Madhya Pradesh High Court
Vinod Kumar Jain vs Shivkali on 17 May, 2024
Author: Avanindra Kumar Singh
Bench: Avanindra Kumar Singh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 17th OF MAY, 2024
SECOND APPEAL No. 1198 of 2020
BETWEEN:-
VINOD KUMAR JAIN S/O SHRI PREMCHAND JAIN,
AGED ABOUT 64 YEARS, R/O M.G.ROAD, SATNA,
TEHSIL RAGHURAJNAGAR, DISTRICT SATNA (MADHYA
PRADESH)
.....APPELLANT
Defendant No.1
(BY SHRI SANJAY AGRAWAL - SENIOR COUNSEL WITH MS.ANKITA
SINGH PARIHAR, ADVOCATE)
AND
1. SHIVKALI W/O LATE SHRI SHYAMLAL LADIYA,
AGED ABOUT 75 YEARS, VIILAGE AMODHAKALA,
TEHSIL RAGHURAJNAGAR, SATNA DISTRICT
SATNA M.P. (MADHYA PRADESH)
2. NANDKISHORE S/O LATE SHRI SHAYMLAL
LADIYA, AGED ABOUT 48 YEARS, R/O VILLAGE
AMODHAKALA TEH. RAGHURAJNAGAR,
DISTRICT SATNA (MADHYA PRADESH)
3. VIRENDRA KUMAR S/O LATE SHRI SHAYMLAL
LADIYA, AGED ABOUT 35 YEARS, R/O VILLAGE
AMODHAKALA TEH. RAGHURAJNAGAR,
DISTRICT SATNA (MADHYA PRADESH)
4. DHIRENDRA KUMAR S/O LATE SHRI SHAYMLAL
LADIYA, AGED ABOUT 35 YEARS, R/O VILLAGE
AMODHAKALA TEH. RAGHURAJNAGAR,
DISTRICT SATNA (MADHYA PRADESH)
5. REKHA D/O LATE SHRI SHAYMLAL LADIYA,
AGED ABOUT 30 YEARS, VILLAGE R/O
AMODHAKALA TEH. RAGHURAJNAGAR,
DISTRICT SATNA (MADHYA PRADESH)
6. RITA D/O LATE SHRI SHAYMLAL LADIYA, AGED
Signature Not Verified
Signed by: RAJESH
MAMTANI
Signing time: 20-05-2024
19:57:43
2
ABOUT 36 YEARS, R / O VILLAGE AMODHAKALA
TEH. RAGHURAJNAGAR, DISTRICT SATNA
(MADHYA PRADESH)
7. GEETA D/O LATE SHRI SHAYMLAL LADIYA, W/O
MATHURA PRASAD, AGED ABOUT 57 YEARS,
VILLAGE SHRINAGAR, CIRCLE RAIGAON,
RAGHURAJ NAGAR, DISTRICT SATNA (MADHYA
PRADESH)
8. BASANTI D/O LATE SHRI SHAYMLAL LADIYA, W/O
HIRALAL, AGED ABOUT 45 YEARS, KABIR (UTTAR
PRADESH) PRESENT ADDRESS VILLAEG
AMODHAKALA, TAHSIL RAGHURAJ NAGAR,
DISTRICT SATNA (M.P.)
9. RENU D/O LATE SHRI SHAYMLAL LADIYA, W/O
RAMCHARAN, AGED ABOUT 43 YEARS, R/O
KABIR (UTTAR PRADESH) PRESENT ADDRESS
VILLAEG AMODHAKALA, TAHSIL RAGHURAJ
NAGAR, DISTRICT SATNA (M.P.)
.................................................. [PLAINTIFFS]
10. STATE OF M.P. THR. COLLECTOR DISTT. SATNA
(MADHYA PRADESH) [DEFENDANT NO.2]
.....RESPONDENTS
(RESPONDENT NO.10 BY SHRI ASHISH KURMI - PANEL LAWYER)
Reserved on : 20.2.2024
Pronounced on: 17.05.2024
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This appeal having been heard and reserved for judgment, coming on
for pronouncement this day, JUSTICE AVANINDRA KUMAR SINGH
passed the following:
JUDGMENT
This second appeal under section 100 of the Code of Civil Procedure
has been filed by the appellant/defendant No.1 against impugned judgment and
decree 28.2.2020 passed by the Ninth Additional District Judge, Satna in
Regular Civil Appeal No.600025/2014 [Vinod Kumar Jain Vs. Shivkali and
others] whereby the appeal preferred by appellant has been dismissed and the
judgment and decree dated 28.8.2014 passed by Second Civil Judge Class-II,
Satna in Regular Civil Suit No.59-A/2002 [Shyamlal (since deceased through
legal heirs) Shivkali and others Vs. Vinod Kumar Jain and others] decreeing the
suit of the respondents/plaintiffs has been affirmed.
