Manikant Choudhary Vs Binod Kumar Choudhary

IN THE HIGH COURT OF JHARKHAND AT RANCHI

S. A. No. 105 of 2020

Manikant Choudhary aged about 34 year son of Krityanand Choudhary resident of village Chulhiya, P.O. & P.S. Mohanpur, District- Deoghar.

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… … Plaintiff/Appellant/Appellant Versus

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Binod Kumar Choudhary son of Late Madin Choudhary.

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Srikant Choudhary son of Binod Kumar Choudhary.

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Shashikant Choudhary son of Binod Kumar Choudhary. All above serial No. 1 to 3 are resident of village chulhiya, P.O. & P.S. Mohanpur District Deoghar.

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… … Defendants/Respondents/Respondents

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Manjula Devi wife of late Krityanand Choudhary.

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Ravikant Choudhary son of late Krityanand Choudhary Both above serial no. 4 and 5 are resident of village chulhiya, P.O. & P.S. Mohanpur District Deoghar.

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… … Plaintiffs/Appellants/Proforma Respondents

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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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For the Appellant : Mr. Kundan Kumar Ambastha, Advocate : Mr. Lalit Yadav, Advocate : Mr. Manish Yadav, Advocate

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08 /08.01.2025

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1. Heard the learned counsel for the appellant.

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2. This appeal has been filed against the judgment and decree dated 6.01.2020 (Decree signed on 21.01.2020) passed by learned District Judge I, Deoghar in Title Appeal No. 27 of 2004 whereby the appeal has been dismissed and the learned appellate court has affirmed the judgment and decree dated 26.07.2004 (Decree signed on 07.08.2004) passed by the court of learned Sub Judge II, Deoghar in Title Suit No. 88 of 2000.

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3. The suit was filed seeking a declaration and the cancellation of registered deed of family arrangement vide deed no. 207 dated 29.06.1977 and also for permanent injunction against the defendants and restraining the defendants from any act on the basis of the said deed.

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4. The learned counsel for the appellant has submitted that the only substantial question of law which is involved in this case is- Whether the suit could be said to be time barred?

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5. It is submitted that it was the specific case of the appellant that though the deed of family arrangement was registered way back as on 29.06.1977 but the plaintiff had come to know about it subsequently and obtained the certified copy and filed the suit for cancellation of the registered deed within the period of three years of knowledge. He has relied upon the judgment passed by the Hon’ble Supreme Court reported in (2009) 6 SCC 160 (Abdul Rahim & Others Vs Sk. Abdul Zabar & Others) paragraph 19. He has also referred to Article 59 of the Limitation Act, 1963.

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6. After hearing learned counsel for the appellant and upon going through the impugned judgments, this Court finds that the suit was filed seeking cancellation of registered Family Settlement Deed No. 207 of 29.06.1977.

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7. As per the case of the plaintiffs , Jamabandi No. 14 of Mouza Chulhiya, Jamabandi No. 5 of Mouza Chihutiya and Jamabandi No. 12 of Mouza Dudhwajor was recorded in the name of Chethru Choudhary and Bhothri Choudhary but the name of Bhothri Choudhary was shown differently in the Gantzer’s Survey Settlement Khatiyan. All the plaintiffs and the defendants are successors of Bhothri Choudhary. Bhothri Choudhary had two sons, Ayodhya Choudhary and Madin Choudhary. Ayodhya Choudhary had one son namely Krityanand Choudhary who was the plaintiff no. 1 and two sons of Krityanand Choudhary were plaintiff nos. 2 and 3. On the other hand, Madin Choudhary had one son who was defendant no. 1 and the grand sons of Madin Choudhary were defendant nos. 2 and 3. It was the case of the plaintiffs that there was a partition between Ayodhya Choudhary and Madin Choudhary way back in the year 1938 and the record of partition was also prepared and both the brothers were separated . It was further case of the plaintiffs that after the partition Ayodhya Choudhary bought property in Mouza Gokula,

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Tola Rajdha Andhri Sole in the District of Banka from his own means vide registered deed No. 5678 dated 30.09.1940 and the father of the plaintiff no. 1 came in exclusive possession of the property in which brother of the plaintiff no.1, namely, Madin Choudhary had no right, title, interest and possession; after purchase of the said property, in the year 1960 the property was sold to Uday Choudhary.

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8. It was further case of the plaintiffs that the father of the plaintiff no.1 ,namely Ayodhya Choudhary, was an illiterate person and on 27.05.2000 he came to know that defendant no. 1 had executed a family settlement deed dated 29.06.1977 when the deed was produced in settlement operation in Mohanpur Camp and then the plaintiffs enquired about the deed and got the certified copy of the same on 03.08.2000 and came to know for the first time that defendant no. 1 fraudulently got the family settlement deed dated 29.06.1977 executed.

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9. While explaining the execution of the family settlement deed dated 29.06.1977 the plaintiffs stated that the father of the plaintiff was in need of some money for his treatment and he had taken Rs. 5000 as loan from defendant no. 1 and for that purpose the father of the plaintiffs was taken to get a loan agreement deed registered but the defendant no. 1 fraudulently got a family settlement registered in which even the valuation of the properties was not mentioned and the moment the plaintiff came to know about the said family settlement deed dated 29.06.1977, plaintiff no.1 took steps and thereafter the suit was filed.

