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The Limitation Act, 1963
Article 109 in The Constitution Of India 1949
Article 65 in The Constitution Of India 1949
Article 126 in The Constitution Of India 1949
Article 110 in The Constitution Of India 1949

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Punjab-Haryana High Court
Baljinder Singh vs Lt. Col. Rattan Singh on 10 August, 2009

Regular Second Appeal No. 2549 of 2000 [1]

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

Regular Second Appeal No. 2549 of 2000 and

Cross-objection No. 2-C of 2001

Date of Decision: August 10, 2009

Baljinder Singh ......... Appellant

versus

Lt. Col. Rattan Singh .......... Respondent

1.Whether Reporters of local papers may be allowed to see the judgment ?

2. Whether to be referred to the Reporters or not ?

3. Whether the judgment should be reported in the Digest?

Present:- Shri Anupam Gupta, Advocate for the appellant

Shri R.S. Mittal, Senior Advocate with

Shri Atul Gaur, Advocate for the respondent

HEMANT GUPTA, J.

The present appeal arising out of Civil Suit No. 171 of 1994

filed by Lt. Col. Rattan Singh-respondent claiming possession of land

measuring 73 Kanals 11 Marlas. Earlier, the present appeal was taken up for

hearing along with Regular Second Appeal Nos. 2548 and 2550 of 2000

arising out of two other separate suits filed by Lt. Col. Rattan Singh and was

dismissed on 18.08.2004. The Hon'ble Supreme Court has remitted the

present appeal back to this Court.

The challenge in the other two suits was to the gift deed

allegedly executed on 19.12.1962 and Will dated 1.8.1969 both executed by Regular Second Appeal No. 2549 of 2000 [2]

Shiv Dev Singh. In the present suit, the plaintiff, son of Shiv Dev Singh

from his first wife, claimed possession of the aforesaid land by alleging

therein that the defendant, son of Jaspal Singh s/o Shiv Dev Singh from his

second wife Iqbal Kaur, has no right, title or interest in the suit land. The

defendant claims title over the suit land on the basis of Will in his favour

by one Smt. Pritam Kaur, sister of Iqbal Kaur and wife of Shiv Dev Singh.

Earlier, Shiv Dev Singh has executed sale deed in favour of Pritam Kaur

through his attorney Jaspal Singh, father of the defendant. It was asserted

that Shiv Dev Singh could not alienate the suit land without the consent of

the plaintiff being coparcener and that the sale was without legal necessity

and not for the benefit of the estate. It was alleged that the sales are nullity

and void. The relevant paragraphs from the plaint read as under:-

" 3. That Shiv Dev Singh died on 6.9.1988 leaving behind the plaintiff as his son being one of the heirs and legal representatives along others. He became co-owner of the suit land.

4. That defendant has got no right, title or interest in the suit land but he alleges Will in his favour having been executed by Smt. Pritam Kaur widow of Thakar Singh (sister of Iqbal Kaur wife of Shiv Dev Singh) which fact is wrong and not admitted. Even said Pritam Kaur who died on 15.1.1990 was having no right, title or interest in the said suit. The sale deeds alleged to have been executed in her favour by Shiv Dev Singh through his attorney Jaspal Singh son of Shiv Dev Singh are illegal, invalid, without consideration and void. Shiv Dev Singh was allotted suit land in lieu of land left by him in West Pakistan. The land which was left in West Pakistan was inherited by Shiv Dev Singh from his forefathers and was ancestral. He could not alienate the suit land without consent of plaintiff being co- parcener and no consent was obtained from plaintiff. The alleged sales were without legal necessity and not for the Regular Second Appeal No. 2549 of 2000 [3]

benefit of the estate i.e, plaintiff or other co-parceners and thus nullity and void.

5. That defendant is in illegal and unauthorized possession of the suit land without any legal right for the last 4 years. He has been asked to admit the claim of plaintiff and deliver him possession of suit land but he refused. Hence, this suit.

6. That the cause of action accrued to the plaintiff in the year 1993 when share of compensation amount in respect of land acquired by Improvement Trust was not allowed to plaintiff by Smt Iqbal Kaur (second wife) of Shiv Dev Singh. Then he made enquiry from Patwari and obtained revenue record which revealed that suit land has been mutated in favour of defendant and Pritam Kaur (sister of Iqbal Kaur). It also arose a month ago when the defendant was asked to admit the claim of plaintiff and deliver him the possession of suit land. It arose at village Rajowal, Tehsil Gurdaspur, where suit land is situated.

