1 S.A.NO.162.89
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 162 OF 1989
1] Ramkrishna Rajaram Raut
2] Vishwanath Rajram Raut
3] Yadav Rajram Raut
All R/o Kanadkhed, Taluka
Hingoli District Parbhani, Now
District Hingoli.
APPELLANTS
1]
ig V E R S U S
Narayan S/o Limbaji Raut,Since
deceased through his L.Rs.
1-a] Smt. Alkabai (widow) w/o Narayan
Raut, Age 70 years Occupation
Household R/o Pain Kali Ta.
Washim District Washim
1-b] Sow Gangabai Ramchandra Thombe
(Daughter) Age 50 years
Occupation Agriculture, R/o
Jabbrum Thombe Post Pardi Asra,
Ta. and District Washim.
1-c] Mahadeo S/o Narayan Raut (Son)
Age 40 years occupation
Agriculture R/o Pain Kali, Ta
and District Washim.
1-d] Gajanan S/o Narayan Raut
( Son )Age 35 years occupation
Agriculture, R/o Washim.
RESPONDENTS
...
Mr.A.M.Dabir,Advocate for Appellants
Mr.A.R.Kale,Advocate holding for
Mr.S.V.Natu,Advocate for respondents
...
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2 S.A.NO.162.89
CORAM : A.V. NIRGUDE, J.
DATED : 28th JANUARY, 2010
ORAL JUDGMENT :
1] When the appeal was admitted in 1989, no
substantial question of law was formulated. Having
heard the learned Advocates appearing for the
parties and having gone through the record
following substantial question would arise for my
consideration-
(1) Whether the suit of the respondent/
plaintiff is barred by limitation ?
2] The respondent/plaintiff filed the suit. He
said that he is owner and possessor of the suit
land (Agricultural land situated at village
Kanadkhed). He said that the suit land was his
ancestral property and during his father’s life
time his father alienated it in favour of the
appellant’s father in the year 1966, without
having legal necessity. He said further that
though property was sold in 1966, his father
remained in possession till his death and
thereafter he cultivated the same till 1980. He
said in the month of May 1980, appellants who are
brothers inter-se dispossessed him forcibly. So,
he brought this suit in the year 1985 for
declaration that the he was owner of the land and
that the alienation made by his father in 1966 in
favour of the appellant’s father was not binding
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3 S.A.NO.162.89
upon him and for possession.
3] The Trial Court initially held that the
respondent did not prove that sale effected by his
father was not binding on him. The Trial Court
also held that the respondent could not prove his
possession till 1980. In other words, the Trial
Court held that in 1966 possession of the suit
land was delivered to the appellant’s father and
since then father of the appellants and appellants
are in possession. In view of these two findings
the Trial Court dismissed the suit.
4] The matter went to appeal court and the
learned Additional District Judge Hingoli held
that the respondent not only proved that the suit
property was his ancestral property but could also
prove that the alienation of the suit property was
not for legal necessity. So, It was held that he
was entitled to get the possession back.
5] Although, the appellants in the pleadings
clearly stated that they are in possession of the
suit land since 1966, both the Courts below did
not frame necessary issue of limitation. Section 3
of the Limitation Act reads as under-
3.Bar of Limitation :(1) Subject to
the provisions contained in sections 4
to 24 (inclusive) every suit
instituted, appeal preferred, and
application made after the prescribed
period shall be dismissed, although
limitation has not been set up as a::: Downloaded on – 09/06/2013 15:33:33 :::
4 S.A.NO.162.89defence.
(2) for the purposes of this Act-
(a) A suit is instituted-
(i) in an ordinary case when the
plaint is presented to the proper
pauper is made; and
(ii) in the case of a pauper, when his
application for leave to sue as apauper is made; and
(iii)in the case of a claim against a
company which is being would up by theCourt, whn the claimant first sends in
his claim to the official liquidator;
(b) any claim by way of a set off, or
a counter claim, shall be treated as a
separate suit and shall be deemed tohave been instituted.
(i) in the case of set off, on the
same date as the suit in which the setoff is pleaded;
(ii)in the case of a counter claim, on
the date on which the counter claim is
made in Court;
(c) an application by notice of motion
in a High Court is made when the
application is presented to the proper
officer of that Court.
6] It is clear from the above provision that,
even though defendant fails to take up specific
defence based on limitation, it is duty of the
Court to frame such issue, if it is found
necessary. The question is whether such issue
ought to have been framed at the trial stage or at
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5 S.A.NO.162.89
least at first appeal stage? As said above, the
facts are so blatant that any one, who would read
the plaint, would question the maintainability of
such suit for want of limitation. As said above,
way back in the year 1966, admittedly the
respondent’s father alienated the suit land to the
father of the appellants, it was through a
registered sale deed. It has come on record that
it is case of the respondent/plaintiff that 10 to
12 years prior to filing of the suit his father
died. The suit is filed in the year 1985, so
approximately the death of respondent’s father
took place some time between 1973 to 1975. The age
of the plaintiff on the date of filing of suit is
shown to be 50 years. So, in the year 1966 his
age was approximately 31 years. During his
majority, if his father effected alienation of the
joint family property, which included his
undivided share and if such undivided share had
come to his share on account of his birth in the
family, it was for him to challenge the
alienation by filing the suit for declaration that
the alienation was bad and not binding on him.
7] The question is what would be the limitation
for such suit? The Article 58 of the Limitation
Act governs such a suit and provides three years
period of limitation from the moment the right to
sue first accrues. As said above, the right to sue
accrued to the respondent on the same date when
his father effected alienation. The respondent can
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6 S.A.NO.162.89
not plead ignorance of the knowledge of the sale
deed because, as said above, the transaction was
through a registered sale deed. It has also come
on record that pursuant to the transaction a
mutation was taken in the revenue record and as
said above, the appellant’s father came in
possession of the suit land. The suit is certainly
not filed within three years, so suit is
hopelessly time barred. The appeal, therefore,
deserve to be allowed. The appeal is allowed. The
Judgment of First Appellate Court is set aside and
suit of the respondent stands dismissed with
costs.
Sd/-
(A.V. NIRGUDE, J.)
MTK/
ok
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