Karnataka High Court
Shri. Jagadguru Shivanand Human ... vs Smt. Dr Sushilabai W/O Nagappa ... on 6 February, 2014
Author: N.Kumar
Bench: N.Kumar
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 2ND DAY OF AUGUST 2013
BEFORE
THE HON'BLE MR.JUSTICE N.KUMAR
RSA No.951/2002 (DEC)
Between:
Shri Jagadguru Shivanand
Human Welfare Association,
Gadag, By it's President,
Sri. Jagadaguru Nandishwarswamy
Gurushivanand Swamy Shivanandmath,
Represented by its P.A.Holder -
Sri. M.S.Mulki Patil, Age major, R/o. Hubli.
- Appellant
(By Sri. Sharad Magdum
For Sri Hemant R. Chandangoudar, Advocate)
AND:
1. Smt. Dr.Sushilabai
W/o.Nagappa Humbarawadi,
Age major, Occ.: Medical Practitioner,
R/o.: Belgaum.
2. Devendrapagouda Hanumantagouda Patil,
Age major, Occ.: Agriculture,
R/o.: Malasamudra, Tq.: Gadag.
- Respondents
(By Sri.A.C.Chakalabbi, Advocate for R1.
R2 - Abated)
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This RSA is filed under Section 100 of C.P.C.
against the judgment and decree dated 29.06.2002
passed in R.A.No.123/1999 on the file of the Civil Judge
(Sr.Dn.) & CJM, Gadag, dismissing the appeal and
confirming the Judgment and decree dated 16.07.1999
passed in O.S.No.47/1995 on the file of the Prl. Civil
Judge (Jr.Dn.), Gadag.
This appeal coming on for final hearing this day,
the Court, made the following:
JUDGMENT
This is a plaintiff's second appeal challenging the judgment and decree of the Courts below where the suit of the plaintiff is dismissed. The subject matter of the 3761/1A* suit is an open site bearing CTS No.3767/A measuring 3440 sq. yards. Situated in Makangalli which is morefully described in para no.1 of the plaint and which is hereinafter referred to as the "schedule property".
2. The plaintiff is Sri Jagadguru Shivanand Human Welfare Association, an Association registered under the Karnataka Societies Registration Act. Sri Jagadguru Nandishwar Swamy Guru Shivanand Bhat is the * Corrected vide Court Order dated 06-02-2014 Sd/-
Hon'ble NKJ :3: President of the said association. He is also the Swamiji or Mahant of Sri Jagadguru Shivanand Mutt of Gadag.
The plaintiff is the owner of the suit property. The President of the association who is also the Swamiji of Sri Shivanand Mutt could not manage the property of the plaintiff association. He appointed defendant no.2 as his power of attorney holder only to manage the properties of the plaintiff association. Accordingly, he executed a general power of attorney on 16.10.1982 in favour of defendant no.2 authorizing the defendant no.2 only to manage the properties of the plaintiff association and the mutt. He had not authorized the defendant no.2 to mortgage, sell or lease or alienate in any way, any of the properties belonging to the Mutt. Defendant no.2 without any authority and colluding with defendant no.1 leased the suit properties to defendant no.2 on a yearly rent of Rs.4,500/- per year for a period :4: of 80 years. Accordingly, defendant no.2 executed a registered lease deed on 07.06.1983 in favour of defendant no.1 and has shown that possession has been delivered to defendant no.1. The said lease transaction is illegal and void as the defendant no.2 had no authority to lease the suit property. Defendant no.1 cannot acquire any right, title or interest of any kind over the property under the lease deed.
The suit property belongs to the plaintiff association which is governed by the Administrative Council constituted under the Articles of Association, Swamiji alone has no authority to mortgage, lease or alienate in anyway any immovable properties of plaintiff association without the resolution by Administrative Council. So, Swamiji could not give any authority to defendant no.1 which Swamiji himself had no authority. Therefore, the said lease transaction is illegal and :5: invalid. Swamiji was not informed by defendant no.2 about the said transaction, it has taken place without the knowledge of Swamiji behind his back. When Swamiji came to know about the suit transaction he immediately cancelled the power of attorney given to defendant no.2 and published it in the local Kannada news paper. Defendant no.2 had done some other mortgage transactions in respect of the land bearing R.S. No.200 of Kalasapur village. Swamiji filed suits against the concerned person and defendant no.2 in O.S. No.28/84 and 29/84 in the Court of Civil Judge, Gadag. Both the suits were compromised and the possession were given back. When Swamiji came to know about the suit transaction, he issued notice dated 13.11.1983 through his Advocate to defendant no.1 by RPAD. Defendant no.1 gave a concocted reply. But subsequently, the husband of defendant no.1 approached the Swamiji and requested him not to take :6: any legal action as he would prevail upon his wife and redeliver the possession by cancelling the lease deed. But defendant no.1 and her husband went on postponing handing over possession on one pretext or the other. Subsequently, the husband of defendant no.1 died in accident and defendant no.1 has refused to hand over possession of the suit property as promised. Therefore, the plaintiff was constrained to file the suit for cancellation of the lease deed dated 07.06.1983 and for declaration that the suit lease transaction is not binding upon the plaintiff and for consequential relief of delivery of possession.
