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2011 DIGILAW 40 (GAU)

Sukhen Sarkar v. Rakhal Chandra Sarkar

2011-01-14

A.C.UPADHYAY

body2011
JUDGMENT Arun Chandra Upadhyay, J. 1. This second appeal is directed against the judgment and order dated 27-2-2007 passed by the learned Additional District Judge, Belonia, South Tripura, in Title Appeal No. 22 of 2006, arising out of T.S. No. 42 of 2004. 2. Heard Mr. B. Das, learned senior counsel assisted by Mr. N. Majumder, learned Counsel appearing for the Plaintiff. Also heard Mr. D. C. Roy, learned Counsel appearing for the Defendant. 3. The Plaintiff instituted T. S. No. 42 of 2004 praying for a declaratory decree and for cancellation of the deed of sale and also for declaration of title and permanent injunction on the allegation that the Plaintiff had been in possession of the land covered by Khatian No. 1776 under allotment dated 12-9-1975. The Plaintiff stated that after having taken over possession of the land, he started rubber plantation in the suit land. Subsequently, land measuring 7.47 acres was also mutated in his name on 29-6-1996. Thus, being the lawful possessor of the said land, the Plaintiff had received various loans and subsidies from the Rubber Board from time to time. The Plaintiff stated that although the Plaintiff and the Defendant hailed from common geniality and are, brothers in relation, but they severed their masses long before and started living separately. According to the Plaintiff, after the separation of the family, a conflict arose between the brothers regarding shares of the family properties. The Defendant being more or less economically weaker was favoured with greater share of the common ancestral properties. The Plaintiff further stated that the Defendant was not satisfied with the share of the properties and, accordingly, started getting anxious towards the property in possession of the Plaintiff, which was the self-acquired property of the Plaintiff. 4. The Plaintiff admitted that in the year 1997 due to constant pressure of the family, well-wishers and political leaders, the Plaintiff had agreed to give away his right in favour of the Defendant in exchange of a minimum price of Rs. 40,000/- for 04 10 acres of land together with the well-grown rubber plant out of total 07'47 acres. Accordingly, the registered deed of sale was executed by the Plaintiff in the year 1997 for a land measuring 0410 acres, more particularly described in the suit schedule. The sale deed in question was executed in the Office of the Sub-Registrar, Belonia on 15-11-1997. Accordingly, the registered deed of sale was executed by the Plaintiff in the year 1997 for a land measuring 0410 acres, more particularly described in the suit schedule. The sale deed in question was executed in the Office of the Sub-Registrar, Belonia on 15-11-1997. The Plaintiff further stated that 'although in the registered deed of sale there was a recital that out of the total consideration money of Rs. 40,000/-, only Rs. 3,000/- was paid to the Plaintiff and the balance amount of Rs. 37,000/- would be positively given within one year from the date of execution of the sale deed, but the Plaintiff alleged that not a single penny was given to the Plaintiff by the Defendant. The Plaintiff further stated that the possession in respect of the land in question remained with the Plaintiff as the Defendant did not come forward to take possession and nurture the rubber plantation growing in the plot of land by him. According to the Plaintiff, the Defendant tried to dispossess him by instituting a proceeding under Section 145 of Code of Criminal Procedure. However, having failed to do so, ultimately under pressure, compelled the Plaintiff to execute another deed of acknowledgment of remittance of the dues amounting to Rs. 37,000/- in the Office of the Sub-Registrar, Belonia on 10-6-2004 as he was frightened with the threat that otherwise he would be dispossessed from the other portion of the suit land. Accordingly, the Plaintiff filed the suit for cancellation of the sale deed, declaration of title and permanent injunction. 5. The Defendant entered appearance and contested the suit by filing written statement stating therein that the suit is not maintainable for improper valuation of the suit and on principles of waiver, acquiescence and estoppels. According to the Defendant the suit is barred by law of limitation. The deed, which has been intended to be impeached on cancellation, was executed in the year 1997. Therefore, under Article 59 of the Limitation Act, 1963, the period of limitation for filing a suit to cancel or set-aside such instrument, is three years from the date of issuing of the deed of agreement. The Defendant also stated that the Plaintiff has sought for a decree of declaration which is governed under Article 58 of the Limitation Act and the period of limitation for such a decree is also three years. 6. The Defendant also stated that the Plaintiff has sought for a decree of declaration which is governed under Article 58 of the Limitation Act and the period of limitation for such a decree is also three years. 6. The suit having stood for consideration before the learned Trial Court, the following issues were framed: 1. Is the suit maintainable in its present form? 2. Has the Plaintiff any cause of action for instituting the suit? 3. Is the suit barred by limitation? 4. Is the suit barred by principles of waiver, acquiescence and estoppels? 5. Is the Plaintiff entitled to a decree, as prayed for? 6. What other relief or reliefs is the plaintiff entitled under laws and equity. 7. On proper evaluation of the evidence on record, the learned trial Court came to the conclusion that the suit is barred by limitation and also by principles of waiver, acquiescence and estoppels. The learned trial Court observed that the suit which was filed by the Plaintiff on 29-11-2004 for cancellation of sale deed executed in the year 1997. Therefore, the Plaintiff ought to have approached the Court in the year 2000 or even before, for declaration and cancellation of the deed executed by him, since the period of limitation is three years, for filing a suit in the Court of law from the date of execution of the title deed, in terms of Article 59 of the Limitation Act, 1963. The Plaintiff approached the Court after lapse of more than seven years to institute the suit for cancellation of the sale deed. Learned trial Court further held that the Plaintiff having failed to raise his title at appropriate time, he has waived his right to file the suit. It has been further held by the learned trial Court that the Plaintiff sold the suit land to the Defendant by receiving a consideration money of Rs. 40,000/- and accordingly issued a deed of acknowledgment. Therefore, the Plaintiff is estopped from raising any claim over the property, which was duly sold by him to the Defendant. The learned trial Court on due consideration of the issues aforenoted dismissed the suit of the Plaintiff. 