Case Note & Summary
The appellant, Smt. Tanubai Baburao Nanekar, filed a suit for declaration and permanent injunction claiming ownership of the suit property by adverse possession. The respondents, Shankar Ganpat Shelke and others, filed a counter claim seeking possession of the property. The trial court dismissed the suit but decreed the counter claim. The appellant appealed, raising a plea of limitation against the counter claim, but the Appellate Court did not frame a specific point for determination on that issue. The High Court, in second appeal, framed a substantial question of law regarding the failure to consider the limitation plea. After hearing both sides, the High Court found that the Appellate Court had not considered the limitation issue at all. The court noted that the order admitting the appeal had specifically pointed out this omission. Consequently, the High Court allowed the appeal, set aside the Appellate Court's judgment, and remanded the matter back to the Appellate Court for fresh consideration solely on the issue of limitation regarding the counter claim. The court directed the Appellate Court to decide the limitation issue within six months, while clarifying that the rest of the Appellate Court's judgment would remain undisturbed.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 CPC - Failure to frame specific point on limitation for counter claim - The Appellate Court did not consider the plea of limitation raised by the appellant against the counter claim of the respondents - Held that the appeal is allowed and the matter is remanded to the Appellate Court for fresh consideration on the issue of limitation (Paras 2-5).
Issue of Consideration
Whether the Appellate Court committed an error by not framing a specific point for determination on the plea of bar of limitation raised by the Appellant so far as the counter claim of the Respondents is concerned?
Final Decision
The Second Appeal is allowed. The impugned judgment and decree of the Appellate Court is set aside. The Appeal before the Appellate Court is restored to its file. The Appellate Court is directed to decide the Appeal afresh only on the issue of limitation regarding the counter claim within six months. The rest of the judgment of the Appellate Court is confirmed.
Law Points
- Limitation Act
- 1963
- Counter claim
- Substantial question of law
- Second Appeal
- Code of Civil Procedure
- 1908 Section 100
Case Details
2005 LawText (BOM) (02) 318
Second Appeal No.294 of 1999
Mr. G.S. Godbole for the Appellant, Ms Suhasini Mutalik for the Respondents
Smt. Tanubai Baburao Nanekar
Shankar Ganpat Shelke & Ors.
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Nature of Litigation
Second Appeal against judgment of Appellate Court in a suit for declaration and permanent injunction based on adverse possession, with counter claim for possession.
Remedy Sought
Appellant sought to challenge the Appellate Court's decree on the counter claim on the ground of limitation.
Filing Reason
Appellate Court did not frame a specific point for determination on the plea of bar of limitation raised by the appellant against the counter claim.
Previous Decisions
Trial Court dismissed the suit and decreed the counter claim; Appellate Court confirmed the decree without considering the limitation plea.
Issues
Whether the Appellate Court committed an error by not framing a specific point for determination on the plea of bar of limitation raised by the Appellant so far as the counter claim of the Respondents is concerned?
Submissions/Arguments
Appellant argued that the plea of limitation raised against the counter claim was not considered by the Appellate Court.
Respondents opposed the appeal.
Ratio Decidendi
The Appellate Court failed to consider the plea of limitation raised by the appellant against the counter claim, which constitutes a substantial question of law under Section 100 CPC. The matter must be remanded for fresh consideration on that issue.
Judgment Excerpts
In view of the said order following substantial question of law arises : Whether the Appellate Court committed an error by not framing a specific point for determination on the basis of plea of bar of limitation raised by the Appellant so far as the counter claim of the Respondents is concerned ?
The Appellate Court has not considered the plea of limitation raised by the Appellant. Therefore, the Appeal will have to be allowed and the matter will have to be remanded to the Appellate Court for fresh consideration on the issue of limitation.
Procedural History
Appellant filed suit for declaration and injunction based on adverse possession. Respondents filed counter claim for possession. Trial Court dismissed suit and decreed counter claim. Appellant appealed to District Court, which confirmed the decree without considering limitation plea. Appellant then filed Second Appeal No.294 of 1999 in Bombay High Court, which was admitted on 3rd August 1999 on the question of limitation. The High Court heard the appeal and delivered judgment on 24th February 2005.
Acts & Sections
- Code of Civil Procedure, 1908: Section 100
- Limitation Act, 1963:
