2025 INSC 478
SUPREME COURT OF INDIA
(HONBLE J. B. PARDIWALA, J. AND
HONBLE R. MAHADEVAN, JJ.)
R. NAGARAJ (DEAD)
THROUGH LRS. AND ANOTHER
Appellant
VERSUS
RAJMANI AND OTHERS
Respondent
Civil Appeal No. 5131 OF 2025
(Arising out of SLP (C) No. 36 OF 2021)-Decided on 09-04-2025
Civil, CPC
Civil Procedure
Code, 1908, Section 100; Order 6 Rule 4 and 10; Order 41 Rule 23, 23A and 25
Limitation Act, 1963, Section 3; Article
59 Second appeal Substantial question of law Concurrent
findings - Limitation Remand of case - It is a general rule that High Court
will not interfere with the concurrent findings of the Courts below - Both the
trial Court and the First Appellate Court, after detailed analysis of the oral
and documentary evidence let-in by the parties, categorically held that the
suit was hopelessly barred by limitation - Held that the evidence produced
would abundantly make it clear that D and thereafter, Respondent Nos. 1 to 3
were well aware of the earlier proceedings and the decree passed in the first
suit - The auction purchaser's title was confirmed by court orders, and
subsequent transfers were properly registered and recorded - Therefore,
Respondent Nos.1 to 3, who have knowingly slept over their right to challenge
the sale and allowed further rights to flow, cannot later question the sale of
larger extent of share in an unpartitioned property - Do not find any plausible
reasons for delay - Limitation is a matter of statute and must be strictly
enforced, more so when the earlier transaction or sale is well within the
knowledge of the parties - This principle assumes greater significance in the
present case, where the delay extends to seventeen years for filing the suit,
despite the fact that they were arrayed as respondents/Judgment Debtors in the
execution proceedings - Furthermore, protection of bona fide purchasers for
value is a significant consideration, and any disturbance to their rights or
titles after such a long period, would create uncertainty in property
transactions and undermine the sanctity of court sale Held that the High
Court was not justified in remanding the matter to the trial Court for fresh
trial solely with respect to the issue of limitation; and that, the Courts
below have rightly held that the suit was barred by limitation and Respondent
Nos. 1 to 3 are not entitled for any relief - Impugned judgment of the High
Court liable to be set aside - Judgment and decree of the trial court dismissing
the suit, as affirmed by the First Appellate Court, restored.
(Para
23 and 24)
(B) Civil
Procedure Code, 1908, Order 14 Framing of issues - The
object of framing an issue is to determine the material point of disputes
between the parties, for the purpose of adjudication - Issues can be framed on
a question of law or fact or a mixed question of law and fact - The decision on
the issue settles the lis in favour of either of the parties - A distinct issue
is to be formed when a material proposition of law or fact is affirmed by one
party and denied by another - Also, there is no necessity to frame an issue,
when the parties are not at dispute on a particular fact or law - At times,
despite pleadings, when a specific issue is not framed, but when both the
parties to the lis have let in evidence and rendered their arguments on a
point, the decision on which is intrinsically connected to the main issue, then
the Court is bound to render a finding on the point of dispute before deciding
the connected issue, one way or another - In that case, it becomes the duty of
the Court to analyze the evidence before it and render a decision on all
disputed questions of fact or law, directly or indirectly in issue, so as to
put an end to the lis.
(Para
19)
(C) Civil
Procedure Code, 1908, Order 14; Order 41 Rule 23, 23A and 25 Limitation Act, 1963, Section 3 -
Limitation Non framing of issue - Trial Court
though had not framed a specific issue on "limitation", the same
could very well fall under the broader issue - The question of limitation can
be encompassed within the larger question determined by the First Appellate
Court for determination - The failure of the trial Court and the First
Appellate Court to formulate a separate issue is not fatal to the judgment
rendered by them and has not caused any prejudice to the parties - Further, the
trial Court, in the performance of its duty, mandated under Section 3 of the
Limitation Act, 1963, has taken up the question of limitation and upon perusal
of the overall pleadings and evidence, has rightly decided the same Held that
do not agree with the decision of the High Court in remanding the matter to the
trial Court, that too after this length of time, when all materials were
available before it.
(Para
22)
(D) Limitation
Act, 1963, Section 3 Civil Procedure Code, 1908, Order 6 Rule 4 and 10 -
Limitation Pleadings - Question of law and fact Limitation is a
mixed question of fact and law - However, there is no hard and fast rule that
every question of limitation is to be treated as a mixed question of fact and
law - In cases, where the action is initiated after several years after the
right to sue accrued, without any pleadings to explain the reasons for delay or
as to when the fraud was discovered, the question of limitation is to be
treated as a question of law - A recourse may be had to Order VI Rules 4 and 10
CPC, which mandates that specific particulars would have to be given in the
pleadings - Once such a plea is raised in the pleadings, then the burden lies
on the person to prove that the delay was due to any plausible reason and it is
always well within the knowledge of the other party to contend and prove that
the opposite party had prior knowledge about the disputed fact and that his
right to sue or defend had also accrued by that date - Even in the absence of
specific pleadings regarding the limitation in the plaint or a plea of defense,
there is a bounden duty on every civil Court to ascertain as to whether the lis
has been initiated within the time prescribed under law, even if the parties to
the lis had not raised any objections - This right flows from the mandate of
Section 3 of the Limitation Act, 1963.
(Para
20)
Judgment
R. Mahadevan, J. :- Leave granted.
2. This appeal is directed against
the judgment and decree dated 17.02.2020 passed by the High Court of Judicature
at Madras[Hereinafter referred to as
"the High Court"] in Second Appeal No.406 of 1998. By the
impugned judgment, the High Court allowed the second appeal, thereby setting aside
the judgment and decree passed by the Courts below, and remitting the matter to
the trial Court for framing additional issues in respect of limitation. The
trial Court was further directed to conduct the trial afresh on the aspect of
whether the suit was barred by limitation, and to complete it within a period
of six months.
