It is clear that what was being pursued before
the revenue authorities was challenge to the mutation entry
and the same was "dismissed on the count of delay". It was
not due to defect of jurisdiction as required by Section 14 of
the Limitation Act. Even the Writ Petition No.8045/2009
came to be dismissed keeping in view the delay. Thus, it is
not a case that trial proceedings failed due to defect of
jurisdiction or other cause of like nature. The earlier
proceedings were for setting aside mutation entry. The
present suit is to declare the sale deed dated 7.10.1984 as
not binding on the plaintiff and for injunction that the
defendants should not create third party interest. I find
that, going through the plaint as a whole, Section 14 of the
Limitation Act cannot help the plaintiffs to get the delay
condoned.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CIVIL REVISION APPLICATION NO.148 OF 2013
Shobhabai w/o Navinchandra Patni
VERSUS
Kundlik s/o Jayanta Ukirde,
CORAM: A.I.S. CHEEMA, J.
DATED: 21st February, 2014.
Citation; 2014(6) MHLJ 292 Bom
Read original judgment here;click here
1. Rule was issued in this Civil Revision Application
on 8.8.2013. Contesting parties are heard finally.
2. The present revision application has been filed
by original defendant No.1 in Regular Civil Suit No.
1600/2012. The petitioner - defendant No.1 (hereinafter
referred to as the defendant) filed application under Order
VII Rule 11 of the Code of Civil Procedure, 1908
(hereinafter referred to as CPC for short) for rejection of
the plaint on the ground of limitation. The 16th Civil Judge,
Junior Division, Aurangabad passed a brief order, which is
impugned in this revision application, mentioning that it is
settled principle that the plea of limitation is mixed
question of law and fact and that the provisions of Section 5
of Limitation Act are not applicable to suit. The Civil Judge
passed order that the aspect cannot be decided at
preliminary stage without leading any evidence and
rejected the application. Thus, the defendant has filed this
revision application, pointing out that, if the plaint is read
as a whole also, the suit is clearly time barred as time spent
in pursuing revenue proceedings cannot be excluded.
3. I have heard learned counsel for both sides.
Learned counsel for the defendant referred to the contents
of plaint in details to show that as per the plaint itself, what
was sought to be set aside was the sale deed dated
7.10.1984 and the suit was filed on 1.8.2012. According to
the counsel, plaint itself mentions that the plaintiffs came to
know about effecting mutation in favour of Pandharinath,
the father of defendant Nos.2 and 3 in January 2008 and
they pursued remedies on revenue side to get mutation
entry set aside and have belatedly filed the civil suit and
thus, the same is barred under the Limitation Act, 1963.
Article 58 lays down limitation for such declaration of
period of three years and the time starts running from the
time when right to sue first accrues.
4. Learned counsel for the respondents submitted
that the plaint has to be read as a whole and the plaint
shows that there was earlier a partition in 1957, and entries
were made in 7/12 extract, but in spite of such division of
share, the parties continued without fixing boundaries and
that, subsequently Pandharinath, the father of defendant
Nos.2 and 3, got mutation entry No.752 recorded on
10.1.1985, which came to the knowledge of plaintiffs, from
one Damodhar Ramrao Karmadkar in January 2008 and so,
they initiated proceedings before the revenue officer on
2.4.2008, which was dismissed on 6.7.2009 and they filed
Writ Petition No.8045/2009 in November 2009 and the
same came to be disposed of on 27.9.2010. Thus, according
to the learned counsel for respondents, the period spent in
pursuing remedies for quashing mutation entry needs to be
excluded keeping in view Section 14 of the Limitation Act.
According to the learned counsel, the plaintiffs were under
a bonafide belief that if the mutation entry is set aside,
there will not be necessity to get the sale deed set aside
and so, they pursued the remedies on revenue side and the
period should be excluded.
5. Learned counsel for the petitioner-defendant has
relied on the case of N.V. Srinivasa Murthy Vs. Mariyamma
(Dead) by proposed L.Rs., reported in 2005 AIR (SC) 2897
to argue that the plaint has to be examined by the Court so
as to see if by clever drafting suit which is otherwise barred
by limitation is tried to be pursued. Reliance is also placed
on the case of Hardesh Ores (P) Ltd. Vs. Hede and
Company, reported in 2007(5) Mh.L.J. 577 to submit that
the averments made in the suit as a whole has to be
considered to find out whether clause (d) of Rule 11 of
Order VII of CPC is applicable.
