JUDGMENT
R.N. Biswal, J.
1. This is a Second Appeal by one of the defendants, namely Upendra Kumar Mahapatra from the concurrent decision dated 30.4.1986 of the sub-Judge, Bargarh, passed in Title Appeal No. 18 of 1983 by which the suit is decreed.
2. Plaintiff Nos. 1 and 2 are wife and husband. As per the plaint averment late Gouri Shankar Mahapatra. father of the defendants, in the capacity of Karta of the Hindu undivided joint family sold A. 1.22 decimals of land as fully described in schedule “A” of the plaint to plaintiff No. 1 by a registered sale deed dated 22.6.1964 (Ext.5) wherein defendant No. 3 is an attesting witness, to meet the pressing family necessity, delivered possession of it to her and since then the plaintiffs have been possessing the same. Before the sale defendant Nos. 3 and 4 who had already attained majority by then, executed an Ekramama (Ext. 4) authorizing their father, Gouri Shankar Mahapatra to alienate a portion of the joint family property. On 24/25.7.1980 the defendants threatened to dispossess the plaintiffs from the disputed land, for which they filed Title Suit No. 76 of 1980 in the Court of Munsif, Bargarh praying for a decree of permanent injunction restraining the defendants from interfering with the possession of the plaintiffs over the suit land with cost.
3. Defendant Nos. 1 and 2 in their joint written statement repelled the averments made in the plaint by stating that there was no such sale and that the land in question was a part and parcel of their ancestral property and they along with their father and defendant Nos. 3 and 4 had been possessing the same till the death of their father, whereafter they possessed it till they were Restrained from entering it in an ad interim order of injunction passed in the aforesaid suit. They further pleaded that assuming, but not admitting that there was such a sale, since their father did not obtain prior consent of defendant Nos. 3 and 4 who had already attained majority by then, for such sale, the defendants are not bound by the sale deed. Defendant Nos. 3 and 4 adopted the written statement filed by defendant Nos. 1 and 2.
4. On the above pleadings of the parties, the learned Munsif framed five Issues, and after scrutinizing the evidence both oral and documentary, decreed the suit holding that Gouri Shankar Mahapatra being authorized by defendant Nos. 3 and 4, sold the suit property to plaintiff No. 1 through a registered sale deed (Ext. 5) for legal necessity, that the plaintiffs have been possessing the same since then and that since the defendants did not file any suit within the period of limitation to set aside the sale, they are estopped from interfering with the peaceful possession of the plaintiffs over the suit land.
In appeal the Sub-Judge, Bargarh confirmed the finding of the trial Court and dismissed the appeal. Hence this Second Appeal by the defendant No. 2, Upendra Kumar Mahapatra.
5. Learned Counsel appearing for the appellant submits that there is nothing in the plaint to show that defendant Nos. 3 and 4 authorized their father, Gouri Shankar Mahapatra, by executing Ext. 4, to sale away any land, but the trial Court traversed beyond the pleadings by holding that defendant Nos. 3 and 4 are consenting parties to the sale in question. On perusal of the plaint it is found that the plaintiffs have specifically pleaded in Paragraph 1 thereof that defendant Nos. 3 and 4 executed an Ekrarnama (Ext.4) on 22.6.1964 authorizing their father to execute the sale deed. So it is wrong to say that, there is no mention about execution of Ext. 4 by defendant Nos. 3 and 4 in the plaint.
6. It is next submitted by the learned Counsel for the appellant that on the face of glaring contradictions in the two documents viz. the alleged sale deed and Ekrarnama, with regard to the purpose for which money was required, the Court below acted on surmise by holding that there was legal necessity. Ext.4 reflects that money was required to repay the loan incurred for meeting the family necessity from Bargah Land Mortgage Bank and also to purchase bullocks for cultivation of the joint family land. On perusal of the sale deed (Ext. 5) it is found to have contained that money was required to repay the loan incurred from Urduna Gralngola, besides other loan. When Ext.5 shows that money was required to repay the loan incurred from Urduna Graingola, besides other loan, it cannot be said that loan was Incurred only from Urduna Graingola and not from Bargarh Land Mortgage Bank. In other words, ‘other loan’ would cover loan, Incurred from Bargarh Land Mortgage Bank. So in my view there is no major contradiction In Exts. 4 and 5.
