Allowed

Firanta v. Smt. Babita Dewangan

Chhattisgarh HC4 Dec 2024FA/120/2016

Case brief

AI extract

What is this about?

The High Court allowed an appeal against a lower court's dismissal of a property suit on limitation grounds. The High Court held that limitation is a mixed question of fact and law requiring evidence, set aside the impugned orders, and remanded the case for trial.

What did the court decide?

Impugned orders dated 01.01.2016 and 11.03.2016 set aside; case remanded to trial court to register the suit and frame issues.

Firanta Vs Smt. Babita Dewangan — Property and Title | Chhattisgarh HC (2024)

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F.A. No. 120/2016

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2024:CGHC:48058-DB

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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FA No. 120 of 2016

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1 - Firanta S/o Late Bhuwan Lalan, Aged About 74 Years Caste- Bargah, R/o Village Ramtala, Tahsil Bilaspur, Civil And Revenue District Bilaspur, Chhattisgarh .................Plaintiff, Chhattisgarh

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... Petitioners

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versus

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1 - Smt. Babita Dewangan W/o Shashikant Dewangan, Aged About 36 Years R/o Vijayapuram Colony, Phase-2, Near Science College, Seepat Road, Bilaspur, District Bilaspur, Chhattisgarh, Presently R/o Qtr. No. 32, Radhika Vihar Colony, Rajkishor Nagar, Seepat Road, Bilaspur, Tah. And Distt. Bilaspur, Chhattisgarh, Chhattisgarh

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2 - Shashikant Dewangan S/o Shri Ramkrishna Dewangan, Aged About 41 Years R/o Vijayapuram Colony, Phase-2, Near Science College, Seepat Road, Bilaspur, District Bilaspur, Chhattisgarh, Presently R/o Qtr. No. 32, Radhika Vihar Colony, Rajkishor Nagar, Seepat Road, Bilaspur, Tah. And Distt. Bilaspur, Chhattisgarh, District : Bilaspur, Chhattisgarh

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3 - State Of Chhattisgarh, Through The Collector, Bilaspur, Chhattisgarh .................Defendants

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... Respondents

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F.A. No. 120/2016

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For Petitioner : Shri Ravindra Sharma, Advocate along with Ms. Aditi Diwan. For Respondent No. : Shri Ratnesh Agrawal, Advocate. 1 & 2 For Respondent no. 3 : Shri Devesh G. Kela, Panel Lawyer.

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Hon'ble Smt. Justice Rajani Dubey Hon'ble Shri Justice Bibhu Datta Guru Judgment on Board

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Per Rajani Dubey, Judge

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05.12.2024

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Heard both the counsel for the parties. Looking to the facts and circumstances of the case this matter is delinked with F.A. No. 144/2016 and passed the judgment separately.

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This appeal is filed against the order dated 01.01.2016 passed by First Additional District Judge, Bilaspur (C.G.) in an unregistered case “Firanta vs. Smt. Babita Dewangan and Others including the order passed in review petition vide order dated 11.03.2016 passed in M.J.C. No. 49/2016, whereby the learned trial Court dismissed the suit of appellant/plaintiff on the ground of limitation.

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The brief facts of the case are that appellant/plaintiff filed a suit for declaration and permanent injunction on the ground that plaintiff is having title & possession of the suit land total 9.85 acres situated at village Ramtala Tehsil and District Bilaspur. Since the plaintiff was in need of money he had taken a loan of Rs. 3,50,000/- (Three Lakh fifty thousand only) (in two part) from Vinay Sharma who asked him to execute the mortgage deed in lieu of the loan amount. In

