HON'BLE SRI JUSTICE M.S.K.JAISWAL
CCCA. No. 8 of 2009 Date: 06.06.2014
Between :-
Vidya Sagar .. Appellant And Ram Kishan Singh (died) & Others.
.. Respondents HON'BLE SRI JUSTICE M.S.K.JAISWAL C.C.C.A.No. 8 of 2009
JUDGMENT:
The unsuccessful plaintiff in O.S.No.1325 of 2001 on the file of VIII Additional Senior Civil Judge (FTC), City Civil Court, Hyderabad, is the appellant herein. The suit was originally filed against the respondents 1 to 4 herein, who are Defendant Nos. 1 to 4 in the suit. During the pendency of the suit Defendant No.1 died, and vide Orders in I.A.No.166 of 2003 dt. 13.8.2003 his Legal Representatives were impleaded as Defendants 5 to 8. Subsequently, Defendant No.3 also died and her Legal Representatives were impleaded as Defendant Nos.9 to 15, vide Orders in I.A.No.449 of 2005, dt. 22.12.2005.
2. The suit was filed for delivery of vacant possession of suit schedule property, comprising of House bearing No.14-10-595, Lower Dhoolpet, Hyderabad.
3. The brief facts of the case are as under:
(i) The defendant Nos.1, 2 and one Amar Singh are the sons, and Defendants 3 and 4 are the daughters of the deceased Gajadhar. Amar Singh died issueless on 4.8.1991 and his wife predeceased him. Gajadhar executed a Will on 1.5.1967 in favour of the Plaintiff out of love and affection, bequeathing all his movable and immovable properties, and the father of the Plaintiff Atmaram was made executor of the Will, as the plaintiff was a minor at that time. The Plaintiff’s father died on 5.5.1971 leaving behind his wife and children. Later, the Plaintiff, his mother, brother and sisters were driven out from the suit schedule house, and thus the Plaintiff was constrained to file O.P.No.26 of 1984 on the file of the Chief Judge, City Civil Court, Hyderabad for grant of probate. The said OP was converted into suit – O.S.No.176 of 1985, which was decreed declaring that the plaintiff is entitled to the suit schedule property as per the Will dt. 1.5.1967. Subsequently, the Plaintiff filed E.P., and the same was dismissed against which the Plaintiff preferred revision, which was also dismissed by the High Court holding that the relief of possession of immovable property is neither claimed nor granted in the decree. Hence, the suit.
(ii) The Defendant No.1 filed written statement admitting their relationship and filing of O.P/Suit and other subsequent proceedings. It is however contended that the 2nd son of late Gajadhar by name Amar Singh was married to one Bharathi for 2nd time, and got two sons and daughter, namely, Sumran Singh, Chandan Singh and daughter Kumari Kiran, and that the first wife of Amar Singh predeceased him in 1983, and he died in 1991, leaving behind his two sons and daughter, who was residing in the suit schedule property, and that they were not impleaded as parties in the suit, which is liable to be dismissed for non-joinder of necessary parties. It is further contended that late Gajadhar purchased the suit schedule house with the joint funds of his sons, as such, he has no exclusive right to execute any Will, in favour of the Plaintiff and denied the execution of the Will, appointing the father of the Plaintiff as executor, and that the Plaintiff’s family left the suit schedule house even prior to the date of execution of the alleged Will, due to family disputes. Further, the suit is barred by provisions of Order-II, Rule 2 of CPC, as the plaintiff omitted to claim the present relief in the earlier suit O.S.No.176 of 1985, and that the suit is also barred by limitation.
(iii) Defendants 6 to 8 filed their written statement denying the averments of the plant, and corroborated the averments of the written statement of Defendant No.1, which need not be reproduced.
