Prem Kumar Mahato And Anr. Vs Pustam Mahato And Ors.

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Second Appeal No. 119 of 2017

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Prem Kumar Mahato

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Nirmal Kumar Mahato Both sons of late Pran Mahato and Bhutia Mahtain, residents of village Dharjori, P.O. Bhuli Nagar, P.S. Katras, District-Dhanbad … … Appellants/Respondents/Plaintiffs

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Versus

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1. Pustam Mahato (abated)

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Tanik Mahato

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Manik Mahato

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Dhanu Mahato, all sons of late Jugal Mahto

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Buchu Mahato

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Ram Sagar Mahato

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Kandu Mahato

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Nageshwar Mahato, all sons of Bhaglu Mahato, all residents of Dharjori, P.O. Bhuli Nagar, P.S. Katras, District-Dhanbad … … Respondents/Appellants/Defendants ---

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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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For the Appellants : Mr. S.K. Sharma, Advocate : Mr. Ramchander Sahu, Advocate For the Respondents : Mr. Shekhar Prasad Sinha, Advocate

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Lastly heard on 28.01.2025

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15 /05.02.2025 This second appeal has been filed against the judgment and decree dated 15.12.2016 (Decree signed on 22.12.2016) passed by the learned District Judge - XVII, Dhanbad in Title Appeal No. 108 of 2015 whereby the appeal has been allowed and the judgment and decree passed by the learned Trial Court has been set aside. The judgment and decree by the Trial Court dated 30.09.2015 (Decree signed on 16.10.2015), has been passed by the learned Additional Civil Judge (Junior Division), Dhanbad in Title Suit No.01 of 2003, whereby the suit was partly allowed and decreed on contest.

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2. This second appeal was admitted vide order dated 12.04.2018 on the following substantial questions of law:

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A. Whether learned appellate court while reversing trial court judgment committed serious error of law as it failed to construe true purport of “Nadabi” deed no.307 and 310 dated 05.01.72 (Ext.2 & 2/1), an ab initio void documents were executed without

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consideration, never acted upon & did not confer any title upon Jugal Mahto?

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B. Whether learned appellate court while reversing the trial court judgment erred in law in holding that suit is barred by law of limitation, estoppels, acquiescence?”

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3. The suit was filed seeking a declaration that the Nadabi deeds No.307 dated 5-1-1972 and No.310 dated 5-1-1972 are null and void, sham transaction, never acted upon and be delivered cancelled up. A further prayer was made to seek a decree for permanent injunction restraining the Defendants from interfering with the peaceful possession of the Plaintiffs and alternatively for a decree of possession if the plaintiffs are dis-possessed during the pendency of the suit.

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Arguments of the appellants (plaintiffs)

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4. It has been submitted that as per the Plaint , the land was possessed by one Prayag Mahato, who died leaving his widow Gendia Mahatain and Prayag Mahato had earlier gifted the property in favour of Gendia Mahatain vide Gift Deed No.7205 of 1962; Gendia Mahtain sold a portion of the land to Bhutia Mahtain, wife of Pran Mahato on 30.08.1971 vide registered Sale Deed (Exhibit-1) and put Bhutia Mahtain in possession; Gendia Mahtain also sold remaining land to Pran Mahato, the father of the plaintiffs, on 30.08.1971, registered Sale Deed (Exhibit-1/A). Thus, Bhutia Mahtain and Pran Mahato possessed the land mentioned in the Schedule to the Plaint. 5. On 15.03.2002 the plaintiffs came to know that the defendants had purchased the suit land from one Jugal Mahato, in whose favour two registered Nadabi deeds (relinquishment deeds) both dated 05.01.1972 were executed by Gendia Mahtain and Pran Mahato in favour of Jugal Mahato. The specific case of the plaintiffs was that the Nadabi deeds were not acted upon. However, Jugal Mahto sold and transferred these lands to the defendants vide registered sale deed dated 27.01.1986, who got their name mutated. Further case of the plaintiffs was that Nadabi deeds were without consideration, and therefore Jugal Mahto, did not acquire any right, title and interest over

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the lands covered by both the Nadabi deeds and a prayer was made to declare that both the Nadabi deeds were null and void.

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6. A reference was also made to large number of proceedings, including proceeding under Section 144 Cr.P.C, being M.P. Case No.1090 of 1986, drawn at the instance of father of the plaintiffs Pran Mahto, which was converted into a proceeding under Section 145 and was dropped on 08.08.1988. A reference was also made to appeal filed by Pran Mahato under Section 89 of Chota Nagpur Tenancy Act, 1908 which was dismissed on 27.09.1999. A reference was also made to a writ petition filed in the year 2000 by Prem Kumar Mahato, Plaintiff No. 1.

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7. The defendants appeared and stated that the suit was barred by the law of limitation and was also against other provisions of law. The Nadabi deeds were duly executed on 05.01.1972 and the plaintiffs had no cause of action and the suit was filed after lapse of 30 years. It was also their case that by virtue of Nadabi deeds, the right of Pran Mahato and Bhutia Mahtain extinguished and the Nadabi deeds were acted upon and they claimed to be in possession of the property and also made a case for adverse possession stating that Jugal Mahto continued to possess the land since 05.01.1972 and Jugal Mahto sold and transferred the land to Pustam Mahato and others on different dates and put them in possession over the same. The defendants were the heirs of the purchasers, who were in peaceful possession of the suit property.

