Patna High Court
Chowa Mahto And Ors. vs Jnani Ram And Anr. on 6 October, 1966
Equivalent citations: AIR1967PAT301, AIR 1967 PATNA 301
JUDGMENT U.N. Sinha, J.
1. This appeal has been tiled by the defendants, except Mathura Prasad Mahtha, who has been made a respondent in this appeal. It arises out of a suit instituted by the plaintiff on the 28th March. 1958 in the Court of the Subordinate Judge, Hazaribagh, for a declaration that the lands of Khata No. 19 except plot No. 347, described in schedule C of the plaint, were raiyati lands of the plaintiff in which the defendants had no right whatsoever, The plaintiff also prayed for recovery of possession and other incidental reliefs, in view of the fact that an adverse order against the plaintiff had been passed under Section 145 of the Code of Criminal Procedure. This suit was dismissed by the trial Court, but on appeal, it has been decreed. I do not think it will be necessary to give the facts in detail. in view of the questions of law raised by the learned counsel for the appellants and I will state only the facts which need be mentioned.
2. One Gokul Mahto was recorded in the Khatian with respect to Khata No. 19 as a raiyat. This land was within Khewal No. 5 which had fallen to the share of Harichand Mahto. It was alleged that Gokul had surrendered his land to Harichand on the 24th September, 1924. It was said that on the 29th September, 1924 the land in suit was settled by Harichand to the plaintiff in the name of Gokul. The Putta has been brought on the record and marked as Exhibit 4. This settlement is said to be the plaintiff's title to the disputed property. But, it is alleged that on the 25th September, 1924, Harichand had executed a usufructuary mortgage of Khewat No. 5, which includes Khata No. 19, to Nanda, Lochan and others. Then, it is alleged that on the 26th June, 1929 Jago and Khemlal, sons of Harichand, had executed a Kabulival in favour of the usufructuary mortgagees.
Thereafter, it was alleged that Harichand had sold the disputed land to Chowa, defendant No. 1 and to Musan on the 27th July. 1935. It was alleged that Chowa had redeemed the mortgage dated the 25th September, 1924 on the same day, and this is the contested title of the defendants. That is to say the plaintiff was relying on the settlement dated the 29th September. 1924, and the defendants were relying on the validity of the usufructuary mortgage dated the 25th September, 1924 given by Harichand Mahto There was a proceeding under Section 145 of the Code of Criminal Procedure between the parties in which an adverse order was passed against the plaintiff by a Magistrate on the 26th November, 1951. This order was affirmed by the Court of Session on the 7th July, 1952.
Thereafter the present plaintiff instituted the first suit on the 31st March, 1953 in the Court of a Munsif, valuing the suit at Rs. 3200, inclusive of the value of the land and the valuation of the other incidental reliefs claimed. There was a contest in the trial court as to the valuation of the suit and the learned Munsif held, on a computation from the income, that the net annual income from the suit land would be Rs. 1260. Therefore, the proper valuation of the suit land was held to be Rs. 12660 by taking ten years' purchase. As the value of the suit exceeded the pecuniary jurisdiction of the Court, the plaint was ordered to be returned for presentation in the proper Court. There was an appeal by the plaintiff before the Court of appeal below and the learned District Judge disagreed with the conclusion of the trial Court He held that the net annual income would be Rs. 432, and by taking 20 years' purchase, the valuation of the land would be Rs. 8640.
The plaintiff then came up to this Court in civil revision, which was numbered as Civil Revision No. 369 of 1956. By judgment and order dated the 13th March, 1958, this Court again varied the valuation of the land. This Court, on hearing the parties, held that the valuation should have been taken at 12 years' purchase and the application was, therefore, allowed in part. It appears that the plaint was returned on the 25th March, 1958. The same plaint was presented in the Court of the Subordinate Judge, Hazaribagh, on the 28th March, 1958. A separate application was filed by the plaintiff on the same day stating that the plaintiff had filed the suit originally in the Court of the Musif. Hazaribagh and on the defendants' objection as to the valuation, the valuation of disputed land had been finally fixed by the High Court at Rs. 5184. The prayer was that the valuation given in the original plaint, re-presented before the learned Subordinate Judge may be permitted to be corrected. Further prayer was that the total valuation of the suit would now be Rs. 6504 and permission was sought for inserting this amount in the plaint Some other incidental amendments were also prayed for.
