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2018 Supreme(MP) 700
IN THE HIGH COURT OF MADHYA PRADESH
S.C. Sharma, J.
Mishrilal Through Legal Heirs v. Samarthmal and others
Second Appeal No. 94 of 2007 (I); Decided on 6.9.2018*
C.L. Yadav with S.S. Thakur for appellant; D.S. Kale for respondents.
Headnote:Limitation Act, 1963 -- Art. 65 -- Civil P.C., 1908 -- S. 100 -- agreement in respect of sale of suit property -- terms and conditions of agreement violated -- legal notice on behalf of owner of suit property served on appellant/plaintiff terminating agreement -- appellant filed suit for injunction -- counter claim preferred by owner of property claiming possession of suit property -- both suits dismissed -- first appellate Court held that owner of property entitled for possession of suit property -- appellant challenged in second appeal -- appellant/plaintiff did not file suit for specific performance of contract -- first appellate Court was justified in allowing counter claim with aid of Art. 65 of Limitation Act -- no interference in second appeal. 2004 (2) MPLJ 259 (SC), (1996) 2 SCC 770, AIR 1987 SC 930 and (1996) 1 SCC 639 followed. 1992 (II) MPJR 281 relied on. [Paras 10 to 13
ifjlhek vf/kfu;e] 1963 & vuqPNsn 65 & flfoy ÁfØ;k lafgrk] 1908 & /kkjk 100 & okn laifÙk ds foØ; ds laca/k esa djkj & djkj ds fuca/ku rFkk 'krksZ dk vfrØe.k & okn lifÙk ds Lokeh dh vksj ls djkj dk lekiu djrs gq, vihykFkhZ@oknh dks fof/kd lwpuk dh rkehy & vihykFkhZ us O;kns'k ds fy, okn Qkby fd;k & okn laifRr ds dCts dh ek¡x djrs gq, laifRr ds Lokeh us Áfrnkok ÁLrqr fd;k & nksuksa okn [kkfjt & ÁFke vihy U;k;ky; us vfHkfu/kkZfjr fd;k fd laifÙk dk Lokeh okn laifRr ds dCts dk gdnkj gS & vihykFkhZ us f}rh; vihy esa vk{ksfir fd;k & vihykFkhZ@oknh us lafonk ds fofufnZ"V ikyu ds fy, okn Qkby ugha fd;k & ÁFke vihy U;k;ky; }kjk ifjlhek vf/kfu;e ds vuqPNsn 65 dh lgk;rk ls Áfrnkok eatwj fd;k tkuk U;k;laxr Fkk & f}rh; vihy esa gLr{ksi ughaA 2004 ¼2½ ,e ih ,y ts 259 ¼mPpre U;k;ky;½] ¼1996½ 2 ,l lh lh 770] , vkb vkj 1987 ,l lh 930 rFkk ¼1996½ 1 ,l lh lh 639 vuqlfjrA 1992 ¼2½ ,e ih ts vkj 281 voyafcrA ¼iSjk 10 ls 13½
1. The present second appeal is arising out of the judgment dated 5.4.2005 passed by the Civil Judge, Class-I Kukshi in Civil Suit No. 44A/2000, by which the suit as well as the counter claim has been dismissed.
2. The undisputed facts of the case reveal that one Narayan was the owner of the suit property and an agreement took place in respect of sale of suit property on 13.1.1978 and it was an oral agreement. The suit property is a house. Thereafter, the agreement was reduced in writing on 8.4.1978. As the terms and conditions of the agreement were violated, a legal notice (Exhibit-P-2) on behalf of Narayan to Mishrilal, the present appellant/plaintiff, was served terminating the agreement.
Mishrilal preferred a civil suit praying for injunction in the matter and a counter claim was preferred by Narayan, the owner of the property, claiming possession of the suit property. The suit as well counter claim both were dismissed and an appeal was preferred by Narayan against dismissal of the counter claim, as he was claiming possession of the suit property.
3. The undisputed facts also reveal that Narayan was the titleholder of the property and now the legal heirs of Narayan are on record. The appellate Court vide judgment and decree dated 11.12.2006 has allowed the appeal and has held that Narayan is entitled for possession of the suit property.
4. Learned senior counsel for the appellant has argued before this Court that the appellate Court has erred in law and facts in holding that Article 65 of the Limitation Act, 1963 is attracted, whereas in the present case, Article 66 is attracted. His contention is that the notice terminating the agreement (Exhibit-P-2) was issued on 19.6.1981. He has further argued that the counter claim was filed on 5.12.2000 i.e. after expiry of of 12 years, and therefore, in light of Article 66 of the Limitation Act, 1963, the counter claim was rightly dismissed and the appellate Court could not have allowed the counter claim taking into account Article 65 of the Limitation Act, 1963.
This Court while admitting the present Second Appeal has framed the following substantial question of law :
“Whether the lower appellate Court was justified in allowing in allowing the counter claim preferred by the respondent with aid of Article 66 of the Indian Limitation Act ?”
Learned counsel for the parties have fairly stated before this Court that there is a typographical error in the substantial question of law and in place of Article 66, Article 65 should be substituted.
Resultantly, the following substantial question of law has to be answered by this Court :
“Whether the lower appellate Court was justified in allowing in allowing the counter claim preferred by the respondent with aid of Article 65 of the Indian Limitation Act ?”
5. In the present case, as stated earlier, the respondents are the titleholder of the property and there is no dispute about it. Articles 65 and 66 of the schedule appended to the Limitation Act, 1963 reads as under :
65.
For possession of immovable property or any interest therein based on title.
Twelve years
When the possession of the defendant becomes adverse to the plaintiff.
Explanation - for the purposes of this article
(a) Where the suit is by a remainder-man, a reversionary (other than a landlord); or a devisee the possession of the defendant shall be deemed to become adverse only when the estate of the remainder man, reversionary or devisee, as the case may be falls into possession.
(b) Where the suit is by a Hindu or Muslim entitled to the possession of immovable property on the death of a Hindu or Muslim female the possession of the defendant shall be deemed to become adverse only when the female dies.
(c) Where the suit is by a purchaser at a sale in execution of a decree when the judgment-debto
