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TMI Blog2017 (9) TMI 2009X X X X Extracts X X X X X X X X Extracts X X X X ..... ikely to be alienated and such apprehension would have constituted and in fact, it being already there has constituted in the present case, a cause of action for filing of a suit seeking such a relief by the appellant. So, the limitation for this relief in the present case began to run on 26.7.2011 and that means, suit for this relief should have been filed on or before 25.7.2014. But, suit has been filed in January 2015 and, therefore, the main relief sought in the present suit would have to be said as barred by law of limitation as prescribed under Article 58 of the Limitation Act - Once it is found that the main relief sought in the suit itself is barred by limitation, the other reliefs being consequential in nature, could also not be granted and thus, for those reliefs also, the suit would not be maintainable in law. There are no error of fact or law could be noticed in the impugned judgment and there is no need to make any interference with it. The suit filed by the appellant is barred by the law of limitation - there is no merit in the appeal and it deserves to be dismissed - Appeal is dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... Ganeshlal Harnarayan Jaiswal. 5. After the death of Mohanlal, the suit property came to Chandanlal. Chandanlal used the suit property for his residential purpose only and did not commit any breach of the condition of the Will dated 4.3.1946. However, after his death in 1970, his wife Laxmibai came into possession of the suit property and it was after this point of time, it appears that the attempts to deal with the suit property were made. 6. It was contended by the appellant that respondent No. 1, falsely claiming herself to be the owner of the suit property, made an attempt to sell the suit property to some third person. It was further claimed by the appellant that on 18.7.2011, he learned about such an attempt being made by respondent No. 1. He, therefore, applied to the Zonal Office of the Nagpur Municipal Corporation under the Right to Information Act, 2005 to obtain copies of documents relating to the suit property and those documents were supplied to him on 26.7.2011. Amongst the supplied documents, was the Will dated 4.3.1946 which made it clear to the appellant that suit property could not be sold or alienated in any manner by Chandanlal or for that matter, anybody clai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n sought till the time a clear right to sue accrued to the appellant and in this case, clear right to seek these declarations accrued to the appellant only when it became clear to the appellant that the suit property had been agreed to be sold by respondent No. 1 to respondent No. 2 sometime on 17.3.2012 when an agreement to sell was executed by respondent No. 1 in favour of respondent No. 2, which was followed by sale deed dated 11.4.2012. He submits that under Article 58 of the Limitation Act, the limitation period prescribed for obtaining declarations of the nature as are sought in the present suit, is of three years and it begins to run when the right to sue first accrues. According to him, right to sue in the instant case first accrued on 17.3.2012 as it became clear on that date only that there had been alienation of the suit property in violation of the condition contained in the Will dated 4.3.1946. He places reliance upon Archana Bhimrao Randaye v. Dr Kavita Dilip Changole reported in 2017 (3) Mh. L. J. 589 and Mrs. Geeta Patkar v. Chandrakant Kantilal Shah & ors reported in 2015 (5) ALL MR 794. 10. Learned counsel for the appellant further submits that while considering ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aint discloses cause of action, every fact and every bundle of facts which, if controverted, would be required to be proved by the plaintiff in order to seek relief in his favour, must be pleaded and that the Court must guard against the attempts of the party to camouflage the bar of limitation through illusions of cause of action created by a clever draftsman and if such essential facts are not pleaded, the plaint would have to be held as not disclosing cause of action. In the case of I.S. Sikandar (supra), it was held that when the agreement for sale of which specific performance was sought by the plaintiff itself was terminated owing to failure of plaintiff to perform his part of contract, any suit for specific performance of agreement to sell and consequential relief of decree for permanent injunction, could not be maintained in law unless a relief to declare the termination of agreement for sale as bad in law, is also sought. 13. There can be no dispute about these principles of law and bearing them in mind, now the rival arguments would be considered. 14. Since the question of bar of suit on the ground of limitation has been raised, it would be appropriate that the reliefs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relief claimed in clause (1) is of the declaration and there is no dispute between the parties that limitation period prescribed for such a declaration is covered under Article 58 in the Schedule to the Limitation Act. It lays down that to obtain such a declaration, the period of limitation is three years and it begins to run when right to sue first accrues. We have seen from the ratio of the case laws referred to earlier that this right to sue has been interpreted to be a "clear right to sue" when there is a clear and unequivocal threat to the right sued upon. In order to determine as to when such clear right to sue first accrued to the appellant in the present case, it would be necessary for us to refer to the pleadings in the plaint and evidence led. At this juncture, I must say that what is being decided by this Court is the legality and correctness of the judgment delivered on the preliminary issue framed under Section 9A of CPC and, therefore, it would be permissible for this Court to not only consider the pleadings in the plaint, but also the pleadings of the respondent and evidence adduced by the parties on the preliminary issue and, therefore, the cases of Sundee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that there were attempts made by the occupant to sell the suit property. Such knowledge of the appellant constituted a clear right to sue to get a relief which is the main relief in prayer clause (1) to the effect that as per Will dated 4.3.1946, the suit property cannot be let out, sold, mortgaged, bequeathed or alienated in any manner. For getting such a declaration, it was enough for the appellant to apprehend, founded on reasonable basis, that the suit property was likely to be alienated and such apprehension would have constituted and in fact, it being already there has constituted in the present case, a cause of action for filing of a suit seeking such a relief by the appellant. So, the limitation for this relief in the present case began to run on 26.7.2011 and that means, suit for this relief should have been filed on or before 25.7.2014. But, suit has been filed in January 2015 and, therefore, the main relief sought in the present suit would have to be said as barred by law of limitation as prescribed under Article 58 of the Limitation Act, which I do so. 20. Once it is found that the main relief sought in the suit itself is barred by limitation, the other reliefs cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en held that one who propounds the Will, the burden of proving that Will lies on him. He submits that the appellant is not relying upon the Will dated 10.9.1999 and, therefore, his not seeking any relief in the nature of declaration that Will dated 10.9.1999 is invalid and bad in law, cannot be held against the appellant. 25. It is true that the appellant is not relying upon this Will. Equally, it is true that the appellant has been made aware of existence of this Will when he appeared in the previously instituted suit against him by respondent No. 1, which was Regular Civil Suit No. 3912 of 2012 filed on 5th May 2012. In that suit, it was made clear by respondent No. 1 that she was in lawful possession of the suit property for last so many years; that the Will dated 10.9.1999 in respect of the suit property was executed in her favour by deceased Laxmibai; that she was paying property taxes to the Corporation; that her name as possessor and owner of the suit was duly mutated; that she was daughter of real sister of Laxmibai and that Laxmibai had taken care of her since she was two years old, that the suit property was bequeathed to her by Laxmibai through her Will dated 10.9.1999 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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