Kashiram vs Smt. Parvati Shivare
2023 Latest Caselaw 971 Chatt

                                       1

                                                                               AFR

             HIGH COURT OF CHHATTISGARH, BILASPUR



                     Judgment Reserved on 05.01.2023

                     Judgment Delivered on 15.02.2023

                              FA No. 44 of 2020

1. Kashiram S/o Shobhitram Aged About 72 Years R/o Village Aheri, Police
    Station Nandini, Tehsil Ahiwara, District Durg Chhattisgarh.

2. Sukhchand S/o Kashiram Aged About 33 Years R/o Village Aheri, Police
    Station Nandini, Tehsil Ahiwara, District Durg Chhattisgarh.

3. Malikram S/o Kashiram Aged About 19 Years R/o Village Aheri, Police
    Station Nandini, Tehsil Ahiwara, District Durg Chhattisgarh. (Defendants).
                                                                --- Petitioners

                                    Versus

1. Smt. Parvati Shivare W/o Rajendra Shivare Aged About 40 Years R/o
    Village Khopli, Police Station Utai, District Durg Chhattisgarh. (Plaintiff),

2. Ravindra Kumar Shivare S/o Rajendra Shivare Aged About 20 Years R/o
    Village Khopli, Police Station Utai, District Durg Chhattisgarh.

3. State of Chhattisgarh Through Collector, Durg (Defandands No. 4),
    District : Durg, Chhattisgarh

4. Sub Registrar Sub Registrar Office, Dhamda, Tehsil Dhamda, District
    Durg Chhattisgarh. (Defandants No. 5).                      --- Respondents

For Appellants : Mr. Akash Kumar Kundu, Advocate.

For Respondents 1 to 3 : Mr. Pushpendra Kumar Patel, and Pawan Kumar Kashyap, Advocate.

For the State : Mr. Raghavendra Verma, Govt. Advocate.

Hon'ble Shri Justice Goutam Bhaduri, Judge & Hon'ble Shri Justice N.K. Chandravanshi, Judge

C A V Judgment

Per Goutam Bhaduri, J

1) This appeal is against the judgment and decree dated 30.11.2019 passed

by the learned 7th Additional District Judge, Durg in Civil Suit

No.47-A/2012 whereby the learned Court has decreed the suit in favour of

the plaintiffs and declared the sale-deed dated 31.05.2005 as null and

void, which pertains to the land bearing Kh.No.9, 10, 13 admeasuring

1.21, 1.34 and 0.89 total 3.44 hectares situated at village Aheri,

P.H.No.26, Tahsil Dhamdha. It was further decreed that the defendants 1

to 3 and their agents shall be permanently restrained from entering into or

interfering with the land as they have no right to enter into and interfere

with it. Being aggrieved by such order, the instant appeal is by

defendants 1 to 3.

2) As per the plaint averments, the suit was filed by Smt. Parvati Shivare in

her individual capacity as also being the mother of minor son Ravindra

Kumar Shivare who was arrayed as Plaintiff No.2 seeking a declaration

that the sale deed dated 31.05.2005 made by the defendants as null and

void and permanent injunction was also prayed for. The order sheet

would show that the suit was filed on 12.06.2012. The plaintiffs averred

that the lands situated at village Aheri, Patwari Circle No. 26, Tahsil

Damdha, Sub-tahsil Ahiwara District Durg, bearing Kh. Nos. 9, 10, 13

admeasuring 1.21, 1.34, 0.89 hectares total 3.44 hectares as mentioned

in Plaint Schedule-A presently stand recorded in the name of plaintiff and

her son and the plaintiff is in possession of it. It was stated that

defendants 1 to 3, the appellants herein, namely Kashi Ram, Sukhchand

and Malik Ram got the sale deed executed in their favour by an impostor

lady by personating herself as Parvati Shivare and the forged sale deed

got executed in their favour, which is required to be set aside as null and

void. The plaintiffs have claimed that they came to know about such

forged sale deed when the defendants 1 to 3 filed application before the

Tahsildar to get their names mutated, which stood rejected on

08.08.2005. The said order was challenged in appeal and on 06.11.2006,

the SDO also rejected the appeal preferred by the defendants. Against

such mutation proceeding, the defendants 1 to 3 again filed a revision

before the Commissioner, Raipur which was pending. The cause of action

therefore was stated to be firstly on 31.05.2005 and subsequently when

the application was filed for mutation before the Tahsildar was rejected on

08.08.2005 and subsequent thereto on 06.11.2006 when the appeal was

dismissed by the SDO. The plaintiff therefore prayed that the sale deed

dated 31.05.2005 be declared as null and void. The plaintiffs also averred

that they filed FIR which is also pending.