6. Learned counsel for respondents relied on the
case of K.S. Dhondy Vs. Her Majesty Queen the
Netherlands & anr., reported in 2013 (6) Bom.C.R. 758,
where it was held that, in the suit brought against foreign
Government, the mandatory requirement of Section 86 of
CPC is required to be complied and thus, the Court held
that the limitation was mixed question of facts and law in
that matter.
The learned counsel further relied on the case of
Dr. Suresh Bhalchandra Shetye Vs. Shri Anil Vasant
Pednekar & ors., reported in 2011(7) ALL MR 619 to submit
that whether a plaint discloses a cause of action is
essentially a question of fact and plaint should be read as a
whole. He also relied on the case of Arjan Singh & ors. Vs.
Union of India & ors., reported in AIR 1987 Delhi 165 to
submit that question of limitation is a mixed question of law
and facts.
7. On the last date of hearing of this matter, the
question of applicability of Section 14 of the Limitation Act
was considered and counsel for both sides sought time to
make further submissions. Today the learned counsel for
petitioner- defendant relied on the case of Jai Prakash Vs.
Satnarain Singh, reported in 1994 (Supp.1) SCC 153 to
argue that, in that matter it was held by the Hon'ble
Supreme Court that exclusion of time under Section 14 of
Limitation Act is available only where the earlier
proceeding related to the same matter that is in issue in the
suit, and not otherwise.
8. Leanred counsel for respondents relied on the
case of P. Sarathy Vs. State Bank of India, reported in AIR
2000 SC 2023(1). In that matter, the Deputy Commissioner
of Labour (Appeals) which is appellate authority under
Tamil Nadu Shops and Establishments Act, 1947 was
considered to be Court for the purposes of Section 14. The
learned counsel for respondents further relied on the case
of Ramnarayan Singh Vs. Kubera Sahu, reported in AIR
1962 Orissa 100 (V 49 C 39). In that matter, it was found
that the Sub-Divisional Officer was Court under the Patna
State Tenancy Act for ejectment of trespasser. Leaned
counsel further relied on the case of Yasin Mohammad Vs.
Mirza Ahsan Beg, reported in AIR 1954 Bhopal 21 (Vol. 41
C.N. 7). In that matter, the proceedings in Revenue Court
were stated to be proceedings of Civil nature. That matter
related to setting aside of revenue sale taken in Revenue
Court. In such proceedings, period till decision of Second
Appeal in Revenue Court was held to be liable to be
excluded in computing one year's limitation under Article
12 of Limitation Act of 1908 for suit to set aside sale.
The rulings relied on by the learned counsel for
respondents– plaintiffs can be distinguished on facts.
Material is to keep in view the ratio and provisions of law
and apply them to the facts of the present matter.
9. Section 14 of the Limitation Act reads as under :
"14. Exclusion of time of proceeding bona fide in
court without jurisdiction:-
(1) In computing the period of limitation for any
suit the time during which the plaintiff has been
prosecuting with due diligence another civil
proceeding, whether in a court of first instance or of
appeal or revision, against the defendant shall be
excluded, where the proceeding relates to the same
matter in issue and is prosecuted in good faith in a
court which, from defect of jurisdiction or other cause
of a like nature, is unable to entertain it.
(2) In computing the period of limitation for any
application, the time during which the applicant has
been prosecuting with due diligence another civil
proceeding, whether in a court of first instance or of
appeal or revision, against the same party for the
same relief shall be excluded, where such proceeding
is prosecuted in good faith in a court which, from
defect of jurisdiction or other cause of a like nature, is
unable to entertain it.
(3) Notwithstanding anything contained in rule 2 of
Order XXIII of the Code of Civil Procedure, 1908 (5 of
1908), the provisions of sub-section (1) shall apply in
relation to a fresh suit instituted on permission
granted by the court under rule 1 of that Order where
such permission is granted on the ground that the first
suit must fail by reason of a defect in the jurisdiction
of the court or other cause of a like nature.