3. The genesis of the litigation
traces back to a joint Hindu family consisting of Rangappa Gowdar and his sons,
Dasappa Gowdar and Samiappan. Originally, the suit bearing O.S.No.851 of 1965[Hereinafter referred to as "the first
suit"] had been filed by the wife and daughter of the said Samiappan
viz., Sunderammal and Vennila, who are Respondent Nos.6 and 7 herein, seeking
maintenance against the said Samiappan and his father Rangappa Gowdar and
brother Dasappa Gowdar. The suit came to be decreed on 26.08.1965 and the suit
properties were attached for the maintenance amount in the execution
proceedings initiated by the plaintiffs. During the pendency of the execution
proceedings, the said Rangappa Gowdar and Dasappa Gowdar died and their legal
heirs were brought on record. Through court auction, the suit 'A' schedule
property was purchased by one Karivarada Gowdar and the sale was confirmed by
issuing certificate dated 25.09.1970 in E.P.No.424 of 1969 in O.S.No.851 of
1965 by the Court of District Munsif, Coimbatore. Since the said Samiappan
tried to encroach the suit 'A' schedule property, the said Karivarada Gowdar
filed a suit viz., O.S.No.1978 of 1972 for permanent injunction and the same
came to be decreed on 11.06.1973. Subsequently, the suit 'A' schedule property
was purchased by Respondent Nos.8 to 10 from the said Karivarada Gowdar and
they also filed a suit in O.S.No.3390 of 1981 seeking permanent injunction,
which came to be decreed on 24.07.1982. Thereafter, the suit 'A' schedule property was purchased by
Respondent No. 11 and later-on, by Appellant Nos. 1 and 2.
4. In the above background,
Respondent Nos. 1 to 3 who are the daughters and wife of Dasappa Gowdar,
instituted a suit bearing O.S.No.257 of 1982[Hereinafter
referred to as "the second suit"] before the II Additional
District Munsif, Coimbatore[Hereinafter
referred to as "the trial Court"], to set aside the decree passed
by the Court of District Munsif, Coimbatore in O.S.No.851 of 1965 and to
partition the suit 'A' and 'C schedule properties by metes and bounds in 12
equal parts and to allot the 5/12 shares to the plaintiffs and for permanent
injunction restraining the subsequent purchasers from in any manner disturbing
with the peaceful possession of the suit properties by the plaintiffs.
5. After trial, the suit was
dismissed, by judgment dated 08.09.1994, against which, Respondent Nos.1 to 3
filed Appeal Suit bearing No.207 of 1994 before the Additional District Judge,
Coimbatore[Hereinafter referred to as
"the First Appellate Court"]. By judgment dated 28.01.1997, the
appeal suit came to be dismissed. Challenging the same, Respondent Nos. 1 to 3
went on further appeal viz., S.A.No.406 of 1998, which was allowed by the High
Court, by judgment dated 17.02.2020. Aggrieved by the same, the appellants, who are the subsequent purchasers of
the suit 'A' schedule property, have preferred this appeal before us.
6. On 25.01.2021, when the matter
was taken up for consideration, this Court passed the following order:
"Exemption
from filing O. T. and c/c of the impugned order is granted. Issue notice.
In the
meantime, further proceedings in pursuance of the order dated 17.02.2020 passed
by the High Court shall remain stayed. "
7. During the pendency of this
appeal, Respondent Nos. 1 and 2 have passed away, and their legal representatives
have been brought on record and accordingly, the cause title has been amended.
Vide order dated 21.10.2022 passed in Interlocutory Application No.
101397/2022, Respondent Nos. 4, 8, 9, 11, 14 and 18 to 21 have been deleted
from the array of parties, since they are proforma parties, and they do not
have any surviving interest in the suit property. Vide order dated 21.10.2022 passed
in Interlocutory Application No. 101402/2022, the appellants have been exempted
from the requirement of substituting the legal representatives of deceased
Respondent Nos. 10 and 12. Despite the service of notice, none appeared on
behalf of the other proforma respondents viz., Respondent Nos.5 to 7, 13, 15,
16 and 17. Thus, Respondent Nos. 1 to 3 are the only contesting parties.
8. Heard the learned counsel for
the appellants and the learned counsel for the contesting Respondent Nos. 1 to
3 and also perused the materials available on record.
9. The main contention of the
learned counsel for the appellants is that Respondent Nos. 1 to 3 had been arrayed
as respondents /judgment debtors in the execution proceedings initiated in
O.S.No.851 of 1965 and hence, they had the knowledge of the proceedings even
prior to filing of the suit in O.S.No.257 of 1982. Since the second suit was
filed after a period of 17 years, it was hopelessly barred by limitation. In
such circumstances, the High Court ought not to have allowed the second appeal
and remitted the matter to the trial Court for conducting trial afresh, on the
aspect of limitation.
9.1. It is further submitted that
the suit 'A' schedule property could no longer remain as joint family property,
when the same was brought into court auction and the sale was confirmed and
possession was also handed over to the auction purchaser. However, Respondent
Nos. 1 to 3 did not take any steps to set aside the said sale, but they
conveniently filed the second suit bearing O.S. No. 257 of 1982 to set aside
the decree dated 26.08.1965 passed in the first suit bearing O.S. No. 851 of
1965 without any subsisting legal right. Further, the documentary evidence
clearly proved that Respondent Nos. 1 to 3 were aware of the execution
proceedings and that, the courts below discussed the limitation point in detail
before dismissing the suit / appeal suit filed by Respondent Nos.1 to 3, and
therefore, the necessity to frame an issue on limitation does not arise.
9.2. The learned counsel also
pointed out that the suit was not dismissed solely on the ground of limitation,
but on merits as well, observing that Respondent Nos. 1 to 3 herein are not
entitled to any relief, since they had knowledge about the earlier suit.
9.3. It is further submitted that
after admitting the second appeal, the High Court ought to have decided the
question of law relating to limitation, instead of remitting the case to the
trial Court, specially, after more than two decades from the inception of the
Second Appeal. Further, according to the learned counsel, Respondent Nos. 1 to
3 herein, failed to approach the Court with clean hands and abused the process
of law by filing such frivolous suit.
9.4. Thus, the learned counsel
submitted that the suit was rightly dismissed by the trial Court as time-barred
and the same was affirmed by the First Appellate Court. As such, the decision
of the High Court to remand the matter for framing the issue of limitation and
conducting trial afresh, is unwarranted and is liable to be set aside.
10. Per contra, the learned
counsel for Respondent Nos.1 to 3 submitted that the High Court rightly allowed
the second appeal filed by Respondent Nos. 1 to 3 and remitted the matter to
the trial Court for fresh trial, after framing the issue of limitation.
According to the learned counsel, the said issue is a mixed question of fact
and law; to decide the maintainability of the suit and without framing such
question, the trial Court and the First Appellate Court ought not to have come
to the conclusion that Respondent Nos. 1 to 3 are not entitled to the relief to
set aside the decree passed in the first suit viz., O.S. No. 851 of 1965 and to
partition the suit 'A' and 'C' schedule properties by metes and bounds in 12
equal parts and to allot the 5/12 shares to Respondent Nos. 1 to 3, and for a
permanent injunction. In this regard, reliance was placed on the decision of
this Court in Vaish Aggarwal Panchayat v. Inder Kumar & Others[(2020) 12 SCC 809].
