Nagpal Singh Vs Budhni Devi and Ors.

2 notice has been served the Though validly upon respondents, yet no one turns up on behalf of the respondents in-spite of repeated calls. Hence, hearing of this appeal is taken ex-parte .

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3 This second appeal has been preferred under Section 100 of Code of Civil Procedure against the judgment of decree of reversal dated 26.06.2013, passed by the learned Principal District Judge, Gumla in Title Appeal No. 03 of 2005 whereby and where under the learned first appellate court set aside the judgment and decree dated 31.01.2005, passed by the learned Munsif, Gumla in Title Suit No. 14 of 2001 and allowed the Title Appeal No. 03 of 2005.

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4 The brief fact of the case is that the respondent being the plaintiff filed Title Suit No. 14 of 2001 in the court of Munsif, Gumla with a prayer for declaration of title over the suit land in favour of the

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plaintiff and recovery of possession through the process of the court and for declaration of cancellation of deed no. 255 dated 02.02.1981, being illegal, void, in-operative and not binding upon the plaintiff.

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5 The case of the plaintiffs in brief is that the suit land was earlier recorded in the name of the grandfather of the plaintiffs namely Pancham Singh. Pancham Singh sold the suit property in favour of the father of the defendant namely Baldeo Singh vide two registered sale deeds bearing no. 2925 dated 25.09.1967 and bearing no. 1191 dated 05.04.1971 respectively and gave possession of the same to the said Baldeo Singh. Thereafter, Baldeo Singh returned the suit property vide sale deed no. 137 dated 21.01.1981 and gave possession of the suit land to the recorded tenant. After execution of the said sale deed no. 137, Baldeo Singh cancelled the sale deed dated 21.01.1981 by executing the deed of cancellation dated 02.02.1981 vide deed no. 255 and captured the suit property. After death of Pancham Singh, by way of settlement of the dispute by well-wishers, possession was given to the plaintiffs and mutation was allowed in favour of the plaintiffs vide Mutation Case No. 159R 27/93-94, by the Circle Officer but the same was set aside by the DCLR on the basis of deed of cancellation executed by Baldeo Singh. The plaintiffs were dispossessed by the defendant in the month of June, 1999. It is the further case of the plaintiffs that Pancham Singh and Baldeo Singh were the members of one family. Pancham Singh was an illiterate person and in good faith in the guise of executing a deed of Jarpesgi , the sale deed was got executed by him by Baldeo Singh but when the fraud was detected by Pancham Singh, Pancham Singh pressed

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Baldeo Singh to return the land, hence Baldeo Singh executed the sale deed dated 21.01.1981 bearing no. 137. As the order of the LRDC cast a cloud upon the title of the plaintiffs, hence the plaintiffs filed the suit.

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6 In his written statement, the defendant challenged the maintainability of the suit on various technical grounds. The defendant admitted the deed executed by Pancham Singh in favour of Baldeo Singh and Baldeo Singh in favour of the plaintiffs but the defendant pleaded that as Pancham Singh promised to pay the consideration amount upon which Baldeo Singh executed the sale deed but later on Pancham Singh did not pay the consideration amount of the sale deed and only assured that he will pay the consideration amount after few days but as ultimately the consideration amount was not paid by Pancham Singh, Baldeo Singh cancelled the sale deed vide deed no. 255 dated 02.02.1981. It is the further case of the plaintiff that the deed of sale in favour of Pancham Singh was never acted upon and Pancham Singh never came over the suit land. In the recent Survey, the Draft Publication and the Record of Rights was prepared in the name of the father of the defendant. The defendant denied that possession was ever given to the plaintiffs but the plaintiff managed to get her name mutated in respect of the suit land behind the back of the defendant without his knowledge. The defendant specifically pleaded that the father of the defendant namely Baldeo Singh and after his death, the defendant has been all along in possession of the suit land and in the Draft Publication of Record of Rights of recent Survey, the Draft Publication of Record of

