Tripura High Court
Tahir Ali vs ***As Per The Order Dated 31.01.2024 ... on 28 February, 2025
HIGH COURT OF TRIPURA
AGARTALA
RSA No.28 of 2023
1. Tahir Ali
S/O Late Mahmud Ali, age- 70 years
2. Smt. Fateha Begam,
W/O Lt. Taiyab Ali, age- 65 years
3. Rajul Islam, age- 45 years,
4. Samsun Nessa, age- 40 years,
5. Rafiqull Islalm, age- 35 years,
All are sons and daughter of Lt. Taiyab Ali
SL. No.1 to 5 R/O village- West Irani, P.S. Irani, Kailashahar
District- Unakoti, Tripura. (The appellants of Ld. Trial Court
Taiyab Ali was died on 27/12/2022 as legal heirs Sl. No.2 to 5)
6. Newarunnessa,
W/O Late Masuk Ali,
D/O Late Mahmud Ali, age- 45 years,
All are village- West Irani, P.S. Irani, Kailashahar,
District- Unakoti, Tripura.
7. Sufia Begam,
W/O Late Masaddar Ali, age-59 years
D/O Late Mahmud Ali
Vill- Kanakpur, P.S. Kailashahar
District- Unakoti, Tripura.
------ Appellant-Plaintiffs
Versus
***As per the order dated 31.01.2024 passed in I.A. No.02/2024,
newly substituted respondents are incorporated in following way:
1. a) Anhar Miah,
S/O Late Abdul Gappar
b) Ahad Miah
S/O Late Abdul Gappar
c) Asad Miah
S/O Late Abdul Gappar
d) Smt. Rabia Begam
D/O Late Abdul Gappar
e) Smt. Sufia Begam
D/O Late Abdul Gappar
All are vill-Maguruli, P.S. Irani, Kailashahar, Unakoti, Tripura.
2. Smt. Minati Ghosh,
W/O- Late Aalur Rahaman,
Vill-Barband, P.S.-Irani, Kailashahar,
District-Unakoti, Tripura.
3. Parija Bibi,
Page 2 of 23
W/O- Late Habid Uddin,
Vill-Irani, P.S.-Irani, Kailashahar,
Unakoti, Tripura.
4. Jahur Uddin,
S/O Haji Habid Uddin
Vill- Maguruli, P.S. Irani, Kailashahar
District- Unakoti, Tripura.
5. Golnahar Begam,
W/O Nur Uddin
Vill-Irani, P.S. Irani,
Kailashahar, District-Unakoti, Tripura.
------ Respondent-Defendants
For Appellant(s) : Mr. Anjan Kanti Pal, Adv,
Mr. T. K. Bhattacharya, Adv.
For Respondent(s) : Mr. Hare Krishna Bhowmik, Adv.
Date of hearing : 27.02.2025
Date of delivery of
Judgment & Order : 28.02.2025
Whether fit for
reporting : YES
HON'BLE MR. JUSTICE BISWAJIT PALIT
Judgment & Order
This appeal under Section 100 of CPC is preferred challenging
the judgment dated 09.11.2022 and consequential decree dated
17.11.2022 delivered by Learned District Judge, Unakoti District,
Kailashahar in connection with case No. TA No.5 of 2020. By the said
judgment and decree, Learned 1st Appellate Court has upheld the
judgment dated 31.01.2020 and consequential decree dated
13.02.2020 delivered by Learned Civil Judge (Senior Division),
Unakoti District, Kailashahar (Court No.1) in connection with case
No.TS No.1 of 2019.
2. Heard Learned Counsels Mr. Anjan Kanti Pal along with
Learned Counsel, Mr. T. K. Bhattacharya appearing on behalf of the
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appellants and also heard Learned Counsel, Mr. Hare Krishna
Bhowmik for the contesting respondent-defendants.
