Supreme Court of India
GHEWARCHAND & ORS. versus M/S MAHENDRA SINGH & ORS. on 20 September 2018
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SUPREME COURT REPORTS[2018] 11 S.C.R. 738
[2018] 11 S.C.R.
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GHEWARCHAND & ORS.
v.
M/S MAHENDRA SINGH & ORS.
(Civil Appeal No. 5870 of 2015)
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SEPTEMBER 20, 2018
[ABHAY MANOHAR SAPRE AND S. ABDUL NAZEER, JJ.]
Limitation Act, 1963 – Art.65 – Applicability of – Appellants-plaintiffs filed a civil suit against the respondents-defendants inCrelation to a property – Trial Court held all the issues including theissue of limitation in favour of the plaintiffs and decreed the suit –However, the High Court reversed the finding on the issue of thelimitation and dismissed the suit of plaintiff on the ground oflimitation, as suit was for declaration and consequential injunctionDand, therefore, it was governed by the period of 3 years limitation –On appeal, held: High Court was factually not correct in observingthat the suit was filed for declaration and injunction only and ‘notfor possession’ – The plaint showed that the plaintiffs had alsoprayed for decree of possession of the suit property from thedefendants – Furthermore, the suit property was also the subjectEmatter of the proceedings u/s.145 Cr.P.C., where both parties wereclaiming their right, title and interest including possession over thesuit property against each other, and suit property was attached bythe City Magistrate by order dated 23.12.1966 – Art. 65 of the Actprovides limitation of 12 years for filing the suit which is to beFcounted from the date when the possession of the defendant becomesadverse to the plaintiff – Art.65 was applicable and the Plaintiffsrightly filed the civil suit on 19.12.1978 within 12 years from thedate of attachment order dated 23.12.1966 – Thus, order of thetrial Court holding that the suit was filed within limitation is restored– Code of Criminal Procedure, 1973 – s.145.G
Allowing the appeal, the Court
HELD: 1. The High Court was of the view that theplaintiffs’(appellants) suit against the defendants (respondents)was essentially for declaration and consequential injunction and, H
therefore, it was governed by the period of three years limitation,which was to be counted from the date of accrual of first cause ofaction. It was held that since the suit was not filed within threeyears, it was barred. [Para 13] [742-B-C]
2. Without going into any factual controversy and the lengthypleadings, the High Court was factually not correct in observingthat the suit was filed for declaration and injunction only and “notfor possession”. [Para 15] [742-F-G]
3. Mere perusal of the relief in clause 26 (3) of the plaintwould show that the plaintiffs had also prayed for decree ofpossession of the suit property from the defendants. Furthermore,it is not in dispute as the pleadings would go to show that the suitproperty was the subject matter of the proceedings under Section145 Cr.P.C. between the parties before the City Magistratewherein both the parties were claiming their right, title andinterest including asserting their possession over the suit propertyagainst each other. It is also not in dispute that the CityMagistrate vide his order dated 23.12.1966 attached the suitproperty. [Paras 16 and 17] [742-G-H; 743-A-B]
4. The plaintiffs, therefore, rightly filed the civil suit on19.12.1978 within 12 years from the date of attachment orderdated 23.12.1966. The assertion of the right, title and interestover the suit property by the defendants having been noticed bythe plaintiffs for the first time in proceedings of Section 145 ofthe Cr.P.C. before the City Magistrate, they were justified in filinga suit for declaration and possession. It was, therefore, rightlyheld to be within limitation by the Trial Court by applying Article65 of the Limitation Act. [Para 20] [743-F-G]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5870of 2015
From the Judgment and Order dated 04.12.2006 of the HighCourt for Rajasthan at Jodhpur in S. B. First Appeal No. 52 of 1997
S. K. Jain, Sr. Adv., Dileep Tandon, Puneet Jain, Harsh Jain, Ms.Priyal Jain, Ms. Vineeta Meghrajani, Pramod Sharma, Ms. Pratibha Jain,Advs. for the appellants.
