Mohan Ahir Vs Muni Devi

Prakash Gope (minor), son of Late Janak Gope, represented through his legal representative and cousin uncle Laxman Ahir, s/o Kolha Ahir (respondent no.2)

¶15

All resident of village Dhangaon, P.O. & P.S. Gumla, District- Gumla

¶16

… … Plaintiffs/Respondents/Respondents

¶17

Mosst. Ghurni Ahirin, D/o Kandan Ahir, resident of village Dhangaon, P.O. & P.S. Gumla, District- Gumla

¶18

… … Defendant No. 4/Appellant/Proforma Respondent

¶19

Deputy Commissioner, Gumla, P.O. & P.S. Gumla, District- Gumla … … Defendant No. 7/Respondent no. 7/ Respondent

¶20

¶21

CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

¶22

¶23

For the Appellants : Mr. Arun Kumar, Advocate For the Resp. Nos. 1 to 5 : Mr. P.A.S. Pati, Advocate For the Resp. No.6 : None For the Resp. No.7 : None ---

¶24

Lastly heard on 29.01.2025

¶25

17/22^nd April, 2025

¶26

1. This appeal has been filed challenging the judgment and decree dated 27.03.2019 (decree signed on 05.04.2019) passed by the learned District Judge-V, Gumla in Title Appeal No. 13/2014 whereby the learned appellate

¶27

1

¶28

2025:JHHC:11840

¶29

court has dismissed the appeal and confirmed the judgment and decree dated 15.03.2014 (decree signed on 27.03.2014) passed by the learned Civil Judge (Sr. Division-I), Gumla in Title Suit No. 29/2003. The learned trial court has decreed the suit with contest.

¶30

2. The appellants were the defendant nos. 1, 5 and 6 in the Title Suit No. 29 of 2003 and the Respondent no.6 was the appellant no. 4 before the learned 1^st appellate court. The original defendant no. 2 and 3 were shown dead in the 1^st appellate court’s decree, they are Khubi Ahirin and Taramuni Devi respectively. Khubi Ahirin was the wife and Taramuni Devi was the daughter of Late Kandan Ahir. They were shown as dead in the memo of appeal also which was filed before the learned 1^st appellate court. However, the trial court judgement and decree does not show them dead. Mohan Ahir, who is the appellant no.1 before this court is the son of Kandan Ahir.

¶31

3. This appeal was admitted for hearing vide order dated 01.03.2023 on the following substantial questions of law: -

¶32

(i) Whether the suit inter alia filed with a prayer for declaration of the settlement deed bearing no.1469 dated 03.11.1947 executed by Raj Kishore Nand in favour of Dhodho Kharia is barred by limitation as the suit with such prayer was filed on 01.08.2003 in view of the principal of law settled by the Hon’ble Supreme Court of India in paragraph no.19 of the case of Abdul Rahim & Ors. vs. Sk. Abdul Zabar & Ors. reported in AIR 2010 SC 211 ?

¶33

(ii) Whether the learned first appellate court committed a perversity by not taking into consideration that the judgment and decree passed by the learned trial court in the Title Suit No.29 of 2003 is against two dead persons being the defendant no.2Khubbi Ahirin and Taramuni Devi having been died during the pendency of the suit and the judgment and decree passed in Title Suit No.29 of 2003 is a nullity in view of the principle of law settled in paragraph no.6 in the case of Kishun @ Ram Kishun (dead)Thru. Lrs. Vs. Behari (Dead) By Lrs. reported in (2005) 6 SCC 300 ?

¶34

4. Case of the plaintiffs

¶35

I. The plaintiff had filed the suit for declaration of title and confirmation of possession over the suit land and also for

¶36

2

¶37

2025:JHHC:11840

¶38

cancellation of Jamabandi , if any, created in the name of defendants or their ancestors and also for declaring void-ab-initio if any surrender or settlement deed is filed by the defendant no.5. An amendment was carried out in the plaint vide order dated 16.01.2014 and a prayer was inserted that if the plaintiffs were found dispossessed from any portion of the suit land during the course of pendency of the suit, the delivery of possession also be delivered through the process of the Court.

¶39

II. The case of the plaintiffs was that the land under Khata No. 5, area 5.07 acre, Khata No. 48 area 1.28 acre and Khata No. 47 area 4.66 acre was recorded in the name of Girdhar Ahir in the year 1932 during revisional survey of village Dhangaon, P.S. and District Gumla. Girdhar Ahir died leaving behind only son Hindu Ahir and Hindu Ahir died leaving behind his two sons, namely, Kolha Ahir and Jolha Ahir who were original plaintiffs of the suit. Girdhar Ahir remained in possession over the entire land; thereafter his son, namely, Hindu Ahir came in possession over the land and thereafter the sons of Hindu Ahir, namely, Kolha Ahir and Jolha Ahir came peacefully in cultivating possession over the land without any interruption.

¶40

III. Land of Khata No. 5 measuring are 2.92 acre (out of 5.07 acre) and land of Khata No.48 measuring area 1.28 acre was mutated in favour of Kandan Ahir in connivance of local Karamchari and Circle Inspector who obtained some rent receipts.

¶41

IV. It was stated that land of Khata No. 47 measuring area 4.66 acre was claimed by Dhodho Kharia, Khuen Kharia and Poulush Kharia on the basis of forged document and entry made in register-II was baseless and they never came in possession over the said land. It was further stated that Mutation Case No. 245/87-88 made in favour of Dhodho Kharia came to knowledge of the plaintiffs and the plaintiffs found that Amrit Ahirin wife of Dugaru Ahir, who was stranger to

¶42

3

¶43

2025:JHHC:11840

¶44

the family of the plaintiffs, had surrendered the land of Khata No. 47 in the name of the then landlord Raj Kishore Nand, S/o Madan Mohan Nand vide deed No. 1468 dated 03.11.1947 and said landlord settled the land in favour of Dhodho Kharia vide deed No. 1469 dated 03.11.1947. It was stated that Amrit Ahirin was stranger and she could not alienate land of Khata No. 47 and if defendant No. 5 obtained settlement deed, it did not create title in favour of defendant No. 5. Further, the land of khata no. 47 was mutated in the name of Hindu Ahir father of plaintiff vide Mutation Succession Case No. 13 R2/60-61 and the mutation so allowed continued till 1973-74, hence story of surrender and settlement by Amrit Ahirin and landlord Raj Kishore Nand respectively in the year 1947 is baseless. It was stated that claim of defendant no. 5, who is nephew of Dhodho Kharia, was unfounded. The subsequent step taken by defendant no. 5 or his father and uncle are of no consequence. It was stated that Chamra Ahir who was father of Kandan Ahir was no way related with recorded tenant Girdhar Ahir.

¶45

V. It was stated that in mutation appeal heard by Deputy Collector Land Reforms, Gumla, an order was passed vide appeal no. 45/87-88 dated 11.12.2002 in favour of defendant and order dated 15.07.1987 passed by the Circle Officer, Gumla cast cloud over the title of the plaintiffs hence the necessity of the suit. Cause of action for suit arose on the aforesaid two dates when Circle Officer and Deputy Collector Land Reforms passed order of mutation in favour of defendant.

¶46

VI. It was stated that land of khata nos. 5 and 48 was claimed by defendant nos. 1 to 4 on the basis of compromise held in the year 1976 which cannot confer any title to either party and it cannot legalize illegality of forgery done by Kandan Ahir, father of defendant nos. 1,3 and 4. It was stated that Circle Officer, Gumla while deciding mutation case has not given any reason of making entry of Jamabandi.

¶47

4

¶48

2025:JHHC:11840

¶49

5. Case of the defendants

¶50

A. On the other hand all the defendants (except defendant no.7) filed a common written statement. The defendant no. 1,3 and 4 had a common ancestor namely, Kandan Ahir and defendant no.2 was wife of Kandan Ahir. Defendant no. 5 and 6 were sons of Late Paulus Kharia. It was stated that the suit was not maintainable, barred by law of limitation, barred by law of adverse possession, barred by waiver, estoppel and acquiescence and also the plaintiffs had no cause of action.

