Hari Dutt Sharma vs Vidya Prakash Sethi and Others

Vimlesh Kumar Shukla, J.—Second appeal against the judgment and decree passed by the Additional District Judge, Court No. 3 Ghaziabad dated 29.04.2009 in Civil Appeal No. 115 of 2008 affirming the judgment and decree of the Ist Additional Civil Judge (Junior Division) Ghaziabad dated 12.11.2008 passed in Original Suit No. 765 of 1995 by which the suit of the plaintiff-appellant for cancellation of the sale deed, was dismissed regarding the property-plot No. 357/3 area 3-4-0 situated in village Sadullahbad Pargana Loni Tehsil and District Ghaziabad in between Hari Dutt Sharma v. Vidya Prakash Sethi and Ors.

Brief background of the case is that the plaintiff-appellant filed Original Suit No. 765 of 1995 for the cancellation of the sale-deed dated 08.07.1987 registered on Bahi No. 1 Zild 2733 Bahi No. 74/76 page 9728 dated 20.08.1981 alleged to have been executed by the plaintiff-appellant in favour of Vidya Prakash Sethi (deceased) by the plaintiff-appellant alongwith his brothers Shobha Ram, Tulsi Ram and Jagannath who were defendant Nos. 2, 3 and 4 in the Original Suit. The suit was filed on the plaint allegation that plot No. 357/3 area 3-4-0(hereinafter referred to as the disputed plot) out of which one bigha land was alleged to have been transferred by the plaintiff-appellant and three brothers in favour of Vidya Prakash Sethi. The disputed plot is the joint property of the plaintiff-appellant and his three brothers. The partition had never taken place in shares, as such neither the plaintiff nor his brothers were having a right to transfer some fraction of the disputed plot. It has further been stated that Vidya Prakash Sethi in pursuance of the sale-deed dated 08.07.1981 filed mutation case before the revenue court which was fought in between the parties, the plaintiff and defendants. The last order was passed by the Commissioner of the Division in the mutation case on 31.01.1995. Said suit was contested by filing written statement disputing the averments mentioned in the plaint and contending that sale deed in question has been validly executed by way of registered sale deed on due consideration being paid. In all ten issues were framed. From the side of plaintiff, plaintiff appeared as PW-1, PW-2 Rev Singh, PW-3 P.S. Mumick-forensic science expert and documentary evidence has also been filed. From the side of the defendants, DW-1 Sohanveer Singh, DW-2 Suraj Sharma, DW-3 Sanjay, DW-4 Gyanchand Sharma and DW-5 V.S. Misra and documentary evidence was also filed. Trial court on 12.11.2008 dismissed the said suit being barred by time alongwith other issues. Aggrieved against the said order plaintiff preferred Appeal which has also been dismissed as suit being time barred. At this juncture present Second Appeal has been filed.

Sri M.D. Singh "Shekhar" Senior Advocate, assisted by Sri R.D. Tiwari Advocate contended with vehemence that in the present case sale in question was in breach of provision as contained u/s 168 (A) of U.P. Z. A & L.R. Act and as such it was nullity and void document and in this background once sale deed in question is void document by operation of law then suit in question could not have been dismissed being barred by limitation and coupled with this in the facts of case being covered under entry 58 of the schedule, it was will within limitation and as such judgment and decree passed by both the courts below are liable to be set aside.

Countering the said submission, Sri P.K. Jain, Senior Advocate assisted by Sri Surendra Tiwari, Advocate on the other hand contended that suit in question is clearly barred by the provision as contained under Limitation Act, inasmuch as plaintiff knew the factum of extention of instrument in question and well within time prescribed at no point of time suit in question has been filed, as such judgment and decree passed by both the courts below are not liable to be interfered with.

After respective arguments have been advanced factual position which is emerging in the present case is that suit in question has been filed for cancellation of the sale-deed dated 08.07.1987 registered on Bahi No. 1 Zild 2733 Bahi No. 74/76 page 9728 dated 20.08.1981, on 04.08.1995 and second prayer was made for mandatory injunction. This much is also admitted position that on the basis of sale deed dated 08.07.1987 proceeding for mutation under the provision as contained under U.P. Land Revenue Act , 1901 has been undertaken and in the said proceedings so undertaken for mutation, plaintiff have entered appearance and has contested the proceedings. In the said mutation proceeding order of mutation has been passed in favour of persons in whose favour sale deed in question has been executed by the order of Tehsildar dated 06.03.1992. Aggrieved against the said Appeal had been filed by Shobha Ram and others. Said appeal was dismissed on 29.03.1994 and thereafter Revision has been filed u/s 218 of Land Revenue Act and same was also dismissed on 31.01.1995 and thereafter as already stated above suit in question has been filed.

The question to be adverted to is as to whether limitation would be computed under entry 58 of schedule of Limitation Act, wherein limitation of three year for filing suit from right to sue first accrued has been provided for, and here right to sue first accrued has been claimed when order has been passed by mutation court which has been attained finality, or as it is case of cancellation of instrument falling within Article 59 of Limitation Act and here limitation is three years when document qua which cancellation was being sought for first become known to him.