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F.A. No. 120/2016

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furtherance thereof, two mortgage deeds were executed on 10.11.2009 and 10.11.2010. The original Rin-Pustika and AdhikarAbhilekh were also taken by Vinay Sharma at the time of giving loan amount for the security of repayment of loan. In the next year, the plaintiff had repaid the entire loan amount to Vinay Sharma but he has not returned the Rin-Pustika and Adhikar-Abhilekh. Subsequently, the plaintiff came to know that Vinay Sharma has got executed the sale agreement in place of mortgage deed by taking advantage of his illiteracy and being folk villager. The Defendent No. 2 is an Advocate by profession. The plaintiff/appellant has contacted the defendant/respondent no. 2 for challenging the agreement dated 10.11.2009 and 10.11.2010 which have fraudulently got executed by Vinay Sharma. The defendant/respondent no. 2 asked him to execute the Power of Attorney in his favour, so that he can make arrangement to challenge the said two deeds. Under the compelling circumstance and pressure of the defendant no. 2, the plaintiff/appellant has executed a Power of Attorney in favour of the defendant no. 2 on 29.06.2011 and the same has been registered at Sub-Registrar OfÏce, Kota. The plaintiff/appellant has executed the Power of Attorney in favour of defendant no. 2 only for the purposes to plead and defend him in the case filed by Vinay Sharma but not for sale of any land. The defendant no. 2 obtained signatures of the plaintiff/appellant over Vakalatnama and some blank papers and said that the plaintiff/appellant is not required to appear in every

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F.A. No. 120/2016

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date of hearing, he will prepare the reply and plead and defend him properly in the case which is filed by Vinay Sharma. After sometime, the plaintiff/appellant received a notice from the Court of learned Ninth Addl. Distt. Judge, Bilaspur, issued on 21.04.2015 in M.J.C. No. 136/2015, which is of the Contempt Case. When, the plaintiff/appellant searched the entire facts through the present counsel who is representing him before the learned Trial Court, then the fact discovered that the defendant no. 2 has got executed the Power of Attorney on 29.06.2011 keeping the plaintiff/ appellant in dark that the same is being executed for the purpose to defend him in the case and executed the two sale deeds dated 18.08.2011 and 07.10.2011 by him as the power of attorney holder of the plaintiff/appellant, in favour of his wife i.e. the defendent no. 1. The plaintiff was never intended to sale his land, no such power of attorney has been executed in favour of defendant no. 2, he has never sold the suit land to the defendant no. 1 and no amount of consideration has been received by him. The whole transaction is a serious fraud committed by the defendants no. 1 and 2. The possession of the suit land is still with the plaintiff/appellant. The plaintiff/appellant has filed a suit on 09.12.2015 for declaration of title, permanent injunction and also for declaring that the sale deeds dated 18.08.2011 and 07.10.2011 is not binding upon the plaintiff as the same are null and void. The plaintiff/appellant has also filed an application under Section 5 of the Limitation Act, for condonation of delay in filing the suit.

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F.A. No. 120/2016

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The learned trial Court vide impugned order dated 01.01.2016 dismissed the application of plaintiff under Section 5 of the Limitation Act along with the suit on limitation ground. The plaintiff filed a review application and M.J.C. was registered as M.J.C. No. 49/2016 which was also dismissed by the learned trial Court by order dated 11.03.2016. Hence this appeal filed by the plaintiff.

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Learned counsel for the appellant submits that the learned trial Court has erred in law and facts both while passing the impugned order which is liable to be set aside. The learned trial court has erred in dismissing the the application of the appellant/plaintiff filed under Section 5 of the Limitation Act. They should have consider that the plaintiff has pleaded in his plaint about the cause of action and according to which, the suit has been filed within limitation period from the date of knowledge of the said two sale deeds and therefore, there is no delay in filing the suit. Although, by mistake or mis-appreciation of the limitation and due to wrong advice the application under Section 5 of Limitation Act was filed, but the same was to be disposed of as unnecessary because as per para 10 of the plaint, the cause of action has been specifically pleaded in the plaint and the suit is within limitation. Therefore, the rejection of the application of Section 5 of Limitation Act is bad in law and the impugned order is erroneous and liable to be set-aside. The learned Trial Court should also have consider that Article 56 of the Limitation Act, 1963, provides that the suit relating to the declaration of forgery of an instrument registered is to be filed within 3 years

