IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 746 OF 2005 1. Shri Mohamed Saleh Ghulamali ) Shattari (since deceased) ) 1/1. Smt. Zulekha Mohamed Saleh ) Shattari, adult, Occup: Household ) 1/2. Shri Mohamed Quasim Mohamed ) Saleh Shattari, adult, Occ: Service) 1/3. Smt. Anwar Mohamed Saleh ) Shattari, adult, Occp: Service ) 1/4. Shri Zahoor Ahmed Mohamed ) Saleh Shattari, adult, Occ: Business) 1/5. Miss. Afroz Mohamed Saleh ) Shattarir, adult, Occp: Student ) 1/6. Smt. Rashida Mohamed Saleh ) Shattari, adult, Occp: Service ) ...Appellants ) (Orig. Defendants all Nos.1/1 to 1/6 reside at Pali, ) Nos.1/1, 1/2, 1/5, 1/6, Vadavali, Near Arun Rice Mill, ) 1/7, 1/8) respectively. Taluka Vasai, Dist. Thane, ) Pin – 401 201. ) Versus 1. Shri Kazi Ebrahim Jamaluddin ) Arai, adult, Occupation: Retired ) residing at Pali, Vadavali, Taluka ) Vasai, Dist. Thane. Presently residing ) at A3/3, Satya Darshan Malapa ) Dongri Road, Andheri (East), ) Mumbai 400 093. ) - 2 - 2. Bilquees Aziz Siddqui, Adult ) Occupation: Service, working at ) Punjab National Bank, Regional ) Officer, Ashram Road, ) Ahmedabad. ) 3. Mumtaz Abubaker Mulla, ) adult, Occupation: Service, residing ) at Mallika Cottage, Pelhar, NH-8, ) Taluka Vasai, Dist. Thane presently ) residing at Dubai, Shaikh Rashid ) Colony, Satwa, Dubai. ) ) 4. Munawwar Mohamed Saleh ) ..Respondents Shattari, adult, Occp: service, ) (Respondent No.1 was address: not yet known ) Original Plaintiff and ) Respondents Nos.2 to 4 ) are original Defendant ) Nos. 1/3, 1/4, 1/9 ) respectively). Mr. P.N. Karlekar, Advocate for Appellants. Mr. G.S. Godbole i/b. Mr. Nitin Mulye and Pallavi Dabholkar for Respondent No.1. CORAM: A. S. OKA, J. Dated: February 29, 2008. JUDGMENT : 1. I have heard the submissions of the learned Counsel appearing for the parties on various dates fixed in the Second - 3 - Appeal. With a view to appreciate the detailed submissions made by the learned Counsel appearing for the parties, it is necessary to refer the facts of the case in brief. 2. The Second Appeal has been preferred by the Defendant Nos. 1/1, 1/2, 1/5, 1/6, 1/7 and 1/8 (legal representatives of the Original Defendant). The Respondent No.1 in the Second Appeal is the original Plaintiff and the Respondent Nos.2 to 4 are the other defendants. For the sake of convenience, the parties are hereinafter referred to with reference to their status in the Trial Court. The suit relates to a property bearing Survey No.20 (Part) admeasuring Hectare/Are 0-55-39 situated at Vadavali, Taluka Vasai District – Thane. The Appellants have referred to the suit filed by the Original Defendant and his brothers being Regular Civil Suit No.346 of 1938 against the plaintiff herein and others. In the said suit, the original defendant in the present suit and others were claiming the declaration of ownership and recovery of possession - 4 - and other reliefs. The said suit was decided on 30/6/1942. In the said suit, it was held that the plaintiffs and the Defendant No.11 therein were the owners of the plots coloured in red and blue as shown on the map annexed to the plaint and trees standing thereon as also the structures standing on the plot coloured blue. The Plaintiffs and the defendant No.11 were held entitled to get possession of the plot coloured by red as shown in the map annexed to the plaint. Thus, by the decree passed in the said earlier suit, the plaintiffs therein were held to be owners of two plots coloured in red and blue in respect of which a decree of perpetual injunction was granted in favour of the said plaintiffs. The decree for possession was passed in favour of the plaintiffs in the said suit in respect of the plot coloured in red. The decision of the Trial Court in the said suit has been affirmed in appeal. It must be stated that the earlier suit also related to the same property bearing Survey No.20, the total area of which was 5 acres and 33 ½ gunthas. The area of the plots marked by blue and red colour was 14 gunthas and 7 annas. - 5 - The decree passed in the said suit was affirmed in Appeal by the District Court. 3. In so far as rest of the property forming part of the Survey No.20 is concerned, in the earlier suit, the case made out by the plaintiffs therein was not accepted. In the present suit, a case is made out by the plaintiffs herein that save and except the portion marked by blue and red colours in the map annexed to the earlier suit, the present defendant and his brothers cannot claim any right title and interest in respect of any other portion of Survey No.20. It must be noted that the plaintiffs (i.e. the defendant and his brothers in present suit) in the earlier suit were declared owners of plots coloured by red and blue colours by reason of adverse possession. In the present suit subject matter of the Second Appeal, the plaintiff claimed injunction restraining the defendant from interfering with the possession over the suit property having an area of 0-55-39 bearing the same Survey No.20. The defendant filed written statement raising various contentions. The main contention was that the defendant is in adverse possession of a portion of land - 6 - admeasuring 27 ½ gunthas situated on the southern side of the Papdi - Naigaon Road. The contention of the defendant is that he was in possession of the said area of 27 ½ gunthas over and above the area which is declared to be in possession of the defendant and his family members in the decree passed in Suit No.346 of 1938. It is specifically contended by the defendant that he is in possession of the said area of 27 ½ gunthas through his family members from the year 1938 and continues to be in possession on the date of filing of the written statement without any objection from the plaintiff. It is contended that the plaintiff is fully aware of the possession of the defendant over the said area of 27 ½ gunthas atleast from the year 1956. The other contention raised by the defendant is that no cause of action had arisen in favour of the plaintiff on 3rd July 1989. It was contended that the plaintiff was not in possession of the suit land on the date of the filing of the suit and therefore, the suit for injunction was not maintainable. - 7 - 4. The Trial Court framed various issues. Issue No.2 was in respect of the possession of the plaintiff on the date of filing of the suit referable to the lawful title. The said issue was answered in favour of the plaintiff. The Trial Court decreed the suit by granting perpetual injunction. An appeal was preferred by the defendant to the District Court. The finding on issue of possession was confirmed by the Appellate Court. The Appellate Court considered the plea of adverse possession of the defendant and negatived the same. Thus, the Appellate Court confirmed the decree for perpetual injunction passed by the Trial Court. 5. The first submission of the learned Counsel appearing for the appellants (Legal Representatives of the original defendant) is that the defendant had perfected his title by adverse possession. It was submitted that though a clear case was made out in the written statement that the defendant has perfected the title by adverse possession over the area of 27 ½ gunthas, the Trial Court did not - 8 - frame any issue on this aspect. He invited my attention to the specific plea taken in the written statement as well as to the oral evidence of the plaintiff and the defendant. He submitted that the evidence of the plaintiff shows that he had the knowledge of the possession of the defendant over the area of 27 ½ gunthas atleast from the year 1956. He submitted that the evidence of the plaintiff shows that at least from the year 1956 he was fully conscious of the fact that the defendant was in possession. The second submission is that though in paragraph 3 of the written statement a specific contention was raised that the suit was barred by limitation, the Trial Court has not framed any issue on the said contention and has not dealt with the said contention. He submitted that in the Memorandum of Appeal filed before the District Court a specific ground was taken on the issue of limitation. But the Appellate Court has not at all dealt with the issue of limitation. He placed reliance on various decisions of the Apex Court as well as this Court and submitted that courts below were under an obligation to determine - 9 - the issue of bar of limitation in view of the mandate of section 3 of the Limitation Act, 1963. 6. The submission of the learned Advocate for the respondent – original plaintiff is that there are concurrent findings of fact recorded by the courts below holding that the original defendant has failed to establish his plea of adverse possession. His submission is that issue of limitation does not arise in the case as the Plaintiff has established his possession on the date of institution of the suit. His submission is that in any event, issue of limitation is a mixed question of law and fact and the same was not agitated by the defendant before the courts below and the same cannot be allowed to be urged for the first time in the Second Appeal. By way of reply, the learned counsel for the appellants submits that as the defendant is in possession at least from the year 1956 to the knowledge of the original plaintiff, the suit filed in the year 1989 was certainly barred by limitation. - 10 - 7. I have carefully considered submissions. It is not in dispute that Regular Civil Suit No. 346/1938 related to the same Survey No.20. The defendant herein was a party – plaintiff in the earlier suit. In fact, the defendant was the original plaintiff No.6 in the said suit. The present plaintiff was one of the defendants in the earlier suit. As pointed out earlier, in the said earlier suit, it was held that plaintiffs in the said suit had perfected their title to the two plots coloured in red and blue with the trees as also structures standing thereon as shown in the map annexed to the plaint. In the said suit it was held that the plaintiffs therein were in possession of the plot marked by blue colour. The court passed a decree for possession in respect of the plot marked in red colour in favour of the plaintiffs in the said suit. The said decree passed has been confirmed by the District Court and it is recorded that area of the two plots marked in blue and red colours taken together was 14 gunthas and 7 annas. In respect of rest of the area of Survey No.20, the case of the plaintiffs in the earlier suit was not accepted. - 11 - 8. It will be necessary to refer to the specific stand taken by the defendant in the written statement filed in the present suit. In para 11, the defendant has contented that - “This defendant says that the allegation of the plaintiff that the defendant has no right, title and interest in the suit land or in any portion thereof is thus totally false, frivolous and malafide and in fact to the knowledge of the plaintiff this defendant is in adverse possession of the said portion of the land which is within the compound and in excess of what is declared by the Court in Suit No.346 of 1938, totally admeasuring 27 ½ gunthas to the South of the