Kedarnath Rai and Others vs Tarachand Dogra and Others

R.N. Misra, J.—Plaintiffs have appealed against the reversing judgment and decree of the learned Additional District Judge of Sambalpur in a suit for recovery of possession.

Plaintiff No. 2 is the celebrate Deity Samaleswari Thakurani of Sambalpur Town and is represented by five Archaks. Plaintiff No. 1 has sued in his own capacity. The suit was filed in regard to two schedules of properties shown under A and B. It was claimed that the A schedule lands had been endowed to the Deity for seva, puja by the founder Maharaja and the B schedule property is said to be an accretion to the estate. Father of Plaintiffs 1 and 3 and Defendant No. 3 mortgaged the property with father of Defendant No. 1 in 1933 for a sum of Rs. 2, 000/ -. The mortgage was invalid since the lands were inalienable. In 1936, Defendant No. 1 instituted Money Suit No. 16 of 1936 and the decree obtained therein was put to execution in Execution Case No. 64 of 1939.

Defendant No. 1 purchased the disputed property and took delivery of possession of the same and transferred the purchased property to Defendant No. 2, his wife. Plaintiffs claimed that the sale is not binding on the ground that the property was inalienable, being without legal necessity. Plaintiff No. 1 was a party in the said suit and his guardian did not take proper steps on behalf of Plaintiff No. 1 in the said litigation. Plaintiff being a minor and the suit having been instituted within three years from attainment of majority by him, the claim is in time.

The defence stand was that the mortgage was a valid one and was for legal necessity. Defendants have perfected title by adverse possession. B schedule property was not debottar and the mortgagors have personal interest therein. The suit was barred by limitation.

The trial Court decreed the suit by finding that A schedule property was absolute debottar having been granted to the Deity and B schedule property being an accretion thereof was also debottar in character. The Deity was not bound by the decree in the Money Suit. The last mortgage of 1933 was a personal transaction and had nothing to do with the Deity. The disputed property was purchased on 15-4-1939. Delivery of possession of the property was taken on 6-6-1939 and the suit was instituted on 15.5.1958. Plaintiff No. 1 attained majority in 1952. The, period taken between 27-3-1953 and 25-4-1958, when the previous suit was instituted for the self-same relief and was being prosecuted was available to be excluded u/s 14 of the Limitation Act. Accordingly the suit was in time.

Before the lower appellate Court, all the findings were assailed. The learned Appellate Judge came to hold that the suit lands were debuttar and B schedule property was an accretion to the A schedule property. He further came to hold that Defendant No. 1 was in adverse possession from 6-6-1939 and Plaintiff No. 1 attained majority in August, 1951. He further found that Section 14 of the Limitation Act was not attracted to the facts of the case. In his view, the suit was, therefore, barred by limitation.

The litigation has become final as regards A schedule property and in second appeal, the dispute centres round the claim in regard to B schedule property only. The main question that has been canvassed at the hearing of the appeal is that of limitation. It is conceded at the Bar that unless the Plaintiffs are able to show that the suit is within limitation, it would not be open to the Court to examine the matter on merit.

The learned Appellate Judge has come to the conclusion in paragraph 12 of his judgment that Plaintiff No. 1 attained majority in August, 1951. He was, therefore, entitled to institute the suit within three years from that date, namely by August, 1954. On 30th of April, 1952, a suit was filed which was withdrawn on 25-11-1952, as per Ext. 3. On 27-3-1953, the suit was filed in the Court of the Munsif (wrongly said to have been filed in the Court of the Subordinate Judge in the judgment of the lower appellate Court). The suit was dismissed on 5-3-1955 by the learned Munsif holding that it was not maintainable for want of pecuniary jurisdiction. An appeal was carried against the said decision being Title Appeal No. 35/1 of 1955/58 and the learned Subordinate Judge set aside the order of dismissal and directed that the plaint be returned to the Plaintiffs for being presented in the proper Court. The endorsement on the plaint shows that on 25-4-1958, the plaint was returned to Plaintiffs pursuant to the appellate direction and the present suit was filed on 15-5-1958.

Section 14 of the Limitation Act provides;

(1) In computing the period of limitation for any suit the time during which the Plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or of appeal or revision, against the Defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.

