Smt. Sudeshna Padhi vs Loya Suborno and Others

L. Mohapatra, J.—This appeal is directed against the judgment and decree passed by the learned Subordinate Judge, Rayagada in Title Suit

No. 7 of 1980 at the instance of the defendant.

The suit was filed by the respondents for a declaration that the sale of the suit lands by plaintiff No. 2 in favour of the defendant is void and

illegal. In the alternative plaintiffs 1 and 3 claimed separate possession of 2/3rd share of the suit lands and mesne profits were also claimed, Case of

the plaintiffs-respondents in short is that the disputed properties originally stood recorded in the name of Loya Arjuno who is husband of plaintiff

No. 1. Plaintiff , No. 2 is the son of Loya Arjuno and plaintiff No. 1 and plaintiff No. 3 is the daughter. Said Loya Arjuno died in or about 1961

leaving behind the plaintiffs who succeeded to the properties. They were holding the properties jointly which included the suit lands. At a later

stage, plaintiff No. 1 got the lands recorded in the name of plaintiff No. 2. Few years after death of Loya Arjuno the plaintiff No. 1 re-married one

Sahukaro Bhaskar and started residing with him along with her two children, plaintiffs 2 and 3. It is alleged that the defendant through her husband

influenced plaintiff No. 2 when-he was minor and got the suit properties transferred in his name for a loan of Rs. 6000/- in or about 1968. It was

represented to the plaintiff No. 2 that for payment of loan he has to obtain mortgage deed under which the defendant would remain I possession

for a period of ten years, but a sale deed was executed in respect of the disputed suit properties. Since there was no necessity for selling the lands

and no permission had been obtained for the purpose of sale, the aforesaid transfer is alleged to be void and inoperative. It is further alleged that

the plaintiff No. 2 issued a notice to the defendant and her husband demanding to return the mortgage deed as well as possession of the land. The

defendant sent a reply through her Advocate on 1.5.1978 stating that the suit land had been sold by plaintiff No. 2 in her favour for consideration

of Rupees six thousand. In view of the above reply given by the defendant, the suit was filed with a prayer for declaration that the sale deed

executed by the plaintiff No. 2 in favour of the defendant is void and inoperative. An alternative prayer was made to the extent that the plaintiffs 1

and 3 being entitled to 1/3rd share each, their shares in the suit properties could not have been transferred by the plaintiff No. 2 and as such 2/3rd

share out of the suit properties be decreed in favour of the plaintiffs 1 and 3.

A written statement was filed by the defendant wherein plaint allegations were denied. Case of the defendant is that Loya Arjuno died in or

about 1954. By the time settlement operation started Loya Arjuno had expired and therefore all the properties were recorded in the name of his

son (plaintiff No. 2) as plaintiff No. 1 had already married one Sahukaro Bhaskar and was staying with him. After making enquiries about owner of

the disputed properties as well as age of the plaintiff No. 2, lands were purchased by defendant on payment of consideration since plaintiff No. 2

wanted money. It is further case of the defendant that plaintiff No. 2 was a major by the time sale deed was executed and was aged about 20

years. Therefore, no permission was required from any body to sell the lands. It is also stated in the written statement that each of the plaintiff is not

entitled to 1/3rd undivided interest in the suit lands. On the other hand, plaintiffs 1 and 3 have no claim over the lands as plaintiff No. 1 had

remarried for the second time after death of her husband and plaintiff No. 3 is not the daughter of Loya Arjuno.

On the basis of the aforesaid pleadings of the parties, learned Subordinate Judge framed seven issues. First issue relates to the question as to

whether plaintiffs 1 and 3 have got 1/3d interest each in the suit properties. Learned Subordinate Judge on consideration of the evidence found that

settlement operations started in the year, 1961 and during that period Loya Arjuno was alive. He further found that since the plaintiff No. 2 was the

only son who was to lock after the properties, he raised objection before the settlement authorities and on the basis of such objection, lands were

recorded in the name of plaintiff No. 2. Trial Court further found that though exact date of death of Loya Arjuno was not available from both sides.

