Saturday, 22 December 2018

Whether defendant is bound to prove plea of limitation if he has raised it ?

Next submission on the issue of limitation raised by Mr. Patwardhan is that in view of the positive assertion by defendant No. 3 in affidavit filed before this Court that claims made by the plaintiff are barred by law of limitation, defendant No. 3 was bound to lead oral evidence to prove such positive assertion made in the affidavit and not having led any oral evidence, this Court shall draw adverse inference against the third defendant. In my view, the initial onus to prove that suit was filed within time was on the plaintiff and thus, plaintiff was required to lead his evidence first on the issue of limitation. Since plaintiff has failed to discharge that initial onus cast on him to prove that suit filed by the plaintiff was within time, onus of proof is not shifted to defendant No. 3.

IN THE HIGH COURT OF BOMBAY

Suit No. 808 of 2011

Decided On: 18.10.2013

 Naresh Lachmandas Aswani  Vs. Haridas and Ors.

Hon'ble Judges/Coram:
R.D. Dhanuka, J.

Citation: 2016(4) ALLMR 286


1. By an order dated 26th July, 2012 passed by this court, two issues were framed under section 9A of the Code of Civil Procedure, 1908 in Notice of Motion No. 1157 of 2011. In view of the issues framed under section 9A of the Code of Civil Procedure, 1908 to be tried as jurisdictional issue, both parties were given opportunity to lead oral evidence on the jurisdictional issues framed by this court. Learned counsel have addressed on those issues which are answered by this court in the later part of the judgment. Plaintiff is the brother of defendant no. 1. defendant Nos. 2 and 3 are the companies incorporated under the provisions of the Companies Act, 1956. According to the plaintiff, defendant nos. 2 and 3 have been impleaded as party defendants as they were unlawfully claiming their purported respective rights and/or claims in the suit property consisting of immoveable property situated in Mumbai and described in Ex. A to A-2 of the plaint.

2. The plaintiff and the 1st defendants are the sons of Mr. Lachmandas S. Aswani who died intestate at Mumbai on 18th October, 1985 leaving behind him the plaintiff and defendant no. 1, wife of the said deceased and three married daughters. According to the plaintiff, the suit property was the property of the said deceased Mr. Lachmandas at the time of his death on 18th October, 1985 and the same then devolved upon his legal heirs including plaintiff and defendant no. 1. Dispute arose between the legal heirs after demise of the said deceased in respect of the suit property which dispute was referred to arbitration. On 15th April, 1986 the learned arbitrator made a consent award which award was filed in this court on 9th September, 1991 and consent decree was passed in terms of the said consent award.

3. It is the case of the plaintiff that till 1962, one Mr. Joseph Henry Pereira was the owner of the suit property which devolved upon his son Mr. Noel Richard Pereira upon the death of the said Mr. Joseph Henry Pereira in the year 1962. In the month of November 1963, the said Mr. Noel Pereira granted three plots of land forming the suit property together with the structures standing thereon by executing three lease deeds all dated 27th November, 1963 to Mr. Lachmandas S. Aswani for 98 years.

4. It is the case of the plaintiff that in the year 2004, the plaintiff saw a board of Dheeraj Constructions put up on the suit property. It is the case of the plaintiff that the said leases were not terminated by any of the parties and were subsisting and in force and were binding upon the defendants. It is the case of the plaintiff that in the month of September, 2004, plaintiff learnt that the name of his father was not to be found recorded in the property card pertaining to the suit property and the name of one Mr. Yusuf Ahmed was recorded as the owner in the property card in respect of the suit property. Plaintiff thereafter made enquiries with the office of the Sub-Registrar of assurances by writing letters, sending notices in the year 2004 and 2005 and obtained copies of some of the documents executed between Mr. Noel Pereira and Mr. Yusuf Ahmed in respect of the suit property.

5. The plaintiff thereafter made an application to enter his name as lessee in the property card which request was refused by the City Survey Office. Plaintiff filed an appeal before the Superintendent of Land Records being Appeal (58 of 2007). Superintendent of Land Records entered the name of the deceased as lessee of the suit property. Copy of the said order was received by the plaintiff on 31st May, 2008. Defendant no. 3 filed appeal (264 of 2009) before the Superintendent of Land Records and impugned the order dated 31st May, 2008. Defendant no. 3 relied upon a Deed of Conveyance dated 17th January, 2007 executed by Mr. Yusuf Ahmed in favour of defendant no. 3 conveying the reversionary rights of the said deceased Mr. Lachmandas S. Aswani in favour of defendant no. 3. The defendant no. 3 succeeded in Appeal (264 of 2009) and got its name entered in the property card on 8th December, 2009. Order dated 31st May, 2008 passed by the City Survey Office came to be set aside. Appeal filed by the plaintiff against the order of Superintendent of Land Records came to be dismissed by the Deputy Director of Land Records. Plaintiff challenged the said order by filing revision application before the learned Revenue Minister.

6. In the year 2007, plaintiff filed three suits bearing nos. 362, 363 and 364 of 2007 in Bombay City Civil Court at Dindoshi for cancellation of Letter of Intent dated 12th October, 2003 issued by the Secretary, Slum Rehabilitation and Development Authority (hereinafter referred to as 'SRA') for a direction to the Additional Collector, Mumbai and for order and direction that Mr. Neol Pereira, Mr. Yusuf Ahmed, M/s. Housing Development and Improvement Pvt. Ltd. be directed to remove themselves from the suit property. All these suits are pending before the Bombay City Civil Court.

7. It is the case of the plaintiff that in the month of December, 2009, plaintiff came to know that in the month of July 2006 defendant no. 2 had filed a suit being suit no. 2000 of 2006 against defendant no. 3 herein in this court. In the month of January, 2010, plaintiff took out Chamber Summons (61 of 2010) in the said suit for his impleadment.

8. It is the case of the plaintiff that the plaintiff is entitled to 1/2 share in the right, title and interest of the deceased Mr. Lachmandas S. Aswani in the suit property and is joint owner of the suit property with defendant no. 1. On 10th March, 2011, plaintiff filed this suit inter-alia praying for a declaration that leases granted under three lease deeds are in force subsisting and binding upon the defendants and for a declaration that the plaintiff is the owner of and is otherwise entitled to one half share in the right, title and interest of the said deceased in the suit property and is entitled to partition of the said property by metes and bounds and to be put in separate possession, for an order that defendant no. 1 to render true and correct accounts of his acts and actions in respect of the suit property. Plaintiff also seeks an order and direction against defendants to deliver up the Deed of Assignment dated 28th January, 2005, Conveyance Deed dated 27th January, 1992 executed by and between Mr. Noel Pereira and Mr. Yusuf Ahmed and Conveyance Deed dated 27th January, 2007 executed by and between Mr. Yusuf Ahmed and defendant no. 3 to this court and also cancellation of those documents for an order and direction against defendant nos. 2 and 3 to handover peaceful and vacant possession of the suit property.

9. Defendant no. 2 has filed written statement in the said suit, defendant no. 3 filed a Notice of Motion (1157 of 2011) in this suit for deciding the issue of bar of inherent jurisdiction of this court under section 42 of the Maharashtra Slum Area (Improvement, Clearance and Redevelopment) Act, 1971 as also issue of limitation as jurisdictional issues under section 9A of the Code of Civil Procedure. By an order dated 26th July, 2012 this court framed following issues which are answered in this order and judgment:-


10. The plaintiff through his learned counsel stated that the oral evidence was required in the matter. This court accordingly directed the plaintiff to file affidavit in examination in chief with regard to the said two issues and also to file affidavit of documents if any required.

11. Pursuant to the said order passed by this court, plaintiff filed affidavit in lieu of examination in chief dated 19th November, 2012 and also filed additional affidavit dated 1st July, 2013 alongwith four documents. By an order dated 26th July, 2013 passed by this court, this court marked those three documents as exhibits subject to the proof of contents with the clarification that the defendants would be entitled to cross examine the witness to disprove the contents thereof and marked one document as exhibit subject to the proof of contents. The witness Mrs. Jyotika Aswani is wife of the plaintiff and had claimed to be constituted attorney of the plaintiff. The said witness was cross examined by the learned senior counsel appearing for the defendant no. 3. Other defendants did not appear at the time of recording evidence or at the stage of arguments. Defendant no. 3 did not examine any witness and made a statement that it did not propose to examine any witness.

Submissions of Mr. Patwardhan, learned counsel for the plaintiff:-

12. It is submitted that under section 9A of the Code of Civil Procedure, 1908, court has authority to frame issue of jurisdiction only. It is submitted that issue of limitation raised by the third defendant is not a jurisdictional issue and cannot be framed under section 9A and thus cannot be tried as preliminary issue. It is submitted that issue of jurisdiction has to be decided on the basis of the averments made in the plaint. All disputes of civil nature are to be heard by Civil Court. It is submitted that in the plaint of this proceedings, there is no reference to any scheme framed by Slum Redevelopment Authority (SRA). Suit is for declaration that lease deeds being in force and subsisting and for declaration of ownership of the right, title and interest of the plaintiff in the suit property. It is submitted that suit is for partition and share of the plaintiff in those properties which rights cannot be whittled away by SRA.

13. Mr. Patwardhan submits that under the provisions of Maharashtra Slum Area (Improvement, Clearance and Redevelopment) Act, 1971 (hereinafter referred to as the 'Slum Act') issue regarding partition and share in the property of the deceased father of plaintiff and defendant no. 1 cannot be decided by authority or tribunal under section 42 of the Slum Act. It is submitted that the authority and tribunal has no jurisdiction to decide such partition dispute. Such reliefs can be granted only by a civil court and not by authority and/or tribunal and only this court has jurisdiction to entertain, try and dispose of the present suit filed by the plaintiff.

