Rajasthan High Court - Jaipur
Hub Lal & Ors vs Smt.Ganga Devi & Ors on 19 February, 2013
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR SB CIVIL FIRST APPEAL NO.91/1991. HUB LAL & ORS. APPELLANTS. VS SMT. GANGA DEVI & ORS RESPONDENTS. DATE OF JUDGMENT : 19TH FEBRUARY, 2013. PRESENT HON'BLE MS. JUSTICE BELA M. TRIVEDI Mr. S.M. Mehta, Sr. Advocate with Mr. Anil Mehta for the appellants. Mr. Parag Rastogi for the respondent No.1. JUDGMENT BY THE COURT :
1. The present appeal has been filed by the appellants-original defendant Nos. 4 to 17, under Section 96 of CPC challenging the judgment and decree dated 23.11.90 passed by the Addl. District Judge, Dholpur (hereinafter referred to as 'the trial court') in Civil Suit No. 6/83 (1/77).
2. The short facts giving rise to the present appeal are that the respondent No.1-original plaintiff Smt. Ganga Devi had filed the suit against the present appellants and the respondent Nos. 2 and 3 as also her mother-in-law Smt. Ramshree (since deceased) seeking partition and her right of pre-emption to purchase the suit premises. The said suit was filed on 3.1.77, in which it was alleged interalia that the husband of the plaintiff Shri Ram Bharose had expired in the year 1959, during the life time of his father Karan Singh. The said Karan Singh also expired in 1965. The defendant No.1 Ramshree happened to be the wife, and the defendant No.2 Vimla and defendant No.3 Pushpa happened to be the daughters of late Shri Karan Singh. It was further alleged that the said late Shri Karan Singh had left certain properties including the suit property as described in the plaint. As per the case of the plaintiff, no partition of the properties belonging to late Shri Karan Singh had ever taken place, however the defendant No. 1,2 and 3 sold out the suit property as marked in the map annexed to the plaint to the defendant No.4 Hub Lal S/o Chiranji Lal by executing a sale deed on 27.12.75, which was registered on 30.12.75. Since the plaintiff had 1/4 share in the said property, she had the right of pre-emption to acquire the 3/4th share of the said property as per the provisions contained in The Rajasthan Pre-Emption Act,1966 (hereinafter referred to as 'the Act of 1966). The plaintiff, therefore, had filed the suit seeking enforcement of her right of pre-emption in respect of the said property, and for declaration that the sale of her 1/4th share in the suit property was null and void, and seeking possession of the suit property, as prayed for in the prayer clauses of the suit. It appears that the said plaint was amended by joining the other defendants, as the defendant Nos 5 to 17, who had purchased the other parts of the suit properties pending the suit.
3. The said suit was resisted by the present respondent Nos. 2 and 3(original defendant Nos. 2 and 3) and by the original defendant No.1 Ramshree (since deceased) by filing a joint written statement denying the allegations and averments made in the plaint and further contending interalia that the partition had only taken place of the properties belonging to late Shri Karan Singh and that the plaintiff was already paid Rs. 10,000/- towards her share. The present appellant No.1 i.e. defendant No.4 in the suit Shri Hub Lal had also resisted the suit by filing the written statement contending interalia that the plaintiff did not have 1/4 share in the suit property and that the defendant Nos. 4 to 8 were in possession of the suit property since 23.12.75 as the owners. It was also contended that the suit was barred by law of limitation and, therefore, deserved to be dismissed.
4. From the pleadings of the parties, the trial court had framed the following issues:-
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5. The trial court after considering the oral as well as the documentary evidence adduced by both the parties, decided all the issues against the defendants and in favour of the plaintiff and decreed the suit by the impugned judgment and decree. The trial court vide the said decree, declared that the plaintiff had 1/4th share in the suit property, and the sale made to the defendant Nos. 4 to 6 and other deceased defendants, to the extent of her 1/4th share was null and void, and further directed to substitute the name of the plaintiff in place of the defendant No.4 under the provisions contained in the said Act, on the deposit of proportionate 3/4th share in the suit property purchased by the defendant No. 4. The trial court also decreed the suit as per the compromise arrived between the plaintiff and the defendant Nos. 2 and 3 in respect of the other properties mentioned in para 3 of the plaint.