As already indicated, the suit if filed by August, 1954, would have been in time. Plaintiffs had filed their earlier suit on 27-3-1953 and claimed the benefit of Section 14(1) of the Limitation Act for the period between 27-3-1953 and 25-4-1958. Though there was some amount of contest as to what would be the period up to which the benefit of Section 14(1) of the Limitation Act would be available, Mr. Basu for Respondents accepts the contention of Mr. Pal for the Appellants that until an actual date of return the benefit would be extended. If Section 14(1) would be applicable, the period to be excluded would, therefore, be about five years and one month beginning from 27-3-1953 and ending on 25-4-1958. When this period is excluded, the ''suit filed on 15-5-1958 would be in time provided the benefit is available.

The three essential requirements which have to be satisfied in order that Section 14(1) of the Limitation Act may be attracted are: (i) identity of the cause of action; (ii) good faith of the Plaintiffs; and (iii) absence of jurisdiction or other cause of a like nature of a Court which entertained the prior litigation. The dispute in this case is with regard to satisfaction or nonsatisfaction of the second point, namely, good faith of Plaintiffs in instituting and pursuing the earlier litigation in the Court of the Munsif. By a catena of decisions "good faith" used in this section has been found to mean" exercise of due care and attention". In the case of Madhavrao Narayanrao Patwardhan Vs. Ramkrishna Govind Bhanu and Others, , it has been stated:

Both the Courts below have viewed the controversy u/s 14 of the Limitation Act, as if it was for the Defendant to show mala fides on the part of the Plaintiff when he instituted the previous suit and was carrying on the proceedings in that court. In our opinion, both the Courts below have misdirected themselves on this question. Though they do not say so in terms, they appear to have applied the definition of good faith as contained in the General Clauses Act, to the effect that A thing shall be deemed to be done in good faith where it is in fact done honestly, whether it is done negligently or not. But the Indian Limitation Act contains its own definition of good faith to the effect that ''nothing shall be deemed to be done in good'' faith which is not done with due care and attention'' (S. 2(7). We have, therefore, to see if the institution and prosecution of the suit in the Munsif''s Court at Miraj, was done with us care and attention. We know that the plaint in the Tikoni suit filed by the same Plaintiff in the same Court, did contain a statement as'' to the value of the subject-matter, but it was conspicuous by its absence in the plaint in the suit as originally filed in the Munsifs Court at Miraj. All the facts allege din the Plaintiff''s petition for the return of the plaint, were known to the Plaintiff ever since the institution of the suit. Nothing fresh was discovered in 1940. On the other hand, we know definitely that the Tikoni Suit had been dismissed by the trial Court on merits. The suits were of analogous character in the sense that the controversy was similar in both of them. The Appellants'' contention that on the dismissal of the Plaintiff''s Tikoni Suit in November, 1939, he, naturally, become apprehensive about the result of the other suit, and then moved the Court for the return of the'' plaint on the ground of pecuniary jurisdiction, appears to be well-founded. The Plaintiff knew all the time that the value of the properties involved in the suit, was much more than Rs. 5. 000/ - which was the limit of the pecuniary jurisdiction of the Subordinate Judge''s Court. Can an omission in the plaint to mention the value of the properties involved in the suit be brought within the condition of due care and attention'' according to the meaning of ''good faith'' as understood in the Limitation Act? It has to be remembered that it is not one of those cases which usually arise upon a revision of the valuation as given in the plaint, on an objection raised by the Defendant contesting the jurisdiction of the Court to entertain the suit. Curiously enough, the Defendant had not raised any objection in his written statement to the jurisdiction of the Court to entertain the suit. Apparently, the Plaintiff was hard put to it to discover reasons for having the case transferred to another Court. The question is not whether the Plaintiff did it dishonestly or that his acts or omission in this connection, were malafide. On the other hand, the question is whether, given due care and attention, the Plaintiff could have discovered the omission without having to wait for about 10 years or more. The trial Court examined the Plaintiff''s allegation'' that the omission was due to his pleader''s mistake. As that Court observed ''he makes this contention with a view to shield himself behind a wrong legal advice. That Court has answered the Plaintiff''s contention against him by observing that the Plaintiff was not guided by any legal advice in this sui t; that the plaint was entirely written by him in both the suits, and that he himself conducted those suits in the trial Court ''in a manner worthy of a senior counsel''. The Court, therefore, rightly came to the conclusion that the Plaintiff himself was responsible for drafting the plaint and for presenting it in Court, and that no pleader had any responsibility in the matter. No reason was adduced why, in these circumstances, the value of the subject-matter of the suit, was mentioned in the plaint in the Tikoni suit but not in the plaint in respect of the present suit.