3) The defendants stated that the plaintiffs averred that the cause of action

arose on 31.05.2005 when the suit was filed, but the suit was filed beyond

the period of 3 years, therefore, it was barred by time. Further defence

was raised that the plaintiffs were not in possession of the suit land and

they maintained the stand that on 31.05.2005, the plaintiff on behalf of her

son executed the sale deed in favour of defendants for a valuable

consideration and the sale deed contains the photographs of seller and

sale was got registered. It was stated that the plaintiff knowing fully well

about the valid execution of sale deed way back in 2005 was sitting idle

for 6-7 years, which would show that the sale deed in fact was executed.

The defendants further stated that the land was purchased by sellers from

one Harbhajan Singh and others but subsequent to sale to the

defendants, their motive changed and in order to get further amount, it

was alleged that the sale deed is fake. Further defence was raised that

after plaintiff no.2 who was said to be minor at the time of filing suit

became major and subsequently even after achieving the age of majority,

he has not challenged the sale. Therefore, the suit would be barred under

the law of limitation. Further defence was made that without claiming

relief for possession, simplicitor suit for declaration was filed as the

defendants were placed in possession and proper court fee was not paid

as per the valuation of the sale deed, therefore, the plaint is liable to be

rejected.

4) On the basis of pleadings, the learned court below framed 5 issues and

predominantly with respect to issue nos.1 & 2, the finding was given that

the sale deed dated 31.05.2005 got executed by defendants 1 to 3 in

respect of the suit land total admeasuring 3.44 hectares would be a nullity

and therefore, consequently the order of permanent injunction was

passed in favour of the plaintiffs. Being aggrieved by such order, this

appeal was filed by the defendants.

5) Mr. Akash Kumar Kundu, learned counsel appearing for the appellants

would submit that the learned trial Court failed to appreciate the fact that

the suit was barred by law of limitation. He would further submit that

even if the cause of action is said to have arisen on three occasions i.e.,

31.05.2005 when the alleged fake sale deed was executed or on

08.08.2005 when the application for mutation was rejected by the Naib

Tahsildar or on 6.11.2006 when the appeal preferred by them was

rejected by the SDO. He would submit that however the suit was filed in

the year 2012 which is beyond the period of 3 years. He would further

submit that the suit was initially filed by the mother herself and on behalf

of minor son but subsequently during the pendency of the suit, when the

minor became major, he did not challenge the sale deed as such he also

lost his right to challenge the same. He further submits that the deposition

of plaintiff-witnesses would show that the plaintiffs were not in possession,

therefore, the suit filed for simplicitor declaration without claiming any

possession would be barred. With respect to law of limitation, he placed

reliance in Vishambar Versus Laxminarayan (dead) through Lrs

(2001) 6 SCC 163 and Narayan Versus Babasaheb (2016) 6 SCC 725.

6) Mr. Pushpendra Kumar Patel, learned counsel appearing for the

respondents/plaintiffs assisted by Mr. Pawan Kumar Kashyap, Advocate

would submit that the defendants hatched conspiracy in executing a fake

registered sale deed by an impostor lady, therefore, the learned trial Court

has rightly held the sale deed as null and void. He further submits that

since the revenue proceedings were pending, the suit does not suffer from

any limitation, therefore, the judgment and decree passed by the learned

Addl. District Judge does not call for any interference by this Court.

7) We have heard learned counsel for the parties at length and have also

perused the record.

8) According to the plaint allegations, the suit property situated at village

Aheri Patwari Circle No. 26, Tahsil Dhamdha, Sub-Tahsil Ahiwara District

Durg, bearing Kh. Nos. 9, 10, 13 admeasuring 1.21, 1.34, 0.89 hectares

total 3.44 hectares as mentioned in Plaint Schedule-A was purchased by

the defendants 1 to 3/appellants herein by false personification of the

original owner Smt. Parvati Sivare and got the sale deed executed on

31.05.2005. According to the plaintiff/respondents 1 & 2, the sale deed

dated 31.05.2005 was forged and fabricated document. The certified

copy of the sale deed is marked and exhibited as Ex.P-1 and the original

sale deed is filed by the defendants as Ex.D-3. The alleged sale deed is

shown to be executed by Smt. Parvati Shivare for herself and on behalf of

minor son Ravindra Kumar aged about 8 years in favour of 3 purchasers,

who are the appellants herein. The suit was filed on 12.06.2012. Perusal

of the plaint shows that initially the suit was filed by Parvati Shivare and

Ravindra Kumar, the then minor who was represented through plaintiff

No.1 the mother. Subsequently, Ravindra Kumar became major on

30.06.2017 and was transposed as defendant no.6 and on 06.06.2019 the

minor did not file any counter or made averments to challenge the same

individually.