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AThe Judgment of the Court was delivered by ABHAY MANOHAR SAPRE, J. 1. This appeal is filed againstthe final judgment and order dated 04.12.2006 passed by the High Courtof Rajasthan at Jodhpur in S.B. Civil First Appeal No.52 of 1997 wherebythe High Court allowed the appeal filed by the respondents(defendants)Band set aside the judgment and decree dated 30.10.1996 passed by theAdditional District Judge No.3 Jodhpur in Civil Suit No.135 of 1995(146/1978) and dismissed the suit filed by the appellants(plaintiffs) as barredby time.
2. In order to appreciate the question involved in the appeal, it isCnecessary to set out few facts infra.
3. The appellants are the plaintiffs whereas the respondents arethe defendants in a civil suit out of which this appeal arises.
4. The short question involved in this appeal is whether the HighCourt was justified in allowing the defendants’ first appeal and therebyDdismissing 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 theplaint, for claiming the reliefs mentioned in para 26(3) of the plaint whichreads as under:
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“26. Plaintiffs humbly pray that:
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1. Decree for declaration of title be passed in favour ofplaintiffs and against the defendants that property asdescribed in Para No.1 of this suit belongs to Sh. OswalSingh Sabha, Jodhpur and defendants Sh. Kishan Singh doesFnot have any kind of ownership rights over it.
2. Decree for permanent injunction be passed in favour ofplaintiffs and against the defendants that defendants berestrained from making any kind of claim or from carryingout any kind of proceeding and interfering in the possessionGof disputed property forever.
3. Possession of above property be provided to the plaintifffrom the receiver.
4. Cost of this suit be also provided to the plaintiffs fromthe defendants.
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5. Other relief, which this Hon’ble Court may deem fit, bealso provided to the plaintiffs.”
(Emphasis supplied)
6. The respondents (defendants) filed the written statement andjoined issues on facts and law by denying the material allegations madein the plaint. The respondents, inter alia, also raised an objection thatthe suit is barred by limitation.
7. The Trial Court, by judgment/decree answered all the issues onfacts and law including the issue of limitation in appellants’ favour andagainst the respondents and accordingly decreed the suit. It was heldthat the appellants are the owners of the suit property; they are entitledto claim possession of the suit property from the respondents; and lastly,the suit is within limitation.
8. The respondents (defendants) felt aggrieved and filed firstappeal in the High Court of Rajasthan at Jodhpur. By impugned judgment,the Single Judge allowed the appeal and set aside the judgment anddecree of the Trial Court and, in consequence, dismissed the suit only onthe ground that the suit is barred by limitation. In other words, the HighCourt upheld all the factual findings of the Trial Court in appellants’(plaintiffs’) favour but reversed the finding on the issue of limitation andheld that since the suit is hit by the period of limitation prescribed underthe Indian Limitation Act, 1963, it is liable to be dismissed on the groundof limitation. In this view of the matter, the defendants’ appeal wasallowed and the suit was dismissed as being barred by limitation havingbeen filed beyond the period prescribed under the Limitation Act givingrise to filing of the present appeal by way of special leave in this Courtby 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 theappeal and set aside the impugned judgment only to the extent it decidesthat the suit was barred by limitation and, in consequence, restore thejudgment of the Trial Court holding that the suit was filed within limitation.
11. In our considered opinion, the Trial Court was right in holdingthat the plaintiffs’ (appellants herein) suit was filed within limitation A
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Awhereas the High Court was not right in reversing this finding. This wesay for the following reasons.
12. On perusal of the judgment of the Trial Court, we find that theTrial Court applied Article 65 of the Limitation Act for holding the suit tobe within limitation because it was filed by the plaintiffs within 12 yearsBfrom the date of accrual of cause of action prescribed in Article 65.