It is clear that he died after 1961. Trial Court further found that by the time Loya Arjuno was died, Hindu Succession Act, 1956 had already come

into force and accepting the evidence from the side of the plaintiff that plaintiff No. 1 was managing the suit properties by giving the same on

''bhag'', it was held that the plaintiff No. 1 had become absolute owner of the properties after death of her husband and was entitled to her share.

So far as parentage of plaintiff No. 3 is concerned, trial Court also found that the plaintiff No. 3 is the daughter of plaintiff No. 1 and Loya Arjuno

and as such is entitled to 1/3rd share in the suit properties. Issue Nos. 2, 3 and 4 relate to questions as to whether plaintiff No. 2 was minor on the

date of execution of the sale-deed and whether the sale-deed was obtained from the plaintiff No. 2 on false representation that it was a deed of

mortgage. It was found that the plaintiff No. 2 in the year 1968 was a minor and not a major as stated in the deed of sale. Trial Court also found

that the sale-deed had not been presented in accordance with the provisions of law and no title actually had been passed under it in favour of the

defendant. On the above findings, the suit having been decreed, the present appeal has been filed.

Shri Patnaik, learned counsel appearing for the appellant submitted that under Article 59 of the Limitation Act validity of an instrument could be

challenged within three years and the cause of agtion starts from the date of knowledge about the instrument. Plaintiff being aware of execution of

deed by plaintiff No. 2 since February, 1968, suit should have been filed by February, 1971. The suit having been filed in the year 1978, it was

barred by limitation. Referring to the evidence of P.Ws. 1 and 4 as well as recitals in the sale-deed Shri Patnaik contended that on the date of

execution of sale-deed the plaintiff No. 2 was a major and the finding of the trial Court that the plaintiff No. 2 was not major is not sustainable. It

was further contended that in absence of any documentary evidence with regard to death of Loya Arjuno, reliance has to be placed on oral

evidence adduced before the court. Referring to evidences of P.Ws. 1, 2, 3 and 4 and recitals in Exts. E and F, it is contended that finding of the

trial Court that Loya Arjuno died after 1961 is not correct. Shri Patnaik also contended that after remarriage of plaintiff No. 1, she had forfeited

her share in the properties and in view of evidence available on record that Loya Arjuno died much prior to 1961, it is doubtful whether plaintiff

No. 3 is the daughter, of Loya Arjuno and plaintiff No. 1. Shri Patnaik also contended that the sale deed was executed in accordance with law and

was presented by the plaintiff No. 2 himself, whereas trial Court has erroneously found that plaintiff No. 2 had not presented the sale-deed for

registration.

Shri S. K. Padhi, learned senior Advocate appearing on behalf of the plaintiffs-respondents, on the other hand, supported the findings of the trial

Court referring to the evidence of some witnesses examined from both sides and also some decisions in support of his contention.

Keeping in mind the points raised by the learned counsel for the appellant, I proceed to examine pleadings as well as evidence available on

record. The first point raised by the learned counsel for the appellant is with regard to limitation. There is no dispute that the sale deed was

executed on 25.2.1968 by plaintiff No. 2 and the suit was filed in the year 1978. It is contended by the learned counsel for the appellant that the

plaintiffs were aware of the execution of sale-deed in the year 1968 and if they had intention to challenge validity of the same, they should have

filed the suit within three years as prescribed under Article 59 of the Limitation Act. Admittedly, the suit having been filed in the year 1978, it was

grossly time barred and could not have been entertained by the trial Court. In this regard, trial Court had framed an issue i.e. issue No. 6.