9) According to the plaintiffs, the sale deed dated 31.05.2005 was not

executed by her, but defendants 1 to 3 conspired and got it executed by

producing an impostor as Parvati Shivare which was assisted by Ram

Kumar and Harish Kumar, being witnesses to the sale-deed. The

statement of P.W.1 Parvati Shivare would show that it is stated that she is

an illiterate lady and her son was minor, therefore, defendants 1 to 3 took

advantage of it and got a a fake sale-deed. She further stated that Harish

Kumar who appears to be the witness in the said-sale deed had abducted

the seller and kept them in confinement for a period of one month. It is

further stated that the land was looked after by her husband Rajendra

Shivare. She has stated that in the sale deed her caste was shown as

Satnami whereas he belongs to Meher caste, therefore, it shows that the

forged document was executed.

10) In cross examination of the witness, she deposed that she purchased 10

acres of land from Harbhajan Singh, Haribansh Singh, and Swarn Kaur

and Swarn Kaur by Registered Sale Deed dated 26.04.2005 and one part

was purchased from Harbansh Singh by other sale deed 26.04.2005.

She has further stated that the the lands of said two sale deeds were

jointly purchased in the name of plaintiff and her minor son Ravindra

Kumar and they were put in possession and their names were recorded.

In further cross examination of this witness, the earlier sale deeds by

which she purchased the properties were confronted by

defendants/appellants. Those sale deeds are marked as Ex.D-1 & D-2

and on further query, she admits that on such documents, i.e., on Ex.D-1

& D-2, her photographs are placed at portion 'A' to 'A' wherein she had

signed as purchaser. The said sale deed Ex.D-1 and D-2 have been filed

in original along with the entire stamp papers before the Court. Those

earlier sale deeds of initial acquisition by Parvati Shivare in original were

produced by the defendants. There is no explanation by the plaintiffs to

the issue that how the earlier acquisition of the title document came into

the possession of subsequent purchaser, the defendant appellant.

Further more, when the Photographs of Parvati Sivare attached in D-1 &

D-2 at 'A' to 'A' portion are compared with the original sale-deed (Ex.D-3)

which is under challenge, it shows the same photographs of Parvati

Shivare, which is marked from A to A. On a bare comparison of

photographs, it shows that the same is earlier as a purchaser in D-1 & D-2

and subsequently as seller in D-3.

11) According to the plaintiff, on 29.05.2005, a mob of approximately 108

persons ransacked the house of plaintiff and looted the entire goods,

jewelry, documents etc., kept in the house wherein the earlier two sale

deeds were also looted. The plaintiffs averred that the said documents

were misused and subsequently a sale deed was executed. P.W.2

Rajendra son of Pipa Ram Shivare, the husband of the plaintiff in cross-

examination has categorically admitted the fact that in a report of fake

sale deed Ex.P.6, it is written at 'B' to 'B' portion that the original Rin

Pustika and the documents of title were available with Harish Pillai. A

reading of Ex.P.6 shows that it is a report made by P.W.2 Rajendra

Shivare to the Police wherein it is narrated that after transaction, the Rin

Pustika was prepared and the said Rin Pustika as also documents of land

were with one Harish Pillai, who is resident of Jamul by whom land was

fraudulently sold and possession was jointly delivered to Kashiram,

Khubchand and Malikram. P.W. 2 has further admitted the fact that

neither any ransack was created at his house by defendants 1 to 3 nor

any document like Rin Pustika etc., were looted by them. Therefore, the

statements of Parvati Shivare (wife) and Rajendra Shivare (the husband)

contradicts with each other. Under such circumstances, when the trace of

original nucleus of title properties are produced by defendants, it would

have a material bearing to the issue. It is also a normal human conduct

that in case of property transaction, the earlier sale deeds are transferred.

