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2018 DIGILAW 787 (JK)

Vijay Kumari v. Ranju Verma

2018-10-11

SANJEEV KUMAR

body2018
JUDGMENT : 1. This is an appeal filed by the plaintiff against the judgment and decree dated 30.11.2007, passed by the learned Additional District Judge, Jammu (hereinafter referred to as ‘the trial Court’) whereby the suit of the plaintiff/appellant herein against the defendant/respondent herein has been dismissed on the ground of limitation. 2. Having heard learned counsel for the parties and perused the record. 3. The only question that arises for determination in this case is: “whether the suit filed by the petitioner was barred by limitation.” The question has been dealt with, at length, by the trial court. The argument of appellant that the suit was not only a suit for declaration simpliciter but also the suit for possession which involved mixed questions of law and facts did not find favour with the trial court and it held the suit barred by limitation. 4. The suit of the appellant, as is apparent from the plaint, was for seeking declaration to the effect that the ‘Release Deed’ dated 10.09.1996, registered on 14.09.1996 before the Sub-Registrar, Jammu and executed by the appellant in favour of the respondent in respect of land measuring 01 kanal comprising Khasra No.968 situated at Janipur, Jammu was illegal, void abinitio and inoperative. The appellant had also sought consequential relief of mandatory injunction directing the respondent to remove Malwa and structure raised over the suit land and hand over the possession to the appellant. There is also the relief of permanent prohibitory injunction against the respondent, sought in the suit, with regard to the raising of any further construction over the suit land. The appellant, who did not dispute that there was a document styled as ‘Release Deed’ in existence to which he was signatory has also not denied that the aforesaid ‘Release Deed was duly registered before the Sub-Registrar, Jammu. He, however, sought to avoid deed on the ground that the same was obtained by the respondent from him by misrepresentation, concealment and fraudulent means. The respondent filed her written statement and took bar of limitation as preliminary objections to the maintainability of the suit. Along with the issue of maintainability on the ground of limitation, two more issues were framed by the trial court. 5. For facility of reference, preliminary issues which were struck by the trial court are reproduced herein: (i) Whether the suit is barred by period of limitation. ? Along with the issue of maintainability on the ground of limitation, two more issues were framed by the trial court. 5. For facility of reference, preliminary issues which were struck by the trial court are reproduced herein: (i) Whether the suit is barred by period of limitation. ? OPD (ii) Whether the suit is hit by S.42 of Specific Relief Act.? OPD (iii) Whether the suit has not been properly valued for purposes of court fee and jurisdiction.? OPD 6. The trial court has only considered first issue that pertains to the bar of limitation for bringing a suit for annulment/cancellation of a document. Learned counsel for the appellant submits that the trial court has erroneously applied the provisions of Article 62 of the Limitation Act and dismiss the suit as barred by limitation, in that, it is submitted that the suit was not only the suit for declaration of a document styled as ‘Release Deed’ as null and void, but was also a suit for possession and he was well within his right to file suit for possession within 12 years from the date of cause of action i.e., from the date he was dispossessed. 7. Per contra, it is submitted by the learned counsel for the respondent that the relief of mandatory injunction to demolish the construction raised on the suit property along with delivery of possession was not an independent relief but was dependent upon the grant of declaration that a document styled as ‘Release Deed’ was null and void and inoperative qua the rights of the appellant. 8. Before dealing with the rival contentions, it would be appropriate to set out the provisions of Section 3 of the Limitation Act. Section 3 reads as under: 3. Dismissal of suits, etc., instituted, etc. after period of limitation Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made, after the period of limitation prescribed there for by the first Schedule shall be dismissed, although limitation has not been set up as a defence. Section 3 reads as under: 3. Dismissal of suits, etc., instituted, etc. after period of limitation Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made, after the period of limitation prescribed there for by the first Schedule shall be dismissed, although limitation has not been set up as a defence. Explanation:-A suit is instituted, in ordinary cases, when the plaint is presented to the proper officer, in the case of a pauper, when his application for leave to sue as a pauper is made; and, in the case of a claim against a company which is being wound up by the Court, when the claimant first sends in his claim to the official liquidator. 9. On the plain reading of Section 3, it is clear that a suit instituted, appeal preferred and the application made after the period of limitation prescribed there for by the first Schedule shall be dismissed, even if the limitation is not set up as a defence by the defendant. The first Schedule to the Limitation Act provides period of limitation inter alia for filing different types of suits. Article 62 of the Limitation Act provides a period of three years for seeking to cancel or set aside an instrument not otherwise provided for. It may not be out of place to reproduce Article 62 of the First Schedule appended to the Limitation Act, which reads as under: Description of suit Period of limitation Time from which period begins to run 62. To cancel or set aside an instrument not otherwise provided for Three Years When the facts entitling the plaintiff to have the instrument cancelled or set aside becomes known to him. 9. It is not in dispute that the document (Release Deed) does not specifically find mention in any of the Articles of the First Schedule of the Limitation Act and, therefore, Article 62, on the face of it, would be attracted. As per the appellant himself, the ‘Release Deed’ was executed on 10.09.1996 and was registered on 14.11.1996 before the competent authority. It is this date i.e 10.09.1996 or at least 14.11.1996, the petitioner was aware of the fact that he was entitled in law to have the instrument cancelled or set aside. He was, therefore, supposed to file a suit within a period of three years from the said date. It is this date i.e 10.09.1996 or at least 14.11.1996, the petitioner was aware of the fact that he was entitled in law to have the instrument cancelled or set aside. He was, therefore, supposed to file a suit within a period of three years from the said date. The suit having being filed after more than 8 years is, therefore, barred by limitation as has been rightly held by the trial Court. The contention of learned counsel for the appellant that it was a composite suit for declaration and possession also cannot be accepted for the reasons that the relief of mandatory injunction seeking demolition of the structure raised on the suit property and also for delivery of possession was clearly dependent upon the declaration of the ‘Release Deed’ as null and void. It is so because, if the trial court would have refused to grant the declaration as prayed for, the petitioner would not have been entitled to the relief of possession. It means that independent of relief of declaration, the relief of possession was not tenable. 10. Viewed thus, the relief of mandatory injunction including the delivery of possession, as prayed for by the appellant, was only a consequential relief dependent upon the declaration as prayed for by the petitioner in the suit. 11. In this view of the matter, it cannot be said that the suit for possession could have proceeded even if the Court had held the suit for declaration as barred by limitation. Since it was not in dispute that the ‘Release Deed’ was in existence and signed by the appellant, as such, there was no mixed question of fact and law involved for adjudication of the preliminary issue of limitation. The appellant wanted to avoid the document by seeking a declaration, which has held above, was barred by limitation, the suit having been filed after 08 years of the cause of action. The cause of action, it may be reiterated, accrued to the petitioner-appellant on the date the instrument styled as ‘Release Deed’ was executed. 12. For all these reasons, I find no reason to interfere with the judgment and decree passed by the trial Court. The appeal is, thus, found without any merit and is, accordingly, dismissed. 13. In view of the dismissal of the CFA No.13/2008, the connected CCROS No.8/2008 stands dismissed.