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8. The learned Trial Court framed the following issues for consideration:

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1. Whether there is any cause of action for filing the present suit?

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2. Whether the suit is maintainable?

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3. Whether the suit is barred by Law of Limitation?

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4. Whether the suit is barred under the principle of waiver, acquiescence and estoppel?

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5. Whether the suit land is in possession of the plaintiffs?

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6. Whether the sale deed dated 30.8.1971 was executed in favour of Pran Mahato and Bhutia Mahatain and they paid consideration money for the purchased land to the vendor?

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7. Whether the Nadabi Deeds dated 5.1.1972 are lawful documents and whether any right, title, interest through these two Nadabi Deeds confer any title upon the defendants or their predecessor-in-interest?

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8. Whether the sale deed executed by Jugal Mahato in favour of Pustam Mahato and others is a proper deed of sale having equitable right over the suit land and whether the defendants have any right, title, interest over the suit land through this sale deed dated 27.1.1986?

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9. Whether the plaintiffs are entitled for the reliefs claimed by them?

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10. To what relief or reliefs, the plaintiffs are entitled to?

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9. The learned counsel for the appellants has submitted that the claim of adverse possession made by the defendants was rejected and the said finding has attained finality.

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The Issue Nos. 3 and 4 were taken together, and it was held that Nadabi deeds were fictitious transactions, and they were never acted upon, and the plaintiffs brought the suit in the year 2003, after notice of mutation by the defendants in the year 2002 and the point of limitation was answered in favour of the Plaintiffs.

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The point in connection with sale deed dated 30.08.1971 and Nadabi deeds dated 05.01.1972 in favour of Jugal Mahto, were Issue Nos. 6 and 7. So far as Issue No. 8 is concerned, it was in connection with the subsequent sale deed executed by Jugal Mahato in favour of Pustam Mahato (Defendant No.1) and Ram Sagar Mahato (Defendant No.6). The issue Nos. 5, 6, and 7 were taken up together and the learned Trial Court held that the Nadabi deeds did not show any consideration amount, and the Nadabi deeds are only documents by which the persons give up their right, but cannot transfer of his title through these deeds, and consequently held that Jugal Mahato never acquired any title through the Nadabi deeds [ Exhibits- 2 and 2/A]. It was held that in spite of execution of Nadabi deeds , Jugal Mahato never received any title. It was recorded that Benami transaction is prohibited under law, and consequently issue Nos. 5, 6, and 7 were decided in favour of the Plaintiffs. No separate finding was recorded in connection with issue no.8 which was backed by Nadabi deeds and

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it was observed that since the main issue was decided in favour of the plaintiffs, no separate discussions were required.

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The suit was partly allowed and decreed on contest and original Nadabi deeds No. 307 and 310 both dated 05.01.1972 were cancelled, declared void ab initio. It was also held that title is not transferable under the Nadabi deeds and therefore the Nadabi deeds were always in the safe hands of the plaintiffs and their parents and the plaintiffs were not dispossessed during the pendency of the suit and the decree was directed to be prepared accordingly.

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10. The learned counsel has also referred to the Appellate Court judgment and has submitted that the Appellate Court while reversing the judgment and decree held that the suit was barred by limitation by observing that the father of the plaintiffs had full knowledge about the Nadabi deeds , but never challenged the same. The issue regarding limitation was decided vide Paragraph-12 of the Appellate Court judgment.

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11. The learned counsel has submitted that the Nadabi deeds were in fact produced by the plaintiffs and were Exhibit- 2 and 2/A although it was the defendants who were claiming their title through the Nadabi deeds , but original Nadabi deeds were never found in the possession of the defendants.

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12. The learned counsel for the appellants has referred to the evidence of the Plaintiff No.1, who was examined as PW-4 to submit that PW-4 was duly examined on the point of knowledge with regard to the Nadabi deeds and PW-4 came to know about Nadabi deeds only when the mutation notice was issued to him. The learned counsel has submitted that father of the plaintiffs expired in the year 1994, which has come in the evidence of the plaintiffs. The learned counsel submits that the appellate court has wrongly held that the suit was barred by limitation. The learned counsel has also submitted that without prejudice to the aforesaid submissions on the point of limitation, once the deed is void ab initio, it is as good as nullity, and therefore the point of Limitation Act would not come in the way.

