Madhya Pradesh High Court
Smt. Sumitra Bai @ Kali Bai vs Shri Ramesh Lodhi on 16 April, 2025
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
F.A.NO.160/2018
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 16th OF APRIL, 2025
FIRST APPEAL NO.160/2018
SMT SUMITRA BAI ALIAS KALI BAI
VS.
SHRI RAMESH LODHI AND OTHERS
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Appearance:
Appellant by Shri Sumit Raghuwanshi - Advocate.
Respondents No.1 to 3 by Shri Hussain Ali - Advocate.
Respondents No.5 and 6 by Shri Rohit Jain - Advocate.
Respondent No.7 by Shri L.A.S. Baghel - Government Advocate.
................................................................................................................................................
Reserved on: 20.03.2025
Pronounced on: 16.04.2025
JUDGMENT
With the consent of learned counsel for the parties, the
matter was finally heard on 20.03.2025 and today the judgment is being
pronounced.
2. By the instant appeal filed under Section 96 of the Civil
Procedure Code, the appellant-plaintiff is challenging the validity of
the judgment and decree dated 18.12.2017 passed in Civil Suit No.1158-
A/2014 by the District Judge, Bhopal.
3. A suit was filed by the plaintiff/appellant for declaration,
partition, possession and permanent injunction. The trial Court dismissed
the suit vide impugned judgment and decree mainly on the ground that the
suit was barred by time and also observed that although the property was
ancestral but the father of the plaintiff namely Motilal died before
09.09.2005 and as such on the date of death of her father, the plaintiff
cannot be considered to be a co-sharer in the said property and as such, she
did not have any right to claim share in the property and as per Section 6 of
the amended Hindu Succession Act, she did not have any right over the
property.
4. The challenge is made by learned counsel for the appellant
mainly on the ground that in view of the facts and circumstances of the
case and in the light of the law laid down by the Supreme Court in the case
of Vineeta Sharma v. Rakesh Sharma and others (2020) 9 SCC 1, the
finding given by the trial Court with regard to the right of the
plaintiff/appellant is illegal and is not sustainable in the eyes of law.
5. Learned counsel for the appellant submitted that so far as the
question of limitation is concerned, the limitation would be governed by
Article 110 of the Limitation Act and as per this Article, the limitation is
prescribed as 12 years from the date of knowledge of exclusion of the
plaintiff's right in joint Hindu property, who has a share over the property.
He submitted that as per the pleadings made in the plaint and other
surrounding circumstances, which have not been taken note of by the court
below, dismissing the suit on the ground of limitation is not proper which
according to Shri Raghuwanshi was otherwise well within limitation and
that finding is also not sustainable and as such, according to him, the trial
Court has committed grave illegality in dismissing the suit instead of
decreeing it. He further submitted that as per paragraphs 17 and 18 of the
statement of PW-1 and the statement of DW-1, it can be determined that
the suit was well within the limitation and knowledge about exclusion of
the plaintiff from the property in question was well within the limitation as
has been prescribed in Article 110 of the Limitation Act.
6. E-converso, Shri Rohit Jain, learned counsel for respondents
No.5 and 6 opposed the submissions of learned counsel for the appellant
and supported the findings given by the court below mainly on the ground
that as far as dismissing the suit on the ground of limitation is concerned,
no illegality was committed by the court below and no interference by
this Court is called for. He further submitted that in view of the cross-
examination of plaintiff (PW-1) herself, it is clear that she had knowledge
about her exclusion from the property in question and her right over the
property had already been denied despite that she did not file the suit
within the period of limitation, even if it can be considered that the same
should have been filed within a period of 12 years from the date of
knowledge. He has also relied upon the statement of PW-2 and according
to paragraphs 38 and 39 of his statement, it is clear that the fact with regard
to depriving the plaintiff was well within the knowledge of the plaintiff
long back and despite that she did not raise any claim nor filed any suit.
But the present suit filed by the plaintiff was beyond limitation and the trial
court has rightly dismissed the suit on this ground. He further submitted
that in view of the overall facts and circumstances of the case, it is clear
that the suit would be governed by Section 27 of the Limitation Act and
accordingly, the suit being apparently barred by time, has rightly been
dismissed by the trial Court.
7. Learned counsel for respondents No.1 to 3 has supported the
submissions made by learned counsel for respondents No.5 & 6 and added
that the trial Court had rightly dismissed the suit as barred by time.
8. On the anvil of multifarious submissions made on behalf of
the learned counsel for the parties, I find it apposite to frame certain
questions and by answering those questions it will navigate this Court in
reaching to a definite conclusion, as under:-
(i) Whether the finding of the court below with regard to
issue no.3 that the suit was barred by limitation, is based on
unflinching reasons?
