Maqsood Ali vs Kamil Faridi
2011 Latest Caselaw 2724 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                       Judgment reserved on: 19.05.2011
                        Judgment delivered on: 20.05.2011

+                 RSA No.54/2008

MAQSOOD ALI                                   ...........Appellant
                  Through:    Mr. N.K. Kantawala & Mr.
                              Satyender Chauhan, Advocates.
                  Versus

KAMIL FARIDI                                    ..........Respondent

                  Through:    None.
      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.

1 This appeal has impugned the judgment and decree dated

06.11.2007 which has endorsed the findings of the trial Judge

dated 17.04.2007 whereby the suit filed by the plaintiff Maqsood

Ali seeking possession of the suit property (i.e. property bearing

No. 105/65, Basti Hazrat Nizamuddin, New Delhi) had been

dismissed.

2 The trial Judge had framed the three following preliminary

issues:-

1. Whether the suit of the plaintiff is barred U/o 2 R 2 CPC in view of preliminary objections no. 4 & 5? OPD

2. Whether the suit of the plaintiff is without any cause of action and liable to be dismissed u/o 7 R 11 CPC? OPD

3. Whether the suit of the plaintiff is barred U/o 6 R 2 CPC as well as barred by limitation?

3 The suit of the plaintiff was decided on the aforenoted

three preliminary issues and had been dismissed.

4 Plaintiff had filed the aforenoted suit for possession. It was

stated that by virtue of a will of Bibi Kamrun NIsha @ Marium

dated 17.03.1984 the aforenoted suit property had fallen to the

share of the plaintiff. Late Corporal Michal was a tenant in the

suit property who has thereafter tenanted it to one Ramo Devi.

Ramo Devi had left the premises and thereafter the defendant

had been illegally and unauthorisedly occupying the suit

premises. Present suit for possession was accordingly filed.

5 In the written statement, certain preliminary objections

had been raised; it is stated that the suit is liable to be rejected

in view of bar of Order 2 Rule 2 of the Code of Civil Procedure

(hereinafter referred to as the „Code‟); plaint was liable to be

rejected under Order 7 Rule 11 of the Code; bar of limitation

had also been professed.

6 On the pleadings of the parties, the aforenoted three

preliminary issues had been framed. The trial Judge had held

issue No. 1 in favour of the plaintiff. It was held that the earlier

suit (i.e. Suit No. 477/1987) was filed for a relief which could not

have been sought in the present suit; the bar of Order 2 Rule 2

of the Code was not applicable.

7 On the other two issues, the court had returned a finding

against the plaintiff. It had noted that the earlier suit No.

477/1987 had been disposed of on 23.10.1989 vide the following

order:-

"Present:    Counsel for the defendant.
             None for the plaintiff.
             Be awaited.
Present:     None for the plaintiff.

Case called at 03:35 PM. Suit is dismissed in default. File be consigned to the Records.

Sd./ 23.10.1989 At this stage, counsel for the plaintiff has appeared. He wants to make the statement. Let the same be recorded.

Statement of V.M. Issar, Advocate for the plaintiff. Without Oath.

Since the plaint is suffers from technical objection, the plaintiff wants to withdraw the present suit with the permission to file the appropriate suit on the same cause of action.

RO & AC                                    Sub-Judge/Delhi
                                           23.10.1989
Order Sheet dated 23.10.1989

In view of the statement of the plaintiff‟s counsel, suit is dismissed as withdrawn. No order as to costs.

File be consigned to the Record Room.

Sub-Judge/Delhi 23.10.1989"

8 Suit had been dismissed as withdrawn without liberty to

file a fresh suit. The trial Judge was of the view that the cause of

action arose on 01.05.1987 when the defendant refused to

vacate the premises; this has been specifically stated in the first

suit i.e. Suit No. 477/1987. Under Article 65 of the First

Schedule of the Limitation Act, recovery of immoveable property

could be affected within 12 years; suit had been filed on

24.08.1999 i.e. after 12 years from 01.05.1987. Suit is barred by

time. This finding was endorsed in the first appeal.

9 This is a second appeal. It has been admitted and on

23.07.2008, the following two substantial questions of law were

formulated:-

1. Whether the courts below committed error in dismissing the suit on the ground that it was barred by limitation?

2. What is the effect of the order passed by the Special Judge, Delhi dated 23.07.1989 passed in suit No.477/1987?

10 On behalf of the appellant, it has been urged that the

cause of action in the present suit has been detailed in para 13

wherein it has been alleged that the cause of action had arisen

on 06.06.1995 when the plaintiff became the owner of the suit

property in terms of a Will of the erstwhile owner. The suit filed

on 24.08.1999 is within limitation.

11 None has appeared on behalf of the respondent.

12 The trial Judge had returned a positive finding that the

provisions of Order 2 Rule 2 of the Code are not attracted in the

present suit; this has been held after having adverted to the

averments made in the first suit and in the present suit. This

finding has not been upset in the impugned judgment. The first

suit was a suit filed on behalf of Bibi Kamrun NIsha @ Marium

who was the owner of the suit property; Maqsood Ali was only

the power of attorney holder. In the present suit it has clearly

been averred that the plaintiff has become the owner by virtue

of the will of Bibi Kamrun NIsha @ Marium. The cause of action

has been detailed in the present plaint in para 13 wherein it has

been averred that after the plaintiff had become the owner of

the suit property on 06.06.1995 by virtue of the Will. The

plaintiff has averred that the succession certificate in his favour

was issued on 25.03.1998. Under Article 65 of the Limitation

Act, a suit for possession of immoveable properties based on

title can be filed within 12 years which period has to be counted

from the date when the possession of the defendant become

adverse to the plaintiff. The plea of adverse possession has been

set up in the written statement in para 13; his contention being

that he is in adverse possession of the suit land since 1986.

13 Admittedly, this suit has been dismissed on the three

preliminary issues as aforenoted; the plea of adverse possession

as set up has not been given chance to be proved or disproved.

Contention of the plaintiff is that the suit filed on 24.08.1999

was well within limitation; even if the plea of adverse possession

is set up; it is pointed out that in the first suit for the first time

on 18.11.1987 an application had been filed by the defendant

seeking dismissal of the suit; adverse possession can at best be

counted from that date i.e. 18.11.1987; suit having been filed on

24.11.1999 was well limitation.

14 These submissions made by learned counsel for the

appellant have force. The impugned judgment had dismissed the

suit summarily on the ground of limitation which is not always a

question which can be decided only on the pleadings; it being a

mixed question of facts and law evidence had necessarily to be

adduced to substantiate it one way or the other. This exercise

had not been adverted to. This is a fit case for remand.

15 Matter is accordingly remanded back to the learned

District & Sessions Judge, Delhi who shall assign the case to the

concerned Civil Judge to decide the case on its merits after

framing of issues and giving a chance to the parties to adduce

evidence thereof. The parties are directed to appear before the

District & Sessions Judge, Tis Hazari Court, Delhi on 26.05.2011

at 10:30 AM. Substantial questions of law are accordingly

answered in favour of the appellant and against the respondent.

Appeal disposed of.

(INDERMEET KAUR) JUDGE MAY 20, 2011 A