¶51

B. It was said that Girdhar Ahir adopted his cousin’s son Chamra Ahir as his son because at that time he had nobody in his family to help him in cultivation. It was stated that after marriage of said Chamra Ahir the land in suit mentioned in schedule-A was orally transferred in favour of Chamra Ahir by Girdhar Ahir over which Chamra Ahir came peacefully in cultivating possession and was paying rent to the ex-landlord and after vesting of zamindari, to the Government of Bihar. After death of Chamra Ahir, his son Kandan Ahir and thereafter his son Mohan Ahir continuously came in possession over the said land and paid rent to the Government. In the recent survey settlement ‘banda Parcha’ of schedule-A land was prepared in the name of said Kandan Ahir. It was stated that in the year 1974 and 1980 a panchayati was held in which panches confirmed transfer of land by Girdhar Ahir to Chamra Ahir. It was stated that plaintiff Kolha Ahir applied for mutation in the year 1987 for the Schedule-A land before Circle Officer which was rejected and then plaintiff filed appeal before Deputy Collector Land Reforms which was also rejected due to possession of defendant since long period as Jamabandi was opened in the name of Chamra Ahir who was coming in peaceful possession over schedule-A land; thereafter his successor were coming in possession over the same without any interruption and perfected their right, title and interest.

¶52

5

¶53

2025:JHHC:11840

¶54

C. It was stated that original plaintiff no.1 Kolha Ahir dishonestly harvested the paddy of the suit land of khata no. 5 area 2.92 acre belonging to Mohan Ahir and had accepted his guilt and compromised.

¶55

D. It was stated that land in Schedule B belonged to defendant nos. 5 and 6 who were successor of Dhodho Kharia and were coming in possession over the same and have been paying rent. It was stated that land in question was surrendered through regular registered deed by Amrit Ahirin dated 03.11.1947 to the ex-landlord Raj Kishore Nand and on the same day Raj Kishore Nand settled the same land to Dhodho Kharia and his brother through registered deed. Since then Dhodho Kharia and his brother came in possession over the land by mutating their name in Sarista of landlord and Government and paid rent and thereafter their successor came in possession thereof. It was stated that defendant no. 5 and 6 acquired right, title and interest over the schedule-B land by virtue of aforesaid sale-deed since more than 57 years.

¶56

E. Said Amrit Ahirin was not a stranger but belonged to recorded tenant Girdhar Ahir. It was said that Circle Officer had rightly acted as the Jamabandi was standing and coming since long. It was stated that plaintiffs cannot say as to who was the successor of the purchaser Dhodho Kharia and the land of schedule-B belonged to Dhodho Kharia. Chamra Ahir was the adopted cousin’s son of the recorded tenant. The plaintiffs or their father were never in possession over the land in question. The Revenue Officer after making inquiry and finding the possession of the defendants registered mutation in the name of defendants in the record of right i.e. Register II. It was stated that after date of registration, it will be presumed that plaintiffs knew about the transaction under the provision of Transfer of Property Act.

¶57

F. Deputy Commissioner being defendant No. 7 had not made any claim.

¶58

6

¶59

2025:JHHC:11840

¶60

6. On the basis of pleadings, the learned trial court framed the following issues: -

¶61

I. Is the suit as framed, maintainable?

¶62

II. Is the valid cause of action arose for the present suit?

¶63

III. Is the suit barred by law of limitation, principle of adverse possession?

¶64

IV. Is the suit barred by principle of waiver, estoppel, acquiescence?

¶65

V. Is the suit barred by the provision of Section 34 of Specific Relief Act?

¶66

VI. Is the plaintiff owner and in possession of the suit land?

¶67

VII. Is the Jamabandi prepared in the name of defendant or their ancestors illegal, infructuous and not binding on the plaintiff?

¶68

VIII. Is the settlement deed executed in favour of defendant No. 5 is void, ab-initio and not binding upon the plaintiff?

¶69

IX. Is the plaintiff entitle for the reliefs as claimed?

¶70

X. Is the plaintiff entitled for cost of the suit?

¶71

XI. Is the plaintiff entitled for any other relief or reliefs?

¶72

7. Before the learned trial court, six witnesses were examined on behalf of the plaintiffs and nine witnesses were examined on behalf of the defendants. Documents were also exhibited from both the sides.

¶73

8. Findings of the learned trial Court

¶74

a. Issue Nos. VI, VII and VIII were taken up together by the learned trial court. The learned trial court recorded that the suit land mentioned in schedule A and B were recorded in the name of Girdhar Ahir [ grandfather of original plaintiffs Kolha Ahir and Jolha Ahir] and his name was recorded in record-of-rights against khata no. 5 area 5.07 acre, khata no. 48 area 1.28 acre and khata no. 47 area 4.66 acre. Since then, descendants of Girdhar Ahir Viz. Hindu Ahir, Kolha Ahir, Jolha Ahir and thereafter their descendants came in possession thereof being plaintiffs of this case. The plaintiffs had

¶75

7

¶76

2025:JHHC:11840

¶77

filed certified copy of Survey khatiyan in the name of Girdhar Ahir vide Ext. 1 to 1/a.

¶78

The defendants in support of their title and possession had filed rent receipt without proof of any mutation order by competent authority. The learned trial court recorded that the defendants were neither able to establish relation with Girdhar Ahir nor filed any chit of paper with respect to claim of suit land under khata no. 5 and 48 bearing area 2.92 acre and 1.28 acre respectively by way of oral gift nor defendant no. 5 Baidhyanath Kharia had established Amrit Ahirin as successor of Girdhar Ahir, who had surrendered the schedule B land i.e. khata no. 47 area 4.66 acre in favour of zamindar Raj Kishore Nand who in turn settled it to Dhodho Kharia. The learned trial court further recorded that the defendant no.5 Baidhyanath Kharia who claimed schedule B land had also not established relation with Dhodho Kharia, the settlee, in whose name khata no. 47 area 4.66 acre of the suit land was said to have been settled, hence right, title and possession was declared in favour of plaintiffs over the suit land; Jamabandi opened in the name of defendants was declared illegal, infructuous and not binding on the plaintiffs. The settlement deed bearing no. 1469 dated 03.11.1947 in favour of Dhodho Kharia was also declared void and inoperative and not binding on the plaintiffs.

¶79

b. Further, the learned trial court took up issue Nos. I, II, III, IV and V together and recorded that it was clear that the plaintiffs had established their case, they had filed suit when Revenue Authority rejected the prayer of plaintiffs for mutating the suit land vide order dated 16.07.1987 and appellate authority rejected the appeal on 11.12.2002 and thereafter the suit was filed in the year 2003. The learned trial court found that the suit was not barred by law of limitation and that adverse possession would not apply as defendants could not simultaneously claim title by way of document of title and also adverse possession. The learned trial court ultimately recorded

¶80

8

¶81

2025:JHHC:11840

¶82

that the suit was not barred by principle of waiver, estoppel, acquiescence of Specific Relief Act and the plaintiffs had cause of action for the suit and the suit was maintainable as framed.

¶83

9. Findings of the learned 1^st Appellate Court

¶84

I. The learned 1^st appellate court also considered the materials available on record and adjudicated the issues as framed by the learned trial court. With regard to adjudication of issue Nos. VI, VII and VIII, the learned appellate court recorded concurrent findings at paragraph 36, which is quoted as under: -

¶85

“36. On the basis of discussions made above, there is no doubt that the suit land mentioned in Schedule A and B were recorded in the name of Girdhar Ahir who was grandfather of plaintiff Kolha Ahir and Jolha Ahir and his name was recorded in record of right as Khata No. 5, area 5.07 acre, khata No. 48 area 1.28 acre and Khata No. 47 area 4.66 acres. Since then descendant of Girdhar Ahir viz. Hindu Ahir, Kolha Ahir, Jolha Ahir and thereafter his son having coming in possession thereof being plaintiff of this case. The plaintiff has filed certified copy of survey Khatiyan in the name of Girdhar Ahir vide Ext. 1 to 1/a which has been admitted by the defendants also. The defendant in support of their title and possession have filed some rent receipts without proof of any mutation order by the competent authority. The defendant has not been able to establish their relation with recorded tenant Girdhar Ahir nor have they filed any document with respect to their claim over the suit land of Khata No. 5 and 48 bearing area 2.92 acre and 1.28 acre respectively by way of oral gift which is not permissible in the eyes of law. Similarly, defendant No. 7 Baidyanath Kharia has failed to establish that Amrit Ahirin was the successor of recorded tenant Girdhar Ahir who had surrendered Schedule B land i.e., Khata No. 47 area 4.66 acre in favour of ex-landlord Raj Kishore Nand who in turn settled it to Dhodha Kharia. The defendant Baidyanath Kharia who claimed Schedule B land has also not established his relation with Dhodho Kharia, the setllee, in whose name Khata No. 47 area 4.66 acre of the suit land was said to be settled. Hence, the right, title and possession is declared in favour of plaintiffs/respondents over the suit land as described in Schedule A and Schedule B. Jamabandi opened in the name

¶86

9

¶87

2025:JHHC:11840

¶88

of defendant is also declared illegal, infructuous and not binding on the plaintiff/respondents No. 1, 1 (a), 1(c), 1(d) and 2. The settlement deed bearing No. 1469 executed on 03-111947 in favour of Dhodho Kharia is also declared void and inoperative and not binding on the plaintiff.”

