Jharkhand High Court
Mohan Ahir vs Muni Devi on 22 April, 2025
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
2025:JHHC:11840
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Second Appeal No. 304 of 2019
1. Mohan Ahir, aged about 64 years, son of Late kandan Ahir, resident of
village Dhangaon, P.O. & P.S. Gumla, District- Gumla
2. Baidyanath Kharia, aged about 42 years, son of Late Paulus Kharia,
resident of village Surwardudda Dipatoli, P.O. & P.S. Gumla, District -
Gumla
3. Birsa Kharia, aged about 60 years, S/o Late Paulus Kharia, resident of
village Semra, P.O. & P.S. Palkot, District- Gumla
... ... defendant No. 1, 5 & 6/Appellant No. 1, 5 & 6/Appellants
-Versus-
1. Muni Devi, W/o Late Kolha Ahir
2. Laxman Ahir, S/o Late Kolha Ahir
3. Marwari Ahir
4. Bikas Ahir
Respondent no. 2 to 4 S/o Late Kolha Ahir
5. Prakash Gope (minor), son of Late Janak Gope, represented through his
legal representative and cousin uncle Laxman Ahir, s/o Kolha Ahir
(respondent no.2)
All resident of village Dhangaon, P.O. & P.S. Gumla, District- Gumla
... ... Plaintiffs/Respondents/Respondents
6. Mosst. Ghurni Ahirin, D/o Kandan Ahir, resident of village Dhangaon,
P.O. & P.S. Gumla, District- Gumla
... ... Defendant No. 4/Appellant/Proforma Respondent
7. Deputy Commissioner, Gumla, P.O. & P.S. Gumla, District- Gumla
... ... Defendant No. 7/Respondent no. 7/ Respondent
---
CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
—
For the Appellants : Mr. Arun Kumar, Advocate
For the Resp. Nos. 1 to 5 : Mr. P.A.S. Pati, Advocate
For the Resp. No.6 : None
For the Resp. No.7 : None
---
Lastly heard on 29.01.2025
nd
17/22 April, 2025
1. This appeal has been filed challenging the judgment and decree dated
27.03.2019 (decree signed on 05.04.2019) passed by the learned District
Judge-V, Gumla in Title Appeal No. 13/2014 whereby the learned appellate
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court has dismissed the appeal and confirmed the judgment and decree
dated 15.03.2014 (decree signed on 27.03.2014) passed by the learned Civil
Judge (Sr. Division-I), Gumla in Title Suit No. 29/2003. The learned trial
court has decreed the suit with contest.
2. The appellants were the defendant nos. 1, 5 and 6 in the Title Suit
No. 29 of 2003 and the Respondent no.6 was the appellant no. 4 before the
learned 1st appellate court. The original defendant no. 2 and 3 were shown
dead in the 1st appellate court’s decree, they are Khubi Ahirin and Taramuni
Devi respectively. Khubi Ahirin was the wife and Taramuni Devi was the
daughter of Late Kandan Ahir. They were shown as dead in the memo of
appeal also which was filed before the learned 1st appellate court. However,
the trial court judgement and decree does not show them dead. Mohan Ahir,
who is the appellant no.1 before this court is the son of Kandan Ahir.
3. This appeal was admitted for hearing vide order dated 01.03.2023 on
the following substantial questions of law: –
(i) Whether the suit inter alia filed with a prayer for declaration
of the settlement deed bearing no.1469 dated 03.11.1947 executed
by Raj Kishore Nand in favour of Dhodho Kharia is barred by
limitation as the suit with such prayer was filed on 01.08.2003 in
view of the principal of law settled by the Hon’ble Supreme Court
of India in paragraph no.19 of the case of Abdul Rahim & Ors.
vs. Sk. Abdul Zabar & Ors. reported in AIR 2010 SC 211?
(ii) Whether the learned first appellate court committed a
perversity by not taking into consideration that the judgment and
decree passed by the learned trial court in the Title Suit No.29 of
2003 is against two dead persons being the defendant no.2-
Khubbi Ahirin and Taramuni Devi having been died during the
pendency of the suit and the judgment and decree passed in Title
Suit No.29 of 2003 is a nullity in view of the principle of law settled
in paragraph no.6 in the case of Kishun @ Ram Kishun
(dead)Thru. Lrs. Vs. Behari (Dead) By Lrs. reported in (2005) 6
SCC 300?
4. Case of the plaintiffs
I. The plaintiff had filed the suit for declaration of title and
confirmation of possession over the suit land and also for
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cancellation of Jamabandi, if any, created in the name of defendants
or their ancestors and also for declaring void-ab-initio if any
surrender or settlement deed is filed by the defendant no.5. An
amendment was carried out in the plaint vide order dated 16.01.2014
and a prayer was inserted that if the plaintiffs were found
dispossessed from any portion of the suit land during the course of
pendency of the suit, the delivery of possession also be delivered
through the process of the Court.
II. The case of the plaintiffs was that the land under Khata No. 5, area
5.07 acre, Khata No. 48 area 1.28 acre and Khata No. 47 area 4.66
acre was recorded in the name of Girdhar Ahir in the year 1932
during revisional survey of village Dhangaon, P.S. and District
Gumla. Girdhar Ahir died leaving behind only son Hindu Ahir and
Hindu Ahir died leaving behind his two sons, namely, Kolha Ahir
and Jolha Ahir who were original plaintiffs of the suit. Girdhar Ahir
remained in possession over the entire land; thereafter his son,
namely, Hindu Ahir came in possession over the land and thereafter
the sons of Hindu Ahir, namely, Kolha Ahir and Jolha Ahir came
peacefully in cultivating possession over the land without any
interruption.
III. Land of Khata No. 5 measuring are 2.92 acre (out of 5.07 acre) and
land of Khata No.48 measuring area 1.28 acre was mutated in favour
of Kandan Ahir in connivance of local Karamchari and Circle
Inspector who obtained some rent receipts.
IV. It was stated that land of Khata No. 47 measuring area 4.66 acre was
claimed by Dhodho Kharia, Khuen Kharia and Poulush Kharia on
the basis of forged document and entry made in register-II was
baseless and they never came in possession over the said land. It was
further stated that Mutation Case No. 245/87-88 made in favour of
Dhodho Kharia came to knowledge of the plaintiffs and the plaintiffs
found that Amrit Ahirin wife of Dugaru Ahir, who was stranger to
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the family of the plaintiffs, had surrendered the land of Khata No.
47 in the name of the then landlord Raj Kishore Nand, S/o Madan
Mohan Nand vide deed No. 1468 dated 03.11.1947 and said landlord
settled the land in favour of Dhodho Kharia vide deed No. 1469 dated
03.11.1947. It was stated that Amrit Ahirin was stranger and she
could not alienate land of Khata No. 47 and if defendant No. 5
obtained settlement deed, it did not create title in favour of defendant
No. 5. Further, the land of khata no. 47 was mutated in the name of
Hindu Ahir father of plaintiff vide Mutation Succession Case No. 13
R2/60-61 and the mutation so allowed continued till 1973-74, hence
story of surrender and settlement by Amrit Ahirin and landlord Raj
Kishore Nand respectively in the year 1947 is baseless. It was stated
that claim of defendant no. 5, who is nephew of Dhodho Kharia, was
unfounded. The subsequent step taken by defendant no. 5 or his
father and uncle are of no consequence. It was stated that Chamra
Ahir who was father of Kandan Ahir was no way related with
recorded tenant Girdhar Ahir.
V. It was stated that in mutation appeal heard by Deputy Collector Land
Reforms, Gumla, an order was passed vide appeal no. 45/87-88 dated
11.12.2002 in favour of defendant and order dated 15.07.1987 passed
by the Circle Officer, Gumla cast cloud over the title of the plaintiffs
hence the necessity of the suit. Cause of action for suit arose on the
aforesaid two dates when Circle Officer and Deputy Collector Land
Reforms passed order of mutation in favour of defendant.
