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Civil · Reportable judgment

Ghewarchand & Ors. vs M/s Mahendra Singh & Ors.

Court
Supreme Court of India
Date
20 September 2018
Case No.
Civil Appeal No. 5870 of 2015
Result
Allowed
Bench
Abhay Manohar Sapre, S. Abdul Nazeer
Citation
[2018] 11 S.C.R. 738 : 2018 INSC 840
Supreme Court Reports [2018] 11 S.C.R. 738 : 2018 INSC 840
Headnote

Limitation Act, 1963 – Art.65 – Applicability of – Appellantsplaintiffs filed a civil suit against the respondents-defendants in relation to a property – Trial Court held all the issues including the issue of limitation in favour of the plaintiffs and decreed the suit – However, the High Court reversed the finding on the issue of the limitation and dismissed the suit of plaintiff on the ground of limitation, as suit was for declaration and consequential injunction and, therefore, it was governed by the period of 3 years limitation – On appeal, held: High Court was factually not correct in observing that the suit was filed for declaration and injunction only and ‘not for possession’ – The plaint showed that the plaintiffs had also prayed for decree of possession of the suit property from the defendants – Furthermore, the suit property was also the subject matter of the proceedings u/s.145 Cr.P.C., where both parties were claiming their right, title and interest including possession over the suit property against each other, and suit property was attached by the City Magistrate by order dated 23.12.1966 – Art. 65 of the Act provides 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 plaintiff – Art.65 was applicable and the Plaintiffs rightly filed the civil suit on 19.12.1978 within 12 years from the date of attachment order dated 23.12.1966 – Thus, order of the trial Court holding that the suit was filed within limitation is restored – Code of Criminal Procedure, 1973 – s.145.

Allowing the appeal, the Court

HELD: 1. The High Court 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. [Para 13] [742-B-C]

2. Without going into any factual controversy and the lengthy pleadings, the High Court was factually not correct in observing that the suit was filed for declaration and injunction only and “not for possession”. [Para 15] [742-F-G]

Read the full headnote (4 more paragraphs)

3. Mere perusal of the relief in clause 26 (3) of the plaint would show that the plaintiffs had also prayed for decree of possession of the suit property from the defendants. Furthermore, 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 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. It is also not in dispute that the City Magistrate vide his order dated 23.12.1966 attached the suit property. [Paras 16 and 17] [742-G-H; 743-A-B]

4. 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. [Para 20] [743-F-G]

As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.

Full Judgment Text

The Judgment of the Court was delivered by 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 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 appe
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