Bombay High Court
Shri Sham S/O Kunjilal Yadao And ... vs Manganese Ore (I) Ltd., Thr. ... on 30 January, 2018
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO.393 OF 2016
APPELLANTS: 1. Shri Sham S/o Kunjilal Yadao, Aged
(Original about 65 years, Occ: Cultivator,
Defendants)
2. Shri Naresh S/o Sham Yadao, Aged
about 33 years, Occ: Cultivator,
Both R/o Wahitola, Tah.Ramtek,
District: Nagpur.
-VERSUS-
RESPONDENT: Manganese Ore (I) Ltd., Through its
Manager Kandri Mansar Mine, Tah.
Ramtek, District Nagpur.
Dr. Mrs. R. S. Sirpurkar, Advocate for the appellant.
Shri Masood Shareef, Advocate for the respondent.
CORAM: A.S. CHANDURKAR, J.
DATED: JANUARY 30, 2018.
ORAL JUDGMENT :
1. Heard.
2. Admit on the following substantial question of law:
The trial Court having held in para 17 of its judgment
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that the suit was barred by limitation, whether the appellate Court
was justified in decreeing the suit without taking into
consideration the aforesaid finding?
3.. With the consent of the learned Counsel for the
parties, the appeal is taken up for hearing.
4. The appellants are the original defendants in a suit for
possession filed by the respondent herein alongwith prayer for
perpetual injunction. It is the case of the plaintiff that the
defendant No.1 was in occupation of Quarter No.446 since prior to
twenty five years of filing the suit. The surrounding area of the
said quarter which was vacant was in occupation of the plaintiff.
It was however found that the defendants were in illegal
occupation of Quarter No.446. Proceedings under provisions of
the Public Premises (Eviction of Unauthorised Occupants) Act,
1971 were initiated but the same were dismissed. Hence, after
issuing a notice the plaintiffs filed the aforesaid suit. In the
written statement, it was pleaded that the defendants were in
occupation since the year 1943 and that by virtue of their
continuous possession, they had perfected their title. It was also
pleaded that the suit was barred by limitation.
5. The trial Court after considering the evidence observed
in paragraph 17 that the defendant was in possession since 1943
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and had a better possessory title. The suit was filed after almost
fifty years and hence, it was barred by limitation. The suit was
ultimately dismissed. The appellate Court however reversed the
said judgment and decreed the suit.
6. It is submitted by the learned Counsel for the
appellants that the trial Court having held that the suit was barred
by limitation, it was incumbent upon the first appellate Court to
have considered the said finding and adjudicated upon the same.
Without considering that finding and without coming to the
conclusion that the suit was within limitation, the same has been
decreed. This has caused prejudice to the case of the appellants.
7. The learned Counsel for the respondent on the other
hand submitted that the trial Court did not frame any issue as to
the bar of limitation. Despite that certain observations were made
in paragraph 17. Therefore, the appellate Court did not commit
any error in not considering the question of limitation.
8. After hearing the respective Counsel, I find that one of
the reasons for refusing relief to the plaintiff being the bar by
limitation, the first appellate Court ought to have considered that
finding and should have reversed the same before decreeing the
suit. Without considering the effect of that finding and without
concluding that the suit was within limitation, the same has been
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decreed. Though it is true that there is no issue as to bar of
limitation that has been framed, such plea has been raised in the
written statement. That being one of the reasons for dismissing
the suit, the appellate Court ought to have examined that aspect.
By failing to do so, the appellate Court has committed an error and
therefore, its judgment is liable to be set asdie.
9. The substantial question of law is answered by holding
that the appellate Court erred in decreeing the suit without
reversing the finding that the suit was filed beyond limitation. In
view of this answer, the following order is passed:
ORDER
(1) The judgment in Regular Civil Appeal No.452/2013
dated 12-2-2016 is set aside. The proceedings are remanded to
the appellate Court for fresh adjudication and in the light of the
observations made in this order.
(2) The parties shall appear before the first appellate
Court on 26-2-2018.
(3) The proceedings in the appeal are expedited.
(4) The Second Appeal is allowed in aforesaid terms. No
costs.
JUDGE
/MULEY/