VI. It was stated that land of khata nos. 5 and 48 was claimed by
defendant nos. 1 to 4 on the basis of compromise held in the year
1976 which cannot confer any title to either party and it cannot
legalize illegality of forgery done by Kandan Ahir, father of
defendant nos. 1,3 and 4. It was stated that Circle Officer, Gumla
while deciding mutation case has not given any reason of making
entry of Jamabandi.
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5. Case of the defendants
A. On the other hand all the defendants (except defendant no.7) filed a
common written statement. The defendant no. 1,3 and 4 had a
common ancestor namely, Kandan Ahir and defendant no.2 was wife
of Kandan Ahir. Defendant no. 5 and 6 were sons of Late Paulus
Kharia. It was stated that the suit was not maintainable, barred by law
of limitation, barred by law of adverse possession, barred by waiver,
estoppel and acquiescence and also the plaintiffs had no cause of
action.
B. It was said that Girdhar Ahir adopted his cousin’s son Chamra Ahir
as his son because at that time he had nobody in his family to help
him in cultivation. It was stated that after marriage of said Chamra
Ahir the land in suit mentioned in schedule-A was orally transferred
in favour of Chamra Ahir by Girdhar Ahir over which Chamra Ahir
came peacefully in cultivating possession and was paying rent to the
ex-landlord and after vesting of zamindari, to the Government of
Bihar. After death of Chamra Ahir, his son Kandan Ahir and
thereafter his son Mohan Ahir continuously came in possession over
the said land and paid rent to the Government. In the recent survey
settlement ‘banda Parcha’ of schedule-A land was prepared in the
name of said Kandan Ahir. It was stated that in the year 1974 and
1980 a panchayati was held in which panches confirmed transfer of
land by Girdhar Ahir to Chamra Ahir. It was stated that plaintiff
Kolha Ahir applied for mutation in the year 1987 for the Schedule-A
land before Circle Officer which was rejected and then plaintiff filed
appeal before Deputy Collector Land Reforms which was also
rejected due to possession of defendant since long period as
Jamabandi was opened in the name of Chamra Ahir who was coming
in peaceful possession over schedule-A land; thereafter his successor
were coming in possession over the same without any interruption
and perfected their right, title and interest.
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C. It was stated that original plaintiff no.1 Kolha Ahir dishonestly
harvested the paddy of the suit land of khata no. 5 area 2.92 acre
belonging to Mohan Ahir and had accepted his guilt and
compromised.
D. It was stated that land in Schedule B belonged to defendant nos. 5
and 6 who were successor of Dhodho Kharia and were coming in
possession over the same and have been paying rent. It was stated
that land in question was surrendered through regular registered deed
by Amrit Ahirin dated 03.11.1947 to the ex-landlord Raj Kishore
Nand and on the same day Raj Kishore Nand settled the same land
to Dhodho Kharia and his brother through registered deed. Since then
Dhodho Kharia and his brother came in possession over the land by
mutating their name in Sarista of landlord and Government and paid
rent and thereafter their successor came in possession thereof. It was
stated that defendant no. 5 and 6 acquired right, title and interest over
the schedule-B land by virtue of aforesaid sale-deed since more than
57 years.
E. Said Amrit Ahirin was not a stranger but belonged to recorded tenant
Girdhar Ahir. It was said that Circle Officer had rightly acted as the
Jamabandi was standing and coming since long. It was stated that
plaintiffs cannot say as to who was the successor of the purchaser
Dhodho Kharia and the land of schedule-B belonged to Dhodho
Kharia. Chamra Ahir was the adopted cousin’s son of the recorded
tenant. The plaintiffs or their father were never in possession over the
land in question. The Revenue Officer after making inquiry and
finding the possession of the defendants registered mutation in the
name of defendants in the record of right i.e. Register II. It was stated
that after date of registration, it will be presumed that plaintiffs knew
about the transaction under the provision of Transfer of Property Act.
F. Deputy Commissioner being defendant No. 7 had not made any
claim.
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6. On the basis of pleadings, the learned trial court framed the following
issues: –
I. Is the suit as framed, maintainable?
II. Is the valid cause of action arose for the present suit?
III. Is the suit barred by law of limitation, principle of adverse
possession?
IV. Is the suit barred by principle of waiver, estoppel,
acquiescence?
V. Is the suit barred by the provision of Section 34 of Specific
Relief Act?
VI. Is the plaintiff owner and in possession of the suit land?
VII. Is the Jamabandi prepared in the name of defendant or their
ancestors illegal, infructuous and not binding on the
plaintiff?
VIII. Is the settlement deed executed in favour of defendant No. 5
is void, ab-initio and not binding upon the plaintiff?
IX. Is the plaintiff entitle for the reliefs as claimed?
X. Is the plaintiff entitled for cost of the suit?
XI. Is the plaintiff entitled for any other relief or reliefs?
7. Before the learned trial court, six witnesses were examined on behalf
of the plaintiffs and nine witnesses were examined on behalf of the
defendants. Documents were also exhibited from both the sides.
8. Findings of the learned trial Court
a. Issue Nos. VI, VII and VIII were taken up together by the learned
trial court. The learned trial court recorded that the suit land
mentioned in schedule A and B were recorded in the name of Girdhar
Ahir [ grandfather of original plaintiffs Kolha Ahir and Jolha Ahir]
and his name was recorded in record-of-rights against khata no. 5
area 5.07 acre, khata no. 48 area 1.28 acre and khata no. 47 area 4.66
acre. Since then, descendants of Girdhar Ahir Viz. Hindu Ahir,
Kolha Ahir, Jolha Ahir and thereafter their descendants came in
possession thereof being plaintiffs of this case. The plaintiffs had
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2025:JHHC:11840filed certified copy of Survey khatiyan in the name of Girdhar Ahir
vide Ext. 1 to 1/a.
The defendants in support of their title and possession had filed rent
receipt without proof of any mutation order by competent authority.
The learned trial court recorded that the defendants were neither able
to establish relation with Girdhar Ahir nor filed any chit of paper with
respect to claim of suit land under khata no. 5 and 48 bearing area
2.92 acre and 1.28 acre respectively by way of oral gift nor defendant
no. 5 Baidhyanath Kharia had established Amrit Ahirin as successor
of Girdhar Ahir, who had surrendered the schedule B land i.e. khata
no. 47 area 4.66 acre in favour of zamindar Raj Kishore Nand who
in turn settled it to Dhodho Kharia. The learned trial court further
recorded that the defendant no.5 Baidhyanath Kharia who claimed
schedule B land had also not established relation with Dhodho
Kharia, the settlee, in whose name khata no. 47 area 4.66 acre of the
suit land was said to have been settled, hence right, title and
possession was declared in favour of plaintiffs over the suit land;
Jamabandi opened in the name of defendants was declared illegal,
infructuous and not binding on the plaintiffs. The settlement deed
bearing no. 1469 dated 03.11.1947 in favour of Dhodho Kharia was
also declared void and inoperative and not binding on the plaintiffs.
b. Further, the learned trial court took up issue Nos. I, II, III, IV and
V together and recorded that it was clear that the plaintiffs had
established their case, they had filed suit when Revenue Authority
rejected the prayer of plaintiffs for mutating the suit land vide order
dated 16.07.1987 and appellate authority rejected the appeal on
11.12.2002 and thereafter the suit was filed in the year 2003. The
learned trial court found that the suit was not barred by law of
limitation and that adverse possession would not apply as defendants
could not simultaneously claim title by way of document of title and
also adverse possession. The learned trial court ultimately recorded
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that the suit was not barred by principle of waiver, estoppel,
acquiescence of Specific Relief Act and the plaintiffs had cause of
action for the suit and the suit was maintainable as framed.
9. Findings of the learned 1st Appellate Court
I. The learned 1st appellate court also considered the materials
available on record and adjudicated the issues as framed by the
learned trial court. With regard to adjudication of issue Nos. VI, VII
and VIII, the learned appellate court recorded concurrent findings at
paragraph 36, which is quoted as under: –
“36. On the basis of discussions made above, there is no doubt
that the suit land mentioned in Schedule A and B were
recorded in the name of Girdhar Ahir who was grandfather of
plaintiff Kolha Ahir and Jolha Ahir and his name was
recorded in record of right as Khata No. 5, area 5.07 acre,
khata No. 48 area 1.28 acre and Khata No. 47 area 4.66 acres.