¶89

10. So far adjudication of issue Nos. I, II, III, IV and V are concerned, the learned 1^st appellate court recorded its concurrent findings as under: -

¶90

“37. From the aforesaid discussions, it is clear that the plaintiff has established his case, he has filed suit when Revenue Authority rejected the prayer of plaintiff for mutating the suit land dated 16-07-1987 and 11-12-2002 before the appellate Court thereafter, he filed this suit in the year 2003. Learned counsel for the plaintiff has filed the case law which may be read as under:- AIR 2000 SC 2023 P. Sarthy Vs. State Bank of India. By this case learned counsel has drawn attention that exclusion of time spent in prosecuting another proceeding can calculate in the proceeding it must be of any Court, need not be in Civil Court and has stated that proceeding which was spent for in appeal will not be calculated in this case against limitation. He has also relied upon case law 2004 (3) JLJR 657 Ramnath Munda & Ors Vs. Khantu Mudna and has stated that when a deed is invalid the question of its being relied and considered by a Court is not required, Law of Limitation will apply only when the document to be hit is a valid one. Thus, I find that suit is not barred by law of Limitation, adverse possession will not apply in the suit in as much as defendant cannot claim simultaneously title one by way of document of title and other by way of adverse possession. Also the suit is not barred by principle of waiver, estoppel, acquiescence of Specific Relief Act and the plaintiff has cause of action for the suit and the suit is maintainable as framed.

¶91

44. Thus, I find that the suit is not barred by law of limitation, adverse possession will not apply in the suit as the defendant cannot claim simultaneously title on the basis of gift and settlement deed and by way of adverse possession as they both are mutually inconsistent pleas. Also the suit is not barred by principle of waiver, estoppel, acquiescence and provisions of Section 34 of the Specific

¶92

10

¶93

2025:JHHC:11840

¶94

Relief Act and the plaintiffs/respondents have valid cause of action for the suit and the suit is maintainable as framed.”

¶95

Arguments of the appellants on the 2^nd substantial question of law.

¶96

11. The learned counsel for the appellants while referring to the substantial question of law No. (ii) has submitted that two persons i.e. defendant No. 2-Khubi Ahirin and defendant No. 3-Taramuni Devi were dead but the plaintiffs did not take any step for their substitution and therefore the entire suit had abated. He has submitted that they died during the pendency of the title suit.

¶97

12. The learned counsel has relied upon the judgment passed by the Hon’ble Supreme Court reported in (2005) 6 SCC 300 [Kishun @ Ram Kishun (dead through LRs.) Vs. Behari (dead) By LRs.] which has been referred to in substantial question of law No. (ii) and has in particular referred to paragraph 9 thereof to submit that the decree against a dead person is a nullity.

¶98

Arguments of the respondents

¶99

13. The learned counsel appearing on behalf of the respondents has referred to the judgment passed by the Hon’ble Supreme Court reported in 2023 Live Law SC 261 (Shivshankara and Another Vs. H.P. Vedavyasa Char), paragraph 32 onwards to submit that it is not that in all cases the entire suit would abate. The learned counsel submits that there is elaborate discussion in the aforesaid judgment primarily on the point that if there is no substitution and the estate of the deceased is substantially represented through the parties who are already on record then under such circumstances, the entire suit will not abate. He submits that all the defendants in the suit had common ancestor and they were pursuing their right, title and interest flowing from their common ancestor. He has also submitted that except defendant No. 7 all the defendants had filed a common written statement. The learned counsel has also submitted that so far as defendant No. 2 is concerned, she is the wife of Late Kandan Ahir and defendant No. 1 was the son of Late Kandan Ahir and so far as

¶100

11

¶101

2025:JHHC:11840

¶102

defendant No. 3 is concerned, she is the daughter of late Kandan Ahir and therefore the estate of the defendants which were flowing from the common ancestor was substantially represented.

¶103

14. The learned counsel for the respondents has also referred to memo of appeal which was filed before the 1^st appellate court and has submitted that in the memo of appeal itself, the name of the appellant No. 2, who was defendant No. 2 in the suit, was projected as dead and the name of appellant No. 3, who was defendant No. 3 in the suit, was also shown as dead. He has submitted that the same was done without any foundational pleading. The learned counsel submits that there is nothing on record to show the date of death of defendant Nos. 2 and 3. He has referred to the provisions of Order XXII Rule 6 of CPC to submit that once the arguments are concluded and any person dies after conclusion of the argument and before passing of the judgment and decree, the suit does not abate. The learned counsel submits that at no point of time, the defendants pointed out before the court regarding the death of defendant Nos. 2 and 3 and therefore the defendant Nos. 2 and 3 were not substituted. He has also submitted that there is no evidence on record in connection with death of defendant Nos. 2 and 3. It was only in the cause title of the memo of appeal which was filed before the first appellate court, they were shown as dead. He has also submitted that the decree of the trial court does not show them as dead, but the decree of the appellate court shows them as dead because they were shown as dead in the memo of appeal.

¶104

15. The learned counsel for the respondents has also submitted that so far as the judgment reported in (2005) 6 SCC 300 (supra) is concerned, paragraph 6 of the said judgment was primarily referring to the general proposition that a judgment against a dead person was a nullity and there was no much adjudication on the point of law which has been laid down by the Hon’ble Supreme Court in the case reported in 2023 Live Law SC 261 .

¶105

12

¶106

2025:JHHC:11840

¶107

Rejoinder arguments of the appellants

¶108

16. In response, the learned counsel for the appellants has submitted that so far as the defendant No. 3 is concerned, since she was married daughter, therefore, it cannot be said that her estate was duly represented by the other defendants. However, it is not in dispute that the defendants particularly defendant Nos. 1 to 6 were claiming their right by virtue of being descendants of their common ancestor.

¶109

Arguments of the appellants on the 1^st substantial question of law.

¶110

17. The learned counsel for the appellants has submitted that the learned trial court has clearly recorded that the claim for mutation was rejected way back in the year 1987 and merely because the plaintiffs were pursuing their appeal against the said order, the same would not give the plaintiffs an extended period of limitation. He has submitted that although the trial court’s finding in connection with the limitation has not referred to Section 14 of the Limitation Act, but the reasons therein at best are referable to Section 14 of the Limitation Act and he submits that such finding is erroneous in law and the suit was barred by limitation. He has also submitted that for seeking a declaration that the transaction was void, limitation period of 3 years would apply and this aspect of the matter has also not been properly considered by the learned trial court and also by the learned 1^st appellate court.

¶111

Arguments of the respondents

¶112

18. Learned counsel for the respondents has submitted that it was the appellate authority i.e. LRDC in the appeal in connection with order of mutation, who pointed out that the matter relates to title dispute which is to be adjudicated through a competent court of civil jurisdiction and thereafter the suit was filed. The learned counsel submits that the plaintiffs were diligently pursuing their remedies in the matter of mutation as the plaintiffs were in possession of the property. The learned counsel submits that the trial court confirmed the possession of the plaintiffs and rejected the claim

¶113

13

¶114

2025:JHHC:11840

¶115

of adverse possession of the defendants by holding that the defendants could not claim adverse possession as well as title simultaneously.

¶116

19. The learned counsel has submitted that once the plaintiffs were in possession of the property a mere declaration that the deed was not binding was sufficient and otherwise also the reasons which have been given by the learned trial court as well as the appellate court were sufficient to hold that the suit was filed within the period of limitation. The learned counsel has also submitted that in case of party being in possession, the period of limitation will be differently governed as compared to that of a party who is not in possession of the property.

¶117

20. The learned counsel has placed the judgment passed by the Hon’ble Supreme Court reported in (2009) 6 SCC 160 which has been referred to in the substantial question of law No. (i) itself and has submitted that the said judgment is distinguishable. He has referred to another judgment reported in (2006) 5 SCC 353 (Prem Singh & Others vs. Birbal & Others) paragraphs 11 to 20. He submits that it has been held that if plaintiff is in possession of the property, he may file suit for declaration that the deed is not binding upon him, however, if he is not in possession he may sue for possession and the limitation period as per Article 65 of the Limitation Act will be applicable. He has submitted that it has been held that it is not correct to contend that the provisions of the Limitation Act would have no application at all in the event the transaction is held to be void .

