Jammu & Kashmir High Court
Romesh Kumar vs Kaka Ram on 31 January, 2024
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
...
MA No. 04/2024
Romesh Kumar , Age approx. 67 years
S/o Lt. Tej Ram,
R/O Village Kotli Mian Fateh,
Tehsil R. S. Pura District Jammu.
.....Appellant(s)
Through: Mr. G. S. Thakur, Advocate.
Vs.
1. Kaka Ram,
S/o Sh. Phagoo
R/O Village Kotli Mian Fateh,
Tehsil R. S. Pura District Jammu.
2. Sumeshwar Kumar
S/O Shambu Nath
R/O Village Maralian,
Tehsil R. S. Pura District Jammu.
.....Respondent(s)
Through:
CORAM: HON'BLE MR JUSTICE SANJEEV KUMAR, JUDGE
JUDGMENT
31-01-2024
1. This first appeal is directed against the judgment and decree dated 09-
01-2024 passed by the Court of Additional District Judge Jammu [„the trial
Court‟] in civil suit File No. 9040/40/Civil/2011 titled Romesh Kumar v.
Kaka Ram and anr, whereby the suit filed by the appellant has been
dismissed as barred by limitation.
2. Before adverting to the grounds of challenge and the arguments raised
by the learned counsel for the appellant, it is necessary to notice few
material facts:-
3. The appellant filed a suit against the respondents for declaration that
the sale deed executed by respondent No.1 in favour of respondent No.2
herein dated 28-06-2001 is illegal, in-operative and non est in the eye of law.
He also prayed for relief of permanent prohibitory injunction restraining the
defendants, the respondent herein, from interfering in the possession/user of
the land in question etc. etc.. The suit was filed on 09-02-2011. In the plaint,
the appellant disclosed 30-10-2010 as the date on which he acquired
knowledge about the execution of the impugned sale deed so as to bring his
suit within the limitation. The suit was contested by the respondents, who, in
their written statement, pleaded that prior to the filing of the instant suit, the
appellant had filed a suit for permanent prohibitory injunction in respect of
the same land in the Court of learned Additional Munsiff, R. S. Pura. That
suit was filed by the appellant on 19-09-2001. The respondents herein
appeared in the said suit and filed their written statement and brought it to
the notice of the Court that the subject land has been sold by the respondent
No.1 in favour of respondent No.2 vide sale deed dated 28-06-2001. A
preliminary issue was struck in the said suit and the same was decided
against the appellant. The order, dismissing the suit, passed by the learned
Additional Munsiff, R. S. Pura dated 21-08-2002 would indicate that the
appellant was aware about the execution of the sale deed in the year 2002
itself and did not challenge the same for almost nine years. It is thus
submitted that the suit was barred by limitation.
4. On the basis of the pleadings of the parties, the trial Court framed a
preliminary issue that, "whether the suit is time barred? OPD". Since the
facts were not in dispute, as such, the partiers were called upon to address
the arguments.
5. After hearing the matter at some length, the trial Court opined that in
terms of Article 62 of the Limitation Act, a suit challenging the sale deed is
required to be filed within a period of three years from the execution of the
sale deed or on gaining the knowledge about the said fact. The trial Court
concluded that in the instant case there is no dispute with regard to the fact
that factum of execution of the sale deed dated 28-06-2001 came to the
notice of the appellant in the year 2002 when the written statement was filed
by the respondent in the suit filed by the appellant in the Court of learned
Additional Munsiff, R. S. Pura, which was dismissed by the said Court vide
order dated 21-08-2002. The trial Court thus found the suit having been filed
beyond the period of three years from the date of gaining the knowledge
about the execution of the sale deed and, accordingly, dismissed the suit of
the appellant in terms of the judgment and decree impugned in this appeal.
6. Having head learned counsel for the appellant and perused the
material on record, I am of the considered opinion that the impugned
judgment and decree passed by the trial Court is perfectly legal and does not
call for any interference in this appeal.
7. The primary argument raised by the learned counsel for the appellant
is that the issue of limitation is a mixed question of fact and law and,
therefore, could not have been treated as preliminary issue. There is inherent
fallacy in the plea raised by the learned counsel for the appellant. It is true
that plea of limitation may be a mixed question of fact and law and in some
cases a pure question of law. In the instant case, since the facts were not in
dispute, as such, there was no question of having any issue on any disputed
facts. Learned counsel for the appellant was pointedly asked as to whether
the factum of sale deed dated 28-06-2001 had come to the notice of the
appellant in the earlier suit when the written statement was filed therein by
the respondents and the Court dismissed the suit vide its order dated 21-08-
2002. The learned counsel could not refute it. Otherwise also, it is writ large
and beyond any cavil of doubt that execution and registration of the
impugned sale deed dated 28-06-2001 came to the knowledge of the
appellant way back in the year 2002 and, therefore, in view of the clear
provisions of Article 62 of the Limitation Act, the suit ought to have been
filed within three years from the date of gaining the knowledge about the
execution of the sale deed.
8. In the instant case the suit was filed almost nine years after gaining
the knowledge of the execution of the sale deed, as such, the suit was clearly
barred by limitation. That apart, this Court cannot lose sight of the fact that
bthe relief of declaration is based in equity and a person who does not come
to the Court with clean hands is not entitled to any equity. The appellant has
deliberately and intentionally suppressed the fact that there was an earlier
suit filed by him, to which the impugned sale deed relates, in the Court of
learned Additional Munsiff R. S. Pura. He has not disclosed this fact only
with a view to create a new cause of action by contending in the subsequent
suit before the trial Court that it was only when the mutation was attested in
the year 2010, he came to know that the land in question stood transferred by
way of sale by respondent No.1 in favour of respondent No.2. The trial
Court has taken note of this plea also and deprecated the conduct of the
appellant.
9. Viewed thus, the appeal fails on both the counts; one that suit is
patently time barred having been filed much beyond the period of three
years of execution of the sale deed as prescribed by the Limitation Act and;
secondly, that the appellant is disentitled to the relief of a decree of
declaration for indulging in suppression of material facts.
10. For the foregoing reasons, I find no merit in this appeal and the same
is, accordingly, dismissed.
(Sanjeev Kumar)
Judge
JAMMU
31.01.2024
Anil Raina, Addl. Registrar/Secy
Whether the order is reportable: Yes/No