Since then descendant of Girdhar Ahir viz. Hindu Ahir, Kolha
Ahir, Jolha Ahir and thereafter his son having coming in
possession thereof being plaintiff of this case. The plaintiff has
filed certified copy of survey Khatiyan in the name of Girdhar
Ahir vide Ext. 1 to 1/a which has been admitted by the
defendants also. The defendant in support of their title and
possession have filed some rent receipts without proof of any
mutation order by the competent authority. The defendant has
not been able to establish their relation with recorded tenant
Girdhar Ahir nor have they filed any document with respect to
their claim over the suit land of Khata No. 5 and 48 bearing
area 2.92 acre and 1.28 acre respectively by way of oral gift
which is not permissible in the eyes of law. Similarly,
defendant No. 7 Baidyanath Kharia has failed to establish that
Amrit Ahirin was the successor of recorded tenant Girdhar
Ahir who had surrendered Schedule B land i.e., Khata No. 47
area 4.66 acre in favour of ex-landlord Raj Kishore Nand who
in turn settled it to Dhodha Kharia. The defendant Baidyanath
Kharia who claimed Schedule B land has also not established
his relation with Dhodho Kharia, the setllee, in whose name
Khata No. 47 area 4.66 acre of the suit land was said to be
settled. Hence, the right, title and possession is declared in
favour of plaintiffs/respondents over the suit land as described
in Schedule A and Schedule B. Jamabandi opened in the name
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binding on the plaintiff/respondents No. 1, 1 (a), 1(c), 1(d) and
2. The settlement deed bearing No. 1469 executed on 03-11-
1947 in favour of Dhodho Kharia is also declared void and
inoperative and not binding on the plaintiff.”
10. So far adjudication of issue Nos. I, II, III, IV and V are concerned,
the learned 1st appellate court recorded its concurrent findings as under: –
“37. From the aforesaid discussions, it is clear that the
plaintiff has established his case, he has filed suit when
Revenue Authority rejected the prayer of plaintiff for
mutating the suit land dated 16-07-1987 and 11-12-2002
before the appellate Court thereafter, he filed this suit in the
year 2003. Learned counsel for the plaintiff has filed the
case law which may be read as under:- AIR 2000 SC 2023
P. Sarthy Vs. State Bank of India. By this case learned
counsel has drawn attention that exclusion of time spent in
prosecuting another proceeding can calculate in the
proceeding it must be of any Court, need not be in Civil
Court and has stated that proceeding which was spent for
in appeal will not be calculated in this case against
limitation. He has also relied upon case law 2004 (3) JLJR
657 Ramnath Munda & Ors Vs. Khantu Mudna and has
stated that when a deed is invalid the question of its being
relied and considered by a Court is not required, Law of
Limitation will apply only when the document to be hit is a
valid one. Thus, I find that suit is not barred by law of
Limitation, adverse possession will not apply in the suit in
as much as defendant cannot claim simultaneously title one
by way of document of title and other by way of adverse
possession. Also the suit is not barred by principle of
waiver, estoppel, acquiescence of Specific Relief Act and
the plaintiff has cause of action for the suit and the suit is
maintainable as framed.
…………………………………..
44. Thus, I find that the suit is not barred by law of
limitation, adverse possession will not apply in the suit as
the defendant cannot claim simultaneously title on the basis
of gift and settlement deed and by way of adverse
possession as they both are mutually inconsistent pleas.
Also the suit is not barred by principle of waiver, estoppel,
acquiescence and provisions of Section 34 of the Specific
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action for the suit and the suit is maintainable as framed.”
Arguments of the appellants on the 2nd substantial question of law.
11. The learned counsel for the appellants while referring to the
substantial question of law No. (ii) has submitted that two persons i.e.
defendant No. 2-Khubi Ahirin and defendant No. 3-Taramuni Devi were
dead but the plaintiffs did not take any step for their substitution and
therefore the entire suit had abated. He has submitted that they died during
the pendency of the title suit.
12. The learned counsel has relied upon the judgment passed by the
Hon’ble Supreme Court reported in (2005) 6 SCC 300 [Kishun @ Ram
Kishun (dead through LRs.) Vs. Behari (dead) By LRs.] which has been
referred to in substantial question of law No. (ii) and has in particular
referred to paragraph 9 thereof to submit that the decree against a dead
person is a nullity.
Arguments of the respondents
13. The learned counsel appearing on behalf of the respondents has
referred to the judgment passed by the Hon’ble Supreme Court reported in
2023 Live Law SC 261 (Shivshankara and Another Vs. H.P. Vedavyasa
Char), paragraph 32 onwards to submit that it is not that in all cases the
entire suit would abate. The learned counsel submits that there is elaborate
discussion in the aforesaid judgment primarily on the point that if there is
no substitution and the estate of the deceased is substantially represented
through the parties who are already on record then under such
circumstances, the entire suit will not abate. He submits that all the
defendants in the suit had common ancestor and they were pursuing their
right, title and interest flowing from their common ancestor. He has also
submitted that except defendant No. 7 all the defendants had filed a
common written statement. The learned counsel has also submitted that so
far as defendant No. 2 is concerned, she is the wife of Late Kandan Ahir
and defendant No. 1 was the son of Late Kandan Ahir and so far as
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defendant No. 3 is concerned, she is the daughter of late Kandan Ahir and
therefore the estate of the defendants which were flowing from the common
ancestor was substantially represented.
14. The learned counsel for the respondents has also referred to memo of
appeal which was filed before the 1st appellate court and has submitted that
in the memo of appeal itself, the name of the appellant No. 2, who was
defendant No. 2 in the suit, was projected as dead and the name of appellant
No. 3, who was defendant No. 3 in the suit, was also shown as dead. He has
submitted that the same was done without any foundational pleading. The
learned counsel submits that there is nothing on record to show the date of
death of defendant Nos. 2 and 3. He has referred to the provisions of Order
XXII Rule 6 of CPC to submit that once the arguments are concluded and
any person dies after conclusion of the argument and before passing of the
judgment and decree, the suit does not abate. The learned counsel submits
that at no point of time, the defendants pointed out before the court
regarding the death of defendant Nos. 2 and 3 and therefore the defendant
Nos. 2 and 3 were not substituted. He has also submitted that there is no
evidence on record in connection with death of defendant Nos. 2 and 3. It
was only in the cause title of the memo of appeal which was filed before
the first appellate court, they were shown as dead. He has also submitted
that the decree of the trial court does not show them as dead, but the decree
of the appellate court shows them as dead because they were shown as dead
in the memo of appeal.
15. The learned counsel for the respondents has also submitted that so
far as the judgment reported in (2005) 6 SCC 300 (supra) is concerned,
paragraph 6 of the said judgment was primarily referring to the general
proposition that a judgment against a dead person was a nullity and there
was no much adjudication on the point of law which has been laid down by
the Hon’ble Supreme Court in the case reported in 2023 Live Law SC 261.
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Rejoinder arguments of the appellants
16. In response, the learned counsel for the appellants has submitted that
so far as the defendant No. 3 is concerned, since she was married daughter,
therefore, it cannot be said that her estate was duly represented by the other
defendants. However, it is not in dispute that the defendants particularly
defendant Nos. 1 to 6 were claiming their right by virtue of being
descendants of their common ancestor.
Arguments of the appellants on the 1st substantial question of law.
17. The learned counsel for the appellants has submitted that the learned
trial court has clearly recorded that the claim for mutation was rejected way
back in the year 1987 and merely because the plaintiffs were pursuing their
appeal against the said order, the same would not give the plaintiffs an
extended period of limitation. He has submitted that although the trial
court’s finding in connection with the limitation has not referred to Section
14 of the Limitation Act, but the reasons therein at best are referable to
Section 14 of the Limitation Act and he submits that such finding is
erroneous in law and the suit was barred by limitation. He has also
submitted that for seeking a declaration that the transaction was void,
limitation period of 3 years would apply and this aspect of the matter has
also not been properly considered by the learned trial court and also by the
learned 1st appellate court.
