R.S.A. No. 2429 of 2006 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 2429 of 2006 (O&M) Date of decision: 31.03.2009 Pawan Kumar and another ....appellants versus Balbir Singh and others ....respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. R.A. Sheoran, Advocate, for the appellants. Mr. Harsh Aggarwal, Advocate, for respondents No. 1, 2 and 3. *** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgment and decree dated 6.3.2006 passed by the learned Courts below vide which the suit filed by the plaintiff/appellant claiming that the sale deed No. 2462 dated 6.11.1991 registered by Sub Registrar, Thanesar, was null and void and not binding on the rights of the plaintiff-coparcerners, and that the plaintiff-coparcenars are owners to the extent of 3/4th share in the suit land, with a consequential relief of permanent injunction restraining defendants No. 1 to 3 from seeking possession of the suit land on the basis of sale deed dated 6.11.1991, and from alienating the property in any manner, stands dismissed. The plaintiff/appellants brought a suit to challenge the sale R.S.A. No. 2429 of 2006 (O&M) -2- deed executed in pursuance to the judgment and decree passed by the Civil Court, which has attained finality, upto this Court. The defendant No. 4 i.e. father of the plaintiff/appellants entered into an agreement to sell with the respondent/defendants No. 1 to 3 and paid ernest money of Rs.1,00,000/-. Out of the said amount, a sum of Rs.95,500/- was used by defendant No. 4 for purchase of land in favour of the plaintiff/appellants. Defendant No. 4 failed to execute the sale deed in pursuance to the agreement to sell. Contesting defendant/respondent filed a suit for specific performance of agreement, in which a plea was taken by defendant No. 4 that the agreement was forged and fabricated document, and that he had not entered into any agreement to sell property in dispute. The suit was decreed by the Civil Court, defendant No. 4 contested the same upto this Court, and it was after dismissal of the regular second appeal. The executing Court executed the sale deed, now impugned. The suit was filed by plaintiff/appellants, as referred to above, on the ground that the property in the hands of defendant No. 4, was coparcenary ancestral property, and the sale being without legal necessity was liable to be set aside. The learned Courts below by way of concurrent finding of fact have held that the suit filed by the plaintiff/appellants was barred by limitation, as the suit was filed on 3.1.1996 though the sale deed was executed on 6.11.1991. The learned Courts below also held that the plaintiff/appellants failed to prove that the sale was without legal necessity. The finding on R.S.A. No. 2429 of 2006 (O&M) -3- issue of legal necessity was recorded against hte appellant/plaintiffs. The learned counsel for the appellants contends that the appeal raises the following substantial question of law: - "Whether the learned Courts below could have dismissed the suit by treating it to be time barred, though the limitation to maintain the suit for possession on the basis of title was 12 years?" In support of the substantial question of law, the learned counsel for the appellants contends that in pursuance to the sale deed, possession of the property was not handed over to the defendant/respondents, which continued to remain with the tenant of the appellant/plaintiffs and, therefore, the suit could be filed within a period of 12 years from the date when possession was threatened. The suit was, therefore, within limitation, from the date when the possession is threatened. The contention of the learned counsel for the appellants is also, that even prior to taking of possession, the suit had been filed and, therefore, it could not be treated to be time barred. In support of this contention, the learned counsel for the appellants has placed reliance on the judgment of the Hon'ble Supreme Court in State of Maharashtra Vs. Pravin Jethalal Kamdar (dead) by LRs., 2000 HRR 315, wherein the Hon'ble Supreme Court has been pleased to lay down as under: - "As already noticed, in Bhim Singhji's case (supra) Section 27(1) insofar as it imposes a restriction on transfer of any urban or urbanisable laid with a building or a portion of such building, which is within the ceiling area, has been held to be invalid. Thus, it has not been R.S.A. No. 2429 of 2006 (O&M) -4- and cannot be disputed that the order dated 26th May, 1976 was without jurisdiction and nullity. Consequently, sale deed executed pursuant to the said order would also be a nullity. It was not necessary to seek a declaration about the invalidity of the said order and the sale deed. The fact of plaintiff having sought such a declaration is of no consequence. When possession has been taken by the appellants pursuant to void documents, Article 65 of the limitation Act will apply and the limitation to file the suit would be 12 years. When these documents are null and void, ignoring them a suit for possession simpliciter could be filed and in the course of the suit it could be contended that these documents are nullity. In Ajudh Raj v. Moti S/o Mussadi, (1991)3 SCC 136 this Court said that if the order has been passed without jurisdiction, the same can be ignored as nullity, that is, non-existent in the eyes of law and is not necessary to set it aside; and such a suit will be governed by Article 65 of the Limitation Act. The contention that the suit was time barred has no merit. The suit has been rightly held to have been filed within the period prescribed by the Limitation Act." On consideration, I find no force in the contentions raised by the learned counsel for the appellants. The Hon'ble Supreme Court was considering a situation, where the possession was taken under void documents, and there was no need to seek declaration about invalidity of such documents, it was in that situation that the Hon'ble Supreme Court held that suit for possession could be maintained within a period of 12 years. In the case in hand, possession was given to the defendant/respondents under a sale deed executed in pursuance to the decree passed by the Civil Court. R.S.A. No. 2429 of 2006 (O&M) -5- The sale deed cannot be said to be void, even sale deed if executed by defendant No. 4 in pursuance to the agreement to sell would have been a legal sale deed. The sale deed also could not be said to be void or invalid document, but could only give right to the plaintiff/appellants to challenge the same for want of legal necessity. The limitation in that case would be three years from the date of cause of action. It is also pertinent to notice, that contentions raised are totally misconceived. The suit was not filed for possession on the basis of title, but declaration was sought that the sale deed executed was null and void and not binding on their rights, the said suit could have been filed within a period of 3 years from the date of execution of sale deed. The finding recorded by the learned Courts below holding the suit to be time barred is based on well settled law, which does not call for any interference by this Court. In view of the findigs recorded, substantial question of law raised is answered against the appellant. No merit. Dismissed. (Vinod K. Sharma) Judge March 31, 2009 R.S.