Smt. Ganga Devi And Ors. vs S.S. Singh And Anr.
2018 Latest Caselaw 3482 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

										      AFR								  Reserved Judgment
 
Court No. - 12
 

 
Case :- SECOND APPEAL No. - 565 of 1981
 

 
Appellant :- Smt. Ganga Devi And Ors.
 
Respondent :- S.S. Singh And Anr.
 
Counsel for Appellant :- Pradeep Chandra, Chandra Bhan Singh, Jai Singh, Manoj Srivastava, Pratap Chandra,Yashpal Chaturvedi
 
Counsel for Respondent :- P.N. Saxena, Ranveer Singh
 
connected with 
 
Case :- SECOND APPEAL No. - 566 of 1981
 

 
Appellant :- Smt. Ganga Devi & Others
 
Respondent :- Sheo Shanker Singh
 
Counsel for Appellant :- Pradeep Chandra,C.B.Singh,Dhiraj Srivastava,Jai Singh
 
Counsel for Respondent :- Ramveer Singh
 

 
Hon'ble Shashi Kant,J.

1. Heard Sri S.N. Yadav Advocate holding brief of Sri Jai Singh, one of the counsel for the appellants and Sri Ramveer Singh, learned counsel for the respondents.

2. Aforesaid second appeals have been filed by the plaintiff-appellants (hereinafter referred to as "appellants") against the judgment and decree dated 13.10.1980 passed by Sri Kripa Shanker, III Additional Civil Judge, Kanpur in Civil Appeal No. 462 of 1977, whereby appeal filed by appellants has been dismissed, while Civil Appeal No. 433/1977 filed by defendant-respondent (hereinafter referred to as "respondent") Sheo Shanker Singh and others has been allowed and judgment and decree passed by the Trial Court has been set-aside.

3. Feeling themselves aggrieved from the aforesaid judgment and decree, the appellants have been preferred aforesaid second appeals with the prayer to allow appeals, set-aside the judgment and decree passed by the Courts below and to decree the appellants' suit in toto with costs throughout alongwith other reliefs which may be deemed fit and proper.

4. Since both the aforesaid Second Appeals have been filed by the appellants against the common impugned judgment and decree and parties in both the appeals are also same. In view of the above, on the request of learned counsel for the parties, both the above appeals have been heard together and being decided by this common judgment.

5. Learned counsel for the appellants contended that :

5.1. The Courts below came to the conclusion that sale deed executed in favour of respondent Shiv Shankar Singh was inoperative and void and sale deed executed in favour of the plaintiff appellant is valid. In these circumstances, Courts below committed an error of law by not decreeing the suit of the plaintiff-appellants for declaration of title and possession.

5.2. Since the appellants' title over the property in suit was fully established and accepted by the Trial Court, in these circumstances, refusal to grant relief of ejectment and possession for which the limitation was 12 years under Article 65 of Limitation Act by First Appellate Court is wrong and illegal.

5.3. The Courts below have committed an error of law in refusing to decree the suit as barred by limitation inspite of the fact that the sale deed in favour of the respondent was held to be inoperative.

5.4. Article 58 of Limitation Act is not applicable in the present case and the Courts below have committed illegality in applying the said provisions and by holding the suit to be barred by time.

5.5. The view of the Courts below that the plaintiff-appellants is not entitled for the benefit of Section 14 of the Limitation Act, is erroneous and contrary to law.

5.6. Since the sale deed in favour of respondent is void abinitio, still the view of the Courts below that the relief for cancellation was not sought, is wholly erroneous and contrary to law.

5.7. The First Appellate Court had misinterpreted and misconstrued the ground no. 7 of the appeal and also committed an illegality in construing the same as an admission of the plaintiff-appellants.

5.8. The view of the First Appellate Court that the plaintiff had admitted that Ram Swaroop was in possession and as such the relief for possession of the house was wrongly granted by the Trial Court is wholly erroneous and based on misreading and misconception of law.

5.9. The view of lower Appellate Court that since the relief of declaration could not be granted, hence the relief for possession and ejectment also could not be granted, is wholly erroneous and contrary to law.

5.10. The Courts below misread the evidence adduced by the plaintiff-appellants and they failed to judiciously appreciate the evidence available on record.

5.11. In view of the above, both the appeals deserve to be allowed and impugned judgment and decree is liable to be quashed.

6. Per contra, learned counsel for the respondent contended that :

6.1. The First Appellate Court has passed impugned judgment and decree after proper appreciation of the evidence and law applicable to the case.

6.2. The impugned judgment and decree passed by First Appellate Court are fully justified and in accordance with law which requires no interference.

6.3. However he has assailed findings of Courts below regarding holding of sale deed dated 30.05.1969 in his favour anti time and illegal as well as holding sale deed executed in favour of original plaintiff valid and submitted that the above findings of Courts below are contrary to the evidence available on record and as such those are wrong, illegal and liable to be set-aside.

6.4. In view of the above, aforesaid second appeals are devoid of merits and liable to be dismissed. Suit of appellants also deserves to be dismissed with costs throughout.

7. I have considered the rival arguments raised on behalf of the parties and carefully perused the record.

8. Brief facts related to these appeals are that predecessor of the appellants Late Sita Ram Singh (herein after referred to as "original plaintiff") filed Civil Suit No. 233 of 1975 against the respondent Shiv Shankar Singh for cancellation of sale deed dated 06.06.1969 executed in his favour and also for possession, stating therein that one Rameshwar Singh was the original owner of plot nos. 91, 49, 66, 70 and 345 of village Kucheta in Khwaja Rampur, Bangar Pargana Bhognipur, District Kanpur alongwith half share of house situated in village Anwan Pargana Bhognipur, District Kanpur (hereinafter referred to as "suit property"). He sold his above property to him (original plaintiff, vide sale deed dated 06.06.1969 for consideration of Rs. 4,000/-. Above sale deed was registered on 18.06.1969 and by virtue of the above sale deed, appellants became owner and in possession of the suit property. When he moved for mutation, one Ram Swaroop, relative of respondents made a false objection on the ground that erstwhile owner Rameshwar Singh has executed an agreement to sale of the above properties to him in June, 1969 and given possession of disputed property after obtaining Rs. 5,000/- from him and he was required to pay only Rs. 2000/- to above Rameshwar Singh. During the mutation proceedings, the defendant-respondent Shiv Shankar Singh (hereinafter referred to as "respondent") also made objection that suit property sold to him on 30.05.1969 by means of a sale deed executed in his favour, which was registered on 20.09.1969. According to original plaintiff, respondent had somehow procured a stamp on which he get sale deed of the above property executed by erstwhile owner Rameshwar Singh on back date, i.e. 30.05.1969 prior to the date of the sale deed executed in his favour. Due to above reasons, the sale deed executed in favour of respondent is void, non operational and liable to be cancelled. In the mutation proceedings, the application of the appellant was rejected and respondent's name was ordered to be mutated. He further stated that after the decision of Commissioner's Court, respondent had forcibly took over possession of the disputed property on 21.04.1972, dispossession from above property caused him loss of Rs. 500/-. In the above facts and circumstances, appellants filed above suit for cancellation of sale deed executed in favour of respondent and for possession of suit property.

