Satyabir Singh vs Shri Chand
2018 Latest Caselaw 1307 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

						Reserved on  21.5.2018            
 
						Delivered on 2.7.2018              
 

 
Case :- SECOND APPEAL No. - 81 of 2007
 

 
Appellant :- Satyabir Singh
 
Respondent :- Shri Chand
 
Counsel for Appellant :- Nipun Singh
 
Counsel for Respondent :- A.P.Pandey,Karuna Srivastava,Santosh Kumar Srivastava,U. Narain,V.Nandan
 

 
Hon'ble Siddharth,J.

Heard Shri Sumit Suri holding brief of Shri Nipun Singh, learned counsel for the appellant and Shri Santosh Kumar Srivastava, learned counsel for the respondent.

This is defendants' Second Appeal against the Judgment and Decree dated 01.11.2006, passed by Sri C.K. Kulshrestha, Additional District Judge, Court No.7, Muzaffarnagar in Civil Appeal No.05/2006 and Judgment and Decree dated 15.12.2005, passed by Civil Judge ( Senior Division), Kairana, Muzaffarnagar in Original Suit No.123/1995, Sri Chand Vs. Satyabir Singh, decreeing the suit of the plaintiff for damages along with interest @ 6% per annum.

The plaintiff instituted an Original Suit No.123 of 1995, praying for a decree of damages of Rs.24,327/- along with interest from 23.09.1985 to 13.11.1995, amounting to Rs.59,195.64 @ 2% interest per month and 2% interest per month on the amount of Rs.24,327/- from 14.11.1995 till the date of recovery from the defendant. The plaintiff's case is that the defendant claiming himself to be the owner of the property given at the foot of the plaint, executed a sale deed in his favour for a sale consideration of Rs.22,000/- on 23.09.1985; that it was agreed that possession of the property shall be given later; that during this period one Tilak Ram instituted an Original Suit No.252/1985 in the court of Munsif Carana, claiming himself to be the owner of the suit property; that in the aforesaid suit defendant gave his statement and admitted Tilak Ram to be the owner of the property on the basis of family settlement for last 10 years and the suit was decreed in favour of Tilak Ram on 06.10.1993; that therefore defendant was not the owner of the property on the date of sale deed and he has committed fraud against the plaintiff and hence the suit.

Defendant filed his written statement, stating that he never executed any sale deed dated 23.09.1985 in favour of plaintiff and the same is forged and fabricated document; that defendant was neither the owner nor in possession over the suit property and therefore there is no question of selling the same to the plaintiff; that since possession of property is required to be delivered to the purchaser on the date of sale deed and it was not delivered therefore, it is clear that the sale deed is the forged document; that plaintiff was required to enquire prior to sale deed who is the real owner of the property and in possession; that Tilak Ram became owner of the property in 1982 on the basis of family settlement and therefore there was no question of sale by the defendant; that the suit is not maintainable; from the decree of the Original Suit No.252 of 1985, title of Tilak Ram is clear.

On the basis of the pleadings of the parties, the trial court framed the following issues,

(I). Whether the plaintiff is entitled to get Rs.24,327/- from the defendant as stated in the plaint?

(II). Whether the plaintiff is entitled to interest @ 2% per month from the defendant w.e.f., 24.09.1985?

(III). Whether defendant has executed the sale deed dated 23.09.1985 in favour of plaintiff and has received Rs.22,000/- as sale consideration?

(IV). Whether the suit is barred by time?

(V). Whether there is no property in existence which has been described in the sale deed dated 23.09.1985? If yes, then its effect?

(VI). Whether the plaintiff is entitled to any relief?