6. The learned senior counsel Mr. S.M. Mehta for the appellants submitted that the suit filed by the respondent No.1-plaintiff was barred by limitation in view of the provisions contained in Article 97 of Limitation Act read with Section 21 of the Act of 1966. According to him the sale-deed was executed by the defendant Nos. 1 to 3 in favour the defendant No.4 in respect of the suit premises on 27.12.75 which was registered on 30.12.75 and other sale-deeds in favour of the other defendants in respect of the other premises were also registered on the same day, whereas the suit was filed on 3.1.77 i.e. beyond the period of one year from the date of execution of the sale-deed. He also submitted that it has been clearly stated in the sale-deed that the possession was taken over by the said defendants on the date of execution of the sale-deed and, therefore, the period of limitation had started running from the said date. Drawing the attention of the court to the provisions contained in Section 3 of the Limitation Act and relying upon the judgment of the Apex Court in case of Ittyavira Mathai Vs. Varkey Varkey & Anr. AIR 1964 SC 907. Mr. Mehta submitted that it was the duty of the court to ascertain as to whether the suit was within the period of limitation or not and that the court would act without jurisdiction, if it fails to do so. Mr. Mehta has also relied upon the decision of this court in case of Kanhaiya Lal Vs. Hari Narayan 1975 WLN (UC) 244 to submit that if the suit was not filed within one year from the date of registration of the sale-deed, the suit was required to be treated as time barred. Mr. Mehta has also taken the court to the evidence led by the parties and submitted that the defendant No.1 who happened to be the mother-in-law of the plaintiff had stated in her evidence that the partition had already taken place of the properties belonging to late Shri Karan Singh and that the plaintiff was paid Rs. 10,000/-towards her 1/4 share in the suit property. According to Mr. Mehta the trial court having mis-appreciated the evidence on record, the judgment and decree passed by it deserves to be set aside.
7. However, the learned counsel Mr. Parag Rastogi for the respondent No.1-plaintiff submitted that the issue of limitation was neither framed nor decided by the trial court. The appellants-defendants had also not pressed into service the said issue, probably because even according to them the suit was within the period of limitation. He drew the attention of the court to the averments made in the plaint to the effect that the trial court was closed from 24.12.76 to 2.1.77 during winter vacation, and on the re-opening of the said vacation, the suit was filed by the plaintiff on 3.1.77 and, therefore in view of Section 4 of the Limitation Act, the said period during which the court remained closed was required to be excluded from the period of limitation. Mr. Rastogi also submitted that the respondent No.1-plaintiff was never paid any amount towards her share and the trial court after having rightly appreciated the evidence has decreed the suit, which does not call for any interference.
8. Having regard to the submissions made by the learned counsels for the parties and to the evidence on record, as also the impugned judgment and decree passed by the trial court, it appears that though the defendant Nos. 4 to 8 had contended in their written statement that the suit was not filed within the pescribed period of limitation, the court did not frame any issue in that regard. Of course, the defendants also do not appear to have pressed into service the said issue, nonetheless the issue of limitation being a question of law, let us examine whether the suit filed by the respondent-plaintiff No.1 was within the prescribed period of limitation or not.
9. It is not disputed that the sale-deed in question was executed by the defendant Nos. 1 to 3 in favour of defendant No.4 on 27.12.75 which was registered on 30.12.75. It appears that there were also other sale-deeds which were executed on the same day in favour of the other defendants in respect of the other parts of the suit premises, however we are not concerned with the same. Though the sale-deed executed in favour of the defendant No.4 was registered on 30.12.75, according to Mr. Mehta for the appellants, since the suit was filed on 3.1.77, it was beyond the period of one year from the date of sale-deed and, therefore, the suit was barred by limitation in view of the provisions contained in Article 97 of the Limitation Act read with Section 21 of the Act of 1966. The said contention of Mr. Mehta cannot be countenanced. As per Article 97 of the Limitation Act, the suit to enforce a right of pre-emption is required to be instituted within one year, when the purchaser takes, under the sale sought to be impeached, physical possession of the whole or part of the property sold, or where the subject matter of the sale does not admit of physical possession of the whole or part of the property, when the instrument of sale is registered. In the instant case as transpiring from the sale-deed in question the possession of the property was handed over to the purchaser i.e. the appellant No.1-defendant No.4, and the same was got registered on30.12.75. Hence, the suit was required to be filed within a period of one year therefrom, which would expire on 30.12.76. However, as per the averments made in the plaint, there was winter vacation in the court in between the period 24.12.76 to 2.1.77 and the suit was filed on the first day of reopening of the court i.e. on 3.1.77. As rightly submitted by the learned counsel Mr. Rastogi, in view of Section 4 of the Limitation Act, when the prescribed period for any suit expires on a day when the court is closed, the suit may be instituted when the court reopens. The defendants had neither contended in the written statement nor had led any evidence to the effect that the court was not closed during the said period. Hence, it is required to be held that the suit of the respondent No.1-plaintiff was within the prescribed period of limitation.
