Case: Rajpal Singh Vs. Saroj (Deceased) Through LRs and Anr

court and/or even thereafter also. At this stage, it is required to be noted that prior thereto, there was already an agreement to sell executed by the original defendant No.2 – husband of the original plaintiff dated 04.04.1993 in favour of the Appellant herein and the time for executing the sale deed was extended twice in writing on requests made by the original defendant No.2 – original owner on 02.04.1994 and 01.04.1995. After the aforesaid agreement to sell dated 04.04.1993 and after the first extension, the original plaintiff filed the aforesaid collusive suit being Civil Suit No.1643 of 1994 and obtained the collusive decree dated 01.02.1995. Thereafter, on the strength of the agreement to sell dated 04.04.1993 and without disclosing the decree passed against him in Civil Suit No.1643 of 1994 dated 01.02.1995, the original defendant No.2 – husband of the original plaintiff – original landowner executed the registered Sale Deed dated 19.04.1996 and accepted the balance sale consideration. Necessary changes were consequently made in the revenue records as well, entering the name of the original defendant No.1 – appellant herein in the year 1996 itself. At this stage, it is to be noted that there was no mutation in the revenue records pursuant to the decree dated 01.02.1995 in Civil Suit No.1643 of 1994. It has also come on record and even as admitted by the original plaintiff in the present suit, the appellant herein - original defendant No.1 continued to be in possession and cultivating the land from 1996 onwards and despite the above she filed the suit for cancellation of the Sale Deed dated 19.04.1996, which was in favour of the appellant - original defendant No.1 executed by her husband – original defendant No.2 in the year 2001. Therefore, the subsequent present suit filed by the original plaintiff in Civil Suit No. 419/2007 can be said to be clearly barred by the law of limitation. The suit seeking cancellation of the sale deed was required to be filed within a period of three years from the date of the knowledge of the sale deed. Therefore, when the name of the appellant herein - original defendant No.1 was mutated in the revenue records in the year 1996 on the basis of the registered Sale Deed dated 19.04.1996 and when he was found to be in possession and cultivating the land since then, the suit was required to be filed by the original plaintiff within a period of three years from 1996. The submission on behalf of the original plaintiff (now represented through her heirs) that the prayer in the suit was also for recovery of the possession and therefore the said suit was filed within the period of twelve years and therefore the suit has been filed within the period of limitation, cannot be accepted. Relief for possession is a consequential prayer and the substantive prayer was of cancellation of the Sale Deed dated 19.04.1996 and therefore, the limitation period is required to be considered with respect to the substantive relief claimed and not the consequential relief. When a composite suit is filed for cancellation of the sale deed as well as for recovery of the possession, the limitation period is required to be considered with respect to the substantive relief of cancellation of the sale deed, which would be three years from the date of the knowledge of the sale deed sought to be cancelled. Therefore, the suit, which was filed by the original plaintiff for cancellation of the sale deed, can be said to be a substantive therefore the same was clearly barred by limitation. Hence, the learned Trial Court ought to have dismissed the suit on the ground that the suit was barred by limitation. As such the learned First Appellate Court was justified and right in setting aside the judgment and decree passed by the learned Trial Court and consequently dismissing the suit. The High Court has committed a grave error in quashing and setting aside a well-reasoned and a detailed judgment and order passed by the First Appellate Court dismissing the suit and consequently restoring the judgment and decree passed by the Trial Court. 7. Even the High Court has also not properly appreciated and considered the fact that the appellant herein - original defendant No.1 can be said to be a bona fide purchaser and that the decree obtained by the original plaintiff in the earlier Civil Suit No.1643 of 1994 was a collusive decree and everything was done behind the back of the appellant herein - original defendant No.1. After pocketing the money and receiving the full sale consideration, the original defendant No.2 as such did not contest the present suit and now in the present appeal, both, the heirs of the original plaintiff as well as the original defendant No.2 are represented by the same Advocate contesting the present appeal. Be that as it may, when the original plaintiff – wife of the original defendant No.2 (original landowner) obtained the collusive decree dated 01.02.1995 in Civil Suit No.1643 of 1994, there was already an agreement to sell in favour of the appellant herein – original defendant No.1 by which the original owner – original defendant No.2 agreed to sell the land in question and a sum of Rs.40,000/- was paid as earnest money at the time of agreement and subsequently the appellant herein – original defendant No.1 paid the entire balance sale consideration, which was accepted by the original defendant No.2 – husband of the plaintiff, the High Court has erred in allowing the Second Appeal. All these aspects have not at all been considered by the High Court, which were considered by the First Appellate Court. The High Court has also not at all considered whether the suit was barred by limitation or not, which ought to have been considered by the High Court. Under the circumstances, the impugned judgment and order passed by the High Court is unsustainable and the same deserves to be quashed and set aside.