ORDER :

ARUN MISHRA, J.

1. Leave granted.

2. Heard learned counsel for the parties.

3. The appeal has been preferred by the University of Agricultural Sciences aggrieved by the judgment and decree passed by the trial court which has been affirmed by the High Court of Karnataka at Bangalore in Regular First Appeal No. 1218 of 2010 on 06.08.2013.

4. Facts lies in a very narrow compass. There had been land acquisition proceedings under the provisions of Land Acquisition Act 1894 (in short 'the Act'). The land had been acquired way back in the year 1977 and in 1980. The dispute arose with respect to the land acquired in the year 1980. Notification under Section 4 of the Act was issued on 9.3.1978 and it was finally acquired in the year 1980. The plaintiff had purchased some part of the land in the year 1982 by a sale deed. On the basis of the sale deed he filed a suit for relief of permanent injunction contending that he was the owner, his land had not been acquired and he continued to be owner of the land as such University of Agricultural Sciences be permanently restrained from interfering with the possession. The suit was ultimately decided on merits and trial court dismissed the suit holding that the suit land formed part of the land which had been acquired for the purpose of University. The dispute was with respect to the fact whether the land of the plaintiff was covered in acquisition. Be that as it may, it is an admitted fact that the suit land was the same in the previous suit for permanent injunction and issue had been framed in previous suit with respect to the fact whether the suit land had been acquired by the University. After dismissal of the suit the first appeal and the suit itself was withdrawn, however, without reserving any liberty to institute fresh suit. The suit and appeal arising out of aforesaid 1993 suit were withdrawn on 13.8.2001.

5. Thereafter fresh suit for declaration and permanent injunction was filed on 9.10.2002 out of which the present appeal arises. The same had been decreed by the trial court which had been affirmed by the High Court in the first appeal mainly on the ground that the defendant-University was unable to prove that the suit land had been acquired by it in the acquisition proceedings. However, certain documents had been filed later on indicating that the suit land had been acquired.

6. The main submission raised by Sh. Krishanan Venugopal, learned senior counsel appearing on behalf of the appellant-University is that the suit is barred by the provisions of Order 23 Rule 1(4) of the Code of Civil Procedure, 1973, and it is also barred by the provisions of Order 2 Rule 2 of the CPC. Suit was hopelessly barred by limitation and the documents which have been filed indicate that suit land in fact had been acquired.

7. It was urged by the learned counsel appearing on behalf of the respondent that the plea of Order 23 Rule 1(4) had not been raised in the written statement as such the defendant is barred from raising it. It was further submitted that since plaintiff was in possession the suit could not be said to be barred by limitation as the defendant has miserably failed to prove that the land in question had been acquired, as such, no case for interference in the appeal is made out.

8. After hearing learned counsel for the parties, we are of the considered opinion that appeal deserves to be allowed on the singular ground that too in view of the admitted fact that the judgment of the previous case had been exhibited before the trial court. The previous suit was admittedly filed with respect to the very same suit land for relief of permanent injunction based on title with the averment that suit land had not been acquired for the purpose of the Agricultural University. The said suit was dismissed on merits on the basis of the finding that land had not been acquired. The Regular First Appeal arising out of the same was withdrawn vide order dated 13.08.2001 and also the suit. Since the suit as well a