On comparison of sale-deed Ex.D-3, which is in original with the certified

copy of sale deed marked by the plaintiff as Ex.P-1, it shows that no

whisper was made by the plaintiff that Ex.P-1 which is a certified copy

does not bear the photographs of plaintiff Parvati Shivare as seller. The

silence on this issue would amount to an admission by silence. If the

plaintiffs claim that the sale deed Ex.P-1 = Ex.D-3 has been falsely

executed by an impostor then at least it was expected that the plaintiff

would deny the affixation of her photographs on such sale deed which

was made in favour of defendants 1 to 3 and would have made vehement

opposition.

12) The plaintiffs and defendants both have filed the report of hand-writing

experts. The plaintiffs tried to prove that the thumb impression was not

that of Parvati Shivare. At the same time, she filed the report of hand

writing expert Sunanda Dange whereas the defendant has also filed the

report of hand-writing expert Ulhas S. Athale. The handwriting expert

Sunanda (P.W.3) was examined on 26.04.2019. She stated that the

photographs on disputed sale-deed were damaged, therefore, a

comparison was made by the photographs of photocopy along with thumb

impression. A perusal of the record shows that Ex.P-1 was a certificated

copy of sale deed wherein the thump impression was not clear whereas

subsequently in original sale deed (Ex.D-3) which was marked by D.W.1

of such purchase contains distinct photographs and clear thumb

impression. It would be a presumption that while the said registration was

made, the official act was performed properly by the Sub-Registrar to

draw a presumption of correctness unless proved otherwise. Plaintiff

Ravindra Shivare after becoming major was transposed as defendant

and has filed his affidavit and the affidavit was sworn on 10.07.2019 after

Ex. D-3, the original sale deed came to fore during evidence. In his

statement, no explanation has been made as to whether the photographs

attached in the sale deed were not that of his mother. The sale deed

when bears photographs of seller and was executed before Sub-

Registrar, it would have a presumptive value of correctness.

Consequently, no extra-ordinary weightage can be given to the report of

expert produced by the plaintiff.

13) According to the plaintiff, after the forged sale deed was executed, the

plaintiff was dispossessed. The proceeding of this Court shows that an

application was filed by the plaintiff for restoration of possession wherein,

this Court by order dated 16.2.2021 observed that since the application

was moved before the Naib Tabsildar by the plaintiff on 01.07.2020 to

restore her possession pursuant to the decree of permanent injunction.

This Court while granting status quo, the Naib Tahsildar, Up Tehsil

Ahirwara was directed not to proceed further with the application filed by

the respondent no.1/plaintiff seeking restoration of possession meaning

thereby the plaintiff is not in possession. Thereafter the appeal came up

for final hearing. Further, at Para 24 of cross examination of the plaintiff,

the respondent has clearly deposed that she is not in possession. The

document filed in this appeal therefore concludes the fact that the

plaintiff is not in possession. The order of Court dated 16.02.2021 shows

that on on the basis of decree of permanent injunction issued against the

appellants, the respondent made efforts to get back her possession which

was restrained by this Court. The effect would be that when the plaintiff

was not in possession despite that without claiming the relief for

possession as consequential relief, the suit simplicitor for declaration and

injunction was filed. Therefore such suit without a suit simplicitor only for

declaration would not lie u/s 34 of the Specific Relief Act.

14) In respect of the subject touching the limitation of filing of suit, records

shows that the suit was filed on 12.06.2012 by mother along with her

minor son. The plaint allegations say that the cause of action arose firstly

on 31.05.2005 when the sale deed was registered and subsequently on

8.08.2005 when the application for mutation was rejected by the Naib

Tahsildar and lastly on 06.11.2006 when the appeal preferred by the

appellants was dismissed by the SDO. Therefore the last cause of action

was said to have arisen on 06.11.2006. The caption of the plaint would

show that the suit was filed seeking declaration of the sale deed dated

31.05.2005 to be null and void along with prayer for permanent injunction.

15) Article 58 of the Limitation Act, 1963 purports that to obtain any

declaration, the limitation period would be 3 years when the right to sue

first accrues. Admittedly suit was not filed within 3 years from the last

date of accrual of cause of action. The proceeding of the trial Court would

show that minor Ravindra Kumar attained the age of majority during the

pendency of suit as his date of birth was shown to be 01.07.1999.

Therefore, on the application of plaintiff, he was transposed as defendant

subsequent to attaining the age of majority. The proceeding does not

show that any separate averments or claim was made by son on attaining

majority to challenge the sale. However, written statement was filed by

him claiming himself to be the owner of half of the suit land. No separate

court fee was also affixed to such claim. As per Article 60(a) of the

Limitation Act, in order to set aside the transfer of property made by the

guardian of a ward, when the wards attained the age of majority thereafter

within 3 years the claim is required to be filed to challenge such action.

