IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A. No. 431 of 2001 Date of decision: 21.10.2011 Bhaga …Appellant. Versus State of H.P. and others ..Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the appellant : Mr. Raman Sethi, Advocate. For the respondents : Mr. J.S.Rana, Assistant Advocate General, for respondent No.1. None for respondents No. 2 & 3. Kuldip Singh , J. ( Oral ) The plaintiff has come in appeal against judgment, decree dated 16.5.2001 passed by learned Additional District Judge, Solan, Camp Court at Nalagarh in Civil Appeal No. 8-NL/13 of 2001 affirming judgment, decree dated 5.10.2000 passed by learned Sub Judge, Nalagarh in Civil Suit No. 102/1 of 1996 dismissing the suit of the appellant. 2. The facts, in brief, are that the appellant had filed a suit for declaration that order of cancellation passed by Commissioner dated 17.12.1983 in cases No. 1/83, 3/83 and 44/83 Ex.D-19 is illegal, null and void with consequential relief of permanent injunction restraining 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 the respondent No.1 from dispossessing the appellant or interfering with the possession of the appellant over the suit land more specifically described in the plaint. 3. The further case of the appellant is that he was allotted land under the H.P. Village Common Land Vesting and Utilisation Act, 1974. The appellant was allotted land comprised in khasra No. 577/1, Pritam brother of appellant was allotted land comprised in khasra No. 139/134 and Janki, mother of the appellant was allotted land comprised in Khasra No. 138/134/173. The requisite amount was deposited. The mother of the appellant died during the year 1980 and Pritam brother of the appellant died in the year 1987. Now, the appellant alongwith respondents No. 2 and 3 have become owners and appellant is in possession of the land measuring 4 bighas 3 biswas. The Additional District Magistrate, Solan exercising the powers of Commissioner has cancelled the allotments which order is without jurisdiction. The appellant is in possession of the suit land. 4. The suit was opposed by the respondent No.1 by filing written statement, preliminary objections of want of notice, maintainability, locus-standi, lack of cause of action, improper valuation and jurisdiction have been taken. It has been stated that appellant, his mother Janki and brother Pritam in connivance with revenue staff got prepared the allotment cases in their favour. The appellant, his mother and brother were residing together and, therefore, they were not entitled for allotment of the land. The allotment has been rightly cancelled. 3 5. The replication was filed. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff is owner in possession of the suit land ? OPP 2. Whether order dated 17.12.1983 passed by the ADM, Solan exercising the powers of Commissioner Cancellation of allotment in favour of plaintiff is illegal, void and without jurisdiction, as alleged? OPP 3. Whether the entries got written in favour of the defendant are illegal, null and void? OPD 4. Whether the plaintiff is entitled to relief of injunction as prayed for? OPD 5. Whether this suit is not maintainable in the present form? OPD 6. Whether the plaintiff has no locus standi to file the present suit? OPD 7. Whether the plaintiff has no cause of action to file the present suit? OPD 8. Whether this Court has no jurisdiction to try the present suit? OPD 9. Whether this suit has not been properly valued for the purpose of court fee and jurisdiction? OPD 10. Relief. The issues No. 1, 3, 4, 8 and 9 were answered in negative, issues No. 2, 5, 6 and 7 in affirmative and the suit was dismissed on 5.10.2000. In appeal, the learned Additional District Judge on 16.5.2001 affirmed judgment, decree dated 5.10.2000, hence second appeal which has been admitted on the following substantial question of law:- “Whether the limitation for filing a suit challenging a void order arises only after the rights of a party are infringed or from the date of the passing of the order?” 4 6. I have heard Mr.Raman Sethi, Advocate, learned counsel for the appellant and Mr. J.S.Rana, learned Assistant Advocate General for respondent No.1 and have also gone through the record. It has been submitted by the learned counsel for the appellant that the two Courts below have misconstrued and misinterpreted the material on record and have erred in returning the finding that the suit is not within limitation. He has submitted that there is no issue of limitation, but still the two Courts below have decided the point of limitation against the appellant. It has been submitted that the two Courts below have recorded the finding that the order dated 17.12.1983 passed by the Additional District Magistrate, Solan exercising the powers of the Commissioner is without jurisdiction. He has prayed for acceptance of the appeal and decreeing the suit of the appellant as prayed. 