9. The respondent Shiv Shankar Singh contested the above suit by filing written statement (paper no. 20 Ka-1/1 to 6) in which he denied the main allegation of plaint. He also stated that erstwhile owner Rameshwar Singh did not execute sale deed in favour of the original plaintiff and he was not the owner of the suit property. He is in possession of suit property sold to them by Rameshwar Singh by means of sale deed dated 30.05.1969. He is legally in possession over suit property and has not caused any damage to appellant. In additional pleas, he challenged valuation of the suit and court fees paid on it. He has also challenged jurisdiction of the Court on the ground that due to suit being declaratory nature and also for possession and damages, the Court has no jurisdiction to try the same as the suit is triable by the Revenue Court. Suit of plaintiff is also barred by limitation. In alternative he has also taken pleas that in case, it is proved that sale deed was executed by Rameshwar Singh in favour of appellants in respect of suit property still same is illegal and invalid because on the alleged date of sale deed in favour of appellant Rameshwar Singh was having no right and interest in the suit property and as such no valid title could be passed to the appellants. The plaintiff was not entitled for any relief and suit is liable to be dismissed with costs.

10. On the basis of pleadings of parties, following issues have been framed :

"1. Whether suit is under valued and court fees paid is insufficient?

2. Whether the court has no jurisdiction to try the suit ?

3. Whether Rameshwar Singh executed any sale deed in respect of property in suit in favour of plaintiff, if so, is it valid ?

4. Whether Rameshwar Singh executed any sale deed in respect of property in suit in favour of defendant as alleged by defendant.

5. Is the alleged sale deed in favour of defendant is invalid and void as alleged by the plaintiff ?

6. Is the suit barred by limitation ?

7. Whether plaintiff is entitled to any damages, if so, to what extent ?

8. To what relief, if any, the plaintiff is entitled ?"

11. To prove his case, original plaintiff Sita Ram Singh has examined himself as P.W. 1 and marginal witness of his sale deed Raghubir Singh as P.W.2. He has also produced sale deed (paper no. 8 A1) executed in his favour, copy of sale deed (paper no. 9 C1) in favour of respondent, Khatauni of 1382-1384-F (paper nos. 12 C1 and 13 C1), copy of judgment of Additional Commissioner dated 21.04.1972 and copy of order/judgment of S.D.O., Bhognipur dated 21.08.1970 in mutation case no. 1403 and copy of application of Ram Swaroop filed in the Court of S.D.O, in the aforesaid mutation case (Exhibit-1 and Exhibit-2 respectively), copy of the statement of Shiv Shankar Singh (paper no. 53 C1) recorded the above mutation case as documentary evidence.

12. While respondent has examined himself as D.W.1 and marginal witness of sale deed Sant Ram Singh as D.W.2. He has also produced sale deed (paper no. 28 A1), executed by Rameshwar Singh in his favour, copy of the order of the mutation Court of S.D.O. Bhognipur dated 21.08.1970 (Exhibit A1), copy of the order of the Additional Commissioner dated 21.04.1972 in the revision of the aforesaid mutation case (Exhibit A2), a copy of list of papers filed (Exhibits- A3), copy of objection of Sita Ram ((Exhibits- A4), copy of application of Rameshwar Singh (Exhibits- A5). The respondent also filed copy of the application of Shiv Shankar Singh (paper no. 41 C1), copy of objection of Shiv Shankar Singh (paper no. 42 C1), copy of written statement of Sita Ram (paper no. 43 C1) all made in the Mutation Case No. 1403 of S.D.O. Bhognipur as documentary evidence.

13. After evaluating the evidence of parties, the Trial Court has decided issue 1 in negative, issue 2 was answered in negative due to being not pressed, issues 3, 4 and 5 were taken together and under these issued Trial Court held that sale deed in favour of the respondent was invalid and void as alleged by plaintiff. Since the respondent had full knowledge of the sale deed in favour of the appellant and he could not be held bona-fide purchaser for value. The sale deed of the appellant was held valid while giving finding on issue no. 3. The Trial Court came to conclusion that reliefs regarding possession and ejectment and damages was not time barred. As per the Trial Court, the plaintiff could not establish damages relating to the house separately therefore, no damages were awarded. However, Trial Court decreed the appellants' suit for half share only in the house and rest of the reliefs were refused.

14. Feeling aggrieved therefrom, original plaintiff Sita Ram filed a Civil Appeal No. 462 of 1977 during pendency of appeal, he died and his heirs have been substituted.

15. Out of impugned judgment and decree, another Civil Appeal No. 433 of 1977 was filed by respondent Shiv Shankar Singh against the appellant Sita Ram Singh. In that appeal also heir of respondent Sita Ram Singh had been substituted after his death.

16. After hearing the parties the First Appellate Court has dismissed the Civil Appeal No. 462 of 1977 filed by the appellants and allowed the Civil Appeal No. 433 of 1977 filed by the respondent Shiv Shankar Singh.

17. Aggrieved by the aforesaid judgment and decree passed by the Appellate Court, the appellants have filed aforesaid second appeals, one against dismissal of their appeal and another against allowing of the civil appeal filed by the respondents with the prayers as stated above.

18. Second Appeal No. 565 of 1981 has been admitted on 02.09.1981 on the following substantial question of law :

		     "1. Which was the proper Article of Limitation Act, 1963, 				which 	applied to the facts of the case ?
 
2. Whether the finding of the Trial Court as affirmed by first Court of appeal that the starting point of limitation was the date when the plaintiff first came to know of the sale deed in favour of the defendant respondent is correct and sustainable in law?
 
3. Whether the Court of appeal has erred in refusing to decree the plaintiff's suit for possessions in-spite of the fact that the sale deed executed by the defendant in favour of the plaintiffs appellants was found to be a valid and proper sale deed ?"
 
19.	While Second Appeal No. 566 of 1981 has also been admitted on the same date and on the above referred substantial questions of law and directed to be connected with Second Appeal No. 565 of 1981.	
 
20.	Now I am proceeding to find out answer of above referred substantial questions of law.
 
	Substantial Question of Law - 1. 
 
21.	This question is regarding proper article of Limitation Act, 1963 in the facts and circumstances of the case. 
 
22.	For ready reference we are quoting hereinbelow various articles of Limitation Act, which are as under :
 
	"Part III - Suits relating to Declarations Schedule
 

 
	56. To declare the forgery 	    Three years      When the issue or an 	instrument issued or registered.			becomes known to the 								plaintiff.
 

 
	57. To obtain a declaration  Three years    	When the alleged 
 
	that an alleged adoption				adoption becomes 		is invalid, or never, in fact, took place.		known to  the Plaintiff.	
 

 
	58. To obtain any other	  Three years	       When the right to sue 	declaration. 						 first accrues. 
 
     
 
	PART V - Suits relating to Immovable Property 
 

 
	65. For possession of    	  Twelve years 
 
    	 immovable property or any 
 
	interest therein based on title. 
 

 
	Explanation - for the purposes of this article -
 

 
(a) Where the suit is by a remainder-man, a reversionary (other than a landlord); or a devisee the possession of the defendant shall be deemed to become adverse only when the estate of the remainder man, reversionary or devisee, as the case may be falls into possession; 
 

 
(b) Where the suit is by a Hindu or Muslim entitled to the possession of immovable property on the death of a Hindu or Muslim female the possession of the defendant shall be deemed to become adverse only when the female dies. 
 
