Jharkhand High Court
Kamal Kanto Mahato vs Budhu Mahato on 10 August, 2022
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
1 S.A. No. 178 of 2004
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No.178 of 2004
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1. Kamal Kanto Mahato
2. Ishan Mahato (Both sons of Indra Mahato, resident of village -Lachipur, P.O. & P.S. - Patamda, District -Singhbhum East.) .... .... .... Appellants Versus
1. Budhu Mahato, son of Late Pandubala Mahatani
2. Khandubala Mahato, wife of Late Meghnath Mahato
3. Khedu Mahato (minor)
4. Khoka Mahato (minor) (Both are sons of Late Meghnath Mahato) [Respondent nos. 3 & 4 are minors and they are represented by their natural guardian mother -Khendubala Mahato (respondent no.2 herein)] All are residents of village -Lachipur, P.O. & P.S. -Patamda, District - East Singhbhum.
.... .... .... Respondents
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For the Appellants : Mr. Kundan Kumar Ambastha, Advocate For the Respondents : Mr. Akshay Kr. Mahto, Advocate PRESENT HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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Order No.07 Dated- 10.08.2022 Heard the learned counsel for the appellants.
It is submitted by Mr. Kundan Kumar Ambastha, the learned counsel for the appellants that the following two additional substantial questions of law is required to be framed in this appeal as the first appellate court committed an error of law by ignoring the settled principle of law that as the suit was simpliciter for declaration of gift deed dated 05.07.1985 in respect of the suit land was illegal, null and void and not binding upon the plaintiffs even though the donor of the gift deed namely Puti Mahatani executed deed of gift for more than her share still the limitation as provided in Article 59 of the 2 S.A. No. 178 of 2004 Limitation Act is attracted and the learned trial court also committed error of law by not specifying the reliefs granted by it to the plaintiffs in clear terms and vaguely mentioned that the suit has been decreed.
Considering the facts of the case, this second appeal will be heard on the following two additional substantial questions of law as well.
(I) Whether the first appellate court committed an error of law by ignoring the settled principle of law that as the suit was simpliciter for declaration of gift deed dated 05.07.1985 in respect of the suit land was illegal, null and void and not binding upon the plaintiffs even though the donor of the gift deed namely Puti Mahatani executed deed of gift for more than her share still the limitation as provided in Article 59 of the Limitation Act is attracted?
(II) Whether the learned trial court committed an error of law by not specifying the reliefs granted by it to the plaintiffs?"
It is jointly submitted by Mr. Kundan Kumar Ambastha, the learned counsel for the appellants and Mr. Akshay Kumar Mahto, the learned counsel for the respondents that though the additional substantial question of law has been framed in this appeal today, yet both the appellant and the respondents are ready for hearing of the appeal today as they were expecting the said two substantial questions of law being formulated by this court at the time of hearing of the appeal, hence the appeal be heard today itself without any adjournment as the appeal is a years old one.3 S.A. No. 178 of 2004
Considering the aforesaid facts and circumstances of this appeal, this appeal is heard today and Judgment delivered in separate sheets is annexed with the record.
Sonu-Gunjan/- (Anil Kumar Choudhary, J.) 1 S.A. No. 178 of 2004 IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.178 of 2004 (Against the Judgment and decree dated 28th February, 2004 passed by the learned Additional District Judge, Jamshedpur, F.T.C -VII in Title Appeal No. 37 of 1998)
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1. Kamal Kanto Mahato
2. Ishan Mahato (Both sons of Indra Mahato, resident of village -Lachipur, P.O. & P.S. - Patamda, District -Singhbhum East.) .... .... .... Appellants Versus
1. Budhu Mahato, son of Late Pandubala Mahatani
2. Khandubala Mahato, wife of Late Meghnath Mahato
3. Khedu Mahato (minor)
4. Khoka Mahato (minor) (Both are sons of Late Meghnath Mahato) [Respondent nos. 3 & 4 are minors and they are represented by their natural guardian mother -Khendubala Mahato (respondent no.2 herein)] All are residents of village -Lachipur, P.O. & P.S. -Patamda, District - East Singhbhum.
