IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.: 121 of 1999. Reserved on: 26.03.2009. Decided on: 01.04.2009. Sheela Devi and Another. … … Appellants. Versus Shri Gopal Chand. … … Respondent. Coram: The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the Appellants: Mr. Bhupender Gupta, Senior Advocate with Mr. Neeraj Gupta, Advocate. For Respondent: Mr. G.D. Verma, Senior Advocate with Mr. B.C. Verma, Advocate. Rajiv Sharma, Judge: This regular second appeal is directed against the judgment and decree passed by the learned District Judge, Solan in Civil Appeal No.4- S/13 of 1998 dated 1.6.1998. Brief facts necessary for adjudication of this regular second appeal are that Shri Punnu Ram son of Shri Bardu Ram filed a suit through his General Attorney Shri Gopal Chand (hereafter referred to as the plaintiff for convenience sake) for declaration. The case set out in the plaint was Whether reporters of local papers may be allowed to see the judgment? Yes. - 2 - that he was owner in possession of landed property comprising in Khata/Khatauni No.246 min/280 min bearing Khasra No.2006/18 measuring 18 bighas 13 biswas. On the persuasion of Shri Dhani Ram, an agreement was reduced into writing on 16.11.1981 for sale of one bigha of land out of Khasra No.2006/18 for a consideration of Rs.4,000/-. Shri Dhani Ram after collecting the revenue papers from the Patwari got the sale deed prepared from the petition writer qua Khasra No.1056 measuring 852 square metres instead of 752 square metres and thereby got transferred 100 square metres of land more than agreed by the plaintiff. It is also alleged that the defendants have acted fraudulently by executing the sale deed Ex.PW-1/A, dated 21.1.1986. The defendants contested the suit. The trial Court dismissed the suit on 3.11.1997. The plaintiff preferred an appeal before the learned District Judge, Solan. The same was allowed on 1.6.1998. The regular second appeal was admitted on 7.5.1999 on the following substantial questions of law:- 1. When the Deed of Sale is challenged on account of fraud and misrepresentation, whether the limitation is to be reckoned from the date of Execution and registration of the Sale Deed or any point of time mentioned thereafter and was not the suit filed by the Plaintiff- Respondent barred by limitation? 2. Whether the Deed of Sale which is duly executed and registered which mentions about the sale consideration could be held to be void, or illegal partially by holding that the Agreement of Sale was for lesser amount, could the Agreement of Sale over-ride the registered Deed of Sale which are independent transactions? - 3 - 3. Whether the suit was not maintainable for want of proper pleadings with respect to alleged fraud and misrepresentation? 4. Whether the old person who is alleged to be illiterate could be compared with the position of a pardanasin lady, thereby holding the sale to be illegal, null and void, with respect to part of the sale transactions? 5. Whether the presumption attaches to the irregularities of the acts done by the Sub Registrar, under Section 60 of the Indian Registration Act, whether it was within the jurisdiction of the learned Lower Appellate Court to go into the question of inadequacy of sale consideration or the factum of delivery of possession particularly when the subject-matter of the dispute between the parties is a whole Khasra Number? 6. Whether the findings of the learned Lower Appellate Court are against principles enunciated in the Transfer of Property Act and Indian Registration Act? Mr. Bhupender Gupta, the learned Senior Advocate has strenuously argued that the judgment and decree passed by the first Appellate Court below is not sustainable. He has supported the judgment and decree passed by the learned trial Court. On the other hand, Mr. G.D. Verma, the learned Senior Advocate has supported the judgment and decree passed by learned first Appellate Court. I have heard the learned counsel for the parties and gone through the record carefully. Since all the substantial questions of law are interconnected, they taken up together for adjudication to avoid repetition to refer to the evidence. - 4 - The first question involved in this regular second appeal is whether the suit could be filed after the expiry of three years from the date of execution of sale deed dated 21.1.1986. It is not disputed that the sale deed was executed on 21.1.1986. The limitation prescribed for setting aside or to cancel an instrument or for rescinding of contract is three years. The explanation given by the plaintiff for filing the suit on 11.12.1990 is that he came to know for the first time about the execution of the sale deed when the Patwari visited the village for Girdawari in the month of October, 1990. This version could not be over-looked by the first appellate Court. Khasra Girdawari takes place twice a year. It is admitted that the possession of land in question was handed over to the defendants at the time of registration of sale deed. The suit was required to be filed within three years. The explanation given by the plaintiff that the cause of action has arisen in his favour in the month of October, 1990 cannot be accepted. The first appellate Court has over-looked this important issue. Even if the plea of limitation has not been specifically taken, it is the duty cast upon the Courts to consider whether the suit was barred by limitation or not. The agreement to sell was executed on 16th November, 1981. The plaintiff has also sworn an affidavit, i.e. Ex.P-B. He had agreed to sell the land measuring 852 square metres bearing Khasra No.1056. The contents of sale deed were read over to him by DW-5 Shri K.C. Dutta. The consideration of the sale was paid by Smt. Sheela Devi. The learned first appellate Court has erred in law by concluding the status of plaintiff with a parda nasin. The principles which are applicable qua parda nasin had no bearing in the present case. The land mentioned in the sale deed is 852 square metres comprised in Khasra No.1056. The learned Sessions Judge has hypothetically - 5 - assessed the value of the suit land to return a finding that the sale ded Ex.PW-1/A was not valid. In view of the discussion made hereinabove, the judgment cited by Mr. G.D. Verma, i.e. Ningawwa v. Byrappa Shiddappa Hireknrabar and others, AIR 1968 SC 956 is not applicable. In the present case the plaintiff throughout knew the true nature of the deed. It was executed in his presence. He has signed the same. Consequently, in view of the observations made hereinabove, the regular second appeal is allowed. The judgment and decree passed by the first appellate Court in civil appeal No.4-S/13 of 1998 on 1.6.1998 is set aside. The judgment and decree passed by the trial Court in civil suit No.363/1 of 1995/90, dated 3rd November, 1997 is restored. There shall, however, be no order as to costs. April 01, 2009. (Rajiv Sharma) (sck). Judge.