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13. The learned counsel for the appellants has relied upon the judgment passed by the Hon’ble Supreme Court, reported in 2006 (3) JLJR 164: (2006) 5 SCC 353 (Prem Singh & Others -vs- Birbal & Others) , and in particular referred to paragraph 29 of the said judgment. The learned counsel has submitted that since the Nadabi deeds were without any consideration, therefore the same are null and void, and consequently no right could have flown upon the defendants on the basis of the Nadabi deeds . He has also submitted that the Nadabi deeds were barred under the provisions of Benami Transaction Act in view of the fact that the defendants have claimed that the consideration amount for the purchase of the property by the parents of the plaintiffs was paid by the Jugal Mahto and when the parents of the plaintiffs were unable to pay the amount to Jugal Mahto, the parents of the plaintiffs executed the Nadabi deeds in favour of Jugal Mahto. He submitted that the Nadabi deeds by itself did not reveal any consideration amount and Jugal Mahto was claiming the property through Nadabi deeds .

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14. The learned counsel also submits that the defendants were claiming that the property was Benami in the name of the parents of the plaintiffs and that the consideration was paid by Jugal Mahto. The learned counsel submits that such Benami transaction is not recognized under law and on the basis of such Nadabi deeds , the defendants would not get any title of the property. The defendants were claiming the property by virtue of subsequent sale deed backed by Nadabi deeds .

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15. The learned counsel for the appellants has also referred to the judgment passed by the Hon’ble Supreme Court reported in (1989) 2 SCC 95 (Mithilesh Kumari and Another Vs. Prem Behari Khare) and referred to paragraph 20 of the said judgment to submit that the retroactivity of the Benami transaction Act has been considered and has submitted that even the transactions prior to 1988 were affected and therefore the Benami transaction which had taken place way back in the year 1972 is under cloud.

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16. The learned counsel has also submitted that subsequently in the judgment passed by the Hon’ble Supreme Court reported in (2023) 3 SCC 315 (Union of India & Anr -vs- M/s Ganpati Dealcom Pvt Ltd) , certain provisions of the Benami Property Transaction Act 1988 were declared unconstitutional, but a review petition in connection with the same has been allowed by the Hon’ble Supreme Court vide judgment dated 18.10.2024 passed in Review Petition (Civil) No. 359 of 2023, which is reported in 2024 SCC OnLine SC 2981 (Union of India and Another -vs- Ganpati Dealcom Pvt. Ltd.) .

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Arguments of the Respondents.

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17. The learned counsel appearing on behalf of the respondents, has opposed the prayer and has submitted that the point of limitation has been rightly decided by the learned appellate court. He has submitted that the appellate court has not only recorded that the father of the plaintiffs had due knowledge about the Nadabi deeds , but even the plaintiffs had full knowledge. The learned counsel submits that the Nadabi deeds were executed by the parents of the plaintiffs, who were purchasers of the property involved in this case, and it was not their ancestral property. The learned counsel has also referred to Exhibit - B and submits that Exhibit - B is relating to appeal filed under Section 89(2) of Chota Nagpur Tenancy Act,1908 and was numbered as 197 of 1986, filed by the Plaintiff No. 1, and it was decided on 27.09.1999, in which there is a reference of Nadabi deeds , and therefore, the learned appellate court has rightly held that the plaintiffs had knowledge about the Nadabi deeds much prior to the year 2002. He has also submitted that the plaintiffs had filed the suit seeking cancellation of the Nadabi deeds , and therefore, it is not open to the plaintiffs to say that the law of limitation would not apply. During the course of arguments, a reference of judgement passed by the Hon’ble Supreme Court reported in (1996) 7 SCC 767 (Md. Noorul Hoda -vsBibi Raifunnisa & Others) to show that once the suit is filed for setting aside an instrument, the same is to be guided by the Limitation Act. The learned counsel submits that the substantial question of law

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as in point no.(B) is fit to be decided in favour of the respondents and against the appellants.

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18. The learned counsel has also submitted that once the point of limitation is decided in favour of the respondents, no relief can be granted to the appellants.

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19. However, with respect to the substantial questions of law no. (A) , the learned counsel has referred to discussions made by the learned Appellate Court. The learned counsel has submitted that issue no. 5, 6, 7 and 8 have been considered together by the learned Appellate Court and in the Nadabi deeds it was mentioned that the registered sale deeds were Benami and the entire consideration money was actually paid by Jugal Mahto in whose favour Nadabi deeds were executed and the executors of Nadabi deeds had no possession over the land. The learned court also considered the evidence of PW4 who in his oral evidence has stated that the disputed land was purchased by his father and mother. It has been considered that Pran Mahto and Bhutia Mahtain parents of plaintiffs purchased the suit land vide Exhibit A series on 30.08.1971 and relinquished the same by Exhibit 2 series mentioning therein that the land which was purchased in their name was benami transaction and the entire consideration money was paid by the Jugal Mahto and Jugal Mahto also came in possession of the suit property. The learned counsel has submitted that the consideration in connection with the suit property has been mentioned in the relinquishment deed itself. The property was benami in the name of the parents of the plaintiffs as the entire consideration money was paid by Jugal Mahto and this having been recorded in the relinquishment deed, the property was given to Jugal Mahto by way of Nadabi deeds .

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20. The learned counsel for the respondents has also submitted that the purchaser of the property namely the parents of the plaintiffs had themselves relinquished the property in favour of Jugal Mahto and therefore, it was not open to the plaintiffs to say that the transaction was not in accordance with law and question the transactions of

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relinquishment by none less than their parents, that too, after their death.