.... .... .... Respondents
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For the Appellants : Mr. Kundan Kumar Ambastha, Advocate For the Respondents : Mr. Akshay Kr. Mahto, Advocate PRESENT HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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By the Court:-
1. Heard the parties.
2. This appeal has been filed against the judgment and decree of reversal passed by the Additional District Judge, Jamshedpur, F.T.C
-VII in Title Appeal No. 37 of 1998 on 28th February, 2004 whereby and where under, the learned first appellate court allowed the appeal in part and decreed the suit of the plaintiff in part and the judgment and decree passed by the trial court whereby and where under, the 2 S.A. No. 178 of 2004 suit was dismissed on contest was set aside in part.
3. The brief facts of the case is that the plaintiffs-respondents filed Title Suit No. 4 of 1991 with a prayer for decree for declaration that deed of gift dated 05.07.1985 is illegal, null and void and not binding on the plaintiffs-respondents. The case of the plaintiffs-
respondents is that the suit land belonged to Bolai Mahato and after his death, fifteen years prior to filing of the suit; his widow - Puti Mahatani and two daughters namely Pandubala Mahatani and Beula Mahatani inherited the suit property in equal share and came in possession of the property. Beula Mahatani being a handicapped lady was fully dependent upon her mother -Puti Mahatani after the death of Bolai Mahato. Puti Mahatani died in the year 1988 and Pandu Bala Mahatani pre-deceased Puti Mahatani. After the death of Pandu Bala Mahatani, the original plaintiff nos. 1, 2 & 3 being her sons inherited her share out of the property of Bolai Mahato. The original plaintiff nos. 1, 2 & 3 also looked after Puti Mahatani and were residing in the house of Puti Mahatani and used to do all the work of cultivation. The further case of the plaintiffs is that on 04.07.1985, the defendants invited Puti Mahatani to their home and taking advantage of her old age, took her to Jamshedpur in the guise of showing her Jamshedpur town and without telling her, got the gift deed executed by her by obtaining her L.T.I. by practicing fraud upon her. It is contended that the land contained in the deed is more than the share due to Puti Mahatani. In their written statement, the defendants besides the various technical pleas also pleaded that the suit is barred by limitation as the plaintiffs had full knowledge of the gift deed dated 3 S.A. No. 178 of 2004 05.07.1985 and so a suit for declaring the deed as null and void ought to have been brought within the time of limitation from the date of knowledge. The defendants further pleaded that the plaintiff nos. 1 to 3 filed a suit for partition vide Title Partition Suit No. 162 of 1985 against the defendants as well as against Puti Mahatani for partition of the suit property of this suit along with other properties and the plaintiff nos. 1 to 3 knowing full well that they are neither the reversioners of Bolai Mahto; did not contest the suit and the learned Munsif dismissed the suit for partition for default. Hence, the plaintiffs were excluded from filing this suit, specially when have made averments in the partition suit about the gift deed, which is challenged in this suit. The defendants further pleaded that Beula Mahatani was fully dependent upon Puti Mahatani and Beula Mahatani had no share whatever in the share of Bolai Mahato. The defendants further pleaded that Puti Mahatani has full right for execution of the deed of gift and she executed the deed with her full consent and in clear mind for the reasons mentioned in the recital of the gift deed, hence the gift deed executed by Puti Mahatani is legal, valid and binding upon the plaintiffs.
4. On the basis of the rival pleadings, the learned trial court framed the following seven issues :
(i) Is the suit as framed maintainable?
(ii) Have the plaintiffs got cause of action for the suit?
(iii) Is the suit barred by limitation?
(iv) Is the suit barred by res judicata?
(v) Whether Puti Mahatani had executed registered deed 4 S.A. No. 178 of 2004 of gift dated 05.07.1985 with her free consent, in favour of the defendants?
(vi) Whether the Deed of Gift dated 05.07.1985 is null, void and not binding on the plaintiffs?
(vii) To what relief or reliefs the plaintiffs are entitled to?
5. The learned trial court first took up issue no. iv and came to the conclusion that the principle of res judicata is not applicable. Then the trial court took up issue no. iii and considering the fact that in Ext.
-H which is the plaint of Title Suit No. 162 of 1985 in paragraph no.6, the plaintiffs of this suit who were the plaintiffs of Title Suit No. 162 of 1985 as well have averred about the gift deed sought to be declared null and void in this suit, hence they had knowledge about the said gift deed in the year 1985 and the suit having been filed in the year 1991 i.e. more than three years, hence, the suit is barred by limitation. In respect of Issue nos. v & vi, the learned trial court after considering the evidence in the record came to the conclusion that the deed of gift dated 05.07.1985 is not void ab initio and Puti Mahatani has executed a valid registered deed of gift in favour of the defendants in accordance with the provisions of law as envisaged in Section 122 of the Transfer of Property Act. In respect of Issue no. i, ii & vii, the learned trial court held that the suit as framed is not maintainable and the plaintiffs have no cause of action for the suit and dismissed the suit on contest.
