Kesharimal Jain vs Laxmichand Jain and Others

N.K. Mody, J.

Being aggrieved by the judgment an decree dated 08/05/1997 passed by ADJ, Biaora, District Rajgarh in Civil Suit No. 18-A/1997, whereby the suit filed by the Appellant has been dismissed, the present appeal has been filed.

Undisputed facts of the case are the Appellant and Respondent No. 1 are the real brothers. The suit property was purchased by sale certificate dated 17/09/1954, by the Appellant. Part of the suit property was sole by Respondent No. 1 on 28/12/1983 to Respondent No. 2. Thereafter, suit was filed by the Appellant on 29/08/1984 in the Court of Civil Judge Class-I Biora. The suit was returned to the Appellant on 23rd of July, 1987 for filing the same before competent court. 24/07/1987 & 25/07/1987 were working days and 26/07/1987 was Sunday. Suit was filed before the court of ADJ, Biora, District Raj grah on 27/07/1987. During pendency of the suit, suit property was again sold by Respondent No. 2 to Respondent No. 3 on 17/08/1994.

In the suit filed by the Appellant it was alleged that Respondent No. 1 had no authority to sell the suit property to Respondent No. 2 and subsequently to Respondent No. 3. So for as cause of action for filing the suit, it was alleged in the plaint that the cause of action has accrued to the Appellant on 28/12/1983, when the sale deed was executed by Respondent No. 1 to Respondent No. 2. Prayer in the suit was that it be declared that the Appellant is the owner of the suit property and the Respondent No. 2 has no authority to maintain its possession over the property which has been purchased by the Respondent No. 2, vide sale deed dated 28/12/1983. It was also prayed that it be declared that sale deed dated 28/12/1983 is having no binding force on the Appellant. It was also prayed that decree of possession be passed in favour of the Appellant.

Suit was contested by the Respondent No. 1 on various grounds including on the ground of limitation. It was alleged in the written statement that vide will (Exhibit-D-1), the mother of the Appellant and Respondent No. 1 has given a share in the suit property to the Respondent No. 1. Another contention of the Respondent No. 1 is that Respondent No. 1 was in occupation of the suit accommodation and in the year 1970, Respondent No. 1 left the house and inducted the tenant in the accommodation within the knowledge of the Appellant. Hence, it was alleged that it was wrong to say that the limitation starts from 28/12/1983 i.e. the date of execution of sale deed for the purpose of computation of limitation for possession. It is submitted that even if Article 65 of the Limitation Act is applied then too the suit is barred as Respondent No. 1 is in hostile title since last more than 12 years. It is also the case of Respondent No. 1 that the suit was for declaration which was filed on 27/07/1987 before the competent court. Therefore, as per Article 58 of the Limitation Act, the suit is barred by law of limitation. It was prayed that suit be dismissed. After framing of issues and recording of evidence, the learned trial court dismissed the suit on the ground of limitation as well as on merits.

Learned Counsel for the Appellant submits that the learned court below committed error in dismissing the suit. The suit was simply for possession, therefore, the period of limitation is of twelve years from the date of sale deed dated 28/12/1983. It is submitted that since, the suit was filed on 29/08/1984 i.e. within eight months of the execution of the sale deed, therefore, suit was in time. Another contention of the learned Counsel for the Appellant is that even if it is assumed that limitation for the suit of declaration is of three years, then too, the suit is in time as the period spent by the Appellant in prosecuting the suit before the court which was having no jurisdiction i.e. from 29/08/1984 to 23/07/1987 deserves to be excluded as the Appellant has bonafidely prosecuted the suit in the wrong court. On merits also learned Counsel for the Appellant challenges the findings of the trial court on the ground that Appellant has purchased the suit property in a court sale vide registered sale deed, therefore, no right could have been transferred to Respondent No. 1, without execution of a registered documents. It was submitted that the mother of the Appellant was having no right in the suit property, therefore, Exhibit-D-1 was of no consequences. So far Exhibit-D-2 is concerned, it was submitted that since it was executed by the Appellant under undue influence and the same was not registered also, therefore, by the said document not title passes to Respondent No. 1.

