Second appeal allowed setting aside first appellate Court decree dismissing suit as barred by limitation. Held limitation plea premature as trial Court did not try issue; plaintiffs entitled to 2/3rd share of Schedule A property.
Second appeal allowed; decree of trial Court set aside; decree of First Appellate Court setting aside title right set aside.
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
SA No. 328 of 2005
---- Appellants/Plaintiffs
a. Dhansay S/o Late Parasram, aged about 28 years, R/o Village Mukha, P.S. Rajpur, Tahsil Balrampur, District Balrampur, Ramanujganj, Chhattisgarh.
All R/o Village Mukha, Tahsil Pal, District Surguja, Chhattisgarh.
----Respondents/Defendants
| For Appellants/Plaintiffs |
: Mr. Rishi Mahobia, Advocate |
|---|---|
| For Respondents/Defendants | : None |
| For State |
: Ms. Shivali Dubey, Panel Lawyer |
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Hon'ble Shri Justice Sanjay K. Agrawal Order On Board
23.07.2019
(For the sake of convenience, parties would be referred hereinafter as per their status and ranking shown in the suit before the trial Court.)
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and permanent injunction holding that they have 2/3rd share in the suit properties shown in Schedule “A” and “B” annexed with the plaint. The defendants filed their written statement on 21/12/1998 and controverted the allegations made in the plaint holding inter alia that the suit properties shown in Schedules “A” and “B” are the self-acquired property of Bigu, father of Ramkalia, and therefore, the plaintiffs have no title over the suit land. It was also additionally pleaded by the defendants that so far as the property mentioned in Schedule “B” is concerned, will deed was executed by Rukmani – wife of Bigu, in favour of Ramkalia – daugher of Bigu, therefore, the suit deserves to be dismissed.
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held by Bigu, but allowed the appeal and dismissed the suit vide judgment and decree dated 13/04/2005 holding that the suit is barred by limitation.
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consequently, no issue was raised and tried by the trial Court. In the first appeal, ground No. 14 has been raised by the defendants that the suit is barred by limitation and it was eventually entertained and allowed by the first appellate Court, setting aside the decree of the trial Court.
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Court in paragraph 13 of its judgment holding the suit to be barred by limitation and thus, setting aside part of the decree in favour of the plaintiffs is hereby set aside, as it has been held by the learned trial Court as well as the first appellate Court that plaintiffs are entitled for the decree with regard to the 2/3rd share of the property shown in Schedule “A”. In view of that, answer to the substantial question of law No. 2 would be unnecessary.
Judge
Harneet
2 issues framed by the court
Whether the finding of the first appellate Court in dismissing the suit holding it to be barred by limitation is proper, legal and justified or not?
Whether the finding of the Court below that the will deed executed in favour of Ramkalia by Rukmani Devi was not necessary to be proved so far as the claim of defendant over the suit property is conce
2 provisions across 2 enactments
Gullu S/o Late Ramdas Khairwar (Dead) through Lrs.
Bharat S/o Late Nanhak Khairwar
Jayshree S/o Nanh Khairwar
Ajgar S/o Nanh Khairwar
State of M.P. (Now C.G.)
Sanjay K. Agrawal
Harneet
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
