State of J & K vs Janki Devi & Ors.

This civil second appeal has been preferred against the judgement and decree dated 27.10.1998 whereby learned District Judge, Kathua has

partly upheld the judgement and decree modified to the extent that the defendants shall be liable to pay compensation as per market value of the

suit land prevalent in the year 1993 as per their shares of disputed land which shall be determined by the Appellant after holding relevant

proceedings.

Ishar Das was the allottee of the land bearing Survey No. 11 measuring 3 kanals situated in village Kathua. He died in the year 1987. Mutation

came to be attested in favour of plaintiffrespondent. Appellants commenced construction of sub health center in the disputed land in the year 1993

and completed it accordingly. Plaintiff resisted the defendants but they promised to pay compensation to the plaintiffrespondent which was not paid

in due course. Plaintiffs instituted a suit seeking mandatory decree for payment of compensation at market rate of the land in dispute. Defendants

resisted the claim of the plaintiffs on the ground that the land is in their possession since 1956 and no promise was held out for payment of

compensation. The trial court on pleadings of the parties framed the following issues:

Whether, the suit land was allotted to deceased Ishar Dass by government Order No. 578/C and whether deceased Ishar Dass was given

physical possession of the land?OPP

Whether Ishar Dass had expired in 1987 and after his demise, the plaintiffs are legal heirs and entitled to inherit him? OPP

Whether the suit land is in possession of the defendants since 1956 and they have raised a building thereon lawfully. OPD

Whether the suit is not maintainable in view of the section 56 of Specific Relief Act? OPD

Whether the suit is not maintainable in the present form and if so, how? OPD. 6. Relief"".

Parties led evidence on the basis of which the trial court decreed the suit directing the defendants to make payment of compensation as per

prevalent market rate of 3 kanals of land over which' appellants have constructed a subhealth centre building with interest arid cost of litigation

including the counsel fee. This decree in appeal has been modified to the extent stated above. Being aggrieved of the judgement and decree of the

trial court and the appellate court, this appeal has been preferred and came to be admitted only on the limited question:

Was the suit barred by limitation?

Heard the learned counsel for the appellants.

Mr Bali has submitted that the suit deserves dismissal being hit by limitation as the appellants are in possession of the suit land since 1956. There

is no issue framed by the trial court or by the appellate court to that extent. However, in terms of section 3 of Limitation Act, 1995 (1938 A.D.)

even if such a plea of limitation is not raised or issue is not framed, it is within the province of the court and rather obligatory upon the court, if it is

made out that the suit has been instituted beyond the period of limitation to dismiss the suit. Section 3 is reproduced below:

Dismissal of suits etc. instituted etc. after the period of limitation. Subject to provision contained in sections 4 to 25 (inclusive) every suit

instituted, appeal preferred and application made after the period of limitation prescribed therefore by the first schedule shall be dismissed although

limitation has not been set up as a defence.

Respondents in paras 4 and 5 of the plaint have categorically stated that appellants have commenced construction of the building which was

resisted and were permitted to raise construction as a promise was held out to respondents by the appellants for payment of compensation. This

fact has been denied by the defendants in their written statement by bald assertion but not elaborated. There is no other evidence on record to

appreciate or determine this issue. Limitation is a mixed question of law and facts. The only evidence available on record is plaint, written statement

and the statement of the plaintiff and his witnesses which make out that while defendants were raising construction, plaintiffs resisted and they were

promised to make payment which has not been made. They have filed the suit in the year 1993 which is within the period of limitation of three

years. For dismissal of suit on the legal ground being presented beyond the period of limitation, it is required to be established by the appellants

that the suit was instituted beyond a period of three years in terms of Article 3 of the Act. The appellants could not make out for dismissal of the

suit on the grounds of limitation as the cause of action accrued to the respondents when the appellants started construction in the year 1993 and the

suit came to be presented in the same year. Consequently the appeal fails and is dismissed.