Chattisgarh High Court
Kashiram vs Smt. Parvati Shivare on 15 February, 2023
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Judgment Reserved on 05.01.2023
Judgment Delivered on 15.02.2023
FA No. 44 of 2020
1. Kashiram S/o Shobhitram Aged About 72 Years R/o Village Aheri, Police
Station Nandini, Tehsil Ahiwara, District Durg Chhattisgarh.
2. Sukhchand S/o Kashiram Aged About 33 Years R/o Village Aheri, Police
Station Nandini, Tehsil Ahiwara, District Durg Chhattisgarh.
3. Malikram S/o Kashiram Aged About 19 Years R/o Village Aheri, Police
Station Nandini, Tehsil Ahiwara, District Durg Chhattisgarh. (Defendants).
--- Petitioners
Versus
1. Smt. Parvati Shivare W/o Rajendra Shivare Aged About 40 Years R/o
Village Khopli, Police Station Utai, District Durg Chhattisgarh. (Plaintiff),
2. Ravindra Kumar Shivare S/o Rajendra Shivare Aged About 20 Years R/o
Village Khopli, Police Station Utai, District Durg Chhattisgarh.
3. State of Chhattisgarh Through Collector, Durg (Defandands No. 4),
District : Durg, Chhattisgarh
4. Sub Registrar Sub Registrar Office, Dhamda, Tehsil Dhamda, District
Durg Chhattisgarh. (Defandants No. 5). --- Respondents
For Appellants : Mr. Akash Kumar Kundu, Advocate.
For Respondents 1 to 3 : Mr. Pushpendra Kumar Patel, and Pawan Kumar
Kashyap, Advocate.
For the State : Mr. Raghavendra Verma, Govt. Advocate.
Hon'ble Shri Justice Goutam Bhaduri, Judge &
Hon'ble Shri Justice N.K. Chandravanshi, Judge
C A V Judgment
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Per Goutam Bhaduri, J
1) This appeal is against the judgment and decree dated 30.11.2019 passed by the learned 7th Additional District Judge, Durg in Civil Suit No.47-A/2012 whereby the learned Court has decreed the suit in favour of the plaintiffs and declared the sale-deed dated 31.05.2005 as null and void, which pertains to the land bearing Kh.No.9, 10, 13 admeasuring 1.21, 1.34 and 0.89 total 3.44 hectares situated at village Aheri, P.H.No.26, Tahsil Dhamdha. It was further decreed that the defendants 1 to 3 and their agents shall be permanently restrained from entering into or interfering with the land as they have no right to enter into and interfere with it. Being aggrieved by such order, the instant appeal is by defendants 1 to 3.
2) As per the plaint averments, the suit was filed by Smt. Parvati Shivare in her individual capacity as also being the mother of minor son Ravindra Kumar Shivare who was arrayed as Plaintiff No.2 seeking a declaration that the sale deed dated 31.05.2005 made by the defendants as null and void and permanent injunction was also prayed for. The order sheet would show that the suit was filed on 12.06.2012. The plaintiffs averred that the lands situated at village Aheri, Patwari Circle No. 26, Tahsil Damdha, Sub-tahsil Ahiwara District Durg, bearing Kh. Nos. 9, 10, 13 admeasuring 1.21, 1.34, 0.89 hectares total 3.44 hectares as mentioned in Plaint Schedule-A presently stand recorded in the name of plaintiff and her son and the plaintiff is in possession of it. It was stated that defendants 1 to 3, the appellants herein, namely Kashi Ram, Sukhchand and Malik Ram got the sale deed executed in their favour by an impostor lady by personating herself as Parvati Shivare and the forged sale deed got executed in their favour, which is required to be set aside as null and void. The plaintiffs have claimed that they came to know about such forged sale deed when the defendants 1 to 3 filed application before the 3 Tahsildar to get their names mutated, which stood rejected on 08.08.2005. The said order was challenged in appeal and on 06.11.2006, the SDO also rejected the appeal preferred by the defendants. Against such mutation proceeding, the defendants 1 to 3 again filed a revision before the Commissioner, Raipur which was pending. The cause of action therefore was stated to be firstly on 31.05.2005 and subsequently when the application was filed for mutation before the Tahsildar was rejected on 08.08.2005 and subsequent thereto on 06.11.2006 when the appeal was dismissed by the SDO. The plaintiff therefore prayed that the sale deed dated 31.05.2005 be declared as null and void. The plaintiffs also averred that they filed FIR which is also pending.
