Allowed

Sri Sunil Singh and Anr. v. Ram Swarup Singh

Patna HC6 Dec 2012SA/28/1987

Case brief

AI extract

What is this about?

In this second appeal, the Patna High Court allowed the appeal filed by a deity against a lower appellate court judgment. The High Court held that a suit challenging a registered endowment deed is governed by Article 59 of the Limitation Act (three years), not twelve, and the donor lacked locus standi to gift property after dedication.

What did the court decide?

The second appeal was allowed, the lower appellate court judgment was set aside, and the trial court judgment was restored.

Sri Sunil Singh and Anr. Vs Ram Swarup Singh — Property and Title | Patna HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Second Appeal No.28 of 1987

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Against the Judgment and Decree dated 09.12.1986 passed by Addl. District Judge, Aurangabad in title appeal No.42 of 1984 / 1 of 1986 allowing the appeal and setting aside the Judgment and Decree of the trial Court dated 23^rd June, 1984 passed by Addl. Sub Judge III, Aurangabad in title suit No.109 of 1983 / 6 of 1975. ================================================= Sri Thakurji Maharaj Asthapit in village Malwa Dehuri ……………….Defendant-respondent-appellant Versus Ram Swarup Singh & Anr. ……………Plaintiffs-appellantsRespondents ================================================== Appearance : For the Appellant/s : Mr. Sidheshwary Prasad Singh, Sr. Advocate Mr. J.S. Arora, Advocate with him. Mr. Krishna Kishore Sinha, Advocate. For the Respondent/s : None.

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Dated : 6^th day of December, 2012

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P R E S E N T

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CORAM : THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO

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ORAL J U D G M E N T

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Patna High Court SA No.28 of 1987 dt.06-12-2012

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Mungeshwar Sahoo, J.

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1. This second appeal has been filed by the defendant-respondent appellant against the Judgment and Decree dated 09.12.1986 passed by the learned Addl. District Judge, Aurangabad in title appeal No.42 of 1984 / 1 of 1986 whereby the lower appellate Court allowed the appeal and set aside the Judgment and Decree of the trial Court dated 23.6.1984 passed by the learned Sub Judge III, Aurangabad in title suit No.109 of 1983 / 6 of 1975.

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2. The plaintiff-respondent filed the aforesaid suit claiming relief for declaration that the deed of Danpatra ext. ‘F’ dated 27.02.1960 purported to be executed by Rambriksh Singh is illegal, void, inoperative and the plaintiff has absolute title over the land in suit fully described in Schedule I of the plaint and also for confirmation of possession over the suit land and further prayed for permanent injunction.

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3. The plaintiff claimed the aforesaid relief alleging that Rambriksh Singh who was Mama of the plaintiff has gifted the property by gift deed dated 31.8.1973. Jamuna Singh had constructed temple on a piece of his own land. Said Jamuna Singh obtained a registered deed of Samarpannama on 17.2.1960 with respect to the suit property in the name of the deity, i.e., appellant. The Mama of the plaintiff executed the said Samarpannama on clear understanding that the same was being executed to achieve the making of Thakurbari a private one of his Mama. His Mama being a man of small means had no intention to dedicate the suit property to the appellant Thakurji. Even after execution of ext. ‘F’, the deity never came in possession rather his Mama remained in possession as owner and executed the gift deed in the year 1973 ext.2 in favour of the plaintiff.

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Patna High Court SA No.28 of 1987 dt.06-12-2012

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4. The defendant appellant appeared and filed contesting written statement alleging that the plaintiff has no locustandi to challenge the registered deed of Samarpanama ext. ‘F; the executants of ext. ‘F’ i.e., Rambriksh Singh died in the year 1973, i.e., after about more than 13 years of execution of the deed of Samarpan dated 17.2.1960. During his life time, he never challenged the said registered deed of Samarpannama. The suit is barred by law of limitation. After dedication, the property vested on the deity so, the original owner could not have executed the subsequent gift deed in the year 1973 on which date he was not the owner of the property.