10.1. The learned counsel further
submitted that the trial Court as well as the First Appellate Court without
framing any issue, any pleadings, and without leading any evidence, rejected
the relief sought by Respondent Nos.1 to 3 as barred by limitation. Therefore,
the High Court rightly remanded the matter to the trial Court to frame a
specific issue with regard to limitation and decide the matter afresh. Reliance
was made to the decision of this court in Ramesh B. Desai & Ors. v. Bipin
Vadilal Mehta & Others[(2006) 5 SCC
638].
10.2. It is also submitted that
the decree obtained in O.S. No. 851 of 1965 is an asseveration of fraud and
collusion.
10.3. With these submissions, the
learned counsel prayed for dismissal of this appeal filed by the appellants.
11. Upon considering the rival
submissions, the only question that arises for our consideration is whether the
High Court was justified in remanding the matter to the trial Court for a fresh
trial on the issue of limitation, despite the existence of concurrent findings,
when Section 100 of the Code of Civil Procedure, 1908[For short, "CPC"[ empowered the High Court to decide the
matter.
12. It is a well settled legal
position that Section 100 CPC confers jurisdiction on the High Court to
entertain a second appeal, only when it is satisfied that the case involves a
substantial question of law. For better appreciation, the said provision is extracted
below:
"[Substituted by Act 104 of 1976, sec.37, for
section 100 (w.e.f. 1-2-1977)][100. Second appeal.(1) Save as otherwise
expressly provided in the body of this Code or by any other law for the time
being in force, an appeal shall lie to the High Court from every decree passed
in appeal by any Court subordinate to the High Court, if the High Court is
satisfied that the case involves a substantial question of law.
(2) An
appeal may lie under this section from an appellate decree passed ex parte.
(3) In
an appeal under this section, the memorandum of appeal shall precisely state
the substantial question of law involved in the appeal.
(4) Where
the High Court is satisfied that a substantial question of law is involved in
any case, it shall formulate that question.
(5) The
appeal shall be heard on the question so formulated and the respondent shall,
at the hearing of the appeal, be allowed to argue that the case does not
involve such question:
Provided that nothing in this
sub-section shall be deemed to take away or abridge the power of the Court to
hear, for reasons to be recorded, the appeal on any other substantial question
of law, not formulated by it, if it is satisfied that the case involves such
question.] "
Thus, sub-section (1) of Section
100 says that the second appeal would be entertained by the High Court only if
the High Court is satisfied that the case involves a substantial question of
law. Sub-section (3) makes it obligatory upon the appellant to precisely state
in memo of appeal the "substantial question of law" involved in the
appeal. Sub-section (4) provides that where the High Court is satisfied that
any substantial question of law is involved in the case, it shall formulate
that question. In other words, once the High Court is satisfied after hearing
the appellant or his counsel, as the case may be, that the appeal involves a
substantial question of law, it has to formulate that question and then direct
issuance of notice to the respondent of the memo of appeal along with the question
of law framed by the High Court. Sub-section (5) provides that the appeal shall
be heard only on the question formulated by the High Court under sub-section
(4). In other words, the jurisdiction of the High Court to decide the second
appeal is confined only to the question framed by the High Court under
sub-section (4). The respondent, however, at the time of hearing of the appeal
is given a right under sub-section (5) to raise an objection that the question
framed by the High Court under sub-section (4) does not involve in the appeal.
The reason for giving this right to the respondent for raising such objection
at the time of hearing is because the High Court frames the question at the
stage of admission, which is prior to issuance of the notice of appeal to the
respondent. In other words, the question is framed ex parte and, therefore,
sub-section (5) enables him to raise such objection at the time of hearing that
the question framed does not arise in the appeal. The proviso to sub-section
(5), however, also recognizes the power of the High Court to hear the appeal on
any other substantial question of law which was not initially framed by the
High Court under subsection (4). However, this power can be exercised by the
High Court only after assigning the reasons for framing such additional
question of law at the time of hearing of the appeal [See: Surat Singh (Dead)
v. Siri Bhagwan & Others (2018) 4 SCC 562].
12.1. Furthermore, this Court has
consistently underscored that under Section 100 CPC, the High Court possesses
the authority to entertain second appeals strictly on substantial questions of
law. Upon admitting such an appeal, the High Court is empowered to frame
substantial questions and adjudicate them directly, without the necessity of
remanding the matter to the trial court. This approach ensures judicial
efficiency and prevents unnecessary prolongation of litigation. A few decisions
are outlined below:
(i)
Santosh Hazari v. Purushottam Tiwari (Deceased) by LRs[(2001) 3 SCC 179]
"16.
Reverting to the facts of the case at hand, prima facie we find the first
appellate Court did not discharge the duty cast on it as a Court of first
appeal. The High Court having noticed failure on the part of the appellant in
not discharging the statutory obligation cast on him by sub-section (3) of
Section 100 of the Code, on account of the substantial question of law involved
in the appeal having not been stated, much less precisely, in the memorandum of
second appeal, ordinarily an opportunity to frame such question should have
been afforded to the appellant unless the deficiency was brought to the notice
of the appellant previously by the High Court Registry or the court and yet the
appellant had persisted in his default. That was not done. In our opinion, the following
substantial question of law does arise as involved in the case and worth being
heard by the High Court: -
"Whether
on the pleadings and the material brought on record by the defendant, the first
appellate Court was right in holding that the case of adverse possession was
made out by the defendant and the suit filed by the plaintiff was liable to be
dismissed as barred by time under Article 65 of the Limitation Act, 1963, more
so when such finding was arrived at in reversal of the findings of the trial
Court? "
17. The
appeal is allowed. The case is remitted back to the High Court for hearing and
deciding the second appeal afresh.
18. We
make it clear that we have not expressed any opinion either way on any of the
issues arising for decision in the case. We also make it clear that our framing
the question of law involved in the appeal shall not take away the jurisdiction
of the High Court vesting in it under proviso to sub-section (5) of Section 100
of the C.P.C. to formulate any other question of law involved in the case The
second appeal shall be decided by the High Court uninfluenced by any of the
observations made hereinabove which have been made solely to support our
opinion that the appeal did not merit a summary dismissal by the High Court.
"
(ii) Surat Singh (supra)
"29.
The scheme of Section 100 is that once the High Court is satisfied that the
appeal involves a substantial question of law, such question shall have to be
framed under sub-section (4) of Section 100. It is the framing of the question
which empowers the High Court to finally decide the appeal in accordance with
the procedure prescribed under sub-section (5). Both the requirements
prescribed in sub-sections (4) and (5) are, therefore, mandatory and have to be
followed in the manner prescribed therein. Indeed, as mentioned supra, the
jurisdiction to decide the second appeal finally arises only after the
substantial question of law is framed under sub-section (4). There may be a
case and indeed there are cases where even after framing a substantial question
of law, the same can be answered against the appellant. It is, however, done
only after hearing the respondents under sub-section (5)."