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Rights was prepared in the name of the father of the defendant Baldeo Singh. Pancham Singh was informed about the cancellation of the sale deed by Baldeo Singh. The possession was never given to the plaintiffs as claimed by them. Mutation was made in favour of the plaintiffs even though they were not in possession of the suit land, in the year 1994. Hence, the same has already been set aside vide Mutation Appeal No. 7/94-95 by the DCLR vide order dated 15.04.1997. The defendant denied that the plaintiffs were dispossessed by the defendant in June, 1999 but the plaintiffs were never in possession of the suit land, the question of their dispossession does not arise. The sale deed executed by Pancham Singh on 05.04.1971 was not by practicing any fraud and the sale deed dated 21.01.1981 which was executed by Baldeo Singh in favour of Pancham Singh was not acted upon and Pancham Singh did not ever come in possession of the suit land by virtue of sale deed no. 137 dated 21.01.1981. The suit of the plaintiffs is barred by limitation and adverse possession.

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7 On the basis of the rival pleading of the parties, the learned

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trial court settled the following eight issues: -

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1. Is the suit maintainable in its present form?

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2. Has the plaintiff got valid cause of action for the suit?

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3. Is the deed no. 255/81 dated 4.2.81 is genuine and binding upon plaintiff?

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4. Whether registrar has power to cancel the deed?

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5. Whether deed no. 137/81 dated 21.01.81 is valid and genuine?

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6. Whether the suit property was in continuous possession of the father of the defendant since 1967 and 1971 and after his death, in possession of the defendants and the defendants have acquired right, title over the suit land through adverse possession?

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7. Whether the plaintiff is entitled to get other relief or reliefs as claimed for?

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8. Whether the suit is barred by law of limitation?

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8 In support of their case, the plaintiffs examined altogether four witnesses and proved the documents which have been marked Ext. 1 to Ext.5. On the other hand, from the side of the defendant, the defendant altogether examined three witnesses and also proved the documents which have been marked Ext. A to G/j.

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9 The learned trial court first took up issue nos. 3, 4, 5 & 8 together and after considering the evidence in the record, the learned trial court considered that on factum of possession, the plaintiffs did not adduce by any witness who resides near the suit land. P.W.1 & 3 deposed about the boundary of the suit land contrary to each other. In para-18, the plaintiff who was examined as P.W.3 deposed that she has not adduced any evidence who could depose that the suit land was possessed by the plaintiff, whereas all the witnesses of the defendant deposed that the suit land has been possessed by the defendant for several years and the plaintiffs have never come in possession over the suit land. The plaintiff has failed to prove the fact that she was dispossessed from the suit land in June, 1999 whereas the defendant proved that he has been possessing the land from the year 1967. The learned trial court also considered that the instrument of deed of cancellation no. 255 of 02.02.1981 was in the knowledge of the plaintiff and her ancestors but the plaintiff filed the suit on 11.04.2001 for declaration of deed of cancellation to be void, inoperative and not binding upon the plaintiff after 20 years of her knowledge, hence the prayer is barred by limitation. The learned trial court further considered that admittedly Banda Parcha (Draft Parcha) of the Record of Rights in the current settlement has been issued in

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favour of the defendant and the defendant has also filed the rent receipt for the suit land accordingly. Admittedly the defendant has been in possession of the suit land. The plaintiff has failed to prove that she was in possession of the suit land within twelve years before filing the suit. The cause of action so far as the order passed in Mutation Appeal No. 7/1994-95 arose on 15.04.1997 but the suit was filed after a lapse of three years, ten months and 26 days form the date of the order LRDC, so this prayer of the plaintiff is also barred by limitation. No cause of action after 15.04.1997 could be established by the plaintiffs, hence the learned trial court held that the suit is barred by limitation and decided the issues in favour of the defendant and against the plaintiffs. The learned trial court next took up issue no. 6 and after considering the evidence in the record, came to the conclusion that the defendant possessed the suit land from 1967 on the basis of sale deed no. 1191 and sale deed no. 2925. Hence the defendant has acquired right, title over the suit land not by adverse possession. Lastly, the learned trial court took up issue nos. 1, 2 & 7 and came to the conclusion that the plaintiffs were never in possession of the suit land within twelve years of filing the suit, hence the plaintiffs have no valid cause of action for the suit and the suit is not maintainable in its present form and the plaintiffs are not entitled for any other relief or reliefs as claimed for and decided the issues in favour of the defendant and against the plaintiffs and dismissed the suit.