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5. The trial Court after considering the evidences and material available on record recorded a finding that the suit filed by the plaintiff is barred by law of limitation as the validity of the registered deed of Samarpanama ext. ‘F’ has been challenged in the year 1975. The trial Court also recorded a finding that the appellant, i.e., Jamuna Singh, being the Sebait of the deity appellant is coming in possession of the suit property since after the dedication. The trial Court also recorded the finding that the executant of the gift deed Rambriksh Singh could not have executed the gift deed in the year 1973 when he had already divested his title in the year 1960. Accordingly, the trial Court dismissed the plaintiff’s suit.

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6. The plaintiff then filed appeal before the lower appellate Court. The lower appellate Court allowed the appeal and set aside the trial Court Judgment recording a finding that the suit is not barred by law of limitation. The ext. ‘F’ i.e., registered Samarpanama is inoperative and was only a showy transaction.

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Patna High Court SA No.28 of 1987 dt.06-12-2012

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7. On 25.8.1987, the following 3 substantial question of law were

formulated :

(i)

Whether the appellate Court was right is reversing the decision of the trial Court without appraising the materials utilized by that Court?

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(ii) Whether the decision in the first point of limitation has been arrived at correctly by the appellate Court? (iii) Whether the appellate Court was right in reversing the decision of the trial Court that the deed of gift in favour of the defendant was well before the date of gift of the plaintiff, i.e., 31.8.73?

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(ii)

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The learned senior counsel, Mr. Sidheshwary Prasad Singh

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appearing on behalf of the appellant submitted that the lower appellate court has wrongly applied the Article 95 and 94 of the Limitation Act which is not applicable at all and wrongly held that the suit is not barred by law of limitation. According to the learned counsel, in the deed of gift, ext.2 it is mentioned that the Samarpannama was executed by Rambriksh Singh in the year 1960, therefore, the plaintiff had the knowledge about the said gift deed. Moreover, Rambriksh Singh admitted owner of the property who dedicated by ext.‘F’ was alive till 1973 but he never questioned the genuineness or validity of the ext.‘F’, therefore, the present plaintiff who is claiming to be the Bhagina of Rambriksh Singh had no authority to challenge the same after about more than 15 years. According to the leaned counsel, the plaintiff has not pleaded that when he came to know about the execution of the registered Danpatra dated 27^th February, 1960 and after considering this fact, the trial Court categorical recorded the finding that the suit is barred by law of limitation. The lower appellate Court approached the case in wrong angle and applied Article 95 and 94 of the Limitation Act, particularly when the provision contained in Article 58 and 59 is applicable and for that a suit has to be instituted within 3 years

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Patna High Court SA No.28 of 1987 dt.06-12-2012

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from the date of knowledge. In any view of the matter, the suit by the present plaintiff was not at all maintainable.

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9. The learned counsel further submitted that the ext. ‘F’ is registered document, and, therefore, the presumption of its validity is in favor of the defendant and for rebutting that presumption the onus is on the person who challenges the same but the lower appellate Court wrongly placed the onus on the defendant appellant to prove that in fact ext.‘F’ is a genuine document and the lower appellate Court has wrongly held that for non-examination or the scribe or the witnesses of the Danpatra, the defendant failed to prove the genuineness of the ext. ‘F’. On these grounds, the leaned counsel submitted that all the substantial question of law formulated at the time of admission are liable to be answered in favour of the appellant and the Judgment of the lower appellate Court should be set aside and the trial Court Judgments be restored.

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10. Admittedly, Rambriksh Singh was the owner of the suit property who died in the year 1973. It is also admitted that in fact he executed the Samarpannama on 27.2.1960 ext. ‘F’ in favor of the deity the appellant and the Sebait was Jamuna Singh. It is also admitted fact that Jamuna Singh had constructed the temple. It is also admitted fact that the ext. ‘F’ is a registered document. The plaintiff is challenging the said registered deed of Samarpannama, therefore, unless it is held that the deed of Samarpannama is not genuine or that it was obtained by fraud or that it remained only a paper transaction or sham transaction the original owner, i.e., Rambriksh Singh will have no authority to execute subsequently the gift deed in favour of the plaintiff.

