K. Venkaraswami, J. - (1.) The appellant/defendant in Civil Suit No. 9-A/67 on the file of the Court of Civil judge, Class-I, Rajnandgaon, has suffered a decree at the hands of the trial Judge, directing the removal of the electric line with poles situated in the land bearing Kh. No. 908/2 area 1.32 acres at village Nandai. In addition to that, the appellant was also directed to pay a sum of Rs. 1770/- towards past damages and to pay future damages @ 5/- per day to the plaintiff (respondent-herein) from the date of institution of suit till the removal of electric line.
(2.) Aggrieved decree, an appeal was preferred to First Additional District Judge, Durg, at Rajnandgaon. The appellate Court dismissed the appeal by judgment and decree dated 5-2-1984. Still aggrieved, he preferred a second appeal in the High Court of Madhya Pradesh, Jabalpur. The High Court modified the decree by removing the mandatory injunction directing the defendant to remove the electric line with poles but sustained the decree for damages, past and future. The above appeal is directed against the judgement and decree of the High Court.
(3.) Shri Pallav Sishodia, learned counsel appearing for the appellant attempted to argue the appeal by raising a point which was neither raised in the pleadings nor argued in the Courts below, namely, that the suit was barred by limitation. As this question of limitation on the facts of this case was not one of pure question of law but a mixed question of fact and law, we did not permit the learned counsel to raise this point for the first time before us.;