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F.A. No. 120/2016

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and the limitation period starts from the date of registration becomes known to the plaintiff. In the plaint, the plaintiff have specifically pleaded that when he received the notice from the court of Ninth Addl. Distt. Judge Bilaspur, in M.J.C. No. 136/2015, which is of the contempt case, then after searching the entire facts, he came to know about the two sale deeds executed by the defendent no. 2 in favour of the defendent no. 1 in the year 2011 and then he filed the instant suit. Therefore, the suit of the plaintiff is within limitation and the order impugned is erroneous and the same is liable to be setaside. He further submits that issue of limitation if mixed question of facts and law so it cannot be decided without any oral and documentary evidence. The learned Trial Court should also have consider the merits of the case that the plaintiff has been cheated by the defendants and as early as he came into knowledge of the sale deeds, he filed the suit and there is no delay. The learned trial court has erred in considering the merit of the case and also did not consider the ground of review so both orders are liable to be set aside. Reliance is placed in the matter of G. Ramegowda & Others vs. Special Land Acquisition Officer, Bangalore¹ , Ramesh B. Desai And Others vs Bipin Vadilal Mehta And Others² , Sunil Kumar Maity vs. State Bank of India & Others³ , Sukhbiri Devi and Others vs. Union of India (UOI) and Others⁴ .

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AIR 1988 SC 897

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(2006) 5 SCC 638

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AIR 2022 SC 577

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4 AIR 2022 SC 5058

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F.A. No. 120/2016

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Learned counsel for the respondent no. 1 & 2 supported the impugned order and submits that the learned trial Court minutely appreciated the facts of the case and provisions of Sections 5 and 14 of the Limitation Act and rightly dismissed the suit of plaintiff, so this appeal is without any merit and is liable to be dismissed.

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Learned counsel for the State/respondent no. 3 submits that in his plaint, appellant/plaintiff did not claim any relief against State, so suit and appeal is liable to be dismissed against the respondent no. 3/State.

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We have heard both the parties and perused the material available on record.

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It is clear from record of learned trial court that plaintiff filed suit for declaration and permanent injunction and as per paragraph 14, plaintiff filed a suit for following reliefs:-

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अ) यह कि� माननीय न्यायालय ्ቛारा वाद्ቇस्त भूकिम �ो वादी �े प्ቌ में ह� एवं स्वत्व �ी घोषणा �ी आ्ሺकि$ पारिरत �ी जावे।

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ब) यह कि� ्ቚतितवादी �. 1 वाद्ቇस्त भूकिम �ो कि�सी अन्य व्यकि- �ो किव्ቅय �रने से स्थाई रूप से किनषेति2त कि�या जावे एवं ्ቚतितवादीगण �ो वादी �े आति2पत्य में हस्त्ቌेप न �रने �ा स्थायी रूप से स्थायी किनषे2ा्ሺा �ा आ्ሺकि$ पारिरत कि�या जावे।

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स) यह कि� किव�य प्ቔ किदनां� 18.08.2011 एवं 07.10.2011 अ�ृत एवं शून्य होने से वादी �ो बं2न�ारी न होने �ा घोषणा �ी आ्ሺकि$ पारिरत कि�या जावे।

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F.A. No. 120/2016

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द) यह कि� ्ቚतितवादीगण से वादी �ो वाद व्यय किदलाये जाने �ा आ्ሺकि$ पारिरत कि�या जावे।

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इ) माननीय न्यायालय जो उति9त समझे वादी �ो आ्ሺकि$ ्ቚदान कि�या जावे।

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With this plaint, the plaintiff also filed application under Section 5 of the Limitation Act. The learned trial Court heard argument on Section 5 of the Limitation Act and passed the impugned order on 01.01.2016 operating portion of this paragraph is as under:-

