REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.5870 OF 2015

Ghewarchand & Ors.  ….Appellant(s)

VERSUS

M/s Mahendra Singh & Ors.        …Respondent(s)

J U D G M E N T

Abhay Manohar Sapre, J.

1) This appeal is filed against the final judgment

and order dated 04.12.2006 passed by the High

Court of  Rajasthan at Jodhpur in S.B.  Civil First

Appeal No.52 of 1997 whereby the High Court

allowed the appeal filed by the

respondents(defendants) and set aside the judgment

and decree dated 30.10.1996 passed by the

Additional District Judge No.3 Jodhpur in Civil Suit

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No.135 of 1995(146/1978) and dismissed the suit

filed by the appellants(plaintiffs) as barred by time.

2) In order to appreciate the question involved in

the appeal, it is necessary to set out few facts infra.

3) The appellants are the plaintiffs  whereas the

respondents are the defendants in a civil suit out of

which this appeal arises.

4) The short question involved in this appeal is

whether the High Court was justified in allowing the

defendants’ first  appeal  and thereby dismissing the

appellants’ (plaintiffs) suit as barred by time.

5) The appellants (plaintiffs) filed a civil suit

against the respondents (defendants) in relation to

the suit property, as detailed in Para 1 of the plaint,

for claiming the reliefs mentioned in para 26(3) of the

plaint which reads as under:  

“26.  Plaintiffs humbly pray that:

1. Decree for declaration of title be passed in favour of plaintiffs and against the defendants that property as described in Para No.1 of this suit belongs to Sh.  Oswal Singh  Sabha, Jodhpur and defendants Sh. Kishan

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Singh does not have any kind of ownership rights over it.

2. Decree for permanent injunction be passed in favour of plaintiffs and against the defendants that defendants be restrained from making any  kind of claim  or from carrying out any kind of proceeding and interfering in the possession of disputed property forever.

3. Possession of above property be provided to the plaintiff from the receiver.

4. Cost of this suit be also provided to the plaintiffs from the defendants.

5. Other relief, which this Hon’ble Court may deem fit, be also provided to the plaintiffs.”

   (Emphasis supplied)          

6) The  respondents (defendants) filed the  written

statement and joined issues on facts and law by

denying the material allegations made in the plaint.

The respondents,  inter alia,  also raised an objection

that the suit is barred by limitation.

7) The Trial Court, by judgment/decree answered

all the issues on facts and law including the issue of

limitation in appellants’ favour and against the

respondents and accordingly decreed the suit. It was

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held that the appellants are the owners of the suit

property; they are entitled to claim possession of the

suit  property  from the respondents;  and lastly, the

suit is within limitation.

8) The respondents (defendants) felt aggrieved and

filed first appeal in the High Court of Rajasthan at

Jodhpur.  By impugned judgment, the Single Judge

allowed the appeal and set aside the judgment and

decree of the Trial Court and, in consequence,

dismissed the suit only on the ground that the suit is

barred by limitation. In other words, the High Court

upheld all the factual findings of the Trial Court in

appellants’ (plaintiffs’) favour but reversed the finding

on the issue of limitation and held that since the suit

is hit by the period of limitation prescribed under the

Indian Limitation Act, 1963, it is liable to be

dismissed on the  ground of limitation. In this view of

the matter, the defendants’ appeal was allowed and

the suit was dismissed as being barred by limitation

having been filed beyond the period prescribed under

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the Limitation Act giving rise to filing of the present

appeal by way of special leave in this Court by the

plaintiffs.

9) Mr. S.K. Jain, learned senior counsel appeared

for the appellants (plaintiffs). None appeared for the

respondents though served.

10) Having heard the learned counsel for the

appellants (plaintiffs) and on perusal of the record of

the case, we are inclined to allow the appeal and set

aside  the  impugned  judgment only  to  the extent  it

decides that the suit was barred by limitation and, in

consequence, restore the judgment of the Trial Court

holding that the suit was filed within limitation.

11) In our considered opinion, the Trial Court was

right in holding that the plaintiffs’ (appellants herein)

suit was filed within limitation whereas the High

Court was not right in reversing this finding.  This we

say for the following reasons.

12) On perusal of the judgment of the Trial Court,

we find that the Trial Court applied Article 65 of the

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Limitation Act for holding the suit to be within

limitation because it was filed by the plaintiffs within

12 years from the date of accrual of cause of action

prescribed in Article 65.

13) The High Court, however, was of the view that

the plaintiffs’(appellants) suit against the defendants

(respondents) was essentially for declaration and

consequential injunction and, therefore, it was

governed by the period of three years limitation,

which was to be counted from the date of accrual of

first cause of action.   It was held that since the suit

was not filed within three years, it was barred.