Arguments of the respondents
18. Learned counsel for the respondents has submitted that it was the
appellate authority i.e. LRDC in the appeal in connection with order of
mutation, who pointed out that the matter relates to title dispute which is to
be adjudicated through a competent court of civil jurisdiction and thereafter
the suit was filed. The learned counsel submits that the plaintiffs were
diligently pursuing their remedies in the matter of mutation as the plaintiffs
were in possession of the property. The learned counsel submits that the
trial court confirmed the possession of the plaintiffs and rejected the claim
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of adverse possession of the defendants by holding that the defendants
could not claim adverse possession as well as title simultaneously.
19. The learned counsel has submitted that once the plaintiffs were in
possession of the property a mere declaration that the deed was not binding
was sufficient and otherwise also the reasons which have been given by the
learned trial court as well as the appellate court were sufficient to hold that
the suit was filed within the period of limitation. The learned counsel has
also submitted that in case of party being in possession, the period of
limitation will be differently governed as compared to that of a party who
is not in possession of the property.
20. The learned counsel has placed the judgment passed by the Hon’ble
Supreme Court reported in (2009) 6 SCC 160 which has been referred to in
the substantial question of law No. (i) itself and has submitted that the said
judgment is distinguishable. He has referred to another judgment reported
in (2006) 5 SCC 353 (Prem Singh & Others vs. Birbal & Others)
paragraphs 11 to 20. He submits that it has been held that if plaintiff is in
possession of the property, he may file suit for declaration that the deed is
not binding upon him, however, if he is not in possession he may sue for
possession and the limitation period as per Article 65 of the Limitation Act
will be applicable. He has submitted that it has been held that it is not
correct to contend that the provisions of the Limitation Act would have no
application at all in the event the transaction is held to be void.
21. The learned counsel submits that in the present case, the plaintiffs
have claimed their possession as a matter of right and were seeking
declaration of title and confirmation of possession and the suit was duly
decreed by the learned trial court and upheld by the appellate court. He has
submitted that the documents which were produced by the defendants were
held to be void-ab-initio by the trial court and this finding has been
confirmed by the learned 1st appellate court. He submits that therefore,
otherwise also, the suit was not barred by limitation.
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Findings of this Court
2nd substantial question of law.
22. The records of the case reveal that the title suit was decreed in favour
of the plaintiffs vide judgment dated 15th March 2014 and right, title,
interest and possession with respect to the suit property was declared in
their favour and further, the settlement deed bearing no.1469 executed on
03.11.1947 in favour of Dhodho Kharia was declared to be void and
inoperative and not binding on the plaintiffs. The learned trial Court also
declared that the defendant Baidyanath Kharia who claimed the Schedule-
B property, could not establish relation with Dhodho Kharia – the settlee in
whose name Khata No. 47 area 4.66 acres of the suit land was said to be
settled vide the settlement deed bearing no.1469 executed on 03.11.1947.
23. The learned Court also recorded that the defendants were not able to
establish relation with Girdhar Ahir with respect to claim of Khata No. 5
and 48 area 2.92 acres and 1.28 acre respectively and admittedly, Girdhar
Ahir was the recorded tenant. Thus, the defendants could neither establish
relation with Girdhar Ahir with respect to Khata No. 5 and 48 nor could
establish relation with Dhodho Kharia with respect to the Khata no. 47.
24. The records of the case reveal that the decree in title suit was not
passed against any dead person.
25. However, the defendant no.1 to 6 were shown as appellants before
the 1st appellate Court and in the memo of appeal, it was simply mentioned
in the cause title of the memo of appeal itself that the defendant no. 2
namely, Khubi Ahirin and defendant no. 3 namely, Taramuni Devi were
dead. The defendant nos. 2 and 3 were the mother and sister of defendant
no. 1, but the defendant no. 1 while filing appeal with other defendants did
not take care to implead the legal heirs and successors of defendant no.2
and 3. It is further not in dispute that the defendant nos. 1 to 4 were claiming
the property through late Kandan Ahir. Defendant no. 4 was another
daughter of Kandan Ahir.
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26. This Court finds that it is not a case where the trial court’s decree was
passed against a dead person. Rather it is a case where the two defendants
i.e. defendant nos. 2 and 3 were shown dead for the first time by including
them as co-appellants by putting the word (dead) against their names
which continued to be shown in the same manner in the decree of the 1 st
appellate court also. In the entire record which has been placed before this
Court, there is no material to show as to date of death of defendant nos. 2
and 3. Admittedly the defendant nos. 1 to 6 had filed joint written statement
before the learned trial court on 22.07.2004 and also led evidences during
trial, but at any point of time it was not indicated during trial that defendant
nos.2 and 3 had expired although defendant no. 2 was the mother and
defendant no.3 was the sister of the defendant no.1.
27. The date of death of the defendant no. 2 and 3 is a material fact and
in absence of such date it cannot be said that they had expired prior to
passing of the decree of the learned trial court or thereafter. In absence of
any evidence regarding the date of death of defendant nos. 2 and 3, it cannot
be assumed that the defendant nos. 2 and 3 died during trial and therefore
the trial court decree cannot be said to be a nullity in the eyes of law. Even
at the 1st appellate stage no material or evidence was brought on record by
the defendants -appellants, either oral or documentary, regarding the date
of death of the defendant nos. 2 and 3. Since right, title, interest and
possession with respect to the suit property was declared in favour of the
plaintiffs by the learned trial court itself, there was no occasion for the
plaintiffs to institute any execution case. It is important to note that at the
time of arguments before the learned 1st appellate court it was raised that
the defendant nos. 2 and 3 had expired more than 5 years ago but neither
the date of death was given, nor any proof of death was furnished nor any
additional evidence was led with regard to the date of death of the defendant
no. 2 and 3 and accordingly, such plea before the 1st appellate court, without
any material to bring on record the date of death of defendant nos.2 and
3,who were the close relative of the defendant no.1, was of no consequence.
16
2025:JHHC:11840
28. This Court is of the view that merely stating in the memo of appeal
that the defendant nos. 2 and 3 had expired, without anything more –
particularly the date of death, is not sufficient to hold that the decree of the
learned trial court is a nullity in the eyes of law. In this regard it would be
relevant to refer to Order XXII Rule 6 of CPC which provides that there
shall be no abatement by reason of the death of either party between the
conclusion of the hearing and the pronouncing of the judgment, but
judgment may in such case be pronounced notwithstanding the death and
shall have the same force and effect as if it had been pronounced before the
death took place. Order XXII Rule 6 of CPC is quoted as under:
“No abatement by reason of death after hearing.-
Notwithstanding anything contained in the foregoing rules,
whether the cause of action survives or not, there shall be no
abatement by reason of the death of either party between the
conclusion of the hearing and the pronouncing of the judgment,
but judgment may in such case be pronounced notwithstanding
the death and shall have the same force and effect as if it had
been pronounced before the death took place.”
29. Thus, even in cases of death after conclusion of arguments, the trial
does not abate and in order to record a finding of abatement, the date of
death is a material fact which is completely absent in the present case. In
the aforesaid facts and circumstances, it cannot be said that the decree of
the learned trial court was passed against two dead persons, that is,
defendant no.2 and 3 and hence is a nullity in the eyes of law.
30. Further, in the judgement referred to in the substantial question of
law no. (ii), reference has been made to paragraph 6 of the judgement
passed in the case of “Kishun @ Ram Kishun Vs. Behari” reported in
(2005) 6 SCC 300 which is quoted as under:
“6. As rightly pointed out by learned counsel for the appellants
and fairly agreed to by learned Senior Counsel for the
respondent, the decree passed by the High Court in favour of a
party who was dead and against a party who was dead, is
obviously a nullity. It is conceded that the legal representatives
of neither of the parties were brought on record in the second
appeal and the second appeal stood abated. On this short
17
2025:JHHC:11840ground this appeal is liable to be allowed and the decision of
the High Court set aside.”
