SHEIKH HAMEED Vs. SHEIKH MAJHAR

JUDGEMENT

(1.) This appeal is directed against the judgment and decree dated 4.1.1993 by the First Additional Judge to the Court of District Judge, East Niwar, Khandwa in Civil Appeal No.24-A/84, by which the judgment and decree dated 4.4.1984 in Civil Suit No.48-A/1983 by First Additional Civil Judge to the Court of Civil Judge Class I, Khandwa, was affirmed.

(2.) This appeal was admitted on 15.9.1999 on the following substantial questions of law:

(3.) (a) The learned counsel for the appellants submitted that the Court below erred in dismissing the suit of the appellants on the grounds of limitation. The objections preferred by the appellants under Order 21 Rule 99 C.P.C were decided by the trial Court on 16.10.1975. Thereafter an appeal was preferred by the appellants which was registered as Civil Appeal No.35/75 and it was dismissed on 10.1.1976. Against this order, the appellants preferred a civil revision before the High Court which was registered as C.R. No. 182/1976 and dismissed on 20th April, 1978.. Thereafter the present suit was filed under Order 21 rule 103 on 25.7.78 which was within a period of one year and under Article 98 of the Limitation Act, the suit was within the period of limitation. The Court below erred in dismissing the suit as barred by limitation. Reliance was placed to a Single Bench judgment of Allahabad High Court in Gopal Lal vs. Ram Karan Singh: AIR 1974 Allahabad 44. (b) Though the objections were preferred by appellants Umraobi and Sheikh Hamid on 2.1.1999, but these persons were not parties in the earlier litigation filed by Sheikh Farid and Mst. Hayatbi under Section 47 of the C.P.C. which was registered as MJC no.15/73 and was dismissed on 1.8.1973, so the objections filed by Umraobi and Sheikh Hamid were independent to the objections suit filed under Section 47 of the CPC, but the Court below erred in taking into consideration the aforesaid order, while deciding the present suit filed by the appellants. It was submitted that this appeal be allowed and the judgment and decree passed by the Court below be set aside. (c) That, the Courts below had not considered the case of the appellants on merits and rejected it merely on the ground of limitation. Earlier also there was no adjudication on merits in respect of the title of the appellants who purchased the property from Manohar Lal Barole by a registered sale deed dated 8.1.1973. The appellants were having independent title, filed the suit to establish their title. As earlier there was no adjudication on merits, so in the present suit, the trial Court ought to have adjudicated the title.