IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD SATURDAY, THE TWENTY NINTH DAY OF JANUARY TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No.166 of 2000 BETWEEN Gangineni Jayaramulu. …APPELLANT AND Gangineni Venkataratnam. …RESPONDENT Counsel for the Appellant: MR. M. PRASAD RAO Counsel for the Respondent: MR. P. SRIDHAR RAO The Court made the following: - JUDGMENT: The substantial question of law that arises in this appeal is as to whether the suit filed by the appellant for recovery of his share (1/3rd) of mesne profits for the period 1985, 1986 and 1987 is tenable as the present suit was filed on 23.09.1991. Though the trial Court agreed with the appellant/plaintiff, the lower appellate Court dismissed the suit as barred by limitation in view of Article 51 of the Limitation Act. 2. In this appeal, the learned counsel has taken the Court through the findings rendered by the trial Court on merits, which are in favour of the appellant and consequently, the decree granted to him. Learned counsel also contended that the defendant never raised the plea of limitation in the written statement and there was no issue as such and the parties did not focus their attention to the said aspect of limitation in the suit. He also contended that the findings of the lower appellate Court that the suit is bad for non-joinder for not impleading the father as a party, who has 1/3rd share in the mesne profits, is clearly vitiated, as the suit itself was with respect to the appellant’s 1/3rd share recoverable from the defendant and father, as such, was not a necessary party. 3. Though the trial Court rendered findings in favour of the appellant/plaintiff, it cannot be disputed that the suit seeks mesne profits for the specific years i.e. 1985, 1986 and 1987 and not with respect to future mesne profits, as the tobacco barn, allegedly, was removed by the defendant and was non-existent on the site after 1987. The lower appellate Court has relied on Article 51 of the Limitation Act to find that the suit is barred by limitation. However, with regard to the contention of the learned counsel for the appellant that the said issue of limitation was never raised by the defendant; I am afraid the said contention is also not available to the appellant in view of Section 3 of the Limitation Act, which mandates that the Court dealing with the suit is bound to dismiss the suit, if it is barred by limitation, notwithstanding the defendant not raising such a ground in defence. The suit having been filed in 1991, therefore, could not have been sustained under Article 51 of the Act to seek mesne profits for any of the years 1985 to 1987 and as such, the finding of the lower appellate Court dismissing the suit on that ground is clearly justified and cannot be interfered with. Accordingly, the substantial question of law is answered against the appellant. The appeal is accordingly dismissed. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J January 29, 2011 DSK