Orissa High Court
Bivas Chandra Samanta vs Hira @ Madan Mohan Biswal And Ors. on 16 September, 2005
Equivalent citations: AIR2006ORI1, 2005(II)OLR666, AIR 2006 ORISSA 1, 2006 (1) AJHAR (NOC) 140 (ORI), 2006 (3) AKAR (NOC) 360 (ORI), 2006 A I H C 711, (2005) 2 ORISSA LR 666, (2006) 2 CIVLJ 838, (2005) 4 CURCC 492
Author: L. Mohapatra
Bench: L. Mohapatra
JUDGMENT L. Mohapatra, J.
1. Defendant No. 1 is the appellant before this Court against a confirming judgment.
2. The plaintiff-respondent No. 1 filed a suit for declaration that the sale deed dated 28.7.1987 executed by the Defendant No. 2 in favour of the Defendant No. 1 (appellant) in respect of an area measuring 63 decimals pertaining to Plot No. 408 under Khata No. 20 of Mouza Raghunathpur is invalid and not binding and for further declaration that the plaintiff-respondent No. 2 along with their co-sharers have right, title and interest over the suit property and for permanent injunction.
3. The case of the plaintiff-respondent No. 1 is that defendant No. 2 is his mother and defendants 3 to 39 are the co-sharers. Defendant No. 1-appellant is a permanent resident of Jeypore in the district of Koraput and was working in a Tusser Society at Harichandanpur, which is adjacent to village of the plaintiff and defendants 2 to 39. The plaintiff was working as a peon in the said Society. Defendant No. 1 was staying in the house of the plaintiff as a paying guest. Defendant No. 1 was transferred to Bhubaneswar and again he was transferred to Koraput. Even after transfer, defendant No. 1 continued to have relationship with the family of the plaintiff and stopped coming to the house of the plaintiff from February, 1993. While defendant No. 1 was transferred from Harichandanpur, he engaged the brother-in-law of the plaintiff to watch the house and some time in the month of April, 1993 defendant No. 1 threatened the other tenants to vacate the house claiming ownership over the same on the strength of a sale-deed. On inquiry, the plaintiff Came to learn that the defendant No. 1 had obtained sale deed from defendant No. 2. On further inquiry, it was ascertained that defendant No. 2 accompanied defendant No. 1 to Keonjhar for her medical treatment about five to six years back. Defendant No. 1 had taken her to Court on the pretext of receiving a sale-deed executed by one Jadumani in favour of the plaintiff in the year 1987 from the Sub-Registrar's Office. Having come to know that the defendant No. 1 fraudulently got the sale deed executed from defendant No. 2, the plaintiff obtained a certified copy thereof and filed the suit for relief claimed. Defendant No. 1, who is the appellant before this Court contested the suit by filing a written statement and challenged the maintainability of the suit on the ground of limitation as well as other formal grounds. Apart from denying the allegation made in the plaint, his specific case is that in the year 1993, he was working as Production Officer in the Department of Textile and Handloom and was posted in the district of Koraput. There was a negotiation for transfer of the suit land in presence of the plaintiff and consideration money of Rs. 4000/- was paid to defendant No. 2 in presence of the plaintiff and his brother-in-law P.K. Parida and one Raj Kishore Sahu of Singhbilla. After payment of the consideration money, he took possession of the suit land and constructed a house thereon in the year 1989. The construction was completed in the year 1992 and on 24.3.1993 he performed the ceremony of Gruhaparbesh. The tile-roof building constructed by the defendant No. 1 for storing the building materials was allowed to be kept by the plaintiff and when request was made to vacate the same, the suit has been filed. According to the defendant No. 1-appellant, the defendant No. 2-respondent being the Karta of the family, had executed the sale deed for legal necessity within the knowledge of the plaintiff and his sister after receipt of the consideration money and understanding the effect of sale.
4. On the pleadings of the parties, the trial Court framed six issues. Issue No. 4 relates to validity of the sale deed dated 28.7.87 executed by the defendant No. 2 in favour of the defendant No. 1. On assessment of evidence adduced before the Court, the trial Court held that the defendant No. 1 failed to establish that the defendant No. 2 consciously executed the sale deed after understanding the contents and that there was any legal necessity for transfer of the suit land by defendant No. 2. In this regard, the trial Court held that there is no proof of payment of consideration or delivery of possession and there being no evidence in respect of earlier partition, the execution of the sale deed by defendant No. 2 cannot be said to be in the capacity of Karta of the family for legal necessity.
Issue No. 5 relates to the question as to whether the defendant No. 2 is in possession of suit land by constructing a house. On assessment of the evidence, the trial Court also answered the issue in favour of the plaintiff.
Issue No. 2, which relates to question of the limitation, was not pressed and accordingly the trial Court did not answer the said issue. On the above findings, the trial Court decreed the suit. Challenging the aforesaid judgment and decree of the trial Court, the defendant No. 1 preferred appeal before the learned District Judge, Keonjhar. The same questions were raised before the lower appellate Court and the lower appellate Court on examination of the evidence available on record, confirmed the finding of the trial Court and dismissed the appeal giving rise to the present Second Appeal.
5. This Court admitted the appeal on the above following substantial questions of law:
a) Whether the learned Courts below are legally justified in decreeing the suit for recovery of possession in absence of a prayer for recovery of possession, when the suit is one for declaration and for permanent injunction in view of the provisions contained in Section 34 of the Specific Relief Act ?
b) Whether the learned Courts below are right in holding that the period of limitation under Article 59 of the Limitation Act is not applicable even though it was challenged to be invalid on the ground of fraudulent misrepresentation ?