(iv) The 2nd defendant filed written statement admitting the relationship and the litigation, and reiterated the contentions of the 1st defendant. It is further contended that the plaint is silent with regard to the dates of death of Gajadhar, Atmaram and mother of the 2nd defendant, by name Tulja Bai, who died on 07.09.1982, and she executed a Will dt. 24.6.1980, mentioning the fact that the father of the plaintiff Atmaram has been collecting amounts totalling to Rs.21,000/- and also depriving her from drawing pension of his father and neglected to maintain her, the 2nd defendant alone looked after his mother and that Plaintiff’s father cheated the parents and that the Will was fabricated to deprive the defendants, and the plaintiff has been out of possession of the suit schedule property for more than 12 years, and that the suit is barred by Order-II, Rule 2 CPC, as no relief for recovery of possession was claimed in the previous suit, and that the cause of action in the earlier suit O.S.No.176 of 1985 is the foundation for filing this suit, which is liable to be dismissed. It is further contended that the 2nd defendant is in exclusive possession of the suit schedule property since more than 40 years, and as such the suit is barred by limitation under Article 58 and 65 of the Limitation Act.
(v) By way of rejoinder, the Plaintiff contended that neither the birth nor the residence in the premises, entitles any person to become owner of the property, and that the OP was filed for grant of probate. As such, the prayer for recovery of possession was not the subject matter of probate. Hence, the Plaintiff was compelled to file the present suit for recovery of possession. Further, the claim set up by the 2nd defendant was already contended in earlier suit O.S.No.176 of 1985, which was already decided. Further, the claim of the suit being barred under Order II, Rule 2 has no consequences, as the Plaintiff took steps after coming to know about the Will and after attaining majority, and that the aim of the 2nd defendant is only to protract the suit.
(vi) The 2nd defendant filed additional written statement quoting the recitals of the Will and contending that the Will becomes effective only after the death of the testator. But the will does not contain the ingredients such as the Will takes effect from the date of death of executant, and executant reserves right to revoke the Will during his life time, and that issue of probate in O.S.No.176 of 1985 does not confer any right on the Plaintiff in the suit schedule property, as the appeal in CCCA No.18 of 1991 is pending before the High Court. Hence, the Will has not become effective. Therefore, the Plaintiff has no legal title and has not been in possession thereof within 12 years from the date of death of Gajadhar, and therefore, the suit is liable to be dismissed.
4. Basing on the above pleadings, the following issues were framed by the trial Court for trial:
(1) Whether the suit is bad for non-joinder necessary parties?
(2) Whether late Gajadhar Singh has o right to execute Will in respect of schedule property?
(3) Whether the final decree in O.S.No.176 of 1985 is binding on D.1?
(4) Whether the Will dated 1.5.1967 is true, valid and binding on the defendants?
(5) Whether the Plaintiff is entitled for recovery of possession of schedule property?
(6) To what relief?
5. On behalf of the plaintiff, PW.1 was examined, and Exs.A.1 to A.6 were marked. On behalf of the defendants DW.1 was examined, and Exs.B.1 and B.2 were marked.
6. Through the Judgment dt. 7th July, 2008, the trial Court dismissed the suit holding that the same is barred by the provisions of Order 2, Rule 2 CPC and also Articles 58 and 65 of the Limitation Act. Aggrieved by the same, the plaintiff preferred the appeal contending that the Court below ought to have seen that the relief claimed in O.S.No.176 of 1985 is different from the relief prayed in O.S.No.1375 of 2001, that against the Judgment and Decree in O.S.No.176 of 1985, CCCA No.18 of 1991 is pending before the High Court, that the present suit being one for recovery of possession is not barred by limitation; that the cause of action had arisen after O.S.No.176 of 1985 was decreed, and therefore does not bar the present suit. It is further contended that the provisions of Order II, Rule 2 CPC are also not attracted to the case in hand and nothing is shown to the effect that the cause of action in O.S.No.176 of 1985 and the present suit is one and the same.
7. Sri VLNGK Murthy, learned counsel appearing for the appellant submits that the impugned Judgment and Decree cannot be sustained and therefore the same is liable to be set aside. It is further submitted that the plea of recovery of possession could not be taken in the present suit which was limited to grant of probate of the will and only thereafter the cause of action to seek the relief of recovery of possession has arisen.
