Orissa High Court
A. Papa Rao And Ors. vs The Jeypore Sugar Co. Ltd. And Ors. on 4 February, 2003
Equivalent citations: AIR2003ORI146, AIR 2003 ORISSA 146
Author: Pradip Kumar Mohanty
Bench: Pradip Kumar Mohanty
JUDGMENT Pradip Kumar Mohanty, J.
1. These three first appeals have been filed by the defendants against the common judgment and decree passed by the Subordinate Judge, Rayagada, (as it then was) allowing their suits for realisation of arrears of the sale price of the land sold to the defendants by the plaintiff.
The dispute is essentially for recovery of arrear sale price of the lands sold by the plaintiff in different sale deeds following an agreement on 3-6-1962 entered into by the plaintiff in all these three suits against the defendants. These three suits had been combined together by the learned Subordinate Judge and the same was disposed of by a common judgment.
2. The plaintiff's case, in short, is that the plaintiff-respondent Jeypore Sugar Co. Ltd. filed T. S. No. 9 of 1977 against I. Sundar Rao and others for realisation of Rs. 32,400.11 paise, for realisation of Rs. 12,523.31 paise from Adapa Papa Rao (in T. S. No. 6 of 1977), and for realisation of Rs. 16,376.66 paise from Machha Sanyasi Rao (in T. S. No. 7 of 1977). The learned Subordinate Judge, Rayagada, clubbed up all the suits together at the time of trial and a common set of evidence was recorded for all the suits and delivered a common judgment.
The plaintiff is the Jeypore Sugar Company Ltd. represented through its Managing Director. The case of the plaintiff is that the company sold lands in different transactions to the defendants by virtue of a common agreement with I. Sundar Rao and his nominees, the other defendants. Ultimately, the sale deeds in favour of the defendants were executed and registered on 18-4-1965 and the defendants took over possession of the lands. Under the terms of the sale deeds, the plaintiff duly conveyed his right, title and interest in the lands sold to the defendants and ownership had passed to them in respect of the balance of the sale consideration money. Under the terms of the sale deeds, the plaintiff is entitled to charge for the balance sale consideration and for interest, Under the terms of the sale deeds, the last date of payment for the balance unpaid consideration was fixed to 30-6-1965. In the said plaints the plaintiff-respondent Jeypore Sugar Co. prays for recovery of the balance unpaid consideration money with interest.
3. As against the claim of the plaintiff Company, the defendants-appellants filed their written statement pointing out therein that they are not liable to pay any thing at all. The defendants admitted purchase of lands from the plaintiff, but they pleaded that the plaintiff was paid in excess of the consideration money. They also pleaded that the suit claims are barred by limitation and that the suits are bad for non-joinder of necessary parties.
4. In order to prove its case, the plaintiff Company has examined two witnesses and proved thirty documents, whereas, the defendants have examined as many as two witnesses and proved twenty documents in support of their respective cases.
The trial Court after hearing the parties came to the conclusion by the common judgment dated 25-3-1980 and directed the defendants to pay the balance consideration amount and interest pendente lite and future at the rate of 8 per cent per annum till realisation. The Court below further directed the defendants to pay the decretal amount within one month failing which the plaintiff-Company shall realise the same through the process of the Court.
5. The learned counsel appearing for the appellants contends that the suit is barred by time, that the burden of proof lies on the plaintiff and not on the defendants irrespective of the stand in the written statement, that the recitals of the sale deeds are admissible, and that the recitals in the sale-deed if are inadmissible, the admissibility of a document is one thing and its probative value is another and these two aspects cannot be combined together.
The learned counsel for the respondents on the other hand, contends that the suit is not barred by limitation since it is not a simple money suit. If the contention of the learned counsel for the appellants is accepted, it will be resulting in absurdity of consequences. The second contention of the learned counsel for the respondents is that, the proposition to the effect that the burden of proof lies on the plaintiff to establish the plaint allegations and to prove the contents therein is misconceived. The third contention of the learned counsel is that, once the document is proved, the executant is not required to prove its contents.