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"आवेदन �े संदभ; में ्ቚ�रण �ा अवलो�न कि�या गया। यह वाद वादी्ቛ ारा वादभूकिम पर स्वत्व �ी घोषणा एवं स्थायी किनषे2ा्ሺा एवं किव�य प्ቔ किदनॉ� 18/8/2011 एवं 7/10/2011 �ो शून्य घोकिषत कि�ये जाने हेतु्ቚ स्तुत कि�या गया था। वाद प्ቔ �ी �ंति>�ा-10 में उ्ቤेखिAत है कि� वाद �ारण मुሺኌDतयारनामा किदनाँ� 29/6/2011 �े आ2ार पर किव�य प्ቔ किदनाँ� 18/8/2011 एवं 7/10/2011 �ो उत्प्ቐ हुआ तथा एम०जे०सी० ्ቚ�रण �े नोकिHस किमलने �े आ2ार पर उत्प्ቐ हुआ जो आज किदनॉ� त� वाद �ारण किनरंतर 9ला आ रहा है। परिरसीमा अति2किनयम �े अनुसार किव�य प्ቔ किदनाँ� 18/8/2011 एवं 07/10/2011 �े तीन वष; प्ቐात् यह वाद पेश नहीं कि�या गया है। यह वादं वादी ्ቛारा किदनाँ� 09/12/2015 �ो ्ቚस्तुत कि�या गया है। परिरसीमा अति2किनयम 2ारा 5 आवेदन, अपील, पुनरी्ቌण �े संबं2 में ्ቚायोज्य है।

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अतः वाद �े संबं2 में परिरसीमा अति2किनयम 2ारा 5 �ा लाभ वादी �ो नहीं किदलाया जा स�ता। वाद �ारण किनरंतर 9ले आने �े तथ्य �ो भी वादी ने स्प्ቖ नहीं कि�या है।

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परिरसीमा अति2किनयम 2ारा 14 वाद �े संबं2 में उपबंति2त है कि�न्तु इस संबं2 में भी शत; उ्ቤेखिAत है कि� कि�स समान प्ቌ�ार एवं पूव; या प्ቐात् �ी गई सिसकिवल �ाय;वाही अति2�ारिरता संबं2ी दोष, पूव; में �ी गई गलत

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F.A. No. 120/2016

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�ाय;वाही या सम्यम तत्परता एवं सदभावना �े अंतग;त �ी गई पूव; �ी �ाय;वाही या वाद �ी वापसी। इस ्ቚ�रण में उपरो- तथ्य किव्ቕमान नहीं है अतः वादी ्ቛारा ्ቚस्तुत वाद सं2ारणीय नहीं होने से ्ቚ9लन योग्य नहीं है।

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अतः वादी ्ቛारा ्ቚस्तुत आवेदन 2ारा 5 परिरसीमा अति2किनयम किनरस्त कि�या जाता है एवं वादी ्ቛारा ्ቚस्तुत वाद किनरस्त कि�या जाता है।्ቚ

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�रण आवश्य� �ाय;वाही प्ቐात् अभिभलेAागार में जमा हो।"

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It is clear from the impugned order that the learned trial Court at preliminary stage considered the provisions of Limitation Act and finds that this suit is filed against the power of attorney dated 29.06.2011, sale deed dated 18.08.2011 and 07.10.2011 and suit is filed on 09.12.2015. Plaintiff is not entitled to any relief under Section 5 & 14 of the Limitation Act and dismissed the application and also dismissed the suit of plaintiff.

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It is also clear from pleadings of plaintiffs and paragraph 10 that plaintiff has no knowledge to sale deed dated 18.08.2011 and 07.10.2011 and when he received notice of M.J.C. No. 136/2015 then he came into knowledge the sale deeds and then he filed civil suit, but the learned trial Court only on this ground that sale deeds are from 2011 finds that he is time barred. The Hon’ble Apex Court held in paragraph 19 in the matter of Ramesh B. Desai And

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Others vs Bipin Vadilal Mehta And Others⁵ .

