SA 8/1994 BEFORE HON’BLE MRS.JUSTICE ANIMA HAZARIKA JUDGMENT AND ORDER (CAV) The instant second appeal on remand by the Apex Court being Civil Appeal No. 512 9 of 2001 restoring the case to the file of this Court after setting aside the j udgment and order dated 7.1.2000 passed in Second Appeal No. 8/94 directing for a fresh decision after framing substantial question of law and accordingly in ex ercise of power under Section 100 of Code of Civil Procedure (Code for short) th e following substantial questions of law have been formulated for adjudication o f the case afresh in presence of the contesting parties viz.,- (1) Whether the suit of the plaintiff is barred by Section 31 of the Specific R elief Act and (2) Whether the suit of the plaintiff is barred by the law of limitation? 2. Before determining the lis between the parties it would be appropriate t o refer the provision of Section 31 of the Specific Relief Act, 1963 (’Act 1963’ for short) alongwith Article 59 of the Limitation Act,1963: Section 31- When cancellation may be ordered- (1) Any person against whom a written instrument is void or voidable and wh o has reasonable apprehension that such instrument, if left outstanding, may ca use him serious injury; may sue to have it adjudged void or voidable; and the Court may, in its discretion so adjudge it and ordered it to be deliver ed up and cancelled. (2) If the instrument has been registered under the Indian Registration Act, 1908 ( 16 of 1908), the Court shall also send a copy of its decree to the Of ficer in whose office the instrument has been so registered; and such Officer shall note on the copy of the instrument contained in his books the fact of its cancellation. Article 59 of the Limitation Act, 1963: Description of Suit Period of limitation Time from which period Begins to run. Article 59 To cancel or set three years When the facts entitling aside an instrument the plaintiff to have th e or decree or for the instrument or decree rescission of contract cancelled or set aside or the contract rescinded first become known to him. 3. The appellant, herein is the defendant in Title Suit No.14/88 on the fil e of the learned Munsiff No.1, Golaghat has assailed the judgment and decree dat ed 30.8.93 passed in Title Appeal No. 4/92 by the learned Assistant District Jud ge, Golaghat whereby and whereunder the learned Assistant District Judge dismiss ed the appeal and affirmed the judgment and decree dated 6.7.92 passed by the le arned Munsiff No.1, Golaghat in Title Suit No. 14/88. 4. The facts of the case in a nutshell is summarized hereinbelow: One Smti. Mismai Begum @ Smti. Afzuman Nessa alongwith her daughter Smti . Motimai Begum have brought a suit being Title Suit No.14/88 in the Court of Mu nsiff No.1, Golaghat arraying 9 (nine) persons as party defendant. Out of 9 (nin e) party defendants, Sri Faiz Ahmed, Sri Habibur Rahman, Sri Safiur Rahman and Tileswar Saikia were arrayed as main defendants whereas the defendant Nos. 5 to 9 who are own sons of plaintiff No.1 have been arrayed as proforma defenda nts. The plaintiff No.1 is the wife of Late Sheikh Md. Hussain whereas the plain tiff No.2 is the daughter of Late Sheikh Md. Hussain in the suit. The plaintiffs have prayed the following reliefs: (a) For a declaration that the judgment and decree dated 23.6.88 passed in Titl e Suit No. 12 of 1987 by the learned Munsiff No.1, Golaghat is not legal and val id and the same is inoperative under the law, (b) For a declaration that registered sale deed No.3758 dated 19.9.67 in con nection with the land mentioned in schedule ’ka’ of the plaint, shown as execute d by Sk. Md. Hussain, husband of the plaintiff No.1 in favour of defendant No.4 is not valid sale deed and for cancellation of the same being forged and obtaine d fraudulently. (c) For a declaration that on the basis of the aforesaid sale deed the defen dant No.4 has not acquired any right, title and interest on the land mentioned in the schedule of the plaint; (d) For permanent injunction; (e) For recovery of khas possession in respect of ’Ka’ schedule land mention ed in the schedule of the plaint. (f) And with a further prayer that till the suit is finally disposed of stat us quo in respect of ’ka’ schedule land shall be maintained and a temporary inju nction may be issued restraining the defendant No.4 not to proceed with Partitio n Case being No. 27/81-82 till disposal