Akshaya Kumar Rath JUDGMENT
Dr. Akshaya Kumar Rath, J.
1. Defendant is the appellant against a confirming judgment.
2. Case of the plaintiff is that the suit land was originally recorded in the name of Rath Panigrahi, predecessor-in-interest of the defendant. One Narayan Panda purchased the suit property in a court auction and took delivery of possession. He sold the same to Baidyanath Raut by means of a registered sale deed dated 1.5.1945. Arjun Sahu and his brothers Bansidhar and Baishnab purchased the suit land from Badyanath by means of a registered sale deed dated 18.11.1946. Possession of the land was delivered to the vendees. Bansidhar and Baishnaba were issueless. After their death, Arjuna, father of the plaintiffs, became the sole owner of the suit property. Major Settlement operation in the area, where the suit land falls, started in the year 1962. The ROR was finally published in the year 1968. Arjuna died prior to 1962. The defendant managed to get the suit land recorded in his name. In the year 1978, the defendant tried to dispossess the plaintiffs from the suit land. With this factual scenario, they instituted O.S. No. 160 of 1978 in the court of the learned Munsif, Balasore for correction of record of right through their next friend, since they were minors.
3. The defendant filed a written statement denying the assertions made in the plaint. Case of the defendant is that the suit land is his ancestral homestead. He is in possession of the same for more than twelve years and as such perfected title by way of adverse possession.
4. On the inter se pleadings of the parties, learned trial court struck eight issues. Both the parties led evidence, oral as well as documentary, to substantiate their case. Learned trial court came to hold that defendant and his predecessor-in-interest were dispossessed from their ancestral homestead land. The plaintiffs' vendor took possession over the suit land. The suit is not barred by limitation. Held so, the learned trial court decreed the suit. Unsuccessful defendant challenged the judgment and decree of the learned trial court before the learned Addl. District Judge, Balasore, which was eventually dismissed.
5. The appeal was admitted on the following substantial question of law;
"1. Whether in the instant case benefit under Sec. 6 of the Limitation Act can at all be availed of by the plaintiffs ?
2. From the aforesaid facts, presumption as to final publication arising in favour of the defendant as per Ext. A, whether would not support the case of defendant of possession of the disputed land throughout ever since the first ROR Ext. B relating to 1330 settlement where the property stands in the names of the predecessor in interest of defendant ?
3. For that in view of Sec. 27 of the Limitation Act that "at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.", the substantial question of law that arises for consideration that a presumption U/s 13 of the Orissa Survey and Settlement Act being in favour of defendant that the ROR Ext. A is conclusive, whether in the absence of any suit for recovery of possession within the statutory period by the plaintiffs, the defendant does acquire suit property by prescriptive right of acquisition?"
6. Heard Mr. S.P. Mohanty along with Mr. P.K. Lenka, learned counsel for the appellant and Mr. A.K. Mishra, learned counsel for the respondents.
7. Mr. Mohanty, learned counsel for the appellant argued with vehemence that the record-of-right was published in the year 1968, when the plaintiffs were minors. The period of limitation for filing the suit is three years U/s 42 of the Orissa Survey & Settlement Act. Since the plaintiffs suffered from legal disabilities, suit should have been filed in the year 1971 or within three years after cessation of disability. In case a person under disability chooses the prescribed period of limitation to be reckoned from the date of accrual of cause of action, the whole period prescribed begins to run from the date of cause of action. Sec. 6 of the Limitation Act is an enabling provision. It does not extend the period of limitation. Since cause of action accrued in the year 1968, the suit is barred by limitation. To buttress his submissions, he relied on the decision of the apex Court in the case of Bailochan Karan v. Basant Kumari Naik and another, MANU/SC/0074/1999 : AIR 1999 SC 876, this Court in the case of Kumari Subasini Panda & others v. State of Orissa & others, MANU/OR/0073/1984 : 57 (1984) CLT 262 and the Gujarat High Court in the case of Jadav Prabhatbhai Jethabhai and others v. Parmar Karsanbhai Dhulabhai and others, MANU/GJ/0001/2001 : AIR 2001 Gujarat 118 (Full Bench).
8. Per contra, Mr. Mishra, learned counsel for the respondents submitted that the major settlement ROR was published in the year 1968. Father of the plaintiff died prior to 1962. The plaintiffs were minors. Defendant tried to dispossess the plaintiffs from the suit land in the year 1978 claiming that the same has been recorded in his name in the ROR. Thus the cause of action accrued in the year 1978 and as such, the suit is within the time. He placed reliance on a decision of the apex Court in the case of Daya Singh and another v. Gurdev Singh (dead) by Lrs. and others, MANU/SC/0012/2010 : (2010) 2 SCC 194.
9. Before proceeding further, it is apt to refer to certain provisions of the Orissa Survey & Settlement Act and the Limitation Act, 1963.
Sec. 42(1) of the Orissa Survey & Settlement Act, 1958 provides:
"No suit shall be brought in any Civil Court in respect of any order directing survey, preparation of record-of-rights or settlement of rent under this Act or in respect of publication, signing or attestation of any record thereunder or any part thereof.
Provided that any person aggrieved by any entry in or omission from any record finally published under Section 6-C, 12-B or 23 in pursuance of Section 36 may, within three years from the date of such publication, institute a suit for relief in a Civil Court having jurisdiction."
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Sec. 6(1) and Sec. 8 of the Limitation Act, 1963 read thus:
"6. Legal disability.-(1) Where a person entitled to institute a suit or make an application for the execution of a decree is, at the time from which the prescribed period is to be reckoned, a minor or insane, or an idiot, he may institute the suit or make the application within the same period after the disability has ceased, as would otherwise have been allowed from the time specified therefor in the third column of the Schedule.
xxx xxx xxx
8. Special exceptions.- Nothing in section 6 or in section 7 applies to suits to enforce rights of preemption, or shall be deemed to extend, for more than three years from the cessation of the disability or the death of the person affected thereby, the period of limitation for any suit or application."