3. Before coming to the merit of the appeal now let us discuss
about the subject matter of the dispute amongst the rival parties. The
appellants as plaintiffs instituted a suit bearing No.T.S. No.1 of 2019
in the Court of Learned Civil Judge (Senior Division), Unakoti District,
Kailashahar with the plea that the suit land as described in the first
schedule of the plaint measuring 0.50 acre was originally belonged to
the father of the appellant-plaintiffs namely Mahmud Ali who died in
the year 1988. After his death, the appellant-plaintiffs became the
owner of the suit land. According to the appellants, their predecessor
father Mahmud Ali was illiterate, rustic person and did not execute
any sale deed in respect of the suit land during his lifetime and till his
death, the suit land was under his possession but on 02.05.2016, the
appellant-plaintiff No.1 for the first time came to know the existence
of two purported sale deeds bearing No.1-4901 dated 21.07.1975 and
1-4902 dated 21.07.1975 executed by Mahmud Ali in favour of
respondent-defendant No.6. The appellant-plaintiff accordingly
obtained certified copy on 03.10.2016 and came to know about the
deeds. It was the further case of the appellant-plaintiffs that the
defendant No.6 transferred the suit land in favour of defendant No.1
by sale deed No.1-318 dated 31.01.1976 and obtained copy on
03.10.2016 and also came to know that the defendant No.1
transferred the suit land in favour of respondent-defendant No.3 by
registered sale deed No.1-1894 dated 11.07.1986 and obtained the
certified copy on 31.10.2017. It was further asserted by the
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appellant-plaintiffs that the sale deeds executed by Mahmud Ali were
forged because Mahmud Ali never appear before the office of Sub-
Registrar and never admitted the execution of those deeds and
possession of the suit land was never delivered to the purchaser by
Mahmud Ali and no purchaser took possession of the suit land in view
of the purchased deed and with that story, the appellant-plaintiffs
instituted the suit for declaration of right, title, interest described in
the first schedule of the plaint granting decree for recovery of
possession of the suit land described in the first schedule after
evicting the respondent-defendants and their men and agents from
the suit land and also for a decree that the suit instruments described
in the second schedule below are null and void, effect of fraud,
collusion, fake personation and not binding upon the appellant-
plaintiffs.
4. On receipt of notice, the respondent-defendant Nos.1, 3, 4
and 5 contested the suit by filling joint written statement denying all
the plea of the plaintiffs and took the plea that the present suit was
barred by res judicata, estoppel, law of limitation and for want of
proper court fees. It was further submitted by the defendants that the
father of the plaintiffs Mahmud Ali during his lifetime filed a suit
bearing T.S. No.38 of 1975 against the respondent-defendant No.6,
the purchaser of the suit land challenging those two sale deeds but
the suit was dismissed with the findings that the sale deeds are
genuine and, as such, the present suit was barred by res judicata. It
was also submitted that the plaintiffs also earlier instituted one suit
bearing No.T.S. No.10 of 2018. Thereafter, the present suits have
Page 5 of 23
been filed. They also denied the allegation of the appellant-plaintiffs
that the sale deeds were fraudulent and not binding upon the
appellant-plaintiffs and by their written statement, the respondent-
defendants prayed for dismissal of the suit with costs.
5. Upon the pleading of the parties, Learned Trial Court below
framed the following seven numbers of issues:
i) Whether the suit is maintainable?
ii) Whether proper court fee has been paid?
iii) Whether the present suit is barred by res judicata?
iv) Whether the present suit is barred by limitation?
v) Whether sale deed No.1-4902 executed on
21.07.1975, registered on 22.07.1975 and sale
deed No.1-4901 executed on 21.07.1975 registered
on 23.07.1975 are void abinitio, effect of fraud,
collusion, false personation, nullity and not binding
upon the plaintiffs and whether sale deed No.1-318
dated 31.01.1976, registered on 02.02.1976 and
sale deed No.1-1894 dated 11.07.1986 are not
binding upon the plaintiffs and all are liable to be
cancelled?
vi) Whether the plaintiffs have right, title and interest
over the suit land?
vii) Whether the plaintiffs are entitled to the relief as
prayed for and/or any other relief/reliefs in this
suit?
Before the Learned Trial Court, both the parties adduced
oral/documentary evidence on record. For the sake of convenience, I
would like to mention herein below the name of witnesses and the
exhibits of the rival parties as follows:
(A) Plaintiffs' Exhibits :-
i) Ext.1:- Khatian No.137.
ii) Ext.2:- Khatian No.918.
iii) Ext.3:- Khatian No.1130.
iv) Ext.4:- Certified copy of sale deed No.1-4901
executed on 21.07.1975 and registered on
23.07.1975.
v) Ext.5:- Certified copy of sale deed No.1-4902
dated 22.07.1975.
vi) Ext.6:- Certified copy of registered sale deed
No.1-318 dated 02.02.1976.
vii) Ext.7:- Certified copy of registered sale deed
No.1894 dated 11.07.1986.
viii) Ext.8:- Advocate Notice dated 06.05.2016.
Page 6 of 23
ix) Ext.9:- Reply of Advocate Notice dated
15.05.2016.
x) Ext.10:- Information receipt by RTI from
SPIO in 2 sheets.
xi) Ext.11:- Copy of order dated 03.10.2018
passed in TS 10 of 2018.