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“19. A plea of limitation cannot be decided as an abstract principle of law divorced from facts as in every case the starting point of limitation has to be ascertained which is

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(2006) 5 SCC 638

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F.A. No. 120/2016

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entirely a question of fact. A plea of limitation is a mixed question of law and fact. The question whether the words "barred by law" occurring in Order 7 Rule 11(d) CPC would also include the ground that it is barred by law of limitation has been recently considered by a two-Judge Bench of this Court to which one of us was a member (Ashok Bhan J.) in Civil Appeal No. 4539 of 2003 (Balasaria Construction Pvt. Ltd. vs. Hanuman Seva Trust and others) decided on 8.11.2005 and it was held: -

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"After hearing counsel for the parties, going through the plaint, application under Order 7 Rule 11(d) CPC and the judgments of the trial court and the High Court, we are of the opinion that the present suit could not be dismissed as barred by limitation without proper pleadings, framing of an issue of limitation and taking of evidence. Question of limitation is a mixed question of law and fact. Ex facie in the present case on the reading of the paint it cannot be held that the suit is barred by time."

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This principle would be equally applicable to a Company Petition. Therefore, unless it becomes apparent from the reading of the Company Petition that the same is barred by limitation the petition cannot be rejected under Order VII Rule 11(d) CPC.

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In the matter of G. Ramegowda and Others Vs. Special Land Acquisition Officer, Bangalore⁶ Hon’ble Apex Court held in paragraph 7 as under:-

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“….7. There is, it is true, no general principle saving the party from all mistakes of its counsel. If there is negligence, deliberate or gross inaction or lack of bona

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AIR 1988 SC 897

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F.A. No. 120/2016

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fides on the part of the party or its counsel there is no reason why the opposite side should be exposed to a time-barred appeal. Each case will have to be considered on the particularities of its own special facts. However, the expression 'sufÏcient cause' in Section 5 must receive a liberal construction so as to advance substantial justice and generally delays in preferring appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of the delay….”

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In light of above, in the present case also it is clear that plaintiff pleaded that he did not have any knowledge about both sale deeds and respondent/defendant misused his power of attorney and he executed sale deed behind his back and the learned trial Court without issuing notice to respondent and without any denial of respondent only on the basis of plaint and application under Section 5 passed the impugned order. It is clear that starting point of limitation has to be ascertained in every case is entirely the question of fact and the learned trial Court without framing any issue dismissed the suit of plaintiff without any oral and documentary evidence and even the learned trial Court did not consider para 10 of plaint in which plaintiff specifically pleaded about notice of M.J.C. No. 136/2015, when he got knowledge about sale deed and the learned trial Court without considering the facts and circumstances of the case dismissed the suit of plaintiff on the limitation ground and impugned order dated 01.01.2016 is not sustainable. The learned

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trial Court also did not consider the grounds of review and dismissed the review application.

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Applying the well settled principles of law and for the reasons mentioned hereinabove, the impugned orders dated 01.01.2016 and 11.03.2016 are set aside. Case of plaintiff is remanded to the learned trial Court with a direction to register it as a civil suit and thereafter, issue notice to defendants/respondents and after filing of their written statement, if any, frame issues on the basis of the pleadings of both the parties. Learned trial Court is also free to frame preliminary issues on the limitation point and if the learned trial Court finds that preliminary issue on limitation point can be decided without any evidence, then it be decided in such manner. However, if the learned trial Court finds that it is a mixed question of fact and law, then it be decided with all other issues at the time of final judgment.

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The Registry shall immediately send back the original record to the concerned trial Court for deciding the issue on its own merits preferably within a period of eight months from the first date of hearing of the case.

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It is made clear that this Court has not expressed anything on the merits of the case and the trial Court is directed to decide the same after due appreciation of the evidence, without being influenced by the observation made hereinabove, in accordance with law.

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