Respondent no.6 has not filed any such claim. The Supreme Court in

case of Narayan 2016 6 SCC 725 (supra) has held that limitation to file

suit when the minor attains the age of majority to challenge the same

would be 3 years. At para 26, the Court held that there cannot be any

doubt that a suit by quondam minor to set aside the alienation of his

property by his guardian is governed by Article 60. To impeach the

transfer of immovable property by the guardian, the minor must file the

suit within the prescribed period of three years after attaining majority.

Therefore, the quondam minor plaintiff challenging the transfer of an

immovable property made by his guardian in contravention of Sections

8(1) and (2) of the 1956 Act and who seeks possession of property can

file the suit only within the limitation prescribed under Article 60 of The

Limitation Act.

16) Further in case of Vishwambhar (2001) 6 SCC 163 (supra), the

Supreme Court had an occasion to deal with similar question that in such

circumstances whether the alienation made by the guardian is void or

voidable. Interpreting section 8(2) of the Hindu Minority and Guardianship

Act, 1956, it is laid down, inter alia, that the natural guardian shall not,

without previous permission of the Court, transfer by sale any part of the

immovable property of the minor. In sub-section (3) of the said section, it

is specifically provided that any disposal of immovable property by a

natural guardian, in contravention of sub-section (2) is voidable at the

instance of the minor or any person claiming under him. There is little

scope for doubt that the alienation made by the guardian which are under

challenge in the suit were voidable at the instance of the plaintiffs and the

plaintiffs were required to get the alienations set aside if they wanted to

avoid the transfers and regain the properties from purchasers.

17) Therefore, applying the aforesaid legal position to the instant case, the

minor on attaining the majority should have filed the suit for setting aside

such sale in separately instituted claim. After attaining the age of majority

the alienation is not challenged within a period of 3 years as per Article

60(a) of the Limitation Act. Therefore, no relief can be granted to the

minor on such issue.

18) Lastly perusal of the order of the learned trial Court would show that the

Court held that the suit is within limitation giving benefit of section 12 of

the Limitation Act. Reading of section 12 would show that it excludes

certain time in legal proceeding for counting a limitation for a suit, appeal

or application. Sub-section (1) purports that in computing the period of

limitation for any suit, appeal or application, the day from which such

period is to be reckoned, shall be excluded. Likewise in computing the

period of limitation for an appeal, or an application for leave to appeal or

for revision or for review of judgment, the day on which the judgment was

pronounced and the time requisite for obtaining a copy of decree or

appealed from or sought to be revised shall be excluded. The learned

trial Court has completely misdirected itself to say that since the

proceedings were pending before the Revenue Board that period shall be

excluded to file a suit. Section 3 of the Limitation Act prescribes that even

when the prescribed period of limitation is not pleaded as a defence, if

claim is barred by limitation, the same would be excluded. Therefore the

Court can always look into those facts whether prima facie the suit was

filed within law of limitation.

19) Hon'ble Supreme Court in V.M. Salgaocar and Bros. vs. Board of

trustees of Port of Mormugao, (2005) 4 SCC 613 have held that even if

defendant intentionally does not raise the plea of limitation, if the suit is

ex-facie barred by law of limitation, court has no choice but to dismiss the

same. Their Lordships have held as under:

"[20] The mandate of Section 3 of Limitation Act is that it is the duty of the court to dismiss any suit instituted after the prescribed period of limitation irrespective of the fact that limitation has not been set up as a defence. If a suit is ex-facie barred by the law of Limitation, a Court has no choice but to dismiss the same even if the defendant intentionally has not raised the plea of limitation."

20) Applying the aforesaid principle on plain reading, we are of the view that

the suit filed by the plaintiffs is barred by limitation for the reasons

aforementioned and further since the possession was not claimed despite

plaintiffs are not in possession and only declaratory decree similicitor was

asked for, the same suit would be barred u/s 34 of the Specific Relief Act.

In view of the above, the appeal is allowed. The judgment and decree of

the learned court below be is set aside. Accordingly, a decree be drawn.

No order as to costs.

                   Sd/-                                                 Sd/-

            (Goutam Bhaduri)                                   (N. K. Chandravanshi)
                 Judge                                                Judge




Rao