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10 Being aggrieved by the judgment and decree passed by the learned trial court, in Title Suit No. 14 of 2001 dated 31.01.2005, the

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plaintiffs filed Title Appeal No.03 of 2005 in the court of learned Principal District Judge, Gumla which was ultimately heard and disposed of by the learned first appellate court by the impugned judgment and decree.

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11 The learned first appellate court considered the issue no.5 first and held that the sale deed no. 137 of 1981 dated 21.01.1981 was valid and genuine. The learned first appellate court then took up issue no. 3 and relying upon the Judgment of Hon’ble Supreme Court of India in the case of Thota Ganga Laxmi and Another Vs. Government of Andhra Pradesh , reported in (2013) 1 SCC 207 wherein the Hon’ble Supreme Court of India observed that there was no need for the appellants of that appeal to approach the civil court as the cancellation deed as well as registration of the same was wholly void and non est and can be ignored altogether and considering the evidence in the record as well as the principle of law came to the conclusion that cancellation deed no. 255/81 dated 02.02.1981 marked Ext. A has no binding effect on the plaintiffappellants. The learned first appellate court then took up issue no.6 and after considering the evidence in the record that as the defendant was in possession of the suit land after 02.02.1981, under the impression that after cancellation of the sale deed, he is owner of the land and legally entitled to hold possession and the ingredient animus possidendi lacks, hence respondent-defendant cannot claim title of the land in the suit on the ground of adverse possession. Therefore, the issue no.6 decided by the Munsif in favour of the respondent in the opinion of the first appellate court was baseless and incorrect.

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Therefore, the learned first appellate court set aside the finding of the trial court in respect of the issue no.6. Lastly, the learned first appellate court took up the issue nos. 1, 2, 4, 7 & 8 together and held that as the Sub-Registrar has no power to cancel the sale deed no. 137 dated 21.01.1981, hence the question of limitation is not applicable in respect of the sale deed. The learned first appellate court further went on to hold that there is valid cause of action for the plaintiffs on 04.02.1981, when cancellation deed was executed and on 15.04.1997 when the DCLR, Gumla set aside the order of the Circle Officer, passed in Mutation Case No. 159R 27/93-94 and when the plaintiffs were dispossessed from the suit land and held that the suit is maintainable and set aside the judgment and decree passed by the learned trial court but did not expressly decreed the Title Suit No. 14 of 2001 by specifying the reliefs to which the plaintiffs are entitled but only allowed the appeal.

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12 At the time of Admission of this appeal, the following substantial question of law was formulated vide order dated 13.05.2019 by the Predecessor Judge in the roster : -

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“Whether the ground of being void or voidable could be guided by Section 59 of the Limitation Act and whether in the instant case limitation was at all attracted?”

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13 At the outset, it is pertinent to mention here that because of apparent printing error, the word ‘Section 59’ instead of ‘Article 59’ of the Limitation Act has been mentioned in the said substantial question of law formulated by the Predecessor Judge in the roster.

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14 Mr. Arun Kumar, the learned counsel for the appellant relying upon the judgment of the Hon’ble Supreme Court of India in

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the case of Abdul Rahim & Ors. Vs. Sk. Abdul Zabar & Ors.