(c) Where the suit is by a purchaser at a sale in execution of a decree when the judgment-debtor was out of possession at the date of the sale, the purchaser shall be deemed to be a representative of the judgment-debtor who was out of possession. 
 

 
	Part VII - Suits relating to tort.
 

 
	87. For compensation for       Three years    The date of the trespass.
 
     	trespass upon immovable property."
 

 

23. It is clear from the above referred Articles related to suit relating to declarations that in all the above Articles 56, 57 and 58 Limitation prescribed is of three years as in the present case, plaintiff claimed forgery in respect of an instrument registered by stating that above sale deed dated 30.05.1969 has been prepared after obtaining ante dated stamps of the date, which is earlier to the sale deed dated 06.06.1969 of the plaintiff. In these circumstances, proper Article applicable to the facts of the case is Article 56 and not Article 58 as held by the Courts below.

24. While for the purpose of possession of immovable property or any interest therein based on title is Article 65 which prescribed limitation of 12 years and for compensation for tresspass upon immovable property is Article 87 which prescribed limitation of three years from the date of tresspass as is evident from above referred Articles 65 and 87.

25. This question is answered accordingly.

Substantial Question of Law- 2.

26. This question is relating to the correctness and sustainability of findings of Courts below, in which it is held that the date when the plaintiff first come to know above sale deed in favour of the respondent, is starting point of limitation.

27. There is no dispute that starting point of limitation is the date when plaintiff first time came to know about sale deed allegedly executed in favour of the respondents. This case is also not exception of the above concept and as such finding of the Courts below in this regard could not be termed wrong and illegal, but its sustainability will depend on the fate of claim of appellants regarding exclusion of time spent in earlier proceedings which were ultimately terminated on the ground of lack of jurisdiction, under Section 14 of Limitation Act, 2005, which reads thus :

"14. Exclusion of time of proceeding bona-fide in court without jurisdiction. --

(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 a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.

(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.

(3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule 1 of that Order where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature. Explanation.-- For the purposes of this section,--

(a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted;

(b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding;

(c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction."

Nature and scope of Section 14 of Limitation Act.

28. In Uppala Subbaiah vs. Chitrala Narsimloo, AIR 1956 Hyderabad 161, the Court said that :

" 8. .... The principle underlying section 14 Limitation Act is to protect against the bar of limitation a person honestly doing his best to get his case tried on the merits but failing through the Court being unable to give him such trial. .....".

29. In Azam Jung vs. Mohd. Abdul Razzack, AIR 1957 Hyderabad 4, the Court said that :

"2. The short point to be determined in this case is as to whether the plaintiff could avail himself of Section 14 of Limitation Act. To entitle the plaintiff to the benefit of the terms of Section 14 Limitation Act, it is sufficient to show that he prosecuted the suit bona fide with due diligence. It was urged by the learned counsel for the petitioner that there was considerable doubt as to whether the suit land was within the municipal limits of Secunderabad and the notifications issued by Government in this regard were not precise.

It was therefore urged that as it was not clear as to within what Municipality this particular area came the plaintiff on the legal advice tendered to him then filed the suit initially in the City Civil Court and later on when he was informed that the land was within the jurisdiction of the Secunderabad Court he presented it in the District Court at Secundereabad. In support of this contention the petitioner has filed an affidavit. Section 14, sub section (1) Limitation Act is as follows: .....

It would appear from the wording of the section that the Court is not given any discretion but the litigant is entitled as of right, to exclude the period spent in infractuous proceedings where he satisfies the Court that he was prosecuting the suit bona fide with due diligence. In the instant case the mistake that has been made is he filing of the suit in the Court which had no territorial jurisdiction and this mistake had been occasioned by the advice tendered to the petitioner by his legal adviser.

It may be straightway pointed out that a mistake made unintentionally would be taken as having been made in good faith. Where therefore from a bona fide mistake of fact the litigant has been misled into litigation in a wrong Court such party could avail himself of Section 14, Limitation Act. The question would be, did the plaintiff sue in the wrong Court knowingly.

A person would be said to be suing in a wrong Court knowingly where for example he deliberately undervalues the subject matter of the suit to save court fee or for any other reason. This is not a case like that. The other ingredient necessary for relief under Section 14 Limitation Act is that the suit should have been prosecuted in good faith. A person cannot be said to be acting without good faith where he relies upon the advice of a person whose status entitled him to give advice to litigants. As has been observed above, in this case the petitioner wholly relied upon the advice of his legal adviser.

It was argued that the objection to the jurisdiction of the Court was raised at the earliest stage in the City Civil Court where the plaint was presented for the first time. Although the objection was taken by the defendant the Court did not give any decision but the matter was pending in the lower Court for a long time and undoubtedly the plaintiff could not be held responsible for the delay in the Court disposing of the case. If a finding had been given early and the plaint returned immediately thereafter the plaintiff could have presented it in the proper Court early. This objection in my opinion is of no avail."

30. In Firm Bansi Baldeo Pershad and another vs. Firm Alopi Pershad and Sons Ltd., AIR 1963 Punjab 556, the Court said that :

" 7. .... I am not unmindful of the position that normally speaking section 14 Indian Limitation Act should be liberally construed and trials on merits of controversies should not be shut out on unsubstantial or technical grounds. I am further aware that unlike section 5 of the Limitation Act, section 14 is couched in language which appears prima facie to be mandatory for form and, therefore, if a plaintiff succeed in suing good faith in instituting a suit in a Court without jurisdiction and due diligence in prosecuting the same, then he is entitled as of right to claim exclusion of the time spent in diligent prosecution of the said suit. .... "

31. In Lokanath Biswal vs. Union of India, AIR 2008 Orissa 33, the Court said that :

" 9. ..... Section 14 of Limitation Act contains a general principle based on justice, equity and good conscience and the said principle should be applied without strict regard to the period of limitation prescribed. A person prosecuting under a mistake of law is entitled to the benefit of Section 14 whereas while dealing with a petition filed under Section 5 of Limitation Act, a Court has to be satisfied that there was reasonable ground for approaching the Court late and that each day of delay is more or less explained. Thus exclusion of time under Section 14 of Limitation Act is mandatory whereas the Court powers under Section 5 of the Limitation Act is discretionary. ..."

32. In Raghunath Das. vs. Gokal Chand and another, AIR 1958 SC 827, the Apex Court said that :

" 10. ... The period of limitation fixed by Art. 120 is six years from the date when the right to sue accrues. In order, therefore, to be within the period of limitation the plaintiff claims to exclude the period November 15, 1939, to March 15, 1945, spent in the execution proceedings. Section 14 (1) of the Indian Limitation Act runs as follows: .....