31. However, the learned counsel for the respondents has also referred to
the judgement passed in the case of “Shivshankara and Another Vs. H.P.
Vedavyasa Char” reported in 2023 LiveLaw (SC) 261. Paragraphs 32 to
36 of the aforesaid judgment are quoted as under:
“32. Now, we will consider the question whether the suit ought to
have been held as abated against all the defendants as contended
by the appellants for non-substitution and owing to the failure to
implead all the legal representatives on the death of the original
third defendant- Hanumaiah. The contention that the suit is bad
for non-joinder of necessary parties is also raised based on the
same reason. Hence, these questions are to be considered jointly.
Obviously, the Courts below declined to uphold the said
contentions of the defendants. It is to be noted that the appellants
have also raised a contention that Sriman Madhwa Sangha which
is an organization and Sri Vittal Rao ought to have been
impleaded as parties to the suit and in view of their non
impleadment, the suit is bad for non-joinder of necessary parties.
While considering the same, the fact that the aforesaid Sriman
Madhwa Sangha and Sri Vittal Rao filed a petition for eviction
against the respondent herein as HRC No.10020 of 1991 wherein
it was stated that the first respondent therein (the respondent
herein) is in occupation of a portion of the schedule property and
he has illegally and unauthorizedly sub-let the other two portions
of the property to the second and third respondents therein,
namely Shri B. Ramachandra Rao and Sh. N. Murlidhara Rao on
monthly rental of Rs.400/and Rs.300/- respectively and has been
collecting the rents from them, rightly taken into consideration by
the High Court, requires to be borne in mind. That apart, the fact
that while being examined as DW-1 the deceased second
appellant herein had deposed that no possession was taken after
execution of Exhibit D-1 agreement for sale dated 01.03.1993 as
Sriman Madhwa Sangha had assured to secure possession and
hand over the possession to the first appellant herein/the first
defendant. When that be the position and when the subject suit is
one based on prior possession the appellants herein are not
justified in contending that the suit is bad for non-joinder of
Sriman Madhwa Sangha and Sri Vittal Rao.
33. As noticed earlier, the appellants have also contended that the
suit ought to have been held as abated against all the defendants18
2025:JHHC:11840owing to non-substitution of all the legal representatives of the
deceased defendant No. 3 upon his death. This contention is bereft
of any basis and merits and was rightly repelled by the courts
below. In that regard it is to be noted that the first appellant and
deceased second appellant as also their father Hanumaiah were
all arrayed in the suit as defendants and they were jointly
defending the suit. Upon the death of original third defendant viz.,
Hanumaiah the original defendants No.1 and 2, who are sons of
the original defendant No.3 fully and substantially representing
the joint interest contested the suit and, thereafter, after suffering
an adverse judgment and decree in the suit diligently preferred
the appeal before the High Court which ultimately culminated in
the impugned judgment and decree. Even thereafter, obviously
they are diligently prosecuting the joint interest, even if the
contention of joint interest is taken as correct, by filing the
captioned appeal.
34. In the contextual situation the following decisions assumes
relevance. The decision in Bhurey Khan v. Yaseen Khan (Dead)
By LRs. And Ors. 1995 Supp. (3) SCC 331 was referred to in the
impugned judgment by the High Court to reject the aforesaid
contention of the appellants therein viz. original defendant Nos. 1
and 2. In paragraph 4 of the decision in Bhurey Khan’s case, this
Court held thus:-
“……the estate of the deceased was thus sufficiently
represented. If the appellant would not have filed any
application to bring on record the daughters and the
widow of the deceased the appeal would not have abated
under Order 22 Rule 4 of the Code of Civil Procedure
as held by this Court in Mahabir Prasad v. Jage Ram
[(1971) 1 SCC 265 : AIR 1971 SC 742] . The position,
in our opinion, would not be worse where an application
was made for bringing on record other legal
representatives but that was dismissed for one or the
other reason. Since the estate of the deceased was
represented the appeal could not have been abated.”
35. In the decision in State of Andhra Pradesh through Principal
Secretary and Ors. v. Pratap Karan and Ors. (2016) 2 SCC 82,
this Court held:-
“40. In the instant case, the plaintiffs joined together
and filed the suit for rectification of the revenue record
by incorporating their names as the owners and
possessors in respect of the suit land on the ground inter
19
2025:JHHC:11840alia that after the death of their predecessor-in-title,
who was admittedly the pattadar and khatadar, the
plaintiffs succeeded the estate as sharers being the sons
of khatadar. Indisputably, therefore, all the plaintiffs
had equal shares in the suit property left by their
predecessors. Hence, in the event of death of any of the
plaintiffs, the estate is fully and substantially
represented by the other sharers as owners of the suit
property. Therefore, by reason of non-substitution of the
legal representative(s) of the deceased plaintiffs, who
died during the pendency of the appeal in the High
Court, entire appeal shall not stand abated. Remaining
sharers, having definite shares in the estate of the
deceased, shall be entitled to proceed with the appeal
without the appeal having been abated. We, therefore,
do not find any reason to agree with the submission
made by the learned counsel appearing for the
appellants.”
36. We are of the considered view that the same analogy is
applicable in a case where even in the event of death of one of the
defendants, when the estate/interest was being fully and
substantially represented in the suit jointly by the other defendants
along with deceased defendant and when they are also his legal
representatives. In such cases, by reason of non-impleadment of
all other legal heirs consequential to the death of the said
defendant, the defendants could not be heard to contend that the
suit should stand abated on account of non-substitution of all the
other legal representatives of the deceased defendant. In this case,
it is to be noted that along with the deceased 3 rd defendant the
original defendant Nos. 1 and 2 were jointly defending their joint
interest. Hence, applying the ratio of the aforesaid decision and
taking into account the fact that the appellants/ the original
defendants No. 1 and 2 despite the death of original defendant
No.3 defended the suit and preferred and prosecuted the first
appeal. Upon the death of the second appellant the joint interest
is being fully and substantially taken forward in this proceeding
as well by the first appellant along with the substituted legal
representatives of the deceased second appellant, we do not find
any reason to disagree with the conclusions and findings of the
courts below for rejecting the contention that suit ought to have
held abated owing to the non-substitution of all the legal heirs of
deceased third defendant against all defendants. For the same
reason, the contention that the suit was bad for non-joinder of
20
2025:JHHC:11840
necessary parties of all his legal heirs/representatives also has to
fail.”
32. Upon going through the aforesaid two judgments, this Court is of the
considered view that there is no dispute with regard to general proposition
of law that the decree passed in favour of a party who was dead and against
a party who was dead, is obviously a nullity. From the perusal of paragraph
6 of the aforesaid judgment in the case of Kishun @ Ram Kishun (Dead)
through Lrs. (Supra), it appears that the aforesaid proposition of law was
not in dispute and it was conceded that the legal representatives of neither
of the parties were brought on record in the second appeal and the second
appeal stood abated. The Hon’ble Supreme Court was of the view that on
this short ground, the said appeal was liable to be allowed and the decision
of the High Court was set-aside with an order of remand in terms of
paragraph 9 of the said judgment.
33. However, the aforesaid proposition of law as mentioned in paragraph
6 of the judgment of Kishun @ Ram Kishun (Dead) through Lrs. (Supra)
is also to be seen in the light of the law laid down by the Hon’ble Supreme
Court in the case of Shivshankara and Another (Supra) wherein it has
been held that suit cannot be held to be abated in the event of death of one
of the defendants when the estate/interest was being fully and substantially
represented in the suit jointly by other defendants along with deceased
defendant and when they are also his legal representatives.
34. This court is of the considered view that the estate of Kandan Ahir
was certainly substantially represented by his son and one daughter who
were admittedly alive and certainly, the son was the legal representative of
his mother – defendant no.2 who was already on record. So far as the
defendant no. 3 is concerned, her interest was also substantially represented
as common written statement was filed by the defendant no. 1 to 6 and there
was no scope to take a different stand after her death.
