A.I.S. Cheema, J.@mdashRule was issued in this Civil Revision Application on 8.8.2013. Contesting parties are heard finally. The present revision application has been filed by original defendant No. 1 in Regular Civil Suit No. 1600/2012. The petitioner-defendant No. 1 (hereinafter referred to as the defendant) filed application under Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as CPC for short) for rejection of the plaint on the ground of limitation. The 16th Civil Judge, Junior Division, Aurangabad passed a brief order, which is impugned in this revision application, mentioning that it is settled principle that the plea of limitation is mixed question of law and fact and that the provisions of Section 5 of Limitation Act are not applicable to suit. The Civil Judge passed order that the aspect cannot be decided at preliminary stage without leading any evidence and rejected the application. Thus, the defendant has filed this revision application, pointing out that, if the plaint is read as a whole also, the suit is clearly time barred as time spent in pursuing revenue proceedings cannot be excluded.
2. I have heard learned counsel for both sides. Learned counsel for the defendant referred to the contents of plaint in details to show that as per the plaint itself, what was sought to be set aside was the sale deed dated 7.10.1984 and the suit was filed on 1.8.2012. According to the counsel, plaint itself mentions that the plaintiffs came to know about effecting mutation in favour of Pandharinath, the father of defendant Nos. 2 and 3 in January 2008 and they pursued remedies on revenue side to get mutation entry set aside and have belatedly filed the civil suit and thus, the same is barred under the Limitation Act, 1963. Article 58 lays down limitation for such declaration of period of three years and the time starts running from the time when right to sue first accrues.
3. Learned counsel for the respondents submitted that the plaint has to be read as a whole and the plaint shows that there was earlier a partition in 1957, and entries were made in 7/12 extract, but in spite of such division of share, the parties continued without fixing boundaries and that, subsequently Pandharinath, the father of defendant Nos. 2 and 3, got mutation entry No. 752 recorded on 10.1.1985, which came to the knowledge of plaintiffs, from one Damodhar Ramrao Karmadkar in January 2008 and so, they initiated proceedings before the revenue officer on 2.4.2008, which was dismissed on 6.7.2009 and they filed Writ Petition No. 8045/2009 in November 2009 and the same came to be disposed of on 27.9.2010. Thus, according to the learned counsel for respondents, the period spent in pursuing remedies for quashing mutation entry needs to be excluded keeping in view Section 14 of the Limitation Act. According to the learned counsel, the plaintiffs were under a bonafide belief that if the mutation entry is set aside, there will not be necessity to get the sale deed set aside and so, they pursued the remedies on revenue side and the period should be excluded.
4. Learned counsel for the petitioner-defendant has relied on the case of
5. Learned counsel for respondents relied on the case of
The learned counsel further relied on the case of
6. On the last date of hearing of this matter, the question of applicability of Section 14 of the Limitation Act was considered and counsel for both sides sought time to make further submissions. Today the learned counsel for petitioner-defendant relied on the case of
7. Learned counsel for respondents relied on the case of
The rulings relied on by the learned counsel for respondents--plaintiffs can be distinguished on facts. Material is to keep in view the ratio and provisions of law and apply them to the facts of the present matter.
8. Section 14 of the Limitation Act 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.
(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding 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.
(3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule 1 of that Order where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature.
Explanation: For the purposes of this section-
(a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted;
(b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding;
(c) mis-joinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction.
9. Perusal of Section 14 makes it clear that following conditions are required to be complied:-
(1) The earlier and subsequent proceedings are civil proceedings between the same parties;
(2) the earlier proceeding had been prosecuted with due diligence and good faith;
(3) the failure of the earlier proceeding was due to defect of jurisdiction or other cause of like nature, due to which earlier Court found that it was unable to entertain it;
(4) the earlier proceeding and the later proceeding relate to the same matter in issue, and
(5) both the proceedings are in a Court.