7. That the land in suit is situated in village Rajowal, Tehsil Gurdaspur, as such the civil court at Gurdaspur has got the jurisdiction to try the suit.

8. That the value of the suit for the purposes of court fee and jurisdiction is Rs.365.70 being ten times of land revenue of land in suit and Rs.1097.10 paise being thirty times of land revenue of land in suit.

It is, therefore, prayed that a decree for possession of land measuring 73 Kanals 11 Marlas as fully described in the cause title of the plaint situated in village Rajowal, Tehsil Gurdaspur be passed in favour of plaintiff against the defendant with costs or the plaintiff be granted such other relief to which he may be held entitled under law".

In the written statement filed, the defendant has taken up a

stand that the suit is barred by limitation. Issue No.1 in the present suit is

"whether the suit is barred by limitation ? OPP"

All the three suits filed by Lt. Col. Rattan Singh were dismissed Regular Second Appeal No. 2549 of 2000 [4]

by the learned trial Court holding that the suit is barred by limitation relying

upon Article 109 to the Schedule of the Limitation Act, 1963 (for short"

Limitation Act") i.e., in a suit challenging alienation of ancestral property

by a Hindu governed by Mitakshara law affected by his father is 12 years

and the time begin to run when the alienee takes possession of the property.

It was held that suit has been filed after 12 years of the alienee taking

possession. However, in appeal, the learned First Appellate Court decreed

the suit by examining the question as to whether the period of limitation is

to be reckoned from the date on which alienee takes possession of the land

subject matter of sale deeds or from the date on which appellant Rattan

Singh gained knowledge about the execution of the said sale deeds. On the

basis of the question framed, the learned First Appellate Court found that

the plaintiff did not know about taking over possession by alienee till 1992.

Therefore, the starting point of limitation would be somewhere in the year

1992 when he came to know of the alienation. On the basis of the said

finding, the appeal was allowed and the suit was decreed. This Court in

Regular Second Appeal affirmed the judgment and decree passed though on

the ground that the suit is governed by Article 65 of the Limitation Act and,

thus, is within the period of limitation.

The appeals before the Hon'ble Supreme Court arising out of

Regular Second Appeal Nos. 2548 and 2550 of 2000 were dismissed.

However, in respect of Regular Second Appeal No. 2549 of 2000 arising

out of Civil Suit No. 171 of 1994, an argument was raised that the High

Court has made a new case for the plaintiff that the suit is governed by

Article 65 of the Limitation Act. The matter has been remitted back to

decide the present appeal afresh in view of the following observation:- Regular Second Appeal No. 2549 of 2000 [5]

"15. A bare perusal of the High Court's order it is seen that the High Court proceeded on the basis that the applicable Article is 65 and not Article 109. It is to be noted that there was no issue framed about the applicability of Article 65. On the contrary, the issue framed related to the applicability of Article 109. There was no pleading by the plaintiff about applicability of Article 65. Even in the counter affidavit filed before this Court in the concerned Civil Appeal, the categorical stand is Article 110 is applicable. In para 8 of the counter affidavit filed in Civil Appeal No. 598 of 2005 it has been stated that the suit of the respondent (plaintiff) is within time under Article 110 and counting from the date of knowledge, the suit filed is clearly within the period of limitation. The effect of Exhibit D-11 and the deed on which the appellants placed strong reliance has not been considered by the first Appellate Court and it reversed the findings of the trial Court. On the question of position relating to applicability of Article 109 there is practically no discussion by the learned counsel.

16. It is, therefore, crystal clear that the High Court proceeded to decide the issue relating to period of limitation by making out a new case for which there was no pleading and even no question of law was framed".

The learned counsel for the appellant has argued that the

plaintiff has not relied upon Article 65 of the Limitation Act before the

learned Courts below and the argument based on Article 65 of the

Limitation Act cannot be raised before this court for the first time.

Therefore, such argument does not merit any consideration. He has relied

upon Chintaman Balwant Dharmadhikari and others vs. Bhagvan

Ganpati Mankeshwar, AIR 1928 Bombay 383; Bindershri Upadhya and

others vs. Sital Upadhya and others, AIR 1927 Allahabad 702;

Mothika Mutyaly and another vs. Mothika Appayyalingam and others, Regular Second Appeal No. 2549 of 2000 [6]

AIR 1975 Andhra Pradesh 19; Sudarshan Prasad and others vs.