These amendments were allowed by the Court, by order dated the 29th April, 1958. Thus the suit proceeded. In the written statement filed by the defendants references were made to the refiling of the plaint in the Court of the Subordinate Judge. Hazaribagh and to the amendments made in the plaint. Paragraphs 3, 4 and 5 of the written statement ran as follows :--
"(3) That originally the plaintiff has filed T.S. No. 31/56 in the Court of the Munsiff Hazaribagh valuing the suit at Rs. 3200. It was ordered by the Munsiff to be returned to the plff. for filing in Sub Judge's Court as the Munsiff found the market value of the suit properties at Rs. 12,000.
4. That against this order the plaintiff went in appeal to the District Judge as also before the Hon'ble High Court and ultimately the valuation was raised and he was directed to refile it on the valuation fixed by the High Court before the Sub Judge Hazaribagh.
5. That the plaintiff instead of refiling the plaint has to all intents and purposes filed a new plaint which he is not entitled to do. The various amendments which he has made in the plaint were not made with leave of court and as such, the plaint cannot be considered to have been refiled and having been filed beyond three years from the date of the final order in the 145 proceeding is barred by limitation."
3. On the allegations of the parties, various issues were framed by the trial Court, including issue No. 2, as to whether the suit was barred by limitation or not. This matter was considered by the trial court in Paragraphs 8 and 9 of its judgment. The contention raised on behalf of the defendants regarding limitation, on the ground that the Magistrate's order was dated the 26th November, 1951 and the filing of the present suit in the Court of the Subordinate Judge after the return of the plaint, was dealt with by learned Additional Subordinate Judge and he stated that there was no material before the Court and there was not even an allegation that the plaintiff was wanting in bona fides and. therefore, the suit cannot be held to be barred by limitation. With respect to the amendment of the plaint challenged by the defendants, it was held that ail the amendments had been made by the leave of the Court after the plaint had been returned by the Munsif at Hazaribagh.
4. The findings on the merits of the case by the court of appeal below are all in favour of the plaintiff as it has been held that the deed of settlement dated the 29th September. 1924 in the name of Gokul Mahto was a settlement in favour of the plff. and he was continuing in possession since then. It has been held that the usufructuary mortgagees under the mortgage, said to have been executed on the 25th September, 1924 were never in possession, nor were Jago and Khemlal, sons of Harichand, who were said to have executed a Kabuliyat in favour of the usufuctuary mortgagees on the 26th June, 1929 All the conclusions on the facts of the case are based on record and not much argument has been advanced by the learned counsel for the appellants on them The learned Advocate-General has urged two questions of law which require consideration. It is argued that the present suit instituted on the 28th March, 1958 in the Court of the Subordinate Judge, Hazaribagh was filed beyond the period of limitation envisaged by Article 47 of the old Limitation Act, as the order under Section 145 of the Code of Criminal Procedure had been passed as early as on the 26th November, 1951.
It is contended that Order VII, Rule 6 of the Code of Civil Procedure is attracted and the suit had been instituted after the expiry of the period prescribed by the law of limitation and the plaintiff was bound to show grounds in the plaint upon which exemption from the law of limitation could be claimed which exemption could be claimed, under Section 14 of the same Limitation Act, if at all, According to the learned counsel the trial court was in error in approaching the matter of limitation, as the onus was thrown on the defendants to show want of bona fides of the plaintiff in this litigation, so that Section 14 of the Limitation Act could be drawn in the plaintiff's aid.
In substance, the contention is that the plaintiff was bound to show, in his plaint, the grounds of exemption and obtain such exemption from the trial court, without putting any onus on the defendants to show that the plaintiff was not entitled to bring in aid Section 14. It is further contended that the plaintiff had grossly under-valued the suit filed in the Court of the Munsif at Hazaribagh on the 31st March, 1953, and therefore he was not entitled to take the benefit of Section 14 of the old Limitation Act, under which the plaintiff had to prove that he was prosecuting in good faith and with due diligence the suit that he had instituted in the court of the Munsif.
Reliance is placed on Ramchandra Singh v. Mt Bibi Khodaijjatul Kubra, reported in AIR 1945 Pat 369 and on Ram Kishun Ram v. Ashirbad Rai, reported in AIR 1950 Pat 473 With respect to the question as to whether the plaintiff was guilty of gross undervaluation of the suit or not. I will refer to the matter presently; but the question of compliance with Order VII, Rule 6 of the Code of Civil Procedure may be dealt with here.