14. On issue of limitation raised by the third defendant, it is submitted by Mr. Patwardhan, learned counsel appearing for the plaintiff that defendant no. 3 has made positive assertion in affidavit in support of Notice of Motion that claims made by the plaintiff are barred by law of limitation. Defendant no. 3 thus was bound to lead oral evidence to prove such positive assertion made in the affidavit in support of Notice of Motion. Since no oral evidence is laid by defendant no. 3, this court shall draw adverse inference against the third defendant and shall reject the plea of limitation raised by the defendants. It is submitted that this court has recorded that oral evidence will have to be laid which order has not been challenged by the third defendant. Third defendant has to prove its case on its own merit and cannot rely upon the evidence of the witness examined by the plaintiff, defendant no. 3 could lead oral evidence after closer of evidence of the plaintiff. Since no evidence has been laid by the 3rd defendant, issue of limitation framed by this court has to be answered in favour of the plaintiff.

15. In support of his submission that adverse inference has to be drawn, Mr. Patwardhan, learned counsel placed reliance on the judgment of the Supreme Court in case of Gopal Krishnaji Ketkar vs. Mohamed Haji Latif and others reported in MANU/SC/0168/1969 : AIR 1968 SC 1413. Paragraph (5) of the said judgment reads thus:-

5. On behalf of the appellant reference was made to the Area Book, Ex. 66 of the year 1890. The entry shows the name of Laxmibai widow of Govind Gopal Ketkar under the heading" "

(name of the person). Exhibit 67 is the entry from the Phalani Book for the year 1897 and shows the land as "Kilvacha Dongar" and under the column "blekps ukao" is shown the name of Laxmibai widow of Govind Gopal. Exhibit 68 is of the same year from, the revision Phalani containing similar entry with the map attached. In Exhibit 70 the name of Laxmibai is shown as "Khatedar" for the year 1906. In the remarks column there is an entry "one built well, one pakka built masjid, one Dargah, one tomb. Exhibit 71 is an entry for the year 1915 from Akar Phod Patrak and in the column of "Kabiedar the name of Rukminibai Hari appears with regard to plot 134. Thereafter, in the record of rights for the year 1913) Ex. 76, the name of the predecessor of the appellant is shown. On the basis of these entries it was submitted by Mr. Gokhale that the ownership of the plot was with the appellant and not with the Dargah. But shore are important circumstances in this case which indicate that the appellant is not the owner of Survey plot No. 134. Exhibits 64 and 65 are significant in this connection. Exhibit 64 is an entry from the "Sud" in Marathi for the year 1858 in connection with Survey plot No. 134 (Revisional Survey Number). The original Survey number of this plot was 24 and it was known as "Kilyacha Dongar". The total area is shown to be 249 acres and 24 Gunthas. It is shown as 'Khalsa' land. Kharaba is shown as 89 acres 24 Gunthas and the balance of the area is shown as 160 acres. In the last column the name of the cultivator is not mentioned but it is shown as "Khapachi". It is significant that the name of the Ketkar family is absent from this record. No convincing reason was furnished on behalf of the appellant to show why his name was not entered in the "Sud". It is also important to notice that the appellant has furnished no documentary evidence to show how his family acquired title to the land from the earliest time; there is no sanad or grant produced by the appellant to show that he had acquired title to the land. It further appears that the appellant's family did not assert any title to the land at the time of the survey made in 1858; otherwise there is no reason why its name was not entered in the "Sud" of the year 1858. It is true that there are a number of entries subsequent to the years 1890 and 1897 in which the Ketkar family is shown as the "Khatedar" or the occupant but these entries are not of much significance since the Ketkar family was in the fiduciary position of a Manager of the Dargah and was lawfully in possession of Survey plot No. 134 in that capacity. There is also another important circumstance that the appellant has no lands of his own near plot No. 134 and the nearest lands he owns are in Bandhanwadi which are admittedly 3 1/2 to 4 miles away from the top of the hill. There is also the important admission made by the appellant in the course of his evidence that there are 2 or 3 tombs behind the Musaferkhana. He stated further that "there is no cemetery or burial ground in Survey No. 134". But this evidence is in direct conflict with the statement of the appellant in the previous case that "Round about the Dargah many people die every year.... Anyone that died there, whether Hindu, Muslim or Parsee if he has no heirs is buried there." He also conceded that there is one public tank known as "Chasmyachi Vihir" near the Dargah and there are 5 wells near the Dargah and five boundary 'Arenas' about one mile from the Dargah. Lastly, reference should be made to the important circumstance that the appellant has not produced the account of the Dargah income In the course of his evidence the appellant admitted that he was enjoying the income of plot No. 134 but he did not produce any accounts to substantiate his contention. He also admitted that "he had got record of the Dargah income and that account was kept separately". But the appellant has not produced either his own accounts or the account of the Dargah to show as to how the income from plot No. 134 was dealt with. Mr. Gokhale, however, argued that it was no part of the appellant's duty to produce the accounts unless he was called upon to do so and the onus we upon the respondents to prove the case and to show that the Dargah was the owner of plot No. 134. We are unable to accept this argument as correct. Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof. In Murugesam Pillai v. Gnana Sambandha Pandara Sannadhi, MANU/PR/0053/1916 : AIR 1917 PC 6 at p. 8 Lord Shaw observed as follows:

A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of he onus of proof, and failing, accordingly, to furnish to the Courts the best material for its decision With regard to third parties, this may be right enough-they have no responsibility for the conduct of the suit but with regard to the parties thee suit it is, in their Lordships' opinion, an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition.

This passage was cited with approval by this Court in a recent decision-Biltu Ram v. Jainandan Prasad. Civil Appeal No. 941 of 1965 D/- 15-4-1968 (SC). In that case, reliance was placed on behalf of the defendants upon the following passage from the decision of the Judicial Committee in Mt. Bilas Kunwar v. Desraj Ranjit Singh, at p. 206: at p. 98:

But it is open to a litigant to refrain from producing any documents that he considers irrelevant, if the other litigant is dissatisfied it is for him to apply for an affidavit of documents and he can obtain inspection and production of all that appears to him in such affidavit to be relevant and proper. If he fail, so to do, neither he nor the Court at his suggestion is entitled to draw any inference as to the contents of any such documents.

16. Mr. Patwardhan, placed reliance on the judgment of this court in case of Laxmibai Rauji since deceased and others vs. Khimji Palan, since deceased by his heirs and others reported in MANU/MH/0620/2000 : (2000) Vol. 102(3) Bom.LR 596 in support of his submission that the plaintiff cannot take advantage of the doctrine of onus of proof and in support of his submission that the defendant no. 3 cannot take advantage of doctrine of onus of proof and would have to prove the issue of limitation raised by the third defendant independently. Paragraph 10 of the said judgment reads thus:-

10. There cannot be any quarrel about the legal proposition canvassed by the learned counsel for the petitioners that the best available evidence should be placed before the Court. It is the contention of the learned counsel for the petitioners that though the petitioners have discharged their initial burden that the shop premises were closed from road-side and were not in use, the onus should shift to the defendant-tenant to show that the shop was actually in use. The principle of burden of proof is based on the rule i.e. incumbent probation qui dicit, non qui negate to mean that the burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it; for a negative is usually incapable of proof. In the present case, the plaintiffs came out with a specific pleading that on termination of the ration shop, the defendant-tenant closed the shop from front but used it for an illegal purpose i.e. for running a matka den. Unfortunately, the plaintiffs could not lead any evidence to show that the defendant-tenant was using the premises for illegal purpose as pleaded. The defendant-tenant has not only denied this fact but has in terms led evidence to show that he was running his business. It has further come on record that the defendant-tenant found that the ration shop was not profitable and he was not successful in carrying on with the grocery business and so he has changed his business to selling of medicine drugs in retail. To the action brought by the plaintiff-landlords that they are entitled to seek eviction of the defendant-tenant as contemplated under Section 13(1)(k) of the Bombay Rent Act, the plaintiffs ought to have discharged their burden as it is a settled principle of the Law of Evidence that if no evidence is given by the party on whom the burden is cast, the issue must be found against him. The facts and circumstances placed on record by the defendant-tenant clearly indicate that he has been successful in rebutting the prima facie case made out by the plaintiffs. Further on the principle enunciated in Section 114(g) of the Evidence Act, it can be said that the plaintiff cannot take advantage of the doctrine of onus of proof as it is a settled law that the plaintiff should stand on his own legs and merely because the defendant is unable to produce certain documents for which he has given a plausible explanation and even if this explanation is not accepted, still it does not dislodge the defendant-tenant as he has otherwise produced sufficient documents of the period in question to show that he was doing business in the premises and the premises were in use for the said purpose.
17. Mr. Patwardhan also placed reliance on the judgment of this court in case of Niwas Builders vs. Chanchalben Gandhi reported in MANU/MH/0957/2002 : (2003) 3 Mh.L.J. 312 in support of his submission that the third defendant is bound by its own pleadings and must fail or succeed on its own pleadings.

18. Mr. Patwardhan placed reliance on the judgment of the Supreme Court in case of the Rangammal vs. Kuppuswami and another reported in MANU/SC/0620/2011 : AIR 2011 SC 2344 in support of his submission that if order or proof is misplaced by the court, judgment of the Court is vitiated.

19. Mr. Patwardhan, learned counsel placed reliance on the judgment of the Supreme Court in case of the Alka Gupta vs. Narendra Kumar Gupta reported in MANU/SC/0793/2010 : (2010) 10 SCC 141 in support of his submission that a civil suit has to be decided after framing issues and trial permitting the parties to lead evidence on the issues, except in cases where the Code or any other law makes an exception or provides any exemption. It is submitted that there are no shortcuts in the trial of suits, unless they are provided by law. The defendants not having laid evidence on the issue of jurisdiction, defendants have not discharged the burden of proof which ought to have discharged by the defendants.

