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2013 DIGILAW 907 (MP)

Rajendra Prasad v. Ramlal s/o Sudama Prasad

2013-08-05

ALOK ARADHE

body2013
JUDGMENT Alok Aradhe, J. This appeal is by the defendants, which was admitted by a Bench of this Court on the following substantial question of law:-- “Whether in view of Article 64 or 65 of the Limitation Act, the Courts below have committed error in holding the suit of the respondent for possession within limitation, especially when the plea of possession was inserted in the plaint by way of amendment on 20-3-2000 on the basis of application for amendment filed on 20-7-98?” 2. Facts leading to filing of the appeal, briefly stated, are that the plaintiff filed a suit on the ground that he purchased the suit land admeasuring 0.48 acres vide registered sale deed dated 27-7-1972 from one Ram Vishal and was placed in possession. Thereafter, in the year 1973 he constructed a house thereon. However, the defendants threatened the plaintiff with dispossession. Accordingly, on 11-8-1993 the suit seeking the relief of permanent injunction was filed by which the defendants were sought to be restrained from interfering with the possession of the plaintiff over the suit land. Thereafter, an application for amendment dated 20-7-1998 was filed which was allowed by the Trial Court vide order dated 20-3-2000 by which the relief of possession was also prayed for in respect of portion of land of which forcible possession was taken by the defendants in the year 1997. The defendants filed written statement in which it was pleaded that they have purchased the suit lands from Ram Vishal in the year 1971 and are in possession of the same since then. 3. The Trial Court vide judgment and decree dated 23-12-2002 held that the plaintiff is in lawful possession of the suit land. However, it was held that defendants have interfered with the possession of the plaintiff over the suit land and during the pendency of the suit have taken forcible possession of the part of the suit land in the year 1997. Accordingly, it was held that the plaintiff is entitled to a decree for possession in respect of the land of which forcible possession was taken by the defendant during pendency of suit. The Trial Court also granted decree for declaration of title in favour of the plaintiff. Accordingly, the suit was decreed. Accordingly, it was held that the plaintiff is entitled to a decree for possession in respect of the land of which forcible possession was taken by the defendant during pendency of suit. The Trial Court also granted decree for declaration of title in favour of the plaintiff. Accordingly, the suit was decreed. The Lower Appellate Court vide impugned judgment and decree dated 14-2-2004, inter alia, held that since the plaintiff had not sought the relief of declaration of title, therefore, the Trial Court could not have granted the relief of declaration of title. The Lower Appellate Court further held that the relief of possession is not time-barred as the plaintiff is entitled to exclusion of time spent in the proceeding in the Revenue Court under Section 14 of the Limitation Act. However, remaining part of the decree passed by the Trial Court was affirmed. 4. Learned Counsel for the appellants while inviting the attention of this Court, Paragraph 16 of the judgment passed by the Trial Court has submitted that defendants are in possession of the land in dispute since 1974 and the suit was filed in the year 1993 initially seeking the relief of permanent injunction and thereafter the relief of possession was sought by way of amendment in the year 1998, which was barred by limitation. It is also urged that if the amendment which is barred by limitation is allowed, it would not relate back to the institution of the suit. It is also urged that Lower Appellate Court erred in not appreciating that time spent in the proceeding pending before the Revenue Court, could not have taken into account for the purpose of extending the benefit of Section 14 of the Limitation Act. In support of his submission, learned Counsel for the appellant has placed reliance on the decision of Supreme Court in Jai Prakash and others Vs. Satnarain and others, : 1994 Supp. (1) SCC 153 and Kanhaiyalal Vishwambherdayal Agrawal Vs. Muktilal Rameshwardas Naredi, AIR 2007 MP 1 . 5. On the other hand, learned Counsel for the respondent submitted that the matter stands concluded against the appellants by concurrent findings of fact. The findings recorded by the Courts below are based on proper appreciation of evidence on record which do not call for any interference in exercise of power under Section 100, Code of Civil Procedure. 6. 5. On the other hand, learned Counsel for the respondent submitted that the matter stands concluded against the appellants by concurrent findings of fact. The findings recorded by the Courts below are based on proper appreciation of evidence on record which do not call for any interference in exercise of power under Section 100, Code of Civil Procedure. 6. I have considered the submissions made by learned Counsel for the parties and have perused the record. The plaintiff admittedly filed the suit on 11-8-1993 seeking the relief of permanent injunction. Thereafter, on 20-7-1998 the relief of possession was sought to be incorporated by way of amendment which was allowed by the Trial Court vide order dated 20-3-2000. The Trial Court in Paragraph 16 of its judgment after appreciating the evidence on record has recorded a finding that the defendants are in possession of the lands in question since 1974-75. The suit has admittedly been filed beyond the period of 12 years. It is also not in dispute that the dispute with regard to mutation remain pending before the parties to the suit before the Revenue Court for a period from 1974-75 till 1993. Therefore, the question which arises for consideration is whether the plaintiff is entitled to exclusion of time spent in the proceeding before the Revenue Court under Section 14 of the Limitation Act. 7. The object of Section 14 of the Act is to extend the protection against bar of limitation to a person honestly doing his best to get his case tried on merits but failing through Court been unable him of such trial. In order to attract the applicability of Section 14 of the Limitation Act, following conditions are required to be satisfied:-- (i) both the prior and subsequent proceedings are civil proceedings prosecuted by the same party; (ii) the prior proceeding had been prosecuted with due diligence and good faith; (iii) the failure of the prior proceeding was due to defect of jurisdiction or other cause of like nature; (iv) the earlier proceeding and the later proceeding must relate to the same matter in issue; and (v) both the proceedings are in a Court. [See: Raghunath Vs. Gokul, AIR 1958 SC 827 and Safar Khan Vs. Board of Revenue, AIR 1985 SC 39 ] 8. [See: Raghunath Vs. Gokul, AIR 1958 SC 827 and Safar Khan Vs. Board of Revenue, AIR 1985 SC 39 ] 8. In the case of Jai Prakash (supra), it has been held that if the nature of proceeding pending before the Revenue Court is irrelevant for the purpose of suit, the litigant would not be entitled to the benefit of Section 14of the Limitation Act. In the instant case, the dispute between the parties which remain pending before the Revenue Court was with regard to mutation. However, the suit was initially filed for permanent injunction and thereafter, the relief of possession was incorporated by way of an amendment. Thus, the subject-matter of the proceeding pending before the Revenue Court is entirely different from the dispute which was pending adjudication in the suit and, therefore, the plaintiff is not entitled to benefit of Section 14 of the Limitation Act. 9. In view of the preceding analysis, it is held that the suit filed for possession was barred by limitation. Accordingly, the substantial question of law framed by this Court is answered. The judgment and decree passed by the Trial Court as well as Lower Appellate Court are set aside. The claim of the plaintiff is dismissed. 10. In the result, the appeal is allowed with costs.