(B) Plaintiffs' Witnesses :-
i) PW.1 Tahir Ali.
ii) PW.2 Hazi Mour Miah.
iii) PW.3 Sri Atanu Roy.
(C) Defendant's Exhibits :-
i) Ext.A:- Original sale deed No.4901.
ii) Ext.B:- Original sale deed No.4902.
iii) Ext.C:- Sale deed No.1-318.
iv) Ext.A-1:- Khatian No.137.
v) Ext.B-1:- Khatian No.918.
vi) Ext.C-1:- Khatian No.1330.
vii) Ext.D:- Sale deed No.1-1894 dated
11.07.1986.
viii) Ext.E:- Sale deed No.1-00397 dated
23.03.2016.
ix) Ext.F:- Sale deed No.00395 dated
23.03.2016.
x) Ext.G:- Certified copy of plaint of TS 38 of
1975.
xi) Ext.H:- Certified copy of application under
Order 6 Rule 17 -cum- Section 151 of CPC
filed in TS 38/1975
xii) Ext.I:- Certified copy of judgment and decree
dated 26.09.1978.
(D) Defendant's Witnesses :-
i) DW.1 Md. Jahur Uddin.
ii) DW.2 Md. Nur Uddin.
Thereafter, on conclusion of trial, Learned Trial Court by the
judgment dated 31.01.2020 dismissed the suit of the appellant-
plaintiffs. The operative portion of the judgment and order dated
31.01.2020 delivered by Learned Civil Judge (Senior Division),
Kailashahar, Unakoti District (Court No.1) runs as follows:
ORDER
In the result, the suit of the plaintiffs is dismissed on
contest with cost.
The suit is disposed of on contest with cost.
Make necessary entry in the relevant Trial Register.
Prepare decree accordingly and put up before me for
signature within 15 (fifteen) days from today latest
on 15.02.2020.
Being aggrieved and dissatisfied with the judgment of the
Learned Trial Court below, the appellant-plaintiffs preferred an appeal
under Section 96 of CPC before the Court of Learned District Judge,
Unakoti District, Kailashahar which was numbered as T.A. No.5 of
2020 and after hearing both the parties, Learned 1st Appellate Court
by the judgment dated 09.11.2022 was pleased to dismiss the appeal
preferred by the appellant-plaintiffs. For the sake of convenience, the
operative portion of the judgment and order dated 09.11.2022
delivered by the Learned 1st Appellate Court runs as follows:
ORDER
20. In the result, the plaintiffs-appellants are not
entitled to get a relief, as prayed for in the instant
appeal and hence, the appeal is dismissed.
The judgment and decree passed by the learned trial
court in case No. T.S. 01 of 2019 are upheld.
21. Prepare appellate decree accordingly.
22. Send down the LCR along with a copy of this
judgment.
23. The case stands disposed of accordingly.
Being dissatisfied with the judgment of the Learned 1st
Appellate Court, the appellant-plaintiffs have again filed this appeal
under Section 100 of CPC. At the time of admission of this appeal by
order dated 06.09.2024, the following substantial question of law was
formulated by this Court:
Whether the judgment of the Learned First Appellate
Court is suffers from perversity and contrary to the
evidence on record?
6. Taking part in the hearing, Learned Counsel for the appellant-
plaintiffs first of all drawn the attention of this Court that both the
Courts below have erred in law and facts in deciding the suit and
appeal and, as such, gave an erroneous finding. According to Learned
Counsel, both the Courts below at the time of delivery of judgment
came to the observation that the suit was barred by the principles of
res judicata as in view of the provision of Section 11 of CPC but the
suit filed by the appellant-plaintiffs was not barred by the principles of
res judicata as because before the Learned Court below, the
appellant-plaintiffs sought relief for declaration of the alleged
instrument to be null and void and not binding upon the appellant-
plaintiffs. Furthermore, Learned Counsels for the appellant-plaintiffs in
course of hearing of argument drawn the attention of the Court
referring the evidence of PW-1, PW-2 and also PW-3 i.e., the staff of
the Office of Sub Registrar, Kailashahar from which it was crystal clear
that the original executant, Mahmud Ali never appeared before the
Office of Sub Registrar to put his signature and from his evidence, it is
crystal clear that said Mahmud Ali, the predecessor of the plaintiffs
also did not put his signatures on the purported sale deeds for which
those sale deeds were illegal, forged and not binding upon the
appellant-plaintiffs but the findings of the Learned Trial Court below
that in view of the judgment passed in connection with T.S. No.38 of
1975, the present suit was barred by the principles of res judicata was
not tenable in the eye of law. Learned Counsels further submitted that
if the evidence of PW-3 is meticulously examined, it will be seen that
those purported deeds were nothing but the creation of forgery but
the Learned Trial Court below did not believe the evidence of the
appellant-plaintiffs and similarly, the Learned 1st Appellate Court
without appreciating the evidence on record relied upon the judgment
of the Learned Trial Court below and gave a perverse finding. Learned
Counsels further submitted that the findings of both the Courts below
that the suit was barred by the 'principles of res judicata' was nothing
but misconception of law because the earlier suit was filed only for
injunction and for that, there was no bar on the part of the Learned
Trial Court below to declare the purported instrument to be cancelled
inspite of adducing conclusive evidence on record but the Learned
Trial Court below failed to appreciate the evidence on record of the
appellant-plaintiffs properly for which gave an erroneous finding. So,
Learned Counsels for the appellant-plaintiffs urged before the Court to
allow this appeal and to set aside the judgment delivered by Learned
Courts below.