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Findings of this Court

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21. The plaintiffs are the appellants before this Court and reliefs prayed in the suit has been mentioned above. The entire dispute revolves around legality and validity of Nadabi deeds nos. 307 and 310 both dated 05.01.1972 and as to whether the suit itself seeking declaration of Nadabi deeds as null and void was barred by limitation. The substantial questions of law also have been framed on the aforesaid two points which have already been quoted above.

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22. The specific case of the plaintiffs was that part of the suit land was sold by Gendia Mahatain to Bhutia Mahatain wife of Pran Mahato vide Sale deed No. 21105 dated 30.08.1971 and remaining part was sold by Gendia Mahatain to Pran Mahato vide sale deed no. 21106 dated 30.08.1971 and they were put in possession of the suit land. Bhutia Mahatain and Pran Mahato were parents of the plaintiffs. Thus, Bhutia Mahatain and Pran Mahato continued to suit land and after their death the plaintiffs continued to possess the suit land. It is the further case of the plaintiffs that the defendants had no right, however, they got their name mutated which the plaintiffs came to know on 15.03.2002 and then came to know that the defendants purchased the land from one Jugal Mahato and Jugal Mahato had got the suit land by virtue of two Nadabi deeds executed by Gendia Mahatain and Pran Mahato on 05.01.1972 which was the subject matter of the suit. It was the case of the plaintiffs that Nadabi deeds were never acted upon. It was their further case that Nadabi deeds were without consideration and were null and void.

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23. The defendants appeared and asserted that the suit was barred by limitation; Nadabi deeds were executed on 05.01.1972 and was sought to be challenged after 30 years. The Nadabi deeds were executed by Bhutia Mahatain and Pran Mahato in favour of Jugal Mahato and therefore rights of Bhutia Mahatain and Pran Mahato extinguished and the Nadabi deeds were also acted upon. A plea of adverse possession was also raised stating that Jugal Mahato

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continued to possess the land since 05.01.1972. It was further asserted that Jugal Mahato sold the land to Pustam Mahato and others on different dates put them in possession and the defendants were the legal heirs of the purchasers who were in peaceful possession. A reference was, interalia, made to proceeding under Section 144 Cr. P.C. being M.P. Case No. 1090 of 1986 drawn at the instance of Pran Mahato (father of the plaintiff) which was converted into a proceeding under section 145 of the Cr. P.C. but the same was dropped vide order dated 08.08.1988 by saying that a suit is pending.

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24. A reference was also made to application made by Pustam Mahato in the year 1986 which was objected by Pran Mahato who also instituted a proceeding under Section 89 of the Chhotanagpur Tenancy Act and he lost up till the North Chhotanagpur Division who passed an order dismissing the appeal on 27.09.1999. Further case was that the plaintiff no. 1 had filed a writ petition before the High Court being CWJC No. 2278 of 2000 (R); thereafter notices were issued on 21.01.2003 and instead of proceeding with the writ application, plaintiffs filed the present suit. By referring to the aforesaid proceedings including proceeding under Section 144/145 Cr. P.C., proceedings under section 89 of Chota Nagpur Tenancy Act, 1908 and filing of the writ petition, the defendants asserted that the suit was barred by limitation. The defendants also asserted that Nadabi deeds were not hit by the provisions of Benami Transactions (Prohibition) Act 1988 (hereinafter referred to as ‘Benami Transaction Act’) . In the suit all the defendants filed common written statement. The issues framed by the learned Trial Court have already been quoted above. The findings of the learned Trial Court have also been summarized by the learned counsel for the appellants as recorded above.

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Substantial question no. (A)

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25. The issue nos. 5,6 and 7 were taken up first by the learned Trial Court. It was recorded that Nadabi deeds did not show the payment of any consideration amount. It was held that though the Nadabi Deeds were registered documents it did not fulfill the condition of Contract Act and Transfer of Property Act. It was held that under the

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relinquishment deed, parties can relinquish their right only, but cannot transfer their right to anyone. It was held that the plaintiffs’ parents had purchased the suit land from Gendia Mahatain and thereby possessed the ownership of the land and Nadabi deeds reveal that the said property were never in possession of Gendia Mahatain and Pran Mahato who were the executors of the Nadabi deeds in favour of Jugal Mahato. It was also held that Jugal Mahato was neither the legal heirs of Pran Mahato and Bhutia Mahatain nor a valid transferee. The learned Court held that Nadabi deeds are only documents by which a person gives up his right but cannot transfer his title through this deed hence Jugal Mahato never acquired any Title through Nadabi deeds and the Title of the suit land always remained in the hands of the plaintiffs’ parents and besides the plaintiffs, there are no other legal heirs. It was also held that P.W. 1 to P.W. 4 collectively stated that the plaintiffs and their parents always remained in possession of the suit land while they never possessed the suit land. It was further held that Benani transactions is prohibited under law and therefore no one can take a plea of benami transaction especially the defendants cannot take any advantage of benami transactions. All the issues were decided in favour of the plaintiffs. So far as right of adverse possession is concerned, the learned court recorded that D.W. 1 to 4 had categorically stated that the suit land was in their possession. The learned court further recorded that the defendants had to prove their uninterrupted and uncontested possession in the suit land for specified period peaceful and continuous possession and hostile to the right and interest of the plaintiffs and their parents. The learned Trial Court recorded that in view of dispute shown between the parties vide exhibit B, C, D and E the defendants were not able to prove adverse possession.

