AMBIKA PRASAD Vs. CHUN CHUN YADAV

JUDGEMENT

(1.) This second appeal is directed against the judgment of the first appellate Court passed by Sri Abhay Shankar Prasad, Sub -Judge, Bhagalpur, in T.A. No. 37 of 1981. The aforesaid appeal was filed against the judgment passed in Title Suit No. 111 of 1975. Both the lower Courts (trial Court and the appellate Court) dismissed the plaintiff -appellants' suit, and hence, this second appeal.

(2.) Earlier, there was a money suit No. 23 of 1967 which was filed by respondent No. 1 of the title appeal No. 37 of 1981 and respondent No. 2 of the aforesaid appeal along with some other appellants were defendants in the money suit. In that money suit, a decree was passed and in the execution of the money decree, plot No. 711 having an area of 0.74 decimals, plot No. 718 having an area of 0.49 decimals and plot No. 708 of Khata No. 61 were auction -sold. Thereafter, respondent No. 1 of the aforesaid appeal and the appellants before this Court filed Title Suit No. 111 of 1975, seeking annulment of the decree passed in Money Suit No. 23 of 1967 as also the sale of the suit land in Execution Case No. 119/73. This suit was heard and thereafter, the trial Court dismissed the suit on the grounds, inter alia, that the suit was filed beyond time -limit and also on the ground that plot No. 708 was not the exclusive property of the plaintiff of T.S. No. 1.11 of 1975. Before this Court in the Second Appeal, the only issue of law formulated for decision of this appeal is whether in the absence of sufficient nucleus of joint family, the suit plot No. 708 could be purchased in the individual name of the appellant, in order to form part of the joint family property and whether the Courts below misdirected themselves by holding that the plaintiff of the suit in appeal had failed to discharge his onus.

(3.) Before I proceed to discuss the substantial question of law, formulated for decision of the appeal, I would like to refer to the argument put forward by the appellants before me to the effect that any other question of law not formulated by this Court at the time of admission may be raised under Section 100 of the Code of Civil Procedure. In this connection, the bar of the suit by time was also referred to. It was submitted before me that the lower Courts wrongly decided the issue of limitation because the suit under appeal was well within time from the date of knowledge of the decree passed in the money suit concerned. In this connection, I find that both the lower Courts gave concurrent finding that the plaintiff -appellants had full knowledge of pendency of money suit and there was proper notice, served upon persons concerned in the execution case concerned and there was due proclamation of sale as enjoined under the law. The plaintiff -appellants, therefore, had failed to prove that the suit was well within time from the date of his knowledge. When any party in the suit claims knowledge of the decree on a particular date or period, that is a question of fact which is decided on evidence. Both the lower Courts in this connection discussed the oral and documentary evidence and came to definite finding that the suit was barred by time. Hence, the question of limitation was a mixed question of fact and law and so the findings of both the lower Courts becomes conclusive. I am, therefore, of the opinion that there is no necessity to differ with the findings of the lower Courts on the point of limitation.