7. On the other hand, Learned Counsel for the respondent-
defendants, Mr. H. K. Bhowmik submitted that the present appeal is
not maintainable as because the appellant-plaintiffs have failed to
project any substantial questions of law to be formulated in this
appeal and as such, the same is liable to dismissed with costs. He
further drawn the attention of the Court that the Learned Trial Court
below framed seven numbers of issues as already stated and the
Learned Trial Court below after considering the evidence on record at
the time of delivery of the judgment in detail discussed the legal
position and furthermore, it is admitted position that the predecessor
of the appellant-plaintiffs Mahmud Ali filed one suit before the Learned
Trial Court below bearing No.T.S. No.38 of 1975(Exbt.-I) and in the
said suit, the disputed deeds were marked as Exbt.-B1 and Exbt.-B2
and the Learned Trial Court below at the time of delivery of judgment
came to the observation that both the deeds were rightly executed
and registered on payment of full consideration money to the plaintiff
i.e. Mahmud Ali. Learned Counsel for the respondent-defendants
further submitted that said Mahmud Ali expired in the year 1988 and
during his lifetime, he never challenged that judgment. Even the
present appellant-plaintiffs who were aware about the said judgment
also did not take any effort to challenge that judgment, so, the
Learned Trial Court as well as the Learned 1st Appellate Court rightly
came to the observation that the suit was barred by the principles of
res judicata.
Learned Counsel, Mr. Bhowmik further submitted that from
the evidence of PW-3, it is crystal clear that during cross-examination
before the Court said PW-3 specifically stated that after submission of
a deed for registration at first they called the party and asked them
about the execution and thereafter the deed is registered if the
execution is admitted by the executor and it is also responsibility of
them to take LTI of the executants in the thumb impression register in
the backside of the last page of the deed. Referring the said evidence
of PW-3, Learned Counsel for the respondent-defendants fairly
submitted that if there is any lapses on the part of the office of the
Sub-Registrar, in that case, that responsibility cannot goes to the
party concerned and moreso, the defects as alleged are curable
defects as per Section 87 of the Indian Registration Act. So, according
to Learned Counsel on bare perusal of the evidence on record, it is
crystal clear that the Learned Trial Court below as well as the Learned
1st Appellate Court rightly delivered the judgment dismissing the suit
of the appellant-plaintiffs and there was no perversity and illegality in
the said judgment and urged for dismissal of this appeal with cost.
Learned Counsel also stated that by this time the suit land was
transferred to some other person but the appellant-plaintiffs did not
seek any relief challenging those subsequent deeds and since the
three Courts below have given concurrent findings about the suit land,
so, at this stage, there is no scope to interfere with the judgments of
the Learned Courts below.
8. I have heard detailed arguments of both the sides and gone
through the record of the Learned Courts below including the evidence
on record of both the parties. As already stated to decide the suit, the
Learned Trial Court in total framed seven numbers of issues and at
the time of delivery of judgment, all the issues were thoroughly
discussed and accordingly the suit was decided by the Learned Trial
Court below which was affirmed by the Learned 1st Appellate Court.
Now, for the sake of convenience let us examine whether the decision
of the Learned Courts below were in accordance with law or not.
9. In this regard, I would like to refer herein below the definition
of res judicata as enumerated in Section 11 of CPC which provides as
under:
"11. Res judicata.- No Court shall try any suit or
issue in which the matter directly and substantially
in issue has been directly and substantially in issue
in a former suit between the same parties, or
between parties under whom they or any of them
claim, litigating under the same title, in a Court
competent to try such subsequent suit or the suit in
which such issue has been subsequently raised, and
has been heard and finally decided by such Court."