The respondent contends that the above section has no application to the facts of his case. We do not think that such contention is well-founded. The execution proceedings initiated by Raghunath Das were certainly civil proceedings and there can be no doubt that he prosecuted such civil proceedings with due diligence and good faith, for lie was obviously anxious to have his share of the G. P. Notes separately allocated to him. He lost in the execution court but went on appeal to the High Court where he succeeded before a Single Judge, but eventually he failed before the Division Bench which reversed the order the Single Judge had passed in his favour. Therefore, there can be no question of want of due diligence and good faith on the part of Raghunath Das. In the next place the section excludes the time spent both in a court of first instance and in a court of appeal. Therefore, other conditions being satisfied, the entire period mentioned above would be liable to be excluded. The only questions that remain are (1) whether the proceedings were founded upon the same cause of action and (2) whether he prosecuted the proceedings in good faith in a court which for defect of jurisdiction ",as unable to entertain it. The execution proceedings were founded upon his claim to enforce his rights declared under the decree upon the award. The cause of action in the present suit is also for enforcement of the same right, the only difference being that in the former proceedings Raghunath Das was seeking to enforce his rights in execution and in the present instance he is seeking to enforce the same rights in a regular suit. There is nothing new that he is asking for in the present suit. That he prosecuted the execution proceedings in the Subordinate Court as well as in the High Court in good faith cannot be denied, for the Single Judge of the High Court actually upheld his contention that the court had jurisdiction to entertain his application. The execution proceedings failed before the Division Bench on no other ground than that the executing court had no jurisdiction to entertain the application, because the decree sought to be executed was a nullity having been passed by a court which had no jurisdiction to pass it. Therefore, the defect of jurisdiction in the court that passed the decree became, as it were, attached to the decree itself and the executing court could not entertain the execution proceeding on account of the same defect. The defect of jurisdiction in the executing court was finally determined when the Division Bench reversed the decision of the Single Judge who had entertained the execution proceeding. In our opinion Raghunath Das is entitled to the benefit of s. 14 (1) of the Indian Limitation Act and the period here in before mentioned being excluded, there can be no doubt that the suit was filed well within the prescribed period of limitation and the judgment of the Division Bench cannot be sustained. ...."

(Emphasis added by this Court)

33. In Lal Bihar Lall and Anr. vs. Bani Madhava Khati and Ors., AIR 1949 Patna 293 (F.B.), after considering large number of judicial pronouncement on the subject, the Court said that :

" 7. In Radhakishun v. Firm Srinivas Ram Kumar, A.I.R. 1944 Pat. 225, (to which the fats of the present case are closely analogous) there was no reason to doubt that the plaintiffs had prosecuted the former proceeding with due diligence and in good faith. Order 21 Rule 103, no doubt provides that where an order is made under Rule 98.99 or 101, the party against whom the order is made may institute a suit to establish the right with he claims, but, subject to the result of such suit, if any, the order shall be conclusive. Instead of filing a suit the plaintiffs had appeared against the order of the executing Court. It is manifest that the plaintiffs had acted under mistake of law. But that mistake is bona fide is supported by the circumstance that the High Court admitted the appeal and issued notice. In the order sheet it is indeed stated that if it is found at the time of hearing that no appear lies, the application might be treated as an application for revision. On appellants' behalf it was pleaded that they were misled by wrong advice given bond fide by their lawyer. In my opinion, such a plea, if established, would entitle the plaintiffs to claim the benefit of Section 14. This view is supported by high authorities. In Brij Inder Singh vs. Kansin Ram, A.I.R. 1917 P.C. 156 the aggrieved party had presented an application for review of judgment within the ordinary period limited for appealing. Since review was not the proper remedy for abatement, the proceeding by way of review instead of by appeal was a mistake in law. Lord Dunedin nevertheless held that the judicial discretion given by Section5 Limitation Act should be exercised and the that the time occupied by an application in good faith for review, although made upon a mistake view of the law, should be deemed as added to the period allowed for pressing the appeal. Again in Sunderbal vs. Collector of Belgaum A.I.R. 1918 P.C. 135 the Judicial Committee held that the fact that an appellant had acted on mistaken advice as to the law in appealing to the High Court did not preclude him from showing that it was owing to his reliance on that advice that he had not presented the appear to the Court of the District Judge within the period of limitation. In Radhahishun v. Firm Srimvas Ram Kumar MANU/BH/0053/1943 as also in the pre-sent case the admitted facts establish that the plaintiff had prosecuted the previous proceeding in good faith and with due diligence.

8. It is next necessary to investigate whether previous proceedings in the High Court were abortive "for defect of Jurisdiction or other cause of like nature". It is obvious that in dismissing the appeal or civil revision the High Court was not acting from any defect of jurisdiction. But the question is -was the High Court unable to entertain the application from "other cause of like nature" to defect of jurisdiction? Before construing the phrase, it is of importance to bear in mind the essential object of Section 14, and the principle which underlies it. The principle is that the bar of limitation should not affect a person honestly doing his best to get his case tried on merits but falling through the Court beng unable to give him such a trial. The principle is clearly applicable not only to cases in which a man brings his suit in the wrong Court, that is, a Court having no jurisdiction to entertain it but also where he brings the suit in the wrong Court in consequence of a bona fide mistake of law or defect of procedure. It is moreover established by the authorities that given good faith and due diligence, a cause is not prevented from being a like nature to defect of jurisdiction merely because it was in the plaintiff's own power to avoid or resulted from his own act or from a bona fide mistake of law or procedure which prevented the 'Court' in limine from entertaining the suit. In Deo Prasad Singh v. Pertap Kairee 10 Cal. 86 a Division Bench of the Calcutta High Court held that dismissal of a suit on the ground of misjoinder of cause of action was a cause of like nature to defect of jurisdiction. The learned Judges observed that the test was not whether the cause was one within the plaintiff's own power to avoid because it was equally in plaintiff's own power to avoid suing in a Court which for defect of jurisdiction was unable to entertain the suit. In the Full Bench case of Brij Mohan Das. Manu Bibi 19 All. 348 the plaintiff bona fide believed that having regard to the value of the property his uit was not within the jurisdiction of the Munsif and brough his suit in the Court of the Subordinate Judge of Allahabad, Subsequently, the Subordinate Judge held that the suit should have been valued with reference to he amount of the decree sought to be executed and not with reference to the value of the property sought to be sold. He, therefore, returned the plaint to the plaintiff to be presented to the proper Court. The Full Bench held that the maxim Ignorantia legis neminem excusat was not applicable to the case. They held that where a plaintiff had prosecuted his suit in a wrong Court in consequence of a bona fide mistake of law he was entitled to the benefit of Section 14, Limitation Act.

9. In Yepuri Venhamma v. Tabbisetii Parthasarathis and Bros A.I.R. 1926 Mad. 1081 a prior suit for a declaration of title was dismissed as not maintainable because in prosecuting the suit court be deducted under Section 14, Limitation Act, as the defect was of a like nature with defect of jurisdiction. In Hem Chunder Chowdhary v. Kali Prosumno Bhaduri 30 I.A. 177 the facts were that in 1890 a suit was brought against certain talukdars claiming to enhance the rent and to recover rent at an enhanced rate for a particular year. The first prayer was allowed but the second claim was rejected upon the ground that it was premature. Five years thereafter the plaintiff brought a suit to recover, inter alia, rent at the enhanced rate for the same year. The Subordinate Judge held that this claim was barred by res judicata. In appeal, the High Court did not accept this view but held that it was barred by limitation. The Judicial Committee held that there was no bar of limitation. They observed :

In the opinion of their Lordships the proceedings in the earlier suit stayed the operation of the law of limitation and as the appellant claimed the arrears of 1298 in that suit, but his claim was then disallowed as premature, he is now entitled to the benefit of the decree for enhancement and to recover the arrears at the enhanced rated.

