HIGH COURT OF UTTARAKHAND AT NAINITAL Second Appeal No. 119 of 2007 Ved Prakash …. Appellant/Plaintiff .. Versus Sri Mangay Ram & others … Respondents/Defendants Mr. Amish Tiwari, Advocate for the appellant. Mr. Narendra Bali, Advocate for the respondents. 7th September, 2009 Hon’ble Sudhanshu Dhulia, J. The appeal was admitted on the following substantial questions of law : “A. Whether the lower appellate court is justified in dismissing the suit of the appellant, holding that the property in question is situated within the jurisdiction of court at Muzaffar Nagar while the agreement tot sale specifically mentioned the prescription of the disputed property i.e. chak no. 240 area 4397 acre situated in Chandrapuri Bangar, Tehsil and District Haridwar? B. Whether the lower appellate court is justified in holding that the trial court has no jurisdiction to decide the controversy and the suit is barred by jurisdiction which is not pleaded by either of the parties before the trial court? C. Whether the lower appellate court is justified in dismissing the suit of the appellant recording the finding that the suit is barred by Art. 54 of the Limitation Act and held illegally that the limitation started to run from 29.1.1992 (i.e. date of executing the agreement) and also without reversing the specific finding to the said effect recorded by trial court?” 2 Heard learned counsels for the parties on all the substantial questions of law. The facts of this case, in brief, are as follows : The plaintiff had filed a suit being suit no. 63 of 1993 for specific performance against the defendants/respondents claiming that an agreement for sale was executed between the parties on 29.1.1992 regarding an immovable property which is situated at Chandrapuri Bangar, Tehsil and District Haridwar. The said agreement for sale was also registered. As per the agreement for sale, the sale deed was to be executed within a period of six years. However, as the defendants refused to execute the sale deed the plaintiff was constrained to file a suit for specific performance. In the suit, inter alia, the following issues were framed : “1. Whether the defendant no. 1 Bhagwana (deceased) had executed an agreement to sale on 29.1.1992 regarding the disputed property and had taken Rs. 18,000/- as advance at the time of agreement to sale and 2. Whether the plaintiff was always ready and willing to execute the sale deed?” After perusing all the documents and taking into consideration the evidence of the witnesses produced by the plaintiff as well as the defendants, the trial court decided both the issues in favour of the plaintiff and the suit of the plaintiff was decreed. Aggrieved, the defendants filed the first appeal being Civil Appeal No. 49 of 2006 before the District Judge, Haridwar. However, the first appellate court instead of framing all the relevant issues and giving a finding on them allowed the first appeal firstly on the ground of jurisdiction and secondly on the ground of limitation. As far as ground of jurisdiction was concerned, the first 3 appellate court came to the conclusion that the disputed property was situated in Muzaffar Nagar and the agreement for sale was executed in Muzaffar Nagar and hence the Civil Judge (Sr. Division), Haridwar had no jurisdiction to entertain the said suit. Moreover, on the principle of limitation, according to the first appellate court, agreement for sale was executed on 21.1.1992 and as per Section 54 of the Limitation Act, limitation for a suit being 3 years, such a suit can only be filed by 29.1.1995 and since the suit was filed beyond that period it is barred by limitation. The manner and the way in which the first appellate court has proceeded in the matter is alien to all principles to civil jurisprudence. The point of jurisdiction has not been properly and explicitly raised in the written statement of the defendant. Moreover such the issue of jurisdiction was also not framed by the trial court and there has been no finding on this aspect. The issue of jurisdiction on which the first appeal of the defendant has been allowed firstly should not have been raised at the appellate stage, moreover the findings arrived at on the point of jurisdiction are also incorrect findings. The property in dispute is not situated in Muzaffar Nagar but in district Haridwar which is a part of Uttarakhand presently. Merely because the agreement for sale was registered in Muzaffar Nagar, the cause of action will not arise in the court of Muzaffar Nagar. The cause of action will be determined by Section 16 of C.P.C. which reads as follows : “16. Suits to be instituted where subject- matter situate. – Subject to the pecuniary or other limitations prescribed by any law, suits- (a) for the recovery of immovable property with or without rent or profits, (b) for the partition of immovable property, 4 (c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property, (d) for the determination of any other right to or interest in immovable property, (e) for compensation for wrong to immovable property, (f) for the recovery of movable property actually under distraint or attachment, shall be instituted in the Court within the local limits of whose jurisdiction the property is situate :” Since the immovable property was situated in Haridwar, this suit could only have been instituted at the civil court, Haridwar which was rightly instituted and, therefore, the finding given by the first appellate court on this point is wholly perverse. Regarding the issue of limitation as well, as per the agreement for sale the sale deed was to be executed within 6 years starting from 21.1.1992. Hence the suit could have been instituted within three years calculated from 21.1.1998 i.e. the limitation of the suit survives on 21.1.2001. The finding of the first appellate court, therefore, on this aspect as well is wrong. On the substantial questions of law being framed by this Court, the learned counsel for the defendants/respondents has not been able to satisfy that such substantial questions of law as formulated by this Court do not arise in this case. On the other hand, after hearing the learned counsel for the appellant as well as for the respondents/defendants this Court is of a considered view that the findings of the first appellate court on the point of jurisdiction as well as on the point of limitation are wholly incorrect. This Court is satisfied 5 that only the civil court at Haridwar had jurisdiction in the matter and the suit was filed within time. Nothing has been said by the learned District Judge on the merit of the case, therefore, as to the findings given by the trial court on the issues framed by it, a finality has been reached. On consideration of the aforesaid facts, this second appeal is liable to be allowed and is hereby allowed. Judgment and decree of the first appellate court dated 9.8.2007 is hereby set aside. Judgment and decree passed by the trial court dated 10.2.2003 is upheld. No order as to costs. (Sudhanshu Dhulia, J.) 7.9.2009 Avneet