¶118

21. The learned counsel submits that in the present case, the plaintiffs have claimed their possession as a matter of right and were seeking declaration of title and confirmation of possession and the suit was duly decreed by the learned trial court and upheld by the appellate court. He has submitted that the documents which were produced by the defendants were held to be void-ab-initio by the trial court and this finding has been confirmed by the learned 1^st appellate court. He submits that therefore, otherwise also, the suit was not barred by limitation.

¶119

14

¶120

2025:JHHC:11840

¶121

Findings of this Court

¶122

2^nd substantial question of law.

¶123

22. The records of the case reveal that the title suit was decreed in favour of the plaintiffs vide judgment dated 15^th March 2014 and right, title, interest and possession with respect to the suit property was declared in their favour and further, the settlement deed bearing no.1469 executed on 03.11.1947 in favour of Dhodho Kharia was declared to be void and inoperative and not binding on the plaintiffs. The learned trial Court also declared that the defendant Baidyanath Kharia who claimed the ScheduleB property, could not establish relation with Dhodho Kharia – the settlee in whose name Khata No. 47 area 4.66 acres of the suit land was said to be settled vide the settlement deed bearing no.1469 executed on 03.11.1947.

¶124

23. The learned Court also recorded that the defendants were not able to establish relation with Girdhar Ahir with respect to claim of Khata No. 5 and 48 area 2.92 acres and 1.28 acre respectively and admittedly, Girdhar Ahir was the recorded tenant. Thus, the defendants could neither establish relation with Girdhar Ahir with respect to Khata No. 5 and 48 nor could establish relation with Dhodho Kharia with respect to the Khata no. 47.

¶125

24. The records of the case reveal that the decree in title suit was not passed against any dead person. 25. However, the defendant no.1 to 6 were shown as appellants before the 1^st appellate Court and in the memo of appeal, it was simply mentioned in the cause title of the memo of appeal itself that the defendant no. 2 namely, Khubi Ahirin and defendant no. 3 namely, Taramuni Devi were dead. The defendant nos. 2 and 3 were the mother and sister of defendant no. 1, but the defendant no. 1 while filing appeal with other defendants did not take care to implead the legal heirs and successors of defendant no.2 and 3. It is further not in dispute that the defendant nos. 1 to 4 were claiming the property through late Kandan Ahir. Defendant no. 4 was another daughter of Kandan Ahir.

¶126

15

¶127

2025:JHHC:11840

¶128

26. This Court finds that it is not a case where the trial court’s decree was passed against a dead person. Rather it is a case where the two defendants i.e. defendant nos. 2 and 3 were shown dead for the first time by including them as co-appellants by putting the word (dead) against their names which continued to be shown in the same manner in the decree of the 1^st appellate court also. In the entire record which has been placed before this Court, there is no material to show as to date of death of defendant nos. 2 and 3. Admittedly the defendant nos. 1 to 6 had filed joint written statement before the learned trial court on 22.07.2004 and also led evidences during trial, but at any point of time it was not indicated during trial that defendant nos.2 and 3 had expired although defendant no. 2 was the mother and defendant no.3 was the sister of the defendant no.1.

¶129

27. The date of death of the defendant no. 2 and 3 is a material fact and in absence of such date it cannot be said that they had expired prior to passing of the decree of the learned trial court or thereafter. In absence of any evidence regarding the date of death of defendant nos. 2 and 3, it cannot be assumed that the defendant nos. 2 and 3 died during trial and therefore the trial court decree cannot be said to be a nullity in the eyes of law. Even at the 1^st appellate stage no material or evidence was brought on record by the defendants -appellants, either oral or documentary, regarding the date of death of the defendant nos. 2 and 3. Since right, title, interest and possession with respect to the suit property was declared in favour of the plaintiffs by the learned trial court itself, there was no occasion for the plaintiffs to institute any execution case. It is important to note that at the time of arguments before the learned 1^st appellate court it was raised that the defendant nos. 2 and 3 had expired more than 5 years ago but neither the date of death was given, nor any proof of death was furnished nor any additional evidence was led with regard to the date of death of the defendant no. 2 and 3 and accordingly, such plea before the 1^st appellate court, without any material to bring on record the date of death of defendant nos.2 and 3,who were the close relative of the defendant no.1, was of no consequence.

¶130

16

¶131

2025:JHHC:11840

¶132

28. This Court is of the view that merely stating in the memo of appeal that the defendant nos. 2 and 3 had expired, without anything more - particularly the date of death, is not sufficient to hold that the decree of the learned trial court is a nullity in the eyes of law. In this regard it would be relevant to refer to Order XXII Rule 6 of CPC which provides that there shall be no abatement by reason of the death of either party between the conclusion of the hearing and the pronouncing of the judgment, but judgment may in such case be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before the death took place. Order XXII Rule 6 of CPC is quoted as under:

¶133

“No abatement by reason of death after hearing.- Notwithstanding anything contained in the foregoing rules, whether the cause of action survives or not, there shall be no abatement by reason of the death of either party between the conclusion of the hearing and the pronouncing of the judgment, but judgment may in such case be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before the death took place.”

¶134

29. Thus, even in cases of death after conclusion of arguments, the trial does not abate and in order to record a finding of abatement, the date of death is a material fact which is completely absent in the present case. In the aforesaid facts and circumstances, it cannot be said that the decree of the learned trial court was passed against two dead persons, that is, defendant no.2 and 3 and hence is a nullity in the eyes of law.

¶135

30. Further, in the judgement referred to in the substantial question of law no. (ii), reference has been made to paragraph 6 of the judgement passed in the case of “Kishun @ Ram Kishun Vs. Behari” reported in (2005) 6 SCC 300 which is quoted as under:

¶136

“6. As rightly pointed out by learned counsel for the appellants and fairly agreed to by learned Senior Counsel for the respondent, the decree passed by the High Court in favour of a party who was dead and against a party who was dead, is obviously a nullity. It is conceded that the legal representatives of neither of the parties were brought on record in the second appeal and the second appeal stood abated. On this short

¶137

17

¶138

2025:JHHC:11840

¶139

ground this appeal is liable to be allowed and the decision of the High Court set aside.”

¶140

31. However, the learned counsel for the respondents has also referred to the judgement passed in the case of “Shivshankara and Another Vs. H.P. Vedavyasa Char” reported in 2023 LiveLaw (SC) 261. Paragraphs 32 to 36 of the aforesaid judgment are quoted as under:

¶141

“ 32. Now, we will consider the question whether the suit ought to have been held as abated against all the defendants as contended by the appellants for non-substitution and owing to the failure to implead all the legal representatives on the death of the original third defendant- Hanumaiah. The contention that the suit is bad for non-joinder of necessary parties is also raised based on the same reason. Hence, these questions are to be considered jointly. Obviously, the Courts below declined to uphold the said contentions of the defendants. It is to be noted that the appellants have also raised a contention that Sriman Madhwa Sangha which is an organization and Sri Vittal Rao ought to have been impleaded as parties to the suit and in view of their non impleadment, the suit is bad for non-joinder of necessary parties. While considering the same, the fact that the aforesaid Sriman Madhwa Sangha and Sri Vittal Rao filed a petition for eviction against the respondent herein as HRC No.10020 of 1991 wherein it was stated that the first respondent therein (the respondent herein) is in occupation of a portion of the schedule property and he has illegally and unauthorizedly sub-let the other two portions of the property to the second and third respondents therein, namely Shri B. Ramachandra Rao and Sh. N. Murlidhara Rao on monthly rental of Rs.400/and Rs.300/- respectively and has been collecting the rents from them, rightly taken into consideration by the High Court, requires to be borne in mind. That apart, the fact that while being examined as DW-1 the deceased second appellant herein had deposed that no possession was taken after execution of Exhibit D-1 agreement for sale dated 01.03.1993 as Sriman Madhwa Sangha had assured to secure possession and hand over the possession to the first appellant herein/the first defendant. When that be the position and when the subject suit is one based on prior possession the appellants herein are not justified in contending that the suit is bad for non-joinder of Sriman Madhwa Sangha and Sri Vittal Rao.

