RSA No. 1242 of 2008 (1)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No. 1242 of 2008
Date of Decision: 18-08-2009
Avtar Singh and others ......Appellants
Versus
Surjit Kaur and others .......Respondents
CORAM: HON’BLE MR. JUSTICE HEMANT GUPTA.
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Shri Vijay Lath, Advocate, for the appellant.
Shri A.L. Verma, Advocate, for the respondents.
HEMANT GUPTA, J. (Oral).
The defendants are in appeal aggrieved against the judgment
and decree passed by the Courts below, whereby the suit for possession of
land allegedly conveyed by defendant No.2 in favour of defendant No.1 on
9.4.1992, was decreed.
Puran Singh son of Geeta Singh is the father of the plaintiffs
and defendant No.2. Defendant No.1 is the husband of defendant No.2. The
plaintiff alleges that earlier defendant No.1 got a decree suffered from Puran
Singh on the basis of a family settlement. The said decree was challenged
by Nirmal Singh and Jarnail Singh, sons of the plaintiff. Puran Singh
admitted the case of the sons of plaintiff by filing written statement, but
RSA No. 1242 of 2008 (2)
when he was to appear in the Court to make the statement, the defendant by
exercising undue influence got two sale deeds dated 9.4.1992 executed
illegally in favour of defendant No.1. Since the grievance of the plaintiff
was not redressed, the present suit was filed.
Defendant No.1 in his written statement has raised a
preliminary objection that the suit is barred by limitation and that Puran
Singh has executed a registered Will in favour of Avtar Singh, his son on
12.8.1993. It was also alleged that he is a bona-fide purchaser for
consideration and that Puran Singh has admitted execution of the sale deed
dated 9.4.1992 during his lifetime. In a separate written statement filed on
behalf of defendant No.2, it was pleaded that the suit is barred by limitation
and that the plaintiffs have no locus standi to file the present suit. It is also
pointed out that Puran Singh has admitted the execution of the sale deed
dated 9.4.1992 in the amended written statement dated 16.4.1993 filed in
Court on 22.4.1993 in a suit filed by the sons of the plaintiff. The suit was
said to be barred under Order 2 Rule 2 CPC.
The learned trial Court dismissed the suit for the reason that the
suit is barred by limitation having been filed on 11.6.1999, whereas the
cause of action arose to the plaintiff on 9.4.1992. It was also found that the
earlier suit filed by the sons of the plaintiff was dismissed on 9.4.1999 under
Order 8 Rule 8 CPC and the plaintiffs had the opportunity to contest the suit
but did not move any application. Therefore, the plaintiff has no locus
standi to file the present suit. Even on merits, the learned trial Court
returned a finding that the execution of the sale deeds stands proved from
the admission of Puran Singh deceased and from the statement of DW4-
Balwant Scribe and DW2 Bhag Singh and DW1 Ujagar Singh, attesting
RSA No. 1242 of 2008 (3)
witnesses of the sale deeds dated 9.4.1992. But in appeal, the learned first
Appellate Court considered the factum of the Civil Court judgment and
decree Exhibit D.22 and D.23 passed in favour of Avtar Singh son of Atma
Singh in respect of 26 kanals 17 marlas of land on the basis of a family
settlement of January, 1975. The said decree is subject matter of challenge
in a separate suit filed by Hakam Singh, brother of Puran Singh and the
present plaintiffs, which is pending consideration in RSA No. 1681 of 1997.
Both the learned counsel for the parties have accepted the fact that the
subject matter of the property in the aforesaid appeal is distinct and separate
from the property in dispute in the present proceedings.
The sale deeds under challenge in the present suit are Exhibit
D.1 and D.2 dated 9.4.1992. Puran Singh was more than 80 years of age in
the year 1992 as in the Will dated 12.8.1993 his age is mentioned as 82
years, though no age is mentioned in the sale deeds. Avtar Singh, while
appearing as DW3 has stated during cross-examination that Puran Singh
was 90-95 years of age. The Appellate Court also took into consideration
the stand of the defendant that Avtar Singh son of the defendant was
brought up by Puran Singh as his son and was residing with him. All the
documents allegedly executed by Puran Singh are scribed by the same deed
writer i.e., Balwant Singh, who is working at Chamkaur Sahib. The said
deed writer did not know Puran Singh personally, but he knew Atma Singh
as the village of Atma Singh is adjoining to the village of the scribe. The
scribe has not produced his register. The scribe has deposed that stamp
papers were purchased by Puran Singh from Kharar, but as a matter of fact,
the stamp papers were purchased by Atma Singh. The stamp papers were
purchased without consideration, which was found to be unbelievable. It
RSA No. 1242 of 2008 (4)
was also found that the stamp papers of Exhibit D.2 in respect of 15 marlas
of land was purchased from Chamkaur Sahib, but the said stamp papers do
not contain his thumb impressions. It also found that an order was passed by
the learned trial Court in previous suit on 29.3.1993 for recording the
statement of Puran Singh. Puran Singh did not appear in the Court on
29.3.1993 or on 7.4.1993 i.e. the date on which the case was adjourned for
the purposes of the statement. He died on 11.4.1994. In fact, Atma Singh
and others were tried for murder of Puran Singh, though the trial has
resulted into acquittal.