Radha Kishun Ram (deceased by LRs), AIR 1982 Allahabad 218; and

Ganpati Santaram Bhosale and another vs. Ramachandra Subbarao

Kulkarni and others, AIR 1985 Karnataka 143, to contend that in fact the

suit is governed by Article 109 of the Limitation Act and thus the learned

trial court has rightly dismissed the suit.

On the other hand, learned counsel for the respondent has

argued that the suit of the plaintiff is simpliciter suit for possession on the

basis of title and that the provisions of the Limitation Act are not required

to be pleaded. Reliance is placed on Gannmani Anasuya and others vs.

Parvatini Amarendra Chowdhary and others, AIR 2007 SC 2380. It is

also argued that the question whether the suit is governed by Article 65 or is

barred in terms of Article 109 of the Limitation Act is a question of law on

the basis of the findings of fact recorded. Therefore, even though Article 65

of the Limitation Act was not referred to by the plaintiff before the learned

First Appellate Court, but there is nothing in law which prevents the

respondent to rely upon such provision of law in second appeal. The

plaintiff has a right to support the judgment of the learned First Appellate

Court on different ground than what weighed with the learned First

Appellate Court. Therefore, the findings recorded by this Court prior to

remand do not warrant any reconsideration.

I have heard learned counsel for the parties on the following

substantial question of law:-

1. Whether the sale deeds dated 25.02.1980 and 27.03.1980 executed by Shiv Dev Singh in favour of Pritam Kaur, his sister-in-law is void or voidable ?

Regular Second Appeal No. 2549 of 2000 [7]

2. Whether suit is for possession based upon title and is governed by Article 65 of the Limitation Act, 1963 or the suit is for challenging alienation of ancestral property by Karta governed by Article 109 of the Limitation Act, 1963 ?

In second appeal, the finding of the Courts below that the land

is joint Hindu family coparcenary property is not disputed. This fact was not

disputed even before the learned trial Court. It is also not disputed that the

sale deeds were executed without legal necessity.

In Sadasivam vs. K. Doraisamy, AIR 1996 SC 1724,

Hon'ble Supreme Court has held that when the father has executed sale deed

in favour of a near relative and intention to repay debt or legal necessity has

not been proved, it is a sham transaction.

Reference was also made to the decision of the Supreme Court

in the case of Dhurandhar Prasad Singh vs. Jai Parkash University and

others, Judgments Today 2001 (5) Supreme Court 578, wherein the

distinction between void and voidable order has been discussed in detail.

Before proceeding further, it may be relevant to reproduce Para No. 21 of

the judgment hereunder:-

"21. Thus the expression "void and voidable" have been subject matter of consideration on 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 it can be disregarded in collateral proceedings or otherwise. 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 Regular Second Appeal No. 2549 of 2000 [8]

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". (emphasis supplied)

The sale deeds have been executed by Shiv Dev Singh in

favour of his sister-in-law. By virtue of the Will of Pritam Kaur, the

property stands bequeathed to Balwinder Singh who is none else but grand-

son of Shiv Dev Singh and son of Jaspal Singh. The property "sold" was

within family and to a close relation i.e., sister-in-law. The fact that it has

been bequeathed by the beneficiary to the son of Jaspal Singh shows that the

sale deed were executed only with a view to affect the shares of the

coparceners. It is also apparent from the fact that no attempt has been made

whatsoever to prove payment of consideration. Therefore, the said

transactions of sale are void and sham transaction and it is held that the sale

deeds dated 25.02.1980 and 27.03.1980 executed by Shiv Dev Singh in

favour of his sister-in-law Pritam Kaur are void. In a way, the sale in favour

of Pritam Kaur was introduced with a view to provide legitimacy of transfer Regular Second Appeal No. 2549 of 2000 [9]

of land to the defendant when there was none. In view of the above, the

sale deeds dated 25.02.1980 and 27.03.1980 are void. The first substantial

question of law is thus answered in favour of the plaintiff.