Explanation: For the purposes of this section-
(a) in excluding the time during which a former
civil proceeding was pending, the day on which that
proceeding was instituted and the day on which it
ended shall both be counted;
(b) a plaintiff or an applicant resisting an appeal
shall be deemed to be prosecuting a proceeding;
(c) misjoinder of parties or of causes of action shall
be deemed to be a cause of a like nature with defect of
jurisdiction. "
10. Perusal of Section 14 makes it clear that
following conditions are required to be complied :-
(1) The earlier and subsequent proceedings are
civil proceedings between the same parties;
(2) the earlier proceeding had been prosecuted
with due diligence and good faith;
(3) the failure of the earlier proceeding was due
to defect of jurisdiction or other cause of like
nature, due to which earlier Court found
that it was unable to entertain it;
(4) the earlier proceeding and the later
proceeding relate to the same matter in
issue, and
(5) both the proceedings are in a Court.
11. It is apparent that, it is not sufficient to show
that the concerned proceedings due to which time is sought
to be excluded, was before Court as required by the
section. Further requirement will be that the failure of the
earlier proceedings was due to defect of jurisdiction or
other cause of like nature, due to which the Court dealing
with earlier proceedings was unable to entertain it. It is
also necessary that the earlier proceedings and the later
proceedings must relate to same matter in issue. The
present matter needs to be considered from these points of
view also. If the plaint is considered, the same in brief can
be stated to be as under :
The plaint refers to the properties in dispute and
details are given as to how the property has come down
from ancestors Tatya Ukirde and Taraji Ukirde. Various
details are given regarding the family tree. It is claimed
that, the legal heirs partitioned the land Gat No.26 among
themselves and fixed respective shares and although shares
were described, internal boundaries were not demarcated
and the respective shares were held as Karta of their
respective families and as joint family property. It is
claimed that, dispute in present matter was only regarding
share of Mahadu s/o Tatya and Ramchandra and Kesu. In
the table of share given, share of Pandharinath Mhasu is
also shown. It is further claimed that all brothers enjoyed
respective shares in the said land till their lifetime and after
their death, all the plaintiffs became owners of agricultural
land with their respective shares in Gat No.26. In January
2008, relative Damodhar Ramrao informed plaintiffs, their
name or their father's name did not appear in 7/12 extract.
Plaintiffs examined mutation entry No.752, dated 10.1.1985
showing that plaintiff Kundlik Jayanta and Maruti Appa for
their father Jayanta Madhav, Maliram Dagdu for his father
Dagadu Ramchandra, and Guna Ramchandra, Tukaram
Nana for themselves had transferred their share to
Pandharinath Mhasu, the father of respondent Nos.2 and 3
and mutation entry has taken place on the basis of partition
deed alleged to have been executed by above persons.
Plaint claimed that, there was no such partition. Plaint
further claimed that, on the basis of such mutation entry,
respondent No.1 got executed sale deed from
Pandharinath, father of respondent Nos.2 and 3, of the suit
property in respect of 81 R land and the said sale deed
dated 7.10.1984 was not binding on the plaintiff. Mutation
entry No.752 dated 10.1.1985 and 816 dated 14.5.1987
were challenged in ROR Appeal before D.S.O. on 2.4.2008.
The appeal was dismissed on 6.7.2009. Writ Petition No.
8045/2009 was filed to the High Court challenging the
mutation entry and the same got dismissed on 27.9.2010.
Para 21 of plaint states that, plaintiffs came to know the
fact in January 2008 about the illegal mutation as well as
illegal sale deed and hence, had filed the appeal before
S.D.O. on 2.4.2008. Thus, the suit was filed seeking to
declare the sale deed illegal, and for injunction.
12. Para 19 of the plaint reads as under :
"19. The plaintiffs say and submit that, in order to
challenge mutation entry No.752 dt. 10.1.1985 and
816 dt. 14.5.1987 the plaintiff filed ROR appeal before
D.S.O. Aurangabad bearing Case No.2008/MAG/ROR/
CR-41 on 2.4.2008 and same is registered on 4.4.2008
and thereafter on the count of delay the appeal came
to be dismissed on 6.7.2009. The copy of the same is
annexed herewith for kind perusal of this Hon'ble
Court."