5. From the facts stated above, it is clear that the question as to whether Section 14 of the Indian Limitation Act had applied or not had been investigated under issue No. 2 framed by the trial court. That court may have put the matter in the negative aspect by stating that "there was no material before this court and there is not even an allegation that the plaintiff was wanting in bona fides in litigations in that Court. So on the face of it, the suit is not barred by limitation" but, it is clear that the court and the parties were fully conversant with the facts and circumstances of the case. Apparently, in this aspect of the controversy it had not been a specifically contested that the plaint, as presented before the Subordinate Judge Hazaribagh, did not show any ground upon which exemption under Section 14 was claimed, and although the plaint itself did not show the grounds upon which the plaintiff could claim exemption from the law of limitation under Section 14 of the Indian Limitation Act, it is clear that the facts were all known to the parties The plaint itself is the original plaint, which contains the recitals about the various facts culminating in the return of the plaint on the 25th March, 1958.
Even a reference has been made to the order of this Court, dated the 13th March, 1968.
In these circumstances, I would prefer to follow the view taken in the case of Binodilal v. Satyendra Singh, reported in AIR 1966 Madh Bha 97. In that decision. Khan. J., stated thus :--
"I have no doubt that where exemption from the law of limitation is claimed, the plaint must show the ground on which such exemption is sought Order 7, Rule 6. Civil P. C. is clear on the point. But this is a matter which pertains to the domains of pleadings and although legal education in our country has progressed and we are justified in demanding increasing competence from legal practitioner, yet, those who have experience of the courts in the country know well enough that in the matter of pleading there is yet room for much improvement.
But where circumstances appear on the face of the record, which entitle the plaintiff be claim the benefit of Section 14. Limitation Act (in this case there is an endorsement on the plaint of the date on which the suit was originally instituted when it was admittedly within time and there is also an endorsement, showing the date of the return of the plaint for presentation to proper Court) and where arguments have been heard by the Court, relating to the question as to whether the benefit of Section 14. Limitation Act should be given or not, I think the courts should not take a mere technical view of a question which is a matter of pleading only.
The courts exist for doing real substantial justice and must steer clear of mere technicalities. The law cannot provide rules for all cases that may arise An eminent jurist has observed that 'it is the duty of the Judges to apply laws, not only to what appears to be regulated by express provisions, but to all cases also, to which a just application of them may be made and which appear to be comprehended either within the express sense of the law or within the consequences, that may be gathered from it' In this view of the matter, I am of the opinion that where facts on which the benefits of Section 14. Limitation Act can be claimed appear on the face of the record (as in the present case) that must be deemed sufficient compliance with the provision of law and the learned District Judge would have been well advised to go into the merits of the questions arising under Section 14 of the Act"
Reference was made by the learned Judge to A Bench decision of the Lahore High Court, in the case of Sukhbir Singh v. Piarelal reported in AIR 1923 Lah 591, which was followed. The Lahore High Court had held that although no statements required under Order VII Rule 6 were made on the plaint, as the endorsement of the Court returning the plaint and the date of return and the circumstances entitling the plaintiff to claim the benefit of Section 14 of the Indian Limitation Act appeared on the face of the record, the suit ought not to be dismissed. Therefore, on the question of non-compliance with Order VII, Rule 6 of the Code of Civil Procedure, raised by the learned Advocate-General, I am of the opinion that in the circumstances of the present case, the plaintiff's suit cannot be dismissed on the ground urged.
6. With respect to the two decisions relied upon on behalf of the appellants, I do not think that the principles laid down therein apply in the instant case, as it is not possible to hold that the plaintiff was guilty of gross under-valuation of the suit instituted in the Court of the Munsif at the first instance, so that he cannot take advantage of Section 14 of the Limitation Act. From the facts stated above, showing the course of the present litigation it is clear that what the learned trial Judge had put in the negative manner can be put in the positive manner by holding that the plaintiff had prosecuted the suit instituted in the court of the Munsif in good faith and with due diligence, until the valuation matter was conclusively determined by this court that the Munsif of Hazaribagh had no pecuniary jurisdiction to try the suit. The learned Munsif had held that the valuation of the land should have been Rs. 12,660, and the court of appeal below had held the valuation to be Rs. 8,640, and according to the judgment and order of this court, the valuation of the suit land had become Rs. 5,184.
