[1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R Hari Ram Vs. Deva Ram & Ors. S.B. CIVIL SECOND APPEAL NO. 41/2008. Date of Order :: 3rd March 2008. PRESENT HON'BLE MR.JUSTICE DINESH MAHESHWARI Mr. Rajesh Panwar, for appellant. BY THE COURT: Having heard learned counsel for the plaintiff-appellant and having perused the material placed on record, this Court is satisfied that the instant second appeal does not involve any substantial question of law and does not merit admission. Briefly put, the background facts and relevant aspects are that the plaintiff-appellant filed the suit for cancellation of sale document with the submissions that late Shri Lalu Ram, father of the plaintiff Hari Ram and the defendants Nos. 2 and 3 Smt. Shanti and Chunni Lal, had an agricultural land measuring 63 bighas 10 biswas in khasra No. 147 at village Shivbari, Bikaner; that Lalu Ram, who expired on 31.03.1967, and the defendant No.1 Deva Ram were close friends; that Lalu Ram was serving as Peon in Treasury whereas [2] defendant No.1 Deva Ram was serving as Peon in Education Department; that in the year 1966, for some necessity Lalu Ram borrowed an amount of Rs.1,000/- from the defendant No.1 and mortgaged the aforesaid agricultural land with him, executed a document in that regard, and informed his sons including the plaintiff about such transaction. The plaintiff further averred that himself with defendants Nos.2 and 3 visited Deva Ram on 22.09.1998 with the offer of repayment of Rs.1,000/- taken on loan and made a request for return of the mortgage documents whereupon the defendant divulged about Lalu Ram having executed a sale deed in his favour in the year 1966 and while refusing to accept the amount, rather asked the plaintiff and his family to vacate the land though, according to the plaintiff, the land in question had continued in cultivatory possession of Lalu Ram and after him, with the plaintiff and his family. The plaintiff alleged having inquired from the Registrar's office and having come to know that deceiving his father, the defendant No.1 got executed a sale deed in place of the mortgage deed; and submitted that there could arise no question of selling 63 bighas of land for a paltry of Rs.1,000/-. On these averments and submissions, the plaintiff sought cancellation of the sale document and for perpetual injunction against the defendant not to dispossess the plaintiff and his family without due process of law. [3] Per Contra, the defendant No.1 maintained that the suit land was sold to him by Lalu Ram in the year 1966 for necessity and averred that there was no proposition of any mortgage transaction; that the sale deed was executed by Lalu Ram who signed before the Sub Registrar, Bikaner after receiving the consideration; that the sale deed was executed in the presence of the defendant No.3 Chunni Lal, other son of Lalu Ram; and that since the date of sale, the defendant No.1 had been in cultivatory possession of the land in question. The contesting defendant, while denying any such alleged offer of repayment on 22.09.1998 by the plaintiff and the defendants Nos.2 and 3, asserted that the plaintiff and his family were aware about the sale transaction since the year 1966; and that the land has duly been mutated in his name. The contesting defendant alleged that the plaintiff was only seeking to pressurize him for the land in question now falling near the main road. The defendants Nos.2 and 3, the siblings of the plaintiff-appellant, remained ex parte. The learned trial court, after framing relevant issues on the pleadings, after taking the evidence, and after hearing the contesting parties, proceeded to reject the case of the plaintiff that the land was mortgaged by his father with the defendant No.1. The learned trial court held that the defendant No.1 was a bona fide purchaser for value and has been in cultivatory [4] possession of the land in question. The learned trial court further proceeded to decide issue No.4 on the question of limitation against the plaintiff with the observations that according to the case set up by the plaintiff, Lalu Ram had informed his family in the year 1966 about his having taken the loan and allegedly having placed the land in mortgage. Thus, the learned trial court observed, the plaintiff was aware about documentation in the year 1966. The learned trial court referred to the statement of PW-4 Chunni Lal, brother of the plaintiff, that Rs.1,000/- were paid and his father signed on the so-called mortgage deed and he too put signatures thereupon. The learned trial court observed that the document in question was admittedly signed by the said Shri Chunni Lal; and did not believe his other assertions that the transaction was intended to the one of mortgage. The learned trial court observed that the so-called mortgage deed has ultimately come to the fore as a sale deed and the plaintiff and his family were aware about the document in the year 1966 and hence, the suit filed thirty two years later was barred by limitation. The learned trial