8. Sri Suresh Shiv Sagar, learned counsel appearing for the contesting respondents submits that the suit is clearly barred by limitation and also hit by the embargo enshrined in Order II, Rule 2 CPC, and that the Court below has properly appreciated the factual and legal aspects and dismissed the suit, which do not warrant any interference.
9. The point for consideration is as to (a) Whether the present suit O.S.No.1325 of 2001 is not maintainable in view of the provisions of Order II, Rule 2 CPC? (b) Whether the suit is barred by limitation? and (c) Whether the Judgment and Decree passed by the trial Court are liable to be set aside, modified or varied?
10. Having heard the submissions of the learned counsel for the appellant as well as the respondents, and perusing the oral and documentary evidence on record, it can be said that the parties are not disputing the factual aspects, which may briefly be noticed as hereunder:
Gajadhar was an Ex-Serviceman and a Pensioner and he died on 28.10.1968, at the age of about 80 years. His wife Tulja Bai died on 24-06-1980. He had four sons, namely Atmaram, Amar Singh, Ram Kishan Singh, Bal Ram Singh, and two daughters - Smt. Rani Bai, and Kalavati Bai. Gajadhar was the owner and possessor of suit schedule house. The plaintiff is the son of Atmaram, eldest son of Gajadhar, and he died on 5.5.1971. Amar Singh is also said to have died in or about 2000. Ram Kishan Singh also died. One of the daughters, namely, Rani Bai is also dead.
11. The plaintiff, who is examined as PW.1 claimed that Gajadhar has executed a registered Will on 1.5.1967 bequeathing the suit schedule house to him, when he was aged about 5 years. About a year after the execution of the Will, Gajadhar died and two and half years thereafter, the father of the plaintiff-Atmaram was also died. The plaintiff attained majority in 1981. On 07.12.1983 the plaintiff filed O.P.No.26 of 1984 on the file of the Chief Judge, City Civil Court, Hyderabad, under Section 276 of the Succession Act for grant of probate of the Will, which was contested. Subsequently, the said original petition was converted into Original Suit i.e., O.S.No.176 of 1985 and was made over to the trial Court, which was decreed on 27.02.1990 granting probate. The matter was carried in appeal to the High Court by filing CCCA No18 of 1991.
12. Thereafter, the plaintiff of that suit as well as the present suit filed EPSR No.13209 of 1990 on the file of the Addl. Chief Judge, City Civil Court, Hyderabad. The office of the said Court took an objection about the maintainability of the E.P., on the ground that there is no decree for delivery of possession. Aggrieved by the said office objection, the plaintiff preferred CRP No.638 of 1991, and by order dt. 8.8.1996, the High Court dismissed the said CRP, holding that there is no decree in favour of the plaintiff to recover the possession of the property and as such no execution petition can be entertained for recovery of possession. Nearly four years thereafter i.e., on 22.3.2000, the plaintiff filed the suit in hand for recovery of possession of the suit schedule house.
13. The suit is contested by the defendants on the ground that since in the O.P/O.S., the plaintiff has not sought for the relief of recovery of possession, even though he was entitled to do so, the present suit filed nearly 18 years thereafter is not maintainable. It is also objected that the plaintiff attained majority in 1981 and admittedly, the plaintiff was out of possession of the suit schedule house substantially for a long period prior thereto and even after attaining majority, the suit for recovery of possession is filed only in September 2000 i.e., nearly after 18 years. Therefore, the suit is barred by limitation. The objections raised by the defendants found favour and the trial Court dismissed the suit. Hence, the appeal.
14. The plaintiff as PW.1 reiterated the plaint averments and also admitted the fact that even in the year 1983 when the previous O.P/O.S., was filed, he was entitled to seek the relief of recovery of possession of the property, which has not been done. As a matter fact, the cause of action shown in the said OP/OS is shown as 01.03.1983, the date on which Defendant No.2 refused to deliver the possession of the suit schedule property to the plaintiff. PW-1 has categorically admitted that no prayer for recovery of possession of suit house from Defendant No.2 was made in that suit and he further admits that in the previous suit he gave evidence as PW.1 and deposed that when he demanded Defendant No.2 for delivery of possession of the property on 1.3.1983 he refused and hence the suit was filed. PW.1 categorically admits that the present suit is filed 25 years after the alleged demand and refusal for recovery of possession of the suit schedule house from Defendant No.2, was made.
