Halki Bai And Others vs Hemant Kumar @ Rakesh Kumar And Others

Heard on the question of admission.

The instant appeal is arising out of the judgment and decree dated 30.01.2006 passed by the District Judge, Narsinghpur in a Regular Civil Appeal

No.25-A/2005 whereby the Appellate Court has dismissed the appeal and affirmed the judgment and decree passed by the First Civil Judge, Class-II,

Narsinghpur on 18.07.2005.

As per facts of the case, on 01.09.1972, the father of the plaintiff purchased the suit property through registered sale-deed. At the time of purchase of

suit property, the plaintiff was minor and thereafter, the said suit property was owned and possessed by the plaintiff. As per the plaintiff, his father

was cultivating the suit land when he was minor but defendant namely Babulal has forcefully dispossessed him and obtained possession over the suit

property. The plaintiff thereafter, initiated proceeding under Section 250 of the M.P. Land Revenue Code for dispossessing the defendants. In

pursuant to that, a revenue case No.5A/70 year 83-84 was registered, in which, on 15.07.1986 the Tehsildar, Kareli has passed an order directing that

the possession of the suit property be given to the plaintiff but the plaintiff could not get possession over the same. The defendant Babulal had died on

29.03.2000 and after his death, the other defendants i.e. defendant Nos.2 and 3, daughters of the original defendant and defendant No.4, son of the

original defendant came in possession over the said suit property.

Defendant No.1 Smt. Halki Bai also filed a suit against the plaintiff before the Civil Judge, Class-II, Narsinghpur on 05.02.1987 which was registered

as Civil Suit No.31-A/89 and by judgment and decree dated 30.03.1994, the said suit was dismissed. An appeal was also preferred against the said

judgment and decree which was also dismissed by the Additional District Judge, Narsinghpur vide judgment and decree dated 17.11.2003. Despite that

the plaintiff could not get the possession over suit property and then Civil Suit has been filed by the plaintiff against the defendants for seeking

possession over the suit property. In the Civil Suit, the trial Court framed as many as 10 issues in which, one of the issues, which is relevant for the

purpose of the instant second appeal i.e. issue No.6 was whether the suit filed by the plaintiff was time barred and the trial Court has decided the

issue in favour of the plaintiff holding that the suit was within the limitation and other issues have also been decided in favour of the plaintiff and

decree for possession as well as damages was also passed in favour of the plaintiff/respondent.

The appeal was preferred against the judgment and decree passed by the trial Court and that appeal was also dismissed vide judgment and decree

dated 30.01.2006 in which, the Appellate Court has also approved the finding given by the trial Court in respect of the limitation holding that the suit

was within the limitation.

Learned counsel for the appellants argued the appeal on two points; firstly that the finding given by the Courts below in respect of the limitation is

contrary to law and was perverse because suit was apparently time barred as plaintiff was in knowledge of possession of the defendants since

beginning and as per his own admission, it is clear that considering the knowledge of possession of defendants, the finding given by the Courts below

regarding limitation is erroneous. Learned counsel for the appellants has drawn the attention of this Court towards statement made by the plaintiff in

which, he has admitted that since

November, 1983, the defendants have forcefully possessed the suit property and in view of the admission made by the plaintiff, the suit filed by the

plaintiff is time barred. Although, admittedly at the time of dispossession, the plaintiff was minor and as per Section 6 of the Limitation Act, the minor

is having the same limitation as available in normal course for filing the suit. Accordingly, the plaintiff gets 12 years limitation for filing the suit. From

the cause-title, it is clear that on the date of filing of the suit i.e. 20.06.1994, the plaintiff was aged about 22 years meaning thereby, the suit filed by

him after attaining the majority is well within the limitation. The Appellate Court has dealt with this situation and taken note of Section 6 as well as

Article 65 of the Limitation Act.

Considering the limitation provided for filing the suit for possession, it is clear that the finding given by the Courts below in respect of limitation of filing

of suit does not suffer from any infirmity and that does not constitute any substantial question of law.

Learned counsel for the appellants has also argued that the suit is also hit by res judicata for the reason that on earlier suit filed by the defendants, the

Court has discussed the issue in respect of possession and, therefore, subsequent suit cannot be filed by the plaintiff for possession and accordingly,

the suit should have been dismissed on the ground of res judicata as per Section 11 of the Code of Civil Procedure. Learned counsel for the appellants

also relies upon a decision reported in AIR1966 Supreme Court 1332 parties being Sheodan Singh Vs. Daryao Kunwar especially paragraph-20 has

been pointed out by the counsel for the appellants showing that the Supreme Court has very categorically observed in this case the if any suit is tried

between the same parties, although for different purpose and particular issue has been discussed by the Court then on the same issue, the subsequent

suit is barred. As per learned counsel for the appellants that earlier a suit has been filed by the defendants against the plaintiffs for declaration of sale-

deed dated 01.09.1972 void and also for permanent injunction but the said Civil Suit was dismissed and appeal preferred by them was also dismissed

although, she submits that in paragraph-14 of the trial Court, the issue regarding possession was also discussed and, therefore, subsequent suit in view

of decision of Sheodan Singh (supra) is hit by res judicata and should have been dismissed on this count alone.

However, the said decision is not applicable and even Section 11 is not applicable in the present case for the reason that there was no quarrel in a

subsequent suit in respect of possession of the defendants over the suit property and the trial Court has not dealt with the issue of possession but on

the basis of admitted position that the plaintiff was not possessing of the suit property, he filed a suit for taking possession back from the defendants

and also claimed damages as the suit property was purchased by the plaintiff by a registered sale-deed and was being used by the defendants

unauthorizedly. Thus, there is no substance in the arguments advanced by the appellants that the suit should have been dismissed on the ground of res

judicata.

Accordingly, I do not find any substance in the contentions raised by the appellants and no substantial question of law is involved in the appeal, the

same is therefore, dismissed.