of the suit. 5. The facts pleaded in the plaint by the plaintiff is that the entire land measuring 36 Bighas covered by P.P.No. 234, Dag No. 1824 belongs to Late Noor M d., Sk Md. Hussain and other three brothers, i.e. defendant Nos.1 to 3. The enti re land was mutually divided between the above mentioned four brothers, i.e. hei rs of Late Noor Md. and accordingly, 5 Bighas of land out of 36 Bighas falls in the share of Late Sk. Md. Hussain who was in possession of the land till his dea th in the year 1984 and accordingly, the defendant Nos.1 to 3 have no share in r espect of 5 Bighas of land mentioned in schedule ’ka’ of the plaint. The aforesa id defendant Nos.1 to 3 filed a suit being Title Suit No. 12/87 against the defe ndant No.4 without arraying the plaintiffs as parties in the suit though her son s were arrayed as proforma defendants in the suit and consequently thereupon she (plaintiff No.1) was not aware of the suit filed by the defendant Nos.1 to 3 a s plaintiff. The said suit was dismissed on 23.6.88 whereof it has been mentione d in ’kha’ schedule land. The plaintiffs have further pleaded that the suit land in Title Suit No. 12/87 never sold to defendant No.4 and the sale deed alleged to have been execut ed by Late Sk. Md. Hussain was forged which do not entitle the defendant No.4 t o acquire right, title and interest on the aforesaid land even if there was ag reement for sale of the schedule land and consequently thereupon the defendan t No.4 on the basis of forged sale deed mutated his name in respect of ’ka’ sc hedule land which was not known to the plaintiffs in the Title Suit No. 12/87 and only on 8.7.88, when the defendant No.4 started to construct a thatched hou se on the suit land and inspite of their protest he occupied the land and constr ucted the house, they came to know the actual fact and obtained certified copie s of the sale deed on 6.8.88 and decree passed on 23.6.88 in Title Suit No. 12/87 and filed the suit on 23.8.88 seeking relief as indicated above. 6. On receipt of the summons the defendant No.4 contested the suit by filin g written statement contending, inter alia, that there is no cause of action and the suit is barred by limitation. It has further been averred that the suit is barred by res-judicata, estoppel and by law of acquiescence. It is his specific case that the plaintiffs and the other defendants are related to each other and denied the fact that the plaintiffs had no source to know about the suit and the sale deed which was purchased in consideration of money amounting to Rs. 625/- from Sk Md. Hussain on 19.9.67 under registered sale deed and there was an agree ment to sale the land executed on 5.10.58 and he paid Rs.200/- as advance and pr ior to the agreement he has been possessing the suit land since 1957 and accordi ngly his name was rightly mutated and prayed for dismissal of the suit. The pro forma defendant Nos. 5 to 8 filed the written statement supporting the case of t he plaintiffs though the defendant Nos. 1 to 3 did not file the written statemen t. 7. On the pleadings of the parties, the learned trial Court framed the foll owing issues: 1. Whether there is any cause of action for the suit? 2. Whether the suit is barred by limitation? 3. Whether the suit is barred by the principles of res- judicata ? 4. Whether the plaintiffs have any right to sue? 5. Whether the defendant No.4 has been possessing the suit land since 1957? If not whether the defendant No.4 dispossesses the plaintiffs therefrom as alle ged? 6. Whether the sale deed No. 3758 dated 19.9.67 alleged to be executed by S k. Md. Hussain in favour of the defendant No.4 is forged one and as such liable to be cancelled ? 7. Whether the judgment and decree passed in TS No. 12/87 by this Court is operative in law? 8. Whether the plaintiffs are entitled to any decree as prayed for? 9. To what other reliefs, if any, the parties are entitled to? 8. The learned trial Court while deciding the issue No.1 has held that the plaintiffs came to know about the dismissal of the Title Suit being TS No.12/87 on 8.7.88 when the defendant No.4 constructed house on the suit land and disposs essed the plaintiffs though she was not made party in the suit and the judgment being delivered on 23.6.88 there is cause of action for the suit. While deciding issue No.2 which relates to limitation, the learned trial Court has held that t he plaintiffs