(iii)
Mehboob-Ur-Rehman (Dead) Through Lrs. V. Ahsanul Ghani[AIR 2019 SC 1178/(2019) 19 SCC 413]
"21.
As per Section 100 CPC, the appeal would lie to the High Court from the decree
passed in appeal by any Court subordinate only if the High Court is satisfied
that the case involves a substantial question of law; such question is required
to be stated in the Memorandum of Appeal; the High Court is required to
formulate the question on being satisfied that the same is involved in the case;
the appeal is to be heard on the question so formulated; and at the time of
hearing, the respondent could urge that the case does not involve such a
question. The proviso to subsection (5) of Section 100 CPC makes it clear that
the Court could hear the appeal on any other substantial question of law not
formulated by it, but only after recording the reasons that the case involves
such a question. In Surat Singh (Dead) v. Siri Bhagwan and others (2018) 4 SCC
562 this Court has pointed out the contours of the powers of High Court under
the proviso to sub-section (5) of Section 100 CPC as under:-
"21.........
The proviso to sub-section (5), however, also recognises the power of the High
Court to hear the appeal on any other substantial question of law which was not
initially framed by the High Court under sub-section (4). However, this power
can be exercised by the High Court only after assigning the reasons for framing
such additional question of law at the time of hearing of the appeal".
22. We
are clearly of the view that the proviso to sub-section (5) of Section 100 CPC
is not intended to annul the other requirements of Section 100 and it cannot be
laid down as a matter of rule that irrespective of the question(s) formulated,
hearing of the second appeal is open for any other substantial question of law,
evenif not formulated earlier... "
(iv)
This Court pointing out the principle laid down in Surat Singh case, set aside
the judgment of the High Court on the ground of violation of mandatory
procedure prescribed under section 100 CPC, and remanded the matter to the High
Court for deciding the appeal afresh on merits in accordance with law [Refer:
Vijay Arjun Bhagat and others v. Nana Laxman Tapkire and others, (2018) 6 SCC
727].
(v)
This Court in Ramakrishnan Kadinhipally & Ors. v. P.T. Karunakaran Nambiar[2023 SCC OnLine SC 323] criticized the
High Court for remanding a case to the trial court without proper
justification, especially when concurrent findings of fact existed. It
reiterated that in second appeals under Section 100 CPC, the High Court should
not interfere with concurrent findings unless there is a substantial question
of law. The relevant paragraphs read as under:
"7.
By the impugned judgment and order and without answering anything on the
substantial questions of law framed/formulated, absolutely in a casual manner,
the High Court has allowed the Second Appeal and has set aside the concurrent
findings recorded by both the courts below and thereafter has remanded the
matter to the learned trial Court permitting the original plaintiff to amend
the plaint and pray for fixation of the boundary.
9.
Having heard learned counsel for the respective parties and having gone through
the impugned judgment and order passed by the High Court, we are constrained to
observe that the manner in which the High Court has dealt with the Second
Appeal under Section 100 of the CPC is not appreciable at all. From the
impugned judgment and order passed by the High Court, it appears that the High
Court has exercised the powers as if the High Court was deciding the Writ
Petition under Article 226 of the Constitution of India. The High Court has not
appreciated at all that the High Court was deciding the Second Appeal under
Section 100 of the CPC and that too against the concurrent findings of fact by
both the courts below, which were, as such, on appreciation of evidence on
record. Under the circumstances, the impugned judgment and order passed by the
High Court is unsustainable.
11. At
the cost of repetition, it is observed that the High Court was dealing with the
Second Appeal under Section 100 CPC and the concurrent findings recorded by
both the courts below which were on appreciation of evidence on record. Neither
at the stage of deciding the suit nor even before the first Appellate Court
even such a prayer was made to amend the plaint, which is now permitted by the
High Court, despite the fact that earlier in the suit during the course of trial,
the plaint was amended. Under the circumstances also, the impugned judgment and
order passed by the High Court is unsustainable.
12.
Even for remand, a specific case is to be made out as per Order 41 Rule 23, 23A
and 25 of the CPC. No findings are recorded by the High Court that the case
falls within Order 41 Rule 23, 23A and 25 of the CPC and the matter is required
to be remanded to the learned trial Court on setting aside the concurrent
findings of fact recorded by both the courts below. The High Court has
mechanically remanded the suit, which is wholly impermissible.
13.
Even the substantial questions of law framed by the High Court, while admitting
the second appeal, which are reproduced herein above cannot be said to be as
such substantial questions of law at all. The same are on questions of fact.
Under the circumstances, the impugned judgment and order passed by the High
Court quashing and setting aside the concurrent findings recorded by both the
courts below, while exercising the powers under Section 100 CPC, is
unsustainable.
14. In
view of the above and for the reasons stated above, the present Appeal
succeeds. The impugned judgment and order passed by the High Court is hereby
quashed and set aside. The judgment and decree passed by the learned trial
Court confirmed by the first Appellate Courtis, hereby, ordered to be restored.
"
13. In the present case,
evidently, the first suit viz., O.S.No.851 of 1965 seeking maintenance was
decreed on 26.08.1965 in favour of the plaintiffs / Respondent Nos.6 and 7
herein. Consequently, the suit properties were attached for realizing the
maintenance amount. In the court auction, the suit 'A' schedule property was
purchased by Karivarada Gowdar and the sale was confirmed vide certificate
(Ex.B1) dated 25.09.1970 and possession was also handed over to him on
22.12.1970. Patta book (Ex.B5) was also issued in his favour. Subsequently, the
suit 'A' schedule property was purchased by Respondent Nos.8 to 10 and
thereafter, by Respondent No. 11 and thereafter, by the appellants herein. It
is also to be noted here that the subsequent purchasers filed two separate
suits for permanent injunction restraining the defendants therein from
interfering with their possession of the suit 'A' schedule property and the
same also came to be decreed, in their favour. It is significant to point out
at this juncture that though the father of Respondent Nos.1 and 2 and the
husband of Respondent No.3 viz., Dasappa Gowdar was party to the said suit, he
did not contest the suit effectively. After his death, Respondent Nos. 1 to 3
were duly impleaded in the execution proceedings and a court guardian was also
appointed for the minor daughter of the said Dasappa Gowdar. However, they did
not take any immediate steps to set aside the decree passed in the first suit.
