Smt.Sugandhi vs Chandrasen
2022 Latest Caselaw 15064 MP

                                               01

   IN THE HIGH COURT OF MADHYA PRADESH

                    AT GWALIOR
                      BEFORE
  HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
               ON THE 17th OF NOVEMBER, 2022


            SECOND APPEAL No. 144 of 2001


Between:-
1.   SMT.SUGANDHI     W/O     LATE
BABURAM, AGED 71 YEARS, R/O-SADAR
BAZAR BHIND (MADHYA PRADESH)
(DELETED)
2.   SMT.    NEHANI     W/O    SHRI
GYANCHAND, AGED 56 YEARS
3.   VIJAY S/O OF GYANCHAND, AGED
31 YEARS
4.   ANAND S/O OF GYANCHAND,
AGED 26 YEARS
5.   RINKU GYANCHAND, AGED 23
YEARS
6.   RUBY D/O GYANCHAND, AGED 28
YEARS
7.   GUDDO D/O GYANCHAND, AGED
28 YEARS
2 TO 7 RESIDENTS OF SADAR BAZAR
BHIND (M.P.)
8.   SMT. SONMALA W/O ASHOK
KUMAR JAIN, AGED 28 YEARS, R/O
BHARIPURA, ETAVAH (U.P.)
9.   SMT. USHA W/O VIMAL KUMAR
JAIN, AGED 37 YEARS, C/O UGRASEN
JAIN MAHAVEER VASTRALAYA NO.196,
JAMNALAL        BAZAR       STREET,
CALCUTTA-7.
10.  NARAYAN W/O MUKESH JAIN,
AGED 39 YEARS, R/O LAL PURA,
                                                   02

ETAVAH (U.P.)
11.  SMT.     MEENA W/O   ASHOK
KUMAR, AGED 31 YEARS, R/O OF LAL
PURA ETAVAH (U.P.)

                                     .....APPELLANTS
(SHRI C.R. ROMAN=ADVOCATE FOR THE APPELLANTS )

AND

1.   CHANDRASEN       S/O    LATE
TULSIRAM,     AGED    64    YEARS,
OCCUPATION: SHOPKEEPER, R/O OF
MAHAVIR GANJ, BHIND (M.P.)
2. CHOTELAL S/O LATE TULSIRAM,
AGED 61 YEARS, OCCUPATION-
AGRICULTURIST,     R/O    VILLAGE
JAMNA, PARGANA & DISTRICT
BHIND (MADHYA PRADESH)
LEGAL REPRESENTATIVES
2A RAKESH S/O SHRI CHOTELAL,
AGED 40 YEARS
2B ANAND, S/O SHRI CHOTELAL,
AGED 45 YEARS
R/O MAHAVIRGANJ, MELA GROUND
BHIND (M.P.)
3. INDRASEN S/O LATE TULSIRAM,
AGED 57 YEARS, OCCUPATION
AGRICULTURIST,     R/O    VILLAGE
JAMNA, PARGANA & DISTRICT
BHIND (MADHYA PRADESH)
4. VALLABH BHAI S/O LATE
TULSIRAM,     AGED    50    YEARS,
OCCUPATION CONTRACTOR, R/O
MAHAVIR GANJ BHIND (MADHYA
PRADESH)
5.PHULJARILAL S/O SHANKARLAL,
AGED 81 YEARS, OCCUPATION
SHOPKEEPER, R/O HALWAI KHANA,
BHIND. (DEAD) (DELETED)
6. SMT. NAINI, D/O SUKHWASI W/O
PHULJARILAL, R/O KILA ROAD,
                                                              03

