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2001 DIGILAW 627 (JHR)

MUNDRIKA CHOUDHARY v. BAIJNATH CHOUDHARY

2001-09-04

GURUSHARAN SHARMA

body2001
Judgment : GURUSHARAN SHARMA, J. ( 1 ) DEFENDANTS are appellants. The suit was filed for declaration that sale deed dated 4-5-1974 executed by plaintiff in favour of defendants for non-payment of consideration amount was invalid and order of mutation based on the said deed passed by Circle Officer was not binding on the plaintiff. ( 2 ) ADMITTEDLY, plaintiff had executed a sale deed on 4-5-1974 in favour of defendants, but they failed to pay the consideration money and as such on 27-10-1975 plaintiff cancelled the said deed and continued in possession of the land in question. Subsequently, he came to know that Circle Officer, Bisrampur, has allowed defendantsprayer for mutuation of their names in revenue records for the said land. Hence he filed objection but the same was rejected. Hence the suit. ( 3 ) DEFENDANTS contested the suit and asserted that plaintiff had received the entire consideration money and they came in possession over the land purchased by the sale deed dated 4-5-1974 and also got their names mutated in Register, the tenants Ledger maintained by the State. ( 4 ) ACCORDING to defendants, suit was hopelessly barred by time under Article 59 of the Limitation Act, 1963 as the sale deed was executed on 4-5-1974 and suit was filed on 14-4-1986. ( 5 ) TRIAL Court decreed the suit holding that as per recitals of the deed, transaction was intended to be postponed till consideration money was paid and no consideration amount was thereafter paid. As such, transfer in question was neither complete, nor operative. Sale deed dated 4-5-1974 was, therefore, declared void. It was also held that suit land always remained in plaintiffs possession and the Circle Officer mutated defendantsnames assertaining the fact of passing of title and possession to them. Therefore, those orders were illegal. The trial Court also held that the suit was governed by Article 58 of the Limitation Act. It was filed within three years of rejection of plaintiffs objection to the mutation order passed by Circle Officer. The said rejection order was the cause of action to file the suit. The suit was, therefore, not barred by time. ( 6 ) THE First Appellate Court also confirmed trial Courts findings and observed that cause of action for filing the suit arose to the plaintiff only when on the basis of a void document. The said rejection order was the cause of action to file the suit. The suit was, therefore, not barred by time. ( 6 ) THE First Appellate Court also confirmed trial Courts findings and observed that cause of action for filing the suit arose to the plaintiff only when on the basis of a void document. Revenue Officer mutated defendantsnames over the land in question. Neither consideration money of the said deed (Exhibit 2) was paid nor original deed was in the custody of defendants, nor possession of disputed land was handed over by plaintiff to them. Exhibit 2 remained inoperative for want of payment of consideration amount and for want of handing over possession of the suit land to the defendants. ( 7 ) THE learned Additional District Judge observed that unless plaintiff sought relief for cancellation of sale deed (Exhibit 2), present suit for declaration of the said deed. Cause of action (or the suit arose to plaintiff only when Circle Officer rejected his objection to the mutation order, passed in favour of the defendants. Hence the suit was filed in time. ( 8 ) A perusal of plaint reveals that originally plaintiff asked for relief that sale deed dated 4-5-1974, Exhibit 2 was fit to be declared as illegal, on account of fact of non-payment of consideration amount and Takajul Badlain did not take place and on account of above fact, the order of Circle Officer. Bisrampur dated 19-12-1975 in Mutation case No. 334 of 1975-76 is illegal and without jurisdiction and order of the Circle Officer, in Misc. Case No. 44 of 1985-86 dated 19-2-1986 is also illegal and without jurisdiction and not binding to the plaintiff and the sale deed dated 4-5-1974 is also declared to be cancelled. Subsequently another relief was added that in view of the above adjudication plaintiffs possession be confirmed and in alternative if in any view of the matter the plaintiff is treated to be out of possession he may be put in possession, by the Court. ( 9 ) I, therefore, find that Courts below committed an error of record in observing that relief was sought only for declaration of Exhibit 2 to be void and not for its cancellation. ( 9 ) I, therefore, find that Courts below committed an error of record in observing that relief was sought only for declaration of Exhibit 2 to be void and not for its cancellation. ( 10 ) SINCE admitted position is that the suit was filed also for cancellation of sale deed, Exhibit 2, it was definitely barred by time, under Article 59 of the Limitation Act, 1963. ( 11 ) I have, therefore, no option but to set aside the impugned judgments and decrees passed by both the Courts below and consequently the suit stands dismissed as barred by time. ( 12 ) IN the result, this appeal is allowed, but without costs. Lower Court records may be sent down. Appeal allowed. --- *** --- .