Coming to the second question, the plaintiff has filed a suit for

declaration based upon title that is evident from the averments made in the

plaint reproduced above. The plaintiff has pleaded that cause of action has

arisen in the year 1993 whereas defendant has asserted that the suit is barred

by limitation. The defendant has not referred to any provision of law under

which it is barred by limitation. The learned Trial Court relied upon Article

109 of the Limitation Act to dismiss the suit. The judgments referred to by

the learned counsel for the plaintiff in Labhu Ram vs. Smt. Bhagwanti,

1996 PLJ 522, Annasaheb Bapusaheb Patil vs. Balwant Bapusaheb

Patil, AIR 1995 SC 895 and Sewa Ram and others vs. Jai Lal Puri &

Another, 1989(1) Current Law Journal 286 were found to be not

applicable on the facts of the present case as the said authorities dealt with

Article 65 of the Limitation Act "which deals with adverse possession". It

was held that in the present case Article 109 of the Limitation Act is

applicable and not Article 65 of the Limitation Act. The learned First

Appellate Court set aside the judgment of the trial court and held that the

cause of action has arisen to the plaintiff when he came to know about the

alienation. The question to be examined is whether the suit can be said to be

barred by limitation in terms of Article 109 of the Limitation Act or any

other provision of law or that the said suit is within limitation in terms of

Article 65 of the Limitation Act.

Relevant Articles for the decision of the present appeal are

Article 65, 109 or 110 of the Limitation Act. These Articles of the Regular Second Appeal No. 2549 of 2000 [10]

Limitation Act read as under: -

_____________________________________________________________ Description of suit Period of Limitation Time from which period begins to run

"65. For possession of Twelve Years When the possession immovable property of the defendant or any interest therein becomes adverse to based on title the plaintiff.

Explanation: For the

purposes of this article:-

(a) to (c ) xx xx

109. By a Hindu governed Twelve Years When the alienee by Mitakshara Law to takes possession of set aside his father's of the property. alienation of ancestral

property.

110. By a person excluded Twelve Years When the exclusion from a joint family becomes known to property to enforce the plaintiff. a right to share therein.

_____________________________________________________________

A Division Bench of this Court in Mohinder Singh (deceased

by LRs) and another vs. Kashmira Singh, AIR 1985 Punjab and

Haryana 215 has held to the following effect:-

" It is well settled principle of law that inheritance does not remain in abeyance and the heir after the death of the last male holder succeed to the property of the deceased in accordance with law. After the death of the last male holder his heir is not required to file any suit for possession on the basis of inheritance. He becomes full owner of his share in the property on the death of the last male holder. For establishing his right as an heir, he is not required to file a suit. However, a situation may arise when the heir is not in possession of the property inherited. In that event, a suit for possession may have to be filed and on contest the same may fall on the defendant proving that he has perfected his title by adverse possession. It is such Regular Second Appeal No. 2549 of 2000 [11]

type of suit which is governed by the provisions of Art. 65. Thus, it is clear that no period of limitation is prescribed for filing a suit for possession on the basis of inheritance".

The argument of learned counsel for the appellant is that

possession of the alienee under the sale deeds is of more than 12 years

before the filing of the suit in the year 1993, which is evident from the

mutation and the subsequent entries in the jamabandi, therefore, the suit is

beyond the period of limitation. The judgments referred to by learned

counsel for the appellants that the limitation for challenging the alienation is

12 years in terms of Article 109 of the Act are not applicable in the facts and

circumstances of the case.

In Chintaman Balwant Dharmadhikari's case (supra) and

Bindeshri Upadhya's case (supra), the Court has held that Article 126 of

the Limitation Act, 1908 corresponding to Article 109 of the Limitation Act,

1963 contemplate that in the case of an alienation, where the alienee has

taken possession of the property, the limitation only runs from the date

when the alienee takes possession. Son's knowledge of alienation by his

father ordinarily arises when he sees the alienee in possession; in case

where the alienee never gets possession, no limitation can arise under

Article 126 of the Limitation Act, 1908. In the present case, the alleged

alienee is a coparcener, therefore, his possession is not the one which

furnishes cause of action to the plaintiffs as the possession of one of the

coparceners i.e., defendant, is possession on behalf of other coparceners as

well.

Mothika Mutyalu's case (supra) deals with the question

where the coparcener was not born when alienation took place. It was held

that section 6 of the Limitation Act, 1963, would not be applicable in Regular Second Appeal No. 2549 of 2000 [12]

respect of after-born member of Hindu joint family to challenge alienation.

In Sudarshan Prasad's case (supra), the question arose

whether the alienation by grand-father would fall within Article 109 of the

Limitation Act. It was held that expression 'father' as used in Article 109 of

the Limitation Act, could in an appropriate case include grand-father and

even a great grand-father. It was also held that if Article 109 of the

Limitation Act, 1963, did not apply then the appropriate Article to be

applied to a suit of this kind was Article 65 of the Limitation Act.