35. This Court finds that there is no finding of the learned Courts that
Khubi Ahirin (defendant no. 2) and Taramuni Devi (defendant no.3) had
expired during the pendency of the suit and consequently, it cannot be said
21
2025:JHHC:11840
that title suit was decreed against dead persons and consequently, it was a
nullity in the eyes of law. A mere statement in the memo of appeal by itself
is of no consequence and merely because they were shown as dead at the
time of filing the appeal, is also of no consequence. Further the estate of
defendant no.2 and 3 was substantially represented by defendant no. 1 and
4 as defendant no. 1 to 4 were claiming through common ancestor and had
filed common written statement.
36. In view of the aforesaid findings, it is held that the learned 1st
appellate court did not commit any perversity by not taking into
consideration that the judgment and decree passed by the learned trial court
in the Title Suit No.29 of 2003 is against two dead persons , the defendant
no.2-Khubi Ahirin and defendant no.3 Taramuni Devi, as no material was
brought on record to show the date of death of the defendant no. 2 and 3
although the defendant no.1 who was the appellant no.1 was the son of
defendant no.2 and brother of defendant no.3 and there was no material on
record to show that defendant no.2 and 3 died during the pendency of the
suit. Further, otherwise also the estate and interest of the defendant no. 2
and 3 was substantially represented by the defendant no. 1 and 4 who were
the appellants before the 1st appellate court. Consequently, the judgment
and decree passed in Title Suit No.29 of 2003 is not a nullity when the
general principles of law laid down in paragraph no.6 of the judgment in
the case of Kishun @ Ram Kishun (dead)Thru. Lrs. Vs. Behari (Dead) By
Lrs. reported in (2005) 6 SCC 300 is read along with the judgement passed
by the Hon’ble Supreme Court in the case of “Shivshankara and Another
Vs. H.P. Vedavyasa Char” reported in 2023 LiveLaw (SC) 261. In view
of the aforesaid findings, the 2nd substantial question of law is decided
against the appellants and in favour of the respondents.
1st Substantial question of law
37. The records of the case reveal that the suit was initially filed seeking
declaration of title and confirmation of possession over the suit land and
also for cancellation of Jamabandi, if any, created in the name of the
22
2025:JHHC:11840
defendants and also for declaring void ab initio, if any surrender and
settlement deed was produced by the defendant no.5. However, an
amendment was made in the prayer of the suit that if the plaintiffs were
found dispossessed from any portion of the suit land during the course of
proceedings, such possession be delivered to the plaintiffs by the process
of Court.
38. Both the learned Courts have, inter alia, declared the right, title,
interest and possession in favour of the plaintiffs and have also declared
that the settlement deed bearing no. 1469 executed on 03.11.1947 in favour
of Dhodho Kharia is void and inoperative and not binding on the plaintiffs.
39. The point of limitation has been agitated by the concerned
defendants who are appellants before this Court with respect to challenge
to the settlement deed bearing no. 1469 executed on 03.11.1947. The
learned trial Court while deciding this issue of limitation has observed that
the plaintiffs had filed suit when the revenue authority rejected the prayer
of the plaintiffs for mutating the suit land on 16.07.1987 and thereafter,
when the appellate authority rejected the appeal also on 11.12.2002. The
suit was filed in the year 2003.
40. It was the specific case of the plaintiffs that with respect to Khata No.
47 measuring area 4.66 acres, Dhodho Kharia, Khuen Kharia and Poulush
Kharia created some forged documents and got their name mutated and
entered in Register II, but they never came in possession of the property.
It was their further case that in Mutation Appeal heard by Deputy Collector
Land Reforms, Gumla being Mutation Appeal No. 45 of 1987-88, the
forgery made by Dhodho Kharia came to the knowledge of the plaintiffs
and it also came to light that one Amrit Ahirin , a stranger to the family of
the plaintiffs, surrendered the land of the plaintiffs being Khata No. 47 in
favour of the then landlord on 03.11.1947 and on the same day, the landlord
made settlement in favour of Dhodho Kharia. It was also the case of the
plaintiffs that if the father or uncle of defendant no. 5 succeeded in
obtaining some rent receipt on the basis of some forged and fake
23
2025:JHHC:11840
documents, the mutation order or the rent receipt cannot create or
extinguish the title of either party. It was also their case that the local
Karmchari had submitted a report in the Mutation Case No. 245 of 1987-
88 on 01.05.1987 wherein he did not disclose as to how the Jamabandi of
the defendants was created. It was the specific case of the plaintiffs that in
respect of Khata No. 47 the mutation was allowed in the name of Hindu
Ahir, the father of the plaintiffs vide Mutation Succession Case No. 13
R2/60-61 and the same continued till 1973-74. Hence, it was the case of the
plaintiffs that the story of surrender and settlement made in the year 1947
falls flat on the ground. It was asserted in paragraph 14 of the plaint that all
these facts came to the knowledge of the plaintiffs in Mutation Appeal No.
45 of 1987-88 wherein ultimately an observation was made vide final order
dated 11.12.2002 that the plaintiffs may go to the competent Civil court for
proper adjudication of their title and revenue courts were not competent to
decide the title. The concerned mutation case was bearing case no. 245 of
1987-88 which was decided on 16.07.1987 by the Circle Officer, Gumla
and Mutation Appeal was bearing no. 45 of 1987-88 which was decided on
11.12.2002 by Deputy Collector Land Reforms, Gumla, which as per the
plaintiffs cast a cloud over the title of the plaintiffs and the plaintiffs thought
it necessary to file a suit and then the suit was filed on 01 st August 2003.
41. The learned trial court, while considering the point of limitation, has
taken into consideration the aforesaid orders in connection with mutation
i.e. order passed by the Circle Officer dated 16.07.1987 and the appellate
order dated 11.12.2002 and was of the view that the time consumed for
proceeding before the original authority dealing with mutation and also
before the appellate authority, was to be excluded. For this purpose, the trial
Court referred to the judgment passed by the Hon’ble Supreme Court in the
case reported in AIR 2000 SC 2023 (P. Sarathy Vs. State Bank of India)
and ultimately, held that the suit was not barred by limitation.
42. The learned appellate Court has also considered the point of
limitation and apart from the judgment passed by the Hon’ble Supreme
24
2025:JHHC:11840
Court in the case of P. Sarathy (Supra), the learned 1st appellate court has
also referred to the judgment passed by this Court in the case reported in
2004 (3) JLJR 657 (Ramnath Munda & Ors Vs. Khantu Mudna) which
was relied upon by the plaintiffs to submit that when a deed is invalid, the
question of it being relied and considered by the Court is not required and
the law of limitation would apply only when the document to be hit is a
valid one. The learned 1st appellate Court ultimately held that the suit was
not barred by limitation and also rejected the plea of adverse possession by
observing that title on the basis of gift and settlement deed and title by way
of adverse possession are mutually inconsistent pleas.
43. The aforesaid substantial question of law no. (i) as framed in the
present case, refers to the following paragraphs of the judgment passed by
the Hon’ble Supreme Court in the case of “Abdul Rahim & Ors. vs. Sk.
Abdul Zabar & Ors.” reported in (2009) 6 SCC 160 [equivalent citation is
AIR 2010 SC 211] :
“28. A suit for cancellation of transaction whether on the ground
of being void or voidable would be governed by Article 59 of the
Limitation Act. The suit, therefore, should have been filed within a
period of three years from the date of knowledge of the fact that the
transaction which according to the plaintiff was void or voidable
had taken place. The suit having not been filed within a period of
three years, the suit has rightly been held to be barred by limitation.