Even if the definition of good faith given in the old Limitation Act is considered, it is not at all possible to hold that the plaintiff had done anything without due care and attention This leads to the contention raised by the learned counsel for the appellants based on the case of Madhavrao Narayanrao v. Ram Krishna Govind, reported in AIR 1958 SC 767. The facts mentioned in the judgment of their Lordships show that the principle laid down by their Lordships cannot be attracted to the facts of the instant case In 'Madhavrao's case AIR 1958 SC 767 the plaintiff had instituted two suits, and in one no valuation was given in the plaint for the purposes of jurisdiction with reference to the value of the properties claimed. The other suit had proceeded to final conclusion and was dismissed. The two suits were proceeding in the same Court and after dismissal of one of the suits, the plaintiff made an application to the Court indicating that the Court did not have pecuniary jurisdiction to try the other suit The court, therefore, returned the plaint of the suit, which had then been undisposed of, to be presented to fee proper court. The plaint was re-presented on that very day in the Court of the District Judge.
Upon these facts their Lordships of the Supreme Court held that the plaintiff had failed to prove that he had been prosecuting the suit that he had withdrawn in good faith as understood in the Limitation Act. The defendant's contention Chat on the dismissal of the other suit, the plaintiff had become apprehensive about the result of the undisposed of suit was approved by their Lordships and it was held that the plaintiff must have known all the lime that the properties involved in the suit which he withdrew to be much more than the limit of the pecuniary jurisdiction of the Court where It was pending. Mention was also made of the fact that the plaint had omitted to state the value of the properties involved in the suit.
Thus, it was held that the suit which was withdrawn and was re-filed in the Court of the District Judge was barred by limitation. In the instant case, there is no single item of fact which can induce the court to hold that the plaintiff had done anything which was not done with due care and attention. Moreover, although the plaintiff's suit had been dismissed by the trial Court on merit, this question could have been raised by the defendants in the court of appeal below, and an that could be pointed out by the learned counsel for the appellants in the judgment of the court of appeal below is paragraph 46 where the question of amendments was dealt with. Therefore, it is clear that this contention was not raised in the Court of appeal below in the form in which it is raised in this Court, although it could have been raised in support of the decree of dismissal of the suit.
In the original memorandum filed in this Court ground No. 5 was taken to the effect that the court of appeal below had "failed to find" that the suit was barred by limitation, as the final order in the criminal case had been passed on the 26th November, 1951 By subsequent amendment it has been stated that the Court of appeal below "refused to consider'' this point. There is no material on the record to indicate that the Court of appeal below refused to consider the question as it is being urged in this Court. I would, therefore, hold that the contentions of the learned Advocate-General mentioned above, must he negatived.
7. It is then urged on behalf of the appellants that under Section 65-A of the Transfer of Property Act, it was not permissible for Hari Chand Mahto to make any lease, as he was not lawfully in possession of the mortgaged property. This question has been referred to in Paragraph 21 of the judgment of the Court of appeal below The learned judge on appeal has stated that if the mortgagees did not enter into possession, the lessee was entitled to retain possession as against the mortgagor In the instant case, it has been held that the mortgagor was in possession: that is to say. Hari Chand Mahto was in possession and the mortgagees were never in possession Therefore, it is difficult to hold that the mortgagor was not lawfully in possession It appears from paragraph 22 of the judgment of the court of appeal below that the plaintiff's contention was that mortgagees did not come in possession of Khata No 19. because it had been agreed by all concerned that, the lands should be settled with the plaintiff. That is why no confirmation of the settlement was taken from the mortgagees The plaintiff's contention, farther, was that as the mortgagor and the mortgagees were his relations, he did not consider it necessary to obtain any documentary evidence of the mortgagees' consent. On the conclusions of the final court of fact it is difficult to hold that the mortgagor was not in lawful possession and, therefore, it was not in his power to make any lease. This contention raised on behalf of the appellants must, therefore fail.
8. It was also urged on behalf of the appellants that as the plaint was returned on the 25ft March, 1958 and it was re-filed in the Court of the Subordinate Judge at Hazaribagh on the 28th March, the delay between these two dates has not been explained and, therefore, the suit was filed beyond the period of limitation on the 28th March, 1958. This in a new contention raised for the first time in this Court and I do not think that it is possible for this Court, at this stage, to investigate into this point. The parties had proceeded m all other previous stages on the basis that the suit filed on the 28th March, 1958 was filed beyond the period of limitation, taking the starting point to be 26th November, 1961. The point as urged now was not taken earlier.
9. For the reasons given above, I am of the opinion that this appeal must foil, and it is therefore, dismissed. Under the circumstances, however, the parties should bear their costs of this Court.