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(Delivered on 11th September, 2009)

1. This second appeal under Section 100 of the Code of Civil Procedure, 1908 (for short `the Code') is directed against the judgment & decree dated 2-9-99 passed by the 2nd Additional District Judge, Bilaspur in Civil Appeal No.44- A/98 affirming the judgment & decree dated 28-8-97 passed by the 4th Civil Judge Class-I, Bilaspur in Civil Suit No.340- A/92, whereby learned Civil Judge Class-I has decreed the suit for declaration of partition deed as nominal, declaration of ownership of the property and permanent injunction in favour of the plaintiffs/respondents.

4. Brief facts leading to filing of this appeal, as pleaded by the parties, are that husband of appellant No.1 namely Dr. Mahesh Kumar Rai, respondent No.1 & respondent No.5 are sons of deceased Dr. Ramacharan Rai, the original owner of the suit property situated at Bilaspur. Respondents No.2 to 4 herein are wife & sons of respondent No.1. Deceased Dr. Ramacharan Rai had purchased Nazul land Plot No.2, Sheet No.29 situated at Masanganj, Bilaspur on 20-9-1934 from one Rampal through registered sale deed. Bungalow & out house were constructed upon the said land in the year 1936. Deceased Dr. Ramacharan Rai also purchased Maurusi land on 21- 11-1952 along with Saheb Ram & Sohabat Ram. Respondent No.1 is the eldest son of deceased Dr. Ramacharan Rai. The property purchased by Dr. Ramacharan Rai was his self- acquired property. Dr. Ramacharan Rai was interested to give the bungalow, out house & land to respondent No.1 and he got the name of respondent No.1 mutated in municipal records in the year 1959-60. He also transferred 7,000 sq.ft. of land to Dr. Mahesh Kumar Rai (since deceased) & respondent No.5. He has also spent money for education of deceased Dr. Mahesh Kumar Rai, predecessor of the present appellants. Dr. Ramacharan Rai under apprehension of promulgation of the Urban Land Ceiling Act, executed registered deed in the style of partition deed on 28-8-69 to save the property from the operation of the Urban Land Ceiling Act relating to the disputed land, but the disputed land continued in the name of respondent No.1. The partition deed was never acted upon and respondents No.1 to 4 were in possession of the suit land. Again on 27-5-1987 Dr. Ramacharan Rai bequeathed the disputed property to respondents No.1 to 4. On the basis of the partition deed, Dr. Mahesh Kumar Rai filed an application for mutation and he succeeded in mutating his name vide order dated 31-10-1991 and finally, the order was confirmed by the Additional Commissioner, Bilaspur, vide order dated 22-10- 1992. Thereafter, respondents No.1 to 4 herein filed the present suit for declaration of partition deed nominal, declaration of title and permanent injunction.

6. After affording opportunity of hearing to the parties, learned 4th Civil Judge Class-I, Bilaspur has decreed the suit. Predecessor in interest of the present appellants Dr. Mahesh Kumar Rai has preferred appeal and the same has been dismissed vide judgment & decree impugned.

7. Learned counsel for the parties are heard, the judgment & decree impugned and records of the Courts below are perused.

8. Learned counsel for the appellants argued that in addition to the substantial questions of law formulated for the decision of this appeal, the question of limitation is also a substantial question of law for the just decision of this appeal. Respondents No.1 to 4 herein have not challenged the partition deed well within time and the suit for declaration of partition deed is time barred. The Urban Land Ceiling Act came into force in the year 1976, therefore, there cannot be any apprehension in the year 1969 for any future legislation. The property in question was the ancestral property and deceased Dr. Ramacharan Rai alone was not competent to dispose of the property. Arbitrarily, the alleged partition deed was acted upon by the parties. Name of Dr. Mahesh Kumar Rai has been mutated at his instance by the revenue officer. The alleged will is not the genuine document and after execution of the alleged will, certificate of the doctor has been obtained by respondent No.1 who himself is a doctor. Witness of the will and the Registrar who has registered the will have not been examined by respondents No.1 to 4 to prove conscious execution of the will. The partition deed is a registered document and oral evidence relating to the said document is excluded under Sections 91 & 92 of the Evidence Act. Respondents No.1 to 4 herein have not challenged the sale deed dated 19-2-1971 executed by respondent No.5 in favour of respondent No.1 relating to the part of disputed land which was necessary for them. Learned counsel further argued that the appellants have filed an application under Order 41 Rule 27 (1) (aa) &

15. As held by the Apex Court in West Coast's case (supra), limitation in terms of Article 58 of the Limitation Act accrues from the date when `the right to sue first accrues'.

16. If this principle is considered, deceased Dr. Mahesh Kumar Rai has filed application/objection in the mutation proceeding in the year 1990, the suit was within limitation.

17. But learned counsel for the appellants argued that the suit relating to registered document is required to be filed within three years from the date of its execution. Deed of partition was executed in the year 1969, therefore, after three years of the said execution of the deed of partition Ex.P-10 any suit on the basis of partition deed is time barred. The suit was not based on partition deed, but it was specifically for declaration that the alleged deed of partition dated 28-8-69 is sham, nominal and fictitious and was never intended to be brought into effect, and indeed it was never brought into effect, therefore, no right or title passed to any person by the said sale deed. The suit was not based on the partition deed, but it was for declaration of the alleged deed as sham, nominal and fictitious not to be acted upon. For declaration of the aforementioned character, no suit is necessary unless rights of the parties have been attacked by the opposite party on the basis of the alleged deed. When deceased Dr. Mahesh Kumar Rai has objected/filed application for mutation relying upon the partition deed, the suit has been filed by the plaintiffs within three years from the date of alleged final order of the mutation proceeding.