3. After service of summons, the defendant no.1 entered appearance and filed a detailed written statement contesting the claim. The formation of the Society, Swamiji being the President of the association was admitted. It is the specific case of the first :7: defendant that defendant no.2 was fully authorized by the Swamiji with the power of attorney not only to manage but also to lease out the properties for the benefit of the association and the Mutt. Swamiji was aware of the lease transaction relating to the suit property. The said transaction has taken place with the knowledge and consent of Swamiji. There were pressing demands for the recovery of the dues by Khadi and Village Industries Board, Bangalore against the plaintiffs. Recovery proceedings were also started by the said Board through the Revenue Inspector, Gadag for recovery of Rs.19,211/- as arrears of land revenue. On 13.01.1983 the District Officer, Karnatak Khadi & Village Industries, Dharwad issued notice to pay the dues. Under those circumstances, Swamiji instructed defendant no.2 to raise some finance to satisfy the dues of the said Board, whether by lease or mortgage of the properties of the plaintiff. Defendant no. 2 leased out :8: the portion of City Survey No.3761/1A, i.e., the suit property, for Rs.4,500/- per year to defendant no.1 on 07.06.1983 under the authority and with the consent and knowledge of the plaintiff-Swamiji. Accordingly, defendant no.2 executed a registered Lease Deed on 07.06.1983. Similarly, on 16.06.1983 defendant no.2 leased out some other property belonging to plaintiff in favour of Chandrappa B. Humbannawarof Hosur for Rs.100/- per year under the authority and consent of Swamiji. These two transactions are made by defendant no.2 for the purpose of discharge of the pressing demands of the Khadi Board and Village Industries Board. Plaintiff is aware of these two transactions and discharge of outstanding dues of the Khadi Board out of the rentals collected from the said lessees. All these transactions are legal and valid and are binding on the plaintiff. Defendant no.2 was competent to lease out the property to defendant no.1 which was for the benefit :9: of the plaintiff and also for the legal necessity. The lease amount was utilized by defendant no.2 for the payment of the outstanding dues of Khadi and Village Industries Board and Swamiji is aware of it. The name of defendant no.1 entered in the C.T.S. records of the suit property in pursuance of the registered Lease Deed. Defendant no.1 is in the lawful possession of the suit property as the lessee since the date of lease transaction. Now after the lapse of about twelve years the plaintiff Swamiji is disputing the authority of defendant no.2 for leasing out the suit property in favour of defendant no.1. Swamiji has raised the dispute at the instance of some people who are interested to purchase the suit property. Plaintiff is estopped from disputing or challenging the suit lease transaction or the leasehold right acquired by defendant no.1. The alleged Administrative Council was not in existence at the time of suit lease transaction. Swamiji : 10 : was competent to authorize defendant no.2 to lease out the property to the plaintiff association by executing the General Power of Attorney to defendant no.2. It is not true to say that Swamiji could not give any authority to defendant no.2. The lease transaction is quite legal, valid and binding on the plaintiff and has been executed with the knowledge and consent of the Swamiji. The very fact that Swamiji has not taken any action for about more than 11 years after the issuance of the said notice goes to show the want of bonafides of the plaintiff in filing a false suit. The plaintiff has chosen the unfortunate situation of the death of the defendant no.1 and pleads the alleged assurance given by her late husband to shield the delay in filing this suit. It is only after the death of the husband of defendant no.1, this suit is filed on the false allegations. The suit of the plaintiff is barred by time since the suit is not filed within three years from the date of the lease deed. : 11 : Therefore, the defendant no.1 sought dismissal of the suit.
