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2014 DIGILAW 1533 (MP)

Shankar v. Radha Bai

2014-11-25

U.C.MAHESHWARI

body2014
Judgment U.C. Maheshwari, J.:- On behalf of the appellant this appeal is preferred under section 100 of Civil Procedure Code being aggrieved by the judgment and decree dated 24-1-2002 passed by 3rd Additional District Judge, Chhindwara in Regular Civil Appeal No. 106-A/1999 affirming the order dated 2-11-1999 passed by 5th Civil Judge, Class-II, Chhindwara passed in COS No. 69-A/98 whereby allowing the application of the respondents/defendant No. 2 filed under Order 7, Rule 11 of Civil Procedure Code the impugned suit of the appellant filed for different declarations and perpetual injunction with respect of the alleged agricultural land was dismissed. According to factual matrix of the case the appellant herein has filed the impugned suit for quashment of the sale deed dated 6-5-1992 executed by the respondent No. 1 in favour of respondent No. 2 with respect of some disputed land along with the prayer for quashment of the partition dated 25-5-1977 and its mutation order dated 10-5-1979 with a direction to carry out the partition of entire disputed land afresh and pursuant to it the prayer for separate possession is also made. Apart from this the prayer for decree of possession against the respondent No. 2 with respect of the land mentioned in the aforesaid sale deed dated 6-5-1992 with a further prayer for issuing perpetual injunction against the respondent No. 1 restraining him to disburse the sum of consideration received by her under execution of the aforesaid sale deed is also made. 2. As per averments of the plaint Late Heeraji being Karta of the family of the appellant and private respondents was the recorded Bhoomiswami of the ancestral land Survey Nos. 278, 282, 283 and 289 total area 21.53 acres. On 25-5-1977 such land was partitioned by Heeraji between him, his wife/respondent No. 1 and his sons. Pursuant to such partition under the order of the Revenue Authority vide dated 10-5-1979 the name of concerning persons were mutated separately in the revenue record. In such partition three acres land of Survey No. 278 and one acre land of Survey No. 282 total four acres was given to his second wife principal defendant No. 7 Kapuri Bai from whom he was blessed with one son Gendrao. In such partition three acres land of Survey No. 278 and one acre land of Survey No. 282 total four acres was given to his second wife principal defendant No. 7 Kapuri Bai from whom he was blessed with one son Gendrao. Apart from this principal defendant No. 8 Shyam Rao was given 3.76 acres land of Survey No. 278 while 5 acres land of Survey No. 289 was given to Shankar and remaining land was kept by Heeraji with him. Subsequent to such partition the respondent/principal defendant No. 1 Radhabai did not want to reside with Kapoori Bai the second wife of Heeraji and therefore the respondent No. 1 resided with Heeraji and cultivating the land of his share. The other heirs of Heeraji did not object such cultivation of the land by the principal defendant No. 1 Radha Bai. Subsequent to aforesaid partition and mutation the aforesaid Heeraji had passed away. After death of Heeraji the appellant, respondent No. 1, the wife of Heeraji and his other sons inherited the right of such land. Subsequent to death of Heeraji the principal defendant No. 3 and 4 Manu Bai and Shanti Bai taking advantage of their relation with the respondent No. 1, in whose name the aforesaid remaining land of Heeraji was recorded for their own benefit misguided and insisted her to sale such land bearing Survey No. 282/2 and 283 to the respondent No. 2, same was sold by the respondent No. 1 to the respondent No. 2 vide sale deed dated 6-5-1992. As per further averments before executing such sale deed no information in this regard was given to the appellant and other sons of Radha Bai and the consideration of sale deed received was kept by the principal defendant Nos. 1, 3 and 4 namely Radha Bai Jagan and Manu Bai with them. 3. On receiving the information regarding execution of the aforesaid sale deed dated 6-5-1992 the appellant rushed to the Civil Court with the impugned suit with a prayer to quash such sale deed along with other prayers described in the plaint as stated above. 4. In response of the summons of the suit on behalf of the respondent No. 1 instead to file W. S. the impugned application under Order 7, Rule 11 of Civil Procedure Code for dismissal of suit was filed. 4. In response of the summons of the suit on behalf of the respondent No. 1 instead to file W. S. the impugned application under Order 7, Rule 11 of Civil Procedure Code for dismissal of suit was filed. In such application inter alia it is stated that the entire land of the family of the appellant was partitioned on 25-5-1977 in the lifetime of Heeraji between the coparceners of the then undivided joint Hindu family and pursuant to that under the authority of revenue officers according to such plaint the name of the concerning persons were also mutated as Bhoomiswami in the revenue record on dated 10-5-1979 and subsequent to such partition and mutation the same was not challenged by the appellant or any other member of the family within three years from the date of aforesaid order of the revenue authority dated 10-5-1979. In such premises the impugned suit of the appellant challenging the aforesaid partition and mutation being barred by time is not entertainable and accordingly the prayer for dismissal of the suit was made. 5. On consideration of such application by holding the suit being filed beyond the period of limitation of three years provided under Article 58 of the Limitation Act and 12 years provided under Articles 64 and 65 of the Limitation Act, is not entertainable for grant of the reliefs mentioned in the same was allowed and the suit was dismissed by the trial Court. It also appears from the record while considering such application the trial Court has also considered some merits of the matter in the light of the provision of section 14(1) of Hindu Succession Act, and held that the predecessor-in-title of the respondent No. 2 the earlier Bhoomiswami whose name was recorded as Bhoomiswami under the aforesaid partition had become absolute owner and Bhoomiswami of her share of the land in dispute and in such premises also the suit was dismissed. 