3) The defendants stated that the plaintiffs averred that the cause of action arose on 31.05.2005 when the suit was filed, but the suit was filed beyond the period of 3 years, therefore, it was barred by time. Further defence was raised that the plaintiffs were not in possession of the suit land and they maintained the stand that on 31.05.2005, the plaintiff on behalf of her son executed the sale deed in favour of defendants for a valuable consideration and the sale deed contains the photographs of seller and sale was got registered. It was stated that the plaintiff knowing fully well about the valid execution of sale deed way back in 2005 was sitting idle for 6-7 years, which would show that the sale deed in fact was executed. The defendants further stated that the land was purchased by sellers from one Harbhajan Singh and others but subsequent to sale to the defendants, their motive changed and in order to get further amount, it was alleged that the sale deed is fake. Further defence was raised that after plaintiff no.2 who was said to be minor at the time of filing suit became major and subsequently even after achieving the age of majority, he has not challenged the sale. Therefore, the suit would be barred under the law of limitation. Further defence was made that without claiming 4 relief for possession, simplicitor suit for declaration was filed as the defendants were placed in possession and proper court fee was not paid as per the valuation of the sale deed, therefore, the plaint is liable to be rejected.
4) On the basis of pleadings, the learned court below framed 5 issues and predominantly with respect to issue nos.1 & 2, the finding was given that the sale deed dated 31.05.2005 got executed by defendants 1 to 3 in respect of the suit land total admeasuring 3.44 hectares would be a nullity and therefore, consequently the order of permanent injunction was passed in favour of the plaintiffs. Being aggrieved by such order, this appeal was filed by the defendants.
5) Mr. Akash Kumar Kundu, learned counsel appearing for the appellants would submit that the learned trial Court failed to appreciate the fact that the suit was barred by law of limitation. He would further submit that even if the cause of action is said to have arisen on three occasions i.e., 31.05.2005 when the alleged fake sale deed was executed or on 08.08.2005 when the application for mutation was rejected by the Naib Tahsildar or on 6.11.2006 when the appeal preferred by them was rejected by the SDO. He would submit that however the suit was filed in the year 2012 which is beyond the period of 3 years. He would further submit that the suit was initially filed by the mother herself and on behalf of minor son but subsequently during the pendency of the suit, when the minor became major, he did not challenge the sale deed as such he also lost his right to challenge the same. He further submits that the deposition of plaintiff-witnesses would show that the plaintiffs were not in possession, therefore, the suit filed for simplicitor declaration without claiming any possession would be barred. With respect to law of limitation, he placed reliance in Vishambar Versus Laxminarayan (dead) through Lrs (2001) 6 SCC 163 and Narayan Versus Babasaheb (2016) 6 SCC 725. 5
6) Mr. Pushpendra Kumar Patel, learned counsel appearing for the respondents/plaintiffs assisted by Mr. Pawan Kumar Kashyap, Advocate would submit that the defendants hatched conspiracy in executing a fake registered sale deed by an impostor lady, therefore, the learned trial Court has rightly held the sale deed as null and void. He further submits that since the revenue proceedings were pending, the suit does not suffer from any limitation, therefore, the judgment and decree passed by the learned Addl. District Judge does not call for any interference by this Court.
7) We have heard learned counsel for the parties at length and have also perused the record.
8) According to the plaint allegations, the suit property situated at village Aheri Patwari Circle No. 26, Tahsil Dhamdha, Sub-Tahsil Ahiwara District Durg, bearing Kh. Nos. 9, 10, 13 admeasuring 1.21, 1.34, 0.89 hectares total 3.44 hectares as mentioned in Plaint Schedule-A was purchased by the defendants 1 to 3/appellants herein by false personification of the original owner Smt. Parvati Sivare and got the sale deed executed on 31.05.2005. According to the plaintiff/respondents 1 & 2, the sale deed dated 31.05.2005 was forged and fabricated document. The certified copy of the sale deed is marked and exhibited as Ex.P-1 and the original sale deed is filed by the defendants as Ex.D-3. The alleged sale deed is shown to be executed by Smt. Parvati Shivare for herself and on behalf of minor son Ravindra Kumar aged about 8 years in favour of 3 purchasers, who are the appellants herein. The suit was filed on 12.06.2012. Perusal of the plaint shows that initially the suit was filed by Parvati Shivare and Ravindra Kumar, the then minor who was represented through plaintiff No.1 the mother. Subsequently, Ravindra Kumar became major on 30.06.2017 and was transposed as defendant no.6 and on 06.06.2019 the minor did not file any counter or made averments to challenge the same 6 individually.