¶142

33. As noticed earlier, the appellants have also contended that the suit ought to have been held as abated against all the defendants

¶143

18

¶144

2025:JHHC:11840

¶145

owing to non-substitution of all the legal representatives of the deceased defendant No. 3 upon his death. This contention is bereft of any basis and merits and was rightly repelled by the courts below. In that regard it is to be noted that the first appellant and deceased second appellant as also their father Hanumaiah were all arrayed in the suit as defendants and they were jointly defending the suit. Upon the death of original third defendant viz., Hanumaiah the original defendants No.1 and 2, who are sons of the original defendant No.3 fully and substantially representing the joint interest contested the suit and, thereafter, after suffering an adverse judgment and decree in the suit diligently preferred the appeal before the High Court which ultimately culminated in the impugned judgment and decree. Even thereafter, obviously they are diligently prosecuting the joint interest, even if the contention of joint interest is taken as correct, by filing the captioned appeal.

¶146

34. In the contextual situation the following decisions assumes relevance. The decision in Bhurey Khan v. Yaseen Khan (Dead) By LRs. And Ors. 1995 Supp. (3) SCC 331 was referred to in the impugned judgment by the High Court to reject the aforesaid contention of the appellants therein viz. original defendant Nos. 1 and 2. In paragraph 4 of the decision in Bhurey Khan’s case, this Court held thus:-

¶147

“……the estate of the deceased was thus sufficiently represented. If the appellant would not have filed any application to bring on record the daughters and the widow of the deceased the appeal would not have abated under Order 22 Rule 4 of the Code of Civil Procedure as held by this Court in Mahabir Prasad v. Jage Ram [(1971) 1 SCC 265 : AIR 1971 SC 742] . The position, in our opinion, would not be worse where an application was made for bringing on record other legal representatives but that was dismissed for one or the other reason. Since the estate of the deceased was represented the appeal could not have been abated.”

¶148

35. In the decision in State of Andhra Pradesh through Principal Secretary and Ors. v. Pratap Karan and Ors. (2016) 2 SCC 82 , this Court held:-

¶149

“40. In the instant case, the plaintiffs joined together and filed the suit for rectification of the revenue record by incorporating their names as the owners and possessors in respect of the suit land on the ground inter

¶150

19

¶151

2025:JHHC:11840

¶152

alia that after the death of their predecessor-in-title, who was admittedly the pattadar and khatadar, the plaintiffs succeeded the estate as sharers being the sons of khatadar. Indisputably, therefore, all the plaintiffs had equal shares in the suit property left by their predecessors. Hence, in the event of death of any of the plaintiffs, the estate is fully and substantially represented by the other sharers as owners of the suit property. Therefore, by reason of non-substitution of the legal representative(s) of the deceased plaintiffs, who died during the pendency of the appeal in the High Court, entire appeal shall not stand abated. Remaining sharers, having definite shares in the estate of the deceased, shall be entitled to proceed with the appeal without the appeal having been abated. We, therefore, do not find any reason to agree with the submission made by the learned counsel appearing for the appellants.”

¶153

36. We are of the considered view that the same analogy is applicable in a case where even in the event of death of one of the defendants, when the estate/interest was being fully and substantially represented in the suit jointly by the other defendants along with deceased defendant and when they are also his legal representatives. In such cases, by reason of non-impleadment of all other legal heirs consequential to the death of the said defendant, the defendants could not be heard to contend that the suit should stand abated on account of non-substitution of all the other legal representatives of the deceased defendant. In this case, it is to be noted that along with the deceased 3 rd defendant the original defendant Nos. 1 and 2 were jointly defending their joint interest. Hence, applying the ratio of the aforesaid decision and taking into account the fact that the appellants/ the original defendants No. 1 and 2 despite the death of original defendant No.3 defended the suit and preferred and prosecuted the first appeal. Upon the death of the second appellant the joint interest is being fully and substantially taken forward in this proceeding as well by the first appellant along with the substituted legal representatives of the deceased second appellant, we do not find any reason to disagree with the conclusions and findings of the courts below for rejecting the contention that suit ought to have held abated owing to the non-substitution of all the legal heirs of deceased third defendant against all defendants. For the same reason, the contention that the suit was bad for non-joinder of

¶154

20

¶155

2025:JHHC:11840

¶156

necessary parties of all his legal heirs/representatives also has to fail.”

¶157

32. Upon going through the aforesaid two judgments, this Court is of the considered view that there is no dispute with regard to general proposition of law that the decree passed in favour of a party who was dead and against a party who was dead, is obviously a nullity. From the perusal of paragraph 6 of the aforesaid judgment in the case of Kishun @ Ram Kishun (Dead) through Lrs. (Supra ), it appears that the aforesaid proposition of law was not in dispute and it was conceded that the legal representatives of neither of the parties were brought on record in the second appeal and the second appeal stood abated. The Hon'ble Supreme Court was of the view that on this short ground, the said appeal was liable to be allowed and the decision of the High Court was set-aside with an order of remand in terms of paragraph 9 of the said judgment.

¶158

33. However, the aforesaid proposition of law as mentioned in paragraph 6 of the judgment of Kishun @ Ram Kishun (Dead) through Lrs. (Supra) is also to be seen in the light of the law laid down by the Hon'ble Supreme Court in the case of Shivshankara and Another (Supra) wherein it has been held that suit cannot be held to be abated in the event of death of one of the defendants when the estate/interest was being fully and substantially represented in the suit jointly by other defendants along with deceased defendant and when they are also his legal representatives.

¶159

34. This court is of the considered view that the estate of Kandan Ahir was certainly substantially represented by his son and one daughter who were admittedly alive and certainly, the son was the legal representative of his mother – defendant no.2 who was already on record. So far as the defendant no. 3 is concerned, her interest was also substantially represented as common written statement was filed by the defendant no. 1 to 6 and there was no scope to take a different stand after her death.

¶160

35. This Court finds that there is no finding of the learned Courts that Khubi Ahirin (defendant no. 2) and Taramuni Devi (defendant no.3) had expired during the pendency of the suit and consequently, it cannot be said 21

¶161

2025:JHHC:11840

¶162

that title suit was decreed against dead persons and consequently, it was a nullity in the eyes of law. A mere statement in the memo of appeal by itself is of no consequence and merely because they were shown as dead at the time of filing the appeal, is also of no consequence. Further the estate of defendant no.2 and 3 was substantially represented by defendant no. 1 and 4 as defendant no. 1 to 4 were claiming through common ancestor and had filed common written statement.

¶163

36. In view of the aforesaid findings, it is held that the learned 1^st appellate court did not commit any perversity by not taking into consideration that the judgment and decree passed by the learned trial court in the Title Suit No.29 of 2003 is against two dead persons , the defendant no.2-Khubi Ahirin and defendant no.3 Taramuni Devi, as no material was brought on record to show the date of death of the defendant no. 2 and 3 although the defendant no.1 who was the appellant no.1 was the son of defendant no.2 and brother of defendant no.3 and there was no material on record to show that defendant no.2 and 3 died during the pendency of the suit. Further, otherwise also the estate and interest of the defendant no. 2 and 3 was substantially represented by the defendant no. 1 and 4 who were the appellants before the 1^st appellate court. Consequently, the judgment and decree passed in Title Suit No.29 of 2003 is not a nullity when the general principles of law laid down in paragraph no.6 of the judgment in the case of Kishun @ Ram Kishun (dead)Thru. Lrs. Vs. Behari (Dead) By Lrs. reported in (2005) 6 SCC 300 is read along with the judgement passed by the Hon’ble Supreme Court in the case of “Shivshankara and Another Vs. H.P. Vedavyasa Char” reported in 2023 LiveLaw (SC) 261. In view of the aforesaid findings, the 2^nd substantial question of law is decided against the appellants and in favour of the respondents.

¶164

1^st Substantial question of law

¶165

37. The records of the case reveal that the suit was initially filed seeking declaration of title and confirmation of possession over the suit land and also for cancellation of Jamabandi , if any, created in the name of the

¶166

22

¶167

2025:JHHC:11840

¶168

defendants and also for declaring void ab initio , if any surrender and settlement deed was produced by the defendant no.5. However, an amendment was made in the prayer of the suit that if the plaintiffs were found dispossessed from any portion of the suit land during the course of proceedings, such possession be delivered to the plaintiffs by the process of Court.

¶169

38. Both the learned Courts have, inter alia , declared the right, title, interest and possession in favour of the plaintiffs and have also declared that the settlement deed bearing no. 1469 executed on 03.11.1947 in favour of Dhodho Kharia is void and inoperative and not binding on the plaintiffs. 39. The point of limitation has been agitated by the concerned defendants who are appellants before this Court with respect to challenge to the settlement deed bearing no. 1469 executed on 03.11.1947. The learned trial Court while deciding this issue of limitation has observed that the plaintiffs had filed suit when the revenue authority rejected the prayer of the plaintiffs for mutating the suit land on 16.07.1987 and thereafter, when the appellate authority rejected the appeal also on 11.12.2002. The suit was filed in the year 2003.

