Sanjay Dutt vs Suresh Chand And Others

Ajay Mohan Goel, J

By way of this appeal, appellant/plaintiff has prayed for the following reliefs:-

"It is, therefore, respectfully prayed that this appeal may kindly be allowed and after setting aside judgment and decree as passed by the Learned District Judge (Forest) Shimla dated 293.2008, the judgment and decree as passed by the Learned Trial Court dated 18.7.2005 may kindly be affirmed by decreeing the suit filed by the Plaintiff/Appellant.

Any other suitable relief as deemed fit under facts and circumstances of case may also kindly be given to the present Appellant and against the Respondents."

This appeal was admitted on 20.11.2008 on the following substantial questions of law:-

"(a) Whether the property in suit having been held to be ancestral in the hands of father of the Appellant, therefore, the transaction of Gift Deed No. 327 as registered in the office of Sub Registrar Shimla on 21.6.1982 is illegal and void and the validity thereof can be challenged at any point of time.

(b) Whether the Learned District Judge below has wrongly held claim of Appellant to be barred by limitation because neither specifically any plea was railed on this account, nor issue was framed thereon and the plea of limitation being mixed question of Law and facts, therefore, the same could not be decided in favour of the Respondents without trial on this account.

(c) Whether the Appellant Sanjay Dutt is not bound by the earlier findings by the civil courts in Civil Suit filed by his mother bearing Suit No. 68/1 of 1988 which was dismissed on 19.7.1993 because she acted negligently and failed to act prudently."

Today, when the appeal was taken up for hearing, learned Senior Counsel for the appellant has submitted that he shall be addressing the Court first on substantial question No. (b), as according to him, in case he is successful in persuading this Court on the said substantial question of law, then he would be making a prayer for remand of the case to the appropriate Court for adjudication afresh.

Brief facts necessary for adjudication of this appeal are as under:-

Present appellant (hereinafter referred to as 'plaintiff') filed a suit for declaration that he was the son of Sh. Bhupa alias Bhup Ram and the alienation made by Sh. Bhoopa through Deed No. 327, dated 21.6.1982 in favour of defendants No. 1 and 2 is illegal, void, inoperative and not binding against the rights of the plaintiff and findings returned by learned Sub Judge (4), Shimla in Civil Suit No. 68/1 of 1998, decided on 19.7.1993 as also in Appeal No. 89-A/13 of 1993, dated 23.5.1995, were also illegal and not binding upon the plaintiff.

The suit was resisted by the defendants.

On the basis of pleadings of the parties, learned trial Court framed the following issues:-

"i). Whether the plaintiff is entitled to the decree of declaration, as prayed for? OPP

ii). Whether the plaintiff is entitled to the decree of permanent prohibitory injunction as prayed for? OPP

ii-A).Whether the plaintiff is entitled to the relief of possession, as prayed? OPP

iii). Whether the suit of the plaintiff is barred by principle of res- judicata, as alleged? OPD

iv). Whether the suit is not properly valued for the purpose of court fee and jurisdiction, as alleged? OPD

v). Whether the plaintiff is estopped to file the present suit, as alleged? OPD

vi). Whether the suit is filed by the plaintiff in collusion with the proforma defendant No. 3, as alleged? OPD

vii). Whether the suit is not maintainable, as the suit is simplicitorly and declaratory in nature without any prayer of possession, as alleged? OPD

viii). Relief."

On the basis of pleadings and evidence led by the parties in support of their respective cases, the issues so framed were answered by the learned trial Court as under:-

"Issue No.(i)

: Yes.

Issue No. (ii)

: Yes.

Issue No. (ii-A)

: Yes.

Issue No.(iii)

: No.

Issue No. (iv)

: No.

Issue No. (v)

: No.

Issue No. (vi)

:No.

Issue No. (vii)

:Redundant.

Relief

:The suit of the plaintiffs is decreed as per operative part of the judgment."

The suit of the plaintiff was decreed by the learned Civil Judge (Junior Division), Court No. (4), Shimla, vide judgment and decree dated 18.7.2005 in the following terms:-

"This suit coming for final disposal before me Abira Basu, Civil Judge Jr. Division Court No. 4, Shimla today the 18th day of July, 2005 in the presence of Shri Anil Tanwar Advocate for the plaintiff and Sh. T.C. Sharma Advocate for defendants and proforma defendant already ex parte. It is ordered that the suit of the plaintiff is decreed and decree for declaration is passed to the effect that he is s/o of late Bhoop Ram @ Bhoopa, as such, inherited the property to the extent of his share in joint property and the Gift Deed dated 21.6.1982, No. 327 is declared to be illegal, void, inoperation and not binding upon the plaintiff and also the judgment and decree dated 19.7.1993 in Civil Suit No. 68/1 of 1998, which was confirmed in appeal decided on 23.5.1995 decided by the Ld. District Judge, Shimla is also declared to be illegal, void and inoperative against the plaintiff, being passed due to gross negligence of the proforma defendant No. 3. The plaintiff is also held entitled to decree of permanent prohibitory injunction, restraining the defendants No. 1 and 2 from alienating the property left by late Bhoop Ram @ Bhoopa. Further the plaintiff is held entitled to possession of land of his share i.e. 1/12th share in land measuring 106-6 Bighas, entered as Khata No. 84, Khatauni No. 128 to 131 Khewat No. 85, Khatauni No. 132, situated at Village Noha, Pargana Jai, Tehsil and Distt. Shimla and also in Village Dubloo, pargana Jai, Tehsil and District Shimla to the extent of 1/4th share in Khara No. 25, Khatauni No. 35, measuring 27 bighas, 1/4th share in Khewat No. 24, Khatauni No. 34, Khasra No. 843, 1/12th share in Khewat No. 26, Khatauni No. 36, measuring 36-18 Bighas, and Khewat No. 28, Khatauni No. 38, measuring 95-1 Bighas, No orders so as to cost."