PW.1 further admits that out of his three paternal uncles only Defendant No.2, namely Bal Ram Singh is alive now and he is aged about 75 years at the time of his evidence i.e., in November 2006. PW.1 further admits that as a matter of fact, Defendant No.2 was born in the suit house and that Defendant No.2 had been in possession of the suit house for nearly 75 years.
15. From the above, it is manifest that even prior to the Plaintiff instituting earlier OS.No.176 of 1985 (OP No.26/1984), there exist the cause of action for the Plaintiff to seek recovery of possession of the suit schedule house. Even though his senior paternal uncle, who was in possession of the suit schedule house refused to deliver the possession of the suit schedule house as demanded, the Plaintiff filed OP/OS for grant of probate and has not taken any steps whatsoever to seek the relief of recovery of possession of the suit schedule house, which was in fact very much available to him as on the date when the OP/OS came to be filed.
16. The OP was filed for probate of immovable property. The legatee in that Will is said to be the Plaintiff and since he was aged about five years, his father Atmaram was appointed as an executor. His father Atmaram died on 5.5.1971, and the proceedings for probate were initiated only in December, 1983.
[1]
17. In Shashikala v. Babitha Sharma & Others the High Court of A.P. in Para-4, made the following observations:-
“The O.P. was filed by respondent No.1 under Section 276 of the Act specifically for the relief of grant of probate. The contention of the learned counsel for the appellant that the Courts in the State of Andhra Pradesh do not have jurisdiction to grant probate is supported by the Judgment of a Division Bench of this Court in A.S.Murthy v. DVSS Murthy, 1979(2) ALT 347, which, in turn, was followed by the Judgments in Gangavath Lalu v. Gangavati Tulsi, 2001(2) ALD 379 and Inkollu Sasikala and Shyamala v. Inkollu Venkata Murthy, 2004(5) ALD 449. Therefore, the O.P. filed by respondent No.1 was defective. That, however, is not a factor to hold that the proceedings initiated by respondent No.1 are untenable. In Inkollu’s case, this Court held that if a civil Court in the State of Andhra Pradesh has granted probate, the proceedings can be treated as those instituted under Section 370 of the Act and the relief can be confined to the items of movable property. Therefore, invocation of Section 276 of the Act cannot be said to be fatal to the proceedings and instead, the O.P. can be treated as the one filed under Section 370 of the Act. Incidentally, in this case, the Will does not cover any items of immovable property.”
In the instant case, the Will does not cover any movable property but is only in respect of immovable property, namely, the suit schedule house.
18. Rule-2 of Order-II CPC mandates that ‘Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.” The object of Order-II of CPC is to avoid multiplicity of proceedings and to vex the parties over and again in a litigative process. The Supreme Court of India in a recent decision reported in
[2]
State Bank of India vs. Gracure Pharmaceuticals Ltd. held that the object is laudable. The Supreme Court further laid down that Order-II, Rule 2 provides that every suit shall include the whole of the claim, which the Plaintiff is entitled to make in respect of the same cause of action, and that the Plaintiff is not entitled to split the cause of action into parts by filing separate suits.
19. It is no doubt true that when the Plaintiff initiated proceedings under Sec.276 of the Succession Act by filing O.P/OS, there also existed the cause of action for the Plaintiff to seek the relief of recovery of possession. It is also true that the proceedings under Sec.276 of the Act were not required to be initiated. As already stated, the testator under the Will dt.1.5.1967 has executed the Will bequeathing the property in favour of the Plaintiff, who was a boy aged about 5 years and appointed Atmaram, the father of the boy/legatee to be an executor of the Will. The said Atmaram died on 5.5.1971. Therefore, the recourse of the Plaintiff to obtain probate of an immovable property is defective, as has been observed by the High Court of A.P., in the decision 1st cited supra.