In course of hearing, Learned Counsel for the appellants
submitted that the suit filed by the appellant-plaintiffs would not be
governed by Section 11 of CPC. From the aforesaid provisions of CPC,
it appears that the crux question involved in Section 11 of CPC is that
once the matter is finally decided by a competent Court, no party can
be allowed to reopen the same in a subsequent litigation.
Here, in the case at hand, it was the observation of the
Learned Trial Court below that the subsequent suit filed by the
appellant-plaintiffs were suffered by the principle of res judicata in
view of the judgment passed by the Learned Trial Court below in the
earlier suit bearing No.TS No.38 of 1975 because in the said suit, the
predecessor of the appellant-plaintiffs Mahmud Ali challenged both the
title deeds bearing No.1-4901 dated 21.07.1975 (Exbt.-A) which was
registered on 23.07.1975 and 1-4902 dated 21.07.1975 (Exbt.-B)
which was registered on 22.07.1975. But the said suit was dismissed
on the ground that sale deeds were found to be genuine and
furthermore, DW-1 in course of his examination stated that father of
the plaintiffs filed a civil suit against his father and others for a decree
of permanent injunction challenging the validity of the sale deeds as
mentioned above which was numbered as T.S. No.38 of 1975 and
after hearing, the Learned Court below dismissed the suit on
26.09.1978 and no appeal was preferred by said Mahmud Ali during
his lifetime. In this regard, in course of hearing of argument, Learned
Counsel for the appellant-plaintiffs did not submit anything. The
respondent-defendants also before the Learned Trial Court submitted
the certified copy of plaint in connection with case No.T.S. No.38 of
1975 and from which it appears that Mahmud Ali filed the suit for
permanent injunction against Alaur Rahman (respondent-defendant
No.2) of the present case and others challenging the aforesaid sale
deeds dated 21.07.1975 on the ground that the sale deeds were false
and forged and thumb impression of Mahmud Ali was taken on some
unwritten papers on 21.07.1975 and the Learned Trial Court in
deciding suit bearing No.T.S. No.38 of 1975 decided issue No.(iv), (v)
and (vi) against the original plaintiff. So, based upon that, the
Learned Trial Court below and the Learned 1st Appellate Court came to
the observation that the sale deeds were not forged and illegal and
furthermore, said Mahmud Ali was not in possession of the suit land
and, as such, no decree of permanent injunction was granted and
both the aforesaid sale deeds were the subject matter of that suit
bearing No.TS No.38 of 1975 and since in the said suit bearing No.TS
No.38 of 1975, injunction was sought for with the allegation that
those sale deeds which were marked as Exbt.-B1 and Exbt.-B2 in TS.
No.38 of 1975 were forged and fabricated, as such, in view of the
aforesaid provision of Section 11 of CPC, the suit filed by the
appellant-plaintiffs before the Learned Court below bearing No.T.S.
No.1 of 2019 in my considered view was also barred by the principles
of res judicata in the present suit. Furthermore, in the said suit No.TS.
No.38 of 1975, said Mahmud Ali did not seek any declaration for
cancellation of those sale deeds (Exbt.-B1 and Exbt.-B2), so, in my
considered view, both the Courts below rightly came to the
observation that the present suit was barred by the principle of
constructive res judicata as because there was clear observation of
the Learned Trial Court below that those deeds were found to be
genuine and valid. So, in the considered opinion of this Court there
was no illegality or irregularity in the finding of the Learned 1 st
Appellate Court regarding the decision of Learned Trial Court in
respect of issue No.(iii).
10. Now, in respect of issue No.(ii) regarding payment of Court
fees it appears to this Court at the time of filling of the suit the
appellant-plaintiffs only paid Court fees amounting to Rs.22/- i.e., the
five times of the land revenue and the Court fees paid as per Section
7(v)(b) of the Court fees Act and before the Learned Court below, the
appellant-plaintiffs prayed for a declaration that the suit deeds
bearing No.1-4901 and 1-4902 were null and void, collusive and not
binding upon the appellant-plaintiffs and also prayed for cancellation
of the same and recovery of possession of the suit land. But the
Learned Trial Court below came to the observation that Section
7(v)(b) of the Court fees Act relates to land which form an entire
estate or a definite share of an estate, paying usual revenue to the
Government. So, according to the Learned Trial Court on perusal of
Exbt.-1, it does not reveal that the suit land was a land paying
revenue of the estate and furthermore, regarding cancellation of
instrument, the appellant-plaintiffs also did not deposit any Court
fees. The suit was valued at Rs.1,50,000/- and the Court fees was
supposed to be paid as per Section 8 of the Suit Valuation Act which
the appellant-plaintiff failed to deposit. So, the Learned Trial Court
below and the Learned 1st Appellate Court rightly came to the
observation that the appellant-plaintiffs failed to deposit proper Court
fees at the time of filling of the suit.