4. Defendant no.2 also filed a detailed written statement. He contended that it is false to contend that defendant no.2 was not authorized either to mortgage, sell, lease or alienate in any way of the properties belonging to the plaintiff Association or the Mutt. In the deed of power of attorney, Swamiji has specifically authorized the defendant no.2 to manage and also to lease the properties. Defendant no.2 has never colluded with defendant no.1. On 04.09.1982, the Revenue Inspector, Gadag, has issued notice to plaintiff for recovery of Rs.19,211/- to be paid to the Karnataka Khadi and Village Industries Board, Bangalore as arrears of land revenue. Similarly, on 13.01.1983 the District Officer, Karnataka Khadi and Village Industries, Dharwad, issued notice to plaintiff to pay the dues. : 12 : Then the Swamiji instructed the defendant no.2 to make arrangement to satisfy the dues of Karnataka Khadi and Village Industries as early as possible even leasing some of the properties of plaintiff, etc. The defendant no.2 on 07.06.1983 with consent and knowledge and with authority of Swamiji has leased the some portion of City Survey No. 3761/1A, i.e., suit property for Rs.4,500/- per year on behalf of plaintiff as general power of attorney holder of plaintiff to defendant no.1 for 80 years and accordingly executed a registered Lease Deed. Similarly on 16.06.1983 with the consent and knowledge of the plaintiff, leased some other property belonging to plaintiff in favour of Chandrappa Basavantappa Hombannavar of Hosur, Taluk Gadag for Rs.100/- per year for 80 years and accordingly executed a Registered Sale Deed. These two transactions are made for the purpose of discharging the pressing demands of said Karnadaka Khadi and Village : 13 : Industries. Defendant no.2 sent D.D. no. 314290 dated 29.06.1983 for Rs.18,554.23 to the Accounts Officer, Karnataka State Khadi and Village Industries Board with the covering letter dated 30.06.1983. Plaintiff is aware of this fact and that is why the plaintiff did not raise any voice for these acts of defendant no.2 till 24.07.1991. Defendant no.2 was competent to enter into the said transactions and therefore it is legal and valid. It is not correct to state that Swamiji was not informed about the said transaction. The name of defendant no.1 came to be entered in the City Survey Records of suit property and Swamiji is aware of this suit and has never objected for the entry. The plaintiff had filed a suit O.S. No.257/1991 in this Court against the defendant and against said Chandrappa Basatappa Hombannavar challenging the lease transaction of property of plaintiff by this defendant in favour of said Chandrappa B. Hombannavar. This defendant has filed : 14 : his written statement and the suit is pending. Therefore the suit is hit by principles of Order 2 Rule 2 of Civil Procedure Code. The alleged Administrative Council was not in existence then. Swamiji was fully competent to authorize this defendant to lease the properties by executing general power of attorney in favour of defendant no.2. Defendant no.2 has sent a suitable reply to the notice of plaintiff in the newspaper. The action of the defendant no.2 is bonafide and done to save the mortgaged property. Therefore, he also sought for dismissal of the suit.
5. On the aforesaid pleadings, the trial Court framed the following issues:
1. Whether the plaintiff proves that it is registered under Karnataka Societies Registration Act and Nandishwar Swamy is its President?
2. Whether the plaintiff proves that Nandishwar Swamy had no authority to mortgage, lease or alienate in any way any of the immovable properties of the plaintiff-: 15 :
Association as contended at para 5 of the plaint?
3. Whether the plaintiff further proves that Nandishwar Swamy had appointed the defendant No.2 as his power of attorney only to manage the properties of the plaintiff-Association and Sri.Shivanandmath and the defendant No.2 had no authority either to mortgage, sell, lease or alienate in any way any of the properties of the plaintiff-Association?
4. Whether the plaintiff further proves that the defendant No.2 had no authority to enter into the suit lease transaction with the defendant No.1?
5. Whether the plaintiff further proves that the suit lease transaction between the defendant No.2 and the defendant No.1 took place without the knowledge and behind the back of Nandishwamy President of the plaintiff-Association?
6. Whether the defendant No.2 proves that this suit is hit by the provisions of Order 2 Rule 2 of CPC?
7. Whether the defendants prove that this suit is barred by time?
8. Whether the plaintiff is entitled to the reliefs sought?
9. What order or decree?
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6. The trial Court on appreciation of the oral and documentary evidence on record held that the plaintiff is an Association registered under the Karnataka Societies Registration Act. Further it held that the plaintiff - Society has miserably failed to prove that defendant No.2 has no authority to alienate the suit schedule property in any manner. On the other hand, the material on record shows that he was duly authorised to alienate the property. It was also held that plaintiff-Swamiji has authority to mortgage or lease the schedule property and the plaintiff-Swamiji has appointed defendant No.2 to do all the things on his behalf. It held that the suit is not hit by Order 2 Rule of CPC. The suit is not barred by law of limitation as contended by the defendants and therefore, it dismissed the suit of the plaintiff.