¶170

40. It was the specific case of the plaintiffs that with respect to Khata No. 47 measuring area 4.66 acres, Dhodho Kharia, Khuen Kharia and Poulush Kharia created some forged documents and got their name mutated and entered in Register II, but they never came in possession of the property. It was their further case that in Mutation Appeal heard by Deputy Collector Land Reforms, Gumla being Mutation Appeal No. 45 of 1987-88, the forgery made by Dhodho Kharia came to the knowledge of the plaintiffs and it also came to light that one Amrit Ahirin , a stranger to the family of the plaintiffs, surrendered the land of the plaintiffs being Khata No. 47 in favour of the then landlord on 03.11.1947 and on the same day, the landlord made settlement in favour of Dhodho Kharia. It was also the case of the plaintiffs that if the father or uncle of defendant no. 5 succeeded in obtaining some rent receipt on the basis of some forged and fake

¶171

23

¶172

2025:JHHC:11840

¶173

documents, the mutation order or the rent receipt cannot create or extinguish the title of either party. It was also their case that the local Karmchari had submitted a report in the Mutation Case No. 245 of 198788 on 01.05.1987 wherein he did not disclose as to how the Jamabandi of the defendants was created. It was the specific case of the plaintiffs that in respect of Khata No. 47 the mutation was allowed in the name of Hindu Ahir, the father of the plaintiffs vide Mutation Succession Case No. 13 R2/60-61 and the same continued till 1973-74. Hence, it was the case of the plaintiffs that the story of surrender and settlement made in the year 1947 falls flat on the ground. It was asserted in paragraph 14 of the plaint that all these facts came to the knowledge of the plaintiffs in Mutation Appeal No. 45 of 1987-88 wherein ultimately an observation was made vide final order dated 11.12.2002 that the plaintiffs may go to the competent Civil court for proper adjudication of their title and revenue courts were not competent to decide the title. The concerned mutation case was bearing case no. 245 of 1987-88 which was decided on 16.07.1987 by the Circle Officer, Gumla and Mutation Appeal was bearing no. 45 of 1987-88 which was decided on 11.12.2002 by Deputy Collector Land Reforms, Gumla, which as per the plaintiffs cast a cloud over the title of the plaintiffs and the plaintiffs thought it necessary to file a suit and then the suit was filed on 01^st August 2003. 41. The learned trial court, while considering the point of limitation, has taken into consideration the aforesaid orders in connection with mutation i.e. order passed by the Circle Officer dated 16.07.1987 and the appellate order dated 11.12.2002 and was of the view that the time consumed for proceeding before the original authority dealing with mutation and also before the appellate authority, was to be excluded. For this purpose, the trial Court referred to the judgment passed by the Hon'ble Supreme Court in the case reported in AIR 2000 SC 2023 (P. Sarathy Vs. State Bank of India) and ultimately, held that the suit was not barred by limitation.

¶174

42. The learned appellate Court has also considered the point of limitation and apart from the judgment passed by the Hon'ble Supreme

¶175

24

¶176

2025:JHHC:11840

¶177

Court in the case of P. Sarathy (Supra), the learned 1^st appellate court has also referred to the judgment passed by this Court in the case reported in 2004 (3) JLJR 657 (Ramnath Munda & Ors Vs. Khantu Mudna) which was relied upon by the plaintiffs to submit that when a deed is invalid, the question of it being relied and considered by the Court is not required and the law of limitation would apply only when the document to be hit is a valid one. The learned 1^st appellate Court ultimately held that the suit was not barred by limitation and also rejected the plea of adverse possession by observing that title on the basis of gift and settlement deed and title by way of adverse possession are mutually inconsistent pleas.

¶178

43. The aforesaid substantial question of law no. (i) as framed in the present case, refers to the following paragraphs of the judgment passed by the Hon'ble Supreme Court in the case of “Abdul Rahim & Ors. vs. Sk. Abdul Zabar & Ors.” reported in (2009) 6 SCC 160 [equivalent citation is AIR 2010 SC 211] :

¶179

“28. 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. 29. In Mohd. Noorul Hoda v. Bibi Raifunnisa (1996) 7 SCC 767, this Court held:

¶180

“6. … 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

¶181

25

¶182

2025:JHHC:11840

¶183

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.”

¶184

44. The said judgment was subject matter of consideration in the judgment passed by the Hon'ble Supreme Court in the case of Prem Singh (Supra) wherein it has been held in paragraphs 13 to 20 as under:

¶185

“ 13. Article 59 of the Limitation Act applies specially when a relief is claimed on the ground of fraud or mistake. It only encompasses within its fold fraudulent transactions which are voidable transactions.

¶186

14. A suit for cancellation of instrument is based on the provisions of Section 31 of the Specific Relief Act, which reads as under:

¶187

“31. When cancellation may be ordered.—(1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.

¶188

(2) If the instrument has been registered under the Indian Registration Act, 1908 (16 of 1908), the court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation.”

¶189

26

¶190

2025:JHHC:11840

¶191

15. Section 31 of the Specific Relief Act, 1963 thus, refers to both void and voidable documents. It provides for a discretionary relief.

¶192

16. When a document is valid, no question arises of its cancellation. When a document is void ab initio, a decree for setting aside the same would not be necessary as the same is nonest in the eye of the law, as it would be a nullity.

¶193

17. Once, however, a suit is filed by a plaintiff for cancellation of a transaction, it would be governed by Article 59. Even if Article 59 is not attracted, the residuary article would be.

¶194

18. 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 a document is prima facie valid. It would not apply only to instruments which are presumptively invalid.

¶195

19. It is not in dispute that by reason of Article 59 of the Limitation Act, the scope has been enlarged from the old Article 91 of the 1908 Act. By reason of Article 59, the provisions contained in Articles 91 and 114 of the 1908 Act had been combined.

¶196

20. If the plaintiff is in possession of a property, he may file a suit for declaration that the deed is not binding upon him but if he is not in possession thereof, even under a void transaction, the right by way of adverse possession may be claimed. Thus, it is not correct to contend that the provisions of the Limitation Act would have no application at all in the event the transaction is held to be void.”

¶197

45. The suit in the present case was filed seeking a declaration that the registered settlement of the year 1947 was null and void and was not binding upon the plaintiffs. In the present case the plaintiffs were found in possession of the suit property and they sought both the reliefs, a declaration that the registered settlement of the year 1947 was not binding upon the plaintiffs and also that the registered settlement of the year 1947 was null and void. This Court is of the considered view that in order to get the registered settlement deed of the year 1947 declared as null and void, adjudication is required and without any adjudication it cannot be said that the settlement was void ab initio , even if it was obtained by fraud.

¶198

27

¶199

2025:JHHC:11840

¶200

46. It was the specific case of the plaintiffs that they were in possession of the suit property and the documents produced by the defendants before the Circle Officer and Deputy Collector Land Reforms, Gumla in mutation proceedings were mere paper transactions which came to the knowledge of the plaintiffs when the mutation appeal was being heard by Deputy Collector Land Reforms, Gumla in Mutation Appeal No. 45 of 1987-88 and final order was passed on 11.12.2002 with observation that the plaintiffs may go to the competent civil Court for proper adjudication of their title as the revenue Court is not the competent authority to decide the title. The written statement filed by the defendant nos. 1 to 6 reveals that the case of the defendants was that they were in possession of the property since the date of transfer and the date of registration will be presumed to be date of knowledge of all and therefore, it was wrong to say that the plaintiffs knew about the registered deed of the year 1947 at the time of mutation appeal no. 45 of 1987-88.

¶201

47. The original plaintiff no. 1 was examined as P.W-6 and he had fully supported the case of the plaintiffs and had reiterated that he came to know about the registered patta of the year 1947 during the Mutation Case No. 245 of 1987-88 and also asserted that the plaintiffs were in possession of the suit property. It was also asserted by this witness that the documents produced by the defendants were forged and fabricated. This witness has been cross-examined and there is no cross-examination on the claim that the plaintiffs came to know about the registered deed of the year 1947 during the mutation proceedings. However, during cross-examination, the original plaintiff no. 1 who was examined as P.W. 6 denied that there was any Panchayati held in the year 1980 in connection with the property.

