BAKHTAWAR SINGH AND ANR. versus SADA KAUR AND ANR.

Citation: [1996] SUPP. 5 S.C.R. 235 · Decided: 28-08-1996 · Supreme Court of India · Bench: N.P. SINGH · Disposal: Dismissed

Judgment (excerpt)

BAKHTAWAR SINGH AND ANR. 
A 
v. 
SADA KAUR AND ANR. 
AUGUST 28, 1996 
(N.P. SINGH AND FAIZAN UDDIN, JJ.) 
B 
Limitation Act, 1963: Article 65 and Section 14. 
Adverse possession-Plaintiffs withdrew earlier suit with permis-
sion-Fresh suit filed-Meanwhile, defendant peifected title by adverse pos-
C 
session-Plaintiff claimed exclusion of time under S.14-Held: Fresh suit 
barred by limitation-Plaintiffs failed to show that permission to withdraw suit 
was granted in accordance with 0.23 Rl(3) CPC-Nor the essential for taking 
benefit of S.14 satisfied-Code of Civil Procedure, 1908, 0 23R1(3). 
The suit land was the ancestral land originally belonging to one G D 
who djed leaving behind five sons. The defendant· respondent was married 
to on¢ of the sons viz. D. After the death of D the respondent contracted 
'Karewa' marriage with the younger brother of D. The plaintiff-appellants 
who are two sons of G filed a declaratory suit on 19.1.1962 contended that 
they were in possession as owners of 2/3rd share in the estate of D on E 
account of the marriage by virtue of the prevalent custom. The suit was 
dismissed but the appeal filed by the plaintiffs was allowed on 7.8.1963. 
Thereafter, the plaintiffs filed another suit in 1964 against the respondent 
to get back the possession of the suit land as, according to them, in the 
meanwhile the d.efendant had taken forcible possession of the suit land. 
During its pendency, the respondent filed a second appeal against the 
judgment of the appellate court dated 7.8.1963. The High Court dismissed 
the respondent's second appeal but granted certificate and leave to appeal 
to this Court. Subsequently, on 20.5.1979 the plaintiffs withdrew their suit 
filed in 1964 from the court with liberty to file a fresh suit for possession 
of land. 
F 
G 
On 24-7-1980 this Court dismissed the appeal holding that the 
respondent had lost her rights in the estate of D when she contracted 
'Kerewa' marriage. Thereafter, on 28.11.1980 the plaintiffs Appellants 
again filed a fresh suit for possession against the respondent in accord· 
ance with the terms of withdrawal of the first suit. The court ·took the view H 
235 
236 
SUPREME COURT REPORTS [1996] SUPP. 5 S.C.R. 
A that the plaintiffs' suit was barred by limitation and the defendant-respon-
dent had perfected her title by adverse possession. The first appellate court 
as well as the High Court UJ~held this view. Hence this appeal. 
B 
On behalf of the appellants it was contended that since the plaintiffs 
had withdrawn their earlier suit with permission to file a fresh suit on the 
same cause of action in accrnrdance with the provisions contained in clause 
(3) of Rule 1 of Order 23 of the Code of Civil Procedure, 1908 the plaintiffs 
were entitled to exclude the 1]me spent in prosecuting the said earlier suit 
as provided under Section 14 of the Limitation Act, 1963. 
C 
Dismissing the appeal, this Court 
HELD : 1.1. In the present case all the courts below including the 
High Court concurrently found that the plaintiffs/appellants failed to 
produce any evidence to show that the permission to withdraw the suit was 
D given on the ground that the suit was bound to fail by reason of some formal 
defect or there were sufficient grounds for allowing the plaintiffs to institute 
a fresh suit in respect of the same subject matter. The plaintiffs had not 
even produced the application which is said to have been filed for 
withdrawal of the earlier suiit with permission to file a fresh suit on the 
same cause of action to show as to what was the formal defect in the earlier 
E suit by reason of which it was sought to be withdrawn. In these facts and 
circumstances no case for fresh institution of suit on the same cause of 
action and for the same relief after the withdrawal of the earlier suit was 
made out by the plaintiffs/appellants in accordance with the provisions of 
Clause (3) of Order 23 Rule l 1of the Code of Civil Procedure, 1908. [239·C·F] 
F 
1.2. As regards the exclusion of time under Section 14 of the Limita· 
tion Act, 1963 it was essentiall for its application to s4ow that the proceed-
ings related to the same matter in issue and the plaintiff prosecuted the 
suit in good faith in a court which, from defect of jurisdiction or other 
cause of like nature is unabh~ to entertain it. The plaintiff/appellants have 
G failed to show as to what was the defect of jurisdiction or any other cause 
of like nature by reason of which the ear

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