20. Mr. Patwardhan placed reliance on the judgment of this court in case of Quari Mohammed Zakir Hussain and others vs. Municipal Corporation of Greater Mumbai and others reported in MANU/MH/0858/2001 : 2002 (2) Bom.C.R. 98 in support of his submission that a Civil suit can always be maintained to question the order of a Tribunal created by a statute, even if its order is, expressly or by necessary implication, made final, if the said Tribunal abuses its power or does not act under the Act or in violation of its provisions. It is submitted that this suit is not barred. This court has jurisdiction to entertain, try and dispose of the suit. Reliance is placed on paragraphs 16 and 17 of the said judgment which reads thus:-

16. It is well settled that exclusion of the jurisdiction of the Civil Court is not to be readily inferred but such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if the jurisdiction it so excluded the Civil Courts have jurisdiction is examine into the issues where the provisions of the Act have not been complied with, or statutory Tribunal has not acted in conformity with the fundamental judicial procedure. On the other hand, a suit in a Civil Court can always be maintained to question the order of a Tribunal created by a statute, even if its order is, expressly or by necessary implication, made final, if the said Tribunal abuses its power or does not act under the Act but in violation of its provisions. In other words, if the suit proceeds on the premises that the offending act has been done not in good faith, then there is no bar for such a suit. This legal position is enunciated in catena of decisions including MANU/PR/0022/1940, State of Kerala v. N. Ramaswamy Iyer & Sons, MANU/SC/0220/1966 : [1966]61 ITR 187(SC), Firm Seth Radhakishan (deceased) represented by Harikishan v. Administrative Municipal Committee, Ludhiana, MANU/SC/0187/1963 : [1964]2 SCR 273, as well as decision of Kerala High Court in Secretary, K.S.E.B., Trivandrum v. M. Sainaba, MANU/KE/0009/1990 : AIR 1990 Ker 50.

17. Understood thus, what is to be seen is whether the allegations in the plaint are of such nature that the plaintiff complaints that the offending action is mala fide and in transgression of the authority. If such are the allegations, then the suit would obviously not be barred in terms of the bar of jurisdiction provided for under section 42 of the Act 1971 for, such a suit would be outside the purview of the said provision because the offending act is alleged to have been committed not in good faith or intended to be done under the said Act, but for extraneous reasons.

21. Mr. Patwardhan also placed reliance on the judgment passed by High Power Committee in Application No. 506 of 2011 filed by Starlight Hospitality Pvt. Ltd. and another vs. the plaintiff herein, authority under Slums Act, defendant no. 1 and defendant no. 3. It is submitted that in the said proceedings, scheme under Slums Act is in question.

22. In so far as issue of limitation raised by the defendant no. 3, learned counsel for the plaintiff submits that Article 65 would be applicable in the facts of this case. It is submitted that according to Article 65 of Schedule I of the Limitation Act, period of limitation is 12 years from the date when the possession of the defendants becomes adverse to the plaintiff. It is submitted that the cause of action for filing a suit for possession of immoveable property or any interest therein based on title would commence when the plaintiffs acquire the knowledge of any threat of dispossession, defendant no. 1 was given power to adopt testamentary proceedings. Only in the year 2004, plaintiff saw the board of Dheeraj Constructions on the plot in question. Cause of action thus arose in the year 2004 when there was a threat of his right in the property, plaintiff was not party to any alleged transfer between the original owner and defendant no. 3.

23. Mr. Patwardhan placed reliance on the affidavit in lieu of examination in chief and also additional affidavit. It is submitted that it has been deposed by the witness examined by the plaintiff that only in and around in or about 2004, that the board of Dheeraj Construction was seen to have been put up in the suit property by some third party not known to the plaintiff. It has been deposed that only in the month of December, 2009, plaintiff came to know for the first time about suit no. 2000 of 2006. It is submitted that only in the month of December 2009, plaintiff become aware for the first time of the claim or rights and/or possession of the suit property made by the third defendant being adverse to the rights of the plaintiff herein. It is submitted that suit thus filed on 10th January, 2011 is within time and not barred by law of limitation.

24. Mr. Patwardhan, learned counsel submits that there were no questions put to the witness examined by the plaintiff that plaintiff had knowledge of the board in the name of defendant No. 3 prior to 2004. Plaintiff was not party to any of the documents. This Court has jurisdiction to entertain and decide each and every prayer of the plaint.

25. Mr. Subramanian, learned senior counsel appearing on behalf of defendant No. 3 on the other hand, invited my attention to the prayers (a) to (h) of the plaint and submits that if prayer (g) and (h) are barred by law of limitation, prayer (i) cannot be granted. Possession was not handed over under the lease. There was a deed of conveyance duly registered and entered into in the year 1992 which would be a deemed notice to the plaintiff for filing appropriate proceedings challenging the transaction. On 27th January 1997, conveyance was registered which would be also a deemed notice to the plaintiff. Reliance is placed on Art. 58 of Schedule-I of the Limitation Act in support of the submission that prayers for declaration would be governed by Art. 58. Period of limitation of three years would commence when right to sue first accrues. It is stated that in the year 1984, father of the plaintiff and first defendant expired. Right to obtain partition accrued in the year 1984. Plaintiff has claimed share on the basis of inheritance on the death of father. Consent award was made on 15th April 1986. Dispute had already arisen in the year 1985 between the family members of the deceased father of plaintiff and defendant No. 1. On the basis of consent award dated 15th April 1986, decree was passed in terms of consent arbitral award. It is submitted that in view of the decree passed by this Court in terms of the award, second suit for partition would not lie. Learned senior counsel submits that in any event, decree also would become time barred in the year 2003. It is submitted that prayer for declaration thus become time barred on the basis of documents referred in and annexed to the plaint. It is submitted that there is no explanation given by the plaintiff in the plaint on the issue of limitation. Even if date of knowledge is considered as 2004 and copies of the relevant documents are obtained by the plaintiff in the year 2005, three years expired in 2007-08. Learned senior counsel placed reliance on Art. 59 of Schedule-I to the Limitation Act in support of his submission that for cancellation or setting aside an instrument or decree, period of limitation would be three years which time would begin to run when the facts entitling the plaintiff to have decree or instrument cancelled or set aside or the contract rescinded first became known to him. It is submitted that suit is thus barred even under Art. 59 of Schedule-I of the Limitation Act 1963. Learned senior counsel submits that even according to the plaintiff, in September 2004, knowledge was derived of the transaction by Yusuf Ahmed. Three years expired in the year 2007-08. Prayers (a) and (b) which are for declaration are ex-facie, thus barred by law of limitation.

26. Learned senior counsel submits that in the arbitral award which is based on consent of parties, title to property has been given up by the plaintiff. Under Art. 106 of Schedule-I to the Limitation Act, twelve years time is prescribed for claiming a share in the legacy or for a share of residue bequeathed by a testator or for a distributive share of the property of an intestate against an executor or an administrator or some other person legally charged with the duty of distributing the estate, which period would begun when the legacy or share becomes payable or deliverable. It is submitted that the period of limitation would began in the year 1991 when the decree was passed in terms of the award. Even this prayer for distribution of legacy would be thus ex-facie barred in view of Art. 106 of the Limitation Act. Reliance is placed on Art. 110 of Schedule-I of Limitation Act which provides for twelve years of limitation for filing a suit by a person excluded from a joint family property to enforce a right to share therein which period would begin when the exclusion becomes known the plaintiff. Learned senior counsel thus, submits that limitation under Art. 110 commenced when decree in terms of award was passed in the year 1991. Even according to plaintiff, share of the plaintiff was excluded in the arbitral award. Learned senior counsel submits that once time begins to run to institute a suit, it does not stop. Reliance is placed on Section 9 of the Limitation Act.

27. It is submitted by the learned senior counsel that possession was not given to the father of the plaintiff and defendant No. 1 under the lease dated 27th November 1963. No steps were taken by the father of the plaintiff and the first defendant to obtain possession during his life time.

28. My attention is invited to para 7 of affidavit of Mrs. Jyotika Naresh Aswani, wife of the plaintiff who was examined as a witness and who claimed to be Constituted Attorney of the plaintiff. It is submitted that in para 7 of the affidavit, reliance is placed by the plaintiff on Art. 65 of Schedule-I to Limitation Act 1963. The only evidence laid by the plaintiff on the issue of limitation is what is deposed in para 7 of the said affidavit which states that only in or about 2004, the board of one Dheeraj Builders was seen to have been put up on the suit property by some third parties not known to the plaintiff. It is stated that in or about December 2009, plaintiff came to know for the first time about the Suit No. 2000 of 2006 filed by defendant No. 2 against defendant No. 3 in this Court claiming rights and possession of the suit property. Plaintiff took out chamber summons for amendment in the said suit in the month of January 2010. It is stated in the affidavit that only in the month of December 2009, plaintiff became aware of the claims of the defendants made in respect of the suit property being adverse to the rights of the plaintiff.

29. Learned senior counsel invited my attention to the cross examination of the witness examined by the plaintiff in support of the submission that plaintiff could not discharge the initial burden to prove that claim was within time and not barred by law of limitation.

30. On the issue of limitation, Mr. Subramanian, learned senior counsel placed reliance on the Judgment of Division Bench of this Court in case of Royal Palms (India) Pvt. Ltd. & Ors. Vs. Bharat Shatilal Shah & Ors. Reported in MANU/MH/1839/2009 : 2009(2) Bom.C.R. 622 in support of his submission that issue of limitation is issue of jurisdiction and has to be tried as preliminary issue under Section 9A of the Code of Civil Procedure. Reliance is placed on para 4 of the said Judgment.

31. Mr. Subramanian also placed reliance on the Judgment of this Court in case of Chhabubhai Balkrishna Sutar & Anr. Vs. Panchan Ladha Savala & Ors. Reported in MANU/MH/0641/2010 : 2010 (112)(6) Bom. L.R. 2780 in support of his plea and more particularly on para 15 to 20, 23 and 24 of the said Judgment in support of his submission that suit filed by the plaintiff is barred by law of limitation.

32. Mr. Subramanian, learned senior counsel placed reliance on the Judgment of this Court delivered on 14th February 2012 in case of ITC Ltd. & Ors. Vs. Shri Sukhkarta Finance & Leasing Pvt. Ltd. in Suit No. 764 of 2002 and in particular para 32 in support of his submission that plaintiff has to prove that the suit is filed within time. It is submitted that plaintiff did not discharge the onus that suit was within time. It was not necessary for the third defendant to lead any oral evidence to prove that suit was not within time. No adverse inference thus, can be drawn by the Court against the third defendant for not leading oral evidence.