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]6. The original plaintiff instituted the Civil Suit No. 419/2007 claiming cancellation of the Sale Deed dated 19.04.1996 in respect of the suit property on the basis of the decree obtained by her in Civil Suit No.1643 of 1994 dated 01.02.1995. It is required to be noted that in the earlier said suit filed by the original plaintiff being Civil Suit No.1643 of 1994, which was filed against her husband – original defendant No.2, there was no contest by the original defendant No.2 – original landowner and in the written statement, he admitted everything averred in the plaint and on the basis of which the decree came to be passed in favour of the original plaintiff on 01.02.1995. It is also required to be noted that the case on behalf of the original plaintiff in the earlier Civil Suit No.1643 of 1994 was based on an alleged family arrangement, which was never produced before the court and/or even thereafter also. At this stage, it is required to be noted that prior thereto, there was already an agreement to sell executed by the original defendant No.2 – husband of the original plaintiff dated 04.04.1993 in favour of the Appellant herein and the time for executing the sale deed was extended twice in writing on requests made by the original defendant No.2 – original owner on 02.04.1994 and 01.04.1995. After the aforesaid agreement to sell dated 04.04.1993 and after the first extension, the original plaintiff filed the aforesaid collusive suit being Civil Suit No.1643 of 1994 and obtained the collusive decree dated 01.02.1995.Thereafter, on the strength of the agreement to sell dated 04.04.1993 and without disclosing the decree passed against him in Civil Suit No.1643 of 1994 dated 01.02.1995, the original defendant No.2 – husband of the original plaintiff – original landowner executed the registered Sale Deed dated 19.04.1996 and accepted the balance sale consideration. Necessary changes were consequently made in the revenue records as well, entering the name of the original defendant No.1 – appellant herein in the year 1996 itself. At this stage, it is to be noted that there was no mutation in the revenue records pursuant to the decree dated 01.02.1995 in Civil Suit No.1643 of 1994. It has also come on record and even as admitted by the original plaintiff in the present suit, the appellant herein - original defendant No.1 continued to be in possession and cultivating the land from 1996 onwards and despite the above she filed the suit for cancellation of the Sale Deed dated 19.04.1996, which was in favour of the appellant - original defendant No.1 executed by her husband – original defendant No.2 in the year 2001.Therefore, the subsequent present suit filed by the original plaintiff in Civil Suit No. 419/2007 can be said to be clearly barred by the law of limitation. The suit seeking cancellation of the sale deed was required to be filed within a period of three years from the date of the knowledge of the sale deed. Therefore, when the name of the appellant herein - original defendant No.1 was mutated in the revenue records in the year 1996 on the basis of the registered Sale Deed dated 19.04.1996 and when he was found to be in possession and cultivating the land since then, the suit was required to be filed by the original plaintiff within a period of three years from 1996. The submission on behalf of the original plaintiff (now represented through her heirs) that the prayer in the suit was also for recovery of the possession and therefore the said suit was filed within the period of twelve years and therefore the suit has been filed within the period of limitation, cannot be accepted. Relief for possession is a consequential prayer and the substantive prayer was of cancellation of the Sale Deed dated 19.04.1996 and therefore, the limitation period is required to be considered with respect to the substantive relief claimed and not the consequential relief. When a composite suit is filed for cancellation of the sale deed as well as for recovery of the possession, the limitation period is required to be considered with respect to the substantive relief of cancellation of the sale deed, which would be three years from the date of the knowledge of the sale deed sought to be cancelled. Therefore, the suit, which was filed by the original plaintiff for cancellation of the sale deed, can be said to be a substantive therefore the same was clearly barred by limitation. Hence, the learned Trial Court ought to have dismissed the suit on the ground that the suit was barred by limitation. As such the learned First Appellate Court was justified and right in setting aside the judgment and decree passed by the learned Trial Court and consequently dismissing the suit. The High Court has committed a grave error in quashing and setting aside a well-reasoned and a detailed judgment and order passed by the First Appellate Court dismissing the suit and consequently restoring the judgment and decree passed by the Trial Court.7. Even the High Court has also not properly appreciated and considered the fact that the appellant herein - original defendant No.1 can be said to be a bona fide purchaser and that the decree obtained by the original plaintiff in the earlier Civil Suit No.1643 of 1994 was a collusive decree and everything was done behind the back of the appellant herein - original defendant No.1. After pocketing the money and receiving the full sale consideration, the original defendant No.2 as such did not contest the present suit and now in the present appeal, both, the heirs of the original plaintiff as well as the original defendant No.2 are represented by the same Advocate contesting the present appeal. Be that as it may, when the original plaintiff – wife of the original defendant No.2 (original landowner) obtained the collusive decree dated 01.02.1995 in Civil Suit No.1643 of 1994, there was already an agreement to sell in favour of the appellant herein – original defendant No.1 by which the original owner – original defendant No.2 agreed to sell the land in question and a sum of Rs.40,000/- was paid as earnest money at the time of agreement and subsequently the appellant herein – original defendant No.1 paid the entire balance sale consideration, which was accepted by the original defendant No.2 – husband of the plaintiff, the High Court has erred in allowing the Second Appeal. All these aspects have not at all been considered by the High Court, which were considered by the First Appellate Court. The High Court has also not at all considered whether the suit was barred by limitation or not, which ought to have been considered by the High Court. Under the circumstances, the impugned judgment and order passed by the High Court is unsustainable and the same deserves to be quashed and set aside.