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Though defendant No.1 initially agreed to demolish said encroached portions but ultimately he did not demolish the same. Lastly, on 15th of March, 1982 defendant No.1 alleged to the plaintiff that plaintiff executed a deed of gift dated 02.12.1970 i.e., impugned deed in favour of defendant No.1 in respect of entire Dags 1740, 1741/4758, 1739 and 1738 of Narkeldanga Mouza together with 'ka-2' schedule properties. Plaintiff obtained certified copy of said alleged deed of gift on 06.08.1982 and came to know that defendant No.1 obtained said deed of gift dated 02.12.1970 by practising fraud, misrepresentation and undue influence upon the plaintiff in the name of obtaining a power of attorney. One decimal of land out of 3 acres 37 decimals of land in Khata 897 mouza Guri District Baleswar was included for registration of said document within the District of Baleswar though plaintiff did not own said land. As such said deed of gift was also executed by practising fraud on the registrar of Baleswar by falsely incorporating some lands within jurisdiction of Baleswar. Accordingly, plaintiff filed said suit praying for declaration that alleged deed of gift dated 02.12.1970 mentioned in 'ka - 1' schedule of the plaint regarding 'ka' schedule properties and other properties was null and void, illegal and not binding on the plaintiff and that the defendant No.1 had no right title or possession in those properties on the strength of said alleged deed of gift and that the plaintiff has right, title and interest thereupon, together with a decree for permanent injunction.

Learned Trial Court framed as many as 13 issues.

Learned Trial Court dismissed the suit by observing that the alleged deed of gift dated 2.12.1970 was not vitiated by fraud or misrepresentation and that said document was not executed by practising fraud upon the Sub-Registrar and that plaintiff was aware about the nature and character of the impugned deed being a deed of gift from the very date of its execution and that the suit was hopelessly barred by limitation. Learned Trial Court also observed that the suit was also barred by the principles of res judicata as both the plaintiff and defendant No.1 were parties in the suit being Title Suit No.51 of 1970 filed by the proforma defendant No.2 and 3 wherein an ex parte preliminary decree was passed.

(4) Whether learned Courts below substantially erred in law by not declaring the impugned deed of gift dated 02.12.1970 being hit by principles of lis pendense in view of pendency of partition being Title Suit No.52 of 1970 involving suit plots and other plots.

Mr. Sahoo, learned counsel for the defendant Nos. 2 and 3 (appellant of S. A. 134 of 1994), submits that learned Courts below failed to note that the defendant Ashok Kumar Das was in fiduciary relation with the plaintiff Radha Ranjan Das and accordingly they erroneously placed onus on the part of plaintiff to show that the impugned document dated 2.12.1970 was vitiated by fraud and misrepresentation. He further submits that in view of applying wrong legal tests as stated above learned Courts below came to a wrong conclusion that the impugned deed of gift dated 2.12.1970 was not vitiated by fraud and misrepresentation.

There is no denial that plaintiff admitted execution of said sale deed in favour of one Amulya (Ext.E) relating to some land in said Khata 897 of mouza Guri District Baleswar claiming him to be the owner of the same. If that be the position then learned Courts below rightly held that plaintiff was estopped from denying his ownership in said land. Apart from that it came out that plaintiff himself purchased the stamp for execution of impugned deed of gift and that after knowing contents of the document he executed said document. There is no evidence whatsoever to show that defendant No.1 took any part to falsely include said one decimal of land relating to Khata 897 of mouza Guri district Baleswar in said deed of gift. As such, if any fraud was committed on the sub-registry office for illegal inclusion of some land of Baleswar District without any intention of gifting the same to the donee then said fraud was committed by the donor i.e. plaintiff and not by the donee i.e. defendant No.1. A person cannot be permitted to take advantage of his own fraud. Apart from that even if it is admitted for argument's sake that defendant No.1 was also a party to said fraud even then said document namely deed of gift dated 2.12.1970 was not a void document and that it has to be declared invalid by a competent Court of law. In order to obtain a declaration that the deed of gift was void on the ground of fraud or misrepresentation (though not proved in this case) or on the ground of practising fraud upon the Registry office (though it was not proved that donee had any part in it) the suit was required to be brought within three years from the date of knowledge of the said alleged fraud upon the plaintiff executant or upon the registry office. It came out from the evidence on record, both oral and documentary, that the plaintiff executed impugned deed of gift dated 2.12.1970 knowing its contents and that even in his letters written in 1975 to the defendant No.1 and his sister Rani (Ext.B series) he admitted about execution of said deed of gift relating to suit property in favour of defendant No.1. Admittedly, this suit for declaring the impugned deed of gift dated 02.12.1970 as void and not binding on the plaintiff on the ground of fraud and misrepresentation etc. was filed only in 1982. In terms of Section 59 of the Limitation Act a party has to file a suit within three years from the date of knowledge of the alleged fraud for avoiding a document. It was evident from the materials on record that the plaintiff was well aware about the nature of the document from the very inception and that even in his letters written in 1975 admitted about execution of said deed of gift in favour of defendant No.1. Accordingly, the suit was hopelessly barred by limitation and learned Courts below rightly held the same.