Learned Counsel for the Respondent No. 1 Shri Amit Agrawal submits that the learned trial court has rightly dismissed the suit. Reliance was placed on a decision of Supreme Court in the matter of Sri Amar Chand Inani Vs. The Union of India (UOI), , wherein Hon''ble Apex Court has held that, "Under Section 4 of the Limitation Act, the word Court used means a proper court in which a suit ought to have been filed" and has further observed that a suit instituted by the presentation of plaint in pursuance of an order passed under Order 7 Rule 10 Code of CPC be said to be continuation of the suit instituted in the court which has no jurisdiction to entertain it. Consequently, the suit cannot be deemed to be instituted in the proper court on the date when the plaint was presented in the wrong court, so as to attract the provisions of Section 4 of the Act.

In the above case, the Plaintiff was an Advocate practicing at the Ajmer Bar. On the night between December 31,1957 and January 1,1958 the Plaintiff was travelling by 2 Dn. Passenger train from Ambala Cantt. To Delhi. While the train was at Mohri Railway Station, the Janata Express train coming from Delhi collided with it and as a result the Plaintiff sustain serious injuries. Hence, filed a suit for claiming damages. The suit was dismissed on the ground that it was barred by limitation. The findings were confirmed by the High Court and the matter came before the Hon''ble apex Court. Hon''ble apex Court observed that suit was filed on 02/03/1959 and was returned vide order dated 28/10/1959 for presentation to the proper court on the basis of its findings that Mohri Railway Station, where the injury was committed was not situated within the territorial jurisdiction of that court. Thereafter, on the next day the suit was filed on 29/10/1959 before Ambala court with an application u/s 14 of the Limitation Act. In these circumstances, the Hon''ble court observed that, "since Karnal was not the proper court in which the suit should have been filed, the Plaintiff would not be entitled for the benefit of Section 4 of the Limitation Act. In this decision which was passed by two Judges of Hon''ble Supreme Court, the impact of Section 14 was not at all taken into consideration.

In the case of Roshanlal Kuthalia and Others Vs. R.B. Mohan Singh Oberoi, , a money decree was obtained from Lahore Court. Application was filed for execution of the decree before the Punjab High Court at Chhandigrah, which was dismissed. Hence, a regular suit for recovery of the decreed amount was filed. In this case, three Judges of the Hon''ble Supreme Court observed that, "Court must as far as is reasonably permissible put a liberal construction on documents to save, not to scuffle, when faced with a plea of limitation to non-suit or otherwise good claim." It was observed that, "It is a sine qua non of a claim u/s 14 that the earlier proceeding prosecuted in good faith. Bonafide is writ large in the Plaintiffs conduct. The executability of the decree was solely on the grounds jurisdictional or extra-jurisdictional and so Section-14 applies. Section 14 is wide enough to cover periods covered by execution proceedings as the obstacle was jurisdictional and the exclusionary operation of Section 14 of the Limitation Act was attracted."

After taking into consideration the aforesaid position of law and also the facts on record, this Court is of the view that the suit can not be dismissed on account of limitation on the ground that the suit was for declaration and since the suit was filed before the competent court on 27/07/1987, therefore, in view of Article 58 of the Limitation Act, the suit is barred by law of limitation. In the case of Amar Chand Inani (supra), the Hon''ble Apex Court has not considered the impact of Section 14 of the Limitation Act, hence, it is not applicable in the present case.

In this case, the suit property was sold on 28/12/1983 and suit was filed on 29/08/1984. The suit was returned on 23/07/1987 and the same was again filed on 27/07/1987, therefore, the Appellant was entitled to claim the benefit of Section 14 of the Limitation Act, as the Appellant bonafidely prosecuted the suit from 29/08/1984 to 23/07/1987 in a Court which was not having the pecuniary jurisdiction.

Apart from this if the starting point of limitation is taken from 07/04/1977 i.e. the date of execution of agreement Exhibit-D-2, then too the suit for possession was in time on 29/08/1984 as the same was filed within 12 years as per Article 65 of the Limitation Act. In view of this learned trial court committed error in dismissing the suit on the ground of limitation.

