Punjab-Haryana High Court
Smt. Jagir Kaur And Ors. vs Pal Singh And Ors. on 28 August, 1995
Equivalent citations: (1995)111PLR634
JUDGMENT N.K. Kapoor, J.
1. This is defendants' regular second appeal against the judgment and decree of the Additional District Judge whereby appeal filed by the plaintiff was accepted thereby decreeing the suit.
2. One Pal Singh, now represented by Smt. Bachan Kaur, originally instituted a suit against Sajjan Singh and others for a declaration to the effect that he is owner in possession of land as per details given in the plaint and that the defendants have no concern whatsoever with the suit land. The plaintiff also challenged the civil Court decree alleged to have been suffered by him in favour of the defendants inter-alia on the ground that the same is based on fraud and misrepresentation and hence inoperative and not binding upon the plaintiff.
3. Defendants put in appearance, filed written statement. Defendants set up their claim stating therein that Pal Singh (now deceased) was brother of maternal grand father of Jagir Kaur and Amarjit Kaur defendants. He was unmarried. Pal Singh brought up defendants 2 and 4 as his daughters. It is in lieu of their services that he gifted the suit land to the defendants and so suffered a civil Court decree in their favour on 24.3.1972. Even since then the defendants are owners in possession of the suit land.
4. On the pleadings of the parties, the following issues were framed:-
1) Whether the plaintiff is owner in possession of the suit land? OPP.
2) Whether the plaintiff is estopped from filing the present suit by his act and conduct? OPP.
3) Whether the plaint is properly valued for the purposes of jurisdiction and court fee? OPP.
4) Whether the plaintiff is not bound by the compromise decree on the grounds that it was obtained by fraud?
5) Relief.
5. Issue No. 1 was decided against the plaintiff. Issues 2 and 4 were discussed together and decided against the plaintiff in favour of the defendants. Issue No. 3 was decided in favour of the plaintiff. Under relief clause trial Court held that the suit was barred by limitation. As a result of these findings the suit of the plaintiff was dismissed.
6. The appellate Court once again examined the matter on facts as well as law. The appellant once again assailed the findings of the trial Court stating that the same are not born out as per facts of record. It was urged by the appellant that the so called decree clearly smacks of misrepresentation, fraud and undue influence. According to the appellant, Pal Singh was on illiterate and appears to have been asked to thumb mark certain documents without making him understand its real implications. Reference was made to the copy of compromise, Exhibit D-2, which is stated to have been thumb marked by Pal Singh. It was argued by the learned counsel for the appellant that at no stage Pal. Singh was represented by a counsel. Not only this there could be no occasion for Pal Singh to suffer a decree in favour of the defendants especially when he had a living daughter named Bachno. The appellate Court found substance in the plea of the appellant and so the findings of the Court were reversed holding that the contesting defendants have no right in the suit land nor the plaintiff was estopped from filing the present suit by her act or conduct. Dealing with the point of limitation the lower appellate Court held that since decree had been procured by exerting undue influence, same is liable to be ignored and so reversed the findings of the trial Court in respect of issues 2 and 4. The Court also held that cause of action to attack a decree arises when the voidable nature of the decree becomes known to the aggrieved person and the question being not purely of a legal nature the same cannot be determined and decided by arguments at the bar. This way the finding of the trial Court with regard to bar of limitation was also reversed. Accordingly, appeal was accepted thereby decreeing the suit.
7. Assailing the findings of the lower appellant Court the learned counsel for the appellants has argued that the Court below has erred in law in setting aside the well reasoned judgment and decree of the trial Court. According to the counsel, suit of the plaintiff was barred by limitation and so the plaint was liable to be rejected on this short ground alone. According to the counsel, appellate Court has taken a wholly wrong approach while observing that such a question cannot be determined unless the factual aspects are clearly stated. Infact, according to Section 3 of the Limitation Act any suit instituted after the prescribed period of limitation is to be dismissed although limitation has not been set up as a defence. In the instant case, subject matter of the suit in the decree suffered by Pal Singh on 24.3.1972 and since the suit has been filed on 22.7.1975 same is clearly barred by limitation. According to the counsel even the finding of the lower appellate Court that Smt. Bachno is daughter of Pal Singh has infact not been proved according to law. According to the counsel the evidence led by Smt. Bachno is not in accordance with Section 50 of the Indian Evidence Act and so is inadmissible. According to the counsel, Pal Singh died issue less and so the will set up by Smt. Bachno is a forged and fabricated document.
