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CASE NO.: Appeal (civil)  2815 of 2008

PETITIONER: KAMLESH BABU & ORS

RESPONDENT: LAJPAT RAI SHARMA & ORS

DATE OF JUDGMENT: 16/04/2008

BENCH: A. K. MATHUR & ALTAMAS KABIR

JUDGMENT: JUDGMENT Altamas Kabir,J.

CIVIL APPEAL NO.    2815          OF 2008 (Arising out of SLP (Civil) No. 10058 of 2006)

1.      Leave granted.

2.      This appeal involves a dispute between the parties who  are related to each other, having a common ancestor.  The  dispute involves a registered Will dated 5th August, 1972,  executed in favour of the appellants by one Brijlal (deceased),  who had four sons.  Except for his youngest son, Onkar  Prasad, all the other sons were allegedly separated from him  and were staying separately.  Brijlal was staying with Onkar  Prasad and excluding the descendants of his other children  executed the said Will dated 5th August, 1972, in favour of his  grand-children through Onkar Prasad.  Brijlal died on 5th  November, 1976, and on the basis of the Will executed by him,  the appellants moved an application for mutation of the  bequeathed properties in their names.  The respondent No. 1,  who is one of the grand-sons of the testator through another  son, Shanti Swarup, also filed an application for mutation,  which was rejected.  An appeal preferred therefrom was also  dismissed.  On 29th April, 1977, the Tehsildar passed an order  for mutation of the properties in the name of the appellants on  the basis of the aforesaid Will dated 5th August, 1972.

3.      On 2nd January, 1978, the respondent No.1 herein filed a  suit for declaration that the registered Will dated 5th August,  1972, had been procured by practising fraud.  The suit was  duly contested by the appellants herein by filing written  statement.  On the basis of the pleadings, in order to arrive at  a decision in the suit, the following issues were framed: - (i)     Whether the Will dated 5th August, 1972 executed  by Brijlal, in favour of defendants 2 to 6 is forged  and not binding upon the plaintiff?

(ii)    Whether the plaintiff is entitled to get possession  on the disputed property of his share?

(iii)   Whether the suit was undervalued and the court  fee paid is insufficient?

(iv)    Whether Brijlal had got a right to execute the Will  of his property?

(v)     Whether Brijlal was the exclusive owner of the

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disputed property?

(vi)    To what relief, if any, is the plaintiff entitled?

4.      All the aforesaid issues were decided against the plaintiff  and the suit was dismissed by the Trial Court.  While deciding  issue No. 6, The Trial Court also held that the suit was barred  under Article 59 of the Limitation Act, 1963, because the  plaintiff had failed to prove that the Will was not within the  knowledge of the plaintiff within three years of the filing of the  suit. 5.      Aggrieved by the decision in the suit, the plaintiff- respondent No. 1 herein, preferred an appeal before the Civil  Judge, Aligarh, which was allowed and the judgment of the  Trial Court was reversed without deciding the question of  limitation which had been decided against the plaintiff- respondent No.1 and in favour of the defendants-appellants  herein.

6.      The defendants-appellants herein filed a second appeal  before the Allahabad High Court on 3rd October, 1983, and the  same was also dismissed on 6th February, 2006, affirming the  judgment and order of the Appellate Court.

7.      In this appeal, the main point which was urged on behalf  of the appellant is that although all the issues in the suit were  decided against the plaintiff-respondent No.1 by the Trial  Court, in addition, the Trial Court had also held that the suit  was barred by limitation.   It was submitted that while  reversing the judgment of the Trial Court, the First Appellate  Court had neither gone into the question of limitation nor  reversed the finding that the suit was barred by limitation  under Article 59 of the Limitation Act.   While affirming the  judgment of the First Appellate Court, even the High Court  appears to have lost sight of the said finding.

8.      Appearing in support of the appeal, Mr. S.B. Sanyal,  learned senior advocate, submitted that both the First  Appellate Court and the High Court erred in reversing the  judgment of the Trial Court without deciding the question  relating to limitation and that the judgment both of the High  Court as well as of the First Appellate Court were liable to be  set aside on such ground alone.

9.      Appearing for the respondents, Ms. Rachana Srivastava,  learned advocate, firstly submitted that the question now  being raised on behalf of the appellants had not been raised  on their behalf either before the First Appellate Court or before  the High Court, which, therefore, had no opportunity to  consider the same.  Not having raised the said question before  the First Appellate Court and the High Court, the appellants  were not entitled to raise the same in this appeal.

10.     Ms. Srivastava also submitted that even before the Trial  Court no specific issue had been framed regarding limitation  and the purported finding of the Trial Court in respect thereof  was in the nature of an observation made in passing.

11.     In support of her submissions, learned counsel referred  and relied upon the decision of this Court in State of Punjab  vs. Darshan Singh [2004 (1) SCC 328] wherein while  considering the limits of the Court’s powers under Section 152  of the Civil Procedure Code, this Court had occasion to  consider whether a new plea in respect of which no specific

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issue had been framed could be raised in second appeal or in  a special leave petition before this Court.  Ms. Srivastava  submitted that this Court had categorically held that despite a  plea with regard to limitation having been taken in the written  statement, no specific issue had been framed in respect  thereof, and no such plea having been taken before the High  Court, this Court could not go into the said question in  proceedings under Article 136 of the Constitution.   Ms.  Srivastava urged that apart from the above, the issue of  limitation being a mixed question of law and fact, such a plea  could not be raised before this Court under Article 136 of the  Constitution if not taken earlier.  In support of her second  submission, Ms. Srivastava relied upon a decision of this  Court in Balasaria Construction (P) Ltd. Vs. Hanuman Seva  Trust and Ors. [2006 (5) SCC 658] wherein it had been held  that a suit could not be dismissed under Order 7 Rule 11(d) of  the Code of Civil Procedure in the absence of proper pleadings  relating to limitation, particularly when the question of  limitation is a mixed question of law and fact and on a mere  reading of the plaint the suit could not be held to be barred by  limitation.

