is accordingly, dismissed. " ( 11. ) IT was again answered by the Apex Court in the matter of Radhika devi Vs. Bajrangi Singh and others, reported in AIR 1996 SC 2358 . ( 12. ) ACCORDING to aforesaid decision the time barred amendment could not be allowed, if it was allowed ispite. The Trial Court had no authority to decree the suit on a prayer which barred by time such finding of the Trial Court have been examined and reconsidered by the Appellate Court by virtue of Section 105 of CPC. Thus, in view of the aforesaid dictum of the Apex Court the appellate Court has not committed any error in setting aside the decree passed by the Trial Court in respect of respondent No. 4. ( 13. ) IN view of forgoing-discussion. I have not found any infirmity or perversity which rise any question of law, much less substantial question of law in this appeal. Thus, this appeal being devoid any merits deserves to be and is hereby dismissed at the stage of admission. There shall be nor order as to costs. Second Appeal dismissed.