Hon''ble Apex Court in the case of Jai Prakash and Ors. v. Satnarain Singh and Ors. reported in 1993 All L.J. 1403 has clearly taken the view that though in context of Section 14 of the Limitation Act but in reference of the proceedings under U.P. Land Revenue Act, nature of proceedings under U.P. Land Revenue Act are altogether different and it will not help in computation of period of limitation of the suit. Relevant extract of the aforesaid judgment is being quoted below:

The main question which arises for decision is whether the High Court was right in applying Section 14 of the Limitation Act in favour of the plaintiffs. The learned Counsel for the appellants (defendants) has referred to the provisions of the U.P. Land Revenue Act, 1901 and contended that a proceeding for ''partition'' under the said Act is wholly irrelevant to a litigation such as this relating to possession of the land and, therefore, Section 14 of the Limitation Act is not available to the plaintiffs. The learned Counsel appears to be right. As is clear from the Preamble, the U.P. Land Revenue Act was passed by way of consolidating and amending the law relating to land revenue and the jurisdiction of Revenue Officers in the United Provinces (now Uttar Pradesh). Chapter VII thereof deals with partition and union of mahals. Section 106 defines ''partition'' as division of a mahal or portion of a mahal into two or more portions, each consisting of one or more shares. The expression mahal has been defined in Section 4(4) as meaning "any local area held under a separate engagement for the payment of the land revenue". An examination of the provisions of the U.P. Land Revenue Act clearly indicates that its scope and application are confined 155 to proceedings in respect of land revenue and the jurisdiction of the Revenue Officers in this connection, and do not embrace any dispute relating to title or I possession to specific plots of land. The subject-matter of the proceeding under the U.P. Land Revenue Act in the present case which remained pending from 1931 to 1952 was thus entirely different from the dispute in suit relating to the suit land. It will be observed that exclusion of time u/s 14 is available only where the earlier proceeding related to the same matter that is in issue in the suit, and not otherwise. Since we find that the matter in issue in the aforesaid proceeding under the U.P. Land Revenue Act was distinctly different from that in the suit, the High Court was not justified in excluding the period from 1948 to 1951 while computing the period of limitation for the suit.

In the present case prayer made in the plaint will fall well within entry 59 of schedule of Indian Limitation Act falling under part iv, inasmuch as entry 59 is specific provision which deals with cancellation and setting aside of instrument or decree and therein period of limitation has been provided as three years when said instrument become known to plaintiff. Entry 58 falls under part III and deals with obtaining any other declaration. Once specific provisions are there holding the field then general provisions will not be pressed into service as has been sought to be suggested in the present case by the appellant. In proceedings under U.P. Land Revenue Act, jurisdiction of Revenue Officer has never been extended up to the level to decide title dispute, in this background revenue court under U.P. Land Revenue Act has cautioned and reminded the plaintiff that his remedy lies in approaching civil court and at all point of time, one who will approach the civil court will have to show and substantiate that claim in question is well within limitation.

In the present case from own admission of the plaintiff he has full knowledge of instrument in question and at no point of time well within period three years any suit for cancellation of sale deed has been filed, as such both the courts below have rightly pressed entry 59 of part IV of Schedule of Limitation Act and have rightly concluded that suit was barred by limitation. On going litigation under U.P. Land Revenue Act which are proceedings of summary in nature confined to land revenue, its finality in no way would govern the limitation once prayer is pressed i.e. for cancellation of instrument. Once suit itself is barred by limitation then its'' natural consequence is that court has no authority to adjudicate the matter being barred by limitation. In this background suit being barred by limitation and both the courts below have rightly dismissed the suit.

At last it has been sought to be contended that sale deed in question is void document hit by Section 168(A) of U.P. Z.A & L.R. Act and is document is void in law then it its'' cancellation suit can be field ignoring period of limitation. Section 3 of Limitation Act clearly provides that subject to provisions contained in Section 4 - 24, every suit instituted after the prescribed period shall be dismissed although limitation has not been set up in defence. u/s 31(1) of Specific Relief Act, qua instruments which are void or voidable and the incumbent has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable, and even said claim would be governed by law of limitation. Even in cases where document/instrument in question is alleged to be void, and declaration is being sought for its cancellation the same would be governed by law of limitation, as the language used in Section 3 which is subject to provisions of Section 4 - 24 is mandatory in nature. Courts will decide the matter on the basis of fact as set out in the plaint. In the plaint case action has been sought to be shown after decision in mutation case whereas cancellation of sale deed which is main prayer suit ought to have been filed within three years from the date of knowledge which has not been done in the present case.

Consequently, in the fact of the present case as no substantial question of law arises for being answered by this Court and second appeal is concluded by pure finding of fact, as such present second appeal is dismissed.