10. The decision of the Apex Court reported in AIR 1964 SC 907 (supra) relied upon by the learned senior counsel Mr. Mehta also clinches the issue. It has been held in the said decision as under:-
8........ But it is well settled that a court having jurisdiction over the subject matter of the suit and over the parties thereto, though bound to decide right may decide wrong; and that even though it decided wrong it would not be doing something which it had no jurisdiction to do. It had the jurisdiction over the subject-matter and it had the jurisdiction over the party and, therefore, merely because it made an error in deciding a vital issue in the suit, it cannot be said that it has acted beyond its jurisdiction. As has often been said, courts have jurisdiction to decide right or to decide wrong and even though they decide wrong, the decrees rendered by them cannot be treated as nullities. Learned counsel, however, referred us to the decision of the Privy Council in Maqbul Ahmed v. Onkar Pratap Narain Singh (1), and contended that since the court is bound under the provisions of s. 3 of the Limitation Act to ascertain for itself whether the suit before it was within time, it would act without jurisdiction if it fails to do so. All that the decision relied upon says is that s. 3 of the Limitation Act is peremptory and that it is the duty of the court to take notice of this provision and give effect to it even though the point of limitation is not referred to in the pleadings. The privy council has not said that where the court fails to perform its duty, it acts without jurisdiction. If it fails to do its duty, it merely makes an error of law and an error of law can be corrected only in the manner laid down in the Civil Procedure Code. If the party aggrieved does not take appropriate steps to have that error corrected, the erroneous decree will hold good and will not be open to challenge on the basis of being a nullity.
11. In view of the above settled legal position also the court is of the opinion that the appellants-defendants having not taken any steps before the trial court requesting the court to frame the issue of limitation and even otherwise the suit being within the period of limitation, the court does not find any substance in the submission of the learned senior counsel Mr. Mehta that the suit having been filed beyond the period of limitation, the court had acted without jurisdiction and that the decree was nullity.
12. So far as the partition of the properties mentioned in para 3 of the plaint was concerned, it appears that during the pendency of the suit, one settlement had taken place between the plaintiff and the defendant No.2 and No.3, after the death of the defendant No.1, and accordingly the dispute had remained only in respect of the disputed house described in para 2 of the plaint. In this regard, the respondent No.1-plaintiff had duly proved that her husband having expired, she would have 1/4th share in the said property and that she was not paid any amount towards her share as alleged by the defendants. The defendants on the other hand had failed to prove that the respondent No.1-plaintiff was already paid Rs. 10,000/- towards her 1/4th share in the suit property. Though the original defendant No.1 Ramshree had stated in her evidence that the said amount was paid to the plaintiff, except the bare statement and that too a very vague statement, there is nothing on record to show that the plaintiff was paid Rs. 10,000/- towards her share in the property in question. The defendant No.1 had not stated as to when, how and in whose presence the said amount was paid to the plaintiff. Under the circumstances, it could not be said that the plaintiff was paid the said amount towards her share.
13. In the instant case, it was also not disputed that the husband of the petitioner had died after the Hindu Succession Act, 1956 had come into force. Therefore, the the plaintiff would have 1/4th share in the said property after the death of her husband. The respondent No.1-plaintiff being the co-sharer of the property in question, she also had the right of pre-emption under Section 6 of the Act of 1966. The trial court having rightly appreciated the evidence on record and rightly decided all the issues in favour of the respondent No.1-plaintiff, the court does not find any illegality or perversity in the impugned judgment and decree. The learned counsel Mr. Mehta having not raised any other issues, it is required to be held that the impugned judgment and decree passed by the trial court is legal, proper and deserves to be continued.
14. In view of the above, the appeal being devoid of merits deserves to be dismissed and is accordingly dismissed.
(BELA M. TRIVEDI)J. MRG.
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
M.R. Gidwani PS-cum-JW