6. From the contentions of the learned counsel for both parties, it appears that the main thrust of the arguments of the appellant is, whether the suits are simple money suits or mortgage suits. Article 47 of the Indian Limitation Act provides for three years for a simple money suit which is to be counted from the date of failure to pay the amount, but Article 62 of the said Act prescribes for a mortgage suit or otherwise, charge upon immovable property prescribing limitation for twelve years and that shall be counted also from the date of failure to pay the amount. The distinction between the 'charge' and 'mortgage' is clean While in the case of 'charge' there is no transfer of property or any interest therein, but only a creation of right of payment out of the specified property, no particular form of words is necessary to create a 'charge' and what is necessary is that, there must be a clear intention to make property security of payment of money. But in the case of 'mortgage' the interest in the property is transferred. The three sale deeds in question are Exts. 1, 2 and 3. It is to be seen whether there has been a clear intention to make the property security for payment of money by the presentee.
7. The trial Court while framing issues, had specifically framed issue No. 1 with regard to limitation. But by his judgment, the learned trial Judge diluted the issue by saying that no objection was also made by the defendants at the time of argument. While answering the issue, the learned trial Judge stated that the facts and evidence disclosed by both the sides go to show that the suits were filed within time and were not barred by limitation.
This Court while perusing the plaint finds that the prayer was made for simple money decree. The prayer is quoted below for ready reference.
"The plaintiff, therefore, prays that the Hon'ble Court be pleased to pass decree for sale of the lands described in schedule in its favour and against the defendant. (A) For recovery of suit claim of Rs.12,523.31.
(B) For interest from date of suit till realisation.
(C) Other such relief as the Court deems fit to grant."
A bare perusal of the above prayer would show that the suits are for simple recovery of money claim with interest. But the suits were decreed as if they were money suits. The trial Court should have considered the prayer and accordingly answered the issues. There is no evidence that the defendants participated in preparing the sale deeds. In the operative portion of the impugned judgment there is no reference to the 'charge' or 'lien'. Rather, simple money decrees have been passed. In view of the above, the limitation will now be in accordance with Article 47 of the Indian Limitation Act and not with article 62 of the said Act. Moreover, a plain reading of the recitals of the sale-deeds (Exts. 1, 2 and 3) transpires that the transfer was made on that day and the title and possession passed to the defendants on the date of execution of the deeds. But there has been no cross-examination of defendant No. 1 about the 'charge' or 'lien'.
8. The trial Court held that, no objection was also made by the defendants at the time of the arguments with regard to limitation. It is a well settled proposition of law that erroneous decision on the question of limitation involves the question of jurisdiction and it applies to cases in which law definitely ousts the jurisdiction of Court to try certain dispute between the parties. It is the duty of the Court not to proceed with the application, if it is made beyond the period of limitation prescribed. It is the settled principle of law that if the point of limitation is not raised before the lower Court, the same can be agitated in appeal. Section 3 of the Limitation Act lays down that a suit or a proceeding instituted after the expiry period of limitation 'shall be dismissed although limitation has not been set as a defence'. The section is mandatory and has to be strictly followed. The Court has no choice in the matter. In this connection it is noted that the principle laid down by the Supreme Court in the case of Manindra Land and Building Corporation Ltd. v. Bhutnath Banerjee, AIR 1964 SC 1336 and subsequently relied by this Court in the case of Bhima Padhan v. Masyaraju (1970) 36 Cut LT 279 amply supports the above view.
The suits were filed eleven years after the stipulated date. The law lays down that limitation will be counted from the stipulated date. In the case of simple money suit, the limitation is for three years. Therefore, this Court would hold that the suits are barred by limitation. Since this Court holds that the suits are barred by limitation, the other questions raised by the learned counsel for the parties need not be answered.
9. In the result, the first appeal is allowed. The impugned judgments and decrees of the lower Court are set aside, but there shall be no order as to costs.