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PETITIONER: BAKHTAWAR SINGH & ANR.

       Vs.

RESPONDENT: SADA KAUR & ANR.

DATE OF JUDGMENT:       28/08/1996

BENCH: FAIZAN UDDIN (J) BENCH: FAIZAN UDDIN (J) SINGH N.P. (J)

CITATION:  1996 SCALE  (6)222

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T      Faizan Uddin, J. 1.   this is  an appeal by the unsuccessful plaintiffs whose suit  far  deolaration  to  the  effect  that  they  are  in possession as  owners of  2/3 share  in the  estate  of  the husband of  respondent No. 1 was dismissed by the Sub-Judge. 1st Class,  Muktsar as  barred by limitation by his judgment and dagree dated May 17, 1902 which has been affirmed by the First appellate Court and the High Court. 2.   The land  in suit  is  the  anoestral  land  originally belonging to  Gulab Singh  who died  leaving behind  him his five sons.  namely. Sampuran Singh, Jeet Singh, Dalip Singh, and Bakhtawar  Singh, The defendant respondent herein was to Dalip Singh.  Dalip Singh  died in  the year 1932 whereafter the respondent  Sada Kaur  contracted ‘Karewa’ marriage with Chand Singh  the younger  brother of  her  deceased  husband Dalip Singh. 3.   The plaintiffa  appellants who  are two  sons  of  late Gulab  Singh  filed  a  declaratory  suit  on  19.1.1992  by contending that  they were  in possession  as owners  of 2/3 share in  the estate  of Dalip  Singh, the  late husband  of defendant/ respondent  No. 1 had forefeited her tight in the estate of  her deceased  husband on  acoount of marriage, by virtue  of   the  prevalent  oustom  amongst  them  and  the plaintiffs being the reversionaries were entitled to inherit the same.  The said suit  of the plaintiffs was diamissed on June 1989  on the findings that the defendant respondent No. 1 did  not forefait  her right  on her  remarriage with  the younger brother of her late husband. But the appeal filed by plaintiffs against  the said judgment and decree was allowed on August  7, 1993  reversing the judgment and decree passed by the Trial court. 4.   Thereafter the  plaintiffs filed  another suit  against the defendant  respondent No.  1 being civil suit No, 884 of 1984 to  got  back  the  possession  of  the  suit  land  as according to them, in the mean-while the defendant had taken

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forolble possession of the suit land. 5.   The defendant  respondent No.  1 filed second appeal in the  High  Court  against  the  reversing  judgment  of  the appeallate  court  dated  August  7,  1963  but  High  Court maintained the  judgment and decree and dismissed the second appeal. The  High Court,  however, granted  Certificate  and leave to  appeal to  Suprame Court  on the  point whether  a widow forefelts  her rights or not by ‘Karewa’ marriage with her brother-in law. 6.   Subesquently, on  May 20,  1971 the plaintiffs withdrew their civil suit No. 881 of 1984 form the Court of sub-judge with liberty to file a fresh suit for possession of land. 7.   On July  24 1990 the Supreme Court dismissed the appeal filed by  the respondent Bada Kaur upholding the judgment of the civil  courts  and  the  high  Court  holding  that  the respondent No.  1 had  lost her  rights in the estate of her deceased husband  Dalip Singh  when she  contracted ’Karewa’ merriage with her brother-in-law, Chand Singh. Thereafter on November 20,  1990 the  plaintiffs appellants  again filed a fresh shit  Civil Suit  No, 661  of 1994. The Sub-Judge took the view  that the  plaintiffs suit was barred by limitation and the  defendant respondent  No. 1 had perfected her title by  adverse   possession.  The  Additional  District  Judge, Faridkot by  his judgment  dated August  27, 1985 as well as the High  Court by  the impugned judgment dated September 4, 1986 upheld  the findings  recorded by  the Trial  Court and dismissed the  plaintiffs appeal  against which  this appeal has been directed. 8.   The  contention   of  the   learned  counsel   for  the appellants is  that since the plaintiffs has withdrawn their earlier suit (Civil Suit No. 661 of 1984) with pepmission to file a  fresh suit on the same cause of action in accordance with the  provisions coontained  in lause  (3) of rules 1 of Order XXIII  of the Code of Civil Procedure (hereinafter the Code) and  , therefore,  the  plaintiffa  were  entitled  to exolude the  time spent in prosecuting the said earlier suit as   provided   under   Section   14   of   the   Limitation Act,(hereinafter the  Act), The  question,  therefore,  that aries  for   our  consideration   is  where  the  plaintiffs appallents  were   permitted  to  withdraw  the  suit  in  a accordance with  the provisions  contained in  clause (3) of Order XXIII, rile 1 of the Code and whether in the facts and circumstance of  the present  case the plaintiffa appellants are entitled  for exclusion  of the time under Section 11 of the Act,  Clause (3)  of Order  XXIII rule  1  of  the  Code conmtemplates that where the Court  is satisfied fail that a suit must  fail by reason of some formal defect, or (b) that there are  sufficient ground  for allowing  the plaintiff to institute a fresh suit for the subject matter of the suit or part of  a claim,  it may  on such  terms as  it thinks fit, grant the  polaintiff permission  to withdraw from such suit or such part of claim with liberty to institute a fresh suit in respect  of subject  matter of  case all the courts below including  the   High  Court  concurrently  found  that  the plaintifs/appellants failed  to withdraw  the suit was given on the  ground that  the suit was bound to fail by reason of some formal  the defect  or plaintiffs  to institute a fresh suit n respect of the same subject matter, Not only this the plaintiffs had  not even  produced the  application which is said to  have been  filed for withdrawal of the earlier suit with permission  to file  a fresh  suit on the same cause of action to  show as what was the formal defect in the earlier suit by  reason of  which it  was sought  to  be  withdrawn. However the  order dated  May 20,1971  passed by  the  civil court was  on record  which did  not indicate as to what was

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the formal  defect in  the  suit  by  reason  of  which  the permission to withdraw the same was accorded. In these facts and circumstances no case for action and for the same relief after the withdrawal of the earliar suit was made out by the plaintiffs/appellants in  accordance with  the provisions of clause (2) of Order XXIII rule 1 of the Code. 9.   As regards  the exclusion  of time  under Section 14 of the Limitation  Act it  was essential for its application to show that  the proceedings  related to  the same  matter  in issue and the plaintiff prosecuted the suit in good faith in a court which, from dafact of jurisdiction or other cause of like nature  is unable  to entertain  it. As discussed above the plaintiffs  appellants have  miserably failed to show as to what was the defect of jurisdiction or any other cause of like nature  by reason  of which  the earlier  suit was  not entertainable or  competent. That  being so,  the benefit of the provisions  of 14 cannot be legitimately extended to the plaintiffs, In  these facts  and circmatanpes the plaintiffs suit has rightly been dismissed as barred by limitation. 10.  For the  reasons stated  above the  appeal fails and is hereby dismissed. We make no order no as to costs.