11. Now, in respect of deciding issue No.(iv), it was the case of
the appellant-plaintiffs that they came to know about the fraud
practiced by the defendants only on 15.12.2018 and as such, they are
entitled to get exemption under Section 17 of the Limitation Act which
provides as under:
17. Effect of fraud or mistake.-(1) Where, in the case
of any suit or application for which a period of
limitation is prescribed by this Act,--
(a) the suit or application is based upon the
fraud of the defendant or respondent or his
agent; or
(b) the knowledge of the right or title on which a
suit or application is founded is concealed by the
fraud of any such person as aforesaid; or
(c) the suit or application is for relief from the
consequences of a mistake; or
(d) where any document necessary to establish
the right of the plaintiff or applicant has been
fraudulently concealed from him,
the period of limitation shall not begin to run until
plaintiff or applicant has discovered the fraud or the
mistake or could, with reasonable diligence, have
discovered it; or in the case of a concealed
document, until the plaintiff or the applicant first had
the means of producing the concealed document or
compelling its production:
Provided that nothing in this section shall enable any
suit to be instituted or application to be made to
recover or enforce any charge against, or set aside
any transaction affecting, any property which--
(i) in the case of fraud, has been purchased for
valuable consideration by a person who was not
a party to the fraud and did not at the time of the
purchase know, or have reason to believe, that
any fraud had been committed, or
(ii) in the case of mistake, has been purchased
for valuable consideration subsequently to the
transaction in which the mistake was made, by a
person who did not know, or have reason to
believe, that the mistake had been made, or
(iii) in the case of a concealed document, has
been purchased for valuable consideration by a
person who was not a party to the concealment
and, did not at the time of purchase know, or
have reason to believe, that the document had
been concealed.
(2) Where a judgment-debtor has, by fraud or force,
prevented the execution of a decree or order within
the period of limitation, the court may, on the
application of the judgment-creditor made after the
expiry of the said period extend the period for
execution of the decree or order:
Provided that such application is made within one
year from the date of the discovery of the fraud or
the cessation of force, as the case may be.
Before the Learned Trial Court below, the respondent-
defendants took the plea that the father of the plaintiffs had
knowledge about those two deeds being executants and filed the suit
bearing No.TS. No.38 of 1975. So, the Learned Trial Court below at
the time of discussing and the decision of the said issue came to the
observation that since the father of the appellant-plaintiffs had
knowledge about those two deeds which was mentioned in the plaint
(Exbt.-G), so, the appellant-plaintiffs were not entitled to get any
protection of Limitation under Section 17 of the Limitation Act. The
appellant-plaintiffs being the legal heirs of the said Mahmud Ali were
also bound by the act, conduct and knowledge of the original owner
Mahmud Ali, so, Learned Trial Court rightly decided the issue against
the appellant-plaintiffs.
After hearing both the sides and considering the evidence on
record, it appears to this Court that the Learned Trial Court decided
the said issue that the appellant-plaintiffs were not entitled to get any
exemption in view of the aforesaid provision of Section 17 of the
Limitation Act which was duly concurred by the Learned 1 st Appellate
Court and this Court also does not find any illegality in deciding the
said issue by the Learned Trial Court as well as the Learned 1st
Appellate Court.
12. In respect of issue No.(i), the Learned Trial Court below
opined that the suit was barred by the principles of res judicata, law
of limitation and was suffering from payment of Court fees. At the
time of hearing, Learned Counsel for the appellants failed to satisfy
the Court about the decision of the Learned Courts below in deciding
the issue No.(i) and since it is already decided that the suit filed by
the plaintiffs was barred by the principles of res judicata in view of the
provision of Section 11 of CPC suffered by law of limitation and
improper Court fee was paid, so, in the considered opinion of this
Court, the Learned Trial Court also rightly decided the said issue
against the appellant-plaintiffs.
In this regard, Hon'ble the Supreme Court in 2023 SCC
OnLine SC 356 titled as Prem Kishore and Others versus Brahm
Prakash and others dated 29.03.2023 in para No.38 observed as
under:
38. The general principle of res judicata under
Section 11 of the CPC contain rules of conclusiveness
of judgment, but for res judicata to apply, the matter
directly and substantially in issue in the subsequent
suit must be the same matter which was directly and
substantially in issue in the former suit. Further, the
suit should have been decided on merits and the
decision should have attained finality. Where the
former suit is dismissed by the trial court for want of
jurisdiction, or for default of the plaintiff's
appearance, or on the ground of non-joinder or mis-
joinder of parties or multifariousness, or on the
ground that the suit was badly framed, or on the
ground of a technical mistake, or for failure on the
part of the plaintiff to produce probate or letter of
administration or succession certificate when the
same is required by law to entitle the plaintiff to a
decree, or for failure to furnish security for costs, or
on the ground of improper valuation, or for failure to
pay additional court fee on a plaint which was
undervalued, or for want of cause of action, or on the
ground that it is premature and the dismissal is
confirmed in appeal (if any), the decision, not being
on the merits, would not be res judicata in a
subsequent suit.