33. Mr. Subramanian placed reliance on the Judgment of this Court (R.D. Dhanuka, J.) delivered on 8th January 2013 in case of Zee Entertainment Enterprises Ltd. Vs. Klassic Studios & Films Pvt. Ltd., and in particular paras 20 and 22 in support of his submission that if a party who has been examined has admitted the correctness of the claims of other side, in cross examination, other side is not required to lead any oral evidence to prove his claim. Reliance is placed on para 20 and 22 of the said Judgment.

34. On the issue of jurisdiction of this Court to entertain the claims made in this suit or not, relying on Section 42 of Maharashtra Slum Areas (Improvement, Clearance & Redevelopment) Act, 1971, learned senior counsel submits that this Court cannot grant any injunction against the defendant from implementing the slum scheme. It is submitted that plaintiff has not challenged the notice issued by the Slum Authority as well as notification in the present suit. Prayer (d) is for partition. No such relief can be granted in view of Section 42 of the Slum Act and will be hit by the said section. Even appointment of Court Receiver will be hit by Section 42. Learned senior counsel placed reliance on the Judgment of Division Bench of this Court delivered on 23rd December 2011 in Appeal (L) No. 797 in case of Housing Development & Improvement India Pvt. Ltd. Vs. Narendra L. Aswani & Ors. And in particular para 4 and 5 in support of his submission that Section 42 specifically prohibits the Civil Courts from exercising any jurisdiction in respect of any matter which the administrator, Competent Authority or Tribunal is empowered by or under the said Act, to determine; no injunction can be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under the said Act. Learned senior counsel also placed reliance on an unreported Judgment of this Court dated 5th April 2011 in Notice of Motion in Suit (L) No. 813 of 2011 in case of Lokhandwala Infrastructure Pvt. Ltd. Vs. Dhobighat Compound Rahiwasi Seva Sangh and Ors. and in particular paras 8 & 9 in support of his submission that this Court has no jurisdiction to entertain the suit in view of Section 42 of the Slum Act in view of the implementation of slum scheme on the suit plot. It is submitted that the said judgment of learned single Judge delivered on 5th April 2011 is upheld by the Division Bench of this Court and also Supreme Court.

35. In his concluding argument, learned senior counsel submits as far as prayers (a), (b) and (c) are concerned, those prayers were given up by the plaintiff in the consent award and cannot be reagitated. Even otherwise those claims are time barred. In respect of prayer (d) which is for partition, it is submitted that the said prayer is by way of execution of part of award which is also barred by law of limitation in view of the decree in terms of the said award having been passed in the year 1991. Reliance is placed on the Judgment of Supreme Court reported in MANU/SC/0444/2001 : (2001) 7 SCC 573 in case of Hameed Joharan (dead) & Ors. Vs. Abdul Salam (dead) By Lrs. And Ors. in support of his submission that for execution of decree, limitation would commence from the date of decree. Para 11 of the said Judgment is relied upon. It is submitted that prayer (d) is also hit by Section 42 of the Slums Act. It is submitted that as far as prayer (e) and (f) are concerned, no action had been taken by the plaintiff. In any even, the said prayers are also barred by law of limitation. As far as prayer (g) and (h) are concerned, it is submitted that those prayers are hit by Art. 58 of schedule-I of Limitation Act. Prayer (i) is hit by Section 42 of the Slum Act and is also barred by limitation. It is submitted that since 1992, predecessor in title of defendant No. 3 came in possession of the suit property. Cause of action would thus commence from 1992 also. Since no action has been taken by the plaintiff to challenge the slum redevelopment scheme, any order passed by this Court would hamper the implementation of the scheme which would be hit by Section 42 of the Slum Act. Learned senior counsel distinguished the Judgment of this Court reported in 2002 (2) B.C.R. 19 and placed reliance on paras 8, 9, 16 & 17.

36. In rejoinder, Mr. Patwardhan learned counsel appearing for the plaintiff submits that in prayer (e) of the plaint, plaintiff has not claimed ownership rights in the suit property. Plaintiff has claimed share in the leasehold rights of the deceased father. Suit is by way of administrative suit. It is submitted that thus, suit is maintainable and there would be no bar under Section 42 of the Slums Act in entertaining this suit by this Court. It is submitted that the authorities relied upon by Mr. Subramanian are distinguishable in the facts of this case. It is submitted that if this court comes to a conclusion that division of suit property by meets and bounds is not possible, Court can take valuation of the suit property for the consideration and divide the amount amongst the legal heirs of the deceased. It is submitted that lease-hold rights can be partitioned, valued and divided. As far as other reliefs are concerned, it is submitted that they are consequential reliefs and are within the jurisdiction of this Court. It is submitted that reliefs against defendant Nos. 2 and 3 are also claimed in this suit with a view to prevent the multiplicity of suits and to make the decree effective. Learned counsel submits that witness examined by the plaintiff has discharged the burden that suit is within time and not barred by law of limitation by not only leading oral evidence but also documentary evidence. It is submitted that notice terminating the agreement was not against the third defendant. The third defendant was not a party to the said agreement. Other parties have not challenged the termination. Learned counsel submits that merely because execution proceedings are not filed, by the plaintiff, plaintiff cannot be prevented from filing a suit. It is submitted that threat to the rights of the plaintiff came to the knowledge of the plaintiff for the first time in the year 2004. Suit thus filed in the year 2011 is within time and not barred by law of limitation. It is submitted that further evidence can be laid on the issue of limitation at the stage of final hearing of the suit. Learned counsel thus submits that none of the claims are barred by limitation and this Court has jurisdiction to entertain, try and dispose of this suit.

Reasons & Conclusions:

37. Issue No. 1: Whether jurisdiction of this court is barred under Section 42 of Maharashtra Slum Areas (Improvement, Clearance & Redevelopment) Act, 1971?

It is the case of the third defendant that by notice dated 31st October 1977, Dy. Collector (E & C) and Competent Authority Andheri declared the suit property as slum under Section 4(1) of the Maharashtra Slum Areas (Improvement, Clearance & Redevelopment) Act, 1971 (hereinafter referred as the Slums Act for short). It was published in Government Gazette on 10th November 1977. The slum rehabilitation scheme proposed by the Pali Resident Co. operative Society (proposed) came to be approved. The said authority issued Letter of Intent dated 17th October 1984 in favour of the third defendant as owner/developer of the suit property under Regulation 33(10) and appendix IV of the Development Control Regulations and sanctioned the plan on 4th February 2004 for the purpose of slum rehabilitation and commencement certificate came to be issued on 30th June 2004 in pursuance of the said plans. It is the case of the 3rd defendant that third defendant started construction and have completed substantial work of rehabilitation building and part of other building. It is the case of the third defendant that the said slum rehabilitation scheme is being implemented on the suit property under the provisions of the said Slums Act to the knowledge of the plaintiff since 1984. The third defendant has thus raised an issue in the notice of motion filed by the plaintiff by filing affidavit in reply that in view of Section 42 of the said Act, this Court has no jurisdiction to entertain such suit which is in respect of the property on which slum rehabilitation scheme under the said Act is being implemented.

38. Mr. Patwardhan, learned counsel appearing on behalf of the plaintiff submits that neither any authority nor any tribunal constituted under the provisions of Slums Act have jurisdiction to grant any relief which is prayed by the plaintiff in this suit. It is submitted that thus, bar of jurisdiction under Section 42 of the Slums Act would not apply to this suit and this Court has exclusive jurisdiction to entertain, try and dispose of this suit.

39. Mr. Subramanian, learned senior counsel appearing on behalf of third defendant on the other hand submits that the reliefs prayed by the plaintiff for declaration of ownership in respect of the suit property, partition by meets and bounds and/or seeking possession from third defendant in respect of such property on which scheme under Slums Act is being implemented and prayer for appointment of Court Receiver and injunction are barred under Section 42 of the Slums Act. Learned senior counsel submits that witness examined by the plaintiff has admitted in her cross examination that the plaintiff was fully aware of such scheme being implemented on the suit property since 1984. Learned senior counsel placed reliance on an unreported Judgment of this Court in Notice of Motion in Suit (L) No. 813 of 2011 in case of Lokhandwala Infrastructure Pvt. Ltd. Vs. Dhobighat Compound Rahiwasi Seva Sangh and Others., in which this Court has held that if Slum Rehabilitation Authority is seized of the matter, it is for that authority to determine in what manner the scheme should be implemented so as to best protect the public interest involved in the rehabilitation of a censused slum. Paras 8 and 9 of the said Judgment read thus:

8. Section 42 has been amended so as to substitute the Slum Rehabilitation Authority instead and in place of an administrator. By the first part of Section 42 it has been provided that no civil court shall have jurisdiction in respect of any matter which the Slum Rehabilitation Authority is empowered by or under the Act to determine. By the second part no injunction can be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under the Act. Now the powers of the Slum Rehabilitation Authority are cast in broad terms. The authority is empowered to get a Slum Rehabilitation Scheme implemented and to do all such other acts and things as may be necessary for achieving the objects of the rehabilitation of slums. The purpose and object of the Act is to ensure the proper rehabilitation of slums. The land owning authority, be it the State Government or as in the present case the Municipal Corporation also has a vital stake in ensuring that the purpose and object for which the Scheme is to be implemented is duly fulfilled. The Slum Rehabilitation Authority has been vested with the jurisdiction and power to ensure the proper implementation of rehabilitation schemes and to do all other acts and things necessary for achieving the object of the rehabilitation of the slums.