In Ganapati Santaram Bhosal's case (supra), it was held that

alienation is governed by the provisions of Article 109 of the Limitation

Act. However, while dealing with the argument that the suit shall fail for

lack of specific relief in regard to the setting aside of sale was found to be

devoid of merit. The Court held to the following effect:-

" The second contention that the suit should have failed for lack of specific relief in regard to the setting aside of sales is also devoid of merit. It is now well settled that in a suit for partition by Hindu coparcener it is not necessary for him to seek the setting aside of the sale. It is sufficient if he asks for his share in the joint family properties and he be put in possession thereof and for a declaration that he is not bound by any alienation or interest of others created in such properties which fall to his share".

In all the judgments referred to above, it is apparent that the

alienee who has taken possession is not a member of the family but a

stranger. The rights of the third party were created by virtue of such

alienation and, therefore, the provisions of Article 109 of the Limitation

Act, were rightly found applicable. The alienee in the present case is not a

stranger but a member of the family of Shiv Dev Singh. Pritam Kaur is sister Regular Second Appeal No. 2549 of 2000 [13]

in law of the alienor that too on the basis of sale deeds executed without

legal necessity. The appellant is grandson of Shiv Dev Singh and a

coparcener as well. The defendant has not alleged hostile or adverse

possession to the knowledge of other co-owners. It is not the case of the

defendants that the possession of the present appellants amounted to ouster

of other co-owners.

On the other hand, learned counsel for the respondents has

relied upon Bhagirathi Rout vs. Gopal Charan Rout and others, AIR

1972 Orissa 206 wherein the Court has held that Article 109 of the

Limitation Act, is applicable only to suits to set aside alienation of ancestral

property by the father. This Article has no application to the suit for

recovery of possession of the property unauthorizedly alienated by the

Manager. It was held to the following effect:-

"Article 126 of the old Limitation Act corresponding to Article 109 of the 1963 Act is applicable only to suits to set aside alienation of ancestral property by the father. This Article has no application to suits for recovery of possession of property unauthorizedly alienated by the Manager. Such a suit will be governed by the residuary Article 144 of the old Act corresponding to Article 65 of the new Limitation Act....."

In the present case, Article 109 of the Limitation Act is not

applicable as there is no challenge to the alienation affected by Shiv Dev

Singh at the instance of the plaintiff. The plaintiff has asserted such sale

deeds to be null and void. Article 109 of the Limitation Act would be

applicable only if there is a challenge to alienation of ancestral property.

The challenge within the scope of Article 109 is when the right of Karta to

effect sale is not disputed but action is challenged either for want of legal Regular Second Appeal No. 2549 of 2000 [14]

necessity or consideration or for any other reason. It need to be noticed that

sale by Shiv Dev Singh in favour of his wife's sister is undisputedly without

any legal necessity. There is no finding that sale was for consideration.

Thus, the nature of transaction of sale in favour of Pritam Kaur is nothing

but gift. The suit pertaining to challenge to the gift deed was allowed by the

learned First Appellate Court, affirmed by this Court and Supreme Court.

Therefore, the reasons for ignoring the gift are pari materia applicable to the

present suit claiming possession by ignoring the sale deeds.

The question whether suit is governed by Article 65 or Article

109 of the Limitation Act is a pure question of law arising out of the

findings of fact recorded by the learned Courts below. Such question of law

could always be examined even if there is no reference to such Article

before the learned First Appellate Court. It is well settled that neither

evidence nor law is required to be pleaded. Since the suit is for possession

of immovable property based on title, it for the defendant to allege and

prove that his possession is adverse to the plaintiff. That is not the case set

up by the defendant.

In view of the above discussion, it is held that in terms of

Article 65 of the Limitation Act, the suit of the plaintiff is within the period

of limitation as it is a suit based on title.

In cross-objections, the plaintiff has claimed 1/3rd share in the

estate of Shiv Dev Singh. The said aspect has been dealt with in earlier

judgment dated 18.08.2004. The shares found due to each of the heirs have

not been found to be unjustified by the Hon'ble Supreme Court in its order

August 05, 2008. Therefore, the cross-objections are dismissed.

Thus, finding no merit in the present appeal, the same is Regular Second Appeal No. 2549 of 2000 [15]

dismissed except to the extent of modification of shares of the heirs of Shiv

Dev Singh as determined by this Court in its judgment dated 18.08.2004.

The appeal and cross-objections stand disposed of accordingly.

August 10, 2009 ( HEMANT GUPTA ) ks JUDGE