Point of Law: Civil Suit - Limitation - Where parties are fully aware about case of each other and have contested each other’s case by availing opportunity to lead evidence, question of framing or non-framing of issue becomes insignificant. Defendants have contested litigation for more than 25 years and were fully aware about case set up by plaintiff.

JUDGMENT :

Satyen Vaidya, J.

Appellants have preferred Regular Second Appeal under Section 100 of the Code of Civil Procedure (for brevity “Code”) against judgment and decree dated 07.07.2001, passed by learned Additional District Judge, Solan in Civil Appeal No.41-S/13 of 1999 arising out of judgment and decree dated 28.9.1999 passed by learned Sub Judge, 1st Class, Arki in civil suit No. 122/1 of 1995.

2. Appellants in present appeal were defendants in civil suit No. 122/1 of 1995 and the predecessor in interest of respondent herein was plaintiff. For the sake of convenience and clarity the Parties hereafter shall be referred in the same manner as were before the trial court.

3. Plaintiff filed suit for permanent prohibitory injunction against the defendants seeking to permanently restrain them from interfering in the suit land. In alternative relief of possession qua the suit land was also sought. Suit land was described as land comprised in Khewat No.8/10, Khasra Nos.8, 24 min, 25 min and 47/30 measuring 21-8 bighas as per “Jamabandi” for the year 1989-1990.

4. The premise of the suit was that plaintiff had purchased land comprised in Khewat No.2/2, Khasra Nos.4, 8, 14, 24, 28 and 30, kitas 6, measuring 29.11 Bighas from Gulaba Ram, predecessor in interest of defendant No.1. Mutation of sale was attested in favour of plaintiff on 23.1.1972 as Mutation No.103. Land purchased by plaintiff from Gulaba Ram in subsequent revenue record came to be described as the suit land detailed above. Plaintiff sold some part of the land purchased from Gulaba Ram to Rati Ram and Mutation No. 104 was attested in that behalf.

5. Plaintiff contended in the suit that Gulaba Ram had moved an application for correction of revenue entries, in respect of suit land, before Assistant Collector, 2nd Grade, Arki vide case No.16-13/B. This application was decided on 17.03.1983 by Assistant Collector, 2nd Grade, Arki holding that the land was in self cultivation of Gulaba Ram in the capacity of relative of plaintiff.

6. It was alleged that defendants were interfering in the possession of plaintiff under the garb of wrong revenue entries recorded in the column of possession. Plaintiff admitted to have filed a Civil Suit earlier which was withdrawn.

7. Defendants by way of written statement raised following preliminary objections to the claim of plaintiff:

(i) Plaintiff had no locus-standi to file the suit;

(ii) Suit was time barred;

(iii) Suit was bad for want of necessary parties;

(iv) Suit was barred by the provisions of order 23 Rule 1 and Order 2 Rule 2 of the Code in view of the earlier suit Nos. 6/1 of 1994 filed by plaintiff and dismissed on 3.6.1994.

(v) Suit was not maintainable;

(vi) Suit was barred by principle of estoppel and acquiescence etc.

(vii) Plaint was without any cause of action;

(viii) Suit was not valued properly and Court fee was not appropriately affixed.

8. On merits, it was contended that at the time of mutation, on the basis of alleged sale, possession of suit land was not delivered to plaintiff. Gulaba Ram, had refused to deliver the possession and had denied the sale deed. He was never divested from the suit land. There was no legal sale. In alternative plea of having become owner by perfection of title by adverse possession was also raised on behalf of defendants. It was specifically pleaded by defendants that possession of plaintiff was wrongly recorded in revenue record on the basis of Mutation No.103. The revenue entries were subsequently corrected and name of Gulaba Ram was recorded as possessor of suit land. Gulaba Ram had executed Will of his entire movable and immovable properties in favour of defendant No.2 Devi Ram. Sale deed set up by plaintiff was also alleged to be result of fraud and misrepresentation.

9. Learned trial court framed following issues:-

“Issue No.1 Whether the plaintiff is owner in possession of the suit land as alleged? ...OPP

Issue No.2 Whether the plaintiff is entitled for the relief of permanent prohibitory injunc