This second appeal challenges the reversal of a suit decree. The court upheld the dismissal, ruling that the suit was barred by limitation under Article 59 as the appellant failed to plead or prove the date of knowledge of the 1979 fraud alleged.
The Second Appeal was dismissed; the judgment and decree of the first Appellate Court were affirmed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Court No. - 53
Case :- SECOND APPEAL No. - 30 of 2020
Appellant :- Riyaz Ali Respondent :- Said Ahmad (Died) And 36 Others Counsel for Appellant :- Firoz Haider,Rajesh Kumar
Hon'ble Vivek Agarwal,J.
Heard Sri Rajesh Kumar, learned counsel for the appellant.
This Second Appeal has been filed by the plaintiff being aggrieved of the judgment and order dated 05.07.2019 and decree dated 18.10.2019 passed by the Additional District Judge, Court No.3, Amroha in Appeal No.104 of 2017, Riyaz Ali Vs. Said Ahmad and others vide which learned first appellate Court has reversed the judgment and decree passed by learned Trial Court in original Suit No.346 of 2002 passed on 20.09.2017 by 2nd Additional Civil Judge (Junior Division), Amroha.
Brief facts leading to present appeal are that one Buniyad Ali was the owner of the property in dispute. He had three children namely Ashraf Ali, Khursid and Safeena Begum. On death of Buniyad Ali, Ashraf Ali and Khursid Ali succeeded two portions of the property each whereas one portion was succeeded by Safeena Begum. It is an admitted fact that Ashraf Ali and Safeena Begum sold their share in favour of one Raunak Ali son of Khurseed Ali vide sale deed dated 28.10.1976. There is no dispute in regard to the transaction which was carried out by Ashraf Ali and Safeena Begum in favour of RaunakAli.
The cause of action arose when on 24.10.1979, Raunak Ali, Guljar Ali and Shahnawaz Ali being sons of Khursid Ali executed a sale deed in favour of the defendant no.1-Said
Ahmad and one Sharif Ali. Thereafter, on 03.07.2002 legal heirs of Sharif Ali executed a sale deed in favour of the defendant no.1-Said Ahmad when plaintiff Riyaz filed a suit claiming possession and permanent injunction against the defendants seeking a declaration that sale deed dated 24.10.1979 and 03.07.2002 are null and void and be cancelled.
This suit was decreed by the Trial Court on the ground that plaintiff had 14th part of share in the suit property and such property could not have been sold without being partitioned. While deciding such issues, a plea was taken on behalf of the defendants that in fact Khurseed Ali had died during the life time of Buniyad Ali but plaintiff had not led any evidence in this regard but reading oral evidence of D.W.-2, Trial Court accepted that Khurseed Ali died after the life time of Buniyad Ali.
Being aggrieved by said judgment and decree, some of the defendants had filed regular civil appeal under Section 96 of the Code of Civil Procedure in which learned first Appellate Court framed three issues namely whether the plaintiff has been able to establish his share to the extent of 14th part in the suit property and whether plaintiff has succeeded in demonstrating and proving the grounds for cancellation of sale deed dated 24.10.1979 and 03.07.2002.
Learned first Appellate Court dealt with the issue nos.1 and 2 simultaneously and has held that the learned Trial Court has though passed a decree ordering cancellation of sale deed dated 24.10.1979 and 03.07.2002 but has not given any basis for arriving at such conclusion. The impugned order is devoid of the reasoning as to why, both the sale deeds are being cancelled. It has come on record that plaintiff could not prove that said sale deeds were executed on the basis of fraud and
misrepresentation as has been mentioned by him in his affidavit in lieu of oral evidence under Order 18, Rule 4 C.P.C. Simultaneously, when the copy of the plaint is perused, it is apparent that in the paragraph dealing with cause of action, it is no where mentioned that he gathered information in regard to execution of sale deed on 24.10.1979 in July, 2002.
On the other hand, in para-10 of the plaint it is mentioned that plaintiff tried to reason out with the defendant that without partition he should not execute the sale deed but defendant no.1 refused to pay heed to such suggestion. Thereafter, in para-15 which deals with cause of action, it is mentioned that on 28.07.2002, when defendant no.1 declared that he shall get the sale deed executed without there being partition of the suit property, the cause of action having been arisen within the territorial jurisdiction of the Court concerned, suit is being filed. There is no mention of the fact that in para-15 dealing with cause of action or in any other paragraph of the plaint that for the first time plaintiff had come to know of the sale deed dated 24.10.1979 in the year 2002 and therefore he is filing a suit for cancellation of said sale deed in the year 2002.
Thus, plaintiff having failed to prove firstly that the sale deed in question was executed under fraud and mis-representation and thereafter having failed to prove that he gathered knowledge of the sale deed dated 24.10.1979 for the first time in July, 2002, had no right to seek cancellation of both the sale deeds especially when sale deed dated 03.07.2002 was subsequent and consequential to the sale deed dated 24.10.1979.
Thus, in addition to the grounds mentioned by the learned first Appellate Court, learned Trial Court has also erred in not appreciating the date of cause of action and to determine whether the suit was filed within the prescribed period of
limitation or not.
It will not be out of place to mention that as per Article 59 of the Indian Limitation Act, 1963, the limitation for seeking cancellation of a sale deed in regard to which there is an allegation of having been obtained by fraud or misrepresentation is three years from the date of knowledge but at the same time, it is also true that plaintiff seeking such relief is required to plead specifically in regard to the date of knowledge of such transaction so to bring it within the fold Article 59 of the Limitation Act.
In absence of any such pleadings and evidence and on the contrary there being an admitted fact that defendant no.1 was in possession of the suit property since 1979 when sale deed was executed in his favour on 24.10.1979, the suit was not filed within the prescribed period of limitation and, therefore, the judgment and decree passed by the first Appellate Court reversing the judgment and decree passed by the Trial Court does not suffer from any infirmity and for the reasons mentioned above, this Court is of the opinion that suit was not maintainable as it was barred by limitation. Thus, no substantial question of law lest the one mentioned in the memo of appeal, requires to be framed in the present second appeal.
The Second Appeal fails and is dismissed.
Order Date :- 13.1.2020 Ashutosh
3 issues framed by the court
Whether the suit for cancellation of sale deeds on grounds of fraud and misrepresentation was barred by limitation.
Whether the plaintiff pleaded specifically regarding the date of knowledge to attract Article 59 of the Limitation Act.
Whether the Trial Court erred in not appreciating the date of cause of action and the period of limitation.
Colour shows how this judgement treated each authority
N/AReferred
3 provisions across 2 enactments
Riyaz Ali
Said Ahmad
Vivek Agarwal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
