1. This Regular Second Appeal is directed against the judgment and decree dated 27.9.2006 in R.A.No.1231/2005 on the file of the Civil Judge (Sr. Dn.), Sira, thereby dismissing the appeal preferred against the judgment and decree dated 25.11.1997 in O.S.No.198/1991 on the file of the Civil Judge (Jr.Dn.), Sira.
2. By the impugned judgment, the suit of the plaintiff in O.S.No.198/91 on the file of Civil Judge (Jr.Division), Sira, is decreed and confirmed in appeal.
3. To put the facts in a nutshell, the respondent (plaintiff) herein filed a suit against the appellant (defendant) for declaration and permanent injunction against the appellant/defendant and his men from interfering with the possession and enjoyment of the suit schedule property. The claim of the plaintiff was, the suit property is his ancestral property and he is in uninterfered possession and enjoyment of the same, and the defendant having no right, title or interest is interfering with his possession.
4. The defendant contested the suit and denied the title of the plaintiff to the disputed property. His defence was, in collusion with the plaintiff, the Revenue Authorities entered plaintiff''s name in column No.9 and 12(2) of the Pahani for the year 1975-76 in respect of the suit property. In this regard, there were proceedings before the Revenue Authorities which ended up in the plaintiff filing Writ Petition before the High Court in W.P.No.18715/84 which came to be dismissed. Suppressing the above facts, the plaintiff has filed the suit.
5. On the basis of pleadings, the Trial Court framed as many as eight issues. Among others, one of the issues was about suit being barred by limitation. However, this issue was not treated as preliminary issue. After a full fledged trial, the suit came to be decreed by answering the issues in favour of the plaintiff. With regard to the question of limitation, the Trial Court referred to the history that initially plaintiff filed the suit before Munsiff & JMFC, Sira, in O.S.No.2/1985 and the plaint was ordered to be returned for want of pecuniary jurisdiction and the plaintiff was directed to present the suit before competent Court vide order dated 15.3.1989. But the plaintiff presented the plaint before Civil Judge Court, Madhugiri only on 2.3.1991 and it was registered as O.S.No.198/91. Due to enhancement of the pecuniary jurisdiction of the Munsiff Court from Rs.10,000/- to Rs.50,000/-, the Civil Judge (Sr. Dn.) by Civil Court Amendment Act returned the plaint with a direction to present the suit before the Civil Judge(Jr.Dn.), Sira and thus the suit O.S.No.198/91 came to be registered before the Civil Judge (Jr. Dn.), Sira. The defence that the earlier proceedings in O.S.No.8/91 does not amount to continuation of proceedings of O.S.No.2/15 and was not brushed aside, thus answered against the defendant.
6. Now this appeal is admitted to adjudicate the following question of law.
1. Whether the suit was barred by limitation?
2. Whether the proceedings of O.S.No.198/1991
on the file of Civil Judge (Jr.Dn.), Sira, can be
considered as the continuation of the O.S.No.2/1985
on the file of the same Court?
3. Whether the lower appellate court was justified
in condoning the delay?
4. Whether the courts below were justified in
acting on the revenue entries?
7. Learned Counsel for the appellants
Sri.Chithappa submits that the respondent did not
choose to take back the plaint and present it before the
court having pecuniary jurisdiction to try the suit despite
there being pleading in the written statement that suit
was under valued. The Munsiff Court, Sira framed
issues, recorded evidence on Issue No.5, heard
arguments and passed order on 15.3.1989 holding that
the Court has no jurisdiction and directed the plaintiff to
take return of the plaint and to present it before proper
court. The respondent/plaintiff took return of plaint on
2.3.1991 and presented it before the Court of Civil Judge
at Madhugiri on 2.3.1991 and the same was registered as
O.S.No.8/1991. On enhancement of the pecuniary
jurisdiction of the Court of Munsiff & JMFC to
Rs.50,000/-, the plaint was returned by the Civil Judge,
Madhugiri, on 30.5.1991 and the plaintiff/respondent
took return of plaint on 3.6.1991 and presented the same
before the Court of Munsiff & JMFC, Sira, on 4.6.1991
and the suit came to be registered as O.S.No.198/1991.
The appellant had taken a contention both in
O.S.Nos.2/1985 and 198/1991 that plaintiff''s claim was
time barred.
Learned Counsel further submits, so far the issue
of limitation is concerned, the Trial Court held that filing
of suit O.S.No.2/1985, taking back the plaint and
presenting the same before the court of Civil Judge at
Madhugiri in O.S.No.8/1991 and further taking back the
plaint from the Court of Civil Judge, Madhugiri
presenting the same before the Trial Court in
O.S.No.198/91 is continuation of the proceedings of
O.S.No.2/1985 and therefore held that suit was not
barred by limitation. The 1st Appellate Court concurred
with the finding of the Trial Court and further held that
even if there is a little delay, it could be condoned and
accordingly condoned the delay. A party prosecuting the
suit in good faith in the Court having no jurisdiction is
entitled for exclusion of that period under Section 14 of
Limitation Act. The expression "good faith" as used in
Section 14 means "exercise of due care and attention".