29. In Mohd. Noorul Hoda v. Bibi Raifunnisa (1996) 7 SCC 767,
this Court held:
“6. … There is no dispute that Article 59 would apply to set
aside the instrument, decree or contract between the inter se
parties. The question is whether in case of person claiming
title through the party to the decree or instrument or having
knowledge of the instrument or decree or contract and
seeking to avoid the decree by a specific declaration,
whether Article 59 gets attracted? As stated earlier, Article
59 is a general provision. In a suit to set aside or cancel an
instrument, a contract or a decree on the ground of fraud,
Article 59 is attracted. The starting point of limitation is the
date of knowledge of the alleged fraud. When the plaintiff
seeks to establish his title to the property which cannot be
established without avoiding the decree or an instrument
that stands as an insurmountable obstacle in his way which
25
2025:JHHC:11840otherwise binds him, though not a party, the plaintiff
necessarily has to seek a declaration and have that decree,
instrument or contract cancelled or set aside or rescinded.
Section 31 of the Specific Relief Act, 1963 regulates suits for
cancellation of an instrument which lays down that any
person against whom a written instrument is void or
voidable and who has a reasonable apprehension that such
instrument, if left outstanding, may cause him serious injury,
can sue to have it adjudged void or voidable and the court
may in its discretion so adjudge it and order it to be
delivered or cancelled. It would thus be clear that the word
‘person’ in Section 31 of the Specific Relief Act is wide
enough to encompass a person seeking derivative title from
his seller. It would, therefore, be clear that if he seeks
avoidance of the instrument, decree or contract and seeks a
declaration to have the decrees set aside or cancelled he is
necessarily bound to lay the suit within three years from the
date when the facts entitling the plaintiff to have the decree
set aside, first became known to him.”
44. The said judgment was subject matter of consideration in the
judgment passed by the Hon’ble Supreme Court in the case of Prem Singh
(Supra) wherein it has been held in paragraphs 13 to 20 as under:
“13. Article 59 of the Limitation Act applies specially when a
relief is claimed on the ground of fraud or mistake. It only
encompasses within its fold fraudulent transactions which are
voidable transactions.
14. A suit for cancellation of instrument is based on the provisions
of Section 31 of the Specific Relief Act, which reads as under:
“31. When cancellation may be ordered.–(1) Any person
against whom a written instrument is void or voidable, and
who has reasonable apprehension that such instrument, if
left outstanding may cause him serious injury, may sue to
have it adjudged void or voidable; and the court may, in its
discretion, so adjudge it and order it to be delivered up and
cancelled.
(2) If the instrument has been registered under the Indian
Registration Act, 1908 (16 of 1908), the court shall also
send a copy of its decree to the officer in whose office the
instrument has been so registered; and such officer shall
note on the copy of the instrument contained in his books
the fact of its cancellation.”
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2025:JHHC:11840
15. Section 31 of the Specific Relief Act, 1963 thus, refers to
both void and voidable documents. It provides for a discretionary
relief.
16. When a document is valid, no question arises of its
cancellation. When a document is void ab initio, a decree for
setting aside the same would not be necessary as the same is
nonest in the eye of the law, as it would be a nullity.
17. Once, however, a suit is filed by a plaintiff for cancellation of
a transaction, it would be governed by Article 59. Even if Article
59 is not attracted, the residuary article would be.
18. Article 59 would be attracted when coercion, undue influence,
misappropriation or fraud which the plaintiff asserts is required
to be proved. Article 59 would apply to the case of such
instruments. It would, therefore, apply where a document is prima
facie valid. It would not apply only to instruments which are
presumptively invalid.
19. It is not in dispute that by reason of Article 59 of the Limitation
Act, the scope has been enlarged from the old Article 91 of the
1908 Act. By reason of Article 59, the provisions contained in
Articles 91 and 114 of the 1908 Act had been combined.
20. If the plaintiff is in possession of a property, he may file a suit
for declaration that the deed is not binding upon him but if he is
not in possession thereof, even under a void transaction, the right
by way of adverse possession may be claimed. Thus, it is not
correct to contend that the provisions of the Limitation Act would
have no application at all in the event the transaction is held to
be void.”
45. The suit in the present case was filed seeking a declaration that the
registered settlement of the year 1947 was null and void and was not
binding upon the plaintiffs. In the present case the plaintiffs were found in
possession of the suit property and they sought both the reliefs, a declaration
that the registered settlement of the year 1947 was not binding upon the
plaintiffs and also that the registered settlement of the year 1947 was null
and void. This Court is of the considered view that in order to get the
registered settlement deed of the year 1947 declared as null and void,
adjudication is required and without any adjudication it cannot be said that
the settlement was void ab initio, even if it was obtained by fraud.
27
2025:JHHC:11840
46. It was the specific case of the plaintiffs that they were in possession
of the suit property and the documents produced by the defendants before
the Circle Officer and Deputy Collector Land Reforms, Gumla in mutation
proceedings were mere paper transactions which came to the knowledge
of the plaintiffs when the mutation appeal was being heard by Deputy
Collector Land Reforms, Gumla in Mutation Appeal No. 45 of 1987-88 and
final order was passed on 11.12.2002 with observation that the plaintiffs
may go to the competent civil Court for proper adjudication of their title as
the revenue Court is not the competent authority to decide the title. The
written statement filed by the defendant nos. 1 to 6 reveals that the case of
the defendants was that they were in possession of the property since the
date of transfer and the date of registration will be presumed to be date of
knowledge of all and therefore, it was wrong to say that the plaintiffs knew
about the registered deed of the year 1947 at the time of mutation appeal
no. 45 of 1987-88.
47. The original plaintiff no. 1 was examined as P.W-6 and he had fully
supported the case of the plaintiffs and had reiterated that he came to know
about the registered patta of the year 1947 during the Mutation Case No.
245 of 1987-88 and also asserted that the plaintiffs were in possession of
the suit property. It was also asserted by this witness that the documents
produced by the defendants were forged and fabricated. This witness has
been cross-examined and there is no cross-examination on the claim that
the plaintiffs came to know about the registered deed of the year 1947
during the mutation proceedings. However, during cross-examination, the
original plaintiff no. 1 who was examined as P.W. 6 denied that there was
any Panchayati held in the year 1980 in connection with the property.
48. This Court finds that the plaintiffs duly established that they had no
knowledge about the claim and also about the documents of the defendants
and that the plaintiffs came to know about them only in the mutation
proceedings. This Court also finds that the learned 1st appellate Court, after
considering the materials on record, has rejected the plea of the defendants
28
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that there was any Panchayati held in connection with the property. This
Court also finds that both the learned Courts have given concurrent findings
with regard to possession of the suit property in favour of the plaintiffs.
49. The plea raised by the defendants in the written statement that the
date of registration would be deemed to be the date of knowledge is devoid
of any merits. In the judgement passed by the Hon’ble Supreme Court
reported in (2018) 6 SCC 422 (Chḥotanben Vs. Kirtibhai Jalkrushnabhai
Thakkar), though passed in connection with proceedings under order VII
Rule 11 of C.P.C, it has been held that a suit for cancellation of sale deed
has to be instituted within 3 years of its knowledge. The said judgement has
also been followed in a recent judgement wherein the Hon’ble Supreme
Court was of the view that the concerned High Court came to the correct
conclusion that under Article 59 of the Limitation Act, a suit can be
instituted within 3 years of knowledge and not from the date of registration
of the sale-deed and the aforesaid judgment passed in the case of
“Chḥotanben Vs. Kirtibhai Jalkrushnabhai Thakkar” reported in (2018)
6 SCC 422 has been followed.
50. In view of the aforesaid judgements, the suit was required to be filed
within 3 years from the date of knowledge of alleged forgery/fraud and the
suit was guided by Article 59 of the Limitation Act, 1963 which is quoted
as under:-
Description of suit Period of Time from which period
limitation begins to run
59. To cancel or set aside Three years When the facts entitling
an instrument or decree the plaintiff to have the
or for the rescission of a instrument or decree
contract. cancelled or set aside or
the contract rescinded
first become known to
him.
51. Thus, the suit seeking the relief that the registered settlement deed
was null and void was required to be filed within a period of three years
from the date of knowledge.
