Balram Singh vs Satyanarayan Agrawal and Ors.

Parth Prateem Sahu, Judge

This appeal was admitted on following substantial questions of law:

"1) Whether the suit for declaration filed by the plaintiff/respondent No.1 was barred by limitation as per Article 58 of Limitation Act.

2) Whether in view of specific bar stated in Section 257 of the Chhattisgarh Land Revenue Code, 1959, the Civil Suit filed by the plaintiff seeking quashment of order passed by revenue authorities (Sub-Divisional Officer and Tahsildar) was not maintainable and thus, the lower appellate Court exceeded its jurisdiction by setting aside the orders of Sub-Divisional Officer and Additional Tahsildar passed with respect to the suit property.

3) Whether the Court below has erred in law in as much as in not properly appreciating the fact that the plaintiff has failed to prove execution of the sale deed as per Section 68 of Evidence Act."

Facts relevant for disposal of this appeal are that respondent No.1/plaintiff filed a suit against appellant/defendant for declaration, confirmation of possession, permanent injunction and for setting aside the order passed by the Revenue Courts. It was pleaded in the plaint that land bearing kh. No.791/1, 791/2, 791/3, 791/4, 791/5, 791/6 total admeasuring 3.32 acres situated at Baradwar was purchased by the plaintiff by registered sale-deed dated 11.02.1974. Out of the said purchased property, land bearing kh.no.791/5 admeasuring 0.74 acres was acquired by the State Govt. for construction of canal, compensation for which has already been awarded to the plaintiff. Subsequently, on account of re-numbering of khasra number, land was re-numbered as Kh. No.842/1, 730 and 843 total admeasuring about 2.58 acres which is subject matter of suit. Land was duly mutated in name of plaintiff on 25.10.1992. However, later on, at the time of re-numbering of khasra numbers, original sale deed has been misplaced by the concerned revenue officer. Thereafter, certified copy of the registered sale deed was obtained by the plaintiff. It was pleaded in the plaint that appellant/defendant, in connivance with revenue authorities vide order dated 23.06.1997 got the mutation order dated 25.10.1992 cancelled which came to the knowledge of plaintiff on 31.07.2007. It was pleaded that defendant in connivance with revenue authorities got his name registered in the revenue record and is threatening the plaintiff to take over possession of the suit land, therefore, defendant be restrained from interfering peaceful possession of the plaintiff, declaration of sole ownership of the plaintiff over the suit land be granted.

Appellant/defendant in his written statement denying the averments made in plaint, pleaded that it is not clearly stated by the plaintiff as to from whom he purchased the suit property. The description of the land stated to be purchased by the plaintiff is completely fabricated and fake and is not binding on the defendant. Defendant No.1 has no objection on kh. No. 730, area 0.36, which has now been changed. Remaining land bearing kh. No. 842/1 and 843 are in possession of defendant. Plaintiff has wrongly stated that he is in possession. Pleading made in the plaint that original registry paper was lost by the Patwari of the area at the time of mutation is completely fabricated, otherwise there would have been complete details as to which Patwari lost registry papers and what action did the plaintiff take against the Patwari. It is also not clearly mentioned as to when the plaintiff received certified copy of the sale deed. It is specifically denied that after buying the disputed lands, plaintiff acquired title and possession. Pleading that plaintiff got his name mutated on 25.10.1992 is misleading. In fact, plaintiff in connivance with the Revenue Inspector got his name mutated on 25.10.1992 secretly. After getting knowledge of this fact, defendant filed an appeal against the said order in the court of Sub-Divisional Officer Sakti through Revenue Appeal No. 13 A/6 of 1996-97 (Balram Singh vs Satyanarayan), in which the plaintiff appeared and taken his defence. After hearing the arguments, Sub-Divisional Officer Sakti had set aside the said order. Accordingly, the disputed land is currently registered in the revenue record in the name of defendant and he is in possession of the land. It is also wrong that as per the order of the Sub-Divisional Officer Sakti, Additional Tahsildar Baradwar has passed an illegal order. Defendants denied the pleading in plaint that plaintiff got the knowledge of order of SDO only on 31.07.2007, stating that service of information is not specifically pleaded. Order dated 23.06.1997 is passed after hearing both the parties. The plaintiff was well aware of the fact that defendant is resident of Durg. Since the disputed land is in the possession of defendant No. 1, in such a situation, the plaintiff is not entitle to get any relief of permanent injunction. In his special/additional pleading he averred that plaintiff received the compensation amount against acquisition of the disputed land from the government illegally, complaint of which has been made by defendant No.1. Plaintiff was aware of the order of SDO dated 23.06.1997. Plaintiff's claim itself is barred by limitation. Plaintiff has not stated anywhere in the claim that the claim was presented within the limitation, probably for the reason that his claim itself is barred by limitation.

