Jharkhand High Court

Pradeep Kumar Agarwal vs Ujjal Das on 22 July, 2025

Author: Anubha Rawat Choudhary

Bench: Anubha Rawat Choudhary

      IN THE HIGH COURT OF JHARKHAND AT RANCHI

                     S.A. No. 136 of 2022

Pradeep Kumar Agarwal, aged about 65 years, S/o Late Jagdish Narayan
Agarwal, resident of Kashim Bazar, P.O. Rajmahal, P.S. Rajmahal,
District Sahibganj
    ...      ...     Appellant/Respondent 1st Party/Defendant 1st Party
                              Versus
1. Ujjal Das, S/o Madav Narayan Das, resident of Mahajan Toli, P.O. &
   P.S. Rajmahal, District Sahibganj
                 ...            ...          Respondent/Appellant/Plaintiff
2. Purnima Das, W/o Late Shiv Narayan Das (Deleted vide order dated
   06.05.2024)
3. Rajiv Das
4. Chandan Das
   Sl. No. 3 & 4 are sons of Late Shiv Narayan Das, R/o Village Mahajan
   Toli, P.O. +P.S. Rajmahal, Dist. Sahibganj
5. Prativa Das, W/o Ashok Kumar Majumdar, resident of Boroi, P.O. &
   P.S. Harishchandpur, District Malda (W.B.)
6. Taposi Das, W/o Puran Chandra Mandal, resident of Jalalpur, P.O. &
   P.S. Kaliya Chak, District Malda (W.B.)
7. Manosi Das, R/o village Mahajan Toli, P.O. & P.S. Rajmahal, District
   Sahibganj
   Sl. No. 5 to 7 are daughters of Late Shiv Narayan Das.
8. Mamata Das, W/o Late Madhav Narayan Das, resident of Mahajan
   Toli, P.O. & P.S. Rajmahal, District Sahibganj
9. Pratima Das @ Sahs, W/o Binod Chandra Saha, D/o Late Madhav
   Narayan Das, resident of Mahajan Toli, At & P.O. & P.S. Rajmahal,
   District Sahibganj
10.Geeta Das, W/o Bhupen Sarkar, R/o Shiv Nagar, P.O. & P.S. Farakka,
   District Murshidabad (W.B.)
11.Ganga Narayan Das @ Santosh Das, S/o Late Satyanarain Das
12.Sri Narayan Das, S/o Late Satya Narayan Das,
13.Ambika Das, D/o Late Satya Narayan Das
   Sl. No. 11 to 13 are R/o Mahajan Toli, P.O. & P.S. Rajmahal, District
   Sahibganj
14.Kalyani Das, W/o Nitay Chandra Sen, R/o At, P.O. and P.S. Manick
   Chak, District Malda (W.B.)
   ... Respondent 2nd Party/Respondent 2nd Party/Defendant 2nd Party


                               1
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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For the Appellant : Mr. Majul Prasad, Sr. Advocate Mr. Akhouri Prakhar Sinha, Advocate Mr. Aman Kedia, Advocate Mr. Harshit Jain, Advocate For the Respondents : Mr. Sudhir Kumar Sharma, Advocate Mr. Harshit Pradhan, Advocate Mr. Shashi Shekhar Dwivedi, Advocate

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nd 20/22 July 2025

1. Heard the learned counsel appearing on behalf of the parties.

2. This appeal has been filed against the judgment dated 16.06.2022 (Decree sealed and signed dated 04.07.2022) passed by the learned District Judge-I, Rajmahal in Civil Appeal No. 16 of 2010 reversing the judgment and decree dated 16.03.2010 (decree sealed and signed on 30.03.2010) passed by the learned Sub-ordinate Judge-III, Rajmahal, District Sahibganj in Title Suit No. 40 of 1993.

3. The learned senior counsel for the appellant has referred to the substantial question of law framed vide order dated 18.12.2023, which is as under: -

"(i) Whether the learned court of appeal below has failed to appreciate the Sale Deed No.3576 dated 24.02.1960 as 'Bharnanama' and cancelled the same after long lapse of limitation as envisaged under Article 59 of the Limitation Act, 1963, is sustainable in law?