The first Appellate Court also taken into consideration that in
sale deed Exhibit D.1, there is a recital that Puran Singh received the
amount in order to give the same to his daughters, but none of his daughters
have been examined to prove such assertion. The sale consideration has
not been paid to the plaintiffs nor the defendant Labh Kaur has appeared as
a witness to depose that she has received any sale consideration. It was
found that if the recital is true then there is no necessity for Puran Singh to
sell the same land for which sons of the plaintiffs have filed the suit for
declaration and to file admitted written statement on 14.2.1992. But the suit
was not decreed as Avtar Singh filed an application on the same date i.e.
14.2.1992 for withdrawing the admission in the written statement. The first
Appellate Court has taken into consideration that there is no evidence
brought on record by the defendant that Puran Singh became hale and hearty
and was able to walk before the Sub Registrar on 9.4.1992.
The learned first Appellate Court found that the trial Court has
mainly relied upon admission of Puran Singh in the pleadings filed by him
in the previous litigation, but such pleadings were tendered in evidence and
RSA No. 1242 of 2008 (5)
objected to by the counsel for the plaintiff regarding mode of proof. It was
found that the pleadings should have been proved by the Advocate, who
drafted the same at the instance of Puran Singh. Puran Singh was never
examined in the previous litigation to admit his pleadings to be correct.
Avtar Singh has filed an application in the suit filed by Jarnail Singh
Exhibit PX/10 dated 14.2.1992 to the effect that Puran Singh is unable to
make statement in the Court due to his old and weak health. All the
pleadings were filed later on, on behalf of Puran Singh. The learned first
Appellate Court found that the suit has been filed within 12 years and in a
suit for possession there is no limitation for filing a suit on the basis of
natural inheritance of the title. Therefore, the suit is not barred by
limitation and consequently, the suit was decreed.
Learned counsel for the appellant has vehemently argued that
the suit is barred by limitation as the challenge in the suit is to the sale deed
dated 9.4.1992. It is a suit not based on title and therefore, the suit is barred
by limitation. Reliance is placed upon Ramti Devi v. Union of India, 1995
(1) SCC 198. It is also contended that the challenge in the suit is to the sale
deeds on the ground that the same are forged and the limitation for filing
such suit commences from the date the plaintiffs had the knowledge of such
sale deeds as such sale deeds were executed during the pendency of the
previous suit. Therefore, the present suit is barred by limitation. Reliance is
placed upon Jagan Nath v Tara Chand, 1997(2) PLR 519 and Gajjan Singh
v. Virsa Singh and others, 2007(3) PLR 634. Reliance is also placed upon
Articles 56 and 59 of the Limitation Act, 1963. It is also contended that
amended written statement of Puran Singh in the suit filed by Jarnail Singh
was taken on record and such written statement is the best evidence. The
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suits have been dismissed in default and therefore, the stand of Puran Singh
in the written statement so filed conclusively determines that the transaction
of sale is beyond any doubt.
I have heard learned counsel for the parties at some length, but
do not find any merit in the present appeal.
In respect of the pleadings in the previous suit filed by Jarnail
Singh, son of the plaintiff, earlier Puran Singh has filed a written statement
admitting the claim of the plaintiff on 14.2.1992 i.e. there is no family
settlement as claimed by son of defendant No.1. On the same date, an
application has been filed on behalf of Avtar Singh Exhibit PX/10 that
Puran Singh is unable to appear in the Court due to his weak health and
weak eye sight. Thereafter, the Court has passed an order for producing
Puran Singh in the Court on 29.3.1993. Puran Singh was not produced even
on 7.4.1993. He died almost a year later i.e. on 11.4.1994, but Puran Singh
was not produced in the Court. Thus, the pleadings filed allegedly at the
instance of Puran Singh tendered in evidence cannot be read in evidence.
The person who has drafted the pleadings allegedly at the instance of Puran
Singh, has not been examined. Such person could possibly depose that such
pleadings have been filed on instructions from Puran Singh. Therefore, the
pleadings in the previous suit allegedly at the instance of Puran Singh,
cannot be relied upon to return a finding that Puran Singh has executed the
sale deeds in favour of Atma Singh or decree suffered in in favour Avtar
Singh son of Atma Singh in a free and disposing state of mind.
The material question which requires to be examined is whether
the suit filed by the plaintiff is within the period of limitation?