9. The relief that has been sought in the Notice of Motion seeks in prayer clause (a) the appointment of the Court Receiver as Receiver with a further direction to permit the Plaintiff to carry the redevelopment. The second relief that is sought is an injunction restraining the implementation of the development agreement which has been entered into on 30 September 2009 with defendant No. 26 and from the carrying out of any construction activity on the land. The grant of any such relief will clearly impinge upon the powers which have been conferred upon the Slum Rehabilitation Authority. Having regard to the provisions enacted in the second part of Section 42, noted earlier, it would be inappropriate for the Court to grant an injunction in the terms as sought. The Slum Rehabilitation Authority is as a matter of fact seized with the matter and it is for the Authority to determine in what manner the scheme should be implemented so as to best protect the public interest involved in the rehabilitation of a censused slum. The title to the land on which the slum is situated vests in the Municipal Corporation. The dispute in a case such as the present is not one simpliciter between a vendor of land and a purchaser who claims specific performance. Neither the developer nor the proposed society of slum dwellers has any title to the land. The proposed society represents occupants of hutments some of whom are protected by the policy of government with reference to the cut off date of 1.1.1995. The state has a vital interest in the proper implementation of a Slum Rehabilitation Scheme, as does the land owning body the Municipal Corporation. The Slum Rehabilitation Authority is the custodian of public interest and is vested with wide statutory powers. A private contractual agreement between the developer and a proposed society of slum dwellers cannot foreclose the discharge of statutory functions by the Slum Rehabilitation Authority. The relief sought in the Motion precisely seeks to do that, which is impermissible in law. For these reasons, I am of the view that no case for the grant of ad interim relief is made out. Ad interim relief is accordingly refused. The Motion is made returnable on 13 June 2011.

40. Mr. Subramanian, learned senior counsel also placed reliance on the order passed by Division Bench of this Court on 23rd December 2011 in Appeal (L) No. 797 of 2011 in Notice of Motion No. 1157 of 2011 in Suit No. 808 of 2011 filed by the third defendant herein against the plaintiff and others arising out of the ad interim order granted by this Court in notice of motion filed by the plaintiff herein. One of the issue raised by the third defendant in the said appeal was that in view of Section 42 of the Slums Act, no such interim injunction can be granted by this Court. Division Bench of this Court, after considering Section 42 of the Slums Act has held that having regard to the provisions of Section 42 of the Slums Act, prohibiting any Court from granting an injunction in respect of slum rehabilitation scheme for which LOI was issued by the competent authority way back in October 2003 and in view of the admissions of the plaintiffs in their suit as well as affidavit in support of notice of motion about the year in which they got copies of the relevant documents and when they saw commencement of construction, no case had been made by the plaintiff for any ad-interim injunction in the suit. Division Bench of this Court accordingly allowed the said appeal and set aside the ad-interim injunction granted by the learned single Judge of this Court in favour of the plaintiff. Paras 4 & 5 of the said order read thus:

4. Mr. Subramanian, learned Counsel for the appellant/original defendant No. 3 submits that the land in question admeasuring 1810 sq. mtrs. was occupied by slum dwellers and the notification under the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 (Slums Act) was issued in the year 1978. The appellant was granted letter of intent on 17 October 2003 for constructing rehabilitation building for 98 hutment dwellers and free sale building and the commencement certificate was granted on 30 June 2004. It is pointed out that the plaintiffs are stated to have seen the board of Dheeraj Construction on the site in the year 2004 and the plaintiffs had made inquiries and got the documents in favour of defendant No. 3 in the year 2005. It is, therefore, submitted that in view of the gross delay on the part of the plaintiffs in filing the present suit in the year 2011 (on the basis of the lease in favour of the plaintiffs of the year 1966) the plaintiffs could not have been granted any ad-interim injunction in respect of the project of slum rehabilitation under the Slums Act, more particularly when Section 42 of the Act specifically prohibits the Civil Court from exercising any jurisdiction in respect of any matter which the Administrator, Competent Authority or Tribunal is empowered by or under the said Act, to determine; and no injunction can be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under said Act. It is, therefore, submitted that the learned single Judge was in error in granting any ad-interim injunction on 17 November 2011 or in calling upon defendant No. 3 to file the affidavit as indicated in the further order dated 22 December 2011.

5. Having heard the learned Counsel for the parties and having regard to the provisions of Section 42 of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 prohibiting any Court from granting an injunction in respect of slum rehabilitation scheme for which LOI was issued by the competent authority way back in October 2003 and in view of the admissions of the plaintiffs in their suit as well as affidavit in support of notice of motion, about the year in which they got copies of the relevant documents and when they saw commencement of construction, we are of the view that no case has been made out by the plaintiffs for any ad-interim injunction in the suit.

41. On perusal of prayers (a) to (c) of the plaint, it is clear that plaintiff seeks declaration that lease deeds executed in favour of his father by the erstwhile owner are subsisting, in force and binding upon the defendants, seeks declaration that plaintiff is entitled to 1/8th share in the suit property and seeks declaration that plaintiff is entitled to partition of the suit property by metes and bounds. As far as prayer (e) is concerned, direction is sought against the first defendant to render true and correct accounts of his acts and actions in the suit property. Prayer (f) is for declaration that deeds executed by the first defendant in favour of other defendants is void and unlawful. Prayer (g) is for an order and direction against defendant Nos. 1, 2 and 3 for delivery of various documents entered into in their favour. Prayer (h) is for cancellation of documents. In my view, none of these prayers i.e. (a) to (c) and (e) to (h) can be granted by any of the authorities or tribunal constituted under the provisions of the said Slums Act. Under Section 42 of the said Act, only such matters in respect of which competent authority, appellate authority, grievance redressal committee or tribunal appointed under such Slums Act is empowered to determine those reliefs, civil court would have no jurisdiction in respect of such matters and not otherwise. I am thus not inclined to accept the submission of Mr. Subramanian, learned senior counsel for third defendant that prayers (a) to (c) and (e) to (h) of the plaint are outside the jurisdiction of this Court in view of Section 42 of the said Slums Act. In my view, prayers (a) to (c) and (e) to (h) are within jurisdiction of this Court.

42. As far as prayer (d) and (i) by which plaintiff seeks an order and decree to hand over possession of the suit property to the plaintiff is concerned, in view of the admitted fact that Letter of Intent had been already issued by the slum authority and the slum rehabilitation scheme is being implemented on the suit plot, no such relief for handing over possession of such property can be granted by civil Court in view of bar under Section 42 of the said Slums Act. This Court has no jurisdiction to grant any such relief in terms of prayer clause (d) and (i) of the plaint.

43. As far as prayers (j) and (k) which are for appointment of Court Receiver and injunction respectively are concerned, these prayers are for interim reliefs. In any event in view of the order passed by Division Bench of this Court in the same matter on 23rd December 2011, these reliefs are also outside the jurisdiction of this Court in view of bar under Section 42 of Slums Act and are beyond the jurisdiction of civil court. Since this Court came to the conclusion that subject matter of prayers (d), (i), (j) and (k) are beyond the jurisdiction of this Court, in view of bar under Section 42 of Slums Act and not on the ground of pecuniary or territorial jurisdiction, plaint in respect of prayers (d), (i), (j) and (k) cannot be returned for presentation before proper forum and thus these prayers are rejected.

Issue No. 2: Whether the suit is barred by law of limitation?

44. I shall now deal whether prayers (a) to (c) and (e) to (h) are barred by law of limitation. It is the case of the plaintiff that in the month of November 1963, Mrs. Noel Pareira who was absolute owner of the suit property had granted lease for 99 years in favour of Mr. Laxmandas Aswani father of the plaintiff, defendant No. 1 and three daughters of the said deceased in respect of the suit property by executing three lease deeds. It is the case of the plaintiff that the said three lease deeds granted in favour of the father of the plaintiff and first defendant were never terminated by the said Mrs. Noel Pareira. In the year 2004, the plaintiff saw board of Dheeraj Construction put up on the suit property. The plaintiff made an application for certified copy in the year 2005 and obtained copies of three lease deeds in the year 2005. In the month of September 2004, plaintiff came to know that the name of his father was not found in record of property card in respect of the suit property and name of one Yusuf Ahmed was found to have been recorded as owner. The plaintiff thereafter made inquiries with the office of sub-registrar of assessment and sent notice in the year 2004-05 and applied for copies of the documents entered into between Noel Pareira and Mr. Yusuf Ahmed. In the year 2005, plaintiff received copies of the deed of assignment dated 27th January 1992 executed by Noel Pareira in favour of Yusuf Ahmed. The plaintiff applied for entering his name as lessee in the property card before the City Survey Officer which was rejected. The plaintiff filed appeal before the Superintendent of Land Record in the year 2007 which was also rejected. Plaintiff received an order on 31st May 2008 entering the name of his father as lessee of the suit property. Third defendant filed an appeal before the same authority who succeeded in the said appeal. Name of the third defendant was recorded on 29th September 2009 in the property card. Plaintiff filed appeal before the Dy. Director of Land Revenue. The said appeal was rejected on 23rd February 2010. Plaintiff filed appeal before the Hon'ble Minister which is pending.

45. Plaintiff examined his wife as a witness on the issue of jurisdiction as well as limitation. None of the defendants laid any oral evidence. Before I deal with the oral evidence on the issue of limitation laid by the plaintiff, I shall also deal with the other issues on limitation raised by the plaintiff.