2. The respondents/plaintiffs filed a civil suit against defendants
seeking relief of declaration of title in respect of suit property situated at Khasra
No.66, area 2.90 acres in village Amodhakala, Tahsil Raghuraj Nagar, District
Satna and for permanent injunction as also for declaraing the sale deed dated
30.11.1972 as null and void.
3. The learned trial Court decreed the suit and the appeal preferred
b y appellant/defendant No.1 before the first appellate Court has been
dismissed. Hence, this second appeal.
4. The grounds of appeal are that both the courts have committed
grave legal error in treating Exhibit-D/1 to be a Deed of Sale with a condition of
re-payment, in fact the same was Deed of Mortgage. It is also argued that the
suit was time barred, which has not been considered by both the courts. It is
also submitted that both the further erred in holding that the claim over the suit
land was based on title and the plea of adverse possession cannot go together.
5. Learned senior counsel in support of his case has placed reliance
on the decision in the case of Maqbul Ahmad Vs. Onkar Pratap Narain
Singh, AIR 1935 PC 35, Central India Chemicals Pvt. Ltd. Vs. Union of
Indian Railways, AIR 1962 MP 301, Mahesh Singh Vs. Sewaram, 2000 (1)
MPLJ 407 and Suhas Shrivastava Vs. Mst.Gyaso, 2004 93) MPLJ 47 and
contended that substantial question of law is involved in the instant appeal and
same be admitted.
6. Heard the learned counsel for the appellant and perused the record
of both the courts.
7. In the case of Maqbul Ahmad (supra) it has been observed
while dealing with scope and application of section 4 of Limitation Act that
limitation for application expiring during vacation and the application made to
wrong Court on the date of its re-opening, this section 4 of Limitation Act has
no application.
8. In the case of Central India Chemicals Pvt. Ltd. (supra) the
Division Bench of this Court in paragraph 15 has held as under:-
"1 5 . It is pointed out on behalf of the plaintiff that the
defendant himself has not pleaded clearly the limitation on this
ground; no doubt, he has generally asserted that "the suit is time-
barred" but a general averment like this is really of no value
because the other party is still in the dark as to the manner in
which the suit is being described as time-barred. A plea of
limitation is altogether no good unless it sets out the term allowed
by law, the terminus a quo, and the date of the filing of the suit.
Only in that event would it be possible for the opposite party either
to plead a step in aid, or pray for condonation on sufficient cause,
or to admit limitation. Thus in this suit limitation, under Article 30,
has not been expressly pleaded. Still it does not help the plaintiff.
One has, in this respect, to distinguish between a case where
limitation is an arguable point and has therefore to be pleaded,
and one where it is patent and non-controversial on the proved
facts. Here, for example the two crucial dates are on the plaint
itself and do not admit of the least doubt or controversy. Thus
under Section 3 of the Limitation Act, the Court has to dismiss it
whether or not limitation has been set up as a defence."
9. In Mahesh Singh (supra) this in paragraph 6 has observed thus:-
"6 . Counsel for the appellants contended that in this
case, the cause of action, which was shown in the plaint was
for 28-8-1984, but thereafter the amendment application was
filed and cause of action was shown to be of 28-8-1974, by
amendment in para 17 of the plaint. It is submitted that the
earlier date of sale-deed was shown as 28-8-1984 and date of
dispossession was shown as 28-8-1984, but subsequently by
amendment, date of sale-deed has been shown as 28-8-1974
and the date of dispossession has also been shown as 28-8-
1974. Counsel for the appellants submits that the trial Court
without looking to the fact that there was change about cause
of action, allowed the amendment, which materially effected.
Counsel contended that in any case, notice ought to have
been issued before allowing the amendment. Reliance was
placed on 1946 NLJ 81 : AIR 1946 (33) Nagpur 60, Ganesh
Prasad Ramprasad v. Damayanti w/o Ganesh Prasad, in
which it is held that where the defendant is absent, no
amendment would be allowed without fresh notice to him. It is
further contended that when the amendment is allowed in this
nature, the Court ought to have considered the section 3 of the
Limitation Act, which says that:
"Subject to the provisions contained in section 4 to 25
inclusive, every suit instituted appeal preferred and
application made after the period of limitation prescribed
therefore by the first schedule, shall be dismissed, although
limitation has not been set up as a defence."
Reliance has been placed on AIR 1935 Privy Council
85, Maqbul Ahmad v. Onkar Pratap Narain Singh, Clause
(e) -- limitation is peremptory and should be given effect to
even though not referred to in pleadings. Reliance has also
been placed on 1947 NLJ 274 : AIR (35) 1948 Nag. 41Altaf
Khan v. Kurbankhan, -- The Act lays a duty upon Courts to
act suo motu in all cases where the suit is instituted beyond
the statutory period and the fact that the parties may have
though differently or may not have noticed the point does not
make the slightest difference. Reliance is further placed on
1962 MPLJ 575 : AIR 1962 MP 301, Central India
Chemicals Private Ltd. Sehore v. Union of India, Railways
especially para 14, in which it is observed that:
"Thus, in the suit limitation under Art. 30 has not been
expressly pleaded. Still it does not help the plaintiff. One has,
in this respect to distinguish between a case where limitation
is an arguable, point and has therefore to be pleaded and one
where it is patent and non-controversial on the proved facts.