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7. Aggrieved by the said judgment and decree of the trial Court, the plaintiff preferred a Regular Appeal. In the Regular Appeal the lower appellate Court framed the following points for consideration.
1. Whether the appellant/plaintiff-Association has proves that respondent No.2 had no authority to alienate, mortgage or lease out the properties, as such lease deed dated 07.06.1993 executed by respondent No.2 in favour of respondent No.1 is illegal and void?
2. Whether the appellant/plaintiff proves that the Swamiji himself had no authority to mortgage, lease out or alienate the suit property. Therefore, he had no right to give any authority to alienate mortgage or lease out the suit property to respondent No.1, and as such lease deed executed by respondent No.2 in favour of respondent No.1 is not binding on the plaintiff-association?
3. Whether the suit is barred by time?
4. Whether the trail Court committed any error in holding that suit of the appellant/plaintiff is in time?
5. Whether the judgment and decree passed by the trail Court are liable to be interfered with?
6. What order or decree?
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8. The lower appellate Court on appreciation of the aforesaid oral and documentary evidence on record held that as the plaintiff has come to the Court seeking a declaration that the lease deed executed is not binding on them and it is executed by the power of attorney holder without the authority and even the president of the Association had no authority to sell the property, they ought to have produced a copy of power of attorney, which they have not done. They have not called upon the 2nd defendant to produce the power of attorney. In those circumstances, they have not discharged the burden placed on them, as such in the light of the material on record, the finding recorded by the trial Court that the 2nd defendant was duly authorised to execute the sale deed cannot be found fault with.
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9. On the question of limitation, it held that it is the Article 59 of the Limitation Act, which is applicable and not Article 65 and therefore, the suit of the plaintiff is barred by time. Therefore, it dismissed the appeal. Aggrieved by these two judgments and decrees, the plaintiff is in second appeal.
10. The appeal came to be admitted on 13.02.2003 to consider the following substantial questions of law:
1. Whether the suit is governed by Article 59 or 65 of the Limitation Act?"
11. In addition to that yet another issue which would arise for consideration as it is clear from the appeal memorandum is "Whether the finding of the Courts below that whether the registered lease deed is a valid one having regard to the fact that the President had no authority to alienate : 20 : and consequently he could not have authorised by GPA i.e., 2nd defendant to alienate the property."
12. The learned counsel appearing for the appellant assailing the impugned judgment and decree of the Courts below contended that from the material on record, it is not in dispute that the schedule property belongs to the Association. The Memorandum of Association and the Articles of Association clearly provides that the affairs of the association shall be managed by the Administrative Council members consisting of President, Vice-President, General Secretary, Treasurer and three other members. The right of the property of the association shall be vested with the council and therefore, the President of the association who is also the Mathadhipathi alone has no right to alienate the property and if he has executed a power of attorney to manage the property, the power of : 21 : attorney holder cannot alienate the property. Even if in the power of attorney the power to alienate is conferred, as Mathadhipati himself had no power to alienate, the power of attorney holder could not have alienated the property. Therefore, when admittedly, it is power of attorney holder of the Swamiji namely the 2nd defendant, who executed the lease deed leasing the property and getting it registered, the said lease deed is one without authority and void ab-initio, it confers no right on 1st defendant. The Courts below committed serious error in relying on the terms of Ex.P2, the power of attorney. executed by the Swamiji in favour of the present power of attorney holder and to conclude the similar powers were conferred on 2nd defendant and therefore, the alienation is valid and legal. The findings recorded by the Courts below are contrary to the legal evidence, based on assumptions and therefore it is perverse and requires to be set aside, notwithstanding : 22 : the fact that both the Courts below have concurrently held that the lease deed executed is valid one. Secondly, he contended that if the lease deed executed is without the authority then it is void ab-initio. Admittedly, the suit property belongs to the Association. In law, a void document is non est, there was no necessity to seek a declaration that it is void. Though such a declaration is sought but the main relief sought is recovery of the possession. The suit is one for possession based on title and therefore, the lower appellate Court committed a serious error in holding that the suit is barred by time and the appropriate Article applicable is Article 59 and not Article 65 and therefore, he submits that a case for interference is made out.