46. Mr. Patwardhan, learned counsel appearing for the plaintiff submitted that issue of limitation cannot be tried under Section 9A of the Code of Civil Procedure as jurisdictional issue. In reply to this submission, Mr. Subramanian, learned senior counsel placed reliance on the Judgment of this Court in case of Royal Palms (India) Pvt. Ltd. (supra). Division Bench of this Court in the said Judgment has adverted to the Judgment of Supreme Court reported in MANU/SC/0240/1968 : AIR 1969 SC 823 and earlier Judgment of Division Bench of this Court in case of Foreshore CHS Ltd. Vs. Shri Praveen D. Desai and others reported in MANU/MH/1023/2008 : 2009(1) Bom.C.R. 757 and Judgment of Supreme Court in case of Pandurang D. Chougule Vs. Maruti H. Jadhav) reported in MANU/SC/0033/1965 : AIR 1966 S.C. 153. Division Bench also considered the earlier Judgment of Division Bench in case of Smith Kline Beechan Construction Vs. Hindustan Lever reported in 2002 (Suppl) Bom.C.R. 674 and held that a plea of limitation is a plea which goes to the jurisdiction of the Court and it is a plea on law and it is a settled position in law that when a suit is barred by limitation, the Court is precluded from proceeding on merits of the contentions and in fact obliged to dismissed the suit. It is held that when an objection to the jurisdiction of the Court to entertain the suit as the suit is barred by the law of limitation is raised, at the hearing of notice of motion wherein interim order is claimed, the Court is obliged by the provisions of Section 9-A of C.P.C. to frame preliminary issue as to the ground raised to the jurisdiction of the Court to entertain the suit and proceed to decide that preliminary issue and it is only on decision of that preliminary issue, that the notices of motion can be taken up for final decision. I am respectfully bound by the decision of Division Bench of this Court and of the view that issue of limitation raised by the defendant is a jurisdictional issue and once such issue is raised, Court is obliged under the provisions of Section 9-A of Code of Civil Procedure to frame the preliminary issue on the plea of limitation. In my view, there is no substance in the submission made by Mr. Patwardhan, learned counsel appearing for the plaintiff that issue of limitation is not a jurisdictional issue and would not fall under Section 9-A of C.P.C. Relevant part of paragraph 4 of the said Judgment in case of Royal Palms v. Bharat S. Shah (supra) reads thus:

It is thus clear that non-compliance by the learned Single Judge with the provisions of section 9A will be a material irregularity which would vitiate the order. The question whether an objection that the suit is barred by the law of limitation is an objection to the jurisdiction of the Court for the purpose of section 9A of C.P.C. has been decided by the Division Bench of this Court in its judgment in the case of Foreshore CHS Ltd. v/s Shri Praveen D. Desai and ors., reported in MANU/MH/1023/2008 : 2008(6) All MR. 600. The Division Bench has relied on the judgment of the Constitution Bench of the Supreme Court in the case of Pandurang D. Chougule v/s Maruti H. Jadhav, reported in MANU/SC/0033/1965 : AIR 1966 SC 153 holding that the plea of limitation is plea of law concerned with the jurisdiction of the Court. Thereafter, the Division Bench of this Court in the above referred judgment has observed thus:-

18. The moment, the issue of jurisdiction is raised under section 9-A of the Code of Civil Procedure, the said issue should be decided at first, and not to be adjourned to a later date. The main reason is that if the Court comes to finding that it does not have jurisdiction vested in it in law, then no further enquiry is needed and saves a lot of valuable judicial time. In fact, section 9-A itself mandates that when an objection to the jurisdiction of the Court to entertain such a suit is taken by any of the parties, the Court will have to decide the issue expeditiously and in no case to be adjourned to the hearing of the suit.

19. A Division Bench judgment of our High Court in Smith Kline Beechan Cons v/s Hindustan Lever, MANU/MH/1921/2002 : 2003 Vol (105) 2 Bom.L.R. 547: 2002(1) All MR. 1043 has categorically held that it is not sufficient that the Court has territorial or pecuniary jurisdiction or jurisdiction in relation to the subject matter of the suit but if the suit is barred by any statute, the Court will have no authority to hear and decide the same. The said judgment clearly holds that the use of the word 'jurisdiction' is used in a wider sense under section 9-A which would include the bar to maintainability of the suit i.e. to say any statutory bar to the maintainability of the suit. Section 3 of Limitation Act clearly mandates the Court to dismiss the suit if the same is barred by limitation.

20. To put it in other words, if the suit is barred by Limitation, the Court has no jurisdiction to entertain it and the Court is duty bound to dismiss the same, and the parties cannot confer jurisdiction by consent.

21. It is explicitly clear that a plea of limitation is a plea which goes to the jurisdiction of the Court and it is a plea on law, and it is a settled position in law that when a suit is barred by limitation, the Court is precluded from proceeding on the merits of the contentions and in fact obliged to dismiss the suit.

It is clear from the law laid down by the Division Bench in its aforesaid judgment that when an objection to the jurisdiction of the Court to entertain the suits as the suits are barred by the law of limitation is raised, at the hearing of notices of motion wherein interim order is claimed, the Court is obliged by provisions of section 9A of C.P.C. to frame preliminary issue as to the ground raised to the jurisdiction of the Court to entertain the suits and proceed to decide that preliminary issue and it is only on decision of that preliminary issue, that the notices of motion can be taken up for final decision. We find that the learned Single Judge has made the order disposing of the notices of motion even after noting that one of the objections raised was to the jurisdiction of the Court to entertain the suits as they are barred by the law of limitation, therefore the order made by the learned Single Judge will have to be set aside and the notices of motion will have to be remitted back to the learned Single Judge for consideration and decision in accordance with law.

47. Next submission on the issue of limitation raised by Mr. Patwardhan is that in view of the positive assertion by defendant No. 3 in affidavit filed before this Court that claims made by the plaintiff are barred by law of limitation, defendant No. 3 was bound to lead oral evidence to prove such positive assertion made in the affidavit and not having led any oral evidence, this Court shall draw adverse inference against the third defendant. In my view, the initial onus to prove that suit was filed within time was on the plaintiff and thus, plaintiff was required to lead his evidence first on the issue of limitation. Since plaintiff has failed to discharge that initial onus cast on him to prove that suit filed by the plaintiff was within time, onus of proof is not shifted to defendant No. 3.

48. I shall deal with the issue as to how the plaintiff has failed to discharge his initial onus to prove that suit is within time in the later part of this Judgment. In my view, since the plaintiff has failed to prove the initial onus that suit was within time, defendant No. 3 was not bound to lead oral evidence to prove any such positive assertion made in the affidavit filed before this Court. In my view, there is no substance in the submission of Mr. Patwardhan that since defendant No. 3 did not lead any oral evidence on the issue of limitation, this Court shall draw adverse inference against the third defendant and should reject the plea of limitation raised by the third defendant. As far as judgment of Supreme Court in case of Gopal Krishnaji Ketkar Vs. Mohamed Haji Latif (supra) relied upon by Mr. Patwardhan, learned counsel for the plaintiff, on this issue is concerned, it has been held by the Supreme Court that if a party in possession of best evidence which would throw light on the issue in controversy withholding it, Court ought to draw an adverse inference against him notwithstanding that onus of proof does not lie on him and the party cannot rely on abstract doctrine of onus of proof or on the fact that he was not called upon to produce it. It is not the case of the plaintiff that defendant No. 3 withheld any important document in its possession which would have thrown light on issue of limitation. On plain reading of the plaint itself and the oral evidence laid by the plaintiff's witness, it is clear that plaintiff has failed to prove that the suit filed by the plaintiff was within time. The Judgment of Supreme Court in case of Gopal Krishnaji Ketkar (Supra) relied upon by the plaintiff is of no assistance to the plaintiff.

49. As far as Judgment of this Court in case of Laxmibai Rauji (supra) replied upon by Mr. Patwardhan in support of his submission that defendant No. 3 cannot take advantage of the doctrine of onus of prove as defendant No. 3 should stand on his own legs and merely because the plaintiff was unable to prove that the suit was within time as alleged by defendant No. 3, defendant No. 3 cannot take advantage of such alleged failure on the part of the plaintiff. In case of Laxmibai Rauji (supra), this Court has held that burden of proof is on the party who substantially asserts the affirmative of the issue and not upon the party who denies it. Since initial onus to prove that suit was within time was on the plaintiff, plaintiff ought to have discharge that burden first and not the defendant. The Judgment of this Court in case of Laxmibai Ramji (supra) thus is of no assistance to the plaintiff.

50. As far as Judgment of Division Bench of this Court in case of Niwas Builders (supra) relied upon by Mr. Patwardhan in support of his submission that third defendant is bound by its own pleadings and must stand on his own pleadings is concerned, in my view, that Judgment will be of no assistance to the plaintiff. The plaintiff is bound by his own pleadings. If plaintiff has not proved what is asserted in plaint, plaintiff must fail. The Judgment of Division Bench of this Court in case of Niwas Builders (Supra) is of no assistance to the plaintiff.

51. As far as Judgment of Supreme Court in case of Rangammal (supra) relied upon by Mr. Patwardhan, learned counsel appearing for plaintiff is concerned, it is held by the Supreme court that misplacing the burden of proof would vitiate the Judgment. In my view, initial onus of proof that suit was within time was on the plaintiff. Plaintiff chose to lead evidence first and rightly so. Initial onus of proof was rightly cast on the plaintiff. Question of misplacing of burden of proof thus, did not arise. The Judgment of Supreme Court thus in case of Rangammal is no assistance to the plaintiff.

52. As far as Judgment of Supreme Court in case of Alka Gupta (supra) relied upon by Mr. Patwardhan, learned counsel appearing for plaintiff in support of his submission that suit has to be decided after framing issues and trial permitting the parties to lead evidence on the issues, except in cases where the Code or any other law makes an exception provides any exemption and in the trial of the suits unless they are provided by law is concerned, in my view, that Judgment is of no assistance to the plaintiff. It has been held by the Supreme Court which has been adverted to by the Division Bench of this Court in case of Royal Palms (India) Pvt. Ltd. that the issue of limitation is a issue of jurisdiction and once a party having raised that issue at the stage of interlocutory proceedings itself, court has to frame such issue of jurisdiction as preliminary issue under Section 9A of Code of Civil Procedure. After hearing both the parties this Court had accordingly framed two issues of jurisdiction including issue of limitation. Plaintiff did not make any attempt to discharge his onus of proof that suit was within time. By consent of both the parties, parties were allowed to lead evidence on limitation issue under Section 9A of Code of Civil Procedure. Judgment of Supreme Court relied by the learned counsel for plaintiff in case of Alka Gupta (supra) is of no assistance to the plaintiff. Law laid down by the Supreme Court in the said Judgment does not apply to the issue of jurisdiction raised by defendant No. 3, By consent of parties two issues were framed to be tried as preliminary issue and both the parties agreed that oral evidence be laid on those issues. Submissions have been made on both these issues by the learned counsel.