came to know the existence of the sale deed and Title Suit No.12/8 7 only on 8.7.88 and filed the suit on 23.8.88 which is within three years as pr ovided under Article 59 of the Limitation Act and decided the issue in favour of the plaintiffs. Relating to issue No.3,the learned trial Court answered the iss ue in the negative. Relating to issue Nos.4 to 7, the learned trial Court on car eful scrutiny of the pleadings of the parties and evidence on record has held th at the Title Suit No.12/87 is bad for non-joinder of necessary party since the p laintiffs were not made parties to the suit on the death of Late Sk. Md. Hussain in the year 1984 though Late Sk. Md. Hussain was in possession of the suit land till his death, moreso, when the defendant Nos.1 to 3 filed the Title Suit No.1 2/87 which was dismissed without the knowledge of the plaintiffs and hence the p laintiffs have rightly filed the suit. Further more, the learned trial Court cam e to a conclusion that though there was an agreement for sale which is admitted by the plaintiff also but the sale deed was not executed by Late Sk. Md. Hussain in favour of defendant No.4 and the defendant No.4 has failed to produce any ev idence in support of his possession and thus disbelieved the execution of the sa le deed relying on the evidence of DWs-2 and 3 holding that the sale deed No.375 8 is a doubtful document thereby cancelled the same further holding that the jud gment and decree passed in TS No.12/87 is inoperative in law and the decree was passed in favour of the plaintiffs. 9. The defendant No.4 has assailed the judgment and decree dated 6.7.92 pas sed in TS No.14/88 by the learned Munsiff No.1, Golaghat on the file of the lear ned District Judge, Golaghat being Title Appeal No.4/92. Before the learned Appe llate Court the following grounds, inter alia, were urged: a) That the learned Munsiff has failed to consider the previous jud gment delivered in Title Suit No.12/87 for which the present suit being Title Su it No.14/88 would be barred on the ground of res-judicata, acquiescence, waiver and limitation. b) That the learned Munsiff has failed to scrutinize the evidence l ed by the parties and wrongly decided the suit. 10. The learned Appellate Court apart from the issues framed by the learned trial Court, framed the following points for determination: i) Whether the judgment and decree in TS No.12/87 was obtained by f raudulent means? ii) Whether the suit is barred by res-judicata, acquiescence and waiver? iii) Whether the suit is barred by law of limitation? 11. The learned Appellate Court dealt with point No.1 in details contending inter alia that in Dag No.1824 of Patta No.234 there is 36 Bighas of land which was the common property of Late Sk. Md. Hussain, Late Noor Md. (father of defend ant No.1) and defendant Nos.2 and 3 (sons of Late Khatnur Rahman). The land was mutually divided amongst the brothers and 5 Bighas of land comprising the suit l and was possessed by Late Sk. Md. Hussain till his death in the year 1984. On th e 5 Bighas of land the defendant Nos.1, 2 and 3 had no share and on the death of Sk. Md. Hussain, the suit land devolves on his wife, daughter and sons and anyb ody having claim over the suit land must be made party in the suit. Though the s ons of Late Sk. Md. Hussain were made proforma defendants but notices were not s erved on their place of posting but served through the plaintiff No.1, who being an old lady knows nothing about the piece of paper she received. All these thin gs would go to show that the suit was filed with ulterior motive knowing fully t hat the suit land falls in the share of the respondents and her children. While dealing with the possession of the suit land, the learned Appellate Court has de alt with all the five PWs and their evidence on record, wherein, all the witness es have categorically deposed that Late Sk. Md. Hussain was in possession of the suit land till his death and thereafter, his wife was in possession of the land till dispossessed in the year 1988 by the appellant Tileswar Saikia. In regard to execution of the sale deed, the learned Appellate Court has found that an agr eement of sale was made by paying Rs. 200/- out of the total agreed amount of Rs .625/- and by paying the remaining amount the appellant purchased the land by ex ecuting the registered sale deed. In order to establish the factum of execution of