13. Per contra, the learned counsel appearing for the defendants-respondents submitted that the question whether the lease deed executed is valid one or not is : 23 : purely a question of fact. When two fact finding authorities have concurrently held that it is valid in second appeal, the High Court should not interfere with the said finding of fact under Section100 of CPC. Secondly, he contended that the plaintiff was in possession of all the documents such as books, copies of the resolutions, power of attorney and all other documents, which are not produced before the Court. Admittedly, no committee is constituted. In the absence of the committee, the President of the Association who is also Mathadhipathi has the power to alienate the property. He has authorised the power of attorney holder, the 2nd defendant to alienate the property. The facts disclose that a notice is issued to the Association to recover the money. As the association had no money, the 2nd defendant was authorised to raise funds from the property of the Math. It is in this background, the lease deed came to be executed and the amounts due to : 24 : the Karnataka Khadi Gramodyog were fully discharged and therefore, it is too late in the day for the plaintiff to contend that the Swamiji had no authority and the power of attorney was executed only to manage and not to alienate the property. Both the Courts have concurrently on appreciation of the evidence on record, have negatived the said contentions, which is based on legal evidence. Therefore, no case for interference is made out. He further contended that once the plaintiff seeks cancellation of the lease deed, even if it is void, then it is only after such cancellation, he is entitled to seek possession and therefore, it is Article 59, which is attracted and not Article 65 as contended. Therefore, the finding recorded by the lower appellate Court that the appeal is barred by time, do not call for any interference.
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14. In the light of the aforesaid facts and rival contentions, the substantial questions of law, requires to be answered.
15. The schedule property belongs to the Association. The President of the Association is the Swamiji, who is the member of the Association as well as Mathadhipathi i.e., the head of the Math. The Articles of Association, Memorandum of Association and Regulations are produced at Ex.P3. The word "Administrative Council"
has been defined, it reads as under:
"The Administrative Council constituted under the provisions of the Memorandum of the Association and the governing body of the association."
The administrative council consists of seven members including the Swamiji. It provides for one President, one Vice-President, one General Secretary, one Treasurer and three members. The General Secretary shall be the executive head of the Association. The administrative : 26 : council may constitute one or more sub-committee to perform duties to be delegated from time to time by the administrative council. All administrative and executive powers vest in the administrative council. The administrative council has powers to frame and amend or rescind, delete any extra rules of Memorandum of Association.
"Clause-16 deals with Management, which reads as under:
"The affairs of the Association shall be managed by the Administrative Council members consisting of:
a) President,
b) Vice President,
c) General Secretary,
d) Treasurer,
e) Three other members
Clause 17 reads as under:
"The president of the Administrative Council of the Association shall always be His Holiness, the Swamiji of Sri.Jagadguru Shivanand Swamimath, Gadag or a nominee of His Holiness is a minor, the guardian of His Holiness until the Swamiji completes 21 years of age.": 27 :
Clause 24 reads as under:
"The rights of properties of the Association shall be vested in the Council."
Clause 25 reads as under:
"The President may constitute a sub- committee for looking after the day to day management of any institution under its control and management. The governing body shall frame rules and by-laws from time to time and amend them whenever necessary for the further guidance of the Committee.
Clause 27 reads as under:
"The Council shall have its seal, which shall be in the custody of the President or such member of the Council whom the President nominates seal shall be used for such purposes as the Council may determine from time to time.
16. From aforesaid provisions, it is clear that the properties of the Association shall be vested in the council, the affairs of the association shall be managed by the administrative council. The council shall have its seal, which shall be in the custody of the President. The President may constitute sub-committee for looking after the day-to-day management of the institutions : 28 : under its control and management. The administrative council may constitute one or more sub committee to perform duties to be delegated from time to time by the Administrative Council and therefore it is clear that the President of the Association has no power to act on behalf of the association in the matter relating to the properties. No power is conferred on the President of the association to alienate the property. In fact, the President is authorized to constitute a committee to manage the affairs. There is no provision in the entire scheme of the Memorandum and Articles of association for the President to appoint the power of attorney holder for managing the properties of the association. It is the specific case of the 1st defendant that no such committee was constituted, no such administrative council was constituted. In the absence of any such council, the President had no authority to alienate the : 29 : property, for which he has executed the power of attorney.
