Rajasthan High Court
Radheyshyam And Anr vs Lala And Anr Thr Lrs on 10 March, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No.1/2018
1. Radheyshyam S/o Ranglal, R/o Kuhada Khurd
2. Sitara S/o Ranglal, R/o Kuhada Khurd Tehsil Todaraisingh
District Tonk
----Appellants-Plaintiffs
Versus
1. Lala S/o Bajranga, R/o Kuhada Bujurg
2. Bajranga S/o Jagnath, R/o Kuhada Bujurg Tehsil Todaraisingh
(since deceased) Jaipur through his legal heirs:
2/1. Ramesh
2/2. Naresh
2/3. Mukesh S/o Bajranga, R/o Kuhada Bujurg, Tehsil Todaraisingh
2/4. Geeta W/o Bajranga, R/o Kuhada Bujurg, Tehsil Todaraisingh
3. Devkaran S/o Bhura, R/o Kuhada Bujurg, Tehsil Todaraisingh
(Hajaf)
4. Krishan Gopal S/o Hanuman, R/o Malpura
5. Dhannalal S/o Bhoja, R/o Pipla Sukhniwaspura Teh.
Todaraisingh Distt. Tonk Raj.
----Respondents-Defendants
For Appellant(s) : Mr. Jagdish Narain Sharma
For Respondent(s) : Mr. Rakesh Kumar with
Mr. Abhimanyu Singh Bhati
HON'BLE MR. JUSTICE SUDESH BANSAL
Order
10/03/2022
1. Appellants-plaintiffs have filed this second appeal assailing
the judgment and decree dated 07.11.2012 passed by Additional
Civil Judge (J.D.), Todaraisingh District Tonk in in Suit No.24/2000
which has been affirmed by first appellate court vide judgment
dated 15.11.2017 passed by Additional District Judge, Malpura
District Tonk in Civil First Appeal No.24/2012.
2. It appears from the record that plaintiffs filed a civil suit for
declaration of will dated 17.07.1996 as null and void on
06.12.2000. The said will was alleged to be executed vide one
(2 of 4) [CSA-1/2018]
Janglya in favour of defendants. Janglya is said to be natural
grand-father of plaintiffs. The property in question for which the
will was executed is said to be belonged to one Bakhtawar, who is
father of Janglya. Plaintiffs claimed in their plaint that the will in
question came to their knowledge on 09.02.1999, and thereafter
they have filed this civil suit on 06.12.2000. However, as per
evidence which came on record before the trial court, it was
observed that plaintiffs have come to know about the will in
question on 10.04.1997. The trial court found the civil suit beyond
limitation and while deciding issue No.6, against plaintiffs
dismissed the suit on the ground of limitation.
3. On filing first appeal, the first appellate court has dismissed
the appeal and affirmed the findings of issue No.6 and upheld the
judgment and decree dated 07.11.2012.
4. Learned counsel for plaintiffs have argued that trial court
should have considered all the issues on merits and has
committed jurisdictional error in dismissing the suit only after
considering the issue No.6 of limitation and dismissing their suit
only on the ground of limitation. In support of his arguments
learned counsel has placed reliance on judgments passed by
Hon'ble Supreme Court in case of Talati Kantilal Bhurabai v.
Lalitaben reported in [AIR 1977 SC 2133] and in case of
Chetan Textiles v. M/s Jethabhai Hirji reported in [AIR
1985 GUJARAT 95].
5. Per contra, learned counsel appearing for respondents
submits that the trial court is well within its jurisdiction in
dismissing plaintiffs' suit on the ground of limitation when the suit
was not within limitation, there was no occasion/purpose to
consider and decide other issues on merits.
(3 of 4) [CSA-1/2018]
6. Heard learned counsel for both parties and perused the
impugned judgments as well as record.
7. It appears that apart from this civil suit, earlier the same
litigation was pending, wherein defendants filed an application
(Exhibit-14) to which plaintiff No.1-Shri Radheyshyam filed reply
(Exhibit-15). In reply, plaintiff has candidly admitted that will
dated 17.07.1996 has been executed in favour of defendants and
alleged such will as forged. The reply was filed by plaintiff No.1 on
10.04.1997. Thus, the trial court, on the strength of documentary
evidence of Exhibit-15 and as per the oral evidence of plaintiff and
his witnesses, concluded that plaintiffs came to know about the
will in question on 10.04.1997. It was observed that as per
Section 59 of the Limitation Act, 1963, the limitation for filing the
suit for declaration to assail the document in question is three
years, starts from the date when the instrument/document first
came known to plaintiffs on 10.04.1997. In the present suit, trial
court categorically found that the will in question has come to
knowledge of plaintiffs on 10.04.1997, therefore, they could have
filed civil suit for declaration of the alleged will as null and void by
or before 10.04.2000. Undeniably, the present civil suit has been
filed on 06.12.2000. It is no more res integra, the provision of
condonation of delay, as enshrined under Section 5 of Limitation
Act, do not apply for condoning the delay in filing the civil suits.
Thus, the trial court dismissed the plaintiffs' suit holding the same
has been filed beyond the prescribed period of limitation and did
not consider other issues on merits.
8. Learned counsel for plaintiffs has not pointed out any
illegality or perversity in the findings recorded by the trial court in
relation to issue No.6 whereby and whereunder the trial court has
(4 of 4) [CSA-1/2018]
observed that civil suit for declaration of the will as null and void is
barred by limitation. Findings of trial court are based on the
document of plaintiffs themselves Exhibit-15 as well as oral
evidence of plaintiffs and their witnesses. Findings are duly based
on appreciation of evidence. The appellate court has also not
found no infirmity/ illegality in the said findings.
9. Since findings of fact recorded by both courts below are
based on appreciation of evidence and no illegality/jurisdictional
error/ perversity have been pointed out, it is not required to
remand the appeal for the purpose of considering/deciding other
issues on merits. Once the trial court has found the civil suit
beyond limitation, it is no more res integra that the civil suit, if
barred by limitation, can be rejected under Order 7 Rule 11 CPC
even as per the recent judgment of Hon'ble Supreme Court passed
in case of Srihari Hanumandas Totala vs. Hemant Vithal
Kamat & Ors. Reported in [(2021) 9 SCC 99].
10. Thus, this Court is of considered opinion that the trial court
has not committed any illegality or perversity or jurisdictional
error in dismissing the plaintiffs' suit on the ground of limitation,
which has been affirmed by the first appellate court. Since, no
question of law arises in the second appeal, the same is not liable
to be entertained by this Court and hence the same is hereby
dismissed. No order as to costs.
11. All pending application(s), if any, stand(s) disposed of.
(SUDESH BANSAL),J
SAURABH/4
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