From the aforesaid judgment, it appears that the Hon'ble
Apex Court also clarified the application of principle of res judicata in
a given case. Here in the case at hand, since the earlier suit TS No.38
of 1975 was delivered by the Learned Trial Court after a full fledged
trial dismissing the suit of the predecessor of the appellant-plaintiffs
Mahmud Ali with the observation that the suit deeds were genuine
and, as such, in my considered view, Learned Trial Court below in the
given case rightly decided that the suit filed by the appellant-plaintiffs
was barred by the principles of res judicata which has been affirmed
by the Learned 1st Appellate Court and this Court does not find any
infirmity to the decision in this regard.
13. In respect of issue No.(v), it was the case of the appellant-
plaintiffs that the alleged sale deeds i.e., Exbt.-B1 and B2 were not
executed by Mahmud Ali. At the time of hearing of argument, Learned
Counsels for the appellant-plaintiffs has drawn the attention of the
Court that from the evidence of PW-3, it is crystal clear that said
Mahmud Ali never appeared before the office of Sub Registrar,
Kailashahar. In this regard, I have seen the judgments and also
perused the evidence on record of the PW-3. Although the said
Mahmud Ali in the earlier suit did not pray for cancellation of those
two deeds but his suit was based on those deeds and challenging
those deeds, he sought for injunction which was dismissed by the
Learned Trial Court by the said judgment in the year 1978 and in the
said judgment, it was categorically observed by the Learned Trial
Court below that the suit deeds were genuine one. No appeal was
preferred challenging that judgment. I have also perused Exbt.-1 i.e.
the judgment passed in connection with case No.TS. No.38 of 1975
wherein the Learned Trial Court on the basis of evidence of the
witnesses specifically the scribe of the deeds, witnesses of the deeds,
the Learned Trial Court at the time of delivery of judgment came to
the observation that those deeds were genuine being executed,
admitted at the instance of Mahmud Ali. So, Learned Trial Court below
came to the observation that since the executant himself produced
the deed and put his thumb impression and admitted execution, so,
non-compliance of other provision on the part of the Office of the Sub
Registrar does not makes the deed invalid as the same is curable. It
was also observed by Learned Trial Court that on the basis of those
deeds, successive sale deeds were made. Learned 1st Appellate Court
at the time of delivery of judgment also concurred the same view
made by Learned Trial Court.
In this regard, I would like to refer herein below one
judgment of the Hon'ble Supreme Court reported in (2021) 15 SCC
300 titled as Rattan Singh and others versus Nirmal Gill and
others dated 16.11.2020 wherein in para Nos.80 and 81, Hon'ble
the Apex Court has observed as under:
80. Before analysing the correctness of the decisions
arrived at, let us see the settled legal position as to
effect of fraud on limitation as prescribed in Section
17 of the Limitation Act, 1963 (for short "the 1963
Act"). The said provision reads as under:
17. Effect of fraud or mistake.-(1) Where, in the
case of any suit or application for which a period of
limitation is prescribed by this Act,--
(a) the suit or application is based upon the
fraud of the defendant or respondent or his
agent; or
(b) the knowledge of the right or title on which a
suit or application is founded is concealed by the
fraud of any such person as aforesaid; or
(c) the suit or application is for relief from the
consequences of a mistake; or
(d) where any document necessary to establish
the right of the plaintiff or applicant has been
fraudulently concealed from him,
the period of limitation shall not begin to run until
the plaintiff or applicant has discovered the fraud
or the mistake or could, with reasonable diligence,
have discovered it; or in the case of a concealed
document, until the plaintiff or the applicant first
had the means of producing the concealed
document or compelling its production:
(emphasis supplied)
81. Therefore, for invoking Section 17 of the 1963
Act, two ingredients have to be pleaded and duly
proved. One is existence of a fraud and the other is
discovery of such fraud. In the present case, since
the plaintiff failed to establish the existence of fraud,
there is no occasion for its discovery. Thus, the
plaintiff cannot be extended the benefit under the
said provision.