17. A reading of Ex.P3 do not support the said arguments. But one thing is clear , the 1st defendant was aware of the constitution and working of the association before taking the property on lease. Even otherwise, caveat-emptor. If such an Administrative Council had not been formed and in the absence of any specific provisions empowering the President to alienate the property, the 1st defendant was put on notice. They ought not to have entered into any contract through a power of attorney holder of the Swamiji and therefore, the contention that the President had the authority to alienate the property and the plaintiff has failed to produce any documentary evidence to showing want of authority is without any substance. A party to the litigation is expected to prove a positive act and the : 30 : plaintiff cannot be asked to prove a negative. When it is the specific case that the President had no authority, they have produced Ex.P3. Ex.P3, does not disclose any such authority empowering the President to alienate and therefore, they have discharged the burden, which is placed on them in law. The power of attorney executed by the President in favour of the 2nd defendant is not forthcoming. The case of the plaintiff is that the said power of attorney was in possession of the 2nd defendant. The 2nd defendant has filed written statement contending that under the power of attorney, he has been duly authorised to alienate and therefore, the lease deed executed by him in favour of the 1st defendant is valid. It is not his case that he is not in possession of the lease deed. He says it has been returned to the Swamiji. Therefore, when the 1st defendant took this property under a registered lease deed, when the 1st defendant was aware that the : 31 : Administrative Council is not constituted, and it is the President, who has executed the power of attorney in favour of the 2nd defendant to execute the lease deed, she should have insisted on handing over of that power of attorney. Assuming that the said power of attorney was required for other purposes, at least, he should have had a copy of the said document for his records. It is not her case that such a power of attorney was furnished and she has lost it. The 2nd defendant, who was authorised to manage the property, when he has alienated the property in excess of the authority conferred on him, cannot be expected to speak the truth in the Court and produce a document, which did not confer such right on him. Therefore, he has conveniently stated that the said document has been returned to the Swamiji, he has also not kept a copy and has not produced the same. If really, Swamiji was in possession of the said document, there is no reason : 32 : why he could not have produced it. Therefore, the power of attorney on which the defendants rely on has not seen the light of the day. If only that power of attorney had seen the light of the day, it would have shown whether it authorised the 2nd defendant to alienate or was it given only for the purpose of management. In the light of the stand taken by the plaintiff, that the President had no authority to alienate the power of attorney goes to background. The power of attorney or no power of attorney, whether the power was conferred to manage or to alienate, the President was not empowered to alienate, which fact they have established by acceptable evidence.
18. Unfortunately, both the Courts below proceeded on the assumption that when the President has executed, one more power of attorney in favour of the present power of attorney holder, who has deposed in : 33 : this case as PW1 as per Ex.P2, they proceeded on the assumption that it is replica of the power of attorney executed in favour of the 2nd defendant. An inference, which is without any basis. On that basis they proceeded to record a finding as Ex.P2, authorises the power of attorney holder to alienate, the power of attorney executed in favour of the 2nd defendant also authorises him to alienate. The crux of the matter was whether the President had the power to alienate and whether that power is conferred on the 2nd defendant, that point is clearly missed. Therefore, the finding recorded by the Courts below that the lease deed executed by the 2nd defendant in favour of the plaintiff is validly executed and that the President had the authority to alienate and that power is also conferred on the 2nd defendant is not based on any legal evidence on record. On the contrary, it runs counter to Ex.P3 and in particular the clauses, which are set out above. Though : 34 : both the Courts have concurrently recorded a finding, as the said finding is based on no evidence, it is a finding which could be characterized as perverse and therefore, the said finding requires to be interfered with.
19. In support of his contentions that the concurrent finding of fact cannot be interfered with by this Court, reliance is placed on the judgment of the Apex Court in the case of GURDEV KAUR & ORS. VS. KAKI & ORS. reported in AIR 2006 SUPREME COURT 1975. In the aforesaid judgment all that has been laid down is the High Court would be justified in admitting the second appeal only when a substantial question of law is involved. It should precisely state what those substantial questions of law are and the appeal is to be heard only on such substantial questions of law.
20. In the Instant case, the appellant has raised two substantial questions of law. The appeal was admitted : 35 : to consider one substantial question of law. It is not disputed by either of the parties, at the time of hearing that the other question formulated in the appeal memorandum would also arise for consideration. Therefore, the second substantial question of law is also framed. So, it is on these two substantial questions of law, the appeal is heard and therefore the requirement prescribed by the Apex Court in the said judgment is fully complied with.