It was only in 1982, approximately seventeen years after the first suit that
Respondent Nos. 1 to 3 filed the second suit viz., O.S.No.257 of 1982 seeking
to set aside the decree in O.S.No.851/1965, partition of the suit 'A' and 'C'
schedule properties, permanent injunction, etc. As such, it cannot be contended
that Respondent Nos. 1 to 3 were unaware of the first suit and upon becoming
aware of it, they filed the second suit after a period of 17 years. Further, in
the second suit, Respondent Nos. 1 to 3 did not specify when they became aware
of the decree passed in the first suit.
14. In the second suit viz.,
O.S.No. 257 of 1982, Respondent Nos.1 to 3 predicated their case on allegations
of fraud and collusion between the defendants, claiming a lack of knowledge
about the earlier proceedings. They further asserted that Respondent No.3 was
in mental distress following her husband's death and that they were in
continuous possession of the suit properties.
15. The trial court, after a
comprehensive examination of the evidence, both oral and documentary, concluded
that Respondent Nos. 1 to 3 are not entitled to any relief in the suit. On the
pivotal issue of limitation, the trial court was of the view that the action
has to be taken to set aside the decree within a period of three years, as per
Article 59 of the Limitation Act, whereas the suit was filed after a period of
seventeen years and hence, the relief sought by Respondent Nos.1 to 3 to set
aside the decree passed in the first suit was hit by the doctrine of
limitation. The relevant paragraphs of the judgment passed by the trial Court
are reproduced below for ready reference:
"12.
From the date of Ex. A1 about 17 years later, the relief which is sought for,
to set aside the above said decree is hit by limitation is contended on the
defendant's side. The defendants did not mention specifically in the written
statement filed by them. If as per law a case is to filed within the stipulated
period this court has the power to dismiss the case, and even though the
counter argument is not made in this regard, the court has the power to dismiss
the suit, as mentioned in the proviso of Section 3 of Limitation Act was
appointed out by the Learned Counsel for the defendants. Therefore, considering
the proviso of Section 3 of the above said Act, it is necessary to peruse
whether the relief sought for by the plaintiff to set aside the order passed in
O.S.No.851 of 1985 is made within the stipulated period, in this case.
13. As
mentioned in the Article 59 of the Limitation Act, the action has to be taken
to set aside the Ex.A 1 decree, within a period of three years. That is within
three years from the date of Ex.A 1 the plaintiffs would have taken action for
setting aside the above said decree. I find that it is pertinent to mention the
clause on page 634 of The Limitation Act, by B.B. Mitra. It is as follows:
12.
Burden of proof. If a suit is prima facie within the time allowed by the Article
then if the defendant takes a plea that the suit is barred by limitation then
it is for the defendant to prove it. Where, however, on the averments of the
plaint the suit seems to barred it is for plaintiff to make out the
circumstances to prove that the suit is not barred by limitation. Mere
assertion in the plaint that the plaintiff acquired knowledge on particular
date does not by itself establish that fact and if on averments made in the
plaint it is found that the plaintiff had acquired knowledge beyond the period
prescribed by this Article then the suit will be barred. If the suit is prima
facie within the time but the defendant takes plea that the plaintiff was aware
of the necessary facts to file the suit prior to the date when he admits in the
plaint such knowledge of facts then it is for the defendant to allege and prove
that the plaintiff had such knowledge prior to the period from which the time
begins to run.
It is
mentioned in the plaint that the 3rd plaintiff is not aware of the Ex.Al decree
and the proceedings after this. It is not mentioned in the plaint as to when
for the first time, they knew about the Ex.A1 decree and the proceedings
initiated thereafter. In this connection, evidence was not let in by P.A.l in
this court. As already stated by me, this suit has been filed about 17 years
later from the date of the date of decree. It is the onus of the plaintiff to
prove that the relief prayed for to set aside the decree was filed within the
stipulated time. Only through Dasappa Gowdar, the plaintiffs claim the right
over the suit A and C schedule properties. As already stated by me the above
said Dasappa Gowdar is aware of the Ex.Al decree is revealed through the copy
of the order Ex.A2. Even the above said Dasappa Gowdar did not take any action
to set aside the decree Ex.Al. Thereafter, after the demise of Dasappa Gowdar,
in the execution proceedings, these plaintiffs were impleaded as legal heirs is
revealed through Ex.B1. Therefore, the averment that the 3rd plaintiff is not
aware of the above said Ex.Al decree and the proceedings thereafter, as
mentioned in the plaint is not proved. Per contra, it is proved through the
documents in this case, that the plaintiffs are aware of the above said
proceedings. Therefore, I hold that the relief as prayed for by the Plaintiff
to set aside the exparte Decree Ex.Al is hit by the doctrine of limitation...
"
16. The First Appellate Court
also, upon a thorough analysis, affirmed the judgment of the trial Court.
Especially, with respect to the conclusion reached by the trial Court on the
aspect of limitation, the First Appellate Court was of the opinion that the
plaintiffs had slept over for 17 years and had chosen to come to the court
violating the mandate under Section 59 of the Limitation Act and therefore, the
suit was hopelessly barred by limitation as laid down by the trial Court. The
relevant paragraphs of the First Appellate Court's judgment are extracted below
for ready reference:
"15.
The 4th Defendant Sundarammal and her daughter Vennila have instituted a suit
against samiappan the 3rd Defendant herein in O.S. 851/65 for maintenance and
also for creating a charge over the suit properties. The decree obtained by
them in the above suit by the 4th Defendant and 5th Defendant was marked as
Ex.A1. Thereafter it is found that the Defendants 4 and 5 took the Execution
Proceedings against Samiappan and in his presence the sale of the A- schedule
property was ordered by the Court under Exs.A-2 and A-3. It will have to be
noted that the 3rd Defendant Samiappan had contested the Execution Application
filed by his wife and daughter. After the demise ofRangan Gowder, the father of
Samiappan, Kempakkal the wife ofRangan Gowder and Subbammal the daughter
ofRangan Gowder were impleaded as legal representatives of Rangan Gowder as
found from Ex.A.4. It would be pertinent to note that the said Kempakkal is the
1st defendant and the said Subbammal is the 2nd Defendant in this suit. It is
not as if the Plaintiffs were in the dark, while the proceedings for payment of
maintenance were taken by Sundarammal and Vennila Madammal in the name
ofThoddammal and Rajamani and Santhamani, the Plaintiffs herein have been
impleaded as legal representatives of Dasappan on his demise in the Execution
Proceedings as found in Ex.B-1 to B-3 would establish that the A-schedule
property which was brought for sale for 4th and 5th Defendants was knocked down
by one Kerivaratha Gounder.
17.