Coming to the facts it is not disputed that the suit property was purchased in the name of the Appellant on 17/09/1954. At that time the age of the Appellant ought to have been 22 years and the age of the Respondent No. 1 ought to have been 17 years. It is also not in dispute that prior to purchase of the property, father of the Appellant and Respondent No. 1 died in the year 1951 and the mother also died in the year 1964. Exhibit-D-1 is a document, which has been executed by deceased Jhashodabai, mother of the Appellant and Respondent No. 1, which bears the signatures of Appellant, Respondent No. 1 and their sister Chhotibai. By this document the mother of the Appellant and Respondent No. 1 partitioned that suit property. This document is on a plain paper bearing date 11/08/1962. Thereafter, an agreement has been executed between the parties which is dated 07/04/1977. This document is Exhibit-D-2. In this agreement, it is stated that suit property which was purchased in court sale is in two parts and was purchases by the Appellant. It is also stated in the said documents that a part of it was kept as common. Vide (Exhibit-D-3) dated 09/02/1978 an application was filed by the Appellant before the Municipal Council, Biara, whereby intimation was given for mutation, wherein the date of transfer of right has been mentioned as 07/04/1977 i.e. the date of execution of the agreement (Exhibit-D-2). On the basis of this application vide Exhibit-D-4 dated 24/07/1978, the name of Respondent No. 1 was mutated in the municipal record. Even if it is assumed that the document Exhibit-D-1 is of no consequence as it is neither on stamp paper nor duly registered and also because the mother was not having any right in the suit property, then too the document (Exhibit-D-2) indicates that in family arrangement, the property was divided by the Appellant between himself and Respondent No. 1 and thereafter also got the name of Respondent No. 1 mutated in the record of Municipal Council, Biora by moving an application in the year 1977-78. In the matter of Harishankar Singhania v. Gaur Hari Singhania reported in AIR 2006 SCW 3330. Hon''ble Apex Court has observed that, concept of family arrangement or settlement should be treated differently. Technicalities of limitation etc. should not be put at risk of the implementation of a settlement drawn by a family, which is essential for maintaining peace and harmony in a family.

Apart from this the Appellant himself has admitted that Respondent No. 1 was living in the suit property and in the year 1970, Respondent No. 1 proceeded to Sarangpur after locking the house. It has also been admitted by the Appellant that after leaving for Sarangpur, Respondent No. 1 let out the rest of the part of his share of the property to the tenants namely, Vallabh Das, Ashok Kumar and Mohanlal Vijayvargiya one after one. Out of these three named tenants, Respondent No. 1 has examined Vallabhdas, who has specifically stated that he was accommodated by the Respondent No. 1 in the suit accommodation in the year 1963 and thereafter in the year 1980 as tenant.

Ballabhdas is an independent witness and the Appellant himself has admitted that he was occupying that part of the accommodation which has been sold out by the Respondent No. 1. No action was taken by the Appellant against Respondent No. 1, when he left Biora to Sarangpur after locking the suit property and inducted the tenant in the suit property. Apart from this, the Appellant himself has entered into an agreement dated 07/04/1977 whereby made a family arrangement for dividing the property. Not only this, Appellant acted upon the said agreement and moved the appropriate application before the competent authority for getting the name of Respondent No. 1 mutated. In this case of most important witness was the sister of Appellant namely Chotibai, who was the witness of document Ex.D/1 but she has not been examined by Appellant to prove that the suit property was never divided between the parties.

All the relevant factual aspects of the case has been taken into consideration by the learned trial court, while dismissing the suit on merits. Even it is assumed that for purchasing the (sic) property the Appellant executed the document Exhibit-P-2 and also got mutated the name of Respondent No. 1 in the record of Municipal Council Biaora, there was no occasion for the Appellant to file the suit in the year 1984 to challenge the sale deed.

In view of this, the appeal stand dismissed. The judgment and decree passed by learned trail court stands confirmed.

No order as to costs.