From the principle of law laid down by the Hon'ble Apex
Court, it appears that for proving fraud, two ingredients are to be
pleaded and proved. One is existence of fraud and another is
discovery of such fraud. Here in the given case, on perusal of the
records of the Learned Court below, it appears to this Court that the
appellant-plaintiffs save and except the evidence of PW-3 could not
produce and prove any other material before the Learned Trial Court
below to substantiate that those deeds were fraudulent, made by
applying fraud and there was also no such evidence on record from
the side of the appellant-plaintiffs regarding discovery of such fraud.
The appellants only pleaded that PW-3 stated that in the last page of
the deed, there was no signature of the executants but if we
meticulously go through the evidence of PW-3 in his examination-in-
chief and in cross-examination, it appears that the witness specifically
stated that once the party appears and confirms execution then the
deed is registered if the execution is admitted by the executants.
Here in the given case from the judgment of the earlier suit
T.S. No.38 of 1975 and also from the cross-examination part of PW-3,
it is clear that the deceased Mahmud Ali, the predecessor of the
plaintiffs appeared before the Sub-Registrar and admitted the
execution. So, for non-taking of LTI on the last page of the deed
cannot makes the deed invalid one as the same was curable in view of
Section 87 of the Indian Registration Act which provides as under:
87. Nothing so done invalidated by defect in
appointment or procedure.- Nothing done in good
faith pursuant to this Act or any Act hereby repealed,
by any registering officer, shall be deemed invalid
merely by reason of any defect in his appointment or
procedure.
From the aforesaid provision, it appears that for any
procedural defects nothing makes the deed invalid if there was no
such signature of the executant on the last page of the deeds because
it was the responsibility of the registering authority or staff to cure
the defects and for that, it cannot be said that those deeds were fake
and fabricated as alleged by the appellant-plaintiffs and furthermore,
since the judgment of TS No.38 of 1975 was never challenged by the
original executant himself now with the plea taken by the appellant-
plaintiffs that the signature of executant was not there to the last
page of the deeds cannot makes the deed a fraudulent and forged one
and for that, the Learned Trial Court in suit T.S. No.38 of 1975 rightly
pointed out that those deeds were genuine furthermore, I would also
like to refer herein below the provision of Section 40 of the Evidence
Act which provides as under:
40. Previous judgments relevant to bar a second suit
or trial.- The existence of any judgment, order or
decree which by law prevents any Court from taking
cognizance of a suit or holding a trial, is a relevant
fact when the question is whether such Court ought
to take cognizance of such suit or to hold such trial.
So, here in the case at hand after hearing both the sides and
after going through the judgments of the Learned Courts below, it
appears that the Learned Trial Court also rightly decided the said
issue against the appellant-plaintiffs which has been accepted by the
Learned 1st Appellate Court and this Court also does not find any
irregularity or perversity in the said issue decided by the Learned Trial
Court affirmed by the Learned 1st Appellate Court.
14. In respect of issue No.(vi), Learned Trial Court also came to
the observation that since the deeds executed by Mahmud Ali i.e. the
predecessor of the appellant-plaintiffs were found to be genuine, as
such, the appellant-plaintiffs have had no right, title, interest over the
suit land and the Learned 1st Appellate Court also concurred the same
issue with the Learned Trial Court and this Court also does not find
any perversity in deciding the said issue by the Learned Trial Court
below.
15. In respect of issue No.(vii), it was the observation of the
Learned Trial Court and the Learned 1st Appellate Court that since all
the issues were decided against the original appellant-plaintiffs, so,
the same was also rightly decided against the appellant-plaintiffs of
the suit.
16. Thus, after hearing both the sides, it appears to this Court
that the appellant-plaintiffs have failed to make out any case to frame
any substantial questions of law to be decided in favour of the
appellant-plaintiffs, as such, the present suit is liable to be dismissed
with costs.
17. In the result, the appeal filed by the appellants is hereby
dismissed on contest with costs. The judgment dated 09.11.2022 and
consequential decree delivered by Learned 1st Appellate Court in
connection with case No.T.A. No.5 of 2020 is hereby upheld and the
same is accordingly confirmed affirming the judgment of the Learned
Trial Court dated 31.01.2020 and consequential decree in connection
with case No.T.S. No.1 of 2019. The appellant-plaintiffs are not
entitled to get any relief in this appeal.
With the above observations, this present appeal stands
disposed of.
Prepare decree accordingly.
Send down the records of the Courts below along with a copy
of this judgment and Order.
Pending applications(s), if any, also stands disposed of.
JUDGE
MOUMITA Digitally signed by
MOUMITA DATTA
Date: 2025.03.01
DATTA 12:01:35 -08'00'
Deepshikha