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reported in AIR 2010 SC 211 para-19 of which reads as under:-

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“19. A suit for cancellation of transaction whether on the ground of being void or voidable would be governed by Article 59 of the Limitation Act. The suit, therefore, should have been filed within a period of three years from the date of knowledge of the fact that the transaction which according to the plaintiff was void or voidable had taken place. The suit having not been filed within a period of three years, the suit has rightly been held to be barred by limitation.

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In Md. Noorul Hoda v. Bibi Raifunnisa and Ors. [1996 (7) SCC 767], this Court held:

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"....There is no dispute that Article 59 would apply to set aside the instrument, decree or contract between the inter-se parties. The question is whether in case of person claiming title through the party to the decree or instrument or having knowledge of the instrument or decree or contract and seeking to avoid the decree by a specific declaration, whether Article 59 gets attracted? As stated earlier, Article 59 is a general provision. In a suit to set aside or cancel an instrument, a contract or a decree on the ground of fraud, Article 59 is attracted. The starting point of limitation is the date of knowledge of the alleged fraud. When the plaintiff seeks to establish his title to the property which cannot be established without avoiding the decree or an instrument that stands as an insurmountable obstacle in his way which otherwise binds him, though not a party, the plaintiff necessarily has to seek a declaration and have that decree, instrument or contract cancelled or set aside or rescinded. Section 31 of the Specific Relief Act, 1963 regulates suits for cancellation of an instrument which lays down that any person against whom a written instrument is void or voidable and who has a reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, can sue to have it adjudged void or voidable and the court may in its discretion so adjudge it and order it to be delivered or cancelled. It would thus be clear that the word 'person' in Section 31 of the Specific Relief Act is wide enough to encompass a person seeking derivative title from his seller. It would, therefore, be clear that if he seeks avoidance of the instrument, decree or contract and seeks a declaration to have the decrees set aside or cancelled he is necessarily bound to lay the suit within three years from the date when the facts entitling the plaintiff to have the decree set aside, first became known to him."

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{See also Sneh Gupta v. Devi Sarup and Ors. [2009 (2) SCALE 765]}”

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Submits that therein, the Hon’ble Supreme Court of India has reiterated the settled principle of law that a suit need not be filed to cancel a void document but if a suit is filed for cancellation of a document to be void, then such suit would be governed by Article 59 of the Limitation Act which is three years from the date which entitles the plaintiff to have the instrument cancelled or set aside or the same first become known to him. It is next submitted by the learned counsel for the appellant that the undisputed fact remains that Baldeo Singh after cancellation of the deed has intimated Pancham Singh, the predecessor in interest of the plaintiffs and thus Pancham Singh and his descendants who have stepped in the shoes of Pancham Singh were aware about the cancellation of the deed. Therefore, the prayer for declaration that the cancellation deed of the sale deed dated 02.02.1981 bearing no. 255 was governed by Article 59 of the Limitation Act but as the suit was filed only on 11.04.2001, the suit is hopelessly barred by limitation. It is next submitted by the learned counsel for the appellant that the last cause of action which can be established by the plaintiffs for filing the suit is 15.04.1997 by which date the LRDC set aside the Mutation Order in favour of the plaintiffs in Mutation Appeal No. 7/1994-95. So, the suit being a suit for declaration, the limitation was three years from 15.04.1997 but as the suit having been filed on 11.04.2001, the same is beyond the period of limitation and hence the suit is barred by limitation, as has rightly been held by the learned trial court. It is next submitted by the learned counsel for the appellant that the learned first appellate court

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has committed a grave illegality by holding the suit to be within time

