Research › Search › Judgment

Himachal Pradesh High Court · body

2019 DIGILAW 1846 (HP)

Hari Dass v. Chattar Singh

2019-12-03

JYOTSNA REWAL DUA

body2019
JUDGMENT Jyotsna Rewal Dua, J. - Respondents No.1 and 8 were original plaintiffs. Civil Suit was filed by respondents No.1 to 8 and sons of Shri Shyam Lal for declaration to the effect that General Power of Attorney dated 08.08.1991, allegedly, executed by their predecessor Shri Shyam Lal in favour of appellant No.1-Hari Dass, was a result of fraud, therefore, being null and void, was not binding upon the plaintiffs. Further declaration sought in the Civil Suit was that Sale Deed dated 13.08.1991, executed by appellant No.1-Hari Dass in favour his wife Smt. Kala Devi-appellant No.2, on the basis of the General Power of Attorney, dated 08.08.1991 in respect of the land, comprised in Khata Khatauni No.20/23, Khasra No.766, measuring 22-15 Bighas to the extent of 1/3rd share, situated in Village Maan, Pargana Pobar, Tehsil Arki, District Solan, was also null and void and does not affect the right of plaintiffs over the said land. 2. Learned Trial Court dismissed the suit, vide judgment and decree dated 01.03.2006, holding therein that:- (i) The General Power of Attorney dated 08.08.1991 (Ext.D2) by Shri Shyam Lal in favour of Shri Hari Dass as well as the Sale Deed dated 13.08.1991 (Ext.D1) by Shri Hari Dass in favour of his wife Smt. Kala Devi were executed in accordance with law; (ii) Both these documents, i.e. General Power of Attorney as well as Sale Deed, were proved to have been executed in accordance with law; and (iii) The suit filed by the plaintiffs was barred by limitation. As per the averments made in the plaint, the plaintiff had come to know about the General Power of Attorney dated 08.08.1991 within a week after its execution. Execution of Sale Deed on 13.08.1991 was also in knowledge of plaintiff. Whereas the Civil Suit seeking declaration that both these documents were null and void, was filed by them on 25.02.1997. Suit was required to be filed within 3 years from date of accrual of cause of action, therefore, it was hopelessly barred by limitation. 3. Aggrieved against the judgment and decree passed by the learned Trial Court, respondent No.1/plaintiff No.1 preferred appeal before the learned Additional District Judge. This appeal was allowed by the learned First Appellate Court on 20.06.2008 by reversing the judgment and decree passed by the learned Trial Court. 4. 3. Aggrieved against the judgment and decree passed by the learned Trial Court, respondent No.1/plaintiff No.1 preferred appeal before the learned Additional District Judge. This appeal was allowed by the learned First Appellate Court on 20.06.2008 by reversing the judgment and decree passed by the learned Trial Court. 4. Learned First Appellate Court held that the General Power of Attorney (Ext.D2) executed by Shri Shyam Lal in favour of appellant No.1 and the Sale Deed executed by appellant No.1 on the basis of this General Power of Attorney in favour of appellant No.2, were not proved to have been executed in accordance with law; various mysterious circumstances detailed in the judgment surround the execution of General Power of Attorney as well as Sale Deed, have not been explained by the beneficiaries/present appellants/defendants No.1 and 2. Accordingly, the suit filed by respondents No.1 and 8 was decreed. 5. Feeling aggrieved, instant Regular Second Appeal has been preferred by the appellants-original defendants No.1 and 2. This appeal was admitted on 07.11.2008 on the following substantial questions of law:- (i) "Admittedly Ext. D1 and Ext. D2 have been prepared in the year 1991 and the suit for declaration has been filed in the year 1997 i.e. after almost six years, whether the suit was time barred. (ii) Since both the documents i.e. Ext. D1 and Ext. D2 are registered documents, whether the presumption of Section 60 of Indian Registration Act is attached with the certificate appended by the Sub-Registrar on the said documents until and unless the same are not rebutted by leading cogent and reliable evidence." 6. While the matter was being heard on substantial question of law No.1, it transpired that learned First Appellate Court though has reversed the judgment and decree passed by the learned Trial Court on merits of the matter, however, no finding has been returned in the impugned judgment and decree in respect of following issue No.6 framed by the learned Trial Court:- "Whether the suit of the plaintiffs is barred by limitation." 7. As observed earlier, the learned Trial Court had held the suit of the plaintiffs barred by limitation and accordingly decided issue No.6 against the plaintiffs. Plaintiffs in their first appeal preferred before learned District Judge had agitated this finding by submitting in ground No.(ii) that no limitation was prescribed for challenging void document, therefore, suit cannot be held as time barred. Plaintiffs in their first appeal preferred before learned District Judge had agitated this finding by submitting in ground No.(ii) that no limitation was prescribed for challenging void document, therefore, suit cannot be held as time barred. The finding on this issue can affect the outcome of the first appeal despite the finding on merits recorded by the learned First Appellate Court in favour of the original plaintiffs-respondents 8. In the absence of any finding having been returned by learned First Appellate Court in respect of issue No.6, regarding limitation, the substantial question of law No.1 framed in the instant second appeal, cannot be answered appropriately. The benefit of a reasoned judgment by the learned First Appellate Court on issue of limitation is not available at present. 9. Hence, impugned judgment and decree passed by learned First Appellate Court is set aside and the matter is ordered to be remanded to learned First Appellate Court only for the purpose of returning finding in respect of issue No.6, referred to herein-above, as to whether the suit filed by the plaintiffs/respondents No.1 and 8 was barred by limitation or not? Learned First Appellate Court will decide only this issue after affording opportunity of hearing to the parties in accordance with law. Based on the outcome of the finding on issue No.6 above, will deliver a fresh judgment and decree in the Civil Appeal. 10. The parties represented through their learned Counsel, are directed to remain present before the learned District Judge, Solan, on 30th December, 2019. Service upon unrepresented respondents shall be effected in accordance with law. Since, the Civil Suit was originally filed on 25.02.1997, therefore, there shall be a direction to learned First Appellate Court to dispose of the First Appeal as expeditiously as possible, preferably before 30th April, 2020. With the above observations, the appeal is disposed of. Pending application(s), if any, also stand disposed of.