Consent and lack of grievance regarding construction leading to time-barred claim under Limitation Act.

JUDGMENT :

M.R. Shah, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 09.08.2019 passed by the High Court of Himachal Pradesh at Shimla passed in Regular Second Appeal No.270 of 2007 by which the High Court has allowed the said appeal and has quashed and set aside the judgment and decree passed by the learned Trial Court dismissing the suit and consequently decreeing the suit directing the appellant herein to initiate the acquisition proceedings qua the land of the plaintiff as mentioned in the plaint as well as the order dismissing the review application preferred by the appellant herein, the State of Himachal Pradesh and others have preferred the present appeals.

2. That the respondent herein original plaintiff instituted the suit before the learned Trial Court for declaration, mandatory inunction and seeking direction to the appellants herein original defendants to initiate and complete the acquisition proceedings in respect of the land of the plaintiff and damage to his fruit bearing trees. According to the plaintiff the appellants herein original defendant nos. 1, 2 & 3 without complying with the provisions of the Land Acquisition Act, constructed a road known as “Tikkari-Larot-Bodra Kwar road” on the land of the plaintiff, but no compensation was paid to the plaintiff. The fruit bearing plants were also damaged.

2.1 The appellants herein – original defendants contested the suit contending inter alia that the suit is barred by law of limitation; that the plaintiff was working as Mate in the Department and in fact the road was constructed on his request and as per the consent; the plaintiff waived off his claim of compensation as the road was constructed with his consent in the year 1987. The learned Trial Court framed the following issues:

“Issue no.1 : Whether the plaintiff is entitled for the relief of declaration, as prayed for? OPP

Issue no.2 : Whether the plaintiff is entitled compensation as alleged? OPP

Issue no. 3 : Whether the suit is not maintainable? OPD

Issue no. 4 : Whether the suit is time barred? OPD

Issue no. 5 : Whether the plaintiff is estopped by his acts and conduct? OPD

Issue No.6 : Whether the suit has not been valued properly for the purpose of court fee and jurisdiction? OPD

Issue No. 7: Whether the plaintiff has no cause of action?

OPD

Issue No.8 : Whether the suit is bad for nonjoinder of necessary parties? OPD

Issue No.9 : Relief”.

2.2 On appreciation of entire evidence on record and considering the fact that the road was constructed in the year 1987 and till 2002 no grievance was made by the plaintiff and as the cause of action arisen in the year 1987, the learned trial Court held the issue No.4 in favour of the defendants and held that the suit was barred by limitation taking into consideration Articles 58 and 72 of the Limitation Act. The learned Trial Court also held the issue Nos.3, 5 & 7 against the plaintiff. Consequently, the learned Trial Court dismissed the suit. The judgment and decree passed by the learned Trial Court dismissing the suit came to be confirmed by the First Appellate Court. By the impugned judgment and order the High Court has allowed the Second Appeal preferred by the original plaintiff. The High Court framed the following substantial question of law:

"Whether the findings or judgment and decree passed by the Court below are a result of complete misreading, misinterpretation of the evidence and material on record and against the settled position or law?"

Holding aforesaid question of law in favour of the plaintiff the High Court without even considering the issue with respect to the limitation has allowed the Second Appeal and has quashed and set aside the concurrent findings recorded by both the Courts below and consequently has decreed the suit.

2.3 Learned counsel appearing on behalf of the State has vehemently submitted that in the facts and circumstances of the case the High Court has committed a very serious error in allowing the Second Ap