14) It is apposite to reproduce the finding of the

High Court on this issue:

“……..However,  nothing  was  pleaded by  the plaintiffs in relation to the said order dated 20.09.1983 and the suit was prosecuted in its original form only.   With conscious omission on the part of the plaintiffs to sue for possession, the submissions strenuously made by learned counsel Mr. Mehta with reference to Article 65 of the Limitation are of no avail.  The suit was for declaration and consequential injunction only  and having admittedly been filed much beyond the period of three years from the date of  first accrual of cause of action, remains hopelessly

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barred by the limitation and, therefore, deserves to be dismissed.”  

   (Emphasis supplied)

15) Without going into any factual controversy and

the lengthy pleadings, which we consider not

necessary, the High Court, in our view, was factually

not  correct  in observing  that the suit  was  filed  for

declaration and injunction only and “not for

possession”. (See underlined portion above).  

16) In our view, mere perusal of the relief in clause

26  (3)  of the  plaint  quoted  in para 5  above would

show that the plaintiffs had also prayed for decree of

possession of the suit property from the defendants.

17) It is not in dispute as the pleadings would go to

show that the suit property was the subject matter of

the proceedings under Section 145 of the Criminal

Procedure Code, 1973 (hereinafter referred to as “the

Cr.P.C.”) between the parties before the City

Magistrate  wherein both the  parties  were claiming

their right, title and interest including asserting their

possession over the suit property against each other.

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It is also not in dispute that the City Magistrate vide

his order dated 23.12.1966 attached the suit

property.

18) The plaintiffs, therefore, filed a civil suit on

19.12.1978 for claiming a declaration of their title on

the suit property, injunction and possession against

the  defendants.  Since  the  suit  was  for  declaration,

permanent  injunction and possession,  Article  65 of

the Limitation Act was applicable, which provides a

limitation of 12 years for filing the suit which is to be

counted  from the  date  when  the  possession of the

defendant becomes adverse to the plaintiffs.  

19) As per the allegations in the plaint, the

defendants’ possession, according to the plaintiffs,

became adverse when the defendants in Section 145

of the Cr.P.C. proceedings   asserted their right, title

and interest over the suit property to the knowledge

of the plaintiffs for the first time and which

eventually  culminated  in passing  of  an attachment

order by the  City  Magistrate on 23.12.1966. This

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action on the part of the defendants, according to the

plaintiffs, cast cloud on the plaintiffs’ right, title and

interest over the suit property and thus furnished a

cause of action for claiming declaration of their

ownership over the suit property and other

consequential reliefs against the defendants in

relation to the suit property. (see para 23 of the

plaint)  

20) In our opinion, the plaintiffs, therefore, rightly

filed the civil suit on 19.12.1978 within 12 years from

the date of attachment order dated 23.12.1966. The

assertion of the right, title and interest over the suit

property by the defendants having been noticed by

the plaintiffs for the first time in proceedings of

Section 145 of the Cr.P.C. before the City Magistrate,

they were justified in filing a suit for declaration and

possession. It was, therefore, rightly held to be within

limitation by the Trial Court by applying Article 65 of

the Limitation Act.

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21) In order to decide the question of limitation as

to whether the suit  is filed within time or not, the

Court is mainly required to see the plaint  allegations

and how the plaintiff has pleaded the accrual of

cause of action for filing the suit.   In this case, we

find that the plaintiffs satisfied this requirement to

bring their suit within limitation.

22) As mentioned above, the defendants

(respondents) lost the suit on merits on all fronts as

they could neither prove their title and nor their

lawful possession over the suit property.   They,

however,  succeeded  in  the High Court  only  on  the

point of limitation which had resulted in non­suiting

the plaintiffs.  Since the defendants did not file any

cross objection in the appeal against the adverse

findings recorded  by the two Courts  below against

them, it is not necessary for this Court to examine

the legality and correctness of those findings in this

appeal.  

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23) In the light of the foregoing discussion, we

cannot concur with the view taken by the High Court

on the question of limitation. It is legally

unsustainable and hence deserves to be set aside.    

24) The appeal thus succeeds and is accordingly

allowed. Impugned judgment insofar as it holds that

the appellants’ (plaintiffs’) suit is dismissed as being

barred by limitation is hereby set aside.  As a result,

the judgment and decree of the Trial Court is

restored in favour of the appellants(plaintiffs).  

………...................................J.   [ABHAY MANOHAR SAPRE]

                                    …...……..................................J.

        [S. ABDUL NAZEER] New Delhi; September 20, 2018  

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