Madhya Pradesh High Court
Gulab Bai vs Mannulal on 22 February, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GAJENDRA SINGH
ON THE 22 nd OF FEBRUARY, 2024
SECOND APPEAL No. 1391 of 2019
BETWEEN:-
GULAB BAI D/O GOVARDHAN SINGH AHI D/O LATE
KASHIRAM, AGED ABOUT 62 YEARS, OCCUPATION:
HOUSE WIFE VILLAGE MAHGAUN, C/A VILLAGE
KARAIYA, TEHSIL (MADHYA PRADESH)
.....APPELLANT
(BY SHRI CHANDRAHAS DUBEY - ADVOCATE FOR APPELLANT)
AND
1. MANNULAL S/O KANHAIYALAL, AGED ABOUT 77
YEARS, OCCUPATION: W R/O WARD NO. 4 OPP.
HANDPUMP NEAR BARIYA TREE GOPALPUR TEH.
AND DISTT. RAISEN (MADHYA PRADESH)
2. STATE OF MADHYA PRADESH THR. THE
COLLECTOR DISTT-RAISEN (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI P.N. VERMA - PANEL LAWYER FOR STATE)
This appeal coming on for admission this day, th e court passed the
following:
ORDER
This second appeal under Section 100 of the C.P.C. has been preferred
feeling aggrieved by the Judgment and decree dated 22.02.2019 in regular Civil
Appeal No.04/2018 by District Judge, Raisen arising out of judgment and
decree dated 30.112017 in regular Civil Suit No.1900077-A/2016 by Second
Civil Judge Class-II, Raisen, District-Raisen (M.P.) whereby the suit for
declaration of title, possession, Rs.50,000/- mesne profit per year and
cancellation of mutation proceedings and sale deed dated 14.11.1981 regarding
agricultural land of Survey No.12 area 1.647 hectare i.e. 4.07 acres situated at
Village Alamkhera, Tahsil and District Raisen has been dismissed and appeal
also has been rejected.
2. Facts as mentioned in the plaint are that the disputed land belongs to
the father of appellant/plaintiff Gulab Bai. Father of plaintiff Kashiram @ Kasiya
Ahirwar expired 32-35 years prior to filing the suit on 24.10.2016. The disputed
land was mutated in the name of Janki Bai (mother of the plaintiff/appellant) and
plaintiff/appellant in the year of 1982-83 and continued till the year 1991-92 but
inclusion with revenue authorities without any basis the land was mutated in the
name of defendant No.1/respondent No.1 who is the distant relative of
appellant/plaintiff. When the plaintiff/appellant came to know in 1994-95 that the
land has been mutated in the name of defendant No.1/respondent No.1 then
they proceeded to Tahsildar office and the name of respondent No.1/defendant
No.1 was cancelled from the revenue records and the name of plaintiff/appellant
was entered which remained in revenue record till the year 2001-2002 but again
defendant No.1/respondent No.1 got entered his name in revenue record.
Plaintiff came to know the entries of 20.10.2016, he got certified copy of the
Khasra-Khatauni and filed the Civil Suit as her mother Janki Bai died. It was
also stated that she handedover the possession of the disputed land to
defendant No.1/respondent No.1 in May, 2014 to cultivate the land at Batiya
(lease) and when plaintiff/appellant prayed to return the possession of the
disputed land then defendant No.1/respondent No.1 denied to handover the
possession of the disputed land on 21.10.2016 and threatened now he will not
pay the half share of crop. Claiming the cause of action on 28.10.2016 on
procuring the certified copy of Khasra Khatauni, this suit was filed to be in
limitation and it was additionally submitted through amendment that sale deed
dated 14.11.1981 is forged. Defendant No.1/respondent No.1 has prepared the
sale deed by forging the thumb impression. Her father never executed the sale
deed of disputed land.
3. Defendant No.1/respondent No.1 contested the case filing the written
statement that the father of the plaintiff Kasiya executed sale deed dated
15.11.1981 in consideration of Rs.6,000/- and handed over the possession of
disputed land. He got mutated the land in his name in revenue record. The
factum of sale deed was in knowledge of plaintiff and her mother Janki Bai.
They have filed a Civil Suit on 23.02.1982 for declaration and recovery of
possession and during the proceeding of that case the sale dated 15.11.1981
was narrated in the written statement filed before the Civil Judge, Class-I,
Raisen in case No.8-A/1982 in which appellant and her mother were party and
that Civil Suit was dismissed on 25.09.1987. Thus suit is not within limitation.
Defendant No.1/respondent No.1 is in possession of the disputed land from the
1982. Plaintiff/appellant is not entitled for relief even for mesne profit and
plaintiff is not entitled to file fresh suit in the same cause of action that was in
dispute in the Civil Suit No.8-A/19882 and that was dismissed on 25.09.1987.
No cause of action has arisen on 28.10.2016.
4. Trial Court framed the five issued and recorded the evidence of
plaintiff Gulab Bai as PW-1, Sanman Singh as PW-2 and admitted Ex.P-1 to P-
10 filed on behalf of plaintiff. Defendant examined Senior Sub Registrar Nanaji
Kharole as DW-1, Mannulal as DW-2, Dalsingh Yadav as DW-3 and exhibited
the document Ex.D1to D7.
5. Appreciating the evidence of both side, trial Court recorded the finding
of issue No.3 against the appellant/plaintiff and infavour of defendant
No.1/respondent No.1 that the suit is not within time and recorded the finding
on issue no.1 and 2 also against the plaintiff/appellant that she is not title holder
of the disputed land and also that the respondent No.1/defendant No.1 is not in
illegal possession of the disputed land and also decided the issue No.5 against
the appellant/plaintiff and in favour of defendant No.1/respondent No.1 that the
sale deed dated 14.11.1981 is not null and void and dismissed the suit of the
plaintiff.