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11. In the case of Vimal Chand Ghevarchand Jain Vs. Ramakant Eknath Jadoo 2009 (5) S.C.C. 713, the Apex Court has held

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Patna High Court SA No.28 of 1987 dt.06-12-2012

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that a registered deed carries presumption that the transaction was a genuine one. If execution of the same is proved, onus is on the defendant to prove that the deed was not executed and it was sham transaction. In the present case, it is admitted fact that the deed was executed.

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12. In the case of Prem Singh Vs. Birbal 2006 (5) S.C.C. 353 the Apex Court again held that 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 prove thus would be on a person who leads evidence to rebut the presumption.

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13. In the case of Abdul Rahim Vs. Abdul Zabar A.I.R. 2010 S.C. 211, the Apex Court has held that a suit for cancellation of transaction whether on ground of being void or voidable would be governed by Article 59 of the Limitation Act. The suit, therefore, should have been filed within a period of 3 years from the date of knowledge of the fact that the transaction which according to the plaintiff was void or voidable had taken place.

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14. In the case of Md. Noorul Hoda Vs. Bibi Raifunnisa 1996 (7) S.C.C. 767 , the Apex Court further held that when 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

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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 be delivered or cancelled.

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15. In the present case, it is admitted fact as stated above that the Samarpannama is of the year 1960 and the suit has been filed in the year 1975.

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16. In the case of Sita Sharan Prasad Vs. Manorama Devi 2012 (2) B.L.J. 165, this Court has held that once plaintiff has chosen to file suit for declaration that sale deed be adjudged at sham and inoperative document, three years of limitation as provided in Article 58 or Article 59 would become applicable. It appears that in that case the suit was filed for cancellation of sale deed which was executed in the year 1973 and the suit was filed in the year 1982 and it was dismissed on the ground of limitation.

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17. In view of the above facts and circumstances of the case and the decision of the Apex Court as well as by this Court, the settled proposition of law is that the suit for cancellation of a registered document should be filed within 3 years from the date of knowledge as provided under Article 58/59 of the Limitation Act read with Section 31 of the Specific Relief Act. Considering all these aspects of the matter, the trial Court has categorically recorded that the suit is barred by law of limitation. So far the Judgment of the lower appellate Court is concerned, the lower appellate Court recorded the finding that the suit is not barred by law of limitation by applying wrong Articles and holding that the limitation is 12 years for filing the suit for cancellation on registered endowment deed.

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18. The other aspect of the matter is that Rambrtich died admittedly issueless. He executed the registered Samarpannama in the year 1960. Possession was delivered. Therefore, the Sebait came in possession of the property and the deity became the owner. Admittedly, Rambartich Singh died in 1973 and on that day, Rambrtich Singh had no title on the property. In such circumstance, he had no authority to execute any gift deed in favour of the plaintiff. Now, therefore, the plaintiff is not a party to ext. ‘F; and he did not derive any title on the basis of ext.2 the gift deed executed by Rambrtich Singh. In such circumstances, he has got no concern with the suit property. In other words, he is nobody. Therefore, he has no locustandi to challenge the Samarpannama executed by Rambrtich Singh in favour of the appellant, the deity.

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19. In view of my above discussion, I find that all the substantial question of law formulated are answered in favour of the appellant. Thus, this second appeal is allowed. The Judgment and Decree of the lower appellate Court is set aside. The Judgment and Decree of the trial Court is stored. In the facts and circumstances of the case, no order as to cost.

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(Mungeshwar Sahoo, J.)

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Patna High Court, Patna The 6^th December, 2012 Sanjeev/N.A.F.R.

Sri Sunil Singh and Anr. v. Ram Swarup Singh

Case brief

What is this about?

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Sri Sunil Singh and Anr. v. Ram Swarup Singh

Case brief

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