(ii) Whether, the finding of the court below that the plaintiff
did not have any share over the property in question, is
perverse?
9. To answer the above questions, it is imperative to engraft
the factual matrix of the case, in a nutshell, as under:-
9.1 A suit was filed for partition, declaration of title and
possession of property, which was owned and possessed by Late Motilal
Lodhi during his life time and the said land was comprised in khasra
No.1/1, 1/2, 3, total area 22.23 acres situated at Village Mubarakpur,
Tehsil Huzur, District Bhopal. The plaintiff and defendants No.1 to 3
are siblings and defendant No.4 is nephew of plaintiff and son of
defendant No.3. The plaintiff and defendants No.1 to 3 are children of
Late Motilal and defendants No.5 and 6 are purchasers of the suit
property.
9.2 The plaintiff claimed for declaration of sale-deed dated
26.05.2014 void which was entered into between defendants No.3 & 4
with defendants No.5 & 6 whereby the land belonging to khasra
No.1/2/1 Patwari Halka No.24/1 total area 5.94 acre was sold.
9.3 As per the averments made in the plaint, the suit land is
ancestral land which came in the ownership and possession of late
Motilal, father of the plaintiff and defendants No.1 to 3. After the death
of Motilal, defendants No.1 to 3 got their name recorded in the revenue
record in respect of the suit property, but the name of the plaintiff was
not included as co-owner of the property. The plaintiff being the
daughter and legal heir of Motilal, claimed right and title over the
disputed land and filed the suit accordingly. The plaintiff claimed 1/4 th
share in the property and also sought relief of injunction restraining the
defendants from further alienating the property.
9.4 Defendants No.1 to 4 filed their written-statement
collectively and denied the averments made in the plaint taking a stand
therein that the plaintiff is not their sister and after the death of their
father late Motilal, the suit property came in their possession and their
names are also recorded in the revenue record. It is also denied that the
suit property is the ancestral property, rather took a stand that same got
by their father as their grandmother Guliya Bai had received the same
from her parental side and after the death of Guliya Bai, the property
had devolved to Motilal, who was the only son of Guliya Bai and also
raised objection about maintainability of suit saying that it is hopelessly
barred by time.
9.5 Defendants No.5 and 6 also filed their written-statement
denying the averments made in the plaint and also claimed that they are
bona fide purchaser and after purchasing the property their names got
recorded in the revenue record on the basis of sale-deed dated
26.05.2014. The trial court after recording the evidence of the parties
vide judgment and decree dated 18.12.2017 dismissed the suit holding
that the plaintiff did not have any coparcenary right over the ancestral
land because father of the plaintiff died in the year 1984 and amendment
in the Hindu Succession Act, 1956 came into force in the year 2005.
Thus, the plaintiff is not entitled to get any benefit of said amendment as
it has no retrospective effect and further held that the suit is barred by
limitation as per Section 56 of the Limitation Act. However, the issue
with regard to the relation of plaintiff and the defendants was found
proved by the court below.
10. As regards the issue decided by the court below about the
limitation - the averments made in the plaint and evidence of the
plaintiff recorded during the trial have to be taken note of. The trial
court in paragraph 18 has dealt with the issue of limitation and observed
that the mutation proceeding was done in the year 1987 in which the
plaintiff was not shown having any share in the property and this was
the first date of depriving the plaintiff. The court has also observed that
in the statement of plaintiff in paragraph 8, she has admitted that since
1987, the defendants were cultivating the land. In paragraph 9 of his
statement, she has admitted that she got married when she was aged 7-8
years and her son Govardhan (PW2) has also stated that when her
mother demanded her right over the property, the defendants did not
answer properly and then his mother had taken the certified copy of the
revenue record and the copy was taken 29.06.1987, though the certified
copy of the order of mutation was taken in the year 2014, but as per the
statement of PW2, he and his mother came to know about the mutation
came to him and his mother in the year 2007. In the statement of PW2 in
paragraph 15, he has very clearly stated that "Bhoomi ka namantran
pratibadi ek se lagayat teen ke 1987 me hua tha, iski jankari mujhe aur
meri maa ko nahi hai. Namantran ki jankari mujhe aur meri maa ko
varsh 2007 me hui thi". Likewise, PW1 - plaintiff in her statement in
paragraph 15 has stated that she had knowledge that her brothers have
been cultivating the land since 1987. She has also admitted that the land
originally belonged to the father of her mother-in-law and later-on she
has clarified that the land originally was owned by the father of her
grandmother (Dadi). Thus, the court below has considered the statement
of the plaintiff witnesses and then observed that they had knowledge
about the deprivation of their right over the suit land from 2007 and suit