Dasappan the husband of the 3rd Plaintiff has contested the Execution Petition
filed by Sundaramal and Vennila by engaging a counsel for him. It is not as if
that the parties had remained ex parte throughout the proceedings as contended
by the Plaintiffs. Ex.B-1 would reveal that Rajamani and Santhamani the minor
children of Dasappan were represented by a Court guardian appointed by the
Court, Subbammal the 2nd Defendant also has been added as a party to the
Execution Proceedings on the demise of Rangae Gowder apart from his wife 1st
Defendant having been impleaded as a party to the suit. The plaintiffs and Defendants
1 to 3 were aware of the proceedings taken by Sundarammal and Vennila.
19.
D.W.2 in his cross-examination would state that in their families the eldest
female member would be called as Thoddammal. No wonder Madammal being the
oldest female member in the family of Dasappan has been so-called as
Thoddammal. Further Ex.B-9 the returned cover would show that the postman has
made and endorsement after enquiry that the addressee viz. Thoddammal, wife of
Dasappan was out of Station. If Thoddammal was not the wife of Dasappan, the
Postman would not have stated that Thoddammal wife of Dasappan has gone out.
Further it is not the case of the Plaintiffs that any other wife was there for
Dasappan. Therefore, accepting the explanation given by D. W.2 the Court comes
to the conclusion that Madammal was called as Thoddammal also and that,
therefore, it is false to say that Madammal was not aware of the proceedings
taken by Sundarammal. Further when Rajamani and Santhamani were represented by
Court guardian the court guardian could not have acted affectively unless
Madammal gave proper instructions to contest the Execution proceeding taken by sundrammal.
It is highly ridiculous to state that Madammal was totally out of picture.
21. The
execution Court while executing the decree obtained in O.S.No.851/65 has chosen
to sell away the A Schedule property to satisfy the maintenance decree obtained
by 4th and 5th Defendants through Court auction in the presence of all the
Defendants herein. When the coparceners have not taken steps to partition the
share ofSamiappan at the time of the Execution proceeding taken by Defendants 4
and 5 the Execution Court did not find the other way except bringing one of the
schedule of properties for sale to satisfy the maintenance decree. I do not
find any lacuna in the above execution proceedings. The plaintiffs have not
cared to mention when they came to know of the maintenance decree obtained by
4th and 5th Defendants and the sale of the A-schedule property in Court
auction. Nor have they stated anything about it in their evidence. For about 17
years, the Plaintiffs have slept over and have chosen to come to the court
violating the mandate found under Sec. 59 of the limitation Act. Therefore, the
suit is hopelessly barred by limitation as laid down by the Trial Court...
"
17. Thereafter, when the
concurrent findings were sought to be challenged by way of second appeal, the
High Court at the time of admission on 30.03.1998, formulated the following
substantial question of law:
"Whether
the Court below was right in justifying the sale of the entire A schedule
properties, which were admittedly joint family properties and in which the
second respondent has only 1/3rd share, which alone would be liable to satisfy
the decree for maintenance obtained by his wife and daughters viz., respondents
3 and 4. "
Upon
hearing the arguments of the counsel for both sides, the High Court formulated
the following additional substantial question of law:
"Whether
the lower Court was right in its conclusion that the suit is barred under
Section 59 of the Limitation Act, when the appellants had no knowledge of the
sale proceedings till 1981, when they published the notice under Ex.A.6?"
Without
deciding the substantial question of law involved in the second appeal, the
High Court only considered the additional substantial question of law, observing
that both the Courts failed to frame any issue in respect of the limitation,
though held that the suit was barred by limitation. Accordingly, the High Court
allowed the second appeal by setting aside the judgments passed by the Courts
below and remitted the matter to the trial Court for a fresh trial with a
direction to frame additional issue regarding limitation, let in evidence and
decide the matter after giving due opportunity to both sides, within a period
of six months. The relevant paragraphs of the High Court's judgment are
extracted for ready reference:
"10. In this regard, it is
relevant to extract the issues framed by the trial Court as follows:
1) Whether
the Plaintiff is entitled to the relief to the Judgement in O.S. 851/2005?
2) Whether
the Plaintiffs are entitled to 5/12 Shares in suit 'A' and 'C' schedule
properties?
3)
Whether the Plaintiffs are entitled to the relied of permanent injunction as
prayed in the plaint?
4) Whether
the Plaintiffs have paid sufficient correct fees?
5) What
other reliefs are the Plaintiffs entitled to?
Though,
the trial Court discussed in respect of the above issues and also about the
question of limitation, dismissed the suit as the suit itself barred by
limitation.
11. The first appellate Court
also framed the points for consideration as follows:
"1.
Whether the plaintiffs are entitled to the relief of cancellation of the decree
in O.S.No. 851/65 on the file of the District Munsif Court, Coimbatore?
2.
Whether the plaintiffs are in possession and enjoyment of the A schedule and consequently
whether they are entitled to permanent injunction as prayed for by them?"
The
first appellate Court also discussed about the limitation and concluded that
the suit is filed after 17 years as such, violation of provision under Section
59 of the Limitation Act and the suit is hopelessly barred by Limitation Act
and dismissed.
12. Admittedly,
both the Courts below did not frame any issue in respect of the limitation. As
rightly pointed out by the learned Senior Counsel appearing for the plaintiffs,
both the Courts failed to frame any issue in respect of limitation, though both
the Court hold as the suit is barred by limitation. The first appellate Court
also confirmed the judgment and decree passed by the trial Court without
framing point for limitation for determination in the first appeal. Therefore
this Court necessarily has to interfere with the finding of the Courts below.
Accordingly, this Court answered only on the additional substantial question of
law formulated by this Court in favour of the plaintiffs and against the
defendants.
13. In
fine, the second appeal stands allowed and the judgment and decree passed by
Courts below are set aside. However considering the facts and circumstances,
the suit is remitted back to the trial Court for fresh trial by framing
additional issues in respect of limitation and let in evidence on those aspects
and decide the matter after giving due opportunity to both sides in respect of
the issue. Further the trial Court is directed to complete the trial within a
period of six months from the date of receipt of the entire bundle. It is made
clear that the trial court is directed to conduct the trial uninfluenced by the
observation made by this Court while deciding the case. There is no order as to
costs. "
18. In our opinion, the judgment
of the High Court is unsustainable, applying the legal principles as stated
above that once the High Court is satisfied that the appeal involves a
substantial question of law, such question shall have to be framed and finally
decided on merits in accordance with the procedure laid down under section 100
CPC. The High Court, has failed to decide the substantial framed at the time of
admission and went to decide, only the additional substantial question of law,
framed at the time of hearing. The first suit was decreed on 26.08.1965 and the
auction purchaser got the suit 'A' schedule property on 22.12.1970 and
thereafter, the appellants herein purchased the same from the subsequent
purchaser by name R. S.Ramaswamy / Respondent No. 11; despite the fact that the
decree and sale were within the knowledge of the Respondent Nos. 1 to 3, they
have thwarted the right of the purchasers over the suit 'A' schedule property
by filing second suit viz., O.S. No.257 of 1982, that too, after a period of 17
years and the decision of the High Court remanding the matter to the trial
Court for a fresh trial on the limitation aspect, without deciding the same on
merits, by holding that a separate issue ought to have been framed is
unsustainable and will certainly prolong the litigation without any useful
purpose.