Articles 56 and 59 of the Limitation Act, 1963 relied upon by
RSA No. 1242 of 2008 (7)
the learned counsel for the appellants read as under:-
`56 To declare the forgery Three years When the issue or
of an instrument registration
issued or registered. becomes known
to the plaintiff.
xx xx xx
`59 To cancel or set aside Three years When the facts
an instrument or entitling the
decree or for the plaintiff to have
rescission of a the instrument or
contract. decree cancelled
or set aside or the
contract
rescinded first
becomes known
to him.
The judgments relied upon by the learned counsel for the
appellant are not applicable in the facts of the present case. The present is a
case of suit based on title as an heir of deceased Puran Singh.
In Dhurandhar Prasad Singh v. Jai Prakash University and
others, Judgments Today 2001 (5) Supreme Court 578, the distinction
between void and voidable order has been discussed in detail. Before
proceeding further, it maybe relevant to reproduce Para No. 21 of the
judgment hereunder:-
“21. Thus the expressions “void and voidable” have
been subject matter of consideration innumerable
occasions by courts. The expression “void” has several
facets. One type of void acts, transactions, decrees are
those which are wholly without jurisdiction, ab initio
void and for avoiding the same no declaration is
necessary, law does not take any notice of the same and it
can be disregarded in collateral proceedings or otherwise.
RSA No. 1242 of 2008 (8)
The other type of void act, e.g., may be transaction
against a minor without being represented by a next
friend. Such a transaction is good transaction against the
whole world. So far the minor is concerned, if he decided
to avoid the same and succeeds in avoiding it by taking
recourse to appropriate proceedings the transaction
becomes void from the very beginning. Another type of
void act may be which is not a nullity but for avoiding
the same a declaration has to be made. Voidable act is
that which is a good act unless avoidable, e.g., if a suit is
filed for a declaration that a document is fraudulent
and/or forged and fabricated, it is voidable as apparent
state of affairs is real state of affairs and a party who
alleges otherwise is obliged to prove it. If it is proved
that the document is forged and fabricated and a
declaration to that effect is given a transaction becomes
void from the very beginning. There may be a void
transaction which is required to be set aside and the same
is avoided from the day, it is so set aside and not any day
prior to it. In cases, where legal effect of a document
cannot be taken away without setting aside the same, it
cannot be treated to be void but would be obviously
voidable.”
In view of the aforesaid judgment, the principle of law which is
arrived at is that in respect of a void transaction, may be sale or a decree, no
declaration is necessary and the same can be disregarded in collateral
RSA No. 1242 of 2008 (9)
proceedings i.e. in a suit for possession, as a void transaction of sale can be
disregarded. The plaintiff has claimed estate of Puran Singh by way of
natural succession. Sale deed dated 9.4.1992 relied upon by the defendants
can be ignored in such proceedings.
In view of the findings recorded, the sale deeds dated 9.4.1992
are not proved to be executed by Puran Singh. The sale deeds are void in
the absence of any intention of the executor to execute the sale deeds in
favour of defendant No.1. Thus, the present suit for possession based on
title is governed by Article 65 and thus, the failure to file the suit within
three years of execution of the sale deed is immaterial and will not render
the suit as barred by limitation.
The judgments referred to by the learned counsel for the
appellants are not applicable to the issue raised in the present appeal. In
Ramti Devi’s case (supra), the plaintiff claims to have purchased the
property from one Kaushalya Devi in the year 1946. One Ratti Ram has
executed sale deed in the year 1947. The suit was filed in the year 1966
seeking cancellation of the sale deed executed by Ratti Ram in the year
1947. It was found that no issue was framed to the effect that the sale deed
is void. Therefore, the said judgment is not relevant when in the present
case, the suit is not for declaration, but is for possession. An issue has been
framed whether said sale deed is illegal, null and void.
Similarly, the judgment of this Court in Jagan Nath’s case
(supra), arises out of a suit for declaration alleging forgery in the sale deed.
The said judgment is not relevant for the reason that it arises out of a suit for
declaration challenging forgery in the sale deed.
Gajan Singh’s (supra), arose out of a suit for possession
RSA No. 1242 of 2008 (10)
challenging the sale deeds allegedly executed in his absence on the basis of
power of attorney. The Court found that the suit filed beyond three years is
beyond the period of limitation. It was concluded that the relief of
possession without seeking cancellation of sale deed was not available to
the plaintiff. Therefore, the suit filed by the plaintiff was time barred. The
challenge in the case was to sale deed executed allegedly on behalf of the
plaintiff. It was not a suit for possession by way of natural succession. In the
said suit, a declaration was required to be given so as to avoid sale deed
executed on his behalf, before the decree for possession can be passed.
Therefore, the plaintiffs’ suit for possession by asking that such sale will not
affect their rights, would not be governed by Article 59 but by Article 65 of
the Limitation Act.
Consequently, I do not find any patent illegality or material
irregularity in the findings recorded or that the findings recorded give rise to
any substantial question of law in the present second appeal.
Hence, the present appeal is dismissed.
(HEMANT GUPTA)
JUDGE
August 18, 2009
ds