13. The High Court, however, was of the view that theplaintiffs’(appellants) suit against the defendants (respondents) wasessentially for declaration and consequential injunction and, therefore, itwas governed by the period of three years limitation, which was to beCcounted from the date of accrual of first cause of action. It was heldthat since the suit was not filed within three years, it was barred.
14. It is apposite to reproduce the finding of the High Court onthis issue:
“……..However, nothing was pleaded by the plaintiffs inDrelation to the said order dated 20.09.1983 and the suitwas prosecuted in its original form only. With consciousomission 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 ofEno avail. The suit was for declaration and consequentialinjunction onlyand having admittedly been filed muchbeyond the period of three years from the date of firstaccrual of cause of action, remains hopelessly barred bythe limitation and, therefore, deserves to be dismissed.”
(Emphasis supplied)
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15. Without going into any factual controversy and the lengthypleadings, which we consider not necessary, the High Court, in our view,was factually not correct in observing that the suit was filed for declarationand injunction only and “not for possession”. (See underlined portionabove).G
16. In our view, mere perusal of the relief in clause 26 (3) of theplaint quoted in para 5 above would show that the plaintiffs had alsoprayed 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 thesuit property was the subject matter of the proceedings under SectionH
145 of the Criminal Procedure Code, 1973 (hereinafter referred to as“the Cr.P.C.”) between the parties before the City Magistrate whereinboth the parties were claiming their right, title and interest includingasserting their possession over the suit property against each other. It isalso not in dispute that the City Magistrate vide his order dated 23.12.1966attached the suit property.
18. The plaintiffs, therefore, filed a civil suit on 19.12.1978 forclaiming a declaration of their title on the suit property, injunction andpossession against the defendants. Since the suit was for declaration,permanent injunction and possession, Article 65 of the Limitation Actwas applicable, which provides a limitation of 12 years for filing the suitwhich is to be counted from the date when the possession of the defendantbecomes 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 Section145 of the Cr.P.C. proceedings asserted their right, title and interestover the suit property to the knowledge of the plaintiffs for the first timeand which eventually culminated in passing of an attachment order bythe City Magistrate on 23.12.1966. This action on the part of thedefendants, according to the plaintiffs, cast cloud on the plaintiffs’ right,title and interest over the suit property and thus furnished a cause ofaction for claiming declaration of their ownership over the suit propertyand other consequential reliefs against the defendants in relation to thesuit property. (see para 23 of the plaint)
20. In our opinion, the plaintiffs, therefore, rightly filed the civilsuit on 19.12.1978 within 12 years from the date of attachment orderdated 23.12.1966. The assertion of the right, title and interest over thesuit property by the defendants having been noticed by the plaintiffs forthe first time in proceedings of Section 145 of the Cr.P.C. before theCity Magistrate, they were justified in filing a suit for declaration andpossession. It was, therefore, rightly held to be within limitation by theTrial Court by applying Article 65 of the Limitation Act.
21. In order to decide the question of limitation as to whether thesuit is filed within time or not, the Court is mainly required to see theplaint allegations and how the plaintiff has pleaded the accrual of causeof action for filing the suit. In this case, we find that the plaintiffs satisfiedthis requirement to bring their suit within limitation.
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A22. As mentioned above, the defendants (respondents) lost thesuit on merits on all fronts as they could neither prove their title and northeir lawful possession over the suit property. They, however, succeededin the High Court only on the point of limitation which had resulted innon-suiting the plaintiffs. Since the defendants did not file any crossobjection in the appeal against the adverse findings recorded by the twoBCourts below against them, it is not necessary for this Court to examinethe legality and correctness of those findings in this appeal.
23. In the light of the foregoing discussion, we cannot concur withthe view taken by the High Court on the question of limitation. It islegally unsustainable and hence deserves to be set aside.
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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 aresult, the judgment and decree of the Trial Court is restored in favour ofthe appellants(plaintiffs).D
Ankit Gyan
Appeal allowed.
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