19. The object of framing an
issue is to determine the material point of disputes between the parties, for
the purpose of adjudication. Issues can be framed on a question of law or fact
or a mixed question of law and fact. The decision on the issue settles the lis
in favour of either of the parties. A distinct issue is to be formed when a
material proposition of law or fact is affirmed by one party and denied by
another. Also, there is no necessity to frame an issue, when the parties are
not at dispute on a particular fact or law. At times, despite pleadings, when a
specific issue is not framed, but when both the parties to the lis have let in
evidence and rendered their arguments on a point, the decision on which is
intrinsically connected to the main issue, then the Court is bound to render a
finding on the point of dispute before deciding the connected issue, one way or
another. In that case, it becomes the duty of the Court to analyze the evidence
before it and render a decision on all disputed questions of fact or law,
directly or indirectly in issue, so as to put an end to the lis. The Limitation
Act, 1963 restricts the right of a litigant by prescribing a time limit within
which action must be initiated. Its object is to provide a time or period,
within which, the action has to be initiated. The object of the Act is not to
destroy a vested right available in law but to prevent indefinite litigation
and therefore, only prescribes a period for initiation of the litigation. This
Court has described the object of the Limitation Act, 1963 in the following
decisions:
(i)
Bharat Barrel & Drum Mfg. Co. Ltd. and Another v. Employees State Insurance
Corporation[AIR 1972 SC 1935]:
"7.
...... The object of the Statutes of Limitations is to compel a person to
exercise his rights of action within a reasonable time as also to discourage
and suppress stale, fake or fraudulent claims. While this is so, there are two
aspects of the Statutes of Limitation the one concerns the extinguishment of
the right if a claim or action is not commenced with a particular time and the
other merely bar the claim without affecting the right which either remains
merely as a moral obligation or can be availed of to furnish the consideration
for afresh enforceable obligation. Where a statute prescribing the limitation extinguishes
the right, it affects substantive right while that which purely pertains to the
commencement of action without touching the right is said to be
procedural".
(ii) N. Balakrishnan v. M.
Krishnamurthy[(1998) 7 SCC 123]
"that
the Limitation Act is based upon public policy which is used for fixing a life
span of a legal remedy for the purpose of general welfare. It has been pointed
out that the Law of Limitation are not only meant to destroy the rights of the
parties but are meant to look to the parties who do not resort to the tactics
but in general to seek remedy. It fixes the life span for legal injury suffered
by the aggrieved person which has been enshrined in the maxim 'interest
reipublicae ut sit finis litium' which means the Law of Limitation is for
general welfare and that the period is to be put into litigation and not meant
to destroy the rights of the person or parties who are seeking remedy. The idea
with regards to this is that every legal remedy must be alive for a
legislatively fixed period of time ".
20. Limitation, as we generally
know is a mixed question of fact and law. However, there is no hard and fast
rule that every question of limitation is to be treated as a mixed question of
fact and law. In cases, where the action is initiated after several years after
the right to sue accrued, without any pleadings to explain the reasons for
delay or as to when the fraud was discovered, the question of limitation is to
be treated as a question of law. A recourse may be had to Order VI Rules 4 and
10 CPC, which mandates that specific particulars would have to be given in the
pleadings. Once such a plea is raised in the pleadings, then the burden lies on
the person to prove that the delay was due to any plausible reason and it is
always well within the knowledge of the other party to contend and prove that
the opposite party had prior knowledge about the disputed fact and that his
right to sue or defend had also accrued by that date. Even in the absence of
specific pleadings regarding the limitation in the plaint or a plea of defense,
there is a bounden duty on every civil Court to ascertain as to whether the lis
has been initiated within the time prescribed under law, even if the parties to
the lis had not raised any objections. This right flows from the mandate of
Section 3 of the Limitation Act, 1963. A useful reference may be had to the
judgment of this Court on this aspect, in V.M. Salgaocar and Bros. v. Board of
Trustees of Port of Mormugao and another15, wherein, it was held as follows:
"20.
The mandate of Section 3 of the Limitation Act is that it is the duty of the
court to dismiss any suit instituted after the prescribed period of limitation
irrespective of the fact that limitation has not been set up as a defence. If a
suit is ex facie barred by the law of limitation, a court has no choice but to
dismiss the same even if the defendant intentionally has not raised the plea of
limitation.
21.
This Court in Manindra Land & Building Corpn. Ltd. v. Bhutnath Banerjee
[(1964) 3 SCR 495 : AIR 1964 SC1336] held (AIRpara 9): "Section 3 of the
Limitation Act enjoins a court to dismiss any suit instituted, appeal preferred
and application made, after the period of limitation prescribed therefor by
Schedule I irrespective of the fact whether the opponent had set up the plea of
limitation or not. It is the duty of the court not to proceed with the
application if it is made beyond the period of limitation prescribed. The Court
had no choice and if in construing the necessary provision of the Limitation
Act or in determining which provision of the Limitation Act applies, the
subordinate court comes to an erroneous decision, it is open to the court in
revision to interfere with that conclusion as that conclusion led the court to
assume or not to assume the jurisdiction to proceed with the determination of
that matter. "
In
cases, where the pleadings are silent, then it becomes the duty of the Court to
ascertain from the evidence and the overall facts of the case, as pleaded by
either party, and to render a finding on limitation where the question of
limitation is to be treated as a question of law, since the Court cannot
entertain frivolous or stale claims. It is also apropos to reiterate the
settled position of law that a question of law can be raised at any stage.
21. We have in earlier paragraph
discussed the object of framing the issues. We also held that there could be
several points directly or indirectly connected with the main issue that has
been framed. In such cases, when the larger issue that has been framed is wide
enough to cover different points of disputes within it, there is no necessity
to frame a specific issue on that aspect. Further, when the parties go to trial
with the knowledge that a particular point is at lis, had full opportunity to
let in evidence, they cannot later turn back to say that a specific issue was
not framed. All that is required under law, is for the Court to render a
finding on the particular fact or law in dispute, on the facts of the case.