After considering the oral and documentary evidence brought on record, learned trial Court framed as many as eight issues, and vide its judgment and decree dated 12.05.2011 dismissed the suit filed by the plaintiff on the ground that plaintiff failed to establish the title and possession over the suit property and execution of sale deed dated 11.02.1974. Suit was barred by limitation. Aforesaid judgment and decree was assailed in appeal by the plaintiff. Learned lower appellate Court vide impugned judgment dated 03.04.2013 allowed the appeal, set aside the judgment passed by trial Court and decreed the suit of plaintiff / respondent No.1 giving rise to this second appeal.

Learned counsel for the appellant would submit that suit filed by respondent No.1/plaintiff seeking relief of declaration that suit property is of the ownership of plaintiff; possession of plaintiff on suit property be confirmed, it be also declared that plaintiff is in possession of suit property; proceedings recorded by Revenue Court to be declared null and void; grant of permanent injunction. It is contention of learned counsel for appellant that plaintiff has based their claim on the ground that kh. no. of the land subject matter of sale deed bearing kh. No.791/1, 791/3, 791/5, 791/6, 791/2, 791/4 total admeasuring 3.32 acres of land. Disputed land was recorded as kh. No.843, 842/1, however, it cannot be proved by plaintiff and suit was dismissed. He also contended that suit filed by plaintiff was barred by limitation as the plaintiff was aware of order dated 25.10.1992 passed by Tahsildar and order dated 23.06.1997 passed by Sub Divisional Officer. However, suit was filed on 03.11.2007 i.e. after about 10 years whereas limitation for declaratory suit as prescribed is of 3 years under Article 58 of Limitation Act, 1963 (for short "Limitation Act"). He submits that appellant/defendant has not executed any sale deed at any point of time to any person. He contended that though plaintiff was not in possession of suit property, however, he has not claimed the relief of possession only because the sale deed alleged to have been executed in his favour on 11.02.1974 and the suit was filed in the year 2007 after lapse of about more than 30 years. In support of his submissions, he places reliance upon decision in the case of Union of India Vs. Ibrahim Uddin and Anr. (2012) 8 SCC 148 and Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs. and Ors. (AIR 2008 SC 2033).

On the other hand, learned counsel for the respondent No.1/plaintiff submits that learned trial Court has erroneously considered that suit was barred by limitation. It is contention of learned counsel for respondent that plaintiff was in possession of suit property since its purchase. Land purchased by plaintiff pursuant to sale deed bearing kh. no.791/5 which is also one of the land including others was acquired by State Govt. (Irrigation Department) for construction of canal and it is the plaintiff who has been paid the compensation against acquisition of this land. It is contention of learned counsel for the respondent that learned first appellate Court upon re-appreciation of evidence and facts available on record has clearly recorded that the proceedings of mutation order passed by the Tahsildar after remand order of Sub Divisional Officer, Sakti it came to be dismissed vide order dated 19.04.2000 for want of prosecution. One of the ground for dismissing the suit was limitation, however, appellate Court considering that there was no order on merit but order of Tahsildar dated 23.06.1997 was set aside, case was remitted back to Tasildar which came to be dismissed in default, hence, there was no order of mutation in favour of any of the parties. He contended that the defendant even after getting knowledge about execution of sale deed (even if it is forged) was aware that some sale deed was executed based upon which plaintiff may claim title over the property, however, he has not questioned the validity of sale deed to be forged and fabricated document.

I have heard learned counsel for the parties and also perused the records of trial Court as well as first appellate Court.