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26. So far as the learned Appellate Court is concerned, the Appellate Court took up the same issues as framed by the learned Trial Court and decided issue no. 5,6,7 and 8 together vide paragraph no. 11. The learned Appellate Court recorded that Exhibit-1 and exhibit 1/1 were sale deeds executed by Gendia Mahatain in favour of

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Pran Mahato and Gendia Mahatain in favour of Bhutia Mahatain respectively and both were dated 30.08.1971. Exhibit-2 and 2/A were the Nadabi deeds both dated 05.01.1972 executed by Pran Mahato in favour of Jugal Mahato and executed by Bhutia Mahatain in favour of Jugal Mahato. So far as exhibit 2/A is concerned, by the said deed Pran Mahato relinquished the property in favour of Jugal Mahato and so far as Exhibit 2/A is concerned, Bhutia Mahatain relinquished the property in favour of Jugal Mahato and Jugal Mahato accepted the same. Both the Nadabi deeds were registered documents. The learned court also recorded that in the Nadabi deeds itself it was mentioned that the land was purchased by Benami and the entire consideration money was paid by the deed acceptor and executor of Nadabi deed had not paid a single penny and nothing was spent by him and the executor of Nadabi deed was not in possession, rather the relinquishment acceptor was in possession over the land. It was also stated in the deed itself that the land was purchased due to some family reasons in the name of executors of Nadabi deeds by benami transactions. P.W. 4 in his oral evidence has asserted that the land was purchased by his parents upon payment of consideration money of Rs. 4,000/- while executing the registered sale deed dated 30.08.1971. The learned Appellate Court considered the materials on record to hold that it was very clear from exhibit-D series that father of the plaintiffs had knowledge about execution of Nadabi deeds but they did not take any remedy. The learned Appellate Court recorded that exhibit-2 series are the deeds of relinquishment and they could be considered as conveyance and relinquishment deed holder Jugal Mahato executed a sale deed in favour of the defendants and they had right, title and interest over the suit land on the basis of such deed and after purchasing the land the defendants came in possession over the suit land and they were in possession of the suit land. The learned Appellate Court reversed the finding of the learned Trial Court on issue nos. 5,6,7 and 8 and set them aside.

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27. In the present case, the plaintiffs asserted that the two sale deeds dated 30.08.1971 executed in the name of their parents were for

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consideration paid by their parents; the allegation of the defendants that the two sale deeds dated 30.08.1971 were benami property of Jugal Mahto and consequently the two Nadabi deeds dated 05.01.1972 were without consideration as the Nadabi deeds mentioned that consideration for the properties purchased vide two sale deeds dated 30.08.1971 were actually paid by Jugal Mahto to the vendors and there was no consideration for Nadabi deeds in connection with transfer of properties from the parents of the plaintiffs to Jugal Mahto. The allegations made in the plaint were denied by the defendants and it was asserted that the suit was hopelessly barred by limitation and the defendants acquired right, title, interest and possession by virtue of registered sale deeds executed by Jugal Mahto in whose favour the parents of the plaintiffs executed two Nadabi deeds dated 05.01.1972. The recitals of the Nadabi deeds reveal that the executors of Nadabi deeds in favour of Jugal Mahto, that is, the parents of the defendants, acknowledged that Jugal Mahto had purchased benami property in their names and through Nadabi deeds the parents of the plaintiffs were transferring the properties through Nadabi deeds (relinquishment deeds) in favour of Jugal Mahto who was the vendor of the defendants.

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28. In the judgement passed by the Hon’ble Supreme Court reported in (1989) 2 SCC 95 (supra) it has been held that if any property is held benami by the benamidar, the real owner is barred from raising a suit, claim or action to recover the benami property from the benamidar and at the same time no defence based on any right in respect of any property held benami against the person in whose name the property is held shall be allowed in any suit , claim, or action by or on behalf of the person claiming to be the real owner of the property. Thus, neither any suit can be filed by the real owner to claim benami property from benamidar nor any defence can be taken against the person in whose name the property is held benami by or on behalf of the person who claims to be the real owner of the property. The Hon’ble Supreme court also held that as a result of the provisions of the aforesaid Act of 1988, all properties held benami at the moment

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of the Act coming into force may be affected irrespective of their beginning, duration and origin and this will be so even if the legislation is not retrospective but only retroactive.

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29. This court is of the considered view that the impact of the aforesaid judgement is that the aforesaid Act of 1988 will have impact on all the properties which were held benami on the date of coming into force of the Act and the Act was held to be retroactive and not retrospective. Meaning thereby, the properties which seized to be benami prior to coming into force of the Act were not affected merely because at an earlier point of time it was a benami property.