4. The learned senior counsel for the appellant has referred to the plaint and has submitted that the plaint was filed by Ujjal Das S/o Madhav Narayan Das against the defendant 1st party, namely, Pradeep Kumar Agrawal and defendant 2nd party were the persons from the extended family of Ujjal Das.

5. The plaintiff claimed that the suit property belonged to Late Lakhi Narayan Das great grand-father of the plaintiff and his sons succeeded the property in the year 1944 and came in possession of the same and as per the plaint, Late Nagesh Chandra Das resident of Calcutta had some

business relation with his late grand-father Satya Narayan Das. It was the further case of the plaintiff that to avoid tax liability Late Nagesh Chandra Das executed a fictitious sale-deed with incorrect plot number at Malda. It was his case that the suit property is situated at Rajmahal in Bihar and could not have been registered at Malda and that fictitious property at Malda was included so as to execute the sale deed at Malda. It was his further case that in spite of fictitious sale deed, the suit property remained in possession of the plaintiff's father and grandfather as usual and Nagesh Chandra Das, as long as he was alive, never claimed the property from the plaintiff or their predecessor in interest.

6. It was the further case of the plaintiff that during the settlement operation, one Hari Shankar and Prem Shankar claimed the property and the uncle of the plaintiff Shiv Narayan Das registered the claim of Hari Shankar and son of Gauri Shankar who died in the meanwhile. It is the case of the plaintiff that the Settlement Officer found that the plaintiff and his father were in possession of the property.

7. It was further case of the plaintiff that Late Jagdish Narayan had some business jointly with Late grand-father of the plaintiff and he played a trick with Hari Shankar and got a sale deed No. 6147 of 1987 executed for the suit property knowing fully well that Hari Shankar and his late brother Gouri Shankar had no title and possession over the suit property. A proceeding under Section 145 of Cr.P.C. was instituted which was transferred to the court of Executive Magistrate, Sahibganj for the suit property and ultimately, an order was passed declaring the possession of Hari Shankar and others in the said proceeding. It was his case that the Settlement Officer had decided the title of the plaintiff in favour of his father and uncle, but the records of the Settlement Officer was managed to be removed from the office of the Settlement Officer which became untraceable.

8. In the meantime, the defendants had filed a petition for mutation in his name with respect to the suit property before the Circle Office,

Rajmahal, which was allowed in favour of defendant 1 st party, against which an appeal was filed but the same could not be decided for want of records. Hari Shankar and others had also filed a suit before the Settlement Officer for declaration of their title and delivery of possession with respect to some portion of the suit property against one Nagesh Mandal which was numbered as Title Suit No. 23/1985 and it was stated in the plaint that the suit was still pending as the records remained untraced.

9. The learned senior counsel submits that the cause of action for the suit arose when the order under Section 145 of Cr.P.C. was passed by the Executive Magistrate with respect to the suit property a year ago before filing the suit and further cause of action arose when the mutation order was passed by the Circle Officer on or about 08.09.1989.

10. The learned senior counsel has also referred to the relief as prayed for in the plaint and has submitted that the suit was filed for declaration that plaintiff; the father and uncle of the plaintiff i.e. defendant 2nd party were the rightful owner of the suit property and the defendant 1st party had not acquired any title by virtue of deed executed by Hari Shankar and others vide deed No. 6147 of 1987 executed at Calcutta. The learned senior counsel has also submitted that the title deed of the year 1987 was not specifically challenged in the suit, rather it was only prayed that the defendant 1st party had not acquired any title by virtue of the sale deed.

11. The learned senior counsel has submitted that although in the plaint, it has been averred that one fictitious deed was executed with incorrect plot number at Malda, but no details of that deed was disclosed in the plaint and when the written statement was filed, a reference was made to the sale deed dated 24.02.1960 executed by Madhu Malti Dasi for herself and as guardian of her minor sons and daughters along with adult sons, namely, Shiv Narayan Das, Madhav Narayan Das and Bani Dasi and the deed was executed after taking due permission from the District Judge at Malda under the provisions of Hindu Majority Guardianship Act, 1956.

