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2009 DIGILAW 1437 (PNJ)

Avtar Singh v. Surjit Kaur

2009-08-18

HEMANT GUPTA

body2009
Judgment Hemant Gupta, J. 1. The defendants are in appeal aggrieved against the judgment and decree passed by the Courts below, whereby the suit for possession of land allegedly conveyed by defendant No.2 in favour of defendant No.1 on 9.4.1992, was decreed. 2. Puran Singh son of Geeta Singh is the father of the plaintiffs and defendant No.2. Defendant No.1 is the husband of defendant No.2. The plaintiff alleges that earlier defendant No.1 got a decree suffered from Puran Singh on the basis of a family settlement. The said decree was challenged by Nirmal Singh and Jarnail Singh, sons of the plaintiff. Puran Singh admitted the case of the sons of plaintiff by filing written statement, but when he was to appear in the Court to make the statement, the defendant by exercising undue influence got two sale deeds dated 9.4.1992 executed illegally in favour of defendant No.1. Since the grievance of the plaintiff was not redressed, the present suit was filed. 3. Defendant No.1 in his written statement has raised a preliminary objection that the suit is barred by limitation and that Puran Singh has executed a registered Will in favour of Avtar Singh, his son on 12.8.1993. It was also alleged that he is a bona-fide purchaser for consideration and that Puran Singh has admitted execution of the sale deed dated 9.4.1992 during his lifetime. In a separate written statement filed on behalf of defendant No.2, it was pleaded that the suit is barred by limitation and that the plaintiffs have no locus standi to file the present suit. It is also pointed out that Puran Singh has admitted the execution of the sale deed dated 9.4.1992 in the amended written statement dated 16.4.1993 filed in Court on 22.4.1993 in a suit filed by the sons of the plaintiff. The suit was said to be barred under Order 2 Rule 2 CPC. 4. The learned trial Court dismissed the suit for the reason that the suit is barred by limitation having been filed on 11.6.1999, whereas the cause of action arose to the plaintiff on 9.4.1992. It was also found that the earlier suit filed by the sons of the plaintiff was dismissed on 9.4.1999 under Order 8 Rule 8 CPC and the plaintiffs had the opportunity to contest the suit but did not move any application. It was also found that the earlier suit filed by the sons of the plaintiff was dismissed on 9.4.1999 under Order 8 Rule 8 CPC and the plaintiffs had the opportunity to contest the suit but did not move any application. Therefore, the plaintiff has no locus standi to file the present suit. Even on merits, the learned trial Court returned a finding that the execution of the sale deeds stands proved from the admission of Puran Singh deceased and from the statement of DW4- Balwant Scribe and DW2 Bhag Singh and DW1 Ujagar Singh, attesting witnesses of the sale deeds dated 9.4.1992. But in appeal, the learned first Appellate Court considered the factum of the Civil Court judgment and decree Exhibit D.22 and D.23 passed in favour of Avtar Singh son of Atma Singh in respect of 26 kanals 17 marlas of land on the basis of a family settlement of January, 1975. The said decree is subject matter of challenge in a separate suit filed by Hakam Singh, brother of Puran Singh and the present plaintiffs, which is pending consideration in RSA No. 1681 of 1997. Both the learned counsel for the parties have accepted the fact that the subject matter of the property in the aforesaid appeal is distinct and separate from the property in dispute in the present proceedings. 5. The sale deeds under challenge in the present suit are Exhibit D.1 and D.2 dated 9.4.1992. Puran Singh was more than 80 years of age in the year 1992 as in the Will dated 12.8.1993 his age is mentioned as 82 years, though no age is mentioned in the sale deeds. Avtar Singh, while appearing as DW3 has stated during cross-examination that Puran Singh was 90-95 years of age. The Appellate Court also took into consideration the stand of the defendant that Avtar Singh son of the defendant was brought up by Puran Singh as his son and was residing with him. All the documents allegedly executed by Puran Singh are scribed by the same deed writer i.e., Balwant Singh, who is working at Chamkaur Sahib. The said deed writer did not know Puran Singh personally, but he knew Atma Singh as the village of Atma Singh is adjoining to the village of the scribe. The scribe has not produced his register. All the documents allegedly executed by Puran Singh are scribed by the same deed writer i.e., Balwant Singh, who is working at Chamkaur Sahib. The said deed writer did not know Puran Singh personally, but he knew Atma Singh as the village of Atma Singh is adjoining to the village of the scribe. The scribe has not produced his register. The scribe has deposed that stamp papers were purchased by Puran Singh from Kharar, but as a matter of fact, the stamp papers were purchased by Atma Singh. The stamp papers were purchased without consideration, which was found to be unbelievable. It was also found that the stamp papers of Exhibit D.2 in respect of 15 marlas of land was purchased from Chamkaur Sahib, but the said stamp papers do not contain his thumb impressions. It also found that an order was passed by the learned trial Court in previous suit on 29.3.1993 for recording the statement of Puran Singh. Puran Singh did not appear in the Court on 29.3.1993 or on 7.4.1993 i.e. the date on which the case was adjourned for the purposes of the statement. He died on 11.4.1994. In fact, Atma Singh and others were tried for murder of Puran Singh, though the trial has resulted into acquittal. 