According to pleadings made in the plaint and submission of learned counsel for the respondent/plaintiff, property in dispute/suit property was purchased by plaintiff vide registered sale deed dated 11.02.1974. Description of property purchased is mentioned in preceding paragraph. It is also pleaded in the plaint that subsequently, khasra number of property is changed to kh. no.842/1 admeasuring 1.82 acres, kh. No.730 admeasuring 0.36 decimal and kh. no.843 admeasuring 0.40 decimal. However, no document has been placed in record to show that the revenue authorities have changed khasra number subject matter of alleged sale deed with new khasra number. Re-numbering list is not filed. Witnesses to sale deed were not examined by plaintiff. Plaintiff submitted affidavit under Order 18 Rule 4 CPC of Ajay Kumar son of Nandlal, Satyanarayan son of Radha Kishan

Agrawal and Saorj Kumar Das son of Jagti Nath Das. Ajay Kumar son of Nandlal Agrawal did did not appear before the trial Court for his cross-examination and, therefore, Satyanarayan Agrawal (plaintiff) is examined as PW1, Saroj Kumar Das as PW2. Independent witness Saroj Kumar Das (PW2) in his evidence- in- chief has not made any statement that he is witness to sale deed. In his examination-in-chief, though he stated that the suit land is situated adjoining to his land and from date of execution of sale deed, plaintiff is in possession and even today plaintiff is in possession, in cross-examination he admitted that he is not aware as to when name of plaintiff was mutated in revenue records. Affidavit under Order 18 Rule 4 of CPC is prepared by Advocate. It is not mentioned in affidavit that the contents of affidavit has been read over to him and further stated that he do not know to read Hindi. From his evidence it is apparent that he is not the witness to sale deed. Shyam Kumar Dandwate is examined as PW3, an employee of Registry Office. In his examination- in- chief he has made an attempt to say that marked portion 'A' to 'A' in Ex.P-1 is the signature of Balram Singh and marked portions 'B' to 'B' and 'C' to 'C' are signature of Sudhwar Ram and Dulichand Sharma (witnesses) respectively. However, in cross-examination, he admitted that at the time of registration of sale deed Ex.P-1 he was not posted there. During the period of execution of sale deed there was no requirement of affixing photographs of purchaser and seller. Requirement of affixing photographs came in existence only 7-8 years ago. Prior to coming into guidelines of affixing photographs of purchaser and seller, it is dependent upon identification by witnesses to sale deed that seller is the correct/genuine person. It is also stated that during that period, registration used to record based on statement of witnesses that seller is same person. He also admitted that during that period there were chances of impersonation.

Defendant Balram Singh is examined as DW1 and one Pratap Kishore Mishra as DW2. Pratap Kishore Mishra (DW2) has stated that land at village Baradwar measuring 2.58 acres is of the title and possession of defendant Balram Singh. He further stated that even today possession of the land is of Balram Singh. In cross-examination, he admitted that plaintiff is known to him for last about 12-15 years. He is originally resident of Orrisa and since last 20 years living at Bardawar, having stationery shop of his own. He also stated that land subject matter of suit is situated beside his house. The land is lying vacant since last about 12 years. No specific question has been put to this witness about recent possession over the property of Satyanarayan.

Plaintiff in the suit has sought relief for declaration of title; confirmation of possession; declaration of order passed by revenue Court to be null and void; permanent injunction.

So far as relief of declaration of order of revenue Court to be null and void is concerned, plaintiff in the plaint has pleaded that he came to know about order of SDO (Revenue) only on 31.07.2007. Order of SDO (R) is placed in record as Ex. P-2 which is dated 23.06.1997. Sub Divisional Officer has passed the order Annexure P-2 in appeal as an appellate authority. In para-3 of the order, it is mentioned that - h'eard counsels for respective parties', from which it is apparent that both the parties i.e. appellant and respondent were heard. Before Sub Divisional Officer (R) there is only one appellant Balram Singh (defendant) and one respondent Satyanarayan (plaintiff). PW1 Satyanarayan Agrawal (plaintiff) in his evidence admitted that it is correct that he has engaged a counsel in an appeal preferred by Balram Singh (defendant) before SDO. He occasionally attends the date of hearing, however, stated that he was not aware of the order passed by SDO Ex.P-2. This evidence of plaintiff himself (PW1), in facts of case, is not acceptable, when once he admits that he was noticed in appeal, represented by an Advocate appointed by him and further he also occasionally appeared before the Appellate Authority i.e. Sub Divisional Officer on the dates of hearing, then it will be presumed that plaintiff/respondent therein was well aware about the order passed by appellate authority on the date of passing of order i.e. 23.06.1997, more so, when there is no specific explanation in this regard. In the facts of case, burden lies upon person who states that he was not aware of passing of order. If for any reason he himself was negligent in not pursuing proceeding even after notice and appearing before appellate authority, then the limitation once started to run with the knowledge of person will not stop and therefore also it will be presumed that plaintiff was well aware about the order dated 23.06.1997 and the limitation for filing of suit for declaration is to be counted from date of passing of order by SDO.