was filed in 2014 and also admitted that the some portion of the disputed
land was sold out by the defendants 10-12 years back and they had
knowledge about this fact since last more than 12-15 years. The court
has therefore rightly observed that the plaintiff and her son were fully
aware of the fact that since 1987, the disputed land is in occupation of
the defendants and they have been cultivating the land and they also
sold some portion of the disputed land, therefore, the cause of action
according to the court below did not arise when the certified copy of the
mutation record was obtained but from 1987, this fact was very much
within the knowledge of the plaintiff. Thus, the finding given by the
court below cannot be said to be perverse; conversely it is reasoned one
and based upon the admission made by the plaintiff witnesses. The court
below has further observed that the suit for declaration and possession
had to be filed within the period of three years, the day when right to
suit first accrued. I do not find any infirmity or perversity in the finding
given by the court below about the limitation holding that the suit for
declaration and possession was barred by time. Therefore, in my opinion
the submission made by the learned counsel for the appellant is bereft of
substance that the suit would be governed by Article 110 wherein
limitation is 12 years for seeking declaration or for enforcing the right to
share in the property from the date of exclusion of the plaintiff from the
said right. Even otherwise, the facts as stated in the statement of plaintiff
witnesses, it is clear that from 1987, she was aware of the fact that the
land was being cultivated and claiming right over the property was not
accepted by the defendants and son of the plaintiff has also accepted that
they had knowledge that the portion of the disputed land was sold 10-12
years prior, meaning thereby, even if Article 110 is applied from the year
1987, the suit filed in the year 2014 is barred by time. From the
statements of plaintiff witnesses including the plaintiff, it is clear that
the plaintiff was fully aware of the fact that the disputed land was being
used by the defendants and they were not providing any share in the said
property to the plaintiff and she had knowledge about the sale of portion
of disputed land, but cause of action shown in the plaint of the year
2014, does not mean that limitation should be counted from that date
itself. The limitation is counted in the facts and circumstances of the
case. When the issue is specifically framed with regard to limitation, the
court has to consider the overall circumstances and determine the actual
date of cause of action. In the case at hand, the court has rightly
observed that as per the statement of plaintiff witnesses cause of action
arose in 1987. The suit has not been filed even within the period of 12
years from the date of exclusion of the plaintiff's right over the suit
property as in 1987 the land got recorded in the name of defendants and
plaintiff was kept away from that mutation. As such, the suit was barred
by time and it is rightly dismissed by the court below on the ground of
limitation. The Supreme Court in re Dahiben v. Arvindbhai Kalyanji
Bhanusali (Gajra) dead through Legal Representatives and others
(2020) 7 SCC 366 has observed as under:-
"24. "Cause of action" means every fact which would be
necessary for the plaintiff to prove, if traversed, in order to
support his right to judgment. It consists of a bundle of
material facts, which are necessary for the plaintiff to
prove in order to entitle him to the reliefs claimed in the
suit."
Thus, question No.(i) framed by this Court is answered that the
suit was rightly dismissed on the ground of limitation.
11. Albeit, the finding with regard to entitlement of the plaintiff
claiming 1/4th share in the property was also decided by the trial court
holding that the amendment having no retrospective effect and on the
date i.e. 09.09.2005 when this amendment was brought into operation,
the father of plaintiff was not alive and therefore she cannot be
considered a coparcener. However, such a finding of the court below is
not proper in view of the judgment passed by the Supreme Court in the
case of Vineeta Sharma (supra) as per the observations made in
paragraph 129 of the said judgment. Although, the respondents have not
argued this aspect, but in my opinion, the finding given by the court
below in respect of the right of the plaintiff over the property is not
sustainable, therefore, it is set aside because the death of father of the
plaintiff prior to date of amendment is immaterial and does not defeat
the right of the plaintiff to get the share over the property but in view of
the finding given by the court below about limitation and affirmed by
this Court, the appeal in my opinion deserves to be dismissed as the suit
filed by the plaintiff was rightly held by the court below as time barred.
Thus, the question No.(ii) framed by this Court is answered that
the court below erred in arriving at a finding that the plaintiff was not
having a coparcenary right over the disputed property.
12. In sum and substance, the appeal fails and is hereby
dismissed.
(SANJAY DWIVEDI)
JUDGE
sudesh
SUDESH
SHUKLA
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Date: 2025.04.17 17:19:51 +05'30'
