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2014 DIGILAW 1172 (RAJ)

Sunder Lal v. Kishan Lal

2014-05-20

ARUN BHANSALI

body2014
JUDGMENT 1. - This appeal under Section 96 C.P.C. is directed against the judgment and decree dated 1.2.2013 passed by the Additional District Judge No. 1, Bikaner, whereby, the suit filed by the appellant has been dismissed as barred by limitation. 2. The facts in brief may be noticed thus: the plaintiff filed the suit against defendant his nephew seeking cancellation of Will dated 31.3.1988 executed by Late Shri Raghunath, father of the plaintiff and grand-father of the defendant, claiming the same to be fraudulent on several grounds indicated in the plaint. It was alleged that there was no reason to execute the Will by excluding his ten natural heirs, the Will was executed on the date of his death, he was unconscious for about fortnight before his death, the relations between Late Shri Raghunath and Satya Narayan (father of the defendant) were not cordial etc. 3. A written statement was filed by the defendant, inter alia, contending that the agriculture land, which was bequeath by the said Will has been divided into plots and the same have already been sold, rest of the land has been acquired by RIICO and compensation has been paid to him, however, none of the transferees have been made party to the suit; insufficient Court-fee has been paid; the plaintiff is aware about the existence of the Will since 1988 and, therefore, the suit was barred by limitation; the allegations made regarding the validity of the Will we re also disputed; the suit has been filed after 23 years, which is ex facie barred by limitation. 4. The Trial Court framed as many as four issues. On behalf of plaintiff, he himself was examined and produced 15 documents. On behalf of defendant, the defendant himself was examined and he exhibited 1 document. 5. After hearing the parties, the Trial Court decided issue No. 3 pertaining to limitation first and came to the conclusion that the plaintiff was well aware of the existence of the Will and even if the date of filing of appeal against the mutation is the taken as the date of knowledge, the appeal was filed on 4.2.2003 and, therefore, the suit was ex facie barred by limitation and, consequently, dismissed the suit. 6. 6. It is submitted by learned Counsel for the appellant that the delay in filing the suit occurred as the defendant had not produced the original Will before any of the Courts and it only when he could obtain certified copy of the Will from the Court of ACJM No. 2, Bikaner in State v. Kishan Lal on 13.9.2011 , that he could file the suit and, therefore, it cannot be said that the suit filed by the plaintiff was barred by limitation and the Trial Court committed error in dismissing the suit filed by the appellant. 7. I have considered the submissions made by learned Counsel for the appellant and have perused the judgment passed by the Trial Court alongwith the record, which was summoned from the Trial Court. 8. From the material available on record, it is apparent that after death of Raghunath, the land in dispute was mutated in the name of his legal representatives and against the said mutation, the defendant Kishan Lal filed an appeal before the Divisional Commissioner, Bikaner and gave a specific reference regarding the Will and as the plaintiff was a party to the said litigation, it cannot be said that he was not aware of the existence of the Will. 9. So far as the plea raised regarding the fact that the plaintiff was not in possession of certified copy of the Will and, therefore, the suit could not be filed, such a plea has no legal basis and the same in any case, cannot extend the period of limitation as claimed by the plaintiff. 10. As soon as the plaintiff became aware about existence of the Will and in his opinion the same was a forged document, the cause of action arose to the plaintiff and in view of provisions of Section 9 of the Limitation Act, 1963, once the time begun to run, no subsequent disability or inability to institute the suit stops the running of the said time. Consequently, the suit was ex-facie barred by limitation. 11. Further, so far as the plea raised by the plaintiff is concerned, under no provisions of law, the appellant was required to file a certified copy of the Will alongwith the suit for maintaining the same. Consequently, the suit was ex-facie barred by limitation. 11. Further, so far as the plea raised by the plaintiff is concerned, under no provisions of law, the appellant was required to file a certified copy of the Will alongwith the suit for maintaining the same. The suit could have been filed questioning the Will and invoking provisions of Order 11 C.P.C., the Will could have been got produced by the appellant and, therefore, the plea raised in this regard is legally unsustainable. The Trial Court has thoroughly considered the legal as well as the factual aspect and the learned Counsel for the appellant has failed to point out any perversity in the said finding recorded by the Trial Court. 12. Consequently, there is no substance in this appeal and the same is, therefore, dismissed. The stay application is also dismissed.No costs.Appeal dismissed. *******