10. In Kumari Subasini Panda (supra), this Court held that Sec. 6 is an enabling section, which confers a personal privilege on the person under disability. Sec. 7 is a proviso to Sec. 6 and should go together. Sec. 6 of the Indian Limitation Act does not in terms extend the period of limitation prescribed for any legal action but merely enables a person under disability at his choice to have limitation reckoned against him either from the date of accrual of the cause of action or from the date of cessation of the disability. In case the person under disability chooses the prescribed period of limitation to be reckoned from the date of accrual of the cause of action, the whole period prescribed begins to run from the date of the cause of action. In the latter case, Sec. 8 of the Indian Limitation Act steps in to cut short the period of three years from the date of cessation of the disability where the prescribed period exceeds three years.
11. In Jadav Prabhatbhai Jethabhai (supra), the Gujarat High Court held that the combined reading of Secs. 6 and 8 and Article 60 postulates that the suit is required to be filed within a period of three years from the date of attaining the majority. Sec. 8 is proviso to Sec. 6 or Sec. 7. A conjoint reading of Secs. 6 & 8 read with third column of the appropriate Article would be that the person under disability may sue after cessation of the disability within the same period as would otherwise be allowed from time specified or in the third column of the schedule. Such an extended period in no case go beyond the period of three years from the date of cessation of the disability. The right to institute a suit of the party shall get expired at the end of three years from the date of his attaining majority.
12. In Sardar Vijaysingh Rao Ghorpade v. Jeewan Lal Ram Das Jaiswal, MANU/MP/0033/1963 : AIR 1963 MP 100, the Madhya Pradesh High Court held that a minor has two rights: (1) he can bring a suit within a specified time after the termination of his minority (S. 6 Limitation Act), (2) that even during the subsistence of his minority, he can institute a suit through his next friend.
13. In Bailochan Karan, the apex Court placed reliance of the decision in the case of Darshan Singh v. Gurdev Singh, MANU/SC/0016/1995 : (1994) 4 SCC 585 wherein it was held that Sec. 8 is a proviso to Sec. 6 or 7-A. Combined effect of Secs. 6 and 8 read with third column of the appropriate article would be that a person under disability may sue after cessation of disability within the same period as would otherwise be allowed from the time specified therefor in the third column of the schedule. But such extended period would not be beyond three years from the date of the cessation of the disability.
14. In Daya Singh and another (supra), the appellants filed a pre-emption suit being Pre-emption Suit No. 377 of 1966 against the respondents for possession of 2/3rd share sold to them. The suit was decreed. Respondents filed appeal against the decree before the learned District Judge. The same was dismissed. They filed second appeal before the Punjab and Haryana High Court, which was eventually dismissed. After disposal of the second appeal, parties compromised the dispute and the same was reduced into writing. The same was presented before the Division Bench when the letters patent appeal was pending. Letters patent appeal was disposed of in terms of the compromise. Thereafter, appellants as plaintiffs filed a suit for a declaration that they are owners of 1/9th share and in joint possession of 2/3rd share of land along with the respondents and correction of ROR. A contention was raised that the suit was instituted after 18 years of entering into the compromise by the parties in the letters patent appeal and as such, barred by limitation. The apex Court held that right to sue accrued when such right was infringed by the defendants about a week back when the plaintiffs had for the first time come to know about the wrong entries in the record of rights and when the defendants had refused to admit the claim of the plaintiffs. Therefore, the suit was within limitation.
15. In Satyandra Narain Sinha and others v. Pitamber Singh and others, MANU/BH/0209/1937 : AIR 1938 Patna 92, the Patna High Court held that under Sec. 6(1) of the Act, a minor is entitled to institute a suit or make an application for the execution of a decree within the statutory period of three years after attaining his majority and it was never intended by the Legislature to restrict the protection given to a minor by the acts of his guardian in the matter of making an application for execution.
16. In Lalji Sah and others v. Sat Narain Bhagat and others, MANU/BH/0043/1962 : AIR 1962 Patna 182, the Patna High Court held that the privilege given to a minor under the section is not one that could be availed of by him only but while the minor's disability lasts his guardian or next friend also can being a suit or make an application through the ordinary period of limitation for such a suit or application has run out.
17. The position of law that emerges: Sec. 8 is a proviso to Sec. 6 or 7. A combined effect of Sec. 6 and 8 read with third column of the appropriate article would be that a person under disability may sue after cessation of disability within the same period as would otherwise be allowed from the time specified therefor in the third column of the schedule. But such extended period would not be beyond three years from the date of the cessation of the disability. A minor is entitled to institute a suit or make an application for the execution of a decree within the statutory period of three years after attaining his majority and it was never intended by the Legislature to restrict the protection given to a minor by the acts of his guardian in the matter of making an application for execution. The privilege given to a minor under the section is not one that could be availed of by him only, but while the minor's disability lasts his guardian or next friend also can being a suit or make an application through the ordinary period of limitation for such a suit or application has run out. A minor can bring a suit within a specified time after the termination of his minority and/or during the subsistence of his minority, through his next friend. A minors' right cannot be curtailed by any other process of strained construction of the aforementioned provisions of Limitation Act.
18. Admittedly the plaintiffs were minors when the ROR was published in the year 1968. They instituted the suit through their next friend in the year 1978. They could have instituted the suit in the year 1981, i.e., within three years of attaining majority. Thus the suit was filed within the prescribed period of limitation. The substantial questions of law are answered accordingly.
19. In the wake of the aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. No costs.
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