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2015 DIGILAW 434 (MP)

Pramod Kumar v. Saiyad Rajiy Sultan

2015-04-15

J.K.JAIN

body2015
ORDER : J.K. JAIN, J. 1. This Misc. Appeal under Order XLIII Rule 1(u) of the Code of Civil Procedure (in brief "the Code") is filed against the judgment dated 11-8-2014 passed by Second ADJ, Barwani in Civil Appeal No. 13-A/2014, by which he set aside the order dated 14-1-2013 passed by Civil Judge, Class II, Rajpur in Civil Suit No. 15-A/2012 and the matter was remanded back to the Trial Court. Brief facts of this case are that the respondent No. 1/plaintiff has filed a suit for declaration, possession and mesne profits in respect of Khandhar and appurtenant land described in Para 2 of the plaint (for short "suit property"). The appellant/defendant No. 1 has filed an application under Order VII Rule 11 of the Code, which was allowed and consequently the plaint filed by the respondent No. 1/plaintiff was rejected. However, the compensatory cost has not been awarded to the appellant. Then the respondent No. 1/plaintiff has filed Civil Appeal No. 13-A/2014. The appellant/defendant No. 1 has also filed Civil Appeal No. 12-A/2014 against non-award of compensatory cost. Both the appeals were decided by the impugned judgment by which the appellant's appeal was dismissed; whereas the respondent No. 1/plaintiff s appeal was allowed and the set aside order passed by the Trial Court and the matter was remanded back to the Trial Court for deciding the suit after framing the issues and recording the evidence. Being aggrieved with this judgment, the appellant has filed this appeal. 2. Learned Senior Counsel for the appellant submits that at the time of considering the application under Order VII Rule 11 of the Code, the Court has to consider the averments made in the plaint and the plea taken by the defendants in the written statement would be wholly irrelevant at that stage. Therefore, a direction of the learned Appellate Court that the application be decided after framing of the issues and taking evidence is not justified. For this purpose he placed reliance on the judgment of Hon'ble Apex Court in the case of Saleem Bhai and Others Vs. State of Maharashtra and Others, (2003) 1 SCC 557 . 3. Learned Senior Counsel for the appellant further submits that considering the averments made in the plaint as a whole and considering the documents, it is clear that the suit is apparently barred by law of Limitation. State of Maharashtra and Others, (2003) 1 SCC 557 . 3. Learned Senior Counsel for the appellant further submits that considering the averments made in the plaint as a whole and considering the documents, it is clear that the suit is apparently barred by law of Limitation. Therefore, the plaint can be rejected in exercise of power under Order VII Rule 11(d) of the Code. For this purpose, he placed reliance on the judgment of Hon'ble Apex Court in the case of Hardesh Ores (P) Ltd. Vs. Hede and Company, 2008 (1) MPLJ 30. 4. Learned Senior Counsel for the appellant further submits that the learned Lower Appellate Court has committed an error of law in not considering that the respondent No. 1/plaintiff is claiming the ownership on the basis of registered sale-deed dated 9/10-4-1985. Therefore, the suit for possession may be filed within 12 years, i.e., up to 8-4-1997. In alternative, it is submitted that in the earlier Civil Suit No. 27-A/1985, decided between the parties on 23-9-1991 it has been held that the respondent No. 1 is owner of the suit property, but the respondent No. 1 cannot interfere with the possession of the appellant. The respondent No. 1 has filed Civil Appeal No. 18-A/1992 which was dismissed on 15-2-1994. However, liberty was granted to the respondent No. 1 to initiate appropriate legal proceedings for obtaining possession. Against which, respondent No. 1 has filed Second Appeal No. 157 of 1994 before the High Court, which was dismissed on 23-9-1994 for want of prosecution. Thus, the respondent No. 1 can file civil suit for possession within 12 years from the Appellate Court's judgment (dated 15-2-1994), i.e., before 15-2-2006; where as the present suit was filed on 14-8-2012, which is apparently barred by time. Learned First Appellate Court misinterpreted the provisions of Article 65 of Limitation Act and set aside the order and remanded the matter back to the Trial Court. Therefore, the impugned judgment is liable to be set aside. 5. It is also submitted that the suit for declaration of title is governed by Article 58 of Limitation Act, which prescribes 3 years of limitation. Thus, the relief sought for declaration is also barred by limitation. 6. On the other hand, learned Counsel for the respondent No. 1/plaintiff vehemently opposed the prayer. 5. It is also submitted that the suit for declaration of title is governed by Article 58 of Limitation Act, which prescribes 3 years of limitation. Thus, the relief sought for declaration is also barred by limitation. 6. On the other hand, learned Counsel for the respondent No. 1/plaintiff vehemently opposed the prayer. He submits that the suit for possession is governed by Article 65 of the Limitation Act and starting point of limitation commenced when the possession of the defendant becomes adverse to the plaintiff. The question of adverse possession is a mixed question of law and fact as held by the Hon'ble Apex Court in the case of Hemaji Waghaji Jat Vs. Bhikhabhai Khengarbhai Harijan and Others, (2009) 16 SCC 517 . He further submits that the suit is for possession of immovable property on the basis of title, therefore, it is not necessary to calculate the limitation 12 years back from the date of the suit as held by this Court in the case of Pataria and others Vs. Mst. Chitia and others, 1992 (2) MPJR 281. For this purpose he also placed reliance on the judgment of Hon'ble Apex Court in M. Durai Vs. Madhu and Others, (2007) 3 SCC 114 , Vasantiben Prahladji Nayak and Others Vs. Somnath Muljibhai Nayak and Others, (2004) 3 SCC 376 and C. Natrajan Vs. Ashim Bai and Another, (2007) 12 SCALE 163 . 7. Learned Counsel for the respondent No. 1 further submits that Hon'ble Apex Court in the case of Popat and Kotecha Property Vs. State Bank of India Staff Association, 2006 (1) MPWN 10 (SC), held that the disputed questions in regard to limitation cannot be decided at the time of considering an application filed under Order VII Rule 11 of the Code. In the present case, the question of limitation is a disputed question and mixed question of law and fact, therefore, it cannot be decided without framing the issues and taking evidence. Thus, he supports the impugned judgment. 8. After hearing learned Counsel for the parties, perused the record. 9. The present suit was filed for possession of immovable property on the basis of title and not merely possessory title. Thus, admittedly the suit is governed by Article 65 of Limitation Act. Thus, he supports the impugned judgment. 8. After hearing learned Counsel for the parties, perused the record. 9. The present suit was filed for possession of immovable property on the basis of title and not merely possessory title. Thus, admittedly the suit is governed by Article 65 of Limitation Act. Section 65 of Limitation Act provides 12 years of limitation and limitation starts when the possession of the defendant becomes adverse to the plaintiff. Thus, the question before this Court, what is the starting point of limitation for calculating the limitation of 12 years? As per the learned Senior Counsel for the appellant, limitation starts on 9/10-4-1985 when the sale-deed of the suit property executed in favour of respondent No. 1 and in alternative, the limitation starts on 15-2-1994 when in earlier litigation between the parties, while dismissing the appeal of respondent No. 1, First Appellate Court granted a liberty to file appropriate proceedings for taking possession of the suit property. I am unable. to convince with the arguments of learned Senior Counsel for the appellant. The limitation commences from the date when defendant's possession become adverse as held by this Court in the cases of Pataria and others (supra) and Basanti Ben Prahladji Naik (supra). Thus, it is clear that starting point of limitation commences from the date appellant's (defendant's) possession become adverse to the respondent No. 1 (plaintiff). 10. Adverse possession is a mixed question of law and fact. Therefore, it cannot be decided without taking evidence. Hon'ble Apex Court in the case of Hemaji Waghaji Jat (supra), held "a plea of adverse possession is not a pure question of law but a blended one of fact and law". 11. Hon'ble Apex Court in the case of Balasaria Construction (P) Ltd. Vs. Hanuman Seva Trust, (2006) 5 SCC 658 , held as under:-- "8. After hearing Counsel for the parties, going through the plaint, application under Order 7 Rule 11(d), CPC and the judgments of the Trial Court and the High Court, we are of the opinion that the present suit could not be dismissed as barred by limitation without proper pleadings, framing of an issue of limitation and taking of evidence. Question of limitation is a mixed question of law and fact. Ex facie in the present case on the reading of the plaint it cannot be held that the suit is barred by time." 12. Question of limitation is a mixed question of law and fact. Ex facie in the present case on the reading of the plaint it cannot be held that the suit is barred by time." 12. Now, I have considered the precedence relied upon by learned Counsel for the appellant. Hon'ble Apex Court in the case of Popat and Kotecha (supra), considered the judgment of Salim Bhai (supra) and various other judgments and held that when from the averments of the plaint it is clear that the suit is barred by any law, then the plaint can be rejected under Order 7 Rule 11 of the CPC, but when disputed question in relation to issue of limitation is involved, the Court cannot reject the plaint in exercise of powers under Order 7 Rule 11 of the CPC. Another judgment, which is relied upon by learned Senior Counsel for appellant is the case of Hardesh Ores (supra). In this case, Hon'ble Apex Court while dealing with the case of injunction, held that the case was governed by Article 113 and in that case, no disputed question in relation to the issue of limitation was involved, whereas in the present case, the starting point of limitation can be decided only on the basis when the possession of appellant (defendant) became adverse to the respondent No. 1 (plaintiff). This is a mixed question of fact and law, therefore, it cannot be decided only on the basis of plaint allegations. Hence, in the present facts, the judgments relied upon by Senior Counsel for appellant, are not helpful to the appellant. With the aforesaid discussions, I am of the considered view that in the present case, the issue of limitation is a mixed question of fact and law, which can be decided only after framing issues and recording evidence. Therefore, the learned First Appellate Court rightly set aside the order of the Trial Court allowing the application under Order VII Rule 11(d) of the Code and remanded back the matter for trial. I, therefore, found no merit in this appeal and the same is accordingly dismissed. No order as to costs.