Here, for example the two crucial dates are on the plaint itself
and do not admit of the least doubt or controversy. Thus,
under section 3 of the Limitation Act, the Court has to dismiss
it whether or not limitation has been set up as a defence."
10. This Court in decision rendered in the case of Suhas Shrivastava
(supra) in paragraph 10 & 11 held as under:-
"10-11. Before dealing with the rival submissions of
learned counsel for the parties, it would be apposite to refer
section 3(1) of the Indian Limitation Act, 1963 which reads
as under:
"3.Bar of Limitation. -- (1) Subject to the provisions
contained in sections 4 to 24 (inclusive), every Suit instituted,
appeal preferred, and application made after the prescribed
period shall be dismissed, although limitation has not been
set up as a defence.
(Emphasis added).
O n going through the aforesaid provision, it is clear like a
noon day that if a suit is barred by prescribed period of
limitation, irrespective of the fact that the point of limitation
has not been set up as a defence it has to be dismissed. Thus,
the Legislature has cast a heavy duty upon the Court to
examine on the touch stone of the case put forth by the parties
and to decide whether the suit is within limitation or not,
although, the point of limitation has not been set up as a
defence."
11. On perusal of record it is seen that appellant/Defendant No.1-
Vinod Jain in written statement had raised a plea that the suit was time barred in
paragraph 14 in words that Plaintiff has stated that the suit is within time but
since the defendant is in possession since 1972, which is in the knowledge of
the plaintiff, therefore, this pleading is wrong. It is also stated that it is true that
"Sahi Baat Yeha Hai Ki Dawa Vaadi Beru Miyaad Hai Aur Isi Vinaya Par
Kabil Khariji Ke Hai".
12. But, it is seen that in cross-examination of PW.1-Shiv Khali no
suggestion has been made regarding the fact that the suit is time barred. In fact,
no issue was framed by the trial Court whether the suit is within time or barred
by time. It was not the argument before this Court that defendant objected to
the non-framing of issue of limitation. It is further seen that in his affidavit under
Order 18 Rule 4 CPC again Defendant No.1-Vinod Jain did not take plea that
the suit is time barred. Therefore, all the arguments advanced by the learned
senior counsel that the suit was time barred does not withstand as a ground for
admitting of instant appeal. Hence, the case laws referred to above by the
learned senior counsel do not help him.
13. Another ground of appeal in this appeal is that Exhibit-D/1 is a
document of Mortgage and not the Document for Sale with condition of
repayment. If we look at document (Exhibit-D/1) which was executed between
Kethana @ Krishna & Shyamlal s/o Ramdeen Ladiya and Vinod Kumar Jain it
is very clear that that it is not a Document of Mortgage but in fact it is a
Document to Sale with condition of re-sale. Whether compliance was made by
the plaintiff as per condition enumerated in Exhibit-D/1 within a period of three
years is a question of fact. There is evidence on record of the trial Court that
amount was paid within three years and these factual aspects have been
considered, which in the facts and circumstances of the case, need not be gone
into detail by this Court.
14. Even otherwise, what has not been specifically pleaded and no
evidence has been adduced or arguments have been made either before the trial
Court or first appellate Court, then it would be futile exercise to raise the same
for the first time before this Court.
15. Thus, from the aforesaid it is clear that the trial Court as well as
first appellate Court have considered all facts and evidence on record in proper
perspective.
16. Even otherwise, the jurisdiction of this Court to interfere with
the findings of fact under Section 100 of the Code of Civil Procedure is well
defined by catena of decisions of the Supreme Court. This Court cannot
interfere with the finding of fact until or unless the same is perverse or contrary
to material on record. [See: Narayan Rajendran and Anr. v. Lekshmy
Sarojini and Others, (2009) 5 SCC 264, Hafazat Hussain v. Abdul Majeed
and Others, (2001) 7 SCC 189, Union of India v. Ibrahim Uddin and
Antoher, (2012) 8 SCC 148, D.R. Rathna Murthy v. Ramappa, (2011) 1
SCC 158 Vishwanath Agrawal v. Sarla Vishnath Agrawal, (2012) 7 SCC
288, Vanchala Bai Raghunath Ithape v. Shankar Rao Babu Rao Bhilare,
(2013) 7 SCC 173 and Laxmidevamma and Others v. Ranganath and
Others, (2015) 4 SCC 264] The concurrent findings of fact recorded by the
courts below are based on meticulous appreciation of evidence on record
which by no stretch of imagination can be said either to be perverse or based
on no evidence.
17. In the result, no substantial question is involved for
consideration before this Court and admitting this appeal. The appeal being
sans merit stands dismissed at admission stage itself.
(AVANINDRA KUMAR SINGH)
JUDGE
RM
