Smt. Mewa & Ors. vs Mohinder Singh & Ors.
2010 Latest Caselaw 5450 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment: 30.11.2010


+            RSA No.14/2008 & CM No.954/2008(for stay)


       SMT. MEWA & ORS.                        ...........Appellants
               Through:        Mr.Anil Kumar, Advocate.

                   Versus

       MOHINDER SINGH & ORS.             ..........Respondents
               Through: Mr.N.S.Dalal and Mr.Devesh Pratap
                        Singh, Advocates.

       CORAM:
       HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?             Yes

     3. Whether the judgment should be reported in the Digest?
                                                          Yes

INDERMEET KAUR, J. (Oral)

1. This appeal has impugned the judgment and decree dated

12.9.2007 which has endorsed the finding of the Trial Judge dated

15.5.2006 whereby the decree dated 31.7.1962 passed in Suit

No.164/1972 had been set aside.

2. This is a second appeal. On behalf of the appellant, it has

been urged that the findings in the impugned judgment are

perverse; it had overlooked the provisions of Article 59 of the 1 st

Schedule of the Limitation Act, 1963 which is contained in Part IV

and provides a period of three years to set aside a decree; in this

case the decree dated 31.7.1962 had been assailed in a suit which

had been filed in the year 1989 i.e. after a gap of more than 27

years; this was an arbitrary finding; this has raised a substantial

question of law.

3. Perusal of the record shows that the present suit had assailed

the decree dated 31.7.1962. This suit was filed in the year 1989.

The first Court i.e. the Trial judge vide judgment dated 26.5.1992

had dismissed the suit holding that it is barred by limitation. In

appeal learned Additional District Judge had returned a positive

finding on 27.8.2003 whereby it was held that no period of

limitation is prescribed to set aside a decree which is nonest and a

nullity. It was held that the decree dated 31.7.1962 passed in suit

No.164/1962 is void ab initio; no limitation is prescribed to set

aside or seek a declaration for the cancellation of such a decree.

This was a positive finding returned by the learned Additional

District judge on 27.8.2003 thereafter the matter had been

remanded back to Trial Judge for decision on the remaining issues.

This finding of the Additional District Judge dated 27.8.2003

holding that the suit is not barred by limitation has admittedly not

been challenged.

4. Thereafter the Trial Judge (after the matter had been

remanded back to him) had decreed the suit in favour of the

plaintiff on 15.5.2006 returning a finding that the decree dated

31.7.1962 in suit No.164/1962 is null and void. This finding had

been endorsed by the first Appellate Court on 12.9.2007 which is

the impugned judgment.

5. Learned counsel for the respondent has pointed out that the

judgment of 27.8.2003 has since attained a finality and it was a

positive finding returned by learned Additional District Judge that

the suit is not barred by limitation and the said finding not having

been challenged it cannot now be challenged by way of this second

appeal. It is barred by limitation.

6. This submission of the learned counsel for the respondent

has force. Admittedly the finding of the learned Additional District

Judge dated 27.8.2003 holding that the suit is not barred by

limitation has not been challenged; it cannot now be taken up in

this second appeal which had been filed in the year 2008 i.e. after a

lapse of five years. No substantial question of law has arisen qua

this submission.

7. It is further pointed out by learned counsel for the appellant

that the prayer clause in the plaint shows that the plaintiff had also

sought a declaration that late Sultan Singh, Dhani Ram and Chatru

be declared as the legal heirs to inherit the share of late Jot Ram in

the suit land; the findings qua this aspect are also perverse.

Before adverting to this submission of the learned counsel for the

appellant it is relevant to state that once the decree dated

31.7.1962 was held to be void ab initio i.e. null and void, the

necessary consequence would be that late Sultan Singh, Dharam

Ram and Chatru would be the legal heirs entitled to the share of

late Jot Ram. Even if this second prayer did not find mention in the

plaint, the consequence of the decree dated 31.7.1962 having been

declared null and void would be that Sultan Singh, Dhani Ram and

Chatru would be the legal heirs of Jot Ram. This was the necessary

consequence and the repercussion which would have followed. No

substantial question of law has arisen on this point either.

8. Appeal as also the application is dismissed in limine.

INDERMEET KAUR, J.

NOVEMBER 30, 2010 nandan