court, accordingly, proceeded to dismiss the suit. The learned first Appellate Court has again examined the entire material available on record and has endorsed the findings of the learned trial court. Seeking to assail judgment and decree aforesaid, the [5] plaintiff-appellant has filed this second appeal and the following have been suggested as substantial questions of law in the memo of appeal:- (i) Whether the finding of Issue No.1 and 2 suffers from misreading and wrong appreciation of evidence? (ii) Whether the statements of respondent-defendant No.3 Chuni Lal can be read in evidence when the learned Trial Court vide its order dated 17.03.2005 refused to permit him in the witness box? (iii) Whether the suit is barred by limitation? None of the aforesaid could be said to be substantial question of law calling for consideration in the present case. Apart that the findings on issue Nos.1 and 2 on execution of the document by the father of the plaintiff and the document being not vitiated for any fraud or misrepresentation are essentially the findings based on appreciation of relevant evidence and do not suffer from any perversity, the fundamental of the matter remains that the learned subordinate courts have concurrently found the suit in question to be hopelessly barred by limitation; and there does not appear any error in such conclusion. The document in question was executed in the year 1966 and according to the plaintiff, at the relevant time his father had divulged about the transaction with the defendant No.1 involving the property in dispute. The father of the plaintiff [6] admittedly expired in the year 1967. The defendant has adduced oral and documentary evidence showing his dealings with the land in question that had been mutated in his name and his having also taken up litigation with the revenue authorities. The document in question has thoroughly been acted upon. Coupled with these aspects remains the significant factor that the document was precisely in the knowledge of PW-4 Chunni Lal, brother of the plaintiff, who had signed upon the same. In the face of the material and relevant facts available on record, the oral cursory statements of the plaintiff and his witnesses could not have been accepted that the document was intended to be that of a mortgage transaction; and such suggestions have rightly been rejected by the learned subordinate courts. The story of the plaintiff making any offer of repayment of the alleged loan amount in the year 1998 remains hollow and does not inspire confidence from any standpoint. The transaction was definitely in the knowledge of the plaintiff and his family in the year 1966. The land in question had remained in possession of the defendant ever since its sale. Though the amount of consideration, of Rs.1,000/- for 63 bighas of agricultural land, appears to be on the lower side but for that reason alone it cannot be concluded that in the year 1966 the father of the plaintiff did not intend to sell the land or that the [7] defendant No.1 got the document executed fraudulently. An attempt to question the sale document after 32 years of the transaction, particularly when the fundamentals of the transaction were in the knowledge of the plaintiff, could only have been rejected as being barred by limitation. The learned subordinate courts have not committed any error in doing so. It has been suggested in this appeal that the statement of the defendant No.3 Chunni Lal (PW-4) cannot be read in evidence because the learned trial court had refused to examine him by order dated 17.03.2005. The submission is not only baseless but remains rather counter-productive. The said Shri Chunni Lal was arrayed as defendant No.3 in this suit but remained ex parte. From the copy of the order dated 17.03.2005 placed for perusal by the learned counsel it is noticed that the appellant suggested before the court that Chunni Lal was to be examined regarding the nature of transaction who had earlier agreed to appear in the witness box but has now refused and should, therefore, be summoned. The learned trial court declined the prayer with the observations that if at all the plaintiff wanted to examine his brother Chunnilal, who was defendant in the suit and remained ex parte, he should have done so in his lead evidence. It is not clarified as to under what circumstances the same person Chunni Lal was nevertheless examined before [8] the trial court on 06.07.2005 but in any case, the witness having been examined, and examined by the plaintiff-appellant only, his statements cannot be ignored. Noteworthy it is that if his statements were to be ignored then the inference, if any, would only be against the appellant for the said witness being his brother and being signatory to the document in question. Having examined the record, this Court is satisfied that that the present suit has rightly been dismissed as being barred by limitation. The appeal does not involve any substantial question of law; and is, therefore, dismissed summarily. (DINESH MAHESHWARI),J. Jpa/ Mohan/