Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.5870 OF 2015
Ghewarchand & Ors. ….Appellant(s)
VERSUS
M/s Mahendra Singh & Ors. …Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1) This appeal is filed against the final judgment
and order dated 04.12.2006 passed by the High
Court of Rajasthan at Jodhpur in S.B. Civil First
Appeal No.52 of 1997 whereby the High Court
allowed the appeal filed by the
respondents(defendants) and set aside the judgment
and decree dated 30.10.1996 passed by the
Signature Not Verified
Digitally signed by
ANITA MALHOTRA
Date: 2018.09.25
12:29:20 IST
Reason:
Additional District Judge No.3 Jodhpur in Civil Suit
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No.135 of 1995(146/1978) and dismissed the suit
filed by the appellants(plaintiffs) as barred by time.
2) In order to appreciate the question involved in
the appeal, it is necessary to set out few facts infra.
3) The appellants are the plaintiffs whereas the
respondents are the defendants in a civil suit out of
which this appeal arises.
4) The short question involved in this appeal is
whether the High Court was justified in allowing the
defendants’ first appeal and thereby dismissing the
appellants’ (plaintiffs) suit as barred by time.
5) The appellants (plaintiffs) filed a civil suit
against the respondents (defendants) in relation to
the suit property, as detailed in Para 1 of the plaint,
for claiming the reliefs mentioned in para 26(3) of the
plaint which reads as under:
“26. Plaintiffs humbly pray that:
1. Decree for declaration of title be
passed in favour of plaintiffs and
against the defendants that property
as described in Para No.1 of this suit
belongs to Sh. Oswal Singh Sabha,
Jodhpur and defendants Sh. Kishan
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Singh does not have any kind of
ownership rights over it.
2. Decree for permanent injunction be
passed in favour of plaintiffs and
against the defendants that
defendants be restrained from
making any kind of claim or from
carrying out any kind of proceeding
and interfering in the possession of
disputed property forever.
3. Possession of above property be
provided to the plaintiff from the
receiver.
4. Cost of this suit be also provided to
the plaintiffs from the defendants.
5. Other relief, which this Hon’ble
Court may deem fit, be also provided
to the plaintiffs.”
(Emphasis supplied)
6) The respondents (defendants) filed the written
statement and joined issues on facts and law by
denying the material allegations made in the plaint.
The respondents, inter alia, also raised an objection
that the suit is barred by limitation.
7) The Trial Court, by judgment/decree answered
all the issues on facts and law including the issue of
limitation in appellants’ favour and against the
respondents and accordingly decreed the suit. It was
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held that the appellants are the owners of the suit
property; they are entitled to claim possession of the
suit property from the respondents; and lastly, the
suit is within limitation.
8) The respondents (defendants) felt aggrieved and
filed first appeal in the High Court of Rajasthan at
Jodhpur. By impugned judgment, the Single Judge
allowed the appeal and set aside the judgment and
decree of the Trial Court and, in consequence,
dismissed the suit only on the ground that the suit is
barred by limitation. In other words, the High Court
upheld all the factual findings of the Trial Court in
appellants’ (plaintiffs’) favour but reversed the finding
on the issue of limitation and held that since the suit
is hit by the period of limitation prescribed under the
Indian Limitation Act, 1963, it is liable to be
dismissed on the ground of limitation. In this view of
the matter, the defendants’ appeal was allowed and
the suit was dismissed as being barred by limitation
having been filed beyond the period prescribed under
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the Limitation Act giving rise to filing of the present
appeal by way of special leave in this Court by the
plaintiffs.
9) Mr. S.K. Jain, learned senior counsel appeared
for the appellants (plaintiffs). None appeared for the
respondents though served.
10) Having heard the learned counsel for the
appellants (plaintiffs) and on perusal of the record of
the case, we are inclined to allow the appeal and set
aside the impugned judgment only to the extent it
decides that the suit was barred by limitation and, in
consequence, restore the judgment of the Trial Court
holding that the suit was filed within limitation.
11) In our considered opinion, the Trial Court was
right in holding that the plaintiffs’ (appellants herein)
suit was filed within limitation whereas the High
Court was not right in reversing this finding. This we
say for the following reasons.
12) On perusal of the judgment of the Trial Court,
we find that the Trial Court applied Article 65 of the
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Limitation Act for holding the suit to be within
limitation because it was filed by the plaintiffs within
12 years from the date of accrual of cause of action
prescribed in Article 65.