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30. In the present case, the Nadabi deeds executed and registered in the year 1972 themselves acknowledge that the two sale deeds dated 30.08.1971 were held benami in the name of the parents of the defendants and through Nadabi deeds the properties were relinquished and registered in the name of real owner namely Jugal Mahto and the defendants were claiming through Jugal Mahto. The transactions of the two sale deeds dated 30.08.1971 and followed by two Nadabi deeds dated 05.01.1972 were concluded much before coming into force of the Act of 1988 and on the date of coming into force of the Act of 1988 the properties cannot be said to held as benami in the name of parents of the plaintiffs but were held by its true owner, namely, Jugal Mahto. Thus, the property being not benami on the date of coming into force of the Act of 1988, the transactions of two sale deeds dated 30.08.1971 followed by two Nadabi deeds dated 05.01.1972 are not hit by the Act of 1988. It has been held that earlier it was the benamidar in whose name the property stood and the law only enabled the real owner to recover the property from benamidar which right has been ceased by the Act of 1988. In the present case the real owner has already recovered the property from the benamidar much prior to coming into force of the Act of 1988.

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31. In the present case the sale deeds dated 30.08.1971 and Nadabi deeds dated 05.01.1972 are not two transactions of sale , rather sale deeds dated 30.08.1971 are purchase of property by Jugal Mahto in the name of two benamidar ( parents of the plaintiffs) and Nadabi

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deeds dated 05.01.1972 are relinquishment of right by benamidars in favour of the real owner , namely, Jugal Mahto after acknowledging that the entire sale consideration with respect of the sale deeds dated 30.08.1971 were actually paid by Jugal Mahto and the parents of the plaintiffs were benamidars. Thus, two Nadabi deeds dated 05.01.1972 were neither void -ab-initio documents nor can be said to be without consideration and it conferred valid title upon Jugal Mahto, the real owner of the property much before coming into force of the Act of 1988. The is a clear finding by the learned Appellate Court that Pran Mahato and Bhutia Mahatain (parents of the plaintiffs) purchased the suit land from exhibit A series on 30.08.1971 and relinquish the same land by exhibit-2 (series) mentioning therein that the land which was purchased in their name was benami transaction and entire consideration money was paid by the relinquishment deed holder Jugal mahto and he has also come in possession over the suit land and he has no claim over the suit land and he has surrendered the entire right in favour of Jugal Mahato. It has been rightly held by the learned Appellate Court that the Nadabi deeds [Ext-2 (series)] both dated 05.01.1972 are the deeds of relinquishment and can be considered as conveyance deeds and the relinquishment deed holders executed sale deed in favour of the defendants and they came in possession of the suit property.

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32. This court is of the considered view that the learned Appellate Court while reversing the Trial Court’s judgment committed no error of law as rightly construed the true purport of Nadabi deed nos. 307 and 310 both dated 05.01.1972(exhibit-2 and 2/1) and has rightly held to be valid documents. This court is of the considered view that the Nadabi deeds involved in the instant case cannot be said to be abinitio-void documents or documents executed without consideration and it is held that they were duly acted upon and confer title upon Jugal Mahato, the vendors of the defendants. This court also finds that the defendants have been found in possession of the property. Consequently, the substantial question of law no. (A) is decided

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against the appellants(plaintiffs) and in favour of the respondents(defendants).

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Substantial question no. (B)

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33. The learned Trial court decided issue no. 3 and 4 as under:

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“3. Whether the suit is barred by Law of Limitation. 4.Whether the suit is barred under the principle of waiver, acquiescence and estoppel.

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So far as these issues are concerned, I have came to the conclusion that the plaintiffs have sought for declaration of the NADABI deeds No. 307 dated 05.01.72 and No. 310 dated 05.01.72 as null and void and fictitious transaction that was never acted upon to be cancelled, against the defendants. They brought this suit in the year 2003 after the notice of mutation by defendants in the year 2002. Prior to this, notice to the plaintiffs is neither proved nor rebutted. Present suit is well within prescribed law of limitation and other points are nothing but ornamental. Thus, these issues are decided in the favour of plaintiffs.”

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34. The learned Appellate Court while reversing the findings on the point of limitation held that the suit was barred by limitation. The findings of the learned Appellate Court on the point of limitation are as under: -

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“ Issue nos. (III) & (IV) :- The learned Lower Court has come to the conclusion on these issues that the plaintiffs have sought for declaration of the Nadabi deed nos.307 & 310 dated 5.1.1972 respectively are null and void and fake transaction and never acted upon, is to be cancelled, hence, the suit is well within prescribed law of limitation and these issues were decided in favour of the plaintiffs. The defendants have pleaded in their written statement that the suit is barred by law of limitation, estoppel, waiver and acquiescence. It is very much clear from Ext-C (series) that the father of the plaintiffs have contested the criminal proceeding before SDO and other litigation before Revenue Court meaning thereby that the father of the plaintiffs has knowledge about the execution of Ext-2 (series) and after his death, the plaintiffs have also contested several cases in revenue courts but they never challenged the Ext-2 (series). If this deed was executed against law but no any suit was filed and the plaintiffs have knowledge about the execution of Ext-2 (series) much before filing of this suit. On the basis

¶101

16

¶102

of above discussion, I find and hold that the suit is barred by law of limitation, estoppel and acquiescence and finding of the learned Lower Court is against the evidence available on record. Therefore, the finding of the learned Lower Court on these issues nos. (III) & (IV) are not sustainable in the facts available on the record, therefore, finding of the learned Lower Court is hereby set aside.”

