1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No. 285/2008 (Gyaprasad Motiramji Shahu & another VERSUS The Nagpur Geeta Mandir Trust thr. Its Managing Trustees & others) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Shri S.G. Shukla, counsel for the appellant. CORAM : SMT. VASANTI A. NAIK, J. DATE : JULY 30, 2008. Heard the learned counsel for the appellants. The appellants are the original plaintiffs. A suit was filed by the plaintiffs against the defendant no.1-Nagpur Geeta Mandir Trust and the other defendants, who, according to the plaintiffs, were the tenants in the suit property. The plaintiffs sought a declaration that the plaintiffs were the sole owners of the suit house and the gift deed executed by Soniyabai and Jankibai in favour of defendant no.1 Trust by registered gift deed dated 01.02.1974 was void ab-initio. On the basis of the aforesaid declaration, the plaintiffs also sought the possession of the suit property. According to the plaintiffs, the suit property belonged to one Gundelal, and Soniyabai & Jankibai, wives of Gundalal's sons Ramdayal and Omkarlal, executed a registered gift deed in favour of defendant no.1-Nagpur Geeta Mandir Trust on 2 01.02.1974 when they did not have any authority to gift the suit property to the defendant no.1. According to the plaintiffs, Soniyabai and Jankibai never inherited property absolutely and they had life interest in the property and in view of the aforesaid fact, the gift deed dated 01.02.1974 was void and inoperative. The defendants denied the claim of the plaintiffs. The defendant no.1 pleaded that the defendant no.1 was the absolute owner of the suit property as the partition had taken place between the sons of Gundelal and in view of the partition, since the property had fallen to the share of Ramdayal and Omkarlal, their widows had inherited the same after the death of Ramdayal and Omkarlal and were entitled to execute the gift deed in favour of the Nagpur Geeta Mandir Trust. The defendant no.1 pleaded that the suit was barred by limitation as it was not filed within three years from the date of execution of the gift deed. The other defendants also denied the claim of the plaintiffs and further denied that the plaintiffs were the owners of the suit house. They pleaded that the gift deed executed by Soniyabai and Jankibai in favour of Nagpur Geeta Mandir Trust was legal and valid. They also pleaded that the suit was barred by limitation and was also filed without obtaining permission from the Charity Commissioner. 3 The trial Court framed the issues and dismissed the suit of the plaintiff by holding that the permission of the Charity Commissioner was necessary before filing the suit. The Court further held that the suit was barred by the provisions of Limitation Act. The trial Court held that the plaintiffs did not succeed in proving that they were the owners of the suit property, and hence, were not entitled to declaration as claimed by them. The findings recorded by the trial Court were affirmed by the appellate Court in an appeal filed by the plaintiffs. Both the judgments are challenged in this second appeal. I have heard the learned counsel for the appellant at length and have also perused both the judgments in detail. The Courts have rightly recorded a finding that the plaintiffs were seeking a declaration against the Nagpur Geeta Mandir Trust and in this view of the matter, it was necessary for the plaintiffs to obtain the permission of the Charity Commissioner before institution of the suit. The Courts have, on a proper appreciation of the material evidence on record, recorded a categorical finding that the Nagpur Geeta Mandir Trust became the owner of the suit house after the execution of the gift deed on 01.02.1974. The Courts further rightly held that the suit filed by the plaintiffs was barred by limitation as the plaintiffs became aware of the execution of the gift deed by Soniyabai and Jankibai 4 in the year 1984 and the suit was instituted on 25.01.1990. In view of the provisions of Limitation Act, the period of limitation to seek cancellation or setting aside of an instrument is three years and the time from which the period begins to run is the time when the plaintiff becomes aware or secures knowledge about the instrument which is sought to be cancelled or set aside. As in the instant case, since the plaintiffs became aware that the gift deed in the year 1984 it was necessary for the plaintiffs to have instituted a suit for declaration that the gift deed was void, within a period of three years from the date of knowledge. Since the suit was instituted on 25.01.1990 no fault can be found with the findings recorded by both the Courts that the suit was barred by limitation. In such a case, the Courts rightly held that the benefit of the provisions of Section 14 of the Limitation Act is not available to the plaintiffs as the time spent by the plaintiffs in the Court of the Rent Controller where the plaintiffs had instituted the proceedings for seeking permission to evict the tenants could not have been excluded. It was not a case where the proceedings were filed by the plaintiffs bona fide in the Court of the rent controller for the same cause which arose in the instant civil suit, and hence, the provisions of Section 14 of the Limitation Act would not come into play in this case. The judgments reported in 1983 Mh.L.J. 933 and 1980 Mh.L.J. 627, relied on by the counsel 5 for the appellant, are totally inapplicable to the facts of this case. Since the findings recorded by both the Courts are pure findings of facts, they do not give rise to any substantial question of law. The second appeal is, therefore, dismissed with no order as to costs. JUDGE APTE