7. The learned Assistant Advocate General has supported the impugned judgment and decree. He has submitted that on the point of limitation, the appeal is covered by the judgment dated 11.8.2011 passed by this Court in RSA No. 151 of 2001. He has submitted that even if the Courts below have not framed the issue of limitation, still under Section 3 of the Limitation Act, 1963 the court is bound to go into the question of limitation. The suit is barred by limitation. 8. The appellant in the suit has assailed the order dated 17.12.1983 passed by Additional District Magistrate, Solan exercising the powers of Commissioner. The suit is for declaration and permanent prohibitory injunction. In RSA No. 151 of 2001 the order dated 25.7.1985 passed by Additional District Magistrate, Solan exercising the powers of Commissioner was in question. In that case, the suit was 5 filed on 19.11.1997. It has not been denied on either side that the allotment of land in that case and in the present case was made to the parties under the same provision and under similar circumstance. In the present case the suit has been filed on 11.4.1996 challenging the order dated 17.12.1983 Ex.D-19. This Court in RSA No. 151 of 2001 after noticing State of Punjab and others vs. Gurdev Singh and Ashok Kumar AIR 1992 SC 111 has held as follows:- “ The issue No. 2 in the present case is to the effect whether order dated 25.07.1985 is wrong, illegal, null and void. The appellant filed the suit for declaration that he is owner in possession of the suit land and the order dated 25.07.1985 is wrong, illegal and void. Article 58 provides limitation of three years to obtain any other declaration. The limitation starts when the right to sue first accrues. Article 113 provides limitation of three years for any suit for which no period of limitation is provided and the limitation starts when the right to sue accrues. Article 100 provides limitation of one year to set aside an act or order by an Officer of the government in his official capacity. The limitation starts from the date of order of the Officer. Thus, taken from any angle in view of State of Punjab and others v. Gurdev Singh and Ashok Kumar (supra) the suit of the appellant for declaring order dated 25.07.1985 null and void filed on 19.11.1997 after more than 12 years is not within limitation. In these circumstances, it cannot be said that the suit filed by the appellant was within limitation.” 9. The allotment of land in the case involved in RSA No. 151 of 2001 and in the present case was made to the parties under the same provision and under similar circumstances. In RSA No. 151 of 2001 the suit was filed after 12 years of cancellation of allotment. In the present case also, the suit was filed after 12 years of cancellation of allotment by Additional District Magistrate exercising the powers of Commissioner. The learned counsel for the appellant has submitted 6 that no issue of limitation was struck by the trial Court and, therefore, the suit could not have been dismissed on the point of limitation, moreso when there was no objection of the respondent No.1 in the written statement. The Section 3 of the Limitation Act, 1963 provides that 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 defence. The appellant himself has challenged the order dated 17.12.1983 in the suit which was filed on 11.4.1996. Therefore, on the basis of the averments made in the plaint itself and in view of Section 3 of the Limitation Act, the suit of the appellant ex-facie is time barred even though the State has not taken the plea of limitation by way of defence. The Courts below were within their jurisdiction to consider the point of limitation in the suit while deciding the suit even though the issue of limitation was not framed. On the point of limitation the case is squarely covered by judgment dated 11.8.2011 passed in RSA No. 151 of 2001 of this Court. The suit filed by the appellant is time barred and no fault can be found with the judgment and decree passed by the Courts below on the point of limitation. The substantial question of law is decided against the appellant. There is no merit in the appeal which is liable to be dismissed. 10. In view of above discussion, the appeal fails and is accordingly dismissed with no order as to costs. October 21, 2011. ( Kuldip Singh ), (GR) Judge.