10. In Marasimma v. Muttayan 13 Mad. 451, the obligees interest under a hypothecation bond had vested in six person, of whom three brought a suit in District Court and three brought a similar suit in a Munsif's Court to recover with interest their due shares of the sum secured. The former suit was dismissed as not being tenable and the latter was withdrawn. The present suit was brought by all six persons. The High Court held that in computing the time within which the plaintiffs had to sue, the time occupied by them in prosecuting the former suits should be deducted. In Ganpatrao Sultanrao v. Anandrao Jagdeorao A.I.R. 1920 Bom. 208 the plaintiff had filed a suit against the defendant to recover excess amount levied in execution. The Court dismissed the suit on the ground that the applicant's proper remedy was to apply to the execution Court. Thereupon the plaintiff applied to the execution Court to obtain refund of the money recovered in excess from him. The learned Judges held that the application for refund was property made under Section 47 Civil P.C., to the executing Court and that the application was not time barred because the time taken in prosecuting the previous suit should be deducted under Section 14, Limitation Act. In Keshori Mal v. Jagdish Narayan MANU/BH/0232/1923 an application for execution was dismissed on the ground that the prayer for execution of the decree was joint with a prayer which related to relief in another decree and which the Court thought that it is not competent to grant. In a second application to execute the decree, Mullick and Bucknill JJ., held that the period spent in prosecuting the previous application should be deducted under Section 14, Limitation Act."

(Emphasis added by this Court)

34. In Syed Ahmed vs. Qadir Unnissa Begum, AIR 1954 A.P. 225, the Court said that :

" 2. The question for determination in this appeal is whether the word "Court of appeal" is wide enough to include a revisional court and whether prosecuting a revision in the High Court against an adverse order in a claim petition could be said to be prosecuted in good faith in a Court which from defect of jurisdiction or other cause of a like nature is unable to entertain it. The learned advocate for the Appellant has cited before us the case of - Lal Bihari Lall v. Bani Madava MANU/BH/0068/1949: AIR 1949 Pat 293 at P. 295 (FB) (A) and Venkataswami v. Sara Bai MANU/TN/0071/1943 : AIR 1943 Mad 633 (B), in support of his contention that the time spent in pursing the remedy by way of revision before the High Court ought to be allowed in computing the period of limitation for a suit filed under Order 21, Rule 63.

In the case of - Ramdutt Ramkissen Dass v. E.D. Sassoon and Co. MANU/PR/0126/1929 : AIR 1929 PC (C), their Lordships of the Privy Council observed that:

In Indian litigation it is consistent with the experience of their Lordships that the time necessary for the decision in a suit may be of much longer duration than one is accustomed to in the Courts of Great Britain. Hence the necessity for some provision to protect a bona fide Plaintiff from the consequence of some mistake which had been made by his advisers in prosecuting his claim.

In that case their Lordships allowed time spent before arbitrators under Section 14, Limitation Act. In the Full Bench judgment in - MANU/BH/0068/1949 : AIR 1949 Pa 296 (A)', after an exhaustive review of the case law it was observed:

The principle is that the bar of limitation should not affect a person honestly doing his best to get his case tried on merits but failing through the Court being unable to give him such a trial. The principle is clearly applicable not only to case in which a man brings his suit in the Wrong Court, that is, a Court having no jurisdiction to entertain it, but also where he brings the suit in the wrong Court in consequence of a bona fide mistaken of law or defect-' of procedure. It is moreover established by the authorities that given good faith and due diligence, a cause is not prevented from being of a like nature to defect of jurisdiction merely because it was in the Plaintiff's own power to avoid or resulted from his own act or from a bona fide mistake of law or procedure which prevented the Court in limine from entertaining the suit.

3. In that case also the suit was filed under Order 21 Rule 63 after a revision petition against an order under Order 21 Rule 58 Code of Civil Procedure had been rejected. It was held that the period spent by the Plaintiff in preventing his abortive civil revision petition should be allowed under Section 14, Limitation Act in computing limitation. The principle that time spent by the litigant to pursuing a remedy which is open to him should be allowed in computing the period of limitation is implicit in Section 14, Limitation Act which ought to be construed liberally.

This is the trend of decisions in the other Indian High Courts where it has been observed that a cause of like nature need not be always one which the Plaintiff could have avoided, because it is equally in the Plaintiff's own power to avoid suing in a Court without jurisdiction. Merely because it was in the Plaintiff's own power to avoid, or the dismissal resulted from his own act or from a bona fide mistake of law or procedure, it cannot be said that the cause is not prevented from being of a like nature to defect of jurisdiction, provided there is good faith and due diligence.

This is evident from the observations of several pronouncements of their Lordships of the Privy Council to which reference has been made in the Full Bench judgment of the Patna High Court referred to above. We do not, therefore, propose to deal with all these cases as it would merely be a repetition. It will, however, be sufficient to serve that an examination of the case law shows that the words "other cause of like nature" occurring in Section 14 has been treated as being wide enough to cover the case where a litigant is bona fide litigating rights but has been unsuccessful in obtaining them.

In-- Hurro Chunder Roy v. Shoorodhone Debia 9 WR 402 (D) Peacock, C.J. Was of the opinion that there was no difference between not having power by law to decide upon a question and being unable for want of jurisdiction to decide upon it and that at all events not having power or authority by law was a cause of a like nature with defect of jurisdiction.

A Full Bench of the Labore High Court consisting of Harries C.J., Abdur Rahman and Mahajan JJ. in - Jai Kishen v. Peoples Bank of Northern India AIR 1944 Lah 136 (E), held that if the words "or other cause of like nature" are read alongwith the expression "is unable to entertain" they would denote that the defect must be of such a character as to make it impossible for a Court to entertain the suit or application either in its inception or at all events as to prevent it from deciding it on merits. It cannot be denied that a Court of revision is precluded from deciding any question on merits and at any rate it is only limited to the scope of Section 115, Code of Civil Procedure.

Somayya, J., in 'MANU/TN/0071/1943 : AIR 1943 Mad 633 (B)', dealing with a similar question namely, whether the time spent in prosecuting the proceedings in revision against an adverse order under Order 21, Rule 58 observed:

As it was the practice of the Madras High Court to admit revisions against claim orders passed under Order 21, Rule 58, Code of Civil Procedure it could not be said that the decree holder had not acted bona fide and in good faith in filing the revision petition against the claim order especially when the revision was admitted by the High Court. Section 14 (1), Limitation Act, therefore, applied and the time taken in prosecuting the revision petition, i.e., the time between the date of its filing and the date of its dismissal should be deducted in computing the period of limitation for the suit."

35. Hon'ble Apex Court and other High Courts held in their judgments following proceedings as another civil proceedings for the purpose of Section 14 of Limitation Act. :

1. Proceedings before Writ Court - In the case of J.M. Bhansali and Ors. vs. The State of Madras and Ors., AIR 1968 Mad. 373. (Para 2 and 3).