53. On 14th February 2012 in Suit No. 764 of 2002 in case of ITC Ltd. (supra), this Court has held that initial onus is on the plaintiff to prove that suit is within time. Paragraphs 5 and 32 of the said Judgment which are relevant for the purpose of deciding this issue read thus:

5. It is the submission of the Plaintiffs that ex-facie the Suit was brought within a period of 3 years from the dates of the said 6 orders of the U.S. Bankruptcy Court and is therefore within the period of limitation prescribed by Article 101 of the Limitation Act, 1963. The provisions of Order VII Rule 1(e) have also been complied with. According to the Plaintiffs, there exist 2 categories of suits with respect to the burden of proof on the grounds of limitation.

Category 1: where the Plaintiff under Order VII Rule 6 pleads any exemption or extension of time to bring the Suit within limitation.

Category 2: where on the face of the pleadings in the Plaint, the Suit is shown to be within time.

It is submitted that the Suit filed in the instant case falls in the category of Suits which ex-facie have been filed within the period of limitation, and there arises no question of the Plaintiffs having to lead evidence to prove that the Suit was within the period of limitation. The present Suit having not been instituted after the expiration of the period prescribed by the Law of Limitation, the question of claiming any exemption in that regard as required by Order VII Rule 6 and of proving the same by leading evidence does not arise. Similarly Rule 11 of Order VII of the CPC will also not apply to the facts of the present case, as the cause of action has been disclosed in the Plaint and the Suit is not barred under any law on the basis of any statement made in the Plaint.

The Plaint does meet the requirements of Order VII Rule 1 and does not fall foul of Rules 6 and 11 of Order VII.

32. The defendants have denied/disputed the genuineness of the said Orders and the fact that such Orders have indeed been passed by the U.S. Bankruptcy Court. This establishes beyond any doubt that the defendants have denied/disputed the fact that the Suit is filed by the Plaintiffs within the period of limitation. In view thereof, Section 101 of the Indian Evidence Act would also come into play, which provides that whoever desires any Court to give a judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist, and the Plaintiffs are bound to prove the existence of the said 6 Orders passed by the U.S. Bankruptcy Court to establish their legal right to file the Suit on the basis of the said 6 Orders. Sections 102 and 103 of the Indian Evidence Act also require the Plaintiffs to prove the fact asserted by the Plaintiffs namely that the Suit which is filed on the basis of the said 6 Orders passed by U.S. Bankruptcy Court is filed within the time prescribed by the Law of Limitation. The ratios laid down by various decisions of the Hon'ble Apex Court and Hon'ble High Courts including this Court are on the basis of the facts in the respective cases before the said Courts and there can be no dispute as regards the said ratios laid down therein. However in light of the facts of the present case and the reasons set out herein, I do not agree with the submissions of Plaintiffs that it is for the defendants to first establish that the Suit is filed beyond the period of limitation and that the Plaintiffs be granted permission to lead evidence in rebuttal. I also do not agree with the submissions of the Plaintiffs that for the purpose of deciding the issue of limitation, Suits should be categorized as Category 1 and Category 2 Suits and that in Suits which are, on the face of the pleadings time barred (Category 1), the burden is upon the Plaintiffs to show that the Suit is not time barred and in cases where the suit is ex-facie within time (Category 2), once the Plaintiff has complied with the provisions of Order VII Rule 1 of the CPC, if the defendants want to nonsuit the Plaintiffs on the ground of limitation, the burden is on the defendants to establish that the Suit is in fact time barred. As set out hereinabove, the defendants are not parties to the U.S. Court proceedings and therefore have no knowledge of the U.S. Court Orders and proceedings. The defendants have challenged the genuineness of the said 6 U.S. Court Orders and have not admitted the fact that the said 6 Orders are passed by the U.S. Bankruptcy Court. The Plaintiffs are therefore bound to prove the said 6 Orders and establish that the Suit is filed within the period prescribed by the Law of Limitation inter alia as required u/s. 101 of the Indian Evidence Act, 1872. The Plaintiffs are thus incorrect in their submissions that the present Suit falls under what they choose to describe as Category 2 Suits and that it is for the defendants to establish that the Suit is in fact time barred.

54. I am thus not inclined to accept submission of Mr. Patwardhan, learned counsel for the plaintiff that onus of proof that suit was barred by law of limitation was on the defendant and the defendant ought to have laid his evidence first before the plaintiff would have examine his witness in support of his plea that suit is within time and not barred by law of limitation.

55. In so far as submission of Mr. Patwardhan that since the defendant did not lead his evidence on the issue of limitation, defendant cannot say that suit be dismissed on the ground of limitation, merely on the basis of cross examination of the plaintiff's witness is concerned, Mr. Subramanian, learned senior counsel appearing for defendant No. 3, in my view is right in placing reliance on the Judgment of this Court delivered by R.D. Dhanuka, J., on 8th January 2013 in Arbitration Petition No. 556 of 2012 in case of Zee Entertainment Enterprises Ltd. (supra) and in particular paragraphs 20 and 22 of the said Judgment in which it has been held that if witness examined by the party in cross examination admitted the liability to the other party, such other party having proved his claim by cross examination is not liable to examine any witness. Paragraphs 20 and 22 of the said Judgment read thus:

20. In my view, the award does not deal with the material and crucial evidence forming part of the cross examination of the witness of the respondent which records the admission on the part of the respondent having received debit notes and contents thereof and also having admitted the receipt the payment stated in the said documents. In view of the fact that the learned arbitrator was considering the debits and credits claimed by both parties, the petitioner who was claiming adjustment/set off by way of debit notes from the amount payable to the respondent was entitled to prove its claim for adjustment/set off even by cross examination of the witness examined by the respondent. Once, the respondent witness has admitted the correctness of the claims made by the petitioner, it was in my view not necessary for the petitioner to examine any other witness to prove its claim once again. In my view, the learned arbitrator has thus proceeded on erroneous basis and has not considered the material and crucial evidence in the impugned award and has not dealt with the written submissions at all. The learned arbitrator has not proceeded with the matter in the correct direction in the impugned award on this issue. In my view the reliance thus placed by the respondent on the judgment of Supreme Court in case of Iswar Bhai C. Patel (supra), Vidhyadhar (supra) is misplaced. In my view facts of the said case before the Supreme Court are clearly distinguishable in the facts of this case. This court thus in such circumstances can interfere with award under Section 34 of the Act.

22. In my view, since the witness examined by the respondent had admitted the liability of the respondent and also having admitted the receipt of payment from the petitioner through the Association to directors, artists and technicals, the petitioner was not bound to examine any other witness independently to prove such claims/adjustments once again, once having it proved by cross examination of the witness of the respondent. In my view, the learned arbitrator has disallowed this claim contrary to law and the award thus shows a manifest error of law. The learned arbitrator has not considered any part of the oral evidence led by the petitioner or cross examination of the witness examined by the respondent as well as detailed written submissions filed by the petitioner in the impugned award at all. The impugned award is in violation of principles of natural justice and this part of the award is thus deserves to be set aside.

56. Upon query raised by this Court, Mr. Patwardhan learned counsel appearing for plaintiff submits that Article 65 of Schedule-I to Limitation Act would be attracted to the facts of this case. It is submitted that for filing a suit for possession of immovable property or any interest therein based on title, period of limitation is 12 years and time commences when the possession of the defendant becomes adverse to the plaintiff. It is submitted that the plaintiff came to know for the first time in the year 2004 that board of M/s. Dheeraj Constructions was put upon on the suit property which date was the date of knowledge of plaintiff of possession of the third party on the suit property which was adverse to the interest of the plaintiff and thus suit filed in the year 2011 is within the period of limitation. No other article of Limitation Act 1963 has been relied upon by Mr. Patwardhan in support of submission that any of the prayers in the suit are within time.

57. On the issue of limitation, with the assistance of the learned counsel appearing for the plaintiff and defendant No. 3, I have considered the oral evidence led by the plaintiff through her witness, it is revealed that father-in-law of the witness expired in the month of October 1985. Witness has deposed that she was not aware of the facts about the steps taken by her father-in-law in respect of the suit property. She has deposed that her father-in-law had entered into agreement with Rizvi Land Development Pvt. Ltd. in respect of the suit property. On 5th September 1984, declaration was sought by the plaintiff and for cancellation of document only in the year 2011. Answer in cross examination and in particular para 5 of the evidence recorded on 26th July 2013 is contrary to the deed of assignment and arbitral award. Witness has admitted that her father-in-law was not in physical possession of the suit property but was in symbolic possession but could not produce any document by which her father-in-law was put in symbolic possession of the suit property. Witness has also admitted that she was not aware whether her father-in-law was put in possession of the suit property. Witness also could not say as to when her father-in-law was put in symbolic possession. In para 6 of cross examination, witness has deposed that she was not aware that assignment dated 27th November 1992 was a registered document. Witness has however, pleaded ignorance as to when suit property was declared as slum. It is also admitted that plaintiff ascertained rights in the suit property for the first time in the year 2004. It is also admitted that father-in-law of the said witness had acquired the suit property which was already occupied by slum and the plaintiff had asked for possession of his share in the property only by filing this suit. Public notice was issued in 2004 for asking possession.

58. In para 7 of the evidence, it is admitted that the witness came to know about assignment dated 27th January 1992 between Richard Pareira and Yusuf Ahmed in the year 2005. It is also admitted by the witness that plaintiff was aware that he had share in the property of his father-in-law when he expired in 1985. Witness has admitted about her knowledge that slum development scheme was being implemented on the suit property. Witness has however avoided to reply about the date of knowledge since when slum development scheme was being implemented on the suit property. It is admitted by the witness that she has visited the suit property in last seven years. It is also admitted that plaintiff did not file any suit against the legal heirs of Richard Pereira in City Civil Court. In para 8 of the evidence, it is admitted by the witness that in 2004, she noticed the board of Dheeraj Builders and started collecting papers in respect of the suit property. It is also admitted that she has obtained copy of indenture of assignment in the year 2005-2006. It is revealed that after the demise of father of the plaintiff, legal heirs were brought on record in the City Civil Court. I have also perused the photocopies of the plaint filed by the plaintiff in City Civil Court Bombay which were taken on record and marked as Exhibits-2 to 4 respectively. It is admitted by the witness that defendant No. 3 has filed written statement as well as affidavit in reply to the notice of motion. Witness admitted that arbitral award was made on 15th April 1986 in which decree was passed on 9th September 1991. Witness has also admitted that the said award as well as decree was relating to the suit property and in the said award, undivided share of the plaintiff in the suit property and other properties is specified. It is also admitted that the said arbitral award was a consent award signed by the parties including the plaintiff. In para 6 of the evidence, it is admitted by the witness that plaintiff did not take any steps personally and appointed defendant No. 1 as administrator of the property and has answered that she did not remember whether her husband took any steps to assert any rights under the said decree passed in the year 1991.