sale deed the appellant examined four witnesses including himself. The appell ant himself deposed that the deed of sale was written in the Court and both the parties were identified by DW-3 who is a signatory to the sale deed. According t o DW 3 who was working at his office from where DW 1 called him to the Sub-Regis trar’s office and asked him to put his signature. He signed and left but did not notice any other signature in the deed nor he knows the signature of Late Sk. M d. Hussain. DW-3 is stated to be an identifying witness who is supposed to ident ify the signatures of both the seller and the purchaser. DW-2 also deposed that he put his signature as a witness but he does not know the seller Sk. Md. Hussai n. The witness who is examined as DW-4 is the brother of the appellant DW-1 wher ein the learned Appellate Court has held that the less it is said, the better it will be, by holding that the sale deed became a very doubtful document and cann ot be relied upon. The facts pleaded and established in the aforesaid circumstan ces, the learned Appellate Court came to the conclusion that there is no occasio n to file the Title Suit No.12/87 and that too without making the actual owners as party defendants, more so, when the non service of summons is added with deli berate inaction of fraud and obtained the decree and jumped upon the land to dis possess the real owner by holding that respondents were not aware of the previou s suit and its subsequent decree. The other decisions rendered by the learned tr ial Court have been affirmed by the learned Appellate Court thereby dismissing t he appeal. 12. The appellant being aggrieved with the judgment and decree passed in Tit le Appeal No.4/92 preferred an appeal being Second Appeal No.8/94 on the file of this Court which was allowed on 7.1.2000 and on further appeal before the Apex Court by the respondents herein, the Apex Court remanded the matter for fresh he aring after formulating the substantial questions of law which were accordingly formulated as indicated hereinabove and the matter is taken up for hearing only on the substantial questions of law formulated by this Court in presence of the parties. 13. Mr. TJ Mahanta, learned counsel appearing for the appellant has urged th e following points while criticising the judgment and decree passed by both the Courts below viz. i) The appellant is admittedly in possession of the land measuring 1 bigha 2 kathas and 10 lechas since the year 1957 and accordingly, an agreement to sale was executed with Late Sk. Md. Hussain on 5.10.58 and subsequently, thereupon a deed of sale was executed by Late Sk. Md. Hussain on 19.9.67 being No.3758 whic h was not denied by the plaintiffs and this factum amply demonstrate that the pl aintiffs were aware of the sale deed which is now being challenged after 21 year s which is barred under Article 59 of the Limitation Act and the findings of bot h the Courts below being perverse requires interference under Section 100 of the Code. ii) Learned counsel has contended referring the earlier suit being Title Sui t No.12/87 before the learned Munsiff No.1 at Golaghat filed by the plaintiff No s.1, 2 and 3 (respondents in this appeal) seeking a decree for declaring the reg istered sale deed No.3758 dated 19.6.1967 executed by Late Sk. Md. Hussain in fa vour of the defendant No.4, appellant herein is void, illegal and unenforceable in law whereas the factum of sale of the suit land to the appellant were known t o them at the time of hearing the perfect partition case No.27/1981-82 initiated by the appellant herein, wherein the plaintiffs have filed objection on 31.7.82 and thus they had the knowledge of sale and as such the suit ought to have bee n filed on 26.5.87, more so, when the service of notice of TS No.12/87 on the pr oforma respondents were served through the plaintiff No.1 in Title Suit No.14/88 as valid under Order 5 Rule 15 of the Code and as such, the suit is barred unde r Article 59 of the Limitation Act and the cancellation of the sale deed under S ection 31 of the Specific Relief Act requires interference under Section 100 of the Code being perverse findings arrived at by both the Courts below. iii) The learned counsel appearing for the appellant has drawn the attention of this Court to para 8 and 9 of the plaint in Title Suit No.12/87 wherein it is admitted by the plaintiffs that on receipt of the notices of Perfect Partition Case No.27/1981-82 the plaintiff Nos.2 and 3 alongwith Late Sk. Md. Hussain, hus band of the plaintiff No.1 in Title Suit No.14/88 filed their objection on 31.7. 