12. The learned senior counsel has referred to Exhibit-D/2, from the records received from the court concerned, and submitted that the permission was granted for the purpose of transfer of the property. He has also submitted that the reasons for grant of permission has also been mentioned in the order dated 21.09.1959 and the order was passed after due notice to all concern. The learned senior counsel has submitted that at the time of grant of permission, three of the children of Madhu Malti Dasi was major who had also joined while executing the sale deed, but they also never objected to any of the grounds mentioned in the petition seeking permission. The learned senior counsel has submitted that the District Judge at Malda had the jurisdiction to grant the permission in view of the fact that it was disclosed in the petition that some property was also available at Malda and therefore the Court had the jurisdiction to grant permission with respect to the other properties situated in other District and in the present case, the permission was sought for in connection with the property situated in the District of Rajmahal, the then Bihar. The learned senior counsel has submitted that all the persons who had executed the sale deed were party to the sale deed and neither the children who were major at that point of time nor any children who acquired majority subsequently had questioned the sale deed executed in the year 1960 ; even the plaintiff did not question the sale deed of the year 1960 knowing fully well that the same would be barred by limitation. The plaintiff also did not challenge the sale deed of the year 1987 which was backed by the sale deed of the year 1960.

13. The learned senior counsel has submitted that there was no occasion for the learned trial court to enter into the legality and validity of the sale deed of the year 1960 and ultimately the learned 1st appellate court has held that the sale deed was void-ab-initio. The learned senior counsel has submitted that the fact that as to whether the sale deed was void-ab-initio or not was itself a mixed question of fact and law and in absence of any specific plea challenging the sale deed of the year 1960 and also

challenging the sale deed of the year 1987, no such relief could have been granted. The learned senior counsel submits that the entire case of the plaintiff was framed in such a manner so as to avoid the limitation prescribed under Section 59 of the Indian Limitation Act and ultimately once the sale deed is set-aside, the provision of Section 59 of the Indian Limitation Act cannot be ignored. He submits that the impugned judgments setting aside the sale-deed of the year 1960 cannot be justified in the eyes of law and it was barred by limitation.

14. The learned senior counsel has relied upon the judgment passed by the Hon'ble Supreme Court reported in AIR 2010 SC 211 (Abdul Rahim & Others vs. Abdul Zabar & Others) para 19 to submit that a suit for cancellation of transaction whether on the ground of being void or voidable would be governed by Article 59 of the Limitation Act and the suit has to be filed within 3 years from the date of knowledge of the fact that the transaction which according to the plaintiff was void or voidable had taken place. Paragraph 19 of the aforesaid judgment is quoted as under: -

"19. A suit for cancellation of transaction whether on the ground of being void or voidable would be governed by Article 59 of the Limitation Act. The suit, therefore, should have been filed within a period of three years from the date of knowledge of the fact that the transaction which according to the plaintiff was void or voidable had taken place. The suit having not been filed within a period of three years, the suit has rightly been held to be barred by limitation.

In Mohd. Noorul Hoda v. Bibi Raifunnisa (1996) 7 SCC 767, this Court held:

"6. ... There is no dispute that Article 59 would apply to set aside the instrument, decree or contract between the inter se parties. The question is whether in case of person claiming title through the party to the decree or instrument or having knowledge of the instrument or decree or contract and seeking to avoid the decree by a specific declaration, whether Article 59 gets attracted? As stated earlier, Article 59 is a general provision. In a suit to set aside or cancel an instrument, a contract or a decree on the ground of fraud, Article 59 is attracted. The starting point

of limitation is the date of knowledge of the alleged fraud. When the plaintiff seeks to establish his title to the property which cannot be established without avoiding the decree or an instrument that stands as an insurmountable obstacle in his way which otherwise binds him, though not a party, the plaintiff necessarily has to seek a declaration and have that decree, instrument or contract cancelled or set aside or rescinded. Section 31 of the Specific Relief Act, 1963 regulates suits for cancellation of an instrument which lays down that any person against whom a written instrument is void or voidable and who has a reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, can sue to have it adjudged void or voidable and the court may in its discretion so adjudge it and order it to be delivered or cancelled. It would thus be clear that the word 'person' in Section 31 of the Specific Relief Act is wide enough to encompass a person seeking derivative title from his seller. It would, therefore, be clear that if he seeks avoidance of the instrument, decree or contract and seeks a declaration to have the decrees set aside or cancelled he is necessarily bound to lay the suit within three years from the date when the facts entitling the plaintiff to have the decree set aside, first became known to him."