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10. On the other hand, the case of the defendant was that the suit was not maintainable and was barred by limitation. The father of the plaintiffs was the elder member of the family and was Karta of the joint family before 29.06.1977 and being the Karta he had purchased the property being deed no. 5674 of Mouza Rajdha, Tola-Aandhri sole, District Banka from one Narsingh Marik and took care of the property along with the land situated at Mouza Chulhiya and Chihutiya as Karta of the joint family. It was further asserted that there

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has been no partition prior to 19.06.1977 as claimed by the plaintiffs. The defendant denied all the allegations made by the plaintiffs and stated that the partition was made as per family settlement by registered family settlement of the year 1977 and prior to this, the plaintiffs and the defendants were member of joint family. It was also asserted that after the partition the parties were in possession of their respective shares and were paying rent to the State.

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11. With respect to the family settlement deed dated 29.06.1977, it was the specific case of the defendants that family settlement deed was executed by the father of the plaintiff no. 1 namely Ayodhya Choudhary along with his son Krityanand Choudhary who was the plaintiff no. 1 and the plaintiff no. 1 had put signature on each and every page of the agreement and the father had put his thumb impression on every page and therefore the allegation of the plaintiffs that on the pretext of writing a loan agreement the defendant/respondent no. 1 got the family settlement deed executed was completely untrue, absurd and concocted. The learned trial court has framed altogether five points for determination which are as follows: -

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“1. Whether the suit as framed is maintainable?

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2. Whether the family arrangement deed dt. 29.6.77 is valid document or not?

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3. Whether the suit is barred under the provisions of Limitation Act?

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4. Whether the plaintiff has valid cause of action to bring the suit?

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5. Whether the plaintiffs are entitled to get any relief or reliefs as claimed so far?”

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12. The learned Trial Court considered the materials on record. While deciding issue nos. 2 and 3, the learned trial court has recorded that the deed of settlement was executed on the basis of mutual agreement amongst the family members. The learned Trial Court further recorded that there was no evidence brought on record by the plaintiff that they were not aware about the registered partition deed and rejected the plea of absence of knowledge of the plaintiff regarding family settlement deed dated 29.06.1977 and held that the

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suit was barred by limitation after observing that on the registered family settlement deed dated 29.06.1977, the signature of the plaintiff no. 1 was also there along with the thumb impression of his father Ayodhya Choudhary and concluded that the plaintiff no. 1 had full knowledge about the deed and also observed that the aforesaid aspect of the matter was suppressed by the plaintiff no. 1 and ultimately held that the suit was barred by limitation.

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13. The learned Appellate Court also considered the materials on record and rejected the claim of the plaintiff Krityanand Choudhary that the registered partition deed was executed by playing fraud and his signature on the deed was fraudulently obtained. The learned Appellate Court also recorded that claim of Krityanand Choudhary about fraud was also fit to be rejected in view of exhibit-(i) wherein way back in 1984 Krityanand Choudhary gave consent for recording the property of Cheliyan and Chihutiya mouza in the name of Binod Choudhary. The learned Appellate Court also recorded that the execution of the deed of partition was within the knowledge of Krityanand Choudhary and also of his father and in spite of having full knowledge of the deed they did not take any step to challenge the same. The learned court also recorded that if any portion of the property was sold in favour of Uday Choudhary in 1960 by Krityanand Choudhary the same would be a sale of undivided portion of the joint family property which was allocated to him in the year 1977 in the registered family settlement deed dated 29.06.1977. The learned Appellate Court referred to Article 56 of the Limitation Act and held that the suit was barred by limitation and in spite of having knowledge, the plaintiff did not take any step to challenge the registered family settlement deed dated 29.06.1977 within the period of limitation.

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14. In the Judgment passed by the Hon’ble Supreme Court reported in (2009) 6 SCC 160 (supra) it has been held that a suit for cancellation of transaction whether on ground of being void or voidable would be governed by Article 59 of the Limitation Act and

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the suit should be filed within the 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.

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15. This Court finds that there are concurrent findings recorded by both the courts after scrutinizing the case of the parties and the materials produced on record that the family settlement deed dated 29.06.1977 was executed under the signature of the plaintiff no.1 and thumb impression of his father in all the pages and the execution of registered family settlement deed dated 29.06.1977 was within their knowledge and they had also acted pursuant to family settlement deed dated 29.06.1977 but did not challenge the same within the period of limitation and accordingly, the suit was barred by limitation. This Court finds that no perversity as such has been pointed out by the learned counsel for the appellant with regard to consideration of the evidences on record by both the courts while recording their findings. In view of the findings recorded by both the courts, the judgment relied upon by the appellants does not help the appellants in any manner whatsoever and the judgement passed by the learned courts are in consonance with the law laid down in the aforesaid judgement.

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16. Considering the aforesaid findings of both the courts, this Court finds no substantial questions of law for consideration involved in the present case.

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17. Accordingly, this second appeal is dismissed.

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18. Pending interlocutory application, if any, is also dismissed as not pressed.

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(Anubha Rawat Choudhary, J.)

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Rakesh/-

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Manikant Choudhary v. Binod Kumar Choudhary

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Manikant Choudhary v. Binod Kumar Choudhary

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