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on the ground that when the plaintiffs were dispossessed from the suit land but nowhere in the appellate court judgment, the learned first appellate court has mentioned as to on which date, the plaintiffs were dispossessed from the suit land, when it is the categorical finding of the trial court that the defendants have been in possession of the suit land since the year 1967 and such finding of fact was never reversed or set aside by the learned first appellate court. It is next submitted that the learned trial court in no uncertain manner has come to the finding of fact that the plaintiffs were never in possession of the suit land on any date within 12 years from the date of filing of the suit and such finding of fact has also having not been reversed by the learned first appellate court, the learned first appellate court has committed a grave illegality by not holding that the suit is barred by limitation. It is then submitted by the learned counsel for the appellant that as has been observed in the order dated 15.04.1997 in Mutation Appeal No. 7 of 1994-95 by the DCLR that the sale deed executed by Baldeo Singh on 21.01.1981 was in favour of Pancham Singh and Pancham Singh had three daughters and a son whereas the plaintiff is the widow of the son of Pancham Singh. So even if the sale deed is considered to be valid, still the plaintiff cannot have exclusive title over the suit land to the detriment of the three daughters of Pancham Singh. Hence, it is submitted that the sole substantial question of law be answered in the affirmative and the Judgment and decree passed by the learned first appellate court be set aside and the judgment and decree passed by the learned trial court be restored.

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15 Having heard the submissions made at the Bar and after

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going through the materials in the record, it is pertinent to mention here that since the plaintiff filed the suit with a prayer for declaration that the cancellation deed of the sale deed executed on 04.02.1981 bearing deed no. 255 to be illegal, void, inoperative and not binding upon the plaintiff. So, in view of the settled principle of law reiterated by the Hon’ble Supreme Court of India in the case of Abdul Rahim & Ors. Vs. Sk. Abdul Zabar & Ors. (supra), this Court has no hesitation in holding that such suit is governed by Article 59 of the Limitation Act which prescribes a period of three years and admittedly the suit having been filed on 11.04.2001 and as the undisputed fact remains that immediately after cancellation of the said sale deed by Baldeo Singh, intimation was given by Baldeo Singh to Pancham Singh, so this Court has no hesitation in holding that such prayer of the plaintiff was barred by limitation.

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16 Now coming to the other prayer of the plaintiff regarding title is concerned, the last cause of action pleaded by the plaintiff was in June 1999. It has been held in categorical terms by the trial court that the plaintiff has failed to establish such cause of action of dispossession in June 1999. The order dated 15.04.1997, passed by the LRDC in Mutation Appeal No. 7/1994-95 goes to show that therein it has categorically been mentioned that there is no material in the record to suggest that the plaintiff was ever in possession of the suit land, which was mutated in his favour rather it has categorically been mentioned therein that till the mutation is done in favour of the plaintiff, the defendant and his predecessors were paying the land revenue and without issuing notice to the person whose name was

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mentioned in Register-II to the person paying the rent, such mutation was done in favour of the plaintiff. It is also crystal clear from the Ext. 4 which is the order passed by the DCLR that in the recent Survey Settlement Operation also, the Draft Record of Rights has been prepared in favour of the defendants. Under such circumstances, in view of the categorical finding of the learned trial court that the plaintiff has never been in possession of the suit land in any time during the 12 years preceding the date of filing of the suit and such finding of fact has not been set aside, the learned first appellate court committed a grave illegality by holding that the suit is not barred by time on a imaginary cause of action of when the plaintiffs were dispossessed and the date of which was not even mentioned by the learned first appellate court anywhere in the judgment.

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17 Under such circumstances, this Court is of the considered view that since the suit was filed for declaration of right, title and interest, so the limitation attracted to the suit was of three years and so far as the relief of declaration of cancellation deed no. 255 dated 04.02.1981 was illegal, void, inoperative and not binding upon the plaintiff is governed by Article 59 of the Limitation Act 1963. Hence, the sole substantial question of law is answered in the affirmative and the suit of the plaintiffs being barred by limitation, which the learned first appellate court failed to take note of, the impugned judgment dated 26.06.2013, passed in Title Appeal No. 03 of 2005 by the learned Principal District Judge, Gumla is set aside being not sustainable in law and the judgment and decree passed by the learned Munsif, Gumla in Title Suit No. 14 of 2001 is restored.

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