1982 and in the midst of the proceeding, Sk. Md. Hussain authorized his son Sk. Amzed Ali (respondent No.8 herein) to represent him in the partition case, who h ad executed the sale deed on 19.9.1967 and it is too late of the day for the pla intiffs to aver that they came to know from the judgment passed in Title Suit No .12/87 relating to the sale deed certified copy of which was obtained on 6.8.88 and accordingly, the suit was filed within the time cannot be sustained which is beyond the prescribed period of limitation as provided under Article 59 of the Limitation Act and therefore, the sale deed cannot be cancelled in exercise of p ower under Section 31 of the Specific Relief Act. Impugned judgment and decree t hus require interference under Section 100 of the Code. 14. In support of his submission Mr. Mahanta has relied upon the following d ecision:- 1. (2001) 7 SCC 189, Hafazat Hussain Vs. Abdul Majeed and Others. 15. Countering the argument advanced by the counsel representing the appella nt, Mr. BC Das, learned Senior counsel assisted by Mr. UC Dutta, learned counsel appearing for the respondents would urge that after the amendment of Section 10 0 of the Code, the role of the High Court in the matter of second appeal is very limited and the High Court cannot substitute its own finding on re-appreciation of evidence over the concurrent findings of fact arrived at by both the Courts below. When the findings of fact of the lower Appellate Court are based on evide nce, the same do not require to be interfered with under Section 100 of the Code . 16. The learned Senior counsel has drawn the attention of this Court to the judgment rendered by the first Appellate Court wherein three points were formula ted in order to determine the dispute raised by the parties. The first point rel ates to the judgment and decree passed in Title Suit No.12/87 whereof the first Appellate Court has held that the decree was obtained by fraudulent means withou t making the wife as party in the suit though the suit land devolves on her and on her children and the plaintiffs in the suit had nothing to gain since it fall s in the share of the plaintiffs in Title Suit No.14/88 and the proforma defenda nts. Moreover, service of summons on the proforma defendants in Title Suit No.12 /87 were not issued in their place of posting; rather notices were served throug h the plaintiff No.1, i.e. mother of the pro-forma defendants and thus finding o f fact cannot be overturned under Section 100 of the Code. 17. Regarding execution of sale deed alleged to have executed by Late Sk. Md . Hussain, Mr. Das would contend that from the evidence of DWs it has become cry stal clear that it was a doubtful document and cannot be relied upon and thus th e concurrent findings of fact arrived at by both the Courts below may not be int erfered with under Section 100 of the Code. 18. In regard to the vital point, i.e. the point of limitation, Mr. Das has further contended that the suit was filed within three years as provided under S ection 59 of the Limitation Act because the existence of the sale deed and about Title Suit No.12/87 was known to the plaintiffs on 8.7.88 and the suit was file d on 23.8.88. Mr. Das has also contended that the evidence led by the parties re lating to the execution of sale deed would show that it was not a valid document as has been held by both the Courts below and the existence of sale deed came t o the knowledge on 8.7.88. Even if Article 59 is not attracted residuary Article would be applicable and thereby supported the judgment and decree passed by bot h the Courts below. 19. In support of his submission, Mr. Das has relied upon the following deci sions: i) (2007) 1 SCC 546: AIR 2006 SC 1975, Gurdev Kaur and ors. -Vs- Kaki and ors. ii) (2006) 5 SCC 353, Prem Singh and ors. -Vs- Birbal and ors. iii) (1999) 3 SCC 722 : AIR 1999 SC 2213, Kondiba Dagadu Kadam -Vs- Savitriba i Sopam Gujar and others. iv) (1999) 7 SCC 288 : AIR 1999 SC 3325, Hari Singh -vs- Kanhaiya Lal, v) (1996) 7 SCC 767, Md. Noorul Hoda -Vs- Bibi Rafiunnisa and others, vi) AIR 1968 SC 956, Ningawwa Vs. Byrappa Shiddappa Hireknrabar, vii) AIR 1963 Assam 4, Niasha Ghosh Vs. Kari Siddek Ali and Others,