However, we make it clear that such evidence, in the absence of pleadings,
cannot permit either of the parties to make out a new case. It is pertinent to
mention here that the Courts are vested with powers to go into the question of
law, touching upon either the limitation or the jurisdiction, even if no plea
is raised and not in cases, where facts have to be pleaded and evidence has to
be let in. The Civil Procedure Code and the law of limitation, being procedural
laws, meant to assist the Courts in the process of rendering justice, cannot
curtail the power of the Courts to render justice. Procedural laws after all
are handmaid of justice. What is to be seen is whether any irregularity arising
from a failure to follow procedure has caused serious prejudice to the parties.
It is not to be forgotten that the process of adjudication is to discern the
truth.
21.1. It will be useful to refer
to certain judgments of this Court on violation of procedural law, which are as
follows:
(i)
Sardar Amarjit Singh Kalra (Dead) by L.Rs. & Others v. Pramod Gupta (Smt.)
(Dead) by L.Rs. and Others[MANU/SC/1214/2002
: (2003) 3 SCC 272 (Constitutional Bench)]:
"26.
Laws of procedure are meant to regulate effectively, assist and aid the object
of doing substantial and real justice and not to foreclose even an adjudication
on merits of substantial rights of citizen under personal, property and other
laws. Procedure has always been viewed as the handmaid of justice and not meant
to hamper the cause of justice or sanctify miscarriage of justice........"
(ii)
Kailash v. Nanhku and Ors.
[MANU/SC/0264/2005 : (2005) 4 SCC 480 (3 Judge Bench)]:
"28.
All the Rules of procedure are the handmaid of justice. The language employed
by the draftsman ofprocessual law may be liberal or stringent, but the fact
remains that the object of prescribing procedure is to advance the cause of
justice. In an adversarial system, no party should ordinarily be denied the
opportunity of participating in the process of justice dispensation. Unless
compelled by express and specific language of the statute, the provisions of
Code of Civil Procedure or any other procedural enactment ought not to be
construed in a manner which would leave the court helpless to meet
extraordinary situations in the ends of justice. The observations made by
Krishna Iyer, J. in Sushil Kumar Sen v. State of Bihar [MANU/SC/0028/1975 :
(1975) 1 SCC 774] are pertinent: (SCCp. 777, paras 5-6)
The
mortality of justice at the hands of law troubles a judge's conscience and
points an angry interrogation at the law reformer.
The
processual law so dominates in certain systems as to overpower substantive
rights and substantial justice. The humanist Rule that procedure should be the
handmaid, not the mistress, of legal justice compels consideration of vesting a
residuary power in judges to act ex debito justitiae where the tragic sequel
otherwise would be wholly inequitable. ... Justice is the goal of jurisprudence
processual, as much as substantive.
29. In
State of Punjab v. Shamlal Murari [ MANU/SC/0494/1975 : (1976) 1 SCC 719 : 1976
SCC (L&S) 118] the Court approved in no unmistakable terms the approach of
moderating into wholesome directions what is regarded as mandatory on the
principle that: (SCC p. 720)
"Processual
law is not to be a tyrant but a servant, not an obstruction but an aid to
justice. Procedural prescriptions are the handmaid and not the mistress, a
lubricant, not a resistant in the administration of justice. In Ghanshyam Dass
v. Dominion of India [MANU/SC/0006/1984 : (1984) 3 SCC 46] the Court reiterated
the need for interpreting a part of the adjective law dealing with procedure
alone in such a manner as to subserve and advance the cause of justice rather
than to defeat it as all the laws of procedure are based on this principle.
"
(iii)
Sugandhi (Dead) by LRs & Others v. P. Rajkumar[MANU/SC/0792/2020 : (2020) 10 SCC 706]:
"9.
It is often said that procedure is the handmaid of justice. Procedural and
technical hurdles shall not be allowed to come in the way of the court while
doing substantial justice. If the procedural violation does not seriously cause
prejudice to the adversary party, courts must lean towards doing substantial
justice rather than relying upon procedural and technical violation. We should
not forget the fact that litigation is nothing but a journey towards truth
which is the foundation of justice and the court is required to take
appropriate steps to thrash out the underlying truth in every dispute. Therefore,
the court should take a lenient view when an application is made for production
of the documents under Sub-rule (3). "
22. In the present case, the
trial Court though had not framed a specific issue on "limitation",
the same could very well fall under the broader issue. The question of
limitation can be encompassed within the larger question determined by the
First Appellate Court for determination. The failure of the trial Court and the
First Appellate Court to formulate a separate issue, in the view of this Court,
is not fatal to the judgment rendered by them and has not caused any prejudice
to the parties. Further, the trial Court, in the performance of its duty,
mandated under Section 3 of the Limitation Act, 1963, has taken up the question
of limitation and upon perusal of the overall pleadings and evidence, has
rightly decided the same. Therefore, we do not agree with the decision of the
High Court in remanding the matter to the trial Court, that too after this
length of time, when all materials were available before it.
23. As already indicated above,
the concurrent findings of the Courts below were sought to be challenged before
the High Court. It is a general rule that High Court will not interfere with
the concurrent findings of the Courts below. In the present case, both the
trial Court and the First Appellate Court, after detailed analysis of the oral
and documentary evidence let-in by the parties, categorically held that the
suit was hopelessly barred by limitation. We also find that the evidence
produced would abundantly make it clear that Dasappa Gowdar and thereafter,
Respondent Nos. 1 to 3 were well aware of the earlier proceedings and the
decree passed in the first suit. The auction purchaser's title was confirmed by
court orders, and subsequent transfers were properly registered and recorded.
Therefore, Respondent Nos.1 to 3, who have knowingly slept over their right to
challenge the sale and allowed further rights to flow, cannot later question
the sale of larger extent of share in an unpartitioned property. We also do not
find any plausible reasons for delay. It is reiterated at this juncture that
limitation is a matter of statute and must be strictly enforced, more so when
the earlier transaction or sale is well within the knowledge of the parties.
This principle assumes greater significance in the present case, where the
delay extends to seventeen years for filing the suit, despite the fact that
they were arrayed as respondents/Judgment Debtors in the execution proceedings.
Furthermore, protection of bona fide purchasers for value is a significant
consideration, and any disturbance to their rights or titles after such a long
period, would create uncertainty in property transactions and undermine the
sanctity of court sale.
Therefore, we are of the view
that the High Court was not justified in remanding the matter to the trial
Court for fresh trial solely with respect to the issue of limitation; and that,
the Courts below have rightly held that the suit was barred by limitation and
Respondent Nos. 1 to 3 are not entitled for any relief.
24. In such view of the matter,
the appeal is allowed. The impugned judgment of the High Court is set aside.
The judgment and decree of the trial court dismissing the suit, as affirmed by
the First Appellate Court, are restored. Parties shall bear their own costs
throughout.
25. Connected Miscellaneous
Application(s), if any, shall stand disposed of.
------