A
RAMESHWAR DUBEY AND ORS.
v.
MASOMAT ASHA KAUR AND ORS.
AUGUST 5, 1996
B
[K. RAMASWAMY AND G.B. PATTANAIK, JJ.]
Limitation Act, 1963/Specific Relief Act, 1963 :
Schedu/~Artic/es 58 and 59/s.31-Suit under s.31 of Specific Relief
C Act filed on 15.2.1973 on the ground that sale deeds dated 12.7.1966 and
14.12.1970 execllled by playing fraud are void-Limitation-Held, in view of
the finding of fact that fraud was played upon the plaimijf, the fraud unravels
the entire transaction to be a void doczunent-Linzitation sta1ts running frorn
the date when the cause of action had arisen i.e. when dispossession was
sought to be made--Plaimiff was sought to be dispossessed from her land in
D
1973-Sa/e deed came to be executed within three years-Since plaintiff
re111ained in possession till that date there is no need to file a suit under Article
59-Suit was rightly filed within three years under A1ticle 58 and decreed by
the cozuts below.
E
F
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 10702 of
1996.
From the.Judgment and Order dated 25.11.88 of the Patna High
Court in Appeal from Appellate Decree No. 62/80(R).
Manoj Swarup and Ms. Lalita Kohli for the Appellants.
S. Dubey and Naresh Bakshi for the Respondents.
The following Order of the Court was delivered :
Though notice was served on the legal heirs of the 1st respondent
G and the counsel who had appeared earlier and had taken time has now
reported that in spite of his writing three letters, there is no response from
them. The legal heirs are brought on record.
Leave granted.
H
The only question that arises for consideration in this case is : which
292
....
R. DUBEYv. MA KAUR
293
article of Schedule to the Limitation Act, 1963 (for short, the 'Act') would A
be applicable to the facts in this case? The courts below found as a fact
that though the sale deed was executed on July 12, 1966 by Asha Kaur, the
B
first respondent in favour of one Ganesh Missir, it was found that Ganesh
Missir had played fraud upon her and that, therefore, the sale deed is
vitiated by fraud. She remained in possession till December 14, 1970 and,
therefore, the sale deed does not bind her. She filed a suit against the
defendants including the appellants who came to have another sale deed
dated December 14, 1970 pursuant to which the plaintiff was sought to be
dispossessed. She filed the suit within three years for adjudication under
Section 31 of the Specific Relief Act that the sale deeds are void and for
injunction when she was sought to be dispossessed on February 15, 1973 C
under the sale deed. It was also her contention that the second sale deed
also was vitiated by fraud because of her incapacity and illiteracy. That also
found favour with the courts below and the High Court. Accordingly, her
suit carie to be decreed.
It is contended by the appellants that whatever may be the finding'/ D
regarding the sale deed of 1966, there cannot be any second fraud in the
case of second sale deed. The suit ought to have been filed under Article
58 of the Schedule to the Act and not under Article 64. We find no force
in the contention. In view of the finding recorded by the courts below as a
finding of fact that a fraud was played upon her, the fraud unravels the E
entire transaction to be a void document. Therefore, the limitation starts
running from the date when the cause of action had arisen, viz,, when
dispossession was sought to be made. It is seen that the first respondent
was sought to be dispossessed from her land in 1973. The sale deed came
to be executed within three years from the date. Under these circumstan-
p
ces, since she remained in possession till that date, there is no need to file
a suit under Article 59 of the Schedule of the Act. Therefore, the suit was
rightly filed within three years under Article 58 of the Schedule to the Act
and the courts below decreed it and the High Court upheld the same.
Accordingly it does not warrant interference.
The appeal is accordingly dismissed. No Costs.
R.P.
Appeal dismissed.
G
Lex