¶103

35. The learned Trial Court only referred to the fact that the suit was filed in the year 2003 after the notice of mutation by defendants in the year 2002 and prior to this, notice to the plaintiffs was not proved. The learned Trial Court while holding that the suit was not barred by limitation has not referred to the various litigations before the Revenue Courts between the parties which were placed on record by the defendants. The learned Appellate Court considered the materials and held that it was clear from Ext-C (series) that the father of the plaintiffs had contested the criminal proceeding before SDO and other litigation before Revenue Court meaning thereby that the father of the plaintiffs had knowledge about the execution of Nadabi deeds [Ext-2 (series)] and after his death, the plaintiffs had also contested several cases in revenue courts but they never challenged the Nadabi deeds [Ext-2 (series)] .

¶104

36. The documents produced by the defendants in connection with the litigation before the Revenue Court were exhibit B to E/1 as mentioned in the appellate court judgement as under:

¶105

Ext. A & Ext. A/1-Rent receipts

¶106

Ext. B- Certified copy of the order dated 27.02.1999 passed by the Commissioner Chota Nagpur Division, Hazaribag in Appeal No. 1997/96, (District Dhanbad being CNT Appeal under section 89(2) of CNT Act namely Prem Kumar Mahato vs. Pustam Mahato

¶107

Ext. C- Certified copy of the order dated 17.9.1986 passed by SDO, Chas in M.P. Case No. 10190/1986 under section 144 of the Cr. P.C. namely Pran Mahato Vs. Pustam Mahato and Others

¶108

Ext. C/1-Certified copy of the order dated 18.8.1988 passed under section 145 of the Cr. P.C. in M.P. Case No.

¶109

17

¶110

1090/1986 Pran Mahato Vs. Pustam Mahato Vs. and Others.

¶111

Ext. D- Certified copy of the order dated 27.1.1988 passed by Additional Collector Dhanbad in Misc. Revenue No. 54/1987 namely Bhutia Mahatain Vs. Ram Sagar Mahato and Others

¶112

Ext. D/1-Certified copy of the order dated 27.1.1988 passed by Addl. Collector, Dhanbad in Misc. Revenue Case No. 53/87 namely Pran Mahato Vs. Pustam Mahato and Others

¶113

Ext. E-Certified copy of the order dated 30.7.1987/1.7.1987 passed by Land Reforms Deputy Collector, Chas in Mutation Appeal No. 3/86-87 namely Purshotam Mahato and Others Vs. Pran Mahato

¶114

Ext. E/1-Certified copy of order dated 30.06.1987/1.7.1987 passed by Land Reforms Deputy Collector, Chas in Mutation Appeal No. 4/86-87 namely Ram Sagar Mahato and 3 others Vs. Mrs. Bhuita Mahatain.”

¶115

37. This court finds that admittedly the Nadabi deeds executed by the parents of the plaintiffs were produced by the plaintiffs but there was no explanation from the side of the plaintiffs as to why their parents who had admittedly executed the Nadabi deeds never challenged the same for long years during their life time and the learned Appellate Court recorded that it was clear from Ext-C (series) that the father of the plaintiffs had contested the criminal proceeding before SDO and other litigations before Revenue Court meaning thereby that the father of the plaintiffs had knowledge about the execution of Nadabi deeds [Ext-2 (series)] but did not challenge the same. Further the learned appellate court also recorded that after the death of their parents, the plaintiffs also had knowledge about the Nadabi deeds but they did not challenge the same within three years from the date of knowledge and the suit was barred by limitation.

¶116

38. This court also finds that Nadabi deeds [Ext-2 (series)] both dated 05.01.1972 are registered documents and were admittedly executed by the parents of the plaintiffs but they never challenged the same during their life time and father of the plaintiffs died in 1994. Ext. B, which is Certified copy of the order dated 27.02.1999 passed by the Commissioner Chota Nagpur Division, Hazaribag in Appeal

¶117

18

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No. 1997/96, [District Dhanbad being CNT Appeal under section 89(2) of CNT Act, namely Prem Kumar Mahato vs. Pustam Mahato] clearly shows that the plaintiffs were aware of the Nadabi deeds at least in the said proceedings in which final order was passed on 27.02.1999 but the suit was filed after expiry of three years even if the best scenario for the plaintiffs, that is, date of knowledge of the plaintiffs, is taken as 27.02.1999. This court finds that the learned Trial Court did not discuss the exhibits which could have revealed the date of knowledge of the plaintiffs with respect to execution of Nadabi deeds. However, the Appellate Court has discussed the materials and has come to a finding that the suit seeking to cancel Nadabi deeds was barred by limitation.