21. Now it is equally settled, when a finding is recorded without any material on record, ignoring a material on record or misinterpreting the documentary evidence on record, a substantial question of law do arise for consideration. Merely because two Courts below have concurrently held that a particular fact is proved and both the Courts have committed the very same mistake, which give rise to a substantial questions : 36 : of law, then it would be the duty of the High Court to interfere with the said concurrent finding of fact under Section 100 of C.P.C. and remedy the injustice done by the said concurrent finding of fact. Ex.P3 is an undisputed document, the defendant has seen the document before entering into the transaction. In spite of it the 2nd defendant has entered into a transaction. When such power of attorney holder and the person who executed the power of attorney had no authority, then ignoring these undisputed facts, which is borne out from the documentary evidence on record, still if a finding is recorded that there was authority, there was valid execution of a power of attorney and consequently the document executed by the power of attorney creates interest in the immovable property by way of lease, it is a perverse finding and therefore, the said concurrent finding requires to be set aside.
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22. The question of limitation solely revolves round the interpretation to be placed on Article 59 and Article
65. Article 59 reads as under:
Description of Suit Period of Time from which period limitation begins to run PART IV - SUITS RELATING TO DECREES AND INSTRUMENTS
59. To cancel or set aside Three When the facts entitling an instrument or years the plaintiff to have the decree or for the instrument or decree rescission of a cancelled or set aside or contract. the contract rescinded first becomes known to him.
23. As it is clear from the aforesaid provisions, it deals with the cancellation of an instrument, the cancellation of instrument is dealt with under Section 31 of the Specific Relief Act, 1963, it reads as under:
"31. When cancellation may be ordered.- (1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court : 38 : may, in its discretion, so adjudge it and order it to be delivered up and cancelled.
(2) If the instrument has been registered under the Indian Registration Act, 1908 (16 of 1908), the Court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation."
24. A reading of the aforesaid provision makes it clear that the suit for cancellation could be filed both in respect of an instrument, which is void or voidable.
25. The Apex Court in the case of PREM SINGH AND OTHERS VS. BIRBAL AND OTHERS reported in (2006)5 SUPREME COURT CASES 353, dealing with the difference between a valid, void or violable instrument has held as under:
"15. Section 31 of the Specific Relief Act, 1963 thus, refers to both void and voidable document. It provides for a discretionary relief.
16. When a document is valid, no question arises of its cancellation. When a : 39 : document is void ab initio, a decree for setting aside the same would not be necessary as the same is non-est in the eye of law, as it would be a nullity.
17. Once, however, a suit is filed by a plaintiff for cancellation of a transaction, it would be governed by Article 59. Even if Article 59 is not attracted, the residuary Article would be.
18. Article 59 would be attracted when coercion, undue influence, misappropriation or fraud which the plaintiff asserts is required to be proved. Article 59 would apply to the case of such instruments. It would, therefore, apply where a document is prima facie valid. It would not apply only to instruments which are presumptively invalid. [See Unni vs. Kunchi Amma and Sheo Shankar Gir vs. Ram Shewak Chowdhri].
19. It is not in dispute that by reason of Article 59 of the Limitation Act, the scope has been enlarged from old Article 91 of 1908 Act. By reason of Article 59, the provisions contained in Articles 91 and 114 of 1908 Act had been combined.
20. If the plaintiff is in possession of a property, he may file a suit for declaration that the deed is not binding upon him but if he is not in possession thereof, even under a void transaction, the right by way of adverse possession may be claimed. Thus, it is not correct to contend that the provisions of the Limitation Act would have no application at all in the event the transaction is held to be void.: 40 :
26. From the aforesaid judgment of the Apex Court, it is clear that if a document is void ab initio, a decree for setting aside the same would not be necessary as the same is non-est in the eye of law, as it would be a nullity. If a claim is based solely on the document, which is void and a declaration is sought, then Article 59 is attracted. But if the claim is not based on the said instrument, the claim is based independent of that instrument and the plaintiff is entitled to the relief on the basis of such independent title and because of the existence of this void document, he also seeks cancellation of the same, then the limitation is to be calculated on the independent claim, which he has put forth and not in respect of the instrument, which is sought to be cancelled.