13. It is clear that what was being pursued before
the revenue authorities was challenge to the mutation entry
and the same was "dismissed on the count of delay". It was
not due to defect of jurisdiction as required by Section 14 of
the Limitation Act. Even the Writ Petition No.8045/2009
came to be dismissed keeping in view the delay. Thus, it is
not a case that trial proceedings failed due to defect of
jurisdiction or other cause of like nature. The earlier
proceedings were for setting aside mutation entry. The
present suit is to declare the sale deed dated 7.10.1984 as
not binding on the plaintiff and for injunction that the
defendants should not create third party interest. I find
that, going through the plaint as a whole, Section 14 of the
Limitation Act cannot help the plaintiffs to get the delay
condoned. By clever drafting, knowledge of mutation entry
of 10.1.1985 and sale deed of 7.10.1984 is shown as of
January 2008. The claim to set aside the sale deed was
already hopelessly delayed, even if exclusion of time is done
from January 2008 till filing of suit. Even otherwise, when
admittedly there was knowledge in January 2008, right to
sue to set aside Sale Deed had accrued. The present suit
filed on 1.8.2012 is time barred under Article 58 of the
Limitation Act. The time sought to be excluded from when
the mutation entry was challenged before the revenue
authorities on 2.4.2008 till dismissal of the Writ Petition on
27.9.2010 cannot be accepted and is not admissible under
Section 14 of the Limitation Act.
14. For such reasons, I find that the order passed by
the trial Court is not legal and proper and cannot be
maintained.
15. Civil Revision Application is allowed with costs.
The impugned order is set aside. Regular Civil Suit No.
1600/2012 pending before the trial Court is found to be
barred by limitation. The plaint concerned is rejected
under Order VII Rule 11(d) of the Civil Procedure Code,
1908.
(A.I.S. CHEEMA, J.)
fmp/cra148.13
::: Downloaded on - 11/12/2014 16:55:46 :::
Print Page
the revenue authorities was challenge to the mutation entry
and the same was "dismissed on the count of delay". It was
not due to defect of jurisdiction as required by Section 14 of
the Limitation Act. Even the Writ Petition No.8045/2009
came to be dismissed keeping in view the delay. Thus, it is
not a case that trial proceedings failed due to defect of
jurisdiction or other cause of like nature. The earlier
proceedings were for setting aside mutation entry. The
present suit is to declare the sale deed dated 7.10.1984 as
not binding on the plaintiff and for injunction that the
defendants should not create third party interest. I find
that, going through the plaint as a whole, Section 14 of the
Limitation Act cannot help the plaintiffs to get the delay
condoned.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CIVIL REVISION APPLICATION NO.148 OF 2013
Shobhabai w/o Navinchandra Patni
VERSUS
Kundlik s/o Jayanta Ukirde,
CORAM: A.I.S. CHEEMA, J.
DATED: 21st February, 2014.
Citation; 2014(6) MHLJ 292 Bom
Read original judgment here;click here
1. Rule was issued in this Civil Revision Application
on 8.8.2013. Contesting parties are heard finally.
2. The present revision application has been filed
by original defendant No.1 in Regular Civil Suit No.
1600/2012. The petitioner - defendant No.1 (hereinafter
referred to as the defendant) filed application under Order
VII Rule 11 of the Code of Civil Procedure, 1908
(hereinafter referred to as CPC for short) for rejection of
the plaint on the ground of limitation. The 16th Civil Judge,
Junior Division, Aurangabad passed a brief order, which is
impugned in this revision application, mentioning that it is
settled principle that the plea of limitation is mixed
question of law and fact and that the provisions of Section 5
of Limitation Act are not applicable to suit. The Civil Judge
passed order that the aspect cannot be decided at
preliminary stage without leading any evidence and
rejected the application. Thus, the defendant has filed this
revision application, pointing out that, if the plaint is read
as a whole also, the suit is clearly time barred as time spent
in pursuing revenue proceedings cannot be excluded.