2. Proceedings before Arbitrator - In the case of United India Insurance Co. Ltd. v. J.A. Infra Structure Pvt. Ltd.(Para 12).

3. Proceedings before Consumer Courts - In the case of Saushish Diamonds Ltd. vs. National Insurance Co. Ltd., (1998) 8 SCC 357 (Para 2).

4. Proceedings before Registrar Co-operative Societies - In the cases of Thakur Jugal Kishore Sinha vs. Sitamarhi Central Co-operative Bank Ltd. and Anr., 1967 Cri. LJI 380 (Para-13) and in Defence Colony Co-operative Housing Society Ltd. Bangalore vs. Lt. Col. B.J. Shantharaj and another, AIR 1998 Kar. 20 (Para 32).

5. Proceedings before Collector under Redemption of Mortgages (Punjab) Act - In the case of Pritam Kaur vs. Sher Singh, (Para 14).

6. Proceedings before Deputy Commissioner of Labour (Appeal) - in the case of P. Sarathy vs. State Bank of India (Para12).

7. Proceedings of miscellaneous remedy - in the case of Etasseri Munootta Mangalath IIIath Kesavan Nambudri and Ors. vs. Puthusseri Theva Amma and Ors., AIR 1938 Mad 41 (Para 2).

36. Even proceedings before Revenue Court are held on other proceedings of civil nature and eligible under section 14 of Limitation Act for excluding of time consumed in those.

37. In Mt. Ananti vs. Chhannu, AIR 1930 All 193 (FB) and in Second Appeal No. 28 of 1952 (Yasin Mohammad vs. Mirza Ahsan Beg) decided on 17.11.1953.

38. It is settled law that time consumed in pursuing the remedy of revision will also be excluded under Section 14 of Limitation Act as has been held in following cases :

1. Lal Bihar Lall and Anr. vs. Bani Madhava Khati and Ors, AIR (1949) Patna 293 (F.B.) (Para 11)

2. Chhuttan Lal v. Dwarka Prasad, AIR 1938 All 78,(Para 2)

3. Syed Ahmed vs. Qadir Unnissa Begum, AIR (1954) A.P. 225 (Para 6)

4. M. Dorrayya and another vs. Sri Baleshwarswami Varu and Sri Venugopalswamy Varu a Deity Reptd. by its Trustee A. Adinarayana Murty and Anr., AIR (1966) A.P. 259. (Para 3).

5. Raghubir Jha vs. State of Bihar and Ors., AIR (1986) SC 508 (Para 2).

39. Moreover, Section 14 (2) of Limitation Act, itself provides exclusion of time consumed in pursuing the remedy in a Court of first instance or of appeal or revision while counting period of limitation be excluded.

40. Though mutation proceeding is not title suit but question of title is also involved in that and name of the person having no title could not be mutated on the subject matter. The original plaintiff of this case asserted his title and right on suit property and respondent also did so. The plaintiff failed due to his sale was of subsequent date and respondent sale deed was executed earlier but neither mutation Court nor Additional Commissioner Court considered his objection due to lack of jurisdiction.

41. It is apparent from the perusal of the record that after registration of sale deed dated 06.06.1969 executed in his favour by original owner Rameshwar Singh, original plaintiff Sita Ram Singh has filed application for mutation of his name on the agricultural land of suit property in which after issue of proclamation Ram Swaroop has filed objection making his claim and possession over the disputed land on the basis of agreement of sale in his favour by Rameshwar Singh. However after filing of objection he has not contested the case, meanwhile respondent Shiv Shanker Singh also filed mutation application for entry of his name over the disputed land on the basis of sale deed dated 30.05.1969 in his favour by above Rameshwar Singh. Above mutation applications have been decided by S.D.O. Bhoganipur vide his judgment and order 21.08.1970 (paper nos. 29 A and 30 A), whereby he has ordered that the name of respondent Shiv Shankar Singh be recorded in place of the vendee on the agricultural land of Khoja Rampur in question. Similarly, name of Sita Ram Singh be recorded over Khata No. 104 of Village Kueheta in place of vendor. He also observed in his order that much has been said against the sale deed 30.05.1969 as regards on merits but it is of no use to discuss the matter on the merits of the sale deed as it is beyond the jurisdiction of the Court.

42. The revision filed against thereof has also been dismissed vide judgment and order dated 21.04.1972 holding that :

" .... He had also drawn my attention to the observation to the learned lower court that it is beyond the jurisdiction of a mutation Court to find out the actual date of execution what the learned lower court meant to right was that when a document is alleged to have been executed on a specific date then for these summary proceedings that date should be presumed to be correct. As the sale deed in favour of Sheo Shankar is earlier point of time, then the sale deed in favour of Sita Ram and order of the learned lower court was perfectly justified and calls for no interference in revision."

43. The Trial Court in its impugned judgment and order held in respect of limitation at page 11 to 13 as follows :

".... Thus the crux of the whole case law discussed above is that the person who had bonafidely in good faith contested in proceedings with due care and attention can be allowed to take the benefit of section 14 of the Limitation Act to discount the period spent by him in contesting such proceedings. The due care and attention on the part of the partly while contesting the former proceeding is necessary condition to give him the benefit of section 14 of Limitation Act. Now it has been to be seen whether the plaintiff had bonafidely contested the mutation proceedings with clearly informed the existence of the sale deed of the property in suit in his favour. On 13.10.69 defendant had filed the actual original sale deed in the mutation case as appears from the copy of the list of the papers filed before the mutation court (paper no. 31C1 Ex.A3). The Naib Tahsildar in his report dated 30.03.69 copy of which is paper no. 25 C1 Ex.1 has specifically pointed out that the plaintiff should have gone to civil court to challenge the validity of the sale deed in favour of the defendant. The S.D.O. Bhognipur in his final order dated 21.08.70 paper no. 29 C1 has clearly held that it is no use of discuss the matter on the merits of the sale deed as it is beyond the jurisdiction of his court. His finding has been upheld by Additional Commissioner in revision. Thus it was clearly pointed out by Naib Tahsildar and S.D.O. Bhognipur in his report and order respectively dated 30.3.69 and 21.8.70 that the validity of the impugned sale deed cannot be adjudicated upon the mutation case. Now there was no reason to wait further to file the suit for cancellation of document in the civil court after the final order dated 21.8.70 of the S.D.O. Bhoginpur, Plaintiff cannot be said to have contested the revision bonafidely with due care and attention without filing suit for cancellation. In the circumstances of the case at the most plaintiff can be allowed benefit of section 14 of Limitation Act for the period upto 21.8.70 when the S.D.O. Finally held that the adjudication upon merits of the sale deed is beyond his jurisdiction and the plaintiff then should have filed the suit for declaration or cancellation within three years from the date of the order of S.D.O. That is upto 21.8.73 but plaintiff has filed this suit on 4.2.75 long after the expiring of prescribed period for filing the suit for declaration. Thus he held that the plaintiff's suit for relief 'Aa' for declaring the sale deed in question to be void and inoperative in time barred under Section 58 of Limitation Act. As regard the reliefs 'ba' and 'sa' for possession of the property in suit after ejectment and damages, the period prescribed for filing the suit is 12 years under the limitation Act. Obviously the suit has been filed within 12 years from the date of taking over the possession of property in suit by defendant and date of sale deed executed in favour of the plaintiff whereby be obtained right, title and interest in the property in the property in suit. Thus I hold the suit regarding the relief 'ba' and 'sa' relating the possession, ejectment damages is not time barred.

