Telu vs Ram Kishan

A.S. Nehra, J.

Plaintiffappellants have filed this appeal against the judgment and decree dated September 26, 1978 passed by the Additional District Judge, Karnal.

The plaintiffappellants filed a suit against defendantrespondents alleging that defendants No. 4 to 8 and Hardwari son of Tulsi were owners of the land measuring 111 kanals 16 marlas, that is, 3/15th share of the total land measuring 558 kanals 19 marlas comprising in khewat No. 9, khatauni Nos. 37 to 47, vide Jamabandi 196566, situated in village Bharian and now vide Jamabandi 196768 comprised in Khewat No. 12 Khatauni Nos. 40 to 57 of the said village that the plaintiffs and defendants No. to 3 purchased the land measuring 111 kanals 18 marlas, that is, 3/15th share of the total land measuring 558 kanals 19 marlas from defendants No. 4 to 8 and Hardwari for Rs. 7,000/ vide registered sale deed executed on 22nd February, 1960 that the share of the defendants No. 1 to 3 is mentioned as 64/112 and that of the plaintiffs as 38/112 in the sale deed which is ambiguous on the face of it and shows error of calculation that actually the plaintiff purchased 46/112 share of the land and defendants No. 1 to 3 purchased 64/112 share of the land sold and the real intention of the parties was according to the ratio mentioned and the plaintiffs paid 6/14 share and the defendants No. 1 to 3 paid 8/14 share of the consideration; that the plaintiffs have been repeatedly requesting the defendants to get the sale deed rectified and admit that the plaintiffs are the owners of 6/14, that is 48/112 share (in equal shares) of the land purchased.

Defendants No. 1 to 3 filed written statement and have raised many objections including that the suit is barred by time that the suit is not maintainable in the present form that the plaintiffs are estopped from filing the present suit by acquiescence, waiver and by their conduct; that the plaintiffs have no cause of action against them and also that the plaintiffs have no locus standi to file the present suit. Defendants No. 4 to 7 filed their joint written statement admitting the allegations of the plaintiffs and pleaded that the suit be decreed.

On the pleadings of the parties, the following issues were framed : 4

(1) Whether the sale deed in question does not convey the real intention of parties to the sale ? OPP

(2) Whether the suit is within time ? OPP

(3) Whether there is no ambiguity as regards the share of parties given in the sale deed ? OPD (Onus objected to)

(4) If issue No. 1 is proved, whether the plaintiffs purchased 48/112 share of the land in suit ? OPP

(5) Whether the defendantvendees purchased 74/112 share of the land in suit ? OPD

(6) Whether the mistake was noticed at the time of sanction of the mutation ? OPD

(7) Whether the plaintiffs are estopped from filing the suit as alleged ? OPD

(8) Whether suit is not maintainable ? OPD

(9) Whether the lease of the suit land was terminated and joint possession given to the parties and other coowners ? If so, its effect ? OPP

(10) Whether the plaintiffs have no locus standi as alleged in preliminary objection No. 6 of written statement ? OPD

(11) Whether the plaintiffs have no cause of action as alleged in preliminary objection No. 5 ? OPD

(12) Relief.

Issues No. 1, 2, 4, and 9 were decided in favour of the plaintiffs and the remaining issues against the defendants. The suit was consequently decreed on 31st August, 1973 and the sale deed was ordered to be rectified. Defendants No. 1 to 3 aggrieved by the judgment and decree of the trial Court filed appeal before the Additional District Judge, Karnal.

The learned counsel for defendants No. 1 to 3 assailed the finding of the trial Court on issue No. 2 and it was argued that the trial Court was in error in holding that the suit of the plaintiffs was within time. It was submitted that the mutation Exhibit D2 on the basis of the sale in question was sanctioned on 12th June, 1962, wherein the land sold was mutated in the name of defendants No. 1 to 3 to the extent of 1478/2236 share and in favour of plaintiffs to the extent of 758/2236 share which is equivalent to 74/112 share and 38/112 share respectively. It was pointed out before the lower appellate Court that Telu, one of the plaintiffs was present at the time of mutation. The learned counsel further argued that there is a presumption of correctness of entries in the mutation and that unless rebutted by inherent evidence available from the entries themselves, the party challenging the correctness has to rebut this presumption. It was further pointed out that it is not necessary to prove that all the formalities were duly complied with in respect of the mutation. The learned counsel then relied upon Article 58 of the Limitation Act which provides a period of three years, from the date when the right to sue first accrues for bringing suits to obtain any declaration. It was further urged that the right to sue first accrued to the plaintiffs when the mutation was sanctioned in the year 1962 and counting the period of three years from the said date, the suit was hopelessly barred by time.

The finding of the trial Court on issue No. 2 was reversed by the first appellate Court. The judgment and decree of the trial Court was set aside and the appeal filed by defendants No. 1 to 3 was allowed on September 26,1978.

The learned counsel for the appellants has referred to Article 59 of the Limitation Act, 1963 and has argued that the period of limitation would start running from the date the mistake in the sale deed came to the knowledge of the plaintiffs and that as the plaintiffs came to know of the mistake in the sale deed on 24th April, 1974 therefore, the suit filed by the plaintiff appellants was within time.

There is no force in this argument of the learned counsel for the appellants. Article 59 provides a period of three years from the date when the facts entitling the plaintiff to have the instrument of decree cancelled or set aside or the contract rescinded first became known to him in the suit to cancel or set aside an instrument or decree or for the rescission of an agreement. In the present case, the defendants did not seek cancellation or setting aside of the sale deed. Therefore, this article exfacie was not attracted. Secondly, the period of three years has to be reckoned when the facts entitling the plaintiffs to have the instrument or decree cancelled or set aside or the contract rescinded first became known to him. Those facts first became known to the plaintiffs when the mutation was sanctioned in 1962. As such assuming that the case is covered by Article 59 of the Limitation Act, even then the suit was beyond limitation. The finding of the lower appellate Court on issue No. 2 is correct and, therefore, there is no merit in this appeal and the same is dismissed with no orders as to costs.