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52. This Court further finds that both the learned Courts have taken into
consideration the fact that the plaintiffs were pursuing their remedy in the
mutation proceeding/appeal arising out of mutation proceeding and it was
only in the year 2002 when the appellate authority observed that the
plaintiffs would have to get their right, title and interest declared through a
competent Court of civil jurisdiction. The suit was filed in the year 2003
and the plaintiffs had also made a prayer for cancellation of Jamabandi
running in the name of defendants apart from the prayer that the settlement
of the year 1947 be declared null and void and not binding upon the
plaintiffs.
53. The learned Courts while considering the point of limitation have
referred to the judgment passed by the Hon’ble Supreme Court in the case
of P. Sarathy (Supra). In the said judgment, the Hon’ble Supreme Court
has considered section 14 of the Limitation Act and after quoting the
provisions of section 14(1), has held in paragraph 12 that section 14 of the
Limitation Act does not speak of a civil Court, but speaks only of a Court
and held that it is not necessary that the Courts spoken of in section 14 of
the Limitation Act, 1963 should be a civil court. It has also been held that
any authority or tribunal having the trappings of a Court would be a ‘Court’
within the meaning of Section 14 of the Limitation Act. The Hon’ble
Supreme Court also considered the earlier judgment reported in AIR 1967
SC 1494 wherein the question arose as to whether the registrar under Bihar
and Orissa Cooperative Societies Act was a Court and it was held that
registrar had not merely the trappings of the Court, but in many respects he
was given the same powers as was given to an ordinary civil court by the
Code of Civil Procedure including the powers to summons and examine
witnesses on oath, the power to order inspection of documents and to hear
the parties. Thereafter, the Hon’ble Supreme Court referred to the judgment
passed in the case reported in AIR 1983 Punj and Har 363, wherein it was
held that proceeding before the Collector under Redemption of Mortgages
(Punjab) Act was civil proceeding. The Hon’ble Supreme Court thereafter
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considered the principles of law and applied it to the facts of the said case
and held that the proceedings instituted before the Deputy Commissioner
of Labour (Appeals) under Tamil Nadu Shops and Establishment Act, 1947
would be covered under section 14 of the Limitation Act. Paragraphs 11 to
15 of the said judgment are quoted as under:
“11. Sub-section (1) of Section 14, Limitation Act, provides as
under:
“14. (1) In computing the period of limitation for any suit
the time during which the plaintiff has been prosecuting
with due diligence another civil proceeding, whether in a
court of first instance or of appeal or revision, against the
defendant shall be excluded, where the proceeding relates
to the same matter in issue and is prosecuted in good faith
in a court which, from defect of jurisdiction or other cause
of a like nature, is unable to entertain it.”
12. It will be noticed that Section 14 of the Limitation Act does
not speak of a “civil court” but speaks only of a “court”. It is not
necessary that the court spoken of in Section 14 should be a “civil
court”. Any authority or tribunal having the trappings of a court
would be a “court” within the meaning of this section.
13. In Thakur Jugal Kishore Sinha v. Sitamarhi Central Coop.
Bank Ltd. AIR 1967 SC 1494, this Court, while considering the
question under the Contempt of Courts Act, held that the
Registrar under the Bihar and Orissa Cooperative Societies Act
was a court. It was held that the Registrar had not merely the
trappings of a court but in many respects he was given the same
powers as was given to an ordinary civil court by the Code of
Civil Procedure including the powers to summon and examine
witnesses on oath, the power to order inspection of documents
and to hear the parties. The Court referred to the earlier decisions
in Bharat Bank Ltd. v. Employees 1950 SCC 470; Maqbool
Hussain v. State of Bombay (1953) 1 SCC 736: AIR 1953 SC 325
and Brajnandan Sinha v. Jyoti Narain AIR 1956 SC 66. The
Court approved the rule laid down in these cases that in order to
constitute a court in the strict sense of the term, an essential
condition is that the court should have, apart from having some
of the trappings of a judicial tribunal, power to give a decision or
a definitive judgment which has finality and authoritativeness
which are the essential tests of a judicial pronouncement.
14. In Pritam Kaur v. Sher Singh AIR 1983 P&H 363, the
proceedings before the Collector under the Redemption of
Mortgages (Punjab) Act (2 of 1913) were held to be civil
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proceedings. It was held that the “court”, contemplated under
Section 14 of the Limitation Act, does not necessarily mean the
“civil court” under the Code of Civil Procedure. It was further
held that any tribunal or authority, deciding the rights of parties,
will be treated to be a “court”. Consequently, benefit of Section
14 of the Limitation Act was allowed in that case. This decision
was followed by the Himachal Pradesh High Court in Bansi
Ram v. Khazana [AIR 1993 HP 20].
15. Applying the above principles in the instant case, we are of
the opinion that the Deputy Commissioner of Labour (Appeals),
which was an authority constituted under Section 41(2) of the
Tamil Nadu Shops and Establishments Act, 1947 to hear and
decide appeals, was a “court” within the meaning of Section 14
of the Limitation Act and the proceedings pending before him
were civil proceedings. It is not disputed that the appellant could
file an appeal before the Local Board of the Bank, which was
purely a departmental appeal. In this view of the matter, the entire
period of time from the date of institution of the departmental
appeal as also the period from the date of institution of the appeal
under Section 41(2) before the Deputy Commissioner of Labour
(Appeals) till it was dismissed will, therefore, have to be excluded
for computing the period of limitation for filing the suit in
question. If the entire period is excluded, the suit, it is not
disputed, would be within time.”
54. The said judgment was subject matter of consideration in recent
judgment of the Hon’ble Supreme Court reported in 2015 SCC OnLine SC
383 (M.P. Steel Corporation Vs. Commissioner of Central Excise) and the
Hon’ble Supreme Court held that the principles of section 14 of the
Limitation Act would apply to appeal filed under section 128 of the
Customs Act.
55. This Court finds that in the present case, although the suit was to be
filed within 3 years from the date of knowledge of alleged fraud, but in the
present case after the knowledge of alleged fraud, the plaintiffs were
prosecuting their remedy before the statutory authorities who are given the
power of mutation and also before the appellate authority.
56. Upon perusal of the provisions of Mutation Laws as applicable in
the State of Jharkhand i.e. Bihar Tenant’s Holding (Maintenance of
Records) Act, 1973, this Court finds that the Act is to provide for
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maintenance of up to date records of holdings of raiyats in the State and
matters connected therewith and Land Reforms Deputy Collector is an
officer not below the rank of Deputy Collector empowered by the State
Government to perform all or any of the functions of Land Reforms Deputy
Collector under the Act. The Revenue Officer has been defined to mean an
officer whom State Government appoints by name or by virtue of his office
to discharge any of the functions of the Revenue Officer under the Act and
includes the Circle Officer.
57. As per provision of Section 3 of the aforesaid Act, Anchal Ahikari is
to prepare and maintain continuous khatiyan of tenant’s ledger register and
village maps on the basis of entries made in the existing record of rights of
the villages after such verification, as may be prescribed, and maintain the
same in the manner prescribed. The Anchal Adhikari is also empowered to
dispose of objections regarding entries made in draft of the continuous
kahtiyan and tenant’s ledger register in accordance with the rules made by
the State Government and after giving reasonable opportunity of being
heard to the parties concerned and after making such local enquiries and
verifications as may be necessary. After disposal of such objections, the
publication of final tenant’s ledger register shall be the conclusive evidence
of the fact that continuous khatiyan and the tenant’s ledger register have
been duly published under the Section and any person aggrieved by the
order of Anchal Adhikari has a right to appeal before the Land Reforms
Deputy Collector who is to decide the appeal after giving reasonable
opportunity of being heard and subject to the provisions of Section 16, the
order of the Land Reforms Deputy Collector on appeal is final.
58. The requisitions and disposal of mutation cases are done in terms of
Section 14 of the aforesaid Act. Section 22 prescribed powers to the State
Government to prescribe proper fees for application for mutation in the
continuous khatiyan which is paid through court-fee stamp. The Collector
has also got the power to impose penalty under Section 24 of the Act if the
person required to file application under Section 11 and 