GHEWARCHAND & ORS. versus M/S MAHENDRA SINGH & ORS.

Citation: [2018] 11 S.C.R. 738 · Decided: 20-09-2018 · Supreme Court of India · Bench: ABHAY MANOHAR SAPRE · Disposal: Case Allowed

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2018] 11 S.C.R.
GHEWARCHAND & ORS.
v.
M/S MAHENDRA SINGH & ORS.
(Civil Appeal No. 5870 of 2015)
SEPTEMBER 20, 2018
[ABHAY MANOHAR SAPRE AND S. ABDUL NAZEER, JJ.]
Limitation Act, 1963 – Art.65 – Applicability of – Appellants-
plaintiffs filed a civil suit against the respondents-defendants in
relation to a property – Trial Court held all the issues including the
issue of limitation in favour of the plaintiffs and decreed the suit –
However, the High Court reversed the finding on the issue of the
limitation and dismissed the suit of plaintiff on the ground of
limitation, as suit was for declaration and consequential injunction
and, therefore, it was governed by the period of 3 years limitation –
On appeal, held: High Court was factually not correct in observing
that the suit was filed for declaration and injunction only and ‘not
for possession’ – The plaint showed that the plaintiffs had also
prayed for decree of possession of the suit property from the
defendants – Furthermore, the suit property was also the subject
matter of the proceedings u/s.145 Cr.P.C., where both parties were
claiming their right, title and interest including possession over the
suit property against each other, and suit property was attached by
the City Magistrate by order dated 23.12.1966 – Art. 65 of the Act
provides limitation of 12 years for filing the suit which is to be
counted from the date when the possession of the defendant becomes
adverse to the plaintiff – Art.65 was applicable and the Plaintiffs
rightly filed the civil suit on 19.12.1978 within 12 years from the
date of attachment order dated 23.12.1966 – Thus, order of the
trial Court holding that the suit was filed within limitation is restored
– Code of Criminal Procedure, 1973 – s.145.
Allowing the appeal, the Court
HELD: 1. The High Court was of the view that the
plaintiffs’(appellants) suit against the defendants (respondents)
was essentially for declaration and consequential injunction and,
[2018] 11  S.C.R. 738
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therefore, it was governed by the period of three years limitation,
which was to be counted from the date of accrual of first cause of
action.  It was held that since the suit was not filed within three
years, it was barred.  [Para 13] [742-B-C]
2. Without going into any factual controversy and the lengthy
pleadings, the High Court was factually not correct in observing
that the suit was filed for declaration and injunction only and “not
for possession”.   [Para 15]  [742-F-G]
3. Mere perusal of the relief in clause 26 (3) of the plaint
would show that the plaintiffs had also prayed for decree of
possession of the suit property from the defendants. Furthermore,
it is not in dispute as the pleadings would go to show that the suit
property was the subject matter of the proceedings under Section
145  Cr.P.C. between the parties before the City Magistrate
wherein both the parties were claiming their right, title and
interest including asserting their possession over the suit property
against each other. It is also not in dispute that the City
Magistrate vide his order dated 23.12.1966 attached the suit
property.  [Paras 16 and 17] [742-G-H; 743-A-B]
4. The plaintiffs, therefore, rightly filed the civil suit on
19.12.1978 within 12 years from the date of attachment order
dated 23.12.1966. The assertion of the right, title and interest
over the suit property by the defendants having been noticed by
the plaintiffs for the first time in proceedings of Section 145 of
the Cr.P.C. before the City Magistrate, they were justified in filing
a suit for declaration and possession. It was, therefore, rightly
held to be within limitation by the Trial Court by applying Article
65 of the Limitation Act. [Para 20] [743-F-G]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5870
of 2015
From the Judgment and Order dated  04.12.2006 of the High
Court for Rajasthan at Jodhpur in S. B. First Appeal No. 52 of 1997
S. K. Jain, Sr. Adv., Dileep Tandon, Puneet Jain, Harsh Jain, Ms.
Priyal Jain, Ms. Vineeta Meghrajani, Pramod Sharma, Ms. Pratibha Jain,
Advs. for the appellants.
GHEWARCHAND & ORS. v. M/S MAHENDRA SINGH & ORS.
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SUPREME COURT REPORTS
[2018] 11 S.C.R.
The Judgment of the Court was delivered by
ABHAY MANOHAR SAPRE, J. 1. This appeal is filed against
the final judgment and order dated 04.12.2006 passed by the High Court
of Rajasthan at Jodhpur in S.B. Civil First Appeal No.52 of 1997 whereby
the High Cou

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