9) According to the plaintiffs, the sale deed dated 31.05.2005 was not executed by her, but defendants 1 to 3 conspired and got it executed by producing an impostor as Parvati Shivare which was assisted by Ram Kumar and Harish Kumar, being witnesses to the sale-deed. The statement of P.W.1 Parvati Shivare would show that it is stated that she is an illiterate lady and her son was minor, therefore, defendants 1 to 3 took advantage of it and got a a fake sale-deed. She further stated that Harish Kumar who appears to be the witness in the said-sale deed had abducted the seller and kept them in confinement for a period of one month. It is further stated that the land was looked after by her husband Rajendra Shivare. She has stated that in the sale deed her caste was shown as Satnami whereas he belongs to Meher caste, therefore, it shows that the forged document was executed.
10) In cross examination of the witness, she deposed that she purchased 10 acres of land from Harbhajan Singh, Haribansh Singh, and Swarn Kaur and Swarn Kaur by Registered Sale Deed dated 26.04.2005 and one part was purchased from Harbansh Singh by other sale deed 26.04.2005. She has further stated that the the lands of said two sale deeds were jointly purchased in the name of plaintiff and her minor son Ravindra Kumar and they were put in possession and their names were recorded. In further cross examination of this witness, the earlier sale deeds by which she purchased the properties were confronted by defendants/appellants. Those sale deeds are marked as Ex.D-1 & D-2 and on further query, she admits that on such documents, i.e., on Ex.D-1 & D-2, her photographs are placed at portion 'A' to 'A' wherein she had signed as purchaser. The said sale deed Ex.D-1 and D-2 have been filed in original along with the entire stamp papers before the Court. Those earlier sale deeds of initial acquisition by Parvati Shivare in original were 7 produced by the defendants. There is no explanation by the plaintiffs to the issue that how the earlier acquisition of the title document came into the possession of subsequent purchaser, the defendant appellant. Further more, when the Photographs of Parvati Sivare attached in D-1 & D-2 at 'A' to 'A' portion are compared with the original sale-deed (Ex.D-3) which is under challenge, it shows the same photographs of Parvati Shivare, which is marked from A to A. On a bare comparison of photographs, it shows that the same is earlier as a purchaser in D-1 & D-2 and subsequently as seller in D-3.
11) According to the plaintiff, on 29.05.2005, a mob of approximately 108 persons ransacked the house of plaintiff and looted the entire goods, jewelry, documents etc., kept in the house wherein the earlier two sale deeds were also looted. The plaintiffs averred that the said documents were misused and subsequently a sale deed was executed. P.W.2 Rajendra son of Pipa Ram Shivare, the husband of the plaintiff in cross- examination has categorically admitted the fact that in a report of fake sale deed Ex.P.6, it is written at 'B' to 'B' portion that the original Rin Pustika and the documents of title were available with Harish Pillai. A reading of Ex.P.6 shows that it is a report made by P.W.2 Rajendra Shivare to the Police wherein it is narrated that after transaction, the Rin Pustika was prepared and the said Rin Pustika as also documents of land were with one Harish Pillai, who is resident of Jamul by whom land was fraudulently sold and possession was jointly delivered to Kashiram, Khubchand and Malikram. P.W. 2 has further admitted the fact that neither any ransack was created at his house by defendants 1 to 3 nor any document like Rin Pustika etc., were looted by them. Therefore, the statements of Parvati Shivare (wife) and Rajendra Shivare (the husband) contradicts with each other. Under such circumstances, when the trace of original nucleus of title properties are produced by defendants, it would 8 have a material bearing to the issue. It is also a normal human conduct that in case of property transaction, the earlier sale deeds are transferred. On comparison of sale-deed Ex.D-3, which is in original with the certified copy of sale deed marked by the plaintiff as Ex.P-1, it shows that no whisper was made by the plaintiff that Ex.P-1 which is a certified copy does not bear the photographs of plaintiff Parvati Shivare as seller. The silence on this issue would amount to an admission by silence. If the plaintiffs claim that the sale deed Ex.P-1 = Ex.D-3 has been falsely executed by an impostor then at least it was expected that the plaintiff would deny the affixation of her photographs on such sale deed which was made in favour of defendants 1 to 3 and would have made vehement opposition.