Issue no. 6 is decided accordingly."

44. While the First Appellate Court in its impugned judgment and order held in respect of limitation at page 10 to 13 as follows :

"The learned trial court was justified in emphasizing on that point. With this discussion of the evidence of both the parties I come to the conclusion that the sale deed in favour of Sheo Shanker Singh was executed later on and the date 30th May ,1969 was wrongly shown in the sale deed in favour of Sheo Shanker Singh .On this point I confirm the findings of the learned trial court.

Now the another importance question is about the limitation .The learned trial court has exhaustively dealt with this point in it's judgement. A suit for declaring a document could be filed within the period of three years after the date of knowledge. The knowledge of the sale deed in favour of Sheo Shanker Singh could be imputed to be prior to 21 April 1972.It was on this date that the Additional Commissioner has delivered his judgement. It was observed that the suit for cancellation of the deed could be filed in the Civil Court. The copy of the judgement on record is Ext. A-2.The suit was filed on 22 April ,1975. One day after expire of the period of limitation .On record there are other circumstances also which shows that Sita Ram could have knowledge of the sale deed in favour of Sheo Shanker Singh even earlier as shown in the copy of the objection filed by Sheo Shanker Singh in the mutation application moved by Sita Ram in the court of the Pumkharaya, Kanpur. The statement of Sheo Shanker Singh was recorded by S.D.M. Bhognipur and the judgement was delivered on the basis of the evidence on record by the S.D.M. On 21st August 1970 so the knowledge of the sale deed could be ,1970.The suit therefore for declaring the sale deed of the Sheo Shanker Singh void is time barred. On that point also I confirm the findings of the learned trial court. My attention has been drawn to the benefit of sec 14 of the Indian Limitation Act .The learned trail court had discussed in his judgment the total circumstances which dis-entitled Sita Ram Singh to get the benefit of this provision protection of this provision of law it was necessary that proceedings were conducted with due negligence and the suit should have been for the same cause of action .The proceedings before the revenue court were mutation proceedings which are summary in nature .The suit for cancellation or declaring the sale deed to be void are different from mutation proceedings having different cause of action .Further when the Revenue Courts emphasized that the suit for cancellation of the sale deed ought to have been obtained from the civil courts,there was no doubt left that Sita Ram Singh ,came to know propriety to move civil courts which he did after much time on 22nd April ,1975.

Consequently I come to the conclusion that the section 14 of the Limitation Act is not available to him .The learned trial court was also justified in taking that view."

45. It is clear from the above referred relevant portions of judgments of Trial Court and Appellate Court on the point of limitation that Trial Court find justification for excluding time in calculation of the limitation only upto decision of S.D.O. Bhognipur, which was dated 21.08.1970 and as such he held that suit was expected to be filed within three years for declaring the sale deed in question to be void and inoperative under Section 58 of Limitation Act upto 21.08.1973 but it has been filed on 04.02.1975 long after the above date as such suit for relief 'Aa' is time barred. However, Trial Court has decreed suit of appellant for possession of half portion of house.

46. It is also clear from the above referred relevant portion of judgment of First Appellate Court that contrary to the record it has found that suit has been filed on 22.04.1975 one day after limitation (since Additional Commissioner has decided the revision filed by the plaintiff on 21.04.1972 and period of three years from that date complete on 21.04.1975).

47. While it is evident from the predeceasing para 40 that finding of First Appellate Court regarding filing of Original Suit on 22.04.1975 after three years of one day from the date of judgment and order of Revisional Court i.e. 21.04.1975 and holding the suit of appellants barred by time while the perusal of order sheet of Trial Court (2 Ka 2/1 to 2) reveals that present suit was filed on 04.02.1975 and thereafter dates 24.02.1975, 25.02.1975, 12.03.1975, 17.03.1975, 24.03.1975, 10.04.1975, 22.04.1975, 23.04.1975 etc. have been fixed in it. Even the Trial Court has mentioned the date of filing of suit 04.02.1975 in its judgment. As such, finding of First Appellate Court about filing of suit on 22.04.1975 is wrong, erroneous, against the evidence and material available on record and as such it is not sustainable in the eyes of law and liable to be set-aside.

48. Now it has to be seen that whether original plaintiff has prosecuted the earlier proceedings in good faith and with due diligence.

49. Original plaintiff has stated in para 18-A of the plaint as follows :

Þदफा 18 अ.- यह कि eqn~nbZ अदालत eky में नेक नियती से यह सही तौर पर (अपठनीय) करते हुए कि अदालत eky बयनामों के बारे में फैसला कर सकती है मुकदमा yड़ता रहा और जो वक्त इस मुकदमा में खर्च हुआ यानी अक्टूबर सन् 69 ई0 से 22 अप्रैल सन् 72 ई0 तक आखिरी तारीख फैसला हस्व दफा 14 कानून मियाद के फायदा पाने का eqn~nbZ मुश्तहक है और इस तारीख पर दावा अन्दर मियाद है। ß

50. Above para is replied by the respondent in para 19 as follow :

"That para -18 A of the plaint is not admitted."

51. In his evidence original plaintiff as P.W.1 has stated that :

" 6. जब तक शिव शंकर ने दाखिल खारिज की दरखास्त नहीं दी तब तक रामेश्वर ने मेरे मुकदमें में उजरदारी नहीं की दाखिल खारिज के मुकदमे मैं हार गया मैंने अपील किया। अपील में यह फैसला हुआ कि दस्तावेजों के बारे में अदालत दीवानी फैसला करेगी तब मैंने दीवानी में दावा किया। इससे पहिले में यह समझता था कि अदालत eky से ही मेरा फैसला होगा अतः दावा दायर दीवानी नहीं किया। "

52. But surprisingly no cross-examination has been made from him on the above points. As such, his testimony on the above points is unchallenged and uncontroverted. Moreover, respondents have also said nothing to controvert the above facts in his evidence as D.W.1.

53. In these circumstances, I am of the view that earlier proceedings by the original plaintiff before the Revenue Courts were initiated and prosecuted bonafidely and with due diligence.

54. There is concurrent findings of Courts below regarding validity of sale deed executed in favour of original plaintiff and illegality and invalidity of sale deed executed in favour of respondent.

55. Though learned counsel for the respondent challenged the findings of Court below during course of arguments but despite repeated questions of the Court, he could not show any illegality or irregularity in it.

56. I have also gone through the findings of Courts below in respect of validity of sale deeds in favour of original plaintiff as well as in favour of respondent. But I find no any irregularity, infirmity and illegality in those rather they are strictly in accordance with law and based on the evidence available on record.

57. In Ramaswamy Kalingaryar vs. Mathayan Padayachi, AIR 1992 SC 115, the Court said that :

" 3. .....The High Court had thus no jurisdiction either to reassess the evidence or without reassessing as such find any infirmity in it. The measure of proof is within the domain of the two Courts of fact in the hierarchy. Sufficiency of proof can be no ground for the High Court to interfere in a finding of fact. Thus we are of the considered view that the High Court fell in a legal error in this case reversing the judgments and decrees of the Courts below and dismissing the suit of Ramasamy. Accordingly, this appeal is allowed and the judgment and the decree of the Trial Court is restored ...."