6. Being aggrieved by the judgment and decree passed by the trial court in Title Suit No. 4 of 1991, the plaintiffs filed Title appeal no. 37 of 1998 in the court of learned District Judge, Jamshedpur which was ultimately heard and disposed of by the first appellate court vide 5 S.A. No. 178 of 2004 the impugned judgment dated 28.02.2004.
7. The learned first appellate court formulated the same seven issues as points for determination and after making independent appreciation of the evidence in the record in respect of points for determination nos. v & vi which corresponds to the issue nos. v & vi settled by the trial court, the learned first appellate court came to the conclusion that the deed of gift executed by Puti Mahatani to her share is valid and genuine but exceeding her share is ab initio void thus, point no.vi was partly decided in favour of the appellants and the point no.v was decided in favour of the defendant-respondents by holding that Puti Mahatani executed registered deed of gift dated 05.07.1985 with her free consent in favour of the defendants. In respect of point for determination no. iii, the learned first appellate court came to a conclusion that since the donor -Puti Mahatani executed deed of gift in excess of her share, hence the deed of gift executed by Puti Mahatani exceeding her share is void ab-initio, so limitation is not applicable to the same, therefore it held that the suit is not barred by law of limitation to the extent of the land for which deed of gift has been executed by Puti Mahatani for more than one-third share of the land measuring area 1.94 acres. In respect of the points for determination no. iv which corresponds to issue no. iv, the learned first appellate court came to a conclusion that the suit is not barred by res judicata. In respect of point for determination no. ii which corresponds to issue no. ii, the learned first appellate court came to the conclusion that there is valid cause of action for the plaintiffs to file the suit. In respect of point for determination no. i which corresponds 6 S.A. No. 178 of 2004 to issue no. i, the learned first appellate court came to the conclusion that the suit is maintainable and in respect of point for determination no. vii which corresponds to issue no. vii, the learned first appellate court came to the conclusion that the plaintiffs are not entitled to get other relief or reliefs as claimed and passed the following as the operative portion of the judgment:
"In the result, this Title Appeal is allowed in part but in the facts and circumstances of the case without costs. The judgment dt.
23.06.98 and decree dt. 10.07.98 passed in Title Suit No.4/91 are set aside in part. Let a decree be drawn accordingly."
8. At the time of Admission of this appeal, the following substantial question of law was framed:
"Whether when the previous suit i.e. Title Suit No. 162 of 1985 of the Court of Munsif, Jamshedpur between the same parties with respect of the same property challenging the registered gift deed dated 5.7.1985 (Ext-C) which was dismissed for default when the defendant (present appellants) appeared in the suit, the present suit will be barred under Order IX Rule 9 of the Code of Civil Procedure?"
And subsequently, two additional substantial question of law were framed in this appeal; which are as under:
"(I) Whether the first appellate court committed an error of law by ignoring the settled principle of law that as the suit was simpliciter for declaration of gift deed dated 05.07.1985 in respect of the suit land was illegal, null and void and not 7 S.A. No. 178 of 2004 binding upon the plaintiffs even though the donor of the gift deed namely Puti Mahatani executed deed of gift for more than her share still the limitation as provided in Article 59 of the Limitation Act is attracted?
(II) Whether the learned trial court committed an error of law by not specifying the reliefs granted by it to the plaintiffs?"
