GHEWARCHAND & ORS.versusM/S MAHENDRA SINGH & ORS.

738                     [2018] REPORTS
               SUPREME COURT   11 S.C.R. 738                [2018] 11 S.C.R.


A                          GHEWARCHAND & ORS.
                                         v.
                       M/S MAHENDRA SINGH & ORS.
                          (Civil Appeal No. 5870 of 2015)
B
                              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 in
C
      relation to a property – Trial Court held all the issues including the
      issue of limitation in favour of the plaintiffs and decreed the suit –
      However, the High Court reversed the finding on the issue of the
      limitation and dismissed the suit of plaintiff on the ground of
      limitation, as suit was for declaration and consequential injunction
D     and, therefore, it was governed by the period of 3 years limitation –
      On appeal, held: High Court was factually not correct in observing
      that the suit was filed for declaration and injunction only and ‘not
      for possession’ – The plaint showed that the plaintiffs had also
      prayed for decree of possession of the suit property from the
      defendants – Furthermore, the suit property was also the subject
E
      matter of the proceedings u/s.145 Cr.P.C., where both parties were
      claiming their right, title and interest including possession over the
      suit property against each other, and suit property was attached by
      the City Magistrate by order dated 23.12.1966 – Art. 65 of the Act
      provides limitation of 12 years for filing the suit which is to be
F     counted from the date when the possession of the defendant becomes
      adverse to the plaintiff – Art.65 was applicable and the Plaintiffs
      rightly filed the civil suit on 19.12.1978 within 12 years from the
      date of attachment order dated 23.12.1966 – Thus, order of the
      trial 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 the
      plaintiffs’(appellants) suit against the defendants (respondents)
      was essentially for declaration and consequential injunction and,
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                                         738
GHEWARCHAND & ORS. v. M/S MAHENDRA SINGH & ORS.                            739


therefore, it was governed by the period of three years limitation,        A
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. [Para 13] [742-B-C]
      2. Without going into any factual controversy and the lengthy
pleadings, the High Court was factually not correct in observing           B
that the suit was filed for declaration and injunction only and “not
for possession”. [Para 15] [742-F-G]
       3. Mere perusal of the relief in clause 26 (3) of the plaint
would show that the plaintiffs had also prayed for decree of
possession of the suit property from the defendants. Furthermore,          C
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 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. It is also not in dispute that the City                D
Magistrate vide his order dated 23.12.1966 attached the suit
property. [Paras 16 and 17] [742-G-H; 743-A-B]
      4. 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           E
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        F
65 of the Limitation Act. [Para 20] [743-F-G]
      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5870
of 2015
      From the Judgment and Order dated 04.12.2006 of the High
Court for Rajasthan at Jodhpur in S. B. First Appeal No. 52 of 1997        G
       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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740             SUPREME COURT REPORTS                             [2018] 11 S.C.R.


A            The Judgment of the Court was delivered by
             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)
B     and set aside the judgment and decree dated 30.10.1996 passed by the
      Additional District Judge No.3 Jodhpur in Civil Suit 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
C     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
D     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:
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             “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 Singh does
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             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
G            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
H            the defendants.
GHEWARCHAND & ORS. v. M/S MAHENDRA SINGH & ORS.                                  741
         [ABHAY MANOHAR SAPRE, J.]

       5. Other relief, which this Hon’ble Court may deem fit, be                A
       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        B
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 held
that the appellants are the owners of the suit property; they are entitled       C
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               D
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      E
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 the Limitation Act giving
rise to filing of the present appeal by way of special leave in this Court
by the plaintiffs.                                                               F
       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         G
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
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742             SUPREME COURT REPORTS                           [2018] 11 S.C.R.


A     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 Limitation Act for holding the suit to
      be within limitation because it was filed by the plaintiffs within 12 years
B     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
C     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
D            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
E            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 barred by
             the limitation and, therefore, deserves to be dismissed.”
                                                     (Emphasis supplied)
F
            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).
G
             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
H     suit property was the subject matter of the proceedings under Section
GHEWARCHAND & ORS. v. M/S MAHENDRA SINGH & ORS.                                      743
         [ABHAY MANOHAR SAPRE, J.]

145 of the Criminal Procedure Code, 1973 (hereinafter referred to as                 A
“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. It is
also not in dispute that the City Magistrate vide his order dated 23.12.1966
attached the suit property.
                                                                                     B
      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            C
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         D
and which eventually culminated in passing of an attachment order by
the City Magistrate on 23.12.1966. This 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            E
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            F
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.
                                                                                     G
        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.
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744                SUPREME COURT REPORTS                       [2018] 11 S.C.R.


A             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
      non-suiting the plaintiffs. Since the defendants did not file any cross
      objection in the appeal against the adverse findings recorded by the two
B
      Courts below against them, it is not necessary for this Court to examine
      the legality and correctness of those findings in this appeal.
             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.
C
              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).
D

      Ankit Gyan                                                    Appeal allowed.




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