Papdi-Naigaon Road, bearing Survey No.20, Hissa No.8 admeasuring 23 ½ gunthas and 4 gunthas of land bearing Survey No.20, Hissa No.12, the possession of the defendant through his family being since earlier to 1938 and continuing till this day of the year 1989 without hindrance, obstruction, objection, of whatsoever kind of the Plaintiff or of anyone claiming through him, to the knowledge of the plaintiff at least since 1956. The allegation of the plaintiff made in para No.1 of the plaint further to those referred to herein above, that this defendant is trying to disturb the possession of the plaintiff is totally false, in as much as the possession of the said land not being with the Plaintiff, the question of disturbing the possession of the plaintiff does not arise at all.” - 12 - Thus, in short, the case made out by the defendant is that his family was in possession of area of 27 ½ gunthas over and above the area of survey No.20 in respect of which declaration was granted in his favour in earlier Suit No.346 of 1938. In the cross examination, a suggestion was given to the Plaintiff herein that the defendant continued to be in possession of the entire land even after the decision in Regular Civil Suit No.346 of 1938. A suggestion was given to the plaintiff that whenever he attempted to enter into the suit property from 1956 onwards, he was abused. The plaintiff denied the correctness of the said suggestion 9. It is necessary to refer to the findings recorded by the Courts below. The Appellate Court rightly noted that the very fact that the defendant was claiming adverse possession shows that the defendant is accepting the title of the plaintiff to the suit property. The Appellate Court also held that there was a heavy burden on defendant to prove the alleged hostile possession of the defendant over the suit property and that the possession was hostile to the - 13 - knowledge of the plaintiff. The Appellate Court held that the evidence of the defendant was insufficient to constitute adverse possession. The Appellate Court on the basis of the documentary evidence on record found that after the decree was passed in the earlier suit, the plaintiff had sold some portion of the said land to one Dr. Raut and one Mr. Jayaswal. The Appellate Court observed that if the case of the defendant was that after passing of the decree in the earlier suit, his family continued to be in possession of the entire land bearing Survey No.20, the plaintiff could not have sold the portions of the property to the aforesaid two persons. The Courts below on the basis of the evidence on record have held that the plaintiff handed over the possession of portions of Survey No.20 to Dr. Raut and Mr. Jayaswal. The Trial Court in its judgment dealt with the specific case made out by the defendant and held that : “...... It is contention of defendant that in spite of decision of previous suit, even thereafter he remained in possession even after 1944. However, possession except the - 14 - portion shown by red and blue colour in map Exh.48 of Defendant is not accepted in previous suit. It is held that rest of the portion is in possession of Sattari family, the maternal family of the plaintiff' s mother and in this circumstances when defendant claimed that he became owner by adverse possession of the rest of the property the exact incidence, month, must be explained by the defendant but no such evidence is placed on record and in view of the possession is previous suit, it is not possible to accept that since 1944 defendant were in possession in rest of the portion as pleaded and argued by defendants. Further the admission in the cross examination that defendant made compound to area in their possession, portion shown in Exh. 48 in the year 1970 or 72 itself shows that defendant bounded his owns property and remained in possession of that such portion only. ........” 10. As pointed earlier, the Regular Civil Suit No. 346 of 1938 related to the Survey No.20. In the said suit, the case of the defendant (Plaintiff No.6 therein) and his brothers of adverse possession was accepted only to the extent of plots having total area of 14 gunthas and 7 annas marked by blue and red colours on the map annexed to the plaint. It was accepted that the plaintiffs in - 15 - the said suit including the defendant herein had perfected their title by adverse possession over the said area of 14 gunthas and 7 annas. The finding of the Trial Court in the present suit is that the defendant has not produced evidence to show as to how the defendant was in possession of any area of Survey No.20 over and above the area in respect of which a declaration was granted in his favour in the earlier suit. The decree passed in the earlier suit was confirmed by the Appellate Court on 14th November 1944. At least as of that day, it cannot be accepted that the defendant was in possession of any area within Survey No.20 in excess of the area in respect of which declaration of ownership by adverse possession was granted in favour of the defendant and his brothers. Therefore, it was for the defendant to lead evidence to show as to how he obtained the possession of any area of Survey No.20 over and above the area in respect of which a declaration was granted in his favour in the earlier suit. As pointed out earlier, contention in the written statement is that the defendant continued to be in - 16 - possession from the year 1938. In the light of the decree passed in the earlier suit, the Courts below have rightly negatived the case made out by the defendant as regards possession