  BHIND (M.P.)
  7. SMT. CHANDRAVALI, D/O OF
  SUKHVASI, W/O BABURAM, R/O
  LASHKAR ROAD, NEAR OCTROY
  POST, BHIND (M.P.)
  8. JALDHARI/ S/O BAHURAM, AGED
  66       YEARS        OCCUPATION
  SHOPKEEPER,       R/O   DANAOLI,
  LASHKAR, GWALIOR (M.P.)
  9. VIDHABHUSAN/ S/O OF JALDHARI,
  AGED 56 YEARS, R/O DANAOLI,
  LASHKAR, GWALIOR.
  10. SHOBHA, D/O JALDHARI, AGED
  34 YEARS, R/O DANAOLI, LASHKAR,
  GWALIOR.
  11.     SMT.     SHOBHA,      W/O
  VALLABHBHAI, AGED 41 YEARS, R/O
  MAHAVIR GANJ, BHIND (M.P.)
  12.    SMT.    ELUMVATI,      W/O
  CHANDRASEN, AGED 56 YEARS, R/O
  MAHAVIR GANJ, BHIND (M.P.)
  13. STATE OF MADHYA PRADESH
  THR.     COLLECTOR,      DISTRICT
  BHIND, BHIND (M.P.)
  14. SMT. KAMLA VEVI D/O LATE
  TULSIRAM W/O MODHCAND, R/O
  LASHKAR ROAD, BHIND (M.P.)
  15. SHEELA DEVI W/O LATE
  TULSIRAM, AGED 81 YEARS, R/O
  VILLAGE JAMNA, PARGANA &
  DISTRICT BHIND (M.P.) (DELETED)



                                            .....RESPONDENTS
  (NONE FOR RESPONDENTS)
      This appeal coming on for hearing this day, the court

passed the following:

      Earlier on 03.11.2022 none appeared for the respondents
and as a last indulgence, the appeal was fixed for final hearing
                                                                    04

today i.e. 17.11.2022. It has also been directed that if none will
appear on behalf of the respondents, this Court will pass judgment
after listening the arguments of appellants and perusing the record.
      Even today the respondents' counsel has not appeared when
the case is called for hearing.

      Heard the arguments of learned counsel for the appellants.

                      JUDGMENT

Being aggrieved by the judgment and decree dated 13.02.2001 passed by Second Additional District Judge, Bhind in Civil Appeal No.28A/2000 reversing the judgment and decree dated 05.02.1993 passed by Fourth Civil Judge Class II Bhind in Civil Suit No.187A/1991, the present second appeal under Section 100 of CPC has been filed by the appellants/defendants.

2. In brief, the facts of the case are that respondents/plaintiffs and appellants/defendants were of same family. Respondents had filed a civil suit for declaration, correction of revenue entries and permanent injunction against appellants. Appellants were served. Both the parties adduced their evidence. It is not disputed that appellants and respondents are of heirs of original person Manrakhan. Trial court in para 15 of the judgment discussed regarding limitation of the suit and was of the opinion that cause of action to the plaintiffs accrued in 1981 but they have filed a suit after the order passed by SDO in 1987. As per the provisions of Article 58, Limitation Act,1963 the period of limitation is 3 years

and the time from which this period begins to run is when the right to sue 'first' accrues. First cause of action accrues to the respondents/plaintiffs on 12.12.81 when on the application of appellant in place of Shyamlal, Baburam name was mutated. Thereafter, respondents preferred the first appeal. The first appellate court in its judgment dated 13.02.2001 allowed the appeal and in its para 18 came to the conclusion that limitation will start from 17.07.87 i.e. after the dismissal of the Second Appeal.

3. This appeal has been admitted on the following substantial question of law:

"Whether on facts and circumstances of the case First appellate Court was justified in reversing the judgment and decree dismissing the suit, whether suit was barred by time in terms of Article 58 of the Limitation Act."

4. Learned counsel for the appellant preferred this second appeal on the ground that as per Article 58 of the Limitation Act, 1963, limitation period for suit for declaration is 3 years and the said period begins to run when the right to sue first accrued. In the aforesaid case right to sue first accrued on 12.12.81 but aforesaid suit was filed on 26.08.87.

5. Heard the learned counsel for the appellants and perused the record.

6. Article 58 of the Limitation Act reads as under :

Description of suit Period of Time from which limitation period begins to run 58 To obtain any other Three years When the right to sue declaration first accrues

7. Having considered all these facts and circumstances of the case, it clearly transpires that the first Appellate Court has committed serious error of law and facts in setting aside the decree passed by the trial Court and therefore, the decree passed by the first Appellate Court requires to be set-aside, Whereas the decree of dismissing the Suit, as passed by the learned trial Court is required to be restored.

8. In view of the aforesaid discussion, the present Appeal is allowed. The Judgment and decree dated 13.02.2001 passed by the First Appellate Court, in Civil Appeal No. 28-A-2000 is hereby set-aside and the judgment and decree dated 5.2.1993 passed by the learned trial Court in Civil Suit No. 187-A/91 is hereby restored.

(DEEPAK KUMAR AGARWAL) JUDGE van

VANDANA VERMA 2022.11.21 17:11:24 -08'00'