6. The first Appellate Court also taken into consideration that in sale deed Exhibit D.1, there is a recital that Puran Singh received the amount in order to give the same to his daughters, but none of his daughters have been examined to prove such assertion. The sale consideration has not been paid to the plaintiffs nor the defendant Labh Kaur has appeared as a witness to depose that she has received any sale consideration. It was found that if the recital is true then there is no necessity for Puran Singh to sell the same land for which sons of the plaintiffs have filed the suit for declaration and to file admitted written statement on 14.2.1992. But the suit was not decreed as Avtar Singh filed an application on the same date i.e. 14.2.1992 for withdrawing the admission in the written statement. The first Appellate Court has taken into consideration that there is no evidence brought on record by the defendant that Puran Singh became hale and hearty and was able to walk before the Sub Registrar on 9.4.1992. 7. The first Appellate Court has taken into consideration that there is no evidence brought on record by the defendant that Puran Singh became hale and hearty and was able to walk before the Sub Registrar on 9.4.1992. 7. The learned first Appellate Court found that the trial Court has mainly relied upon admission of Puran Singh in the pleadings filed by him in the previous litigation, but such pleadings were tendered in evidence and objected to by the counsel for the plaintiff regarding mode of proof. It was found that the pleadings should have been proved by the Advocate, who drafted the same at the instance of Puran Singh. Puran Singh was never examined in the previous litigation to admit his pleadings to be correct. Avtar Singh has filed an application in the suit filed by Jarnail Singh Exhibit PX/10 dated 14.2.1992 to the effect that Puran Singh is unable to make statement in the Court due to his old and weak health. All the pleadings were filed later on, on behalf of Puran Singh. The learned first Appellate Court found that the suit has been filed within 12 years and in a suit for possession there is no limitation for filing a suit on the basis of natural inheritance of the title. Therefore, the suit is not barred by limitation and consequently, the suit was decreed. 8. Learned counsel for the appellant has vehemently argued that the suit is barred by limitation as the challenge in the suit is to the sale deed dated 9.4.1992. It is a suit not based on title and therefore, the suit is barred by limitation. Reliance is placed upon Ramti Devi v. Union of India, 1995 (1) SCC 198. It is also contended that the challenge in the suit is to the sale deeds on the ground that the same are forged and the limitation for filing such suit commences from the date the plaintiffs had the knowledge of such sale deeds as such sale deeds were executed during the pendency of the previous suit. Therefore, the present suit is barred by limitation. Reliance is placed upon Jagan Nath v. Tara Chand, 1997(2) PLR 519 and Gajjan Singh v. Virsa Singh and others, 2007(3) PLR 634. Reliance is also placed upon Articles 56 and 59 of the Limitation Act, 1963 . Therefore, the present suit is barred by limitation. Reliance is placed upon Jagan Nath v. Tara Chand, 1997(2) PLR 519 and Gajjan Singh v. Virsa Singh and others, 2007(3) PLR 634. Reliance is also placed upon Articles 56 and 59 of the Limitation Act, 1963 . It is also contended that amended written statement of Puran Singh in the suit filed by Jarnail Singh was taken on record and such written statement is the best evidence. The suits have been dismissed in default and therefore, the stand of Puran Singh in the written statement so filed conclusively determines that the transaction of sale is beyond any doubt. 9. I have heard learned counsel for the parties at some length, but do not find any merit in the present appeal. 10. In respect of the pleadings in the previous suit filed by Jarnail Singh, son of the plaintiff, earlier Puran Singh has filed a written statement admitting the claim of the plaintiff on 14.2.1992 i.e. there is no family settlement as claimed by son of defendant No.1. On the same date, an application has been filed on behalf of Avtar Singh Exhibit PX/10 that Puran Singh is unable to appear in the Court due to his weak health and weak eye sight. Thereafter, the Court has passed an order for producing Puran Singh in the Court on 29.3.1993. Puran Singh was not produced even on 7.4.1993. He died almost a year later i.e. on 11.4.1994, but Puran Singh was not produced in the Court. Thus, the pleadings filed allegedly at the instance of Puran Singh tendered in evidence cannot be read in evidence. The person who has drafted the pleadings allegedly at the instance of Puran Singh, has not been examined. Such person could possibly depose that such pleadings have been filed on instructions from Puran Singh. Therefore, the pleadings in the previous suit allegedly at the instance of Puran Singh, cannot be relied upon to return a finding that Puran Singh has executed the sale deeds in favour of Atma Singh or decree suffered in favour Avtar Singh son of Atma Singh in a free and disposing state of mind. 11. The material question which requires to be examined is whether the suit filed by the plaintiff is within the period of limitation? 12. 11. The material question which requires to be examined is whether the suit filed by the plaintiff is within the period of limitation? 12. Articles 56 and 59 of the Limitation Act, 1963 relied upon by the learned counsel for the appellants read as under:- `56 To declare the forgery of an instrument issued or registered. Three years When the issue or registration becomes known to the plaintiff. xx xx xx 59. To cancel or set aside an instrument or decree or for the rescission of a contract. Three years When the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first becomes known to him. 13. The judgments relied upon by the learned counsel for the appellant are not applicable in the facts of the present case. The present is a case of suit based on title as an heir of deceased Puran Singh. 