1980 Supreme(MP) 401

R. C. Shrivastava, J.
Raghuwardayal v. Tulsiram.
S. A. No. 102 of 1971 (G); Decided on 12-11-1980.

Headnote:(1) Civil P. C., 1908-5. 100 -- finding as to possession -- is a finding of fact -- not liable to be interfered with however gross, erroneous or inexcusable the error may be.

        (2) Civil P. C., 1908 -- O. 22 Rr. 22 and 33-- plea of limitation raised in written statement -- cross objection need not filed -- Court is not debarred to consider such plea.

        (3) Limitation Act, 1963 -- Art. 59 -- suit when barred -- suit not filed within 3 years from passing the decree sought to be set aside -- suit is barred.

        (4) Limitation Act 1963 -- Art. 65 -- suit not filed within 12 years -- possession open and adverse -- suit barred by limitation.

        The appellant instituted the suit, out of which this second appeal has arisen against the respondent Tulsiram and Dwarka Prasad for setting aside the decree passed by the Revenue Court and for possession of the field. His case was that the field in question belonged to him; that be was in possession thereof; that the decree was a collusive one and that he was forcibly dispossessed of the field in question by the respondent, Tulsiram on7 -8-1963. The allegations were denied and the suit was resisted by the respondent Tulsiram on several grounds. It was also pleaded by him that the field in question was in his possession for more than 12 years preceding the date of institution of the suit and the suit was also barred by time. The trial Court negatived the appellants case, upheld the contentions of the respondent and, accordingly dismissed the suit. First appeal preferred by the appellant was dismissed by the Additional District Judge, Bhind on 14-1-1971. Being aggrieved thereby, he filed this second appeal.

        Held : It seems to be quite clear that, unless and until the decree passed by the Revenue Court is set aside, the appellant cannot obtain possession of the field in question. For the purpose of limitation the claim for setting aside that decree is governed by Article 59 of the Limitation Act, 1963. That Article prescribes three years as the period of limitati09 commencing from the date on which the facts entitling the plaintiff to have the decree set aside first become known to him. In paragraph No.3 of the plaint, it was pleaded that it was on 6-9-1954 that the appellant learnt about the collusive decree. Thus, the alleged collusion became known to him on 6-9-1954, That being so the period of limitation for bringing a suit for setting aside the decree started running from that date. Even if it is assumed that the period of limitation started running from 2-8-1955. i. e., the date of dismissal of appeal by the Collector or from the date of dismissal of appeal by the commissioner, the suit is not shown to have been instituted within three years from any of those dates. Thus, it follows that the claim for setting aside the decree of the revenue Court was clearly barred by time.

        The learned counsel for appellant has urged that the respondent should have filed a cross-objection with regard to the above mentioned ,question of limitation and that, in the absence of cross-objection the said point cannot be considered by this Court. The contention has no force. The plea of limitation was raised by the respondent in his written-statement. The trial Court held that the respondent was in possession of the field in question for more than 12 years preceding the date of institution of the suit, That finding was confirmed by the first appellate Court. The lower appellate Court specifically concluded that the suit was, for that reason, barred by time. It is therefore, for the appellant to meet that finding which has been given against him and in favour of the respondents. It follows that it was not necessary for the respondent to file cross-objection. In any case, by virtue of the provisions contained in Order 41 rule 33 of the Code of Civil Procedure the Court is Dot debarred from considering the question of limitation even in the absence of cross-appeal or cross-objection.

        Even if it is assumed that the claim for setting aside the decree of the revenue Court is within time, the appellant has ulterly failed to make out any case for setting aside the decree. He failed to prove any collusion of fraud obtaining that relief. The particulars of c011usion or fraud were neither specifically pleaded nor proved.

        The claim for possession is also otherwise barred by time. Both the lower Courts have concurrently held that the respondent has been in possession of the field in question for more than 12 years preceding the date of institution of the suit, That is a finding of fact based on appreciation of the evidence on record. The finding is not such as cannot be arrived at by any reasonable person on the basis of the evidence on record. That being so, though challenged, it cannot be interfered with in second appeal. In the case of Kshitish Chandra Bose v. Commissioner of Ranchi, AIR 1981 Supreme Court 707, it was pointed out by their Lordships that a finding of fact cannot be interfered with in second appeal however gross, erroneous or inexcusable the error way seem to be. The respondents possession was obviously open and adverse to the appellant. If the claim for possession is based on title, it would be governed by Article 65 of the Limitation Act, 1963 which prescribes 12 years as the period of limitation from the date when the defendants possession becomes adverse to the plaintiff. It follows that the claim for possession based on title, even if considered independently of the claim for setting aside the decree is barred by time under Article 65 ibid. AIR 1981 SC 707, relied on. Appeal dismissed.