High Court Punjab-Haryana High Court

Avtar Singh And Others vs Surjit Kaur And Others on 18 August, 2009

Punjab-Haryana High Court
Avtar Singh And Others vs Surjit Kaur And Others on 18 August, 2009
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
RSA No. 1242 of 2008 (6)

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