14. In Dhurandhar Prasad Singh v. Jai Prakash University and others, Judgments Today 2001 (5) Supreme Court 573, the distinction between void and voidable order has been discussed in detail. Before proceeding further, it maybe relevant to reproduce Para No. 21 of the judgment hereunder:- "21. Thus the expressions "void and voidable" have been subject matter of consideration innumerable occasions by courts. The expression "void" has several facets. One type of void acts, transactions, decrees are those which are wholly without jurisdiction, ab initio void and for avoiding the same no declaration is necessary, law does not take any notice of the same and it can be disregarded in collateral proceedings or otherwise. The other type of void act, e.g., may be transaction against a minor without being represented by a next friend. Such a transaction is good transaction against the whole world. So far the minor is concerned, if he decided to avoid the same and succeeds in avoiding it by taking recourse to appropriate proceedings the transaction becomes void from the very beginning. Another type of void act may be which is not a nullity but for avoiding the same a declaration has to be made. So far the minor is concerned, if he decided to avoid the same and succeeds in avoiding it by taking recourse to appropriate proceedings the transaction becomes void from the very beginning. Another type of void act may be which is not a nullity but for avoiding the same a declaration has to be made. Voidable act is that which is a good act unless avoidable, e.g., if a suit is filed for a declaration that a document is fraudulent and/or forged and fabricated, it is voidable as apparent state of affairs is real state of affairs and a party who alleges otherwise is obliged to prove it. If it is proved that the document is forged and fabricated and a declaration to that effect is given a transaction becomes void from the very beginning. There may be a void transaction which is required to be set aside and the same is avoided from the day, it is so set aside and not any day prior to it. In cases, where legal effect of a document cannot be taken away without setting aside the same, it cannot be treated to be void but would be obviously voidable." 15. In view of the aforesaid judgment, the principle of law which is arrived at is that in respect of a void transaction, may be sale or a decree, no declaration is necessary and the same can be disregarded in collateral proceedings i.e. in a suit for possession, as a void transaction of sale can be disregarded. The plaintiff has claimed estate of Puran Singh by way of natural succession. Sale deed dated 9.4.1992 relied upon by the defendants can be ignored in such proceedings. 16. In view of the findings recorded, the sale deeds dated 9.4.1992 are not proved to be executed by Puran Singh. The sale deeds are void in the absence of any intention of the executor to execute the sale deeds in favour of defendant No.1. Thus, the present suit for possession based on title is governed by Article 65 and thus, the failure to file the suit within three years of execution of the sale deed is immaterial and will not render the suit as barred by limitation. 17. The judgments referred to by the learned counsel for the appellants are not applicable to the issue raised in the present appeal. 17. The judgments referred to by the learned counsel for the appellants are not applicable to the issue raised in the present appeal. In Ramti Devis case (supra), the plaintiff claims to have purchased the property from one Kaushalya Devi in the year 1946. One Ratti Ram has executed sale deed in the year 1947. The suit was filed in the year 1966 seeking cancellation of the sale deed executed by Ratti Ram in the year 1947. It was found that no issue was framed to the effect that the sale deed is void. Therefore, the said judgment is not relevant when in the present case, the suit is not for declaration, but is for possession. An issue has been framed whether said sale deed is illegal, null and void. 18. Similarly, the judgment of this Court in Jagan Naths case (supra), arises out of a suit for declaration alleging forgery in the sale deed. The said judgment is not relevant for the reason that it arises out of a suit for declaration challenging forgery in the sale deed. 19. Gajan Singhs (supra), arose out of a suit for possession challenging the sale deeds allegedly executed in his absence on the basis of power of attorney. The Court found that the suit filed beyond three years is beyond the period of limitation. It was concluded that the relief of possession without seeking cancellation of sale deed was not available to the plaintiff. Therefore, the suit filed by the plaintiff was time barred. The challenge in the case was to sale deed executed allegedly on behalf of the plaintiff. It was not a suit for possession by way of natural succession. In the said suit, a declaration was required to be given so as to avoid sale deed executed on his behalf, before the decree for possession can be passed. Therefore, the plaintiffs suit for possession by asking that such sale will not affect their rights, would not be governed by Article 59 but by Article 65 of the Limitation Act. Consequently, I do not find any patent illegality or material irregularity in the findings recorded or that the findings recorded give rise to any substantial question of law in the present second appeal. Hence, the present appeal is dismissed.