9. Mr. Kundan Kumar Ambastha, the learned counsel for the appellants fairly submits that Title Suit No. 162 of 1985 was not disposed of on merit nor the issues involved in that suit was adjudicated. So certainly the same will not be a res judicata for this suit. It is further submitted by Mr. Ambastha, so far as the first additional substantial question of law regarding the limitation is concerned, the learned first appellate court erred by holding that Article 59 of the Limitation Act, 1963 is not applicable because part of the gift deed dated 05.07.1985 was in excess of the share of the donor; is fallacious and to cover up that the first appellate court had avoided specifically mentioning the relief it granted to the plaintiffs in the suit because the only prayer of the plaintiffs in the suit was to declare the deed of gift dated 05.07.1985 to be illegal, null and void and not binding upon the plaintiffs. So the first appellate court was conscious of the fact that the moment it would have gone to allow the prayer of declaring the deed of gift dated 05.07.1985 or any part of it to be null and void then, it would have attracted Article 59 of the Limitation Act, 1963 and as the first appellate court has also concurred that the finding of fact of the trial court that the donor -Puti Mahatani has executed the gift deed 8 S.A. No. 178 of 2004 dated 05.07.1985 with her free consent and without any fraud being practiced upon her. So there is no way, the first appellate court could have come to a finding other than that the suit is barred by limitation. In respect of third substantial question of law, it is submitted by Mr. Ambastha that it is a settled principle of law that the courts must specify while allowing a suit, as to what reliefs it is giving to the parties and merely saying that the title appeal is allowed in part and the judgment and decree of the Title Suit No. 4 of 1991 is set aside in part is a vague statement, hence, on this score also, the first appellate court committed an error. Hence, it is submitted that the impugned judgment and decree of the first appellate court being not sustainable in law be set aside and the judgment and decree passed by the trial court in Title Suit No. 4 of 1991 dated 23.06.1998 be restored.
10. In support of his contention, Mr. Ambastha relied upon the Judgment of Hon'ble Supreme Court of India in the case of Abdul Rahim and Ors v. Sk. Abdul Zabar and Ors, reported in AIR 2010 SC 211, para-19 of which reads as under:-
"19. A suit for cancellation of transaction whether on the ground of being void or voidable would be governed by Article 59 of the Limitation Act. The suit, therefore, should have been filed within a period of three years from the date of knowledge of the fact that the transaction which according to the plaintiff was void or voidable had taken place. The suit having not been filed within a period of three years, the suit has rightly been held to be barred by limitation.
In Md. Noorul Hoda v. Bibi Raifunnisa and Ors. [1996 (7) SCC 767], this Court held:
"....There is no dispute that Article 59 would apply to set aside the instrument, decree or contract between the inter-se parties. The question is whether in case of person claiming title through the party to the decree or instrument or having knowledge of the instrument or decree or contract and seeking to avoid the decree by a specific declaration, whether 9 S.A. No. 178 of 2004 Article 59 gets attracted? As stated earlier, Article 59 is a general provision. In a suit to set aside or cancel an instrument, a contract or a decree on the ground of fraud, Article 59 is attracted. The starting point of limitation is the date of knowledge of the alleged fraud. When the plaintiff seeks to establish his title to the property which cannot be established without avoiding the decree or an instrument that stands as an insurmountable obstacle in his way which otherwise binds him, though not a party, the plaintiff necessarily has to seek a declaration and have that decree, instrument or contract cancelled or set aside or rescinded. Section 31 of the Specific Relief Act, 1963 regulates suits for cancellation of an instrument which lays down that any person against whom a written instrument is void or voidable and who has a reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, can sue to have it adjudged void or voidable and the court may in its discretion so adjudge it and order it to be delivered or cancelled. It would thus be clear that the word 'person' in Section 31 of the Specific Relief Act is wide enough to encompass a person seeking derivative title from his seller. It would, therefore, be clear that if he seeks avoidance of the instrument, decree or contract and seeks a declaration to have the decrees set aside or cancelled he is necessarily bound to lay the suit within three years from the date when the facts entitling the plaintiff to have the decree set aside, first became known to him." (Emphasis supplied) And submits that a suit for declaring a gift deed to be illegal, null and void and not binding upon the plaintiffs attracts Article 59 of the Limitation Act, 1963.
11. Mr. Akshay Kumar Mahto, the learned counsel for the respondents on the other hand defends the impugned judgment and decree passed by the first appellate court. Mr Mahto submits that the first appellate court rightly held that as the deed of gift in question in this suit is void ab initio the provisions of limitation and is not applicable, in the facts of the case. Mr Mahto further submitted that as in the earlier suit there was no adjudication of the dispute between the parties, hence the same will not be res judicata so far as the issues involved in the suit are concerned. It is lastly submitted by Mr Mahto that thus this appeal being without any merit be dismissed.
10 S.A. No. 178 of 2004
12. Having heard the submissions made at the Bar and after going through the materials in the records, so far as the first substantial question of law is concerned, as rightly and fairly submitted by the learned counsel for the appellants, it is apparent that the plaintiffs only filed Title Suit No. 162 of 1985 and there is no material to suggest that the defendants ever appeared in that suit or filed any written statement or any issue was ever framed.