of the area over and above the area in respect of which a declaration was granted in favour of the defendant in the said earlier suit. The Appeal against decree passed in earlier suit was decided in November 1944. Therefore, as of that day the defendant herein could not be in possession of more area than the plots in respect of which he was held to be in adverse possession. As pointed earlier, the ownership of the plaintiff is not disputed as the specific plea of the defendant is of adverse possession. There is evidence of overt acts committed by the plaintiff of selling the portions of land bearing Survey No.20 to Dr. Raut and Mr. Jayaswal. Therefore, Courts below had accepted the case made out that the plaintiff was in possession of the suit property subject matter of the present suit on the date of institution of the suit. Once title of the plaintiff is admitted, a decree for perpetual injunction must follow. - 17 - 11. Detailed submissions have been made by the learned Counsel for the Appellant on the plea of bar of limitation. Once it is accepted that the plaintiff continued to be in possession on the date of institution of suit as owner thereof, it is very difficult to understand as to how the plea of limitation survives. It is not case of the defendant that he tried to obstruct the possession of the plaintiff at any time three years prior to the institution of the suit. In fact, plea of limitation has been set up by the defendant on the ground that right from 1938 onwards the plaintiff is not in possession of the suit property. The said contention has been negatived by both Courts below on the basis of the evidence on record. It is not a case where the defendant has come out with the case that on a particular day he obstructed the possession of the defendant and the suit is filed after the lapse of the three years from the said date. In fact, in a suit for perpetual injunction for protection of possession over immovable property, a separate cause of action arises for filing a suit on the basis of every attempt by a defendant of obstruction to the possession of the plaintiff. Therefore, once the finding of the - 18 - Trial Court is accepted that the plaintiff was in possession of the suit property on the date of institution of the suit, the issue of limitation will not arise. 12. Nevertheless, I have considered the submissions made on this aspect by the learned counsel for the appellant. It is true that the plea of bar of limitation was raised in the written statement which was filed on 6th November 1989. The Trial Court decreed the suit on 30th July 1998. It is not the case of the appellant that any application was made by the appellant-defendant before the Trial Court for framing an issue of limitation. The judgment of the Trial Court shows that the issue of limitation was not agitated by the defendant. It is not the case made out in the Memorandum of appeal filed before the District Court that the issue of limitation was either agitated before the Trial Court or that an application was made before the Trial Court for framing an issue of limitation. 13. The contention of bar of limitation is certainly raised in the Memorandum of Appeal before the District Court. Perusal of - 19 - the judgment shows that the plea of bar of limitation was not agitated by the appellant before the District Court. It is not the case made out in the Second Appeal that submissions were made before the 1st Appellate Court on the issue of limitation and that the said submissions were not considered. It must be borne in mind that an issue of bar of limitation in this case is certainly a mixed question of law and facts. It is always an obligation of the Trial Court to peruse the averments made in the plaint and to ascertain whether on the plain reading of the averments, bar of limitation is attracted. This is the obligation of the Trial Court under section 3 of the Limitation Act, 1963. In the present case, it is obvious that on the plain reading of the averments made in the plaint, the bar of limitations is not at all attracted. 14. The learned Counsel appearing for the Appellant relied upon a decision of learned Single Judge in the case of “ Ajab Enterprises Vs. Jayant Vegoiles and Chemicals Pvt. Ltd.,” (AIR 1991 Bombay 35) which holds that there cannot be a waiver of - 20 - plea of limitation or an estoppel against plea of limitation. There cannot be any dispute as regards the legal proposition laid down in the said decision. The question in this appeal is that whether the appellant can be permitted to raise a mixed question of law and fact of bar of limitation for the first time in the Second Appeal. 15. In the case of Chandrashekhar Shankarrao Kulkarni Vs. Rahul Shikshan Prasarak Mandal Sansar Nagar, the learned Single Judge of this Hon'ble Court dealt with a case where the issue of limitation was not framed by the Trial Court and no application was made by the defendant for re-casting of the issues. It was a case where the ground of bar of limitation was raised in the Memorandum of Appeal before the first Appellate Court and no point for determination was framed by the first Appellate Court on this aspect. Before the learned Single Judge, plea of bar of limitation was argued by the appellant-defendant in the Second Appeal. Learned Single Judge held thus : - 21 - “ The question of limitation is a mixed question of law and facts. Party is required to lay foundation in its pleadings if issue is not settled by the Court, at the first instance, party raising such plea is expected to seek recast of the issue. If