1 S.A.NO.162.89 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 162 OF 1989 1] Ramkrishna Rajaram Raut 2] Vishwanath Rajram Raut 3] Yadav Rajram Raut All R/o Kanadkhed, Taluka Hingoli District Parbhani, Now District Hingoli. APPELLANTS V E R S U S 1] Narayan S/o Limbaji Raut,Since deceased through his L.Rs. 1­a] Smt. Alkabai (widow) w/o Narayan Raut, Age 70 years Occupation Household R/o Pain Kali Ta. Washim District Washim 1­b] Sow Gangabai Ramchandra Thombe (Daughter) Age 50 years Occupation Agriculture, R/o Jabbrum Thombe Post Pardi Asra, Ta. and District Washim. 1­c] Mahadeo S/o Narayan Raut (Son) Age 40 years occupation Agriculture R/o Pain Kali, Ta and District Washim. 1­d] Gajanan S/o Narayan Raut ( Son )Age 35 years occupation Agriculture, R/o Washim. RESPONDENTS ... Mr.A.M.Dabir,Advocate for Appellants Mr.A.R.Kale,Advocate holding for Mr.S.V.Natu,Advocate for respondents ... 2 S.A.NO.162.89 CORAM : A.V. NIRGUDE, J. DATED : 28th JANUARY, 2010 ORAL JUDGMENT : 1] When the appeal was admitted in 1989, no substantial question of law was formulated. Having heard the learned Advocates appearing for the parties and having gone through the record following substantial question would arise for my consideration­ (1) Whether the suit of the respondent/ plaintiff is barred by limitation ? 2] The respondent/plaintiff filed the suit. He said that he is owner and possessor of the suit land (Agricultural land situated at village Kanadkhed). He said that the suit land was his ancestral property and during his father's life time his father alienated it in favour of the appellant's father in the year 1966, without having legal necessity. He said further that though property was sold in 1966, his father remained in possession till his death and thereafter he cultivated the same till 1980. He said in the month of May 1980, appellants who are brothers inter­se dispossessed him forcibly. So, he brought this suit in the year 1985 for declaration that the he was owner of the land and that the alienation made by his father in 1966 in favour of the appellant's father was not binding 3 S.A.NO.162.89 upon him and for possession. 3] The Trial Court initially held that the respondent did not prove that sale effected by his father was not binding on him. The Trial Court also held that the respondent could not prove his possession till 1980. In other words, the Trial Court held that in 1966 possession of the suit land was delivered to the appellant's father and since then father of the appellants and appellants are in possession. In view of these two findings the Trial Court dismissed the suit. 4] The matter went to appeal court and the learned Additional District Judge Hingoli held that the respondent not only proved that the suit property was his ancestral property but could also prove that the alienation of the suit property was not for legal necessity. So, It was held that he was entitled to get the possession back. 5] Although, the appellants in the pleadings clearly stated that they are in possession of the suit land since 1966, both the Courts below did not frame necessary issue of limitation. Section 3 of the Limitation Act reads as under­ 3.Bar of Limitation :(1) Subject to the provisions contained in sections 4 to 24 (inclusive) every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a 4 S.A.NO.162.89 defence. (2) for the purposes of this Act­ (a) A suit is instituted­ (i) in an ordinary case when the plaint is presented to the proper pauper is made; and (ii) in the case of a pauper, when his application for leave to sue as a pauper is made; and (iii)in the case of a claim against a company which is being would up by the Court, whn the claimant first sends in his claim to the official liquidator; (b) any claim by way of a set off, or a counter claim, shall be treated as a separate suit and shall be deemed to have been instituted. (i) in the case of set off, on the same date as the suit in which the set off is pleaded; (ii)in the case of a counter claim, on the date on which the counter claim is made in Court; (c) an application by notice of motion in a High Court is made when the application is presented to the proper officer of that Court. 6] It is clear from the above provision that, even though defendant fails to take up specific defence based on limitation, it is duty of the Court to frame such issue, if it is found necessary. The question is whether such issue ought to have been framed at the trial stage or at 5 S.A.NO.162.89 least at first appeal stage? As said above, the facts are so blatant that any one, who would read the plaint, would question the maintainability of such suit for want of limitation. As said above, way back in the year 1966, admittedly the respondent's father alienated the suit land to the father of the appellants, it was through a registered sale deed. It has come on record that it is case of the respondent/plaintiff that 10 to 12 years prior to filing of the suit his father died. The suit is filed in the year 1985, so approximately the death of respondent's father took place some time between 1973 to 1975. The age of the plaintiff on the date of filing of suit is shown to be 50 years. So, in the year 1966 his age was approximately 31 years. During his majority, if his father effected alienation of the joint family property, which included his undivided share and if such undivided share had come to his share on account of his birth in the family, it was for him to challenge the alienation by filing the suit for declaration that the alienation was bad and not binding on him. 7] The question is what would be the limitation for such suit? The Article 58 of the Limitation Act governs such a suit and provides three years period of limitation from the moment the right to sue first accrues. As said above, the right to sue accrued to the respondent on the same date when his father effected alienation. The respondent can 6 S.A.NO.162.89 not plead ignorance of the knowledge of the sale deed because, as said above, the transaction was through a registered sale deed. It has also come on record that pursuant to the transaction a mutation was taken in the revenue record and as said above, the appellant's father came in possession of the suit land. The suit is certainly not filed within three years, so suit is hopelessly time barred. The appeal, therefore, deserve to be allowed. The appeal is allowed. The Judgment of First Appellate Court is set aside and suit of the respondent stands dismissed with costs. Sd/­ (A.V. NIRGUDE, J.) MTK/ ok