¶202

48. This Court finds that the plaintiffs duly established that they had no knowledge about the claim and also about the documents of the defendants and that the plaintiffs came to know about them only in the mutation proceedings. This Court also finds that the learned 1^st appellate Court, after considering the materials on record, has rejected the plea of the defendants

¶203

28

¶204

2025:JHHC:11840

¶205

that there was any Panchayati held in connection with the property. This Court also finds that both the learned Courts have given concurrent findings with regard to possession of the suit property in favour of the plaintiffs. 49. The plea raised by the defendants in the written statement that the date of registration would be deemed to be the date of knowledge is devoid of any merits. In the judgement passed by the Hon’ble Supreme Court reported in (2018) 6 SCC 422 (Chḥotanben Vs. Kirtibhai Jalkrushnabhai Thakkar), though passed in connection with proceedings under order VII Rule 11 of C.P.C, it has been held that a suit for cancellation of sale deed has to be instituted within 3 years of its knowledge. The said judgement has also been followed in a recent judgement wherein the Hon’ble Supreme Court was of the view that the concerned High Court came to the correct conclusion that under Article 59 of the Limitation Act, a suit can be instituted within 3 years of knowledge and not from the date of registration of the sale-deed and the aforesaid judgment passed in the case of “Chḥotanben Vs. Kirtibhai Jalkrushnabhai Thakkar” reported in (2018) 6 SCC 422 has been followed.

¶206

50. In view of the aforesaid judgements, the suit was required to be filed within 3 years from the date of knowledge of alleged forgery/fraud and the suit was guided by Article 59 of the Limitation Act, 1963 which is quoted as under:-

¶207

Description of suit	Period of limitation	Time from which period begins to run
59. To cancel or set aside an instrument or decree	Three years	When the facts entitling the plaintiff to have the
or for the rescission of a		instrument or decree
contract.		cancelled or set aside or the contract rescinded
		first become known to him.

¶208

51. Thus, the suit seeking the relief that the registered settlement deed was null and void was required to be filed within a period of three years from the date of knowledge.

¶209

29

¶210

2025:JHHC:11840

¶211

52. This Court further finds that both the learned Courts have taken into consideration the fact that the plaintiffs were pursuing their remedy in the mutation proceeding/appeal arising out of mutation proceeding and it was only in the year 2002 when the appellate authority observed that the plaintiffs would have to get their right, title and interest declared through a competent Court of civil jurisdiction. The suit was filed in the year 2003 and the plaintiffs had also made a prayer for cancellation of Jamabandi running in the name of defendants apart from the prayer that the settlement of the year 1947 be declared null and void and not binding upon the plaintiffs.

¶212

53. The learned Courts while considering the point of limitation have referred to the judgment passed by the Hon'ble Supreme Court in the case of P. Sarathy (Supra). In the said judgment, the Hon'ble Supreme Court has considered section 14 of the Limitation Act and after quoting the provisions of section 14(1), has held in paragraph 12 that section 14 of the Limitation Act does not speak of a civil Court, but speaks only of a Court and held that it is not necessary that the Courts spoken of in section 14 of the Limitation Act, 1963 should be a civil court. It has also been held that any authority or tribunal having the trappings of a Court would be a ‘Court’ within the meaning of Section 14 of the Limitation Act. The Hon'ble Supreme Court also considered the earlier judgment reported in AIR 1967 SC 1494 wherein the question arose as to whether the registrar under Bihar and Orissa Cooperative Societies Act was a Court and it was held that registrar had not merely the trappings of the Court, but in many respects he was given the same powers as was given to an ordinary civil court by the Code of Civil Procedure including the powers to summons and examine witnesses on oath, the power to order inspection of documents and to hear the parties. Thereafter, the Hon'ble Supreme Court referred to the judgment passed in the case reported in AIR 1983 Punj and Har 363, wherein it was held that proceeding before the Collector under Redemption of Mortgages (Punjab) Act was civil proceeding. The Hon'ble Supreme Court thereafter

¶213

30

¶214

2025:JHHC:11840

¶215

considered the principles of law and applied it to the facts of the said case and held that the proceedings instituted before the Deputy Commissioner of Labour (Appeals) under Tamil Nadu Shops and Establishment Act, 1947 would be covered under section 14 of the Limitation Act. Paragraphs 11 to 15 of the said judgment are quoted as under:

¶216

“11. Sub-section (1) of Section 14, Limitation Act, provides as under:

¶217

“14. (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.”

¶218

12. It will be noticed that Section 14 of the Limitation Act does not speak of a “civil court” but speaks only of a “court”. It is not necessary that the court spoken of in Section 14 should be a “civil court”. Any authority or tribunal having the trappings of a court would be a “court” within the meaning of this section.

¶219

13. In Thakur Jugal Kishore Sinha v. Sitamarhi Central Coop. Bank Ltd. AIR 1967 SC 1494, this Court, while considering the question under the Contempt of Courts Act, held that the Registrar under the Bihar and Orissa Cooperative Societies Act was a court. It was held that the Registrar had not merely the trappings of a court but in many respects he was given the same powers as was given to an ordinary civil court by the Code of Civil Procedure including the powers to summon and examine witnesses on oath, the power to order inspection of documents and to hear the parties. The Court referred to the earlier decisions in Bharat Bank Ltd. v. Employees 1950 SCC 470; Maqbool Hussain v. State of Bombay (1953) 1 SCC 736: AIR 1953 SC 325 and Brajnandan Sinha v. Jyoti Narain AIR 1956 SC 66. The Court approved the rule laid down in these cases that in order to constitute a court in the strict sense of the term, an essential condition is that the court should have, apart from having some of the trappings of a judicial tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a judicial pronouncement.

¶220

14. In Pritam Kaur v. Sher Singh AIR 1983 P&H 363, the proceedings before the Collector under the Redemption of Mortgages (Punjab) Act (2 of 1913) were held to be civil

¶221

31

¶222

2025:JHHC:11840

¶223

proceedings. It was held that the “court”, contemplated under Section 14 of the Limitation Act, does not necessarily mean the “civil court” under the Code of Civil Procedure. It was further held that any tribunal or authority, deciding the rights of parties, will be treated to be a “court”. Consequently, benefit of Section 14 of the Limitation Act was allowed in that case. This decision was followed by the Himachal Pradesh High Court in Bansi Ram v. Khazana [AIR 1993 HP 20].

¶224

15. Applying the above principles in the instant case, we are of the opinion that the Deputy Commissioner of Labour (Appeals), which was an authority constituted under Section 41(2) of the Tamil Nadu Shops and Establishments Act, 1947 to hear and decide appeals, was a “court” within the meaning of Section 14 of the Limitation Act and the proceedings pending before him were civil proceedings. It is not disputed that the appellant could file an appeal before the Local Board of the Bank, which was purely a departmental appeal. In this view of the matter, the entire period of time from the date of institution of the departmental appeal as also the period from the date of institution of the appeal under Section 41(2) before the Deputy Commissioner of Labour (Appeals) till it was dismissed will, therefore, have to be excluded for computing the period of limitation for filing the suit in question. If the entire period is excluded, the suit, it is not disputed, would be within time.”

¶225

54. The said judgment was subject matter of consideration in recent judgment of the Hon'ble Supreme Court reported in 2015 SCC OnLine SC 383 (M.P. Steel Corporation Vs. Commissioner of Central Excise) and the Hon'ble Supreme Court held that the principles of section 14 of the Limitation Act would apply to appeal filed under section 128 of the Customs Act.

¶226

55. This Court finds that in the present case, although the suit was to be filed within 3 years from the date of knowledge of alleged fraud, but in the present case after the knowledge of alleged fraud, the plaintiffs were prosecuting their remedy before the statutory authorities who are given the power of mutation and also before the appellate authority.

¶227

56. Upon perusal of the provisions of Mutation Laws as applicable in the State of Jharkhand i.e. Bihar Tenant’s Holding (Maintenance of Records) Act, 1973 , this Court finds that the Act is to provide for

¶228

32

¶229

2025:JHHC:11840

¶230

maintenance of up to date records of holdings of raiyats in the State and matters connected therewith and Land Reforms Deputy Collector is an officer not below the rank of Deputy Collector empowered by the State Government to perform all or any of the functions of Land Reforms Deputy Collector under the Act. The Revenue Officer has been defined to mean an officer whom State Government appoints by name or by virtue of his office to discharge any of the functions of the Revenue Officer under the Act and includes the Circle Officer.