6. Appreciating the evidence, Trial Court dismissed the suit of the
plaintiff and first Appellate Court affirmed the findings of the Trial Court. This
second appeal has been preferred proposing the substantial questions of law :-
"i. Whether the learned first appellate court was right in
law as well as in the facts dismissing the appeal filed by
the appellant/plaintiff, by relying over the Exhibit D-5
which has been executed by an illiterate person by
putting his thumb impression and also by ignoring the
provisions of section 3 of the Transfer of Property Act,
1882 which says, regarding Proof of execution of
document ?
ii. Whether the learned first appellate court was right in
law in ignoring the provisions of section 117 of the
M.P.L.R.C., 1959 and holding that the
appellant/plaintiff not in possession over the suit property
without there being any evidence to the contrary, thereby
rendering the finding perverse ?
iii. Whether the learned first appellate court was right in
law in ignoring the provisions of Article 58 & 65 of the
Limitation Act, 1963 and holding that, suit filed by the
appellant/plaintiff is barred by time, without appreciating
the available evidence on record ?
iv. Whether the court below was right in law in passing
the impugned judgment, and thereby rendering the
findings, based on no cogent evidence, perverse ?"
7. Heard.
8. Perused the record of both the Courts below.
9. Learned counsel for appellant has relied on Badri Naryanan and others
vs. Rajabagyathammal and others, (1996) 7 SCC 101, relevant para-6 of the
judgment is being referred as below :-
"6. Coming to the facts of this case, the
predecessor-in-interest of the respondents was an illiterate
person. He put his thumb impression as an attestor on
Ex.A-2. In the circumstances, the learned Single Judge
held that unless it is established that the recitals in the
documents were read out and explained to the said
person, he cannot be deemed to have assented to them.
We cannot say that the learned Judge was not right in
taking the said view in the circumstances of this case. We
see no reasons to interfere in the matter. Dismissed."
10. Before going through the other issues we are referring to Article 56,
58, 59 and 65 of the Schedule appended to the Limitation Act, 1963 which is
being mentioned as below :
Description of suit Period of limitation Time from which period
begins to run
56. To declare the forgery 3 years W h e n the issue or
of an instrument issued or registration becomes
registered known to the plaintiff
5 8 . To obtain any other 3 years W h e n the right to sue
5 8 . To obtain any other 3 years W h e n the right to sue
declaration first accrues
59. To cancel or set aside 3 years Whe n the facts entitling
an instrument or decree or the plaintiff to have the
for the rescission of a instrument or decree
contract cancelled or set aside or
the contract rescinded
f ir s t become known to
him
6 5 . For possession of 12 years Whe n the possession of
immovable property or any the defendant becomes
interest therein based on title adverse to the plaintiff.
11. Trial Court has recorded in para Nos.23 and 24 of the judgment that
the suit is not within time and First Appellate Court has also considered the
facts and examined the finding of the trial Court in para-9 of the judgment and
recorded the finding that the knowledge of the impugned sale deed to the
appellant on 15-16.11.1989 was clearly established from the written statement
Ex.D2 in which defendant No.1/respondent No.1 has clearly mentioned the
facts about the sale deed.
12. Learned counsel for appellant argued that in this case the applicable
Article is 65 and not the Article 58 or 59 of Limitation Act, 1963. Above quoted
articles of the Limitation Act shows that to declare the forgery of an instrument
issued or registered applicable provision is Article 56 and period of limitation is
3 years and the time begins from when issue or registration becomes known to
the plaintiff. Claim of title on the disputed land is based on the relief of
declaration of the sale deed dated 15.11.1981 to be null and void, so applicable
article is 56 not 65.
13. Now we come to the question whether both the courts committed
error in determining the knowledge of sale deed on the basis of written
statement Ex.-D2 or the cause of action arises as stated by plaintiff/appellant on
21.10.2016.
14. Ex.D1 is the certified copy of Civil Suit No.8-A/1982 filed in the
Court of Civil Judge, Class-I, Raisen by plaintiff/appellant Gulab Bai along with
her mother Janki Bai for declaration of title and possession of the disputed land.
That suit was filed on 23.02.1982. In this plaint, para-5 mentions about the sale
deed mentioning that the sale deed is not in her knowledge. Ex.D-2 is the written
statement in that suit in which it is specifically mentioned that defendant
No.1/respondent No.1 got executed the sale deed of disputed land on
14.11.1981. The Ex.D-3 is the certified copy of the issues framed in that suit
and in that suit the issue No.3 was specifically framed regarding the sale deed
dated 15.11.1981 in the phraseology that sale deed dated 15.11.1981 was
forged as got executed in unconscious state of Kasiya. The suit was dismissed
on 23.12.1982.
15. Accordingly, the knowledge of sale deed dated 15.11.1981 to
appellant was on the date of filing the written statement Ex.D-2 and that written
statement was filed on 08.02.1984. Accordingly, finding of trial Court and First
Appellate Court is proper that the suit is not within time. Findings of the trial
Court that after dismissal of the suit no further suit can be presented on the
same cause of action also does not call for interference.
16. Now question arises where the suit is clearly time barred, whether this
second appeal may be admitted on the strength of Badri Naryanan and other
(supra) and answer to this question is in negative. Hence, no substantial
question of law as proposed by appellant arises. This Second Appeal is not fit
to be admitted. Accordingly, it is dismissed at the admission stage.
(GAJENDRA SINGH)
JUDGE
DPS