6. The first ground on which the appeal has been admitted is when a suit is filed for declarationand for permanent injunction whether decree for recovery of possession can be passed in view of the Section 34 of the Specific Relief Act. In this connection, it is necessary to refer to the prayer made in the plaint. The plaintiff has prayed for the following reliefs : .
a) Declaring that the sale deed executed by defendant No. 2 in favour of defendant No. 1 in respect of schedule land is void, invalid, illegal, without consideration and not binding on the plaintiff as well as on the defendant No. 2.
b) for a declaration that the plaintiff and defendant No. 2 along with their other co-sharers have right, title and interest over the suit land.
(b) for restraining defendant No. 1 to enter upon the suit land by way of permanent injunction.
(c) for the cost of the suit against defendant No. 1.
(e) for any other relief to which the plaintiff is entitled to in view of the pleadings of the parties.
7. Shri I. C. Das, learned counsel appearing for the appellant in connection with the above ground submitted that there was no prayer in the suit for recovery of possession and on the other hand relief for permanent, injunction had been sought for. In view of Section 34 of the Specific Relief Act, the relief for recovery of possession cannot be granted when the suit is filed only for declaration and permanent injunction.
8. The learned counsel appearing for the plaintiff-respondent No. 1, on the other hand, referring to the prayer made in the plaint submitted that in view of the last prayer made, it is always open for the Court to modulate the relief as required for complete justice. For convenience, the Section 34 of Specific Relief Act is quoted below :
34. Discretion of Court as to declaration of status or right f ' Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief :
Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
9. So far as the second ground is concerned, it is evident from the trial Court judgment that the said issue was not pressed and accordingly the same was not answered. Since, the issue was not pressed, the parties did not lead evidence and accordingly the learned counsel for the appellant could not have raised the issue of limitation. However, the appeal having been admitted on the above ground, 1 proceed to answer the same. According to the learned counsel for the appellant, the sale deed having been executed by defendant No. 2 in favour of the appellant on 28.7.1987 the suit filed in the year 1993 for a declaration that sale deed is invalid, is not maintainable and grossly barred by time. In this connection, the learned counsel for the appellant cited some decisions. The decision cited by the learned counsel for the appellant is the case of Maqbul Ahmad and Ors. v. Onkar Pratap Narain Singh and Ors. reported in 1935 AIR Privy Council 85. Relying on the aforesaid decision, it was contended by Shri Das that even though the issue relating to the limitation was not pressed, it was the duty of the Court to take note of the same and give a finding. The learned counsel also relied on a decision of the Apex Court in the case of Mahaindta Land and Building Corporation Ltd., v. Bhutnath Banerjee and Ors. reported in AIR 1936 (Supreme Court). On perusal of the said decision, it also appears that the Apex Court took the same view and held that under Section 3 of the Limitation Act, it is the duty of the Court not to proceed with the application if it is made beyond the period of limitation prescribed. Other decisions cited by the learned counsel relate to the very same view taken in this regard. In order to appreciate the argument of the learned counsel for the appellant with regard to the question of limitation, it is necessary to refer to some provisions of Limitation Act.
Article 59 of the Limitation Act, 1963 provides that limitation for filing a suit to cancel or set aside an instrument or decree shall be three years from the date 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. In paragraph 8 of the plaint, it is specifically pleaded that the cause of action for filing the suit arose on and from 15th April, 1993 i.e. the date on which the present defendant No. 1 disclosed about the execution of the sale deed and on 7.5.1993 the day when the plaintiff obtained the certified copy of the sale deed within the jurisdiction of that Court. It is also contended in the plaint that the plaintiff-respondent No. 1 had no knowledge about the execution of such sale deed. He came to know about the existence of the same on 15th April, 1993 when the appellant claimed title on the basis of the sale deed by disclosing the execution thereof. There is no material on record to show that the plaintiff had any knowledge about the execution of the said sale deed prior to 15th April, 1993. Though an issue was framed with regard to the limitation, the same was not pressed and accordingly the parties did not lead evidence. Therefore, un-controverted statement made in the plaint is to be accepted and suit having been filed within 3 years from the date of knowledge, I am of the view that the suit is not barred toy limitation.
10. There is no dispute that respondent No. 1 while filing the suit had prayed for a declaration that the sale deed executed by defendant No. 2 in favour of defendant No. 1 in respect of suit schedule property is invalid, illegal as well as for declaration that he alongwith defendant No. 2 and other co-sharers have right, title and interest over the suit property. It is also noticed that respondent No. 1 had prayed for permanent injunction claiming possession over the suit property. The question that arises for consideration is in absence of prayer for recovery of possession, whether the said relief can be granted. Proviso to Section 34 of the Specific Relief Act, 1963 specifies that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. That is not the case here and the plaintiff not only prayed for declaration of title but also for permanent injunction. However, the Court having found that the defendant No. 1 -appellant was in illegal occupation of the pucca building covering a portion of the suit land, directed for recovery of possession of the said portion. It is always open for the Court to modulate the relief provided the relief is claimed. In this case, the respondent No. 1 had sought for permanent injunction and the Court having found that the defendant No. 1-appellant was in illegal occupation of the house covering a portion of the suit land, directed for recovery the same. I, therefore, do not find any substance in the arguments of the learned counsel for the appellant-defendant No. 1 in this regard. The decisions cited by the learned counsel have no application to the facts of the present case. In the said decisions, the principle laid down under Section 34 of the Specific Relief Act has been explained but the same depended upon facts of each case. I have, therefore, perused the judgment in this regard and do not refer the same, as those decisions are of no help to the appellant in this case.
11. In view of the discussion made above, the appellant having failed to substantiate the grounds on which the appeal had been admitted, the appeal fails and accordingly the same is dismissed.