¶231

57. As per provision of Section 3 of the aforesaid Act, Anchal Ahikari is to prepare and maintain continuous khatiyan of tenant’s ledger register and village maps on the basis of entries made in the existing record of rights of the villages after such verification, as may be prescribed, and maintain the same in the manner prescribed. The Anchal Adhikari is also empowered to dispose of objections regarding entries made in draft of the continuous kahtiyan and tenant’s ledger register in accordance with the rules made by the State Government and after giving reasonable opportunity of being heard to the parties concerned and after making such local enquiries and verifications as may be necessary. After disposal of such objections, the publication of final tenant’s ledger register shall be the conclusive evidence of the fact that continuous khatiyan and the tenant’s ledger register have been duly published under the Section and any person aggrieved by the order of Anchal Adhikari has a right to appeal before the Land Reforms Deputy Collector who is to decide the appeal after giving reasonable opportunity of being heard and subject to the provisions of Section 16, the order of the Land Reforms Deputy Collector on appeal is final. 58. The requisitions and disposal of mutation cases are done in terms of Section 14 of the aforesaid Act. Section 22 prescribed powers to the State Government to prescribe proper fees for application for mutation in the continuous khatiyan which is paid through court-fee stamp. The Collector has also got the power to impose penalty under Section 24 of the Act if the person required to file application under Section 11 and 12 wilfully or

¶232

33

¶233

2025:JHHC:11840

¶234

intentionally omits to give such notice in the prescribed manner. Sections 19, 25, 26, 28 and 29 of the aforesaid Act are quoted as under:-

¶235

“19. Presumption of correctness of entries in continuous Khatian and Tenant’s Ledger Register.- Every entry in the continuous Khatian and Tenant’s Ledger Register finally published under clause (iii) of sub-section (4) of Section 3-

¶236

(i) shall be an evidence of the matter referred to in such entry; and

¶237

(ii) shall be presumed to be corrected until it is proved by evidence to be incorrect in the following proceedings,-

¶238

(a) in a proceeding in a Civil Court of competent jurisdiction; or

¶239

(b) in a proceeding under Chapter X of the Bihar Tenancy Act, 1885 (Act VIII of 1885), or Chapter XII of the Chota Nagpur Tenancy Act, 1908 (Act VI of 1908) or under the Santhal Parganas Settlement Regulations, 1872 (Regulation 3 of 1872) or the Bihar Consolidation of Holding and Prevention of Fragmentation Act, 1956 (Bihar Act 22 of 1956) in any area where the State Government has made an order directing that a survey be made and a record of rights be prepared in respect of the lands in that area, and in pursuance of such an order, survey and settlement operation is already in progress.”

¶240

25. Authorities under this Act to have power of Civil Court.- While making enquiries and conducting proceeding under this Act, the Collector, the Land Reforms Deputy Collector, the Anchal Adhikari shall have the same powers in matter of admission of evidence summoning and enforcing the attendance of any person and examining him on oaths, compelling the production of documents and award of costs, as are vested in a Court under the Code of Civil Procedure, 1908 (Act V of 1908). 26. Inquiries and proceedings to be judicial proceedings. – All inquiries and proceedings under this Act before the Collector and Land Reforms Deputy Collector, and Anchal Ahikari shall be deemed to be judicial proceedings for the purpose of Sections 193, 196 and 228 of the Indian Penal Code, 1860 (Act XLV of 1860).

¶241

28. General direction, control and superintendence of the Collector, etc. – The Land Reforms Deputy Collector and the Anchal Adhikari shall in performance of their duties and in the exercise of their power under this Act, be under the general

¶242

34

¶243

2025:JHHC:11840

¶244

direction, control and superintendence of the Collector of the district, the Commissioner and the Board of Revenue.

¶245

29. Power of State Government to make rules. – (1) The State Government may make rules not inconsistent with the provisions of this Act, to carry out the purposes of this Act. (2) In particular and without prejudice to the generality of the foregoing powers, such rules may provide for all or any of the following matters namely: -

¶246

(a) the mode of service of any order or notice issued under the Act;

¶247

(b) the procedure to be followed in the disposal of mutation proceedings and appeals;

¶248

(c) the manner of correction of the continuous khatian, the Tenant’s Ledger Register, and the khata pustika;

¶249

(d) the value of court-fee stamps which every application, memorandum of appeal or application for revision under this Act shall bear; and

¶250

(e) any other matter which is to be or may be required to be prescribed.

¶251

(3) Every rule under this section shall be laid, as soon as may be, after it is laid before each House of State Legislature while it is in session for a total period of fourteen days which may be comprised in one session or in two successive sessions and if, before expiry of the session in which it is so laid or the session immediately following both the Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect as the case may be, so, however that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.”

¶252

59. There can be no doubt that the revenue authorities under the aforesaid Act do not have the status of civil court and certainly proceedings before the revenue authority are not judicial proceedings in any court of law and they do not decide the question of title to immovable properties. However, in terms of section 25 of the aforesaid Act, while making enquiries and conducting proceeding, the Collector, the Land Reforms Deputy Collector and the Anchal Adhikari shall have the same powers in matter of admission of evidence, summoning and enforcing the attendance of any person and examining him on oaths, compelling the production of documents and

¶253

35

¶254

2025:JHHC:11840

¶255

award of costs, as are vested in a Court under the Code of Civil Procedure, 1908. Further, the entries made in land records are presumed to be correct until contrary is proved which can be done through competent court of civil jurisdiction in terms of Section 19 of the Act. The authorities exercise power under original, appellate and revisional jurisdiction.

¶256

60. This Court is of the considered view that though the revenue authorities do not have the status of civil court but the proceedings therein have the trappings of civil court. Therefore, if a party has been agitating his grievance diligently before the revenue authorities in the matter of disputing the entries made in the record of rights and the appellate authority ultimately holds that the title be decided by a competent court of civil jurisdiction and thereafter the suit is filed, the period spent before the revenue authorities while prosecuting the matter before them is certainly required to be excluded in computing the period of limitation in terms of section 14 of the Limitation Act, 1963.

¶257

61. Since the proceedings before the revenue authorities are not proceedings before a civil court, but certainly such proceedings have trappings of Court and accordingly, in the present case, the period which was spent before the revenue authorities was required to be excluded and such view has been taken by both the learned courts while computing the period of limitation. The plaintiffs came to know about the settlement of the year 1947 for the first time at the stage of proceeding before the revenue authorities before the Deputy Collector Land Reforms who disposed of the appeal in the year 2002 by observing that the plaintiffs may seek their remedy before the civil court and soon thereafter within a period of one year, the suit was filed in the year 2003.

¶258

62. In view of the aforesaid findings, and also in view of the judgment passed in the case of “Abdul Rahim & Ors. vs. Sk. Abdul Zabar & Ors.” reported in (2009) 6 SCC 160 [equivalent citation is AIR 2010 SC 211 ] as referred to in the 1^st substantial question of law, a suit for cancellation of transaction whether on the ground of being void or voidable would be

¶259

36

¶260

2025:JHHC:11840

¶261

governed by Article 59 of the Limitation Act and such suit has to be 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. This Court is of the view that the suit for setting aside of registered settlement deed bearing no.1469 dated 03.11.1947 was required to be filed within a period of 3 years from the date of knowledge in terms of section 59 of the Limitation Act and the period of 3 years was not to be counted from the date of registration of the settlement deed way back on 03.11.1947. Further, the plaintiffs were also entitled for exclusion of time in terms of section 14 of the Limitation Act when they were pursuing the matter before the revenue authorities in connection with mutation even after coming to know for the first time in the proceedings before the revenue authorities about the alleged fraud. The learned courts have rightly held that the plaintiffs were entitled for such exclusion of time. The mutation appeal was decided on 11.12.2002 with an observation that suit be filed for deciding the title and the suit was filed on 01.08.2003. Consequently, the suit was not barred by limitation and the point of limitation was rightly decided by both the learned courts.

¶262

63. The substantial question of law no. (i) is accordingly decided.

¶263

64. Both the substantial questions of law having been decided in favour of the respondents and against the appellants, this Second Appeal is hereby dismissed.

¶264

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

¶265

(Anubha Rawat Choudhary, J.)

¶266

Pankaj

¶267

37

Mohan Ahir v. Muni Devi

Case brief

What is this about?

What did the court decide?

Mohan Ahir v. Muni Devi

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Ram Krishna Sahu Vs the State of Jharkhand

Surti Devi and Ors. Vs Deputy Commissioner and Anr.

Rajkishore Choudhary Represented through General Power of Attorney Holder Bhupnath Mahto Vs Mewalal Choudhary

Peelu Alias Zubaida Khatoon Vs MD Illiyas Ansari

Akhilesh Yadav Vs Union Of India Through The Ministry Of Home Affairs And Ors.

Dhanraj Mandal Vs Dayal Mandal