However, on perusal of the argument advanced by both parties in relation to this issue, it appears that the question raised before this Court relating

to Article 59 of the Limitation Act was not raised before this Court. On the other hand, it was contended that the sale-deed was executed on

25.2.1968 and the suit was admitted on 3.3.1980 i.e. 12 years after execution of the sale-deed. On the above ground, the learned counsel for the

defendant that she had acquired title by adverse possession contended it. Trial Court on perusal of the record found that along with the plaint a

petition under Order 33, Rule 2 of the CPC was filed on 5.10.1978. Said petition was heard and disposed on 3.3.1980 and after disposal of the

said petition the suit was admitted on 3.3.1960. On consideration of the above, trial Court found that the suit had been filed within 12 years from

the date of execution of the sale-deed. I do not find any illegality in the aforesaid finding. However, so far as Article 59 of the Limitation Act is

concerned, no doubt the sale-deed was executed on 25.2.1968, but as per the case of the plaintiffs the plaintiff No. 2 was given to understand that

he is executing deedv of mortgage for obtaining loan of rupees six thousand from the defendant and that the defendant would remain in possession

of the suit properties for a period of ten years. Since after completion of 10 years, the defendant did not return the properties, a notice was sent to

her in the year 1978 and in reply to the said notice/ defendant stated that she had purchased the land from the plaintiff No. 2 in 1968. Therefore,

the cause of action for filing the suit arose on 1.5.1978 when the defendant sent advocate''s reply to the plaintiff No. 2 and therefore the suit was

filed within the prescribed period of limitation.

Second question raised by the learned counsel for the appellant is that the evidence available on record clearly indicate that the plaintiff No. 2

was a major at the time of execution of sale-deed and finding of the trial Court that he was a minor is based on no material. In order to appreciate

submission of the learned counsel for the appellant, it is necessary to refer to the evidence adduced on behalf of the plaintiffs. P.W. 2 has stated

that 20 years prior to his examination in Court, Loya Arjuno died. This witness was examined on 2.2.1981. Therefore, it is obvious that according

to this witness Loya Arjuno died in the year 1961. He has further stated that the plaintiff No. 2 was aged about five years and daughter was aged

about 6 to 7 months at that point of time. So far as age of the plaintiff No. 2 is concerned, it appears that no question has been put to this witness

in cross-examination. So far as plaintiff No. 3 is concerned, this witness has stated that on the date of his examination in Court, plaintiff No. 3 was

about 18 to 19 years of age. From the evidence of P.W. 3 also it appears that the plaintiff No. 2 was aged . about 7 to 8 years by the time of

death of his father and plaintiff No. 3 was aged about one year. The plaintiff No. 2 who examined himself as P.W. 4 has also stated in his

deposition that he was aged about 14 to 15 years at the time of execution of the deed. Nothing has been brought out in cross-examination to

disbelieve the statement with regard to age of the plaintiff No. 2. Evidence led on behalf of the defendant-appellant does not lead to a''ny

conclusion with regard to age. Only evidence available from the side of the defendant-appellant is that D.W. 1 has stated that at the time of

registration of the deed in the year 1968, plaintiff No. 2 disclosed his aged to be 20 years which was reflected in the deed. Apart from this

evidence, there is no other evidence to support case of the defendant that plaintiff No. 2 was a major at the time of execution of the deed. From

the evidence adduced on behalf of the plaintiffs, it is clear thafin the year 1961 when father of the plaintiff No. 2 died, plaintiff was aged between 5

to 8 years. Therefore, on the date of execution of the deed in the year 1968, he should not be more than 14 to 15 years and accordingly finding of

the trial Court that the plaintiff No. 3 was minor at the time of execution of the deed is based on sound reasons and does not call for any

interference.

So far as presentation of the deed is concerned, from the evidence of D.W. 1 it appears that one K. Subarao, had scribed the document. D. W.

No. 4 who is defendant himself, in para-15 of his deposition, has clearly admitted that K. Subarao presented the deed before the Sub-Registrar,

Bissam-cuttack for registration. In. view of such admission on the part of the defendant, it is clear that the plaintiff No. 2 who is executant of the

deed had not presented the same before the Sub-Registrar for registration. Accordingly, finding on the trial Court that the deed had not been

presented for registration in accordance with law is correct.

Since all the three grounds raised by Sri Patnaik, learned counsel appearing for the appellant fail, I do not find any reason to interfere with the

impugned judgment, Accordingly, the appeal is dismissed, Judgment and decree passed by the trial Court are confirmed.