20. The proceedings of probate went on till the disposal of O.S.No.176 of 1985 in 1990, and thereafter, the Plaintiff filed E.P., which was not considered. As long back as in August 1996, the High Court in CRP No.638 of 1991 categorically held that the Plaintiff is not entitled to recover the possession of suit schedule house since neither there was a prayer for it nor a decree granted in his favour. Even thereafter for four years, the Plaintiff has not initiated any steps to recover the possession of the property. Only on 22.09.2000, the suit in hand came to be filed.
21. It may be recalled that even during the life time of Gajadhar neither the Plaintiff nor his father Atmaram or the testator Gajadhar were living in the suit house. On the other hand, it is an admitted fact that for about 75 years, it is Defendant No.2, who had been living in the suit schedule house. As a matter of fact, there is an allegation that the father and mother of the Plaintiff along with the Plaintiff was driven out of the suit schedule house even during the life time of Gajadhar. Gajadhar lived till 24.10.1968. He has not taken any action. Atmaram was alive till 5.5.1971. He was aware about the execution of the Will dt. 1.5.1967 and the fact that he was appointed as an Executor. Even he did not take any action. The Plaintiff became major in the year 1981. For about two years thereafter also, the Plaintiff did not initiate any proceedings and the proceedings that were initiated in December 1983 was only to grant probate of the Will executed by Gajadhar, which was not at all required.
22. Probate means copy of the Will certified by the seal of a competent Court with a grant of administration of the estate of the testator. It is the official evidence of an executor’s authority. A probate granted by a competent Court is conclusive evidence of the validity of a Will until it is revoked and no evidence can be admitted to impeach except in a proceeding to revoke the probate. However, the grant of probate of a Will establishes the legal character of the executor and in no way decides the title or even the existence of the property devised. The grant of probate decides only the genuineness of the will and the executor’s right to represent the estate.
23. A Division Bench of the High Court of Bombay after referring to several authorities of the Supreme Court on the subject made the following observations in Ramachandra Ganapathi Rao Halde vs.
[3]
Vittal Rao :
“5. In a proceeding for the grant of probate or for the grant of Letters of Administration with a will annexed, the Court exercising testamentary jurisdiction is not concerned with title to property. In determining whether probate should be granted, the Court determines only upon the genuineness and due execution of the will. Determinations on issues of title are alien to probate proceedings. In Ishwardeo Narain Singh v. Kamta Devi, AIR 1954 SC 280 the Supreme Court formulated the principle of law in the following terms “The Court of Probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the Probate Court.”
This principle was reiterated in Chiranjilal Shrilal Goenka (deceased through LRs) v. Jasjit Singh (1993) 2 SCC 507 in the following observations:
“The Succession Act is a self-contained code insofar as the question of making an application for probate, grant or refusal of probate or an appeal carried against the decision of the probate Court. This is clearly manifested in the fascicule of the provisions of the Act. The probate proceedings shall be conducted by the probate Court in the manner prescribed in the Act and in no other ways. The grant of probate with a copy of the will annexed establishes conclusively as to the appointment of the executor and the valid execution of the will. Thus it does no more than establish the factum of the will and the legal character of the executor. Probate Court does not decide any question of title or of the existence of the property itself”
6. In Delhi Development Authority v. Mrs.Vijaya C.Gurshancy (2003) 7 SCC 301 : (AIR 2003 SC 3669) the Supreme Court again emphasized the following principle:
‘A Testamentary Court is only concerned with finding out whether or not the testator executed the testamentary instrument of his free will. It is settled law that the grant of a Probate or Letters of Administration does not confer title to property. They merely enable administration of the estate of the deceased.’