13) The High Court, however, was of the view that
the plaintiffs’(appellants) suit against the defendants
(respondents) was essentially for declaration and
consequential injunction and, therefore, it was
governed by the period of three years limitation,
which was to be counted from the date of accrual of
first cause of action. It was held that since the suit
was not filed within three years, it was barred.
14) It is apposite to reproduce the finding of the
High Court on this issue:
“……..However, nothing was pleaded by the
plaintiffs in relation to the said order dated
20.09.1983 and the suit was prosecuted in its
original form only. With conscious omission
on the part of the plaintiffs to sue for
possession, the submissions strenuously
made by learned counsel Mr. Mehta with
reference to Article 65 of the Limitation are
of no avail. The suit was for declaration and
consequential injunction only and having
admittedly been filed much beyond the
period of three years from the date of first
accrual of cause of action, remains hopelessly
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barred by the limitation and, therefore,
deserves to be dismissed.”
(Emphasis supplied)
15) Without going into any factual controversy and
the lengthy pleadings, which we consider not
necessary, the High Court, in our view, was factually
not correct in observing that the suit was filed for
declaration and injunction only and “not for
possession”. (See underlined portion above).
16) In our view, mere perusal of the relief in clause
26 (3) of the plaint quoted in para 5 above would
show that the plaintiffs had also prayed for decree of
possession of the suit property from the defendants.
17) It is not in dispute as the pleadings would go to
show that the suit property was the subject matter of
the proceedings under Section 145 of the Criminal
Procedure Code, 1973 (hereinafter referred to as “the
Cr.P.C.”) between the parties before the City
Magistrate wherein both the parties were claiming
their right, title and interest including asserting their
possession over the suit property against each other.
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It is also not in dispute that the City Magistrate vide
his order dated 23.12.1966 attached the suit
property.
18) The plaintiffs, therefore, filed a civil suit on
19.12.1978 for claiming a declaration of their title on
the suit property, injunction and possession against
the defendants. Since the suit was for declaration,
permanent injunction and possession, Article 65 of
the Limitation Act was applicable, which provides a
limitation of 12 years for filing the suit which is to be
counted from the date when the possession of the
defendant becomes adverse to the plaintiffs.
19) As per the allegations in the plaint, the
defendants’ possession, according to the plaintiffs,
became adverse when the defendants in Section 145
of the Cr.P.C. proceedings asserted their right, title
and interest over the suit property to the knowledge
of the plaintiffs for the first time and which
eventually culminated in passing of an attachment
order by the City Magistrate on 23.12.1966. This
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action on the part of the defendants, according to the
plaintiffs, cast cloud on the plaintiffs’ right, title and
interest over the suit property and thus furnished a
cause of action for claiming declaration of their
ownership over the suit property and other
consequential reliefs against the defendants in
relation to the suit property. (see para 23 of the
plaint)
20) In our opinion, the plaintiffs, therefore, rightly
filed the civil suit on 19.12.1978 within 12 years from
the date of attachment order dated 23.12.1966. The
assertion of the right, title and interest over the suit
property by the defendants having been noticed by
the plaintiffs for the first time in proceedings of
Section 145 of the Cr.P.C. before the City Magistrate,
they were justified in filing a suit for declaration and
possession. It was, therefore, rightly held to be within
limitation by the Trial Court by applying Article 65 of
the Limitation Act.
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21) In order to decide the question of limitation as
to whether the suit is filed within time or not, the
Court is mainly required to see the plaint allegations
and how the plaintiff has pleaded the accrual of
cause of action for filing the suit. In this case, we
find that the plaintiffs satisfied this requirement to
bring their suit within limitation.
22) As mentioned above, the defendants
(respondents) lost the suit on merits on all fronts as
they could neither prove their title and nor their
lawful possession over the suit property. They,
however, succeeded in the High Court only on the
point of limitation which had resulted in nonsuiting
the plaintiffs. Since the defendants did not file any
cross objection in the appeal against the adverse
findings recorded by the two Courts below against
them, it is not necessary for this Court to examine
the legality and correctness of those findings in this
appeal.
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23) In the light of the foregoing discussion, we
cannot concur with the view taken by the High Court
on the question of limitation. It is legally
unsustainable and hence deserves to be set aside.
24) The appeal thus succeeds and is accordingly
allowed. Impugned judgment insofar as it holds that
the appellants’ (plaintiffs’) suit is dismissed as being
barred by limitation is hereby set aside. As a result,
the judgment and decree of the Trial Court is
restored in favour of the appellants(plaintiffs).
………...................................J.
[ABHAY MANOHAR SAPRE]
…...……..................................J.
[S. ABDUL NAZEER]
New Delhi;
September 20, 2018
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