¶119

39. So far as the argument of the appellants on the point of voidab-initio and nullity with regards to Nadabi deeds [Ext-2 (series)] both dated 05.01.1972 is concerned, in the judgment passed by the Hon’ble Supreme Court passed in the case of Md. Noorul Hoda (supra), the Hon’ble Supreme Court has held that when the Plaintiff seeks to establish his title to property which cannot be established without avoiding the decree or an instrument that stands as 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. Paragraph 6 of the aforesaid judgment is quoted as under:

¶120

“6. The question, therefore, is as to whether Article 59 or Article 113 of the Schedule to the Act is applicable to the facts in this case. Article 59 of the Schedule to the Limitation Act, 1908 had provided inter alia for suits to set aside decree obtained by fraud. There was no specific article to set aside a decree on any other ground. In such a case, the residuary Article 120 in Schedule III was attracted. The present Article 59 of the Schedule to the Act will govern any suit to set aside a decree either on fraud or any other ground. Therefore, Article 59 would be applicable to any suit to set aside a decree either on fraud or any other ground. It is true that Article 59 would be applicable if a person affected is a party to a decree or an instrument or a contract. 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

¶121

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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.”

¶123

40. In the judgment passed by the Hon’ble Supreme Court reported in the case of Prem Singh and Ors. v. Birbal and Ors. (2006) 5 SCC 353 , it has been held in paragraph 16 that when a document is valid, no question arises for its cancellation and when a document is void ab initio , the decree for setting aside the same would not be necessary as the same is nonest in the eyes of law, as it would be a nullity. It has been held that once a suit is filed by the Plaintiff for cancellation of a transaction, it would be governed by Article 59 and even if Article 59 is not attracted, the residuary article would be attracted. It has been held in paragraph 18 of the judgement that Article 59 would be attracted when coercion, undue influence, misappropriation or fraud which the Plaintiff asserts is required to be proved. Article 59 would apply to the case of such instruments. It would, therefore, apply where the document is prima facie valid. It would not apply only to instruments which are presumptively invalid. It has also been held that there is presumption that a registered document is validly executed and therefore prima-facie would be valid in law and the onus to prove would be on a person who leads the evidence to rebut the presumption. In the said judgement even challenge to a deed executed

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by the minor was held to be barred by limitation. Paragraph 27 and 28 of the aforesaid judgement is quoted as under :-

¶126

There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent 1 has not been able to rebut the said presumption.

¶127

If a deed was executed by the plaintiff when he was a minor and it was void , he had two options to file a suit to get the property purportedly conveyed thereunder. He could either file the suit within 12 years of the deed or within 3 years of attaining majority. Here, the plaintiff did not either sue within 12 years of the deed or within 3 years of attaining majority. Therefore, the suit was rightly held to be barred by limitation by the trial court.

¶128

41. This court is of the view that in order to hold that the Nadabi deeds [Ext-2 (series)] were without consideration as alleged by the plaintiffs, the same was required to be proved by challenging the Nadabi deeds [Ext-2 (series)] which was certainly required to be done within the period of limitation and once the same was challenged by the plaintiffs the point of limitation cannot be avoided. Moreover, in the instant case the deeds were said to have been purchased as benami in the name of parents of the plaintiffs and the property was transferred to the real owner by the parents themselves vide Nadabi deeds [Ext-2 (series)] dated 05.01.1972, that is much prior to coming into force of the Benami Transactions (Prohibition) Act 1988 by stating that the consideration amount was already paid by the real owner. This court is of the considered view that the transaction cannot be said to be void-ab-initio or a nullity in the eyes of law so as to avoid the rigors of the Indian Limitation Act,1963. The learned Appellate Court has also held while deciding issue nos. (v), (vi), (vii) and (viii) that the Nadabi deeds [Ext-2 (series)] dated 05.01.1972 are the deeds of relinquishment and it could be considered as conveyance and the relinquishment deed holder Jugal Mahato executed a sale deed in favour of defendants and the defendants have right, title, interest over the suit land on the basis of the sale deed and after purchasing the land the defendants came in possession over the suit land they are in possession over the suit land .

¶129

42. This court finds that the learned appellate court has rightly appreciated the materials on record to come to a finding that the suit

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was barred by limitation. The substantial question of law no. (B) is accordingly decided against the appellants (plaintiffs) and in favour of the respondents (defendants).

¶132

43. As a cumulative effect of the aforesaid findings and both the substantial questions of law having been decided against the appellants (plaintiffs) and in favour of the respondents (defendants), this second appeal is dismissed.

¶133

44. Let the original court records be sent to the concerned court.

¶134

45. Pending I.A.s, if any, dismissed as not pressed.

¶135

(Anubha Rawat Choudhary, J.)

¶136

Binit/AFR

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22

Prem Kumar Mahato And Anr. v. Pustam Mahato And Ors.

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Prem Kumar Mahato And Anr. v. Pustam Mahato And Ors.

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