12.     A similar view was taken by this Court in Narne Rama  Murthy vs. Ravula Somasundram and Ors. [2005 (6) SCC 614]   where also the question of limitation was an inextricably  mixed question of law and fact and the bar of limitation could  not be decided without considering the related facts giving rise  to such question.

13.     Ms. Srivastava urged that in this appeal, the situation  was no different and the plea of limitation now sought to be  taken, being a mixed question of law and fact, the same  cannot be allowed to be raised in view of the aforesaid  decisions of this Court.

14.     Having considered the submissions made on behalf of the  respective parties, the decisions cited by them and the relevant  law on the subject, we are unable to accept Ms. Srivastava’s  submissions mainly on two counts.

15.     Firstly, the facts disclosed clearly indicate that neither  the First Appellate Court nor the High Court took notice of  Section 3(1) of the Limitation Act, 1963, which reads as  follows:-

"3. Bar of limitation. \026 (1) Subject to the provisions  contained in Sections 4 to 24 (inclusive), every suit  instituted, appeal preferred, and application made  after the prescribed period shall be dismissed  although limitation had not been set up as a  defence."

16.     Even in the decision of this Court in Darshan Singh’s  case (supra) the said provision does not appear to have been  brought to the notice of the Hon’ble Judges who decided the  matter.

17.     It is well settled that Section 3(1) of the Limitation Act  casts a duty upon the court to dismiss a suit or an appeal or  an application, if made after the prescribed period, although,  limitation is not set up as a defence.

18.     In the instant case, such a defence has been set up in  the written statement though no issue was framed in that

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regard.   However, when the Trial Court had in terms of the  mandate of Section 3(1) come to a finding that the suit was  barred by limitation, it was the duty of the First Appellate  Court and also of the High Court to go into the said question  and to decide the same before reversing the judgment of the  Trial Court on the various issues framed in the suit.  Even  though the various issues were decided in favour of the  plaintiff both by the First Appellate Court and the High Court,  the same were of no avail since the suit continued to remain  barred under Article 59 of the Limitation Act, 1963.   

19.     Ms. Srivastava’s submission that the plea of limitation  not having been taken before the appellate forums, the same  could not be taken before this Court in proceedings under  Article 136 of the Constitution on the ground that the question  of limitation was a mixed question of law and fact, stands  nullified by the fact that the suit continued to remain barred  by limitation after the decisions of the appellate Courts since  such finding of the Trial Court had not been set aside either in  the first appeal or by the High Court in second appeal.    

20.     It is quite obvious that this aspect of the matter had not  been looked into either by the First Appellate Court or by the  High Court, nor was it  raised on behalf of the appellants  herein.  The question, therefore, which remains to be decided  is whether such a plea can now be taken in the special leave  proceedings.

21.     It is no doubt true, as was pointed out by this Court in  the case of Balasaria Construction (P) Ltd. (supra) and also in  Narne Rama Murthy’s case (supra), that if the plea of  limitation is a mixed question of law and fact, the same cannot  be raised at the appellate stage.  We have no problem with the  said proposition of law.  What we are concerned with is  whether the said  proposition  is  applicable   to   the facts of  this case.     In this case the plea of limitation had been raised  in the written statement and though no specific issue was  framed in respect thereof, a decision was given thereupon by  the learned Trial Court.  Apart from Section 3(1) of the  Limitation Act, even Order 7 Rule 11(d) of the Code of Civil  Procedure casts a mandate upon the court to reject a plaint  where the suit appears from the statement in the plaint to be  barred by any law, in this case by the law of limitation.   Further, as far back as in 1943, the Privy Council in the case  of Lachhmi Sewak  Sahu vs. Ram Rup Sahu & Ors. [AIR 1944  Privy Council 24] held that a point of limitation is prima facie  admissible even in the court of last resort, although it had not  been taken in the lower courts.

22.     The reasoning behind the said proposition is that certain  questions relating to the jurisdiction of a Court, including  limitation, goes to the very root of the Court’s jurisdiction to  entertain and decide a matter, as otherwise, the decision  rendered without jurisdiction will be a nullity.   However, we  are not required to elaborate on the said proposition,  inasmuch as, in the instant case such a plea had been raised  and decided by the Trial Court but was not reversed by the  First Appellate Court or the High Court while reversing the  decision of the Trial Court on the issues framed in the suit.   We, therefore, have no hesitation in setting aside the judgment  and decree of the High Court and to remand the suit to the  First Appellate Court to decide the limited question as to  whether the suit was barred by limitation as found by the Trial  Court.   Needless to say, if the suit is found to be so barred,  the appeal is to be dismissed.  If the suit is not found to be

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time-barred, the decision of the First Appellate Court on the  other issues shall not be disturbed.   

       The appeal is accordingly allowed, but there will be no  order as to costs.