8. The order of the learned trial Court was carried on appeal to the Court of the learned Additional District Judge, Belonia, South Tripura. The learned trial Court on due consideration of the issues aforenoted dismissed the suit of the Plaintiff. 8. The order of the learned trial Court was carried on appeal to the Court of the learned Additional District Judge, Belonia, South Tripura. The learned Additional District Judge upon hearing the learned Counsel for the parties dismissed the appeal by holding that the transfer of property by the Plaintiff was rightly done. Further, as the Plaintiff handed over the possession of the suit land upon due receipt of the consideration amount indicated in the sale deed and after appropriately executing the sale deed in question, he waived his right, title and interest over the property. 9. Learned Counsel for the Plaintiff strenuously submitted that the suit filed by the Plaintiff cannot be treated to have been barred by limitation. By drawing attention of this Court to the provisions of Order 7, Rule 6 of Code of Civil Procedure, learned Counsel for the Plaintiff submitted that even if the suit is barred by limitation, the aforesaid provision of law affords opportunity to the Plaintiff to file a suit beyond the period of limitation. Learned Counsel for the Plaintiff submitted that the learned Court below failed to appreciate that by operation of the provision of Order VII, Rule 6 of Code of Civil Procedure, a Court may permit the Plaintiff to claim exemption from the law of limitation. Consequently the suit ought not to have been dismissed, for want of limitation, by the learned Court below. Before proceeding to discuss the issue raised by the learned Counsel for the Plaintiff, it would be in fitness of things, to quote herein below, the relevant provision of Order VII, Rule 6 of Code of Civil Procedure, which reads as follows: 6. Grounds of exemption from limitation law – Where the suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show the ground upon which exemption from such law is claimed: Provided that the Court may permit the Plaintiff to claim exemption from the law of limitation on any ground not set out in the plaint, if such ground is not inconsistent with the grounds set out in the plaint. 10. 10. On plain reading of the provision of Order VII, Rule 6, it appears that this proviso empowers the Court to permit the Plaintiff to rely on any new ground for exemption from the law of limitation, if such ground is not inconsistent with the statement of facts made in the plaint. For the purpose of seeking an exemption from the operation of limitation, the Plaintiff must expressly state in the plaint the grounds of exemption. The general rule being the exemption must he pleaded in the plaint and the burden of proof, on the subject of limitation, is on the Plaintiff. Such ground of exemption cannot be relied on for the first time in the second appeal. There is no pleading anywhere in the plaint seeking exemption from the law of limitation in terms of the provision of Order VII; Rule 6 of the Code of Civil Procedure. The Plaintiff could not show any such basis as provided under the provision of Order VII Rule 6, to claim exemption from the law of limitation on any ground not set out in the plaint and also failed to indicate that such ground is not inconsistent with the grounds set out in the plaint. 11. In view of the above discussions, I am of the view that there is no scope to entertain the legal proposition advanced by the learned Counsel for the Plaintiff, to rule out the applicability of Limitation Act, 1963 and/or to save the delay in filing the suit. 12. The prayer for cancellation of the deed of sale will be governed by Article 59 of the Limitation Act, Since there was specific prayer for cancellation of the deed the period of limitation has to be reckoned from 15-11-1997 i.e. the date of execution of sale deed. The suit for cancellation of the sale deed was filed by the Plaintiff in the year 2004, i.e. almost after 7 years. There was a prayer for declaration that the transfer of the suit land by the deed of sale is null and void. Unless the deed of sale is cancelled the transfer cannot be held to be null and void. There was a prayer for declaration that the transfer of the suit land by the deed of sale is null and void. Unless the deed of sale is cancelled the transfer cannot be held to be null and void. Article 59 of the Limitation Act, 1963, provides that limitation to file a suit will start to run when the facts entitling the Plaintiff to have the instrument or deed or decree, cancelled or set aside or the contract rescinded, first became known to him. 13. When the Plaintiff seeks to establish' his title in the property and cannot establish it because of obstacle created by such instrument or deed to which he is a party, then the Plaintiff has to cancel or set aside the installment to establish his title. Obviously, if a suit for declaration of instrument or deed, as null and void, is brought jointly with suit for cancellation of such a deed, in computing the period of limitation in filing such suit, Article 59 of the Limitation Act, 1963, would apply. 14. On careful consideration of the submission advanced by the learned Counsel for the Plaintiff as well as the Defendant and on evaluation of the materials on record, this Court is of the considered view that the suit was hopelessly barred under the law of limitation. That being the position the finding on limitation arrived at by the learned Courts below warrants no interference and there is no substantial question of law to be formulated for just decision of this second appeal. 15. Since no substantial question of law is involved, there is no merit in this second appeal. Accordingly the appeal shall stand dismissed. Appeal dismissed.