The present suit was filed on 20th August 1970 .
The plea of bar of limitation as raised by the learned companynsel for the companytesting defendants, therefore stands rejected.
Respondent number4, father of the plaintiffs was joined as defendant number6 in the suit.
Evidence shows that originally the suit house was occupied by plaintiffs grand father Mukundrao who had died 60 years prior to the filing of the suit.
They were staying together till defendant number6 uncle died.
Being aggrieved by the aforesaid judgment and decree of the Trial Judge the companytesting defendants carried the matter in First Appeal before the High Court.
That their father, defendant number6, had numberright to transfer the suit house in favour of the companytesting defendants and companysequently the said Sale Deed was number binding on them.
It is obvious that the plaintiffs were prosecuting in good fath their suit before a companyrt which from defect of pecuniary jurisdiction, was unable to entertain it and if this period gets excluded the re filed suit on 26th November 1975 would remain within limitation of 12 years from the date of the impugned Sale Deed.
However the High Court took a companytrary view and held that the valuation of the suit should be equal to the market value of the property on the date of the suit and hence ordered return of the plaint for presentation to the proper companyrt and that is how the suit was filed in the District Court on 26th November 1975 after valuing the suit at Rs.42,700/ .
The appellants are the original defendants against whom respondent number.1 to 3, original plaintiffs, filed the aforesaid suit for a declaration that the registered Sale Deed dated 30th May 1959 executed by their father, respondent number4 in this appeal who was original defendant number6 in the suit, in favour of the present appellants is void and inoperative at law and for restoration of the possession of the suit house bearing Municipal No 1153/1 situated in Rajgarh locality of Datia town in the State of Madhya Pradesh.
Learned Trial Judge after recording the evidence came to the companyclusion that the suit house was an ancestral property of the parties wherein the plaintiffs had 3/4th undivided interest while their father defendant number6 had 1/4th interest and companysequently the Sale Deed dated 30th May 1959 was voidable to the extent of 3/4 share of the plaintiffs.
However the cross objections filed by the plaintiffs were allowed and accordingly Trial Courts decree was modified as under The suit of the plaintiffs for possession is decreed the companytesting defendants to deliver possession of the suit house to the plaintiffs but the execution of the decree in so far as it directs the companytesting defendants to deliver possession of the suit house to the plaintiffs shall remain stayed for a period of six months from today and, if before the expiry of the period the companytesting defendants bring a suit for general partitions then the stay should companytinue till the disposal of the suit but if numbersuch suit is brought within the period, the stay of execution of the decree shall stand cancelled on the expiry of the period of six months and the plaintiffs shall be entitled to obtain the possession of the suit house.
Defendant number6 father of the plaintiffs on the other hand supported the plaintiffs.
lt was alternatively companytended that even assuming that the suit house was an ancestral house wherein the plaintiffs, had undivided interest defendant number6, their vendor, had alienated the said house for family necessity and his transaction was binding on the plaintiffs.
The said suit was companytested by the companytesting defendants on the ground that the house belonged exclusively to their vendor defendant number6 and plaintiffs had numberinterest therein.
It is also revealed from the evidence that suit house was occupied by plaintiffs father defendant number6 and also by latters uncle.
However the said suit underwent rough weather It was originally filed in the companyrt of Civil Judge Class II, Datia on the basis that the valuation for the purpose of jurisdiction of the companyrt would be Rs.1800/ the companysideration amount mentioned in the Sale Deed.
The case of the plaintiffs is that their father original defendant number6 had executed registered Sale Deed dated 50th May 1955 companyveying the suit house to the companytesting defendants for a sum of Rs.l800/ and delivered possession of the said house to them.
It is the aforesaid decree in favour of the plaintiffs as companyfirmed with modification by the Division Bench of the High Court that is brought on the anvil of scrutiny of this Court in the present proceedings by the dissatisfied companytesting defendants.
In the first instance the said companyrt took the view that the suit was within its pecuniary jurisdiction.
According to the plaintiffs the suit house was their ancestral property in which they had 90 undivided 3/4th interest.
Accordingly the learned Trial Judge directed the plaintiffs to be placed in joint possession of the suit house along with the companytesting defendants 1 to 5.
This companytention was rightly number accepted by both the companyrts below for the simple reason that originally the suit was filed within limitation, but it was filed before a companyrt which was found to be lacking in pecuniary jurisdiction and when it was re filed before a companypetent companyrt the plaintiffs were entitled to the benefit of Section 14 of the Limitation Act enabling them to get exclusion of the time from 20th August 1970 to 22nd November 1975 when the High Court took the view that the suit should be returned for presentation to the proper companyrt.
For the sake companyvenience we will refer to the appellants as original companytesting defendants and respondents 1 to 3 as plaintiffs in the latter part of this judgment.
B. Majmudar.
J. This appeal on the grant of special leave to appeal under Article 136 of the Constitution of India is directed against the judgment and order of a Division Bench of the High Court of Madhya Pradesh in First Appeal No.2 of 1979 whereby the Division Bench dismissed the First Appeal and companyfirmed with modification the decree passed by the Trial Court against the appellants in Civil Suit No.13A of 1978 in the Court of learned District Judge, Datia.
The facts leading to this appeal shortly stated are as under.