12) The plaintiffs and defendants both have filed the report of hand-writing experts. The plaintiffs tried to prove that the thumb impression was not that of Parvati Shivare. At the same time, she filed the report of hand writing expert Sunanda Dange whereas the defendant has also filed the report of hand-writing expert Ulhas S. Athale. The handwriting expert Sunanda (P.W.3) was examined on 26.04.2019. She stated that the photographs on disputed sale-deed were damaged, therefore, a comparison was made by the photographs of photocopy along with thumb impression. A perusal of the record shows that Ex.P-1 was a certificated copy of sale deed wherein the thump impression was not clear whereas subsequently in original sale deed (Ex.D-3) which was marked by D.W.1 of such purchase contains distinct photographs and clear thumb impression. It would be a presumption that while the said registration was made, the official act was performed properly by the Sub-Registrar to draw a presumption of correctness unless proved otherwise. Plaintiff Ravindra Shivare after becoming major was transposed as defendant and has filed his affidavit and the affidavit was sworn on 10.07.2019 after 9 Ex. D-3, the original sale deed came to fore during evidence. In his statement, no explanation has been made as to whether the photographs attached in the sale deed were not that of his mother. The sale deed when bears photographs of seller and was executed before Sub- Registrar, it would have a presumptive value of correctness. Consequently, no extra-ordinary weightage can be given to the report of expert produced by the plaintiff.
13) According to the plaintiff, after the forged sale deed was executed, the plaintiff was dispossessed. The proceeding of this Court shows that an application was filed by the plaintiff for restoration of possession wherein, this Court by order dated 16.2.2021 observed that since the application was moved before the Naib Tabsildar by the plaintiff on 01.07.2020 to restore her possession pursuant to the decree of permanent injunction. This Court while granting status quo, the Naib Tahsildar, Up Tehsil Ahirwara was directed not to proceed further with the application filed by the respondent no.1/plaintiff seeking restoration of possession meaning thereby the plaintiff is not in possession. Thereafter the appeal came up for final hearing. Further, at Para 24 of cross examination of the plaintiff, the respondent has clearly deposed that she is not in possession. The document filed in this appeal therefore concludes the fact that the plaintiff is not in possession. The order of Court dated 16.02.2021 shows that on on the basis of decree of permanent injunction issued against the appellants, the respondent made efforts to get back her possession which was restrained by this Court. The effect would be that when the plaintiff was not in possession despite that without claiming the relief for possession as consequential relief, the suit simplicitor for declaration and injunction was filed. Therefore such suit without a suit simplicitor only for declaration would not lie u/s 34 of the Specific Relief Act.
14) In respect of the subject touching the limitation of filing of suit, records 10 shows that the suit was filed on 12.06.2012 by mother along with her minor son. The plaint allegations say that the cause of action arose firstly on 31.05.2005 when the sale deed was registered and subsequently on 8.08.2005 when the application for mutation was rejected by the Naib Tahsildar and lastly on 06.11.2006 when the appeal preferred by the appellants was dismissed by the SDO. Therefore the last cause of action was said to have arisen on 06.11.2006. The caption of the plaint would show that the suit was filed seeking declaration of the sale deed dated 31.05.2005 to be null and void along with prayer for permanent injunction.
