Full Judgment Text
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PETITIONER:
RAMESHWER DUBEY & ORS.
Vs.
RESPONDENT:
MASOMAT ASHA KAUR & ORS.
DATE OF JUDGMENT: 05/08/1996
BENCH:
K. RAMASWAMY, G.B.PATTANAIK
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
Though notice was served on the legal heirs of the 1st
respondent and the counsel who had appeared earlier and had
taken time has now reported that in spite of his writing
three letters, there is no response from them. The legal
heirs are brought on record.
Leave granted.
The only question that arises for consideration in this
case is: which article of Schedule to the Limitation Act,
1963 (for short, the ’Act’) would be applicable to the facts
in this case? The courts below found as a fact that though
the sale deed was executed on July 12, 1966 by Asha Kaur,
the first respondent in favour of one Ganesh Missir, it was
found that Ganesh Missir had played fraud upon her and that,
therefore, the sale deed is vitiated by fraud. She remained
in possession till December 14, 1970 and, therefore, the
sale deed does not bind her. She filed a suit against the
defendants including the appellants who came to have another
sale deed dated December 14, 1970 pursuant to which the
plaintiff was sought to be dispossessed. She filed the suit
within three years for adjudication under Section 31 of the
Specific Relief Act that the sale deeds are void and for
injunction when she was sought to be dispossessed on
February 15, 1973 under the sale deed. It was also her
contention that the second sale deed also was vitiated by
fraud because of her incapacity and illiteracy. That also
found favour with the courts below and the High Court.
Accordingly, her suit came to be decreed.
It is contended by the appellants that whatever may be
the finding regarding the sale deed of 1966, there cannot be
any second fraud in the case of second sale deed. The suit
ought to have been filed under Article 58 of the Schedule to
the Act and not under Article 34. We find no force in the
contention. In view of the finding recorded by the courts
below as a finding of fact that a fraud was played upon her,
the fraud unravels the entire transaction to be a void
document. Therefore, the limitation starts running from the
date when the cause of action had arisen, viz., when
dispossession was sought to be made. It is seen that the
first respondent was sought to be dispossessed from her land
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in 1973. The sale deed came to be executed within three
years from the date. Under these circumstances, since she
remained in possession till that date, there is no need to
file a suit under Article 59 of the Schedule of the Act.
Therefore, the suit was rightly filed within three years
under Article 58 of the Schedule to the Act and the courts
below decreed it and the High Court upheld the same.
Accordingly it does not warrant interference.
The appeal is accordingly dismissed. No costs.