- (1.) This appeal is directed against the judgment of Madhya Pradesh High Court whereby the High Court has allowed the second appeal preferred by the defendants/respondents and dismissed the suit brought by the appellants herein.
(2.) The facts of the case in brief are these: On 14-5-1954, one Nathe Khan, predecessor-in-interest of the appellants herein, and one Shankar Rao, filed an application before the Tehsildar under Section 91 of the Madhya Bharat Land Revenue and Tenancy Act, 1950 (hereinafter referred to as the Act) for reinstatement of pucca tenant Nathe Khan who was alleged to be dispossessed by Najim Khan, predecessor-in-interest of respondents 1(a) to 1(k) in respect of agricultural land measuring 135 hectare, situated at village Maksi, Distt. Shajapur. The case of Najim Khan was that the land in dispute was given to him on patta for consideration of a premium of Rs. 100/- and he, thereafter, planted trees and constructed two houses over the said land. On 31-8-1960, the Tehsildar allowed the application with a direction to late Najim Khan to restore back possession of the land to Shankar Rao instead of Nathe Khan. Feeling aggrieved, late Najim Khan filed an appeal before the Sub-Divisional Officer, Shajapur. Nathe Khan also filed a cross-objection against the order of the Tehsildar directing delivery of possession to Shankar Rao. The Sub-divisional Officer, on 20-3-1963, allowed the appeal of Najim Khan and dismissed the cross objection filed by Nathe Khan. Nathe Khan and Shankar Rao thereafter filed second appeal before the Commissioner, Bhopal, being Revenue Case No. 357/63. The Commissioner by Order dated 30-4-1963, dismissed the appeal and affirmed the order passed by the Sub-divisional Officer. The revision petition filed before the Board of Revenue, M.P. Gwalior by Shankar Rao and Nathe Khan was also dismissed. It was held by the Board of Revenue that Najim Khan and Pan Mal were already in possession of the land since 1950 and they planted trees and also constructed two houses over the said plot of land. On 9-2-1972, the appellant herein, brought a suit for declaration of title and delivery of possession against Najim Khan and Shankar Rao. Defendant Najim Khan filed a written statement wherein it was pleaded that the suit brought by plaintiff was barred by limitation. The trial Court framed various issues and one of the issues framed was whether the suit laid by the plaintiff was barred by limitation. The trial Court was of the view that the time spent in prosecuting the case of the revenue Court should be excluded under Section 14 of the Limitation Act while computing the period of limitation for the present suit. In view of the matter, the trial Court held that the suit was filed within the period of limitation. Consequently, the suit was decreed. The decree of the trial Court was affirmed by the first appellate Court. However, the defendants/respondents second appeal was allowed by the High Court. The High Court was of the view that the benefit of Section 14(1) of the Limitation Act can be availed by the plaintiff only if the Court had not entertained the plaintiff's earlier suit on the ground of defect of jurisdiction or other cause of like nature. Since the earlier application of the plaintiff was entertained and decided on merit, the benefit under Section 14(1) of the Limitation Act was not available to the plaintiff. In view of the matter, the suit stood dismissed. It is against the said judgment the plaintiffs/appellants are in appeal before us.
(3.) On 30-9-1996, this Court while entertaining the Special Leave Petition passed the following order: "The submission of the learned counsel for the petitioner is that the petitioner could not have filed civil suit without resorting to remedies available before the revenue Courts and the suit could not be filed only when he fails before the revenue Court under Sections 91 and 92 of the Act and that being so the question of limitation cannot be raised against the petitioner as according to him limitation will commence only after the decision by the revenue Court. The second submission is that after resorting to the remedy under Sections 91 and 92 of the Act the limitation for adverse possession remains asserted. Issue notice. Mr. Gambhir accepts notice on behalf of legal heirs of respondent No. 1 Issue notice to respondent No. 2. Issue notice on application for stay also.";