6. On challenging the aforesaid order of the trial Court by the appellant before the Appellate Court, on consideration by upholding the same the appeal was also dismissed, on which the appellant has come to this Court with this appeal. 7. 6. On challenging the aforesaid order of the trial Court by the appellant before the Appellate Court, on consideration by upholding the same the appeal was also dismissed, on which the appellant has come to this Court with this appeal. 7. Having heard the appellant's counsel keeping in view his arguments, I have carefully gone through the records of the Court below as well as the impugned order of the trial Court and the judgment of the Appellate Court. 8. The appellant's counsel has advanced his arguments to admit this appeal on the substantial questions of law proposed in the appeal memo but in the existing factual matrix of the case at hand stated above, I have not found any substance in such arguments for admission of this appeal on any of the proposed substantial question of law. 9. Under the existing laws if any suit is filed for grant of decree of declaration either declaring the title over the property or/and declaring any order of the Court to be null and void or to quash the same beyond the period of limitation prescribed under the Limitation Act then the same could not be entertained for any purpose. In such premises, if the case at hand is examined then in view of provision of Article 58 of the Schedule of Limitation Act to quash the order of the Court/Revenue Court or to declare the same to be null and void the suit could have been filed and entertained by the Civil Court within three years from the date of passing such order of the mutation by the revenue authority but the impugned suit was not filed within such period of limitation from the order of revenue authority dated 10-5-1979. 10. For the sake of argument if the case at hand is examined in view of the provision of Articles 64 and 65 of Schedule of Limitation Act, even then the impugned suit being filed beyond the period of 12 years from the date of aforesaid alleged partition with separate possession in revenue record was not entertainable. In such premises, the trial Court as well as of the Appellate Court had not committed any error in dismissing the suit of the appellant at the initial stage. 11. In such premises, the trial Court as well as of the Appellate Court had not committed any error in dismissing the suit of the appellant at the initial stage. 11. Apart the aforesaid, as per settled proposition of law laid down by the Apex Court in the matter of Dudh Nath Pandey v. Suresh Chandra, reported in AIR 1986 SC 1509 , holding the concurrent findings of the Courts below on the question of limitation being findings of fact could not be interfered under section 100 of Civil Procedure Code as such the same could not be interfered by framing any question of law. In such premises also this appeal deserves to be dismissed. 12. Even otherwise on examining the case in the light of the provision of section 14(1) of Hindu Succession Act, I have not found any material circumstance on which it could be said that the Courts below have committed any error in dismissing the suit of the appellant on such count also at the initial stage under Order 7, Rule 11 of Civil Procedure Code. 13. I am of the view that Order 7, Rule 11 of Civil Procedure Code has been enacted with the object to struck down unnecessary litigation at the initial stage. In such premises the alleged suit is not entertainable under the existing legal position either on the question of limitation or under other enactment, then in the light of the decision of the Apex Court in the matter of T. Arivandandam v. T.V. Satyapal, reported in AIR 1977 SC 2421 , holding that unnecessary litigation should be struck down at the initial stage on examining the case at hand it is apparent that the impugned suit was filed by the appellant beyond the period of limitation from the date of partition and order of the mutation in the revenue record, which was accepted by all the parties by their own conduct according to which none of the parties had challenged such partition and mutation for more then 12 years then mere on account of execution of the sale deed in the year 1992 by the Bhoomiswami whom the land was given in separate possession with mutation the cause of action was not available to the appellant to file the impugned suit, so in such premises also the Courts below have not committed any error in dismissing the suit. 14. 14. In view of aforesaid discussion, I have not found any circumstance or substance in the matter giving rise to any question of law rather than substantial questions of law. Consequently, this appeal being devoid of any merits deserves to be and is hereby dismissed at the stage of motion hearing. There shall be no order as to costs.