10. It is apparent that, it is not sufficient to show that the concerned proceedings due to which time is sought to be excluded, was before Court as required by the section. Further requirement will be that the failure of the earlier proceedings was due to defect of jurisdiction or other cause of like nature, due to which the Court dealing with earlier proceedings was unable to entertain it. It is also necessary that the earlier proceedings and the later proceedings must relate to same matter in issue. The present matter needs to be considered from these points of view also. If the plaint is considered, the same in brief can be stated to be as under:
The plaint refers to the properties in dispute and details are given as to how the property has come down from ancestors Tatya Ukirde and Taraji Ukirde. Various details are given regarding the family tree. It is claimed that, the legal heirs partitioned the land Gat No. 26 among themselves and fixed respective shares and although shares were described, internal boundaries were not demarcated and the respective shares were held as Karta of their respective families and as joint family property. It is claimed that, dispute in present matter was only regarding share of Mahadu s/o. Tatya and Ramchandra and Kesu. In the table of share given, share of Pandharinath Mhasu is also shown. It is further claimed that all brothers enjoyed respective shares in the said land till their lifetime and after their death, all the plaintiffs became owners of agricultural land with their respective shares in Gat No. 26. In January 2008, relative Damodhar Ramrao informed plaintiffs, their name or their father''s name did not appear in 7/12 extract. Plaintiffs examined mutation entry No. 752, dated 10.1.1985 showing that plaintiff Kundlik Jayanta and Maruti Appa for their father Jayanta Madhav, Maliram Dagdu for his father Dagadu Ramchandra, and Guna Ramchandra, Tukaram Nana for themselves had transferred their share to Pandharinath Mhasu, the father of respondent Nos. 2 and 3 and mutation entry has taken place on the basis of partition deed alleged to have been executed by above persons. Plaint claimed that, there was no such partition. Plaint further claimed that, on the basis of such mutation entry, respondent No. 1 got executed sale deed from Pandharinath, father of respondent Nos. 2 and 3, of the suit property in respect of 81 R land and the said sale deed dated 7.10.1984 was not binding on the plaintiff. Mutation entry No. 752 dated 10.1.1985 and 816 dated 14.5.1987 were challenged in ROR Appeal before D.S.O. on 2.4.2008. The appeal was dismissed on 6.7.2009. Writ Petition No. 8045/2009 was filed to the High Court challenging the mutation entry and the same got dismissed on 27.9.2010. Para 21 of plaint states that, plaintiffs came to know the fact in January 2008 about the illegal mutation as well as illegal sale deed and hence, had filed the appeal before S.D.O. on 2.4.2008. Thus, the suit was filed seeking to declare the sale deed illegal, and for injunction.
11. Para 19 of the plaint reads as under:
19. The plaintiffs say and submit that, in order to challenge mutation entry No. 752 dt. 10.1.1985 and 816 dt. 14.5.1987 the plaintiff filed ROR appeal before D.S.O. Aurangabad bearing Case No. 2008/MAG/ROR/ CR-41 on 2.4.2008 and same is registered on 4.4.2008 and thereafter on the count of delay the appeal came to be dismissed on 6.7.2009. The copy of the same is annexed herewith for kind perusal of this Hon''ble Court.
12. It is clear that what was being pursued before the revenue authorities was challenge to the mutation entry and the same was "dismissed on the count of delay". It was not due to defect of jurisdiction as required by Section 14 of the Limitation Act. Even the Writ Petition No. 8045/2009 came to be dismissed keeping in view the delay. Thus, it is not a case that trial proceedings failed due to defect of jurisdiction or other cause of like nature. The earlier proceedings were for setting aside mutation entry. The present suit is to declare the sale deed dated 7.10.1984 as not binding on the plaintiff and for injunction that the defendants should not create third party interest. I find that, going through the plaint as a whole, Section 14 of the Limitation Act cannot help the plaintiffs to get the delay condoned. By clever drafting, knowledge of mutation entry of 10.1.1985 and sale deed of 7.10.1984 is shown as of January 2008. The claim to set aside the sale deed was already hopelessly delayed, even if exclusion of time is done from January 2008 till filing of suit. Even otherwise, when admittedly there was knowledge in January 2008, right to sue to set aside Sale Deed had accrued. The present suit filed on 1.8.2012 is time barred under Article 58 of the Limitation Act. The time sought to be excluded from when the mutation entry was challenged before the revenue authorities on 2.4.2008 till dismissal of the Writ Petition on 27.9.2010 cannot be accepted and is not admissible u/s 14 of the Limitation Act.
13. For such reasons, I find that the order passed by the trial Court is not legal and proper and cannot be maintained. Civil Revision Application is allowed with costs. The impugned order is set aside. Regular Civil Suit No. 1600/2012 pending before the trial Court is found to be barred by limitation. The plaint concerned is rejected under Order VII Rule 11(d) of the Civil Procedure Code, 1908.
