SEETARAM Vs. COLLECTOR

JUDGEMENT

(1.) IT is a second appeal filed by the plaintiff under Section 100 of CPC against the judgment and decree, dated 30-8-1983, passed by learned IInd Additional District Judge, Shajapur in C. A. No. 279 of 1982, which in turn arise out of Civil Suit No. 157-A of 1979, decided on 7-74982, by Civil Judge, Class II, Susner, District Shajapur. It came to be admitted for final hearing on following three substantial questions of law :-

(2.) AT the outset learned Counsel for the appellant submitted that in case if the question No. 1 is answered in affirmative, i. e. , in favour of appellant, then in that event, it may not be necessary for this Court to answer question Nos. 2 and 3. In other words, once the question No. 1 is decided holding first appeal to be barred by limitation, the impugned judgment and decree is liable to be set aside, resulting in restoration of judgment and decree passed by the Trial Court. Let us see the facts.

(3.) PLAINTIFF (appellant) filed a suit against the Slate (defendant) respondent seeking inter alia a declaration that he is the Bhumiswami of the land in suit. It is this suit, which on contest came to be decreed in favour of plaintiff giving rise to filing of the first appeal by the defendant under Section 96 of CPC. It was the case of plaintiff (who was respondent before the First Appellate Court) that the appeal filed by the defendant was barred by limitation and hence, it should be dismissed as barred by time. Whereas the case of defendant (appellant before the Lower Appellate Court) was that appeal is in time and hence, it be treated to have been filed in time. So, one of the question that arose before the First Appellate Court was, whether appeal filed by the defendant is within limitation or not ? As held supra, the First Appellate Court held the appeal to be in limitation and accordingly proceeded to decide the same on merits thereby reversing the decree of the Trial Court and dismissed the suit.