3. I have heard learned counsel for both sides.
Learned counsel for the defendant referred to the contents
of plaint in details to show that as per the plaint itself, what
was sought to be set aside was the sale deed dated
7.10.1984 and the suit was filed on 1.8.2012. According to
the counsel, plaint itself mentions that the plaintiffs came to
know about effecting mutation in favour of Pandharinath,
the father of defendant Nos.2 and 3 in January 2008 and
they pursued remedies on revenue side to get mutation
entry set aside and have belatedly filed the civil suit and
thus, the same is barred under the Limitation Act, 1963.
Article 58 lays down limitation for such declaration of
period of three years and the time starts running from the
time when right to sue first accrues.
4. Learned counsel for the respondents submitted
that the plaint has to be read as a whole and the plaint
shows that there was earlier a partition in 1957, and entries
were made in 7/12 extract, but in spite of such division of
share, the parties continued without fixing boundaries and
that, subsequently Pandharinath, the father of defendant
Nos.2 and 3, got mutation entry No.752 recorded on
10.1.1985, which came to the knowledge of plaintiffs, from
one Damodhar Ramrao Karmadkar in January 2008 and so,
they initiated proceedings before the revenue officer on
2.4.2008, which was dismissed on 6.7.2009 and they filed
Writ Petition No.8045/2009 in November 2009 and the
same came to be disposed of on 27.9.2010. Thus, according
to the learned counsel for respondents, the period spent in
pursuing remedies for quashing mutation entry needs to be
excluded keeping in view Section 14 of the Limitation Act.
According to the learned counsel, the plaintiffs were under
a bonafide belief that if the mutation entry is set aside,
there will not be necessity to get the sale deed set aside
and so, they pursued the remedies on revenue side and the
period should be excluded.
5. Learned counsel for the petitioner-defendant has
relied on the case of N.V. Srinivasa Murthy Vs. Mariyamma
(Dead) by proposed L.Rs., reported in 2005 AIR (SC) 2897
to argue that the plaint has to be examined by the Court so
as to see if by clever drafting suit which is otherwise barred
by limitation is tried to be pursued. Reliance is also placed
on the case of Hardesh Ores (P) Ltd. Vs. Hede and
Company, reported in 2007(5) Mh.L.J. 577 to submit that
the averments made in the suit as a whole has to be
considered to find out whether clause (d) of Rule 11 of
Order VII of CPC is applicable.
6. Learned counsel for respondents relied on the
case of K.S. Dhondy Vs. Her Majesty Queen the
Netherlands & anr., reported in 2013 (6) Bom.C.R. 758,
where it was held that, in the suit brought against foreign
Government, the mandatory requirement of Section 86 of
CPC is required to be complied and thus, the Court held
that the limitation was mixed question of facts and law in
that matter.
The learned counsel further relied on the case of
Dr. Suresh Bhalchandra Shetye Vs. Shri Anil Vasant
Pednekar & ors., reported in 2011(7) ALL MR 619 to submit
that whether a plaint discloses a cause of action is
essentially a question of fact and plaint should be read as a
whole. He also relied on the case of Arjan Singh & ors. Vs.
Union of India & ors., reported in AIR 1987 Delhi 165 to
submit that question of limitation is a mixed question of law
and facts.
7. On the last date of hearing of this matter, the
question of applicability of Section 14 of the Limitation Act
was considered and counsel for both sides sought time to
make further submissions. Today the learned counsel for
petitioner- defendant relied on the case of Jai Prakash Vs.
Satnarain Singh, reported in 1994 (Supp.1) SCC 153 to
argue that, in that matter it was held by the Hon'ble
Supreme Court that exclusion of time under Section 14 of
Limitation Act is available only where the earlier
proceeding related to the same matter that is in issue in the
suit, and not otherwise.
8. Leanred counsel for respondents relied on the
case of P. Sarathy Vs. State Bank of India, reported in AIR
2000 SC 2023(1). In that matter, the Deputy Commissioner
of Labour (Appeals) which is appellate authority under
Tamil Nadu Shops and Establishments Act, 1947 was
considered to be Court for the purposes of Section 14. The
learned counsel for respondents further relied on the case
of Ramnarayan Singh Vs. Kubera Sahu, reported in AIR
1962 Orissa 100 (V 49 C 39). In that matter, it was found
that the Sub-Divisional Officer was Court under the Patna
State Tenancy Act for ejectment of trespasser. Leaned
counsel further relied on the case of Yasin Mohammad Vs.
