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6. Mr. Shobhit Mishra, learned counsel appearing for the appellant herein / defendant No.2, would make following submissions: -

1. The judgment & decree passed by the first appellate Court holding that the gift deed is illegal and void document, is perverse and contrary to record. Though the M.P. High Court in first appeal preferred by both the plaintiffs permitted the plaintiffs therein to withdraw the suit and appeal with liberty to file fresh suit on 18-10-1983, but the subsequent suit which was filed and which was the subject matter of this appeal was not based on same cause of action and therefore it could not have been entertained in light of the provisions contained in Order 23 Rule 1(3) of the CPC and since the suit subsequently filed was not based on the same subject matter, the first appellate Court could not have entertained and decreed the said suit. He further relied upon a decision of the Supreme Court in the matter of Vallabh Das v. Dr. Madanlal and others 1 to buttress his submission. The suit as framed and filed for declaring the gift deed as null and void was apparently barred by limitation, as the first appellate Court was absolutely unjustified in reversing the well-merited and well-reasoned judgment & decree of the trial Court, as such, the judgment & decree of the trial Court deserve to be restored by setting aside the impugned judgment & decree.

Gopal and others 2 and Hemareddi (D) Through Lrs. v. Ramachandra Yallappa Hosmani and others 3 to buttress his submission. Therefore, the first appellate Court is absolutely unjustified in granting decree in favour of one of the plaintiffs, whereas the decree against the other plaintiff has become final by virtue of his appeal having been declared abated by the order of the first appellate Court.

7. On the other hand, Mr. Y.C. Sharma, learned counsel appearing for the plaintiff/respondent No.1(A) herein, would submit that plaintiff No.2 Shyamlal had already relinquished his right over the suit property by making an application before the first appellate Court on 18-6-2001, as he had expressed his willingness to withdraw from the appeal, therefore, the subsequent declaration that the appeal stands abated against appellant No.2 / plaintiff No.2 has no legal consequence and the appeal has rightly been decreed by the first appellate Court. He would further submit that Gayatri Bai had 2 (2001) 5 SCC 570 3 AIR 2019 SC 3297 no right over the suit property to make gift by gift deed dated 18-12- 1952 in favour of defendant No.2, therefore, the first appellate Court has rightly declared the gift deed to be null and void and the suit is well within the period of limitation, as such, this appeal deserves to be dismissed.

10. Thereafter, the second suit from which this second appeal has arisen, was filed by Sahdev Ram and Shyamlal on 7-10-1985 stating inter alia that Gayatri Bai had not executed any such gift deed in favour of defendant No.2 / appellant herein on 18-12-1952 and the Panch, Sarpanch and other villagers got the gift deed executed in absence of Gayatri Bai and got the thumb impression of some other woman holding her to be Gayatri Bai and the said gift deed was never executed by Gayatri Bai in favour of the appellant / defendant No.2, therefore, the gift deed is void ab initio disclosing the cause of action to be accrued on 18-10-1983 and 19-12-1984. This suit was dismissed by the trial Court merely on the ground that Gayatri Bai has rightly gifted the property in favour of defendant No.2 / appellant herein by which defendant No.2 has acquired title over the suit land and the suit as framed and instituted questioning the gift deed dated 18-12-1952 has become barred by limitation and no notice under Section 80 of the CPC was served before filing the suit and defendant No.2 / appellant herein is in possession over the suit property and the suit is barred by limitation. The suit ought to have been brought within six months from declaring the said property as the property of Public Trust by order dated 22-7-1975 having been published on 23-7-1975 and within six months the suit could have been brought.

32. Reverting to the facts of the present case in light of the proposition of law noticed herein-above laid down by Their Lordships of the Supreme Court and the Delhi High Court in the aforesaid judgments (supra), it is quite vivid that in the present case, first suit of the plaintiffs filed seeking the gift made by Gayatri Bai as invalid and void, was dismissed on merits holding that original holder of the land Gayatri Bai was empowered to make gift in favour of defendant No.2 / appellant herein and also that the gift was validly executed and the suit as framed and instituted by the plaintiffs was barred by limitation and also barred by the provisions of the Public Trust Act, as it was not brought within the period of limitation stipulated for instituting suit against a registered Public Trust under the Public Trust Act. Even otherwise, admittedly, the suit was not dismissed on technical ground that it is barred by certain provisions of the Act, though the suit and the first appeal preferred by the 12 AIR 2003 Delhi 252 plaintiffs were allowed to be withdrawn with liberty to file fresh suit. Therefore, Order 23 Rule 2 of the CPC would operate and the plaintiffs would not be entitled for exclusion of time spent in filing Civil Suit No.12-A/ 1975 from 22-7-1975 till 18-10-1983 (the date on which the first appeal was permitted to be withdrawn). The plaintiffs have to plead and establish that the suit as framed and filed was within the period of limitation as per Article 59 of the Limitation Act, 1963 and admittedly, on 10-2-1953, one of the plaintiffs Sahdev Ram had knowledge about the fact entitling him to have the gift deed declared illegal which he admittedly, firstly, filed on 22-7-1975 and ultimately, it was dismissed on 14-12-1978 and first appeal was withdrawn and second civil suit was filed on 7-10-1985 after the leave of the M.P. High Court to file fresh suit, though the order of the M.P. High Court granting permission to file fresh suit was brought to the notice only before the first appellate Court. Therefore, in the considered opinion of this Court, the suit as framed and filed against the gift deed dated 18-12-1952 on 7-10- 1985 when plaintiff No.1 had knowledge about the facts entitling him to have the gift deed declared illegal as per Exs.P-1 & P-2, then the suit as per Article 59 of the Limitation Act, 1963 was hopelessly barred by limitation, now filed on 7-10-1985. Therefore, the trial Court is absolutely justified in dismissing the suit as barred by limitation and as such, the first appellate Court ought not to have interfered with the said judgment & decree by granting decree in favour of the plaintiffs and is unjustified in holding that the gift made by Gayatri Bai in favour of defendant No.2 is void. The first substantial question of law is answered against the plaintiffs and in favour of defendant No.2.