27. In this context, the Apex Court in the case of STATE OF MAHARASHTRA VS. PRAVIN JETHALAL : 41 : KAMDAR (DEAD) BY LRS. reported in (2000) 3 Supreme Court Cases 460, held as under in para 4 and 5:
"4. Article 58 of the Limitation Act, 1963, prescribes limitation of three years from the date when the right to sue first accrues to obtain a declaration. Under Article 65, the period of limitation prescribed for filing a suit for possession of immovable property or any interest therein based on title is 12 years from the date when possession of the defendants becomes adverse to the plaintiff. The contention urged on behalf of the State Government was that Article 58 of the Limitation Act was applicable as the plaintiff had sought declaration about the invalidity of the order dated 26th May, 1976 and sale deed dated 23rd August, 1976 and that the period of limitation of three years had to be computed from 26th May, 1976 and, therefore, the suit filed on 22nd August, 1988 was hopelessly barred by time. This contention was rejected by the High Court as also by the trial court. The contention urged on behalf of the plaintiff and which has been accepted is that the suit is basically for possession of the property based upon title and the sale deed dated 23rd August, 1976 and the order dated 26th May, 1976 being void ab initio and without jurisdiction, a plea about its invalidity can be raised in any proceedings and it is not necessary to claim any declaration and thus Article 65 which deals with suit for possession based on title would be applicable from the date, the possession of the defendant becomes adverse to the plaintiff. The High Court held that in view of the order and the sale deed being null and void and without jurisdiction, the same have no existence in the : 42 : eyes of law and the plea about invalidity of these documents can be raised in any proceedings and no separate declaration is necessary to be sought. It held that the suit for possession would be governed by Article 65 of the Limitation Act, 1963. It was further held that a suit is within time even from the date when the possession of the suit property was taken on the execution of the sale deed on 23rd August, 1976.
5. As already noticed, in Bhim Singhji's case (supra), Section 27(1) insofar as it imposes a restriction on transfer of any urban or urbanisable land with a building or a portion of such building, which is within the ceiling area, has been held to be invalid. Thus, it has not been and cannot be disputed that the order dated 26th May, 1976, was without jurisdiction and nullity. Consequently, sale deed executed pursuant to the said order would also be a nullity. It was not necessary to seek a declaration about the invalidity of the said order and the sale deed. The fact of plaintiff having sought such a declaration is of no consequence. When possession has been taken by the appellants pursuant to void documents, Article 65 of the Limitation Act will apply and the limitation to file the suit would be 12 years. When these documents are null and void, ignoring them a suit for possession simpliciter could be filed and in the course of the suit it could be contended that these documents are nullity. In Ajudh Raj and Ors. v. Moti S/o Mussadi [(1991) 3 SCC 136] this Court said that if the order has been passed without jurisdiction, the same can be ignored as nullity, that is, non- existent in the eyes of law and is not necessary to set it aside; and such a suit will be governed by Article 65 of the Limitation Act. The contention : 43 : that the suit was time barred has no merit. The suit has been rightly held to have been filed within the period prescribed by the Limitation Act."
28. From the aforesaid judgment it is clear that the plaintiff is claiming possession of the property, on the basis that the plaintiff is owner, which is not in disputed. Under the registered lease deed, a person, who had no authority had put the 1st defendant in possession, that possession is not authorised. Therefore, the plaintiff as a plaintiff as the owner wants to recover the possession from the un-authorised occupant. However, a lease deed has come into existence purported create some right in the 2nd defendant, which is within the knowledge of the plaintiff. Therefore, in the plaint not only they have pleaded the existence of the said document. They have also contended that the said document is void, non-est in the eye of law and the said document is a registered : 44 : document. They want its cancellation, but the relief of possession is not dependent on the cancellation of the said document. Even without cancellation of the said document, as the said document is executed by a person without the authority, it is a nullity, it is a void ab-initio. The relief of possession with the plaintiff is granted is based on his title and ownership over the property. The plaintiff is only explaining under what circumstance the 1st defendant get into possession. Therefore, to succeed in the suit for possession, which is based on title, this lease deed is of no consequence as it is void and ab-inito. The plaintiff also wants to get rid of the document so that the public at large are not misguided in future by existence of the said document. Therefore, as held by the Apex Court in the aforesaid judgment as the relief of possession is based on title and not based on the cancellation of the lease deed, the correct Article applicable is 65 and not Article 59. The : 45 : suit having been filed within 12 years, it is in time. Therefore, the finding recorded by the lower appellate Court, the suit is barred by time is illegal and requires to be set aside.
For the aforesaid reasons, I pass the following:
ORDER
(i) The appeal is allowed.
(ii) The judgment and decree of the Courts below are set aside.
(iii) The plaintiff's suit is decreed as prayed for.
(iv) Parties to bear their own costs.
Sd/-
JUDGE
Bvv/Vnp*
: 46 :
NKJ:
R.S.A. No.951/2002
06.02.2014
Order on I.A.No.1/2014
This application is filed for correction of a typographical error, which has crept in, in mentioning the property number. In para 1 of the judgment, the property number is given as CTS No.3767/A. The correct property number is CTS No.3761/1A. Obviously, it is a typographical error which needs to be corrected.
Hence, the application is allowed.
Office is directed to carryout necessary corrections.
Sd/-
JUDGE Kms