59. In para 7 of the cross examination witness admitted that in the year 2004, slum rehabilitation scheme was being implemented in the suit property. Mr. Subramanian, learned senior counsel is right in his submission that the witness examined by the plaintiff is married in the year 1982 and had no personal knowledge of the facts between 1963 and 1982. Learned senior counsel is right in his submission that even if three years period is considered from the date of filing suit in City Civil Court, which was in 2007, this suit is ex-facie barred by law of limitation. In my view, limitation once starts running it does not stop. Perusal of oral evidence referred aforesaid clearly indicates the knowledge of the plaintiff about adverse title, interest and possession of the defendants much prior to three years of filing this suit.

60. On perusal of prayer (a) of the plaint, it is clear that the plaintiff seeks a declaration that the lease granted under lease deeds in favour of his father on 27th November 1963 are in force, subsisting and binding upon the defendants. On perusal of the letter addressed by the plaintiff on 15th September 2004 through his advocate to Rizvi Land Developers, Pvt. Ltd., it is clear that it was the case of the plaintiff that Rizvi Land Developers Pvt. Ltd. had agreed to purchase the suit property from the father of the plaintiff. In the said notice, it is alleged that after the death of the father, plaintiff and defendant No. 1 were co-owner of the suit plot having 50% share each in it and on several occasions, had requested to M/s. Rizvi Land Developers, defendant No. 2 herein to complete the said transaction by making payment of the balance consideration with interest thereon. However, defendant No. 2 had failed to complete the transaction in spite of lapse of almost 20 years. In response to the said letter, defendant No. 2 through its advocate replied on 24th September 2004 and informed the plaintiff that the entire consideration was already paid by defendant No. 2 to the father of the plaintiff during his lifetime. Deed of assignment dated 25th January 1985 came to be executed by the father of plaintiff in favour of defendant No. 2 and defendant No. 2 was put in possession of the suit plot. On perusal of the plaint filed by the plaintiff in this suit and in three suits in Bombay City Civil Court against the State of Maharashtra and others including Mrs. Noel Richard Pereira and defendant No. 3 herein and others, it is clear that it was to the knowledge of the plaintiff that suit property was declared as slum and plans had been approved by the authorities. After demise of father, dispute arose between the parties. The said disputes were referred to arbitration. On 15th April 1986, consent award was made by the learned arbitrator based on consent terms arrived at between the plaintiff and defendant No. 1. It is not in dispute that the said consent award culminated into decree dated 9th September 1991. It is stated in the plaint that suit property was declared as slum by the slum authority on 21st July 1997. In paragraph 10 of the plaint in the said suit, it is stated that Mrs. Noel Pereira by a purported deed of conveyance dated 27th January 1992 had assigned her rights in respect of the suit plot in favour of Mr. Yusuf Ahmed. The said purported deed of conveyance was executed without any prior notice to the plaintiff. By an order dated 24th July 1992, City Survey Officer had accepted the representation made by Mr. Yusuf Ahmed and passed an order on 24th July 1994 allowing the said application and name of Mr. Yusuf Ahmed came to recorded in property record. It is stated in the said plaint that Mr. Yusuf Ahmed thereafter entered into some agreement with defendant No. 7 in that suit to develop the suit property. It is stated in the plaint that The Slum Rehabilitation and Development Authority had issued letter of intent dated 17th October 2003 approving the proposal for a scheme of rehabilitation of the suit property made by Mr. Yusuf Ahmed and defendant No. 3 herein for carrying out development activity on the suit property. It is averred in the said plaint that the alleged lease deeds were still subsisting. The said suit has been filed on 25th October 2007. Plaintiff has applied for cancellation of letter of intent dated 12th October 2003 and to include the name of the plaintiff in the property card. Plaintiff has also applied for order and direction against defendant Nos. 2 and 3 herein to remove themselves along with their family members, servants and agents from the suit plot. The said suit is pending.

61. In my view for considering any such declaration as prayed in prayer clause (a) of the plaint, Article 58 of schedule-I to Limitation Act 1963 would be applicable. On consideration of the plaint, oral evidence led by the plaintiff and the averments made in the plaint before City Civil Court, it is clear that it was the claim of the plaintiff that lease deeds executed in favour of the father by the erstwhile owner was valid and subsisting. The said suit was admittedly filed in City Civil Court on 25th October 2007. It is the case of the plaintiff himself in the notice addressed to defendant No. 2 that on several occasions, plaintiff and his brother had called upon defendant No. 2 to complete the deed of assignment entered into by the father of plaintiff in favour of defendant No. 2 in the year 1985. But defendant No. 2 failed to complete the said transaction in last 20 years. Article 58 provides for three years limitation for filing a suit for declaration and time to file suit commences when the right to sue first accrues. In my view, father of the plaintiff and first defendant had already executed the deed of assignment in favour of defendant No. 2 as far back as on 25 January 1985. In any event, plaintiff himself had asserted in the plaint before City Civil Court filed in 2007 that plaintiff continued to be lessee of the suit plot. This suit is admittedly filed on 6th April 2011 and thus prayer (a) for declaration, in my view is on the face of it barred by law of limitation.

62. As far as prayer (b) by which plaintiff seeks declaration that plaintiff is owner or is entitled to 50% share in right, title and interest in the deceased father's property described in the suit is concerned, Article- 58 would be applicable to this prayer also. It is not in dispute that there was a consent award in respect of the dispute having arisen after demise of father between plaintiff and defendant No. 1 which award was declared on 15th April 1986. In the said consent award, dispute between the plaintiff and defendant No. 1 in respect of the property of the deceased father was settled on the terms recorded therein. Decree in terms of the said award admittedly came to be passed in 1991. Article 106 of the Limitation Act provides for period of 12 years limitation for a distributive share of the property of intestate against other person illegally charged with the duty of distributing the estate. Time begins under Article 106 when the legacy and share becomes payable or deliverable. Under Article 110 of schedule-I of the Limitation Act, suit has to be filed within 12 years by a person excluded from joint family property to enforce a right therein which time commences when the exclusion becomes known to the plaintiff. Even if it is the case of the plaintiff that he was deprived of property of the deceased father by first defendant is concerned, Article-106 of schedule-I to the Limitation Act would be attracted. Consent award was declared on 15th April 1986. Decree in terms of consent award was passed in 1991 whereas suit is filed on 6th April 2011. Prayer (b) thus in my view is on the face of it barred by law of limitation.

63. As far as prayer (c) is concerned, plaintiff seeks declaration that plaintiff is entitled to the partition of the suit property by metes and bounds and is entitled to be put in separate possession of his 50% share. In my view, Article 58 would be applicable to such prayer for declaration. Suit having been filed after three years from the date when the right to sue first accrued. For the reasons recorded in respect of prayer (b), this prayer also in my view is on the fact of it barred by law of limitation.

64. As far as prayer (d) is concerned, plaintiff seeks an order and decree of partition by metes and bounds and for possession of his 50% share in the suit property. In my view this prayer for possession of suit property on which scheme under Slums Act is under implementation is barred under Section 42 of the Slums Act. This Court thus has no jurisdiction to consider such prayer. I am thus not dealing with the issue of limitation in respect of this prayer.

65. As far as prayer (e) is concerned, plaintiff seeks an order and decree against defendant No. 1 to render true and correct accounts of its acts and actions in respect of suit property. Even if defendant No. 1 is considered as an agent of the plaintiff, for such relief as claimed in prayer (e) for rendering true and correct accounts by an agent Article 4 of the Limitation Act would be applicable which provides for three years time to file a suit by a principal against agent to include his conduct or in any event Article 113 which provides for three years period in respect of the claim to which no other article applies would apply and time begins when right to sue first accrues. Consent award was made on 15th April 1986. Decree was passed in 1991. Right to sue if any for rendering true and correct account by the first defendant arose in the year 1991. Prayer (e) thus on the face of it is barred by law of limitation.

66. As far as prayer (f) is concerned, plaintiff seeks declaration that all the acts of defendant No. 1 or the documents executed by him in favour of defendant Nos. 2 and 3 are void, illegal and unlawful. Prayer (g) is for an order and direction against the defendants to deliver the deed of assignment dated 28th January 2005 and deed of conveyance dated 27th January 1992 between Mrs. Noel Pereira and Mr. Yusuf Ahmed and Conveyance Deed dated 27th January 2007 executed between Yusuf Ahmed and defendant No. 3 to this Court. Prayer (h) is for cancellation of those documents under the direction and supervision of this Court. For seeking declaration in terms of prayer (f) Article 58 would be applicable. All the three documents referred to aforesaid were executed prior to three years before the date of filing suit. Prayer (f) for declaration is thus on the face of it barred by law of limitation. For delivery of documents sought in prayer (g), in my view Article 113 would be applicable. On perusal of oral evidence and the documentary evidence, it is clear that right to sue accrued to the plaintiff much prior to three years before filing of this suit. Plaintiff was fully aware of these documents. Both the deeds of conveyance are registered documents which amounts to constructive notice. Prayer (g) is thus, barred by law of limitation. For the reasons recorded in respect of prayer (g), prayer (h) which is also for cancellation of documents is also barred by law of limitation.

67. Since I have taken a view that prayer (i) would be beyond jurisdiction of this Court, in view of Section 42 of the Slums Act, I do not propose to decide the issue of limitation in respect of this prayer. In the result, I pass the following order.

(a) Suit is dismissed.

(b) In view of dismissal of suit, notice of motion pending if any, is dismissed as infructuous.

(c) No order as to costs.




Print Page

No comments:

Post a comment