7. Learned Counsel for the appellant, further submits that since the pleading of the plaintiffs is silent with regard to the particulars of legal necessity the trial Court ought not have taken the evidence adduced In this regard into consideration. In support of his submission he relies on the decision of this Court in Biranchi Narayan Badu v. Smt. Krushnapriya Debi and Ors. . In the case at hand, It is found from the pleading of the plaintiffs that Gouri Shankar Mahapatra, in the capacity of Karta of the joint Hindu family, sold the suit land to meet the pressing family necessity, but the particulars of family necessity are lacking in it. It is found from the evidence of P.W. 1 (plaintiff No. 1) that late Gouri Shankar Mahapatra had incurred loan from Urduna Graingola and Bank. It Is further found from her evidence that at first she denied to purchase the land, but when Gouri Shankar Mahapatra, her brother-in-law (elder sister’s husband) insisted much, and there was an order of attachment of his house, she agreed to purchase the same to save him from humiliation. This shows that Gouri Shankar Mahapatra sold the suit land to save the estate from peril, which is legal necessity. No doubt in the instant case the plaint lacks full particulars of the legal necessity, but it contained material facts in this regard. Material facts; differ from full particulars. If material facts are omitted in pleading, a party should not be allowed to lead evidence in that regard and in case evidence is led the same should not be taken into consideration. But if material particulars are only lacking, evidence can be led in that regard and it can be acted upon, provided the adversaries are not taken by surprise and they are not prejudiced thereby. In the present case defendant Nos. 3 and 4 authorised their father to sale away a portion of the joint family immovable property to repay the loan incurred for family necessity by executing the Ekrarnama (Ext. 4). During recording of evidence, D.W. 1 (Defendant No. 2) tried to annul the evidence adduced on behalf of the plaintiffs with regard to legal necessity, but failed. In such view of the matter, it cannot be said that because of omission of material particulars with regard to legal necessity in the plaint, the defendants were taken by surprise or prejudiced. In the decision cited above there was nothing in the pleading with regard to the existence of antecedent debt and no issue was framed in that regard. As it appears, it was pleaded therein that the property was sold for legal necessity. Alienation for legal necessity stands in a footing fundamentally distinct from alienation by the father for the discharge of antecedent debts incurred for his personal use. But in the present case as discussed above it is in the pleading that the land was sold to meet the legal necessity. It is not the case of the plaintiffs that Gouri Shankar Mahapatra sold the suit land to repay the antecedent debt incurred for his own use. So the decision cited above being quite distinguishable is not applicable to the present case.
8. Lastly, learned Counsel for the appellant contends that in absence of any issue on the. question of limitation, the trial Court held that the defendants were estopped from interfering with the peaceful possession of the plaintiffs over the suit land after the period of limitation who over and tin; lower appellate Court erroneously affirmed it, whereby the appellant was highly prejudiced. It is there in the pleadings of the plaintiffs that they have been possessing the suit land since the date of purchase i.e. 22.6.1964. In the current settlement it has also been recorded in the name of plaintiff No. 1 as found from the R.O.R., Ext. 1. Besides the documentary evidence, oral evidence adduced by the witnesses examined on behalf of the plaintiffs also show that the plaintiffs have been in possession of the suit land since the date of purchase. Defendant Nos. 3 and 4 permitted their father to sale away the suit property for family necessity. Neither of them was examined in the Court to dispute the same. Furthermore, defendant No. 3 has been cited as an attesting witness in the sale deed (Ext.5). The conduct of defendant Nos. 3 and 4 by withdrawing themselves from witness box also shows that in fact they permitted their father to sale away the disputed property for legal necessity. Even if it is admitted, but not decided that Gouri Shankar Mahapatra, in the capacity of father-Karta of the Hindu Joint family alienated the suit land for value without the consent of his major sons (defendant Nos. 3 and 4) and without legal necessity or for payment of antecedent debt incurred by him still then, such a sale is not void, it is voidable only. In other words unless and until the sale is declared void or the alienation is set aside by a competent Court of law, it remains valid and binding.
9. The period of limitation for setting aside an alienation made by a father of joint family property is 12 years from the date when the alienee takes possession of the property, under Article 109 of the Limitation Act. However, if the alienee has not taken possession of the property, the only right of the son is to obtain a declaration that the deed of alienation is void, within a period of three years from the date of accrual of the right to sue as stipulated under Article 58 of the Limitation Act. In the present case since none of the defendants filed any suit within the prescribed period of limitation, the trial as well as the appellate Courts held that the defendants are estopped from interfering with the peaceful possession of the plaintiffs over the suit land. No doubt right to file suit gets extinguished by lapse of time, but if a suit is filed by the other side it can be resisted even after the period of limitation is over. Both the Courts below held that Gouri Shankar Mohapatra, father of the defendants alienated the suit property for legal necessity and as such the transaction was valid. The suit is for permanent injunction simpliciter and since the sale deed is valid the defendants cannot interfere with the peaceful possession of the suit land. There was no need for the trial and appellate Courts to hold that because of efflux of time the defendants are estopped from interfering with the peaceful possession of the plaintiffs over the suit land. Even if this finding is held to be erroneous, it would have no bearing in the ultimate result of the suit. In such view of the matter, the contention of the learned Counsel appearing for the appellant that in absence of any issue on the point of limitation, the finding of the trial Court which was being affirmed by lower appellate Court that the defendants are estopped from interfering with the peaceful possession of the plaintiffs over the suit land after the period of limitation was over highly prejudiced the appellant, falls to the ground.
In the result, the appeal stands dismissed being devoid of merit and the orders of the Courts below stand confirmed. The parties are to bear their own cost.