Harjeet Arora vs Smt. Firdous And Ors

In this revision under Section 115 of the C.P.C., the petitioner is called in question the validity of the order dated 24.09.2018, passed by 9th Civil Judge Class II, Jabalpur in C.S. No. 238-A/2014.

The facts leading to the present revision in nutshell are as under:-

The plaintiffs/respondents No. 1 to 4 filed a civil suit for declaration of sale deed dated 10.04.1997 as null and void and also for permanent injunction, contending that plaintiffs and defendants No.1 to 3, belonged to the same family, the suit property was purchased by late Noor Mohammad through registered sale deed. After his death, the property came to be recorded in the name of legal representatives, i.e., his widow Latifa Bi and his three sons Mohammad Waseem, Mohammad Faeem and Mohammad Naeem. After the death of Mohd. Naeem and Mohd. Faheem, the suit property came to the share of their legal representatives.

It is pleaded that defendant No.4 was a tenant in part of house No. 332 and 333, situated at Russal Chowk, Jabalpur. He fraudulently obtained the signature of defendant No.1 and her sons on a forged document stating that the same is a rent agreement and needs to be registered. It was further pleaded that plaintiff No.1, a parada-nasheen lady and after the death of her husband on 11.09.2011, she and her sons received the information about the sale deed dated 10.04.1997, when they came to know about the pendency of C.S. No.48-A/2008, in the Court of 11th Civil Judge Class II, Jabalpur.

The petitioner/defendant No.4 appeared before the trial Court and filed an application under Order 7 Rule 11 of the C.P.C. submitting that plaintiff and her late husband Mohd. Faeem were aware about the sale deed dated 10.04.1997 and suit is filed after a lapse of 12 years, hence, the same is barred under Article 59 of the Limitation Act, which prescribes limitation of three years for setting aside an instrument. The said application under Order 7 Rule 11 of the C.P.C. was dismissed by the trial Court by order dated 18.10.2014. Aggrieved and not satisfied with the said order, defendant No.4 preferred a civil revision No.490/2014 before the High Court. The said civil revision was disposed of by order dated 09.09.2015 with liberty to the applicant/ defendant No.4 to raise objections regarding maintainability of the suit in written statement and directed the trial Court to frame an issue in this regard, which shall be tried as a preliminary issue as the same does not require recording of evidence.

Pursuant to order dated 09.09.2015, the applicant/ defendant No.4 filed the written statement, contending interalia that vide registered sale deed dated 10.04.1997, defendant No.1, wife of Noor Mohammad, Mohd. Waseem, Mohd. Faeem and Smt. Kausar Jahan, widow of Mohd. Naeem had executed a sale deed in his favour. It was further contended that earlier he had filed a suit for injunction against the husband of plaintiff, which was registered as C.S. No.13-A/2013 (new number) in which husband of plaintiff alongwith respondents No. 5 to 7 had filed the counter claim on 02.12.1997 and sought relief to set aside the said sale deed. This counter claim was returned by the trial Court for filing the same before the competent Court on 19.11.2001. However, Mohd. Faeem (husband of plaintiff No.1) died not file any suit from 2001 to 2011, i.e., till the time of his death. Thereafter his death, his legal representatives were impleaded in the said suit on 11.04.2012.

The trial Court in compliance of order dated 09.09.2015, decided the issue No.3 "whether suit is barred by limitation" as preliminary issue. The trial Court after considering the documents held that suit is within limitation in view of Article 113 of the Limitation Act, as the same is filed within three years from the date of knowledge.

It is submitted by Shri Naman Nagrath, learned Sr. counsel appearing for the defendant No.4/petitioner that the trial court has erred in not considering that the counter claim of husband of plaintiff No.1 was returned by the learned trial Court in C.S. No. 13-A/2013 for filing the same before the competent Court and thereafter till his death, Mohd. Faeem did not take any action from 2001 to 2011 for declaring the sale deed dated 10.04.1997 as null and void and deemed to have abandon his claim and plaintiff No.1 being the wife and legal representative of late Mohd. Faeem, stands in the shoes of deceased husband and must accept the stand adopted by her predecessors and knowledge of her late husband would deemed to be her knowledge, hence the present suit is barred by limitation.

Heard the learned counsel for the petitioner at length and perused the record.

The High Court vide order dated 09.09.2015 has directed the trial Court to decide the issue of limitation on the basis of the documents on record without taking evidence. A perusal of Annexure A-6, C.S. No.45-A/2012 reveals that it was filed by the present petitioner against Smt. Latifa Bi and four others. Late Mohd. Faeem, husband of plaintiff No.1 was impleaded as defendant No.3 in the said suit. Annexure A-7 reveals that the written statement as well as the counter claim was filed by defendant No.1 Latifa Bi and defendant No.4 Kausar Bi. There is nothing on record that Mohd. Faeem ever appeared in the said suit. Annexure A-9 reveals that after the death of Mohd. Faeem, plaintiffs were impleaded in the said suit by order dated 02.05.2012. The specific case of plaintiffs is that they first came to know about the sale deed on receiving the notice in C.S. No.45-A/2012, hence in absence of any document to contrary, the limitation will be counted from the date the plaintiffs received the knowledge of the said document as per Article 113 of the Limitation Act.

In view of the aforesaid, there is no illegality or infirmity in the findings recorded by the trial Court. The revision being meritless is accordingly dismissed.