(See also Sneh Gupta v. Devi Sarup (2009) 6 SCC 194:

(2009) 2 Scale 765)"

15. The learned counsel has also submitted that the sale deed of the year 1960 is a sale deed and the title Bharnanama will not decide the true nature of the sale deed. The permission was granted for transfer and transfer was done in terms of the sale deed by taking an amount of Rs. 7,000/- and satisfying the decree passed in favour of the purchaser of the property.

Arguments of the respondents

16. Learned counsel for the respondents has submitted that the deed involved in this case of the year 1960 has been termed as Bharnanama- kewala which means a deed of fructuary mortgage. He has referred to the judgement passed by the Hon'ble Calcutta High Court reported in 1893 ILR 20 CAL. 609. He has also submitted that upon perusal of the deed it has been mentioned as the parties have been termed as Grahita and Data

and such terms are not used in sale deed but the terms used as Lekhakari and Lekhadhari. The learned counsel has further submitted that it is mortgage deed and not a sale deed. He has further submitted that for enforcement of mortgage earlier, there was a limitation of 60 years which has now reduced to 30 years and therefore the deed executed in the year 1937 which was subject matter of consideration in the Title Suit could not have been executed. The learned counsel further submits that perusal of the deed of 1960 reveals that the same was executed by way of some kind of compromise in connection with decree passed in Money suit for an amount of Rs. 26,700/- sought to be settled for Rs. 7,000/- only, but nothing has been mentioned regarding taking any permission from the High Court of Calcutta under whose charge the property was in connection with the Money Suit. The learned counsel has submitted that the deed having been termed as Bharnanama, if the appellant claims that it is a sale deed, it was for them to prove that it is a sale deed and the onus was upon the appellant to prove that it is a sale deed. The learned counsel has also submitted that the deed was executed after taking permission from Malda in the state of West Bengal, but there was no property situated as Malda. However, during the course of argument, permission granted for execution of deed of 1960 has been placed which was granted with respect to Schedule-A property and the Schedule-A property included the property at Santhal Pargana and also the property at Malda. Even the deed of 1960 also referred to the property at Santhal Pargana and the property at Malda.

17. The learned counsel has submitted that numerous reasons has been cited by the learned First Appellate Court to hold that the Bharnanama Kewala was void ab initio and he has also submitted that if a deed is void ab initio, there is no question of applicability of the Limitation Act as the same stands as nullity in the eyes of law.

18. The learned counsel has relied upon the judgment passed by the Hon'ble Supreme Court reported in Prem Singh versus Birbal reported in

(2006) 5 SCC 353. It is submitted that in such circumstances, the point of limitation under Section 59 of the Limitation Act does not apply to the facts and circumstances of the case.

19. The learned senior counsel for the appellant in response has submitted that the law is well settled that the nature of the deed is to be ascertained upon its complete reading and the title of Bharnanama will not decide the nature of the deed. The learned senior counsel has further submitted that the consideration amount of Rs. 7,000/- is reflected in the deed itself and therefore the same was not a mortgage deed but was a sale deed.

20. The learned counsel has submitted that the learned 1 st Appellate Court while recording the findings has committed an error of record at internal page 19 that the major sons were not the party to the alleged document and they were adult and they could have disagreed. He has submitted that in the deed of 1960, the major sons had also joined to execute the deed along with the mother who was acting on behalf of the minor children. The learned counsel has submitted that at the stage of suit, none of the second set defendants had objected.

21. Arguments of the parties are concluded.

22. Post this case for dictation of judgment on 25.07.2025.

(Anubha Rawat Choudhary, J.) Binit/Mukul