13. In the case of Saroja v. Chinnusamy (Dead) by LRs and Another, reported in (2007) 8 SCC 329, para-5 of which reads as under:-
"5. We have carefully examined the provisions under Section 11 CPC. After a careful reading of the provisions under Section 11 CPC, it is discernible that in order to constitute res judicata, the following conditions must be satisfied--
(i) There must be two suits--one former suit and the other subsequent suit;
(ii) The court which decided the former suit must be competent to try the subsequent suit;
(iii) The matter directly and substantially in issue must be the same either actually or constructively in both the suits;
(iv) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the court in the former suit;
(v) The parties to the suits or the parties under whom they or any of them claim must be the same in both the suits;
(vi) The parties in both the suits must have litigated under the same title.
We shall come back to these conditions later." (Emphasis supplied) The Hon'ble Supreme Court of India has enunciated the condition to constitute res judicata. But in this case, as merely a plaint was filed and the same was dismissed, may be under Order IX Rule 2 11 S.A. No. 178 of 2004 or 5 of the Code of Civil Procedure, so he cannot be said that the issue in the suit was finally heard and decided in the earlier suit.
14. In the case of Radha Prasad Singh vs. Lal Saheb Rai & Ors., reported in (1891) ILR 13 All 53 (PC), the Privy Counsel has observed in para -62 as under:-
"None of the questions are either of fact or law raised by the pleadings of the parties was heard or determined by the Judge of Sahabad Court in 1881; when the first suit was dismissed for default and the decree dismissing the suit does not constitute resjudicata within the meaning of the Code of Civil Procedure."
As is evident from the provisions of the Code of Civil Procedure, if the dismissal of a suit is under Rule 3 of Order IX of the Code of Civil Procedure, where neither party appears when the suit was called on for hearing, the plaintiff under Rule 4 of Order IX may bring a fresh suit. If dismissal is under Rule 8 of Order IX of the Code of Civil Procedure where the defendant appears and the plaintiff does not appears, when the suit is called on for hearing, the plaintiff under Rule 9 of Order IX of the Code of Civil Procedure is precluded from bringing a fresh suit in respect of the same cause of action. The dismissal of a suit for default in either event does not bring into operation the bar of res judicata or constructive res judicata within the meaning of Section 11 of the Code of Civil Procedure, in institution of a second suit on the same cause of action. Moreover, the earlier suit was a suit for partition and this suit is a suit to declare the gift deed executed by Puti Mahatani to be illegal, null and void and not binding upon the plaintiffs. Hence, this Court has no hesitation in holding that 12 S.A. No. 178 of 2004 in the absence of any material to suggest that the Title Suit No. 162 of 1985 was dismissed under Rule 8 of Order IX of the Code of Civil Procedure, this suit which has been brought with a cause of action of execution of a gift deed by Puti Mahatani whereas the cause of action for filing the partition suit was denial of partition of the property when demanded by the plaintiffs from the defendants i.e. entirely a different cause of action, hence this suit is not barred under Order IX Rule 9 of the Code of Civil Procedure. The first substantial question of law is answered accordingly.
15. So far as the second substantial question of law is concerned, as to applicability of Article 59 of the Limitation Act is concerned, it is a settled principle of law that if a gift deed is void ab initio then the same can be ignored but when a suit is filed for declaration of the gift deed to be illegal, null and void and not binding upon the plaintiff, certainly the adjudication, as to whether and to what extent the gift deed is in excess of the share of the donor is required. In this respect, it is also relevant to refer to para-5 of the Judgment of Hon'ble Supreme Court of India in the case of Gorakh Nath Dube v. Hari Narain Singh and others, reported in (1973) 2 SCC 535 which reads as under:-
"5.There is no decision of this Court directly on the question whether a suit for cancellation of a sale-deed, which was pending on the date of the notification under Section 4 of the Act, abates under Section 5(2) of the Act. A decision of a Division Bench of the Allahabad High Court, in Jagarnath Shukla v. Sita Ram Pande [ 1969 ALJ 768] , directly dealing with the question before us, was then cited before us. Here, we find a fairly comprehensive discussion of the relevant authorities of the Allahabad High Court the preponderating weight of which is cast in favour of the view that questions relating to the validity of sale-deeds, gift deeds, and wills could be gone into in proceedings before the consolidation authorities, because such questions naturally and necessarily arose and had to be decided in the course of adjudication on rights or interests in land which are the subject-matter of consolidation 13 S.A. No. 178 of 2004 proceedings. We think that a distinction can be made between cases where a document is wholly or partially invalid so that it can be disregarded by any court or authority and one where it has to be actually set aside