12.From the date of passing of order by SDO (R), title of the plaintiff came under cloud and, therefore, instead of contesting the proceedings before Tahsildar of mutation which was on his application, plaintiff chose to file civil suit and it was filed only on 02.11.2007 i.e. after more than 10 years of passing of order by SDO setting aside order of mutation passed by Tahsildar dated 25.10.1992 (passed in favour of plaintiff).

13.Article 58 of the Limitation Act deals with limitation "to obtain any other declaration"- three years (3 years)- when the right to sue first accrues. In the case at hand, right to sue accrued in favour of plaintiff when order of mutation passed by Tahsildar was set aside by SDO in appeal under Section 44 (1) of the Code of 1959 observing that order of mutation was passed without issuing notice to interested persons and without following Rules 27, 28 of Mutation Rules framed under Section 109, 110 of the Land Revenue Code, 1959.

14.From the aforementioned facts of case, relief sought by plaintiff in suit for declaration of title and further declaration of order passed by revenue Courts to be null and void is barred by limitation.

15.Learned first appellate Court while considering the issue with regard to limitation framed by learned trial Court has decided the same in favour of plaintiff erroneously. Only on the basis of presumption, learned first appellate Court has come to conclusion that knowledge of order of SDO (R) to plaintiff was in the year 2007 which is contrary to the evidence of plaintiff . First appellate Court has further made observation that SDO has not passed order of mutation in favour of appellant therein/defendant in its order and the remanded case was dismissed in the year 2000 without any reasoned order and therefore learned trial Court erred in dismissing the suit to be barred by limitation to be erroneous, in the opinion of this Court, said finding of learned first appellate Court on the face of evidence documentary and oral, is erroneous and hence not sustainable. Accordingly, said finding recorded in para-10 of impugned judgment is set aside.

Further Section 3 of the Limitation Act talks of bar of limitation and schedule prescribing period of limitation is formulated under Section 2 (j) and Section 3 of the Limitation Act.

Under the Limitation Act the extension of prescribed period in certain cases is provided under which it is provided that period of limitation can be extended in an appeal or any application excluding application under any of provision of Order 21 of CPC. Under Section 5 it is not provided for extending the period of limitation prescribed for filing suit. If from the facts and circumstances as also pleading it is clearly appearing that the suit is filed beyond period of limitation then Court is not having any discretionary power to extend the period of limitation, recording that delay is bonafide.

18.So far as the grant of relief of confirmation of possession is concerned, in the plaint plaintiff has pleaded that since the date of purchase of land he came in possession, mutated his name in revenue records and is in continuous possession. Plaintiff (PW1) in his evidence-in-chief has stated that defendant after the date of execution of sale deed shifted to Durg and started residing there. Sale deed is stated to be of 11.02.1974, however, alleged mutation order is dated 25.10.1992 (which subsequently was set aside by SDO) and reason for submitting application after eighteen years (18 years) for mutation is that Patwari misplaced original sale deed handed over to him for mutation. There is no pleading of the name of Patwari nor in evidence his name has been specifically stated. Plaintiff in his evidence has further clearly admitted that he came to know about removing of his name from revenue records and re-entering name of defendant about 5-7 years ago from Patwari. In his evidence, he further stated that he is in possession of suit land since beginning but witness examined by him has made statement that suit land is vacant since last 12 years. Plaintiff in his evidence though has stated that prior to 1999, he purchased the manure from Society but had not stated that for what purpose. He has not stated and pleaded that he had cultivated the land purchased by him at any point of time. When there is an evidence that land is lying vacant since last 12 years, plaintiff would not be entitled for relief of confirmation of possession more so when this Court in preceding paragraph has held that suit for declaration is barred by limitation.

For the foregoing discussions, learned First Appellate Court erred in setting aside the well reasoned judgment and decree passed by learned trial Court. Accordingly, the appeal is allowed. Impugned judgment and decree is set aside.

No order as to cost.

Let a decree be drawn accordingly.