Trial Court decided issue no.3 holding that defendant executed sale deed dated 23.09.1985 in favour of plaintiff after taking Rs.22,000/- from him. Issue no.1 was decided holding that plaintiff is entitled to get back Rs.22,000/- and expenses of Rs.2,327/-, total amount of Rs.24,327/- from the defendant. Issue no.2 was decided holding that plaintiff is entitled to interest @ 6% per annum on the amount of Rs. 24,327/- from defendant. Issue no.4 was decided holding that suit is not barred by time. Issue no.5 was decided holding that property in dispute is identifiable and in existence and finally issue no.6 was decided holding that plaintiff's suit is required to be decreed and it was accordingly decreed by the Judgment and Decree dated 15.12.2005 by the trial court.

Defendant preferred a the Civil Appeal No.05 of 2006 before the lower appellate court, wherein no point of determination were framed and issues decided by the trial court were again considered and affirmed by the lower appellate court.

In this Second Appeal record of the trial court was summoned by the order dated 02.11.2007 without admitting the appeal and the appeal is being listed under Order-41, Rule-11, since then. Since the lower court record has been received, the Counsel for the parties have agreed that the appeal may be admitted and finally heard on the following substantial question of law,

(I). Whether the suit of the plaintiff was barred by time in view of Article-55 of Limitation Act, 1963 ?

Accordingly, with the consent of the Counsel for the parties, the appeal is admitted on the above noted substantial question of law and is being heard finally, since Counsels have prepared the case and were earlier granted adjournments on 16.04.2018, 23.04.2018, 02.05.2018, 03.05.2018, 07.05.2018 and 14.05.2018 for preparing the case.

The learned Counsel for the defendant-appellant has argued that the starting point of limitation of 3 years provided under Article-55 of the Limitation Act, 1963 would be the date of sale deed i.e., 23.09.1985. His argument is that the court below has wrongly held that after the original suit no.252 of 1985, instituted by Tilak Ram, was decided on 06.10.1993 and it became clear that the sale deed dated 23.09.1985 was executed by defendant without authority in favour of plaintiff and despite notice dated 28.10.1993 by plaintiff to defendant to return the sale consideration, no money was returned, the suit was instituted by plaintiff on 17.11.1995, which was within 3 years period of limitation from the date of notice dated 17.11.1995.

The learned Counsel for the defendant- appellant has argued that it has been held by the Apex Court in the case of V.N. Rv. Ramaswamy Chettiar and another, appellants Vs. R.Muthukrishna Ayyar and others, respondents, AIR 1967 SC 359, that roughly speaking cases regarding recovery of damages on the basis of indemnity bond or for the breach of a contract can be classified under 3 heads:

(a). Where from the inception, the vendor had no title to convey and vendee has not been put in possession of property:

(b). Where the sale is only voidable on the objection of third parties and possession is taken under the voidable sale; and

(c). Where though title is known to be imperfect the contract is in part carried out by giving possession of properties.

It has been held that in the first class of cases, the starting point of limitation will be the date of sale and in the second class of cases, the cause of action can a rise only it is found that there is no good title and in the third class of cases, the cause of action will arise, when the possession of the party is disturbed.

The learned Counsel for the defendant- appellant has stated that his case comes within the first class of case since from the very inception of sale deed, the vendor had no title to convey to the plaintiff and plaintiff clearly admits in this plaint that he was not put in possession of the property in dispute. His argument is that the period of limitation against the plaintiff started running from the date of sale deed itself i.e., 23.09.1985 and findings of the court below that it started running from the date when despite notice dated 28.10.1993 given in pursuance of the Judgment and Decree dated 06.10.1993 in the Original Suit of Tilak Ram, defendant, failed to return the sale consideration, is legally incorrect and can not be sustained.

The learned Counsel for the appellant has also relied upon the Judgment in the case of Baldeo Narain Singh and others, appellant Vs. Babuwaji Mehton and another, respondents, AIR 1960 Patna, paragraph no.5 and Bhagyathammal, appellant Vs. Dhana Bhagyathammal and others, respondents, AIR 1981 Madras, 303, paragraph no.10, which are regarding the same preposition as stated above.