Feeling aggrieved, defendants filed an appeal, i.e. Civil Appeal No. 64-S/13 of 05/05. Same stood allowed by the learned Appellate Court vide judgment and decree dated 29.3.2008.

Learned Appellate Court while setting aside the judgment passed by the learned trial Court held that the suit filed by the plaintiff was not within limitation as the suit had not been filed by the plaintiff within three years from the date of his attaining the age of majority. It held that the aspect of limitation of the suit though pleaded was not taken into consideration by the learned Trial Court. An application filed under Order 41, Rule 27 of the Civil Procedure Code by the plaintiff before the learned Appellate Court to prove the ancestral nature of the property was also dismissed.

Feeling aggrieved, the plaintiff has filed this appeal.

Learned Senior Counsel appearing for the appellant has vehemently argued that the judgment passed by the learned Appellate Court is not sustainable in the eyes of law as while allowing the appeal, learned Appellate Court erred in not appreciating that in the absence of any Issue having been framed by the learned trial Court whether the suit was with limitation of not, and in the absence of any opportunity having been granted to the plaintiff to prove by leading substantive evidence that the suit was within limitation, learned Appellate Court could not have set aside the judgment and decree passed by the learned trial Court simply by holding that the suit was barred by limitation. Mr. Verma has further argued that learned Appellate Court has erred in not appreciating that mentioning in the written statement that the suit was barred by limitation was not enough because no request was made by the defendants before the learned Trial Court for framing of Issue on limitation and as defendants had not agitated the factum of suit being barred by limitation before the learned Trial Court, there was a presumption that they had given up the said plea.

On the other hand, Mr. Tek Chand Sharma, learned Counsel for respondents No. 1 and 2 has argued that as the plea of limitation was a technical plea, it could be raised by the party at any stage, therefore, there was nothing wrong with the findings returned by the learned Appellate Court which dismissed the suit filed by the plaintiff that the same was barred by limitation.

I have heard learned Counsel for the parties at a considerable length and also gone through the record of the case as also the judgments and decrees passed by the Courts below.

Though, it is not in dispute that in the written statement filed by the defendants, it stood mentioned that the suit filed by the plaintiff was barred by limitation, however, when learned trial Court framed Issues, no Issue was framed on the point as to whether the suit was barred by limitation or not. Record suggests that no request was made by the defendants before the learned trial Court at any stage that there was a necessity of framing an additional Issue as to whether the suit was barred by limitation or not.

Though, the plea of limitation is a technical plea, however, the same is both a question of law and fact. As the plea of suit being barred by limitation obviously was the case put up by the defendants, then had an Issue been framed on this point by the learned trial Court, the onus to prove the same would have had been upon the defendants.

But obvious, while discharging the said onus, not only the defendants would have had got opportunity to lead evidence to prove their point, the plaintiff would have also had got an opportunity to lead evidence to demonstrate and prove that the suit was within limitation.

This extremely important aspect of the matter has been ignored by the learned Appellate Court while setting aside the judgment and decree passed by the learned trial Court on the ground that the suit was barred by limitation. It also erred in not appreciating that in the absence of defendants having called upon the learned trial Court to frame an Issue on limitation, there was a presumption that the defendant had given up said plea. In the absence of there being any Issue on the plea of limitation, but obvious, plaintiff did not got an opportunity to demonstrate that the suit was within limitation. Non-suiting the plaintiff in appeal on this count by the learned Appellate Court is totally unjustified.

This Court is not oblivious of the fact that it is not as if non-framing of an Issue in all cases is fatal. It is settled law that where parties go to trial knowing fully well as to what is the respective case of the other side, then it cannot assail the judgment simply on the ground of non-framing of an Issue. However, in the present case, facts are slightly different. Though defendants in the written statement took the plea that the suit was barred by limitation, however, record suggests that not only no Issue in this regard was framed by the learned trial Court but the said point was not agitated/raised by the defendants before the learned trial Court. This is evident from the fact that no review of the judgment and decree passed by the learned Trial Court was filed by the defendants on the ground that despite their having raised the plea of limitation, the same was not decided by the learned Trial Court. The only inference which can be drawn from the same is that this plea was in fact never raised before the learned Trial Court by the defendants but after the suit was decided against them, they got wiser and raised this plea in appeal. This important aspect of the matter has also been ignored by the learned Appellate Court while allowing the appeal on the plea of limitation.

If the learned Appellate Court was of the view that the suit was barred by limitation and as learned trial Court had neither framed an issue on this point nor had adjudicated the same despite pleadings, then there was course available before the learned Appellate Court which inter alia included limited remand of the case to the learned trial Court for the purpose of framing and adjudicating the said Issue. However, rather than doing so, learned Appellate Court straight away set aside the judgment and decree passed in favour of present appellant, which in my considered view, has resulted in injustice to the appellant/plaintiff.

Accordingly, this appeal is allowed and judgment and decree dated 29.03.2008, passed by learned Appellate Court in Civil Appeal No. 64-S/13 of 06/05, is set aside and the matter is remanded back to the learned Appellate Court to decide the case afresh after hearing the parties. Substantial questions of law (b) stands decided accordingly. As the matter has been remanded back to the learned Appellate Court, there is no need to adjudicate upon substantial question of law (a).

The appeal stands disposed of in above terms, so also pending miscellaneous application(s), if any. No orders as to costs.