58. In view of the above referred case law, concurrent findings recorded by the Courts below in this regard could not be disturbed.

59. In the present case the original plaintiff has filed mutation application for entry of his name in the Revenue Records on agricultural land of suit property. As per report of the Naib Tahsildar in his report (paper no. 25 C1), mutation application was filed on 10.06.1969, which was decided on 21.08.1970. While revision filed against thereof has also been dismissed vide judgment and order dated 21.04.1972. Both Revenue Courts have held that they have no power to decide actual date of execution of sale deed dated 30.05.1969 as such earlier proceedings before Revenue Courts have been terminated on the basis of lack of jurisdiction/lack of powers.

60. In these circumstances, the original plaintiff was entitled for exclusion of above time for computation of three years period prescribed under Article 56 of Limitation Act for declaration of aforesaid sale deed to be void and inoperative. If time spent in earlier proceedings not excluded from computation of the period, spent by original plaintiff in pursuing his another earlier remedy of civil nature before the Court of S.D.O and Revisional Court, it would not only cause irreparable loss to the appellants but also result in injustice. As it would deprive the appellants to get their rightful claims over suit property on the technical grounds of limitation despite a valid sale deed of suit property in their favour and the respondent would be in position to enjoy benefits of his own wrongs for illegally obtaining a invalid sale deed in his favour in respect of suit property.

61. If time spent in prosecuting the earlier proceedings from 10.06.1969 to 21.04.1972 be excluded then period of three years will complete on 21.04.1975 while as stated earlier suit has been field by the original plaintiff on 04.02.1975 which is well within time.

62. As per Amin Report (paper no. 25 C) the original plaintiff had filed his mutation application on 10.06.1969 and matter was finally decided by the Additional Commissioner on 21.04.1972 and this period is liable to be excluded from the period of limitation of three years for filing the suit for cancellation of sale deed. The original suit was filed on 04.02.1975, which is clearly within the period of three years from judgment and order of Additional Commissioner order dated 21.04.1972.

63. In view of the above discussion, findings recorded by the Courts below to the effect that suit of appellants barred by limitation is wrong, erroneous, illegal and not sustainable in the eyes of law.

64. This question is answered accordingly.

Substantial Question of Law -3.

65. This question is relating to the correctness of finding of First Appellate Court for refusing the decree for possession to the plaintiff despite sale deed executed in his favour is found good.

66. While refusing the decree for possession to the plaintiff the First Appellate Court has recorded its finding as follows :

" The learned trial court has not awarded any relief of damages. It was done correctly. In the memorandum of appeal ground no. 7 is very important. It has been admitted by Sita Ram Singh that the main relief the possession and ejectment was ancillary relief. When the primary relief regarding cancellation of sale deed is not available this relief can not be granted. P.W.1 Sita Ram has himself admitted that Ram Swaroop was in possession of the house. Ram Swaroop is not a party in this case therefore the relief of possession regarding the house was wrongly granted by the learned trial court. The damages regarding the house also cannot be awarded to Sita Ram as it is Ram Swarup who is in possession of the house and not Sheo Shanker Singh. The learned trial court was perfectly justified in holding that the relief of possession regarding the agricultural land be granted by the Revenue Courts only. The main relief to declare the sale deed of Sheo Shanker Singh to be void cannot be granted consequently this relief of possession regarding the agricultural plots can not be granted by the Civil Court. The possession can be granted U/S. 209 of Z.A. &L.R. Act only by the Revenue Act. The learned trial court had held that damages were not proved and therefore no damages were awarded. After going through the evidence I find that this observation of the learned trial court is correct so the net result of my discussion and findings is that Sita Ram Singh is not entitled for the relief of declaring the sale deed of Sheo Shanker Singh void,possession over the land and for the damages as claimed .The appeal filed by Sheo Shanker Singh accordingly succeeds when the relief of possession could not be granted regarding the agricultural land .The suit regarding that cannot be dismissed. The appeal filed by Sita Ram Singh fails.

Civil Appeal No. 462/77 filed by deceased Sita Ram Singh and later on contested by Ganga Devi and others is dismissed. The appeal filed by Sheo Shanker Singh which is Civil Appeal No.433/77 is allowed and the judgement and decree passed by the learned trial court is set aside. Let a copy of the judgement be placed on the record of the Civil Appeal No.462/77."

67. Since in view of answer of question no. 2, O.S. No. 292/1975 has been found well within the limitation and by the Civil Courts, issue no. 2 regarding jurisdiction has also been decided by the Trial Court in favour of the plaintiff due to being not pressed. In view of the above, not only main relief for declaration of the sale deed executed in favour of the respondent invalid and inoperative alongwith other ancillary reliefs of possession and damages etc. may be granted by the Civil Court. There is concurrent findings of the Courts below regarding invalidity and illegality of sale deed executed in favour of respondent as well as validity of the sale deed executed in favour of the original plaintiff. Considering the above aspect of the matter, I find no legal impediment in grant of decree of possession in favour of the appellants. As far observation of First Appellate Court to the effect that the original plaintiff had admitted in his evidence possession of Ram Swaroop on the half portion of the house is concerned, is also wrong and not sustainable in the eyes of law as this is case of no party that Ram Swaroop is in possession over half portion of the house and statement in this regard at para-6 of P.W.1 appears without its, any context and in isolation in the last line of above para ink used in writing of this line also appears different from the ink used in writing of whole statement of P.W.1, apart from this, for the sake of the arguments, if it is assumed to be correct, still it will not make any change as there is no pleading in the plaint to the effect :

68. In Nalni Sundar vs. G.V. Sundar, AIR 2003 Karn. 86 (D.B.) the Court said that :

" a party cannot make out a case on the basis of evidence for which he/ she has led no foundation in the pleadings. It is fairly well settled that no amount of evidence can prove a case for a party who has not set up the same in his/her pleadings."

69. In Vinod Kumar Arora vs. Surjeet Kaur, AIR 1987 SC 2179, the Court said that :

" pleading of parties being foundation of the case cannot be given up and set out a new and different case."

70. Since reference of possession of Ram Swaroop over disputed house is suspicious and without pleadings to this effect as stated earlier. In view of this, same could not be given any importance and it will be proper to ignore it at all.

71. For the facts and reasons stated above, I hold that refusal of decree for possession in favour of the plaintiff by the First Appellate Court is wrong and illegal.

72. This question is answered accordingly.

Conclusions.

73. For my answers to the above referred substantial questions of law 1, 2 and 3 and aforesaid discussion, both the aforesaid second appeals have substance and deserve to be allowed.

74. Accordingly, aforesaid second appeals are allowed.

75. The impugned judgment and orders passed by the Courts below to the extent, holding Original Suit No. 293 of 1975, barred by limitation and refusal of reliefs prayed in the plaint, are hereby set-aside.

76. In the result, Original Suit No. 293 of 1975 is hereby decreed throughout with costs.

77. Office is directed to send the lower court record to the Court concerned forthwith.

Order Date : 01.11.2018.

Monika