The learned Counsel for the plaintiff- respondent has relied upon the Judgment in the case of Indian Oil Corporation Limited Vs. S.P.S. Engineering Limited, 2018 Law Suit (Del) 1283, paragraph no.15, which is a case regarding termination of contract due to inability of contractor to fulfill it and is of no relevence for deciding this case.

Second case relied upon by him is MC Nalley Bharat Engineering Company Limited Vs. Benoy Krishna Bose, 2001 Law Suit (Cal) 389, paragraph no.17. It is a case, where the question was what would be the starting point of limitation, where the loss can not be quantified till some time after the breach. This case will not help the plaintiff-respondent, since in the present case the breach of the contract was from the very inception of sale deed.

Third case relied upon is Nav Bharat Corporation Vs. Madhya Pradesh Electricity Board, 2006 Law Suit (MP) 17, paragraph no.6 (C). The Judgment is regarding breach of contract of Commercial contract regarding supply of goods and the dispute was whether Article -55 of Limitation Act will apply to the claim for monitory compensation or not and whether word ''compensation' in Article-55 of Limitation Act has the same meaning as assigned in Section-73 of the Contract Act.

Fourth Judgment relied upon is Chandrabhan Banshilal Ramratan Das Vs. Municipal Council Bikaner,1974 Law Suit(Raj.) 14 wherein dispute was what would be starting point of limitation for adjustment of the amount deposited for construction of septic tank and soak pit by Municipal Council, when it refused to adjust the amount. This case has no application to the facts of the case of the plaintiff.

Last case relied upon by the Counsel for the plaintiff- respondent is Sundaram Finance Limited Vs. Noorjahan Beevi and another, 2016, Law Suit SC 616. In this case the question was whether the limitation period begins from notice recalling loan amount or from realization of sale proceeds of mortgaged assets. This case is also of no help for deciding the issue involved in this case.

After considering the rival submissions and going through the Judgments of the Courts below and the record of the Courts below, this Court finds that in the present case from very inception of the sale deed, the defendant had no title of the suit property nor he delivered possession of the same. Therefore, soon after the sale deed dated 30.08.1985 a third party, Tilak Ram, instituted Suit No.252 of 1985 praying for a decree of permanent injunction against the plaintiff as well the defendant from interfering in his peaceful possession over the suit property and the suit was decreed by the trial court on 06.10.1993. After the suit was decreed plaintiff sent a legal notice dated 28.10.1993 to defendant, praying for return of Rs.24,327/- along with interest within 15 days from the receipt of notice and when defendant did not responded to the notice, suit was instituted by him on 17.11.1995. The plaintiff claims that the period of limitation will run against him from the date of receipt of notice dated 28.10.1993.

The claim of the plaintiff can not be accepted regarding the starting point of limitation for instituting the suit, since he was never given possession of the suit property either prior to or after the execution of the sale deed by the defendant. The sale deed in dispute was clearly executed by defendant in favour of plaintiff without having any title to the property and therefore, as per V.N. Rv. Ramaswamy Chettiar and another, appellants Vs. R.Muthukrishna Ayyar and others, respondents (supra), Baldeo Narain Singh and others, appellant Vs. Babuwaji Mehton and another (supra), and Bhagyathammal, appellant Vs. Dhana Bhagyathammal and others, respondents (supra), cause of action for instituting the suit by the plaintiff arose on the date of sale deed dated 23.09.1985 itself and not after the original suit no.252 of 1985 instituted by Tilak Ram was decided on 06.10.1993. The Counsel for the plaintiff- respondent has not produced any law to the contrary and therefore, the substantial question of law framed in this appeal is decided holding that the suit of the plaintiff was barred by limitation provided under Article 55 of the Limitation Act, 1963.

The Judgments and decrees passed by both the Courts below are not in accordance with law and are hereby set aside.

The Second Appeal is allowed. However under the facts and circumstances of the case, the parties shall bears their own costs.

Order Date :-2.7.2018

Atul kr. sri.