In the context of Section 14 expression "good faith"
qualifies prosecuting the proceeding in the Court which
ultimately is found to have no jurisdiction. The finding
as to good faith or the absence of it is a finding of fact.
But, there is no plea or evidence given by
respondent/plaintiff to seek benefit of Section 14 of
Limitation Act.
Learned Counsel continues to submit that, Article
58 of Limitation Act stipulates three years commencing
from the date of cause of action in respect of a
Declaratory suit. The cause of action to file the suit arose
for the respondent/plaintiff on 31.5.1980 when the
defendant denied his right, title or interest over the
property in the revenue proceedings before the Tahsildar,
Sira Taluk and subsequently in the further proceedings
before the Asst. Commissioner, Madhugiri Sub-Division.
Therefore the suit filed in the year 1985 before Munsiff
Court, Sira was barred by time. The provision of Section
5 of Limitation Act cannot be invoked to condone the long
delay in filing a suit and lower appellant Court had no
jurisdiction to condone the delay. The plaintiff was not
able to place cogent evidence to prove his title and
possession over the suit property. Still the Trial Court
acted upon the revenue entries to decree the suit. But
the revenue entries neither create nor extinguish title of
any person and have no preemptive value on title. In that
view of the matter, impugned judgments cannot be
sustained. Irrespective of finding recorded on other
issues, the suit should have been dismissed as barred by
time, thus not maintainable.
8. Sri.Keshav R.Agnihotri, learned Counsel appearing for the respondent while seeking to sustain the judgments of the court below placing his reliance on:
i) (2015) 7 S.C.C. 58
MP Steel Corporation Vs. Commissioner Central
Excise.
ii) (2011) 15 S.C.C. 30
Ketan Parekh Vs. Spl.Director
iii) (2009) 12 S.C.C. 175
J.Kumaradasan Nair Vs. State of Bihar
iv) (2009) 7 S.C.C. 786
Shakti Tubes Ltd., Vs. State of Bihar
v) (2008) 7 S.C.C. 169
Consolidated Engineering Enterprises Vs. Prl.
Secy.
vi) I.L.R. 2005 KARNATAKA 1777
Hutti Gold Mines Vs. Vinay Heavy Equipments
submits that the Trial Court on proper appreciation of
evidentiary material has decreed the suit. The defendant,
who denied the title of the plaintiff, set up the defence of
adverse possession thereby had admitted the title of the
plaintiff. He was unable to establish his title to the suit
property with documentary proof. The litigation fought
on revenue side is limited to revenue entries. As such,
revenue entries do not confer title of a property on its
holder. Though there was delay of almost two years on
his part in taking back the plaint in O.S.No.2/1985 from
the Munsiff Court, Sira and presenting the same before
the Civil Judge Court, Madhugiri, it is to be construed
that on re-presentation of the plaint, the proceedings
continued. Section 14 of the Limitation Act empowers
the Court to condone the delay in the interest of justice in
respect of the time spent before the Court having no
jurisdiction, in this case, Munsiff Court, Sira. The cause
of action arose for the plaintiff only when the defendant
interfered with his actual possession of the suit property.
Thus, the suit filed within 10 days thereupon is well
within time. The delay in representing the plaint before
the Civil Judge Court, Sira is saved by Section 14 of the
Limitation Act. Rightly the lower Appellate Court has
held that there is no delay and the present appeal lacks
merits.
9. In the light of the substantial question of law framed and the rival submission made at the Bar, the controversy centers around the question of limitation. Admittedly, both parties entered into battle field when the revenue entries pertaining to the disputed property was questioned by the defendant in the R.R.T. proceedings in the year 1980. The plaintiff was very much conscious of the denial of his title by the appellant /defendant at that stage itself. Article 58 of Part III of Schedule to the Limitation Act stipulates three years'' limitation from the date when right to sue accrues to file a suit for declaration. Original Suit in O.S.No.2/1985 was filed without reference to the revenue proceedings that commenced in 1980. The cause of action was that the defendant interfered with the possession of the plaintiff 10 days prior to filing of the suit. That being so, the cause of action to file a suit for the relief of declaration and injunction arose during December 1980 subsisted for 3 years only and not later to that. The courts below have not counted upon the grey period between 15.3.1989 (when the plaintiff was directed to take back the plaint for presentation before the proper court) to 2.3.1991 (when it was presented before Civil Judge court, Madhugiri). The appellate court on its own has considered it as continuation of the original suit. The law on the point is covered by the judgment of the Apex Court in (1) AIR 1973 SC 313 Amr Chand Inani -vs- Union of India (2) (2014) 1 SCC 648 Oil and Natural Gas Corporation Limited -vs- Modern Construction and Company. Thus, presentation of plaint in proper court after return is not continuation of a suit as filed in wrong court so as to attract Section 14 of the Limitation Act. It amounts to institution of a fresh suit requiring commencement of trial afresh even if same had concluded before the court which lacks jurisdiction. That being so, the suit filed in the year 1991 in respect of the cause of action that arose during December 1984 was time barred and hit by Article 58 of the Limitation Act. The Limitation Act does not contemplate condonation of delay in filing a suit though delay in filing an appeal can be condoned under Section 5 of Limitation Act.