Mirza Ahsan Beg, reported in AIR 1954 Bhopal 21 (Vol. 41
C.N. 7). In that matter, the proceedings in Revenue Court
were stated to be proceedings of Civil nature. That matter
related to setting aside of revenue sale taken in Revenue
Court. In such proceedings, period till decision of Second
Appeal in Revenue Court was held to be liable to be
excluded in computing one year's limitation under Article
12 of Limitation Act of 1908 for suit to set aside sale.
The rulings relied on by the learned counsel for
respondents– plaintiffs can be distinguished on facts.
Material is to keep in view the ratio and provisions of law
and apply them to the facts of the present matter.
9. Section 14 of the Limitation Act reads as under :
"14. Exclusion of time of proceeding bona fide in
court without jurisdiction:-
(1) In computing the period of limitation for any
suit the time during which the plaintiff has been
prosecuting with due diligence another civil
proceeding, whether in a court of first instance or of
appeal or revision, against the defendant shall be
excluded, where the proceeding relates to the same
matter in issue and is prosecuted in good faith in a
court which, from defect of jurisdiction or other cause
of a like nature, is unable to entertain it.
(2) In computing the period of limitation for any
application, the time during which the applicant has
been prosecuting with due diligence another civil
proceeding, whether in a court of first instance or of
appeal or revision, against the same party for the
same relief shall be excluded, where such proceeding
is prosecuted in good faith in a court which, from
defect of jurisdiction or other cause of a like nature, is
unable to entertain it.
(3) Notwithstanding anything contained in rule 2 of
Order XXIII of the Code of Civil Procedure, 1908 (5 of
1908), the provisions of sub-section (1) shall apply in
relation to a fresh suit instituted on permission
granted by the court under rule 1 of that Order where
such permission is granted on the ground that the first
suit must fail by reason of a defect in the jurisdiction
of the court or other cause of a like nature.
Explanation: For the purposes of this section-
(a) in excluding the time during which a former
civil proceeding was pending, the day on which that
proceeding was instituted and the day on which it
ended shall both be counted;
(b) a plaintiff or an applicant resisting an appeal
shall be deemed to be prosecuting a proceeding;
(c) misjoinder of parties or of causes of action shall
be deemed to be a cause of a like nature with defect of
jurisdiction. "
10. Perusal of Section 14 makes it clear that
following conditions are required to be complied :-
(1) The earlier and subsequent proceedings are
civil proceedings between the same parties;
(2) the earlier proceeding had been prosecuted
with due diligence and good faith;
(3) the failure of the earlier proceeding was due
to defect of jurisdiction or other cause of like
nature, due to which earlier Court found
that it was unable to entertain it;
(4) the earlier proceeding and the later
proceeding relate to the same matter in
issue, and
(5) both the proceedings are in a Court.
11. It is apparent that, it is not sufficient to show
that the concerned proceedings due to which time is sought
to be excluded, was before Court as required by the
section. Further requirement will be that the failure of the
earlier proceedings was due to defect of jurisdiction or
other cause of like nature, due to which the Court dealing
with earlier proceedings was unable to entertain it. It is
also necessary that the earlier proceedings and the later
proceedings must relate to same matter in issue. The
present matter needs to be considered from these points of
view also. If the plaint is considered, the same in brief can
be stated to be as under :
The plaint refers to the properties in dispute and
details are given as to how the property has come down
from ancestors Tatya Ukirde and Taraji Ukirde. Various
details are given regarding the family tree. It is claimed
that, the legal heirs partitioned the land Gat No.26 among
themselves and fixed respective shares and although shares
were described, internal boundaries were not demarcated
and the respective shares were held as Karta of their
respective families and as joint family property. It is
claimed that, dispute in present matter was only regarding
share of Mahadu s/o Tatya and Ramchandra and Kesu. In
the table of share given, share of Pandharinath Mhasu is
also shown. It is further claimed that all brothers enjoyed
respective shares in the said land till their lifetime and after
their death, all the plaintiffs became owners of agricultural
land with their respective shares in Gat No.26. In January
2008, relative Damodhar Ramrao informed plaintiffs, their
name or their father's name did not appear in 7/12 extract.
