TMI Blog2008 (4) TMI 813X X X X Extracts X X X X X X X X Extracts X X X X ..... ho had four sons. Except for his youngest son, Onkar Prasad, all the other sons were allegedly separated from him and were staying separately. Brijlal was staying with Onkar Prasad and excluding the descendants of his other children executed the said Will dated 5th August, 1972, in favour of his grand-children through Onkar Prasad. Brijlal died on 5th November, 1976, and on the basis of the Will executed by him, the appellants moved an application for mutation of the bequeathed properties in their names. The respondent No. 1, who is one of the grand-sons of the testator through another son, Shanti Swarup, also filed an application for mutation, which was rejected. An appeal preferred therefrom was also dismissed. On 29th April, 1977, the Te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent No. 1 herein, preferred an appeal before the Civil Judge, Aligarh, which was allowed and the judgment of the Trial Court was reversed without deciding the question of limitation which had been decided against the plaintiff-respondent No. 1 and in favour of the defendants-appellants herein. 6. The defendants-appellants herein filed a second appeal before the Allahabad High Court on 3rd October, 1983, and the same was also dismissed on 6th February, 2006, affirming the judgment and order of the Appellate Court. 7. In this appeal, the main point which was urged on behalf of the appellant is that although all the issues in the suit were decided against the plaintiff-respondent No. 1 by the Trial Court, in addition, the Trial Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure of an observation made in passing. 11. In support of her submissions, learned Counsel referred and relied upon the decision of this Court in State of Punjab v. Darshan Singh AIR2003SC4179 wherein while considering the limits of the Court's powers under Section 152 of the Civil Procedure Code, this Court had occasion to consider whether a new plea in respect of which no specific issue had been framed could be raised in second appeal or in a special leave petition before this Court. Ms. Srivastava submitted that this Court had categorically held that despite a plea with regard to limitation having been taken in the written statement, no specific issue had been framed in respect thereof, and no such plea having been taken before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spective parties, the decisions cited by them and the relevant law on the subject, we are unable to accept Ms. Srivastava's submissions mainly on two counts. 15. Firstly, the facts disclosed clearly indicate that neither the First Appellate Court nor the High Court took notice of Section 3(1) of the Limitation Act, 1963, which reads as follows: 3. Bar of limitation. - (1) Subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period, shall be dismissed although limitation had not been set up as a defence. 16. Even in the decision of this Court in Darashan Singh's case (supra) the said provision does not appear to have been brou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... either in the first appeal or by the High Court in second appeal. 20. It is quite obvious that this aspect of the matter had not been looked into either by the First Appellate Court or by the High Court, nor was it raised on behalf of the appellants herein. The question, therefore, which remains to be decided is whether such a plea can now be taken in the special leave proceedings. 21. It is no doubt true, as was pointed out by this Court in the case of Balasaria Construction (P) Ltd. (supra) and also in Narne Rama Murthy's case (supra), that if the plea of limitation is a mixed question of law and fact, the same cannot be raised at the appellate stage. We have no problem with the said proposition of law. What we are concerned wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