before it can cease to have legal effect. An alienation made in excess of power to transfer would be, to the extent of the excess of power, invalid. An adjudication on the effect of such a purported alienation would be necessarily implied in the decision of a dispute involving conflicting claims to rights or interests in land which are the subject-matter of consolidation proceedings. The existence and quantum of rights claimed or denied will have to be declared by the consolidation authorities which would be deemed to be invested with jurisdiction, by the necessary implication of their statutory powers to adjudicate upon such rights and interests in land, to declare such documents effective or ineffective, but, where there is a document the legal effect of which can only be taken away by setting it aside or its cancellation, it could be urged that the consolidation authorities have no power to cancel the deed, and, therefore, it must be held to be binding on them so long as it is not cancelled by a court having the power to cancel it. In the case before us, the plaintiff's claim is that the sale of his half share by his uncle was invalid, inoperative, and void. Such a claim could be adjudicated upon by consolidation courts. We find ourselves in agreement with the view expressed by the Division Bench of the Allahabad High Court in Jagarnath Shukla case that it is the substance of the claim and not its form which is decisive." (Emphasis supplied) Under such circumstances, this Court has no hesitation in holding that the first appellate court has committed an error of law by holding that the suit is not barred by limitation.
16. Now coming to the third substantial question of law regarding the specific relief to be granted in a suit is concerned, it is a settled principle of law as has been held by the Hon'ble Supreme Court of India in the case of Lakshmi Ram Bhuyan v. Hari Prasad Bhuyan and Others, reported in (2003) 1 SCC 197 para - 11 of which reads as under:-
"11. The obligation is cast not only on the trial court but also on the appellate court. In the event of the suit having been decreed by the trial court if the appellate court interferes with the judgment of the trial court, the judgment of the appellate court should precisely and specifically set out the reliefs granted and the modifications, if any, made in the original decree explicitly and with particularity and precision. Order XLI Rule 31 CPC casts an obligation on the 14 S.A. No. 178 of 2004 author of the appellate judgment to state the points for determination, the decision thereon, the reasons for the decision and when the decree appealed from is reversed or varied, the relief to which the appellant is entitled. If the suit was dismissed by the trial court and in appeal the decree of dismissal is reversed, the operative part of the judgment should be so precise and clear as it would have been if the suit was decreed by the trial court to enable a self-contained decree being drawn up in conformity therewith. The plaintiff, being dominus litus, enjoys a free hand in couching the relief clause in the manner he pleases and cases are not wanting where the plaintiff makes full use of the liberty given to him. It is for the court, decreeing the suit, to examine the reliefs and then construct the operative part of the judgment in such manner as to bring the reliefs granted in conformity with the findings arrived at on different issues and also the admitted facts. The trial court merely observing in the operative part of the judgment that the suit is decreed or an appellate court disposing of an appeal against dismissal of suit observing the appeal is allowed, and then staying short at that, without specifying the reliefs to which the successful party has been found entitled tantamounts to a failure on the part of the author of the judgment to discharge obligation cast on the Judge by the provisions of the Code of Civil Procedure." (Emphasis supplied) That if a suit is dismissed by the trial court but in the appeal the decree of dismissal is reversed as has been done in this case, the operative part of the judgment should be so precise and clear as it would have been if the suit was decreed by the trial court to enable a self-contained decree being drawn up in confirmative therewith if an appellate court disposing of an appeal against dismissal of the suit observes that the appeal is allowed and then stays short out at that without specifying the reliefs to which successful party has been found entitled to tantamount to failure on the part of the author of the judgment to discharge the obligations cast on the Judge by the provisions of the Code of Civil Procedure. Hence, the first appellate court has committed fault in this respect as well. The third substantial question of law is answered accordingly.
17. In view of the discussions made above, the impugned judgment and decree passed by the first appellate court being not 15 S.A. No. 178 of 2004 sustainable in law is set aside and the judgment and decree of dismissal of suit passed by the trial court is restored as the suit is barred by limitation.
18. In the result, this appeal is allowed on contest. No order as to costs.
19. Let a copy of this Judgment along with Lower Court Records be sent back to the learned court below forthwith.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 10th August, 2022 AFR/ Sonu-Gunjan/-