Patna High Court
Bilat Das And Ors. vs Babuji Das on 20 February, 1981
Equivalent citations: AIR1981PAT219, 1981(29)BLJR556, AIR 1981 PATNA 219, (1981) BLJ 417 1981 BLJR 556, 1981 BLJR 556
JUDGMENT Chaudhary Sia Saran Sinha, J.
1. This second appeal by the defendants-appellants against the judgment of reversal can be disposed of on a short point, namely, whether the suit instituted by the plaintiff-respondent is barred by limitation.
2. The plaintiff owned certain lands. The defendant No. 1 negotiated for purchase of this land. The plaintiff agreed to convey the same for a consideration of Rs. 400/-. The sale deed (Exhibit 3) dated 3-5-1960, was executed by the plaintiff with respect to that land. Plaintiff alleged that the consideration money of this deed was not paid to him. This led him to cancel that deed by executing a deed of cancellation (Exhibit-4) dated 20-9-1962. It appears that defendant No. 1 did not give up possession. This led to a proceeding under the Code of Criminal Procedure, which was ultimately decided in favour of defendant No. 1. It was in these circumstances that the plaintiff instituted the instant suit on 2-6-1965 for the following reliefs:
(a) It may be declared that the sale deed dated 3-5-1960, executed by the plaintiff in favour of defendant No. 1 is an illegal document and without consideration and that defendant has acquired no title to the land conveyed therein,
(b) It may be declared that the sale deed dated 3-5-60 is a bad and inoperative document not binding on the plaintiff and it has not resulted in depriving the plaintiff of his title to the suit land nor can entitle the defendants to claim title to the same.
(c) The Court may be pleased to cancel the sale deed and declare that the plaintiff is entitled to confirmation of possession over the land in suit,
(d) The defendant No. 1 may be allowed time to vacate the possession of the land and failing that possession thereon may be delivered to the plaintiff in accordance with law.
3. Defendant No. 1 contested the suit alleging, inter alia, that the impugned sale deed was executed for consideration and conferred absolute title on him.
4. The trial Court held that no consideration money was paid for the sale deed (Exhibit-3) and consequently no title to the land conveyed thereunder passed to defendant No. 1. But the suit was dismissed by the trial Court on the ground that Article 59 of the Limitation Act, 1963, would apply, which prescribed a period of three years as limitation to cancel or set aside any instrument or decree or for the rescission of a contract. Limitation of three years starts running, when the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him. This resulted in the dismissal of the suit by the trial Court,
5. The plaintiff carried the matter in appeal. The lower appellate Court agreed with the finding of the trial Court that no consideration was paid for the sale deed. The lower appellate Court, therefore, held the sale deed (Exhibit-3) to be a void document. The lower appellate Court was, however, of the view that Article 113 of the Limitation Act applied to the case and as such with the aid of provision of Section 30 (a) of that Act, the plaintiff's suit was in time. It accordingly allowed the appeal, set aside the judgment and decree of the trial court and decreed the plaintiff's suit. The defendants have now come to this Court in this second appeal.
6. The only contention raised by the learned counsel for the appellants was that the appropriate article applicable to the instant case was Article 59 of the Limitation Act, 1963. The plaintiff was the executant of the sale deed (Exhibit 3) dated 3-5-1960 and he was thus fully aware of the contents thereof and as such the period for limitation of three years as prescribed under Article 59 expired long before the suit was filed on 2-6-1965. This contention was resisted by the learned counsel for the respondent.
7. According to the case made out in the plaint, title to the land, conveyed under the sale-deed, was to pass only on payment of the full consideration money thereof within one month of the date of execution of the sale deed. This consideration money, as concurrently found by the two courts below, was not paid to the plaintiff. The plaintiff, therefore, cancelled that sale deed by executing a deed of cancellation (Exhibit 4). The facts, entitling the plaintiff to have the sale deed (Exhibit-31 cancelled or set aside, became known to him within a month of the date of execution of the sale deed dated 3-5-1960. The main relief, claimed by the plaintiff in the suit, is a relief for cancelling or setting aside the sale deed (Exhibit-3). The other reliefs, sought for by him, referred to above, merely flow from the main relief and are ancillary and consequential to the same. The lower appellate court, under misapprehension of the law of limitation, has taken a contrary view on the ground that one of the reliefs claimed was also for confirmation of possession and in the alternative recovery of possession and as such 12 years limitation shall apply. The instant suit is not a suit for possession of immovable properties, to which the limitation of twelve years is applicable. The immovable property could not have been recovered until the deed of sale had been set aside and it was necessary to bring a suit to set aside the deed. The facts and circumstances of the case take away the case from the purview of the provisions prescribing either 12 years limitation or the limitation prescribed in the residuary Article 113 of' the Limitation Act. The Limitation Act is intended to provide a time limit for all suits conceivable and, therefore, omnibus provision has been made in Article 113 to cover up cases, which are not covered by specific articles provided in the Act. Before applying this residuary article, the court has to be satisfied that no other article is applicable. The aid of the residuary article 113 cannot be invoked if by a reasonable consideration any other article would apply. The reliefs claimed by the plaintiff in the instant suit clearly brings the case within the purview of Article 59 of the Limitation Act, 1963 and that being so the suit will be barred by limitation. The approach of the lower appellate court is totally erroneous and imaginary. The contention raised on behalf of the appellants is thus sound and must prevail.
8. The result is that the appeal is allowed. The judgment and decree of the "lower appellate court are set aside and as held by the trial court, the suit stands dismissed on the ground of limitation. In the facts and circumstances of the case, however, there will be no order as to costs and the parties are directed to bear their own cost of this second appeal.