7. In Krishna Kumar Birla v. Rajendra Singh Lodha (2008) 4 SCC 300 : (AIR 2008 SC (Supp) 1663) the Supreme Court once again reiterated that:
“The jurisdiction of the Probate Court is limited being confined only to consider the genuineness of the will. A question of title arising under the Act cannot be gone into the (sic probate) proceedings. Construction of a will relating to the right, title and interest of any other person is beyond the domain of the Probate Court.
… … … 14. In Thrity Sam Shroff v. Shiraz Byremji Anklesaria, 2007 (2) All MR 856 : (2007 (3) AIR Bom R 106) a Division Bench of this Court while interpreting the provisions of Section 295, which provides that in contentious cases, the proceedings before the District Judge shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908, observed thus:
“… the proceeding shall merely take the form of a suit according to the Code of Civil procedure and that too as nearly as possible, meaning thereby that though the proceeding is not a suit within the meaning of the said expression under the Code of Civil Procedure, yet the provisions of the Code of Civil Procedure, to the extent they are not inconsistent with those of the said Act, may be followed bearing in mind the limited jurisdiction and function of the probate Court.”
Now, it has been emphasized on behalf of the appellant that the words “all matters connected therewith” in Section 266, have a broad connotation and that Section 268 emphasizes that the proceedings before the District Judge in relation to the grant of probate and Letters of Administration will be regulated so far as the circumstances of the case permit by the Code of Civil Procedure, 1908. It is contended that the power to grant interim orders is a necessary adjunct of the power of a civil Court. The ambit of the words “all matters connected therewith” has to be construed in relation to the grant of probate and letters of administration. Such a proceeding does not concern itself with title or even the existence of the property but only determines whether the will was executed by the testator of his own free will. That being the ambit of the proceeding, the words “connected therewith” cannot transform the probate proceeding into one in which issues alien to the grant of probate are to be decided. That would be impermissible. The contents of the broad general language in Sections 266 and 268 must be read in the context of the specific provisions which are made in Section 269. The Legislature in sub-section (1) of Section 269 made a specific provision to the effect that until probate of the will of a deceased person is granted or an administrator of his estate is constituted, the District Judge (i) is authorised and required to interfere for the protection of such property at the instance of any person claiming to be interested therein; and (ii) in all other cases where the Judge considers that the property incurs any risk of loss or damage to do so. For that purpose, the District Judge is empowered to appoint an officer to take and keep possession of the property. While recognising and conferring such a power expressly on the District Judge, the Legislature nonetheless mandated in sub- section (2) that this Section shall not apply when the deceased is a Hindu, Mohammadan, Biddhist, Sikh or Jaina or an exempted person, nor shall it apply to any part of the property of an Indian Christian, who has died intestate. When Section 268 emphasizes that “save as hereinafter otherwise provided”, the proceedings before the District Judge shall be regulated by the Code of Civil Procedure, 1908, so far as the circumstances of the case permit, it is not open to the District Judge to exercise a power contrary to the legislative intent and mandate of Section 269. Until probate of the Will is granted of a deceased person or an administrator is constituted, the statute has recognized the power of the District Judge for the protection of the property (at the behest of a person claiming to be interested) and in all other cases (where the Judge considers that the property incurs a risk of loss or damage). But, just as this power is specifically conferred upon the District Judge, sub-section (2) precludes the exercise of the power when the deceased belongs to one of the categories specified in sub-section (2). If the provisions of Sections 266 and 268 were broad enough to bring within their purview, powers of the nature specified in sub-section (1) of Section 269, there was no necessity to incorporate a provision in the nature of sub-section (1) of Section 269. As a rule of interpretation, the Court will not ascribe or attribute the use of a surplusage to the Legislature. But, even if an alternate construction is possible – one that recognizes that sub-section (1) of Section 269 only makes implicit a power which is exercisable under Sections 266 and 268 – the effect of sub- Section (2) is to preclude the exercise of that power in the case of one of the excepted categories. It would not be permissible in the face of the specific provision of sub-Section (2) of Section 269 to read into the provisions of Sections 266 and 268 a general power to grant interlocutory relief even prior to the grant of probate in respect of the property which is alleged to form part of the estate of the deceased. This construction is fortified by the principle that the testamentary Court in proceedings for probate is only concerned with the question as to whether the Will of the deceased is genuine and that it has been made voluntarily. The probate Court is not concerned with questions relating to the property itself. Though an assiduous attempt was made on behalf of the appellant to rely upon the provisions of the Act, to which a reference has been made earlier, the Court in this case is essentially concerned with the powers of the testamentary Court when it exercises its jurisdiction in a petition for the grant of probate. In view of the express provision which is contained in Section 269 (2), there can be no recourse to the exercise of the inherent powers of the Civil Court. This, however, would not preclude recourse to a civil suit for obtaining relief necessary for the protection of the property.”
