SATWARA KARSAN SAVA Vs. SATWARA JETHA KARSAN

JUDGEMENT

(1.) Three years under Article 47 or six years under Article 120 (of the Indian Limitation Act of 1908) which of the two is the period of limitation governing the suit giving rise to this appeal is the problem confronting us in this reference. It arises out of an action undertaken by a party against whom an injunction under sec. 5(2) of the Mamlatdars Courts Act was previously issued restraining the party concerned from obstructing the use of roads or customary ways etc. The reference arises out of a second appeal by an unsuccessful plaintiff whose suit has been dismissed as time-barred at the threshold in view of the holding of the Court on a preliminary issue that the period of limitation is three years under Article 47 and not six years under Article 120.

(2.) The relevant facts are not in dispute. There was a dispute between the appellant-plaintiff and respondents defendants Nos. 2 and 5 with regard to a right of way to pass through S. No. 198 belonging to the plaintiff. It appears that the plaintiff denied the right claimed by defendants Nos. 2 and 5 and obstructed them from passing through his field. Thereupon present defendants Nos. 2 and 5 instituted a suit under the Mamlatdars Courts Act of 1906. The Mamlatdar granted an injunction and restrained the plaintiff from obstructing them from passing through the field in question. This order was passed in exercise of powers under sec. 5(2) of the Mamlatdars Court Act. The plaintiff appealed unsuccessfully. The order of the Mamlatdar was confirmed on February 24 1959 Before the expiry of six years therefrom under the circumstances the plaintiff instituted the suit giving rise to the present appeal on February 22 1965 It was contended by the defendants that the question of limitation was governed by Article 47 of the Indian Limitation Act of 1908 (which prescribes a period of three years) and the suit was barred having regard to the law laid down in Ballappa Bhimappa and others v. Trippangowda Basangowda and others A.I.R. 1931 Bombay 256. The learned single Judge before whom the matter came up did not agree with the ratio of Ballappas Case and made a reference to a Division Bench.

(3.) Now the question which has been pointedly raised before us was never before the learned single Judge who decided Ballappas Case (supra). In that case it was being canvassed on behalf of the plaintiff that Article 47 of the Limitation Act (which provided for a period of three years) was applicable whereas the rival contention on the part of the respondentsdefendants was that Article 14 (which provided for a period of one year) was applicable to a suit of such a nature. Whether Article 47 was applicable or Article 120 of the Limitation Act of 1908 was applicable was not the question before the Court. In a way therefore Ballappas Case is no authority for the proposition that Article 47 of the Indian Limitation Act of 1908 governs a suit of the present nature and not Article 120 thereof. The competition was between two view points one which propounded that Article 47 governed a suit of this nature and other which propounded that Article 14 governed such a suit. As the plaintiff himself was canvassing that a period of three years under Article 47 was available to him no question arose as to whether Article 120 which provides for a longer period of six years was applicable. The point raised before us was thus not directly in issue between the parties in the said matter. Besides in our opinion on a true interpretation of Article 47 it is not possible to hold that a suit of the present nature will be governed by the said Article as we shall presently show.