Bhateri and others vs Inder Singh and others

L. N. Mittal

Plaintiffs no.1, 2 and 4 having lost in both the courts below are in second appeal.

Appellants, along with proforma respondents no.3 and 4 and predecessor of proforma respondent no.5, filed suit against respondents no.1 and 2 as defendants. In the suit, the plaintiffs challenged consent judgment and decree dated 08.03.1991 suffered by plaintiffs'' predecessor Sarupi in favour of defendant no.1 Inder Singh and the consequent mutation no.2407 being null and void. Plaintiffs alleged that Dharma was owner in possession of the suit land i.e. 1/4th share in the land described in the plaint. On his death, the same devolved on his wife Sarupi and the plaintiffs. Plaintiffs no.1 to 4 are daughters of Dharma and Sarupi, whereas plaintiffs no.5 and 6 are daughter and son of Bharto - daughter of Dharma and Sarupi. Accordingly, on the death of Sarupi, plaintiffs claimed the suit land by inheritance i.e. 1/5th share each by plaintiffs no.1 to 4 and 1/5th share by plaintiffs no.5 and 6 jointly. Accordingly, plaintiffs sought declaration that they are owners in possession of the suit land and judgment and decree dated 08.03.1991 and mutation no.2407 are illegal and null and void.

Defendants, by filing written statements, contested the suit and controverted the plaint averments. It was alleged that plaintiffs had suffered consent decree dated 18.03.1987 in favour of Sarupi, who accordingly became exclusive owner in possession of the suit land. Thereafter, Sarupi suffered impugned consent decree dated 08.03.1991 in favour of defendant no.1, who became exclusive owner in possession of the suit land. He has sold part of the suit land to defendant no.2, who is now owner in possession thereof. It was also alleged that the suit is time barred and is also bad on account of previous litigation. Registered Will dated 28.12.1992 executed by Sarupi in favour of defendant no.1 was also pleaded. Various other pleas were also raised.

Learned Civil Judge (Junior Division), Sonipat, vide judgment and decree dated 10.03.2009, dismissed the plaintiffs'' suit. First appeal preferred by plaintiffs no.1, 2 and 4 has been dismissed by learned District Judge, Sonipat, vide judgment and decree dated 18.09.2010. Feeling aggrieved, plaintiffs no.1, 2 and 4 have preferred the instant second appeal.

I have heard learned counsel for the appellants and perused the case file.

Plaintiffs had suffered decree dated 18.03.1987 in favour of Sarupi, who accordingly became exclusive owner in possession of the suit land. The said decree has not been challenged by the plaintiffs either in the instant suit or in any other proceedings. Consequently, the plaintiffs having been left with no right, title or interest in the suit land, have no locus standi to challenge the consent decree dated 08.03.1991 - subsequently suffered by Sarupi in favour of defendant no.1. Sarupi herself never challenged the said decree during her life time.

Sale deed executed by defendant no.1 in favour of defendant no.2 regarding part of the suit land has also not been challenged. On the other hand, defendant no.2 is bona fide purchaser of the said land for valuable consideration and is, therefore, protected by Section 41 of the Transfer of Property Act.

The suit is also barred by limitation. Decree dated 08.03.1991 has been challenged in the suit filed on 22.11.2001 i.e. more than ten years after the impugned consent decree was suffered. Plaintiffs had earlier instituted a suit in the year 1993 to challenge the said consent decree, but the same was dismissed as withdrawn, with liberty to file fresh suit. It would depict that plaintiffs acquired knowledge of the impugned consent decree at least in the year 1993, when they filed their previous suit. Even if limitation period is computed from the year 1993, the instant suit filed on 22.11.2001 is hopelessly barred by limitation. Order 23 Rule 2 of the CPC stipulates that in any fresh suit instituted on permission granted for withdrawing the previous suit with liberty to file fresh suit, the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been instituted. Consequently, institution of the previous suit within limitation period would not save the instant fresh suit from the bar of limitation. The previous suit is deemed to have not been instituted for the purpose of computing limitation period for instant suit.

There was also some other previous litigation by some of the plaintiffs and for that reason also, the instant suit has been held to be barred. Concurrent finding recorded by the courts below to non-suit the plaintiffs is fully justified by the material on record. The said finding, therefore, does not warrant any interference. The said finding is not shown to be perverse or illegal nor it is based on misappreciation or misreading of evidence so as to give rise to any question of law, much less substantial question of law, for adjudication in this second appeal. The appeal is meritless and is accordingly dismissed in limine.