10. Sub-section (1) of Section 14 of the Limitation Act is stressed on behalf of the defendant for the first time before this court. Said provision reads as under:
"14.Exclusion of time of proceeding
bona fide in court without jurisdiction.- (1)
In computing the period of limitation for any suit
the time during which the plaintiff has been
prosecuting with due diligence another civil
proceeding, whether in a court of first instance or
of appeal or revision, against the defendant
shall be excluded, where the proceeding relates
to the same matter in issue and is prosecuted in
good faith in a court which, from defect of
jurisdiction or other cause of a like nature, is
unable to entertain it".
The hindrance for the plaintiff to take shelter under the
above provision is, he had instituted the suit having
territorial jurisdiction. He did receive back the plaint,
even after objection raised by the defendant in his written
statement regarding pecuniary jurisdiction. It was only
after the order of the court on holding enquiry to return
the plaint after a delay of about 2 years, he has taken
back the plaint.
11. The expressions ''good faith'' and ''defect of jurisdiction'' were elaborated by the Apex Court in Deena -vs- Bharath Singh reported in AIR 2002 SCC 2768 at paras-15 and 16, which reads thus:
"15. The main factor which would
influence the Court in extending the benefit
of S.14 to a litigant is whether the prior
proceeding had been prosecuted with due
diligence and good faith. The party
prosecuting the suit in good faith in the
Court having no jurisdiction is entitled to
exclusion of that period. The expression
''good faith'' as used in S.14 means
"exercise of due care and attention". In the
context of S.14 expression ''good faith''
qualifies prosecuting the proceeding in the
Court which ultimately is found to have no
jurisdiction. The finding as to good faith or
the absence of it is a finding of fact. This
Court in the case of Vijay Kumar Rampal
and others v. Diwan Devi and others, AIR
1985 SC 1669, observed:
"The expression ''good faith'' qualifies
prosecuting the proceeding in the Court
which ultimately is found to have no
jurisdiction. Failure to pay the requisite
Court-fee found deficient on a contention
being raised or the error of judgment in
valuing a suit filed before a Court which
was ultimately found to have no
jurisdiction has absolutely nothing to do
with the question of good faith in
prosecuting the suit as provided in S.14 of
the Limitation Act".
16. The other expressions relevant to
be construed in this regard are ''defect of
jurisdiction'' and ''or other cause of a like
nature.'' The expression "defect of
jurisdiction" on a plain reading means the
Court must lack jurisdiction to entertain the
suitor proceeding. The circumstances in
which or the grounds on which, lack of
jurisdiction of the Court may be found are
not enumerated in the section. It is to be
kept in mind that there is a distinction
between granting permission to the
plaintiff to withdraw the suit with leave to
file a fresh suit for the same relief under
O.23, R.1 and exclusion of the period of
pendency of that suit for the purpose of
computation of limitation in the subsequent
suit under S.14 of the Limitation Act. The
words "or other cause of a like nature" are
to be construed ejusdem generis with the
words ''defect of jurisdiction,'' that is to say,
the defect must be of such a character as
to make it impossible for the Court to
entertain the suit or application and to
decide it on merits. Obviously S.14 will
have no application in a case where the
suit is dismissed after adjudication on its
merits and not because the Court was
unable to entertain it".
Thus, plaintiff, who did not value the suit properly while
presenting the plaint, cannot take the shelter under the
umbrage of Section 14 of the Limitation Act. That apart,
Section 14 of the Limitation Act was not his case before
the Courts below nor the courts below had jurisdiction to
extend the benefit of said provision to his case.
12. Entries in revenue records will not confer title is the settled legal proposition. A perusal of the judgment and decree of the courts below will reflect that finding of fact was recorded not on the sole ground of revenue entries. The authorities relied for the respondent/plaintiff have no semblance to the substantial questions of law under discussion in this appeal and the suit is hopelessly barred by limitation. The findings of facts recorded cannot culminate into relief in favour of the plaintiff for the discussions supra. The judgments of the courts below hence are liable to be set aside. The appeal is allowed. The judgment and decree dated 27.9.2006 passed in R.A.No.1231/2005 on the file of the Civil Judge (Sr. Dn.), Sira, confirming the judgment and decree dated 25.11.1997 passed in O.S.No.198/1991 on the file of the Civil Judge (Jr.Dn.), Sira, is set aside. Consequently, the suit of the plaintiff is dismissed. No order as to costs.