24. The submission of the learned Counsel for the appellant firstly is that the scope of enquiry in probate proceedings is limited and he could not have raised the plea of recovery of possession even though he was entitled to do so. Secondly, the cause of action to recover possession accrued only after the conclusion of probate proceedings. Hence, the suit in hand can neither be said to be barred by Order II Rule 2 of CPC., or the provisions of Limitation Act. While the first limb of submission of the learned Counsel is correct but however, the second part of the submission is not correct. The cause of action mentioned in the probate proceedings has also afforded a basis for claiming the present relief, it however did not enable the plaintiff to ask for any relief other than that he has sought for in that suit. The plaintiff could not have claimed the relief which he seeks in the present suit. Therefore, it is held that the present suit cannot be said to be barred by Order II Rule 2 C.P.C.
25. When there is prohibition to seek the relief of recovery of possession in probate proceedings, there is no such limitation on his right to seek the said relief in an independent proceedings. Pendency of probate proceedings which is not required, do not put any fetters on the right of the plaintiff to seek recovery of possession. The clock of limitation do not come to a standstill so long as the probate proceedings are pending. Though the plaintiff could not have prayed for the present relief in the previous proceedings, that do not however imply that there was any legal embargo in initiating independent proceedings for the comprehensive relief of declaration and recovery of possession.
26. Therefore, the present suit of the plaintiff cannot be said to be within limitation. Suit for recovery of possession based on title is required to be instituted within 12 years from the date when the right accrues. Admittedly, the original owner Gajadhar, his son Atmaram, and the plaintiff had been out of possession of the suit house right from 1967. Gajadhar and Atmaram have not initiated any steps for recovery of possession. The plaintiff became major in or about 1981. He claims to have knowledge about the execution of the will in his favour. Even though, in 1983 he has taken the proceedings for grant of probate, he has not taken steps to seek the relief of recovery of possession. The probate proceedings concluded in the year 1990. The plaintiff has taken steps to execute the decree in probate proceedings for recovery of possession. The Execution Petition filed by him in the year 1990 was not even registered by the Executing Court on the ground that there is no decree for possession. The plaintiff carried the matter in revision to the High Court by filing C.R.P.No.638 of 1991, which ultimately came to be dismissed on -8-08-1996. The present suit is not filed immediately after the C.R.P. was dismissed. The suit is filed nearly four years after it was conclusively held that the plaintiff cannot execute the decree in probate proceedings for recovery of possession of the schedule house.
27. In view of the above, it is held that the suit having been filed in 2001 is barred by limitation. The cumulative effect of the foregoing discussion is that even though the present suit of the plaintiff cannot be said to be barred by the provisions of Order II of Rule 2 C.P.C., it is certainly barred by law of limitation. Therefore, he is not entitled to the relief. The points are accordingly answered.
28. In the result, the appeal fails and accordingly the same is dismissed. No costs. The miscellaneous petitions, if any pending, shall stand disposed of. No costs.
M.S.K.Jaiswal, J Date: 06th June, 2014 Kv HON'BLE SRI JUSTICE M.S.K.JAISWAL
CCCA.No. 8 of 2009
Judgment
06th June, 2014 Kv
[1] 2010(5) ALD 816
[2] 2014(1) ALT 25 (SC)
[3] AIR 2011 Bombay 136