15) Article 58 of the Limitation Act, 1963 purports that to obtain any declaration, the limitation period would be 3 years when the right to sue first accrues. Admittedly suit was not filed within 3 years from the last date of accrual of cause of action. The proceeding of the trial Court would show that minor Ravindra Kumar attained the age of majority during the pendency of suit as his date of birth was shown to be 01.07.1999. Therefore, on the application of plaintiff, he was transposed as defendant subsequent to attaining the age of majority. The proceeding does not show that any separate averments or claim was made by son on attaining majority to challenge the sale. However, written statement was filed by him claiming himself to be the owner of half of the suit land. No separate court fee was also affixed to such claim. As per Article 60(a) of the Limitation Act, in order to set aside the transfer of property made by the guardian of a ward, when the wards attained the age of majority thereafter within 3 years the claim is required to be filed to challenge such action. Respondent no.6 has not filed any such claim. The Supreme Court in case of Narayan 2016 6 SCC 725 (supra) has held that limitation to file suit when the minor attains the age of majority to challenge the same would be 3 years. At para 26, the Court held that there cannot be any doubt that a suit by quondam minor to set aside the alienation of his 11 property by his guardian is governed by Article 60. To impeach the transfer of immovable property by the guardian, the minor must file the suit within the prescribed period of three years after attaining majority. Therefore, the quondam minor plaintiff challenging the transfer of an immovable property made by his guardian in contravention of Sections 8(1) and (2) of the 1956 Act and who seeks possession of property can file the suit only within the limitation prescribed under Article 60 of The Limitation Act.
16) Further in case of Vishwambhar (2001) 6 SCC 163 (supra), the Supreme Court had an occasion to deal with similar question that in such circumstances whether the alienation made by the guardian is void or voidable. Interpreting section 8(2) of the Hindu Minority and Guardianship Act, 1956, it is laid down, inter alia, that the natural guardian shall not, without previous permission of the Court, transfer by sale any part of the immovable property of the minor. In sub-section (3) of the said section, it is specifically provided that any disposal of immovable property by a natural guardian, in contravention of sub-section (2) is voidable at the instance of the minor or any person claiming under him. There is little scope for doubt that the alienation made by the guardian which are under challenge in the suit were voidable at the instance of the plaintiffs and the plaintiffs were required to get the alienations set aside if they wanted to avoid the transfers and regain the properties from purchasers.
17) Therefore, applying the aforesaid legal position to the instant case, the minor on attaining the majority should have filed the suit for setting aside such sale in separately instituted claim. After attaining the age of majority the alienation is not challenged within a period of 3 years as per Article 60(a) of the Limitation Act. Therefore, no relief can be granted to the minor on such issue.
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18) Lastly perusal of the order of the learned trial Court would show that the Court held that the suit is within limitation giving benefit of section 12 of the Limitation Act. Reading of section 12 would show that it excludes certain time in legal proceeding for counting a limitation for a suit, appeal or application. Sub-section (1) purports that in computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded. Likewise in computing the period of limitation for an appeal, or an application for leave to appeal or for revision or for review of judgment, the day on which the judgment was pronounced and the time requisite for obtaining a copy of decree or appealed from or sought to be revised shall be excluded. The learned trial Court has completely misdirected itself to say that since the proceedings were pending before the Revenue Board that period shall be excluded to file a suit. Section 3 of the Limitation Act prescribes that even when the prescribed period of limitation is not pleaded as a defence, if claim is barred by limitation, the same would be excluded. Therefore the Court can always look into those facts whether prima facie the suit was filed within law of limitation.
19) Hon'ble Supreme Court in V.M. Salgaocar and Bros. vs. Board of trustees of Port of Mormugao, (2005) 4 SCC 613 have held that even if defendant intentionally does not raise the plea of limitation, if the suit is ex-facie barred by law of limitation, court has no choice but to dismiss the same. Their Lordships have held as under:
"[20] The mandate of Section 3 of Limitation Act is that it is the duty of the court to dismiss any suit instituted after the prescribed period of limitation irrespective of the fact that limitation has not been set up as a defence. If a suit is ex-facie barred by the law of Limitation, a Court has no choice but to dismiss the same even if the defendant intentionally has not raised the plea of limitation."13
20) Applying the aforesaid principle on plain reading, we are of the view that the suit filed by the plaintiffs is barred by limitation for the reasons aforementioned and further since the possession was not claimed despite plaintiffs are not in possession and only declaratory decree similicitor was asked for, the same suit would be barred u/s 34 of the Specific Relief Act. In view of the above, the appeal is allowed. The judgment and decree of the learned court below be is set aside. Accordingly, a decree be drawn. No order as to costs.
Sd/- Sd/-
(Goutam Bhaduri) (N. K. Chandravanshi)
Judge Judge
Rao