.... In our opinion, therefore, all the conditions necessary to bring the case within Section 14 have not been satisfied by the Plaintiff. There could be no doubt about the legal position that the burden lay on the Plaintiff to satisfy those conditions in order that he may entitle himself to the deduction of all that period between 31st January, 1929, and 4th July, 1940. It is also clear that the Courts below were in error in expecting the contesting Defendant to adduce evidence to the contrary. When the Plaintiff has not satisfied the initial burden which lay upon him to bring his case within Section 14, the burden would not shift, if ever shifted, to the Defendant to show the contrary....

In the case of Rabindra Nath Samuel Dawson Vs. Sivakasi and Others, , the benefit of Section 14 of the Limitation Act was discussed at length. It was observed:

.... Section 14 of the repealed Limitation Act which is applicable to this case gives benefit to a party who has been prosecuting with due diligence another civil proceeding whether in a Court of first instance or in a Court of first appeal against the Defendant, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court which from the defect of jurisdiction or other cause of like nature is unable to entertain it. The Appellant''s advocate points out that u/s 2(7) nothing shall be deemed to be done in good faith which is not done with due care and attention and that in this case the Appellant was bona fide in purchasing the suit properties from an auction purchaser who also purchased them in revenue sales bona fide and that without notice to either of them the sale has been set aside which is totally without jurisdiction and injuriously affects the Appellant. That the Appellant was caught in this predicament may be unfortunate but in so far as the question whether the bona fide prosecuted the earlier suit and appeal there could be no two opinions on the undisputed facts which have been clearly and forcefully stated by the High Court. It is clear that no suit for declaration and possession could have been filed against the Defendants in respect of the revenue sales which was set aside without impleading the Government. The objection as to the maintainability of the suit was taken at the very initial stage, but; that was resisted and the Appellant invited a decision, by the District Munsif. Even at the stage of revision against that order in the High Court he took the risk of proceeding with the suit. This was, therefore, not a case of prosecuting the previous proceedings bona fide.. But on the other hand, he deliberately did so may be for obvious reason that if he, had to withdraw the suit he would have to give notice u/s 80, CPC to the Government, wait for the expiry of the period of notice of two months and thereafter file a fresh suit. To avoid this he thought he would take a chance but that chance boomeranged against him....

Admittedly for the self-same reliefs, a suit had been filed in 1952 in the Court of the Subordinate Judge at Sambalpur. Ext.O is the copy of the plaint. Therein, the suit had been valued at Rs. 4, 025/ -. On 22-11-1952, this suit was withdrawn with leave to file a fresh suit on the same cause of action as would appeal from Ext. 3. After the suit was withdrawn, a fresh suit was filed on 27-3-1953 being Title Suit No. 37 of 1953 in the Court of the Munsif, Sambalpur. On the earlier occasion, as would appear from Ext. 0, the suit was valued at Rs. 4, 025/ -. The present suit valued at Rs. 4, 100/ -, but the suit which was filed in the Court of the Munsif in 1953 had been valued at Rs. 1, 025. Plaintiffs have not been able to show as to why they had under-valued the suit at the time when the plaint was filed in the Court of the Munsif in 1953. They must have been aware of the appropriate valuation of the suit properties. The fact that they had instituted a suit for the same reliefs in the Court of the Subordinate Judge and having withdrawn it, they went before the Munsif and were obliged to file the suit in the Court of the Subordinate Judge goes a long way in supporting the defence stand that there was no good faith in instituting the suit in the Court of the Munsif. As has been indicated in the decisions referred to above, the onus lay on the Plaintiffs to show that they were entitled to the benefit of Section 14(1) of the Limitation Act. No steps have indeed been taken by them to secure the said benefit and the Plaintiffs must accordingly be denied the advantage. I would accordingly in agreement with the learned Appellate Judge, though for slightly different reasons, hold that Plaintiffs were not entitled to the benefits of Section 14(1) of the Limitation Act. The period during which the earlier suit had been prosecuted would not be available for exclusion in the matter of computing the limitation for the purpose of the present suit.

As in my view, the suit is barred by limitation, the Court would have no jurisdiction to enter into consideration of the merits of the appeal. I would accordingly dismiss the appeal by upholding the finding of the lower appellate Court that Plaintiffs'' claim is barred by limitation. I direct parties to bear their own costs of this Court.