Plaintiffs examined mutation entry No.752, dated 10.1.1985
showing that plaintiff Kundlik Jayanta and Maruti Appa for
their father Jayanta Madhav, Maliram Dagdu for his father
Dagadu Ramchandra, and Guna Ramchandra, Tukaram
Nana for themselves had transferred their share to
Pandharinath Mhasu, the father of respondent Nos.2 and 3
and mutation entry has taken place on the basis of partition
deed alleged to have been executed by above persons.
Plaint claimed that, there was no such partition. Plaint
further claimed that, on the basis of such mutation entry,
respondent No.1 got executed sale deed from
Pandharinath, father of respondent Nos.2 and 3, of the suit
property in respect of 81 R land and the said sale deed
dated 7.10.1984 was not binding on the plaintiff. Mutation
entry No.752 dated 10.1.1985 and 816 dated 14.5.1987
were challenged in ROR Appeal before D.S.O. on 2.4.2008.
The appeal was dismissed on 6.7.2009. Writ Petition No.
8045/2009 was filed to the High Court challenging the
mutation entry and the same got dismissed on 27.9.2010.
Para 21 of plaint states that, plaintiffs came to know the
fact in January 2008 about the illegal mutation as well as
illegal sale deed and hence, had filed the appeal before
S.D.O. on 2.4.2008. Thus, the suit was filed seeking to
declare the sale deed illegal, and for injunction.
12. Para 19 of the plaint reads as under :
"19. The plaintiffs say and submit that, in order to
challenge mutation entry No.752 dt. 10.1.1985 and
816 dt. 14.5.1987 the plaintiff filed ROR appeal before
D.S.O. Aurangabad bearing Case No.2008/MAG/ROR/
CR-41 on 2.4.2008 and same is registered on 4.4.2008
and thereafter on the count of delay the appeal came
to be dismissed on 6.7.2009. The copy of the same is
annexed herewith for kind perusal of this Hon'ble
Court."
13. It is clear that what was being pursued before
the revenue authorities was challenge to the mutation entry
and the same was "dismissed on the count of delay". It was
not due to defect of jurisdiction as required by Section 14 of
the Limitation Act. Even the Writ Petition No.8045/2009
came to be dismissed keeping in view the delay. Thus, it is
not a case that trial proceedings failed due to defect of
jurisdiction or other cause of like nature. The earlier
proceedings were for setting aside mutation entry. The
present suit is to declare the sale deed dated 7.10.1984 as
not binding on the plaintiff and for injunction that the
defendants should not create third party interest. I find
that, going through the plaint as a whole, Section 14 of the
Limitation Act cannot help the plaintiffs to get the delay
condoned. By clever drafting, knowledge of mutation entry
of 10.1.1985 and sale deed of 7.10.1984 is shown as of
January 2008. The claim to set aside the sale deed was
already hopelessly delayed, even if exclusion of time is done
from January 2008 till filing of suit. Even otherwise, when
admittedly there was knowledge in January 2008, right to
sue to set aside Sale Deed had accrued. The present suit
filed on 1.8.2012 is time barred under Article 58 of the
Limitation Act. The time sought to be excluded from when
the mutation entry was challenged before the revenue
authorities on 2.4.2008 till dismissal of the Writ Petition on
27.9.2010 cannot be accepted and is not admissible under
Section 14 of the Limitation Act.
14. For such reasons, I find that the order passed by
the trial Court is not legal and proper and cannot be
maintained.
15. Civil Revision Application is allowed with costs.
The impugned order is set aside. Regular Civil Suit No.
1600/2012 pending before the trial Court is found to be
barred by limitation. The plaint concerned is rejected
under Order VII Rule 11(d) of the Civil Procedure Code,
1908.
(A.I.S. CHEEMA, J.)
fmp/cra148.13
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