8. As noticed in the opening part of the judgment the present suit was filed by Pal Singh. On his death Smt. Bachno claiming herself to be the daughter of Pal Singh filed an application under Order 22 Rule 3 CPC to be brought on record as his legal representative. This application was contested by the defendants and ultimately same was allowed by the trial Court. Defendants who had been afforded an opportunity to file an amended written statement did not avail of the same. So, the defendants did not raise any objection as to the status of Smt. Bachno, precisely for this reason no specific issue was framed by the Court and the trial Court examined the matter taking Smt. Bachno to be the daughter of Pal Singh. Besides this there is other oral evidence also on record which clearly gives an indication that Smt. Bachno is the daughter of Pal Singh. This finding has also been affirmed by the Lower appellate Court. Thus, this objection of the appellant is without any basis. As regards the civil Court decree dated 24.3.1972, it has come on record that suit was filed on 13.3.1972 and decreed on 24.3.1972. The claim of the plaintiff was decreed on the basis of admission statement of Pal Singh vide exhibit D-3-the order of the Court. Whereas the plaintiffs were representated by a counsel, defendant has appeared in person. There is no indication in the copy exhibit D-5 whether at any given time this Pal Singh was identified by any person. These documents when examined in the light of the assertion made by Pal Singh on the plaint clearly give an indication that it was not a free act of plaintiff-the Pal Singh, he had no knowledge of the same and as soon as the defendants laid their claim on the basis of civil Court decree he approached the Court for getting the same set aside. Unfortunately, he expired and so his daughter Smt. Bachno led all possible evidence to get rid of the civil Court decree dated 24.3.1972. It is the case of the defendants that Pal Singh died issueless and so gifted away the suit properly on account of love and affection to the defendants. As per the case of the defendants Pal Singh was the real brother of maternal grand father of defendants 2 and 4. In the presence of real daughter the claim set up by the defendants does not appeal to reason. Thus, as per evidence on record it is reasonable to infer that civil Court decree had been procured by practising fraud or by misrepresentation.
9. As regards the point of limitation, it is to be seen whether Article 58 or 59 of the Limitation Act applies on the facts of the present case. According to the learned counsel for the appellant as per Article 58, suit could be filed within three years from the time when the right to sue first accrued and in the instant case it is to be taken from the date of the decree i.e. 24.3.1972 and so examined the suit is per se barred by limitation. On the other hand learned counsel for the respondent argued that infact the Article 59 of the Limitation Act is applicable in the present case which grants three years time for setting aside an instrument or a decree when the facts entitling the plaintiff to have the instrument or decree cancelled or set aside. According to the learned counsel for the respondents in the instant case it is only when the defendants raised a claim to interfere with the peaceful possession of the plaintiff that he approached this Court and so the suit is well within limitation from the date of such a threat. According to the counsel even if the case is examined under Article 58 in view of the division Bench judgment of this Court in Ibrahim @ Dharam Vir v. Smt. Sharifan @ Shanti, 1979 PLJ 469 cause of action accrues when there is actual threat by the defendants to take forcible possession of the land from the plaintiff. As per this decision the word 'first accrue' in Article 58 is of no significance at all.
10. Present controversy revolves around the true ambit of Articles 58 and 59 of the Limitation Act. For reference these are reproduced:-
"58. To obtain any other declaration. Three years. When the right to sue first accrues.
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.
11. As per Article 58 three years period is prescribed to seek any declaration when the right to sue first accrues. The precise meaning of the word 'first accrues; in Article 58 was subject matter of adjudicating in the aforesaid judgment. The division Bench considered this aspect of the matter and came to the conclusion that mere entry of mutation in the name of defendant would not furnish a cause of action to the plaintiff to file a suit for declaration and the cause of action accrues to the plaintiff only when the defendants actually threatened him to take forcible possession of the land. Single Bench judgment taking a contrary view was reversed and so the suit was held to be within limitation. Since in the present case prayer is to set aside the decree, period of limitation commences when facts entitling the plaintiff to have the decree set aside first become known to him. As per the case of the plaintiff, he had no knowledge of the decree who unmindful of the same continued to remain in occupation of the property till his death. Thus, it would be safe to infer that despite decree procured by the defendants no attempt was made by them to interfere with the peaceful possession of the plaintiff and as soon as a threat was made, plaintiff approached the Court for getting the necessary relief. Article 59 makes mention of facts entitling the plaintiff to have the decree set aside. The emphasis in Article 59 is when such facts become known to him. Thus, viewed from any angle, i.e. whether article 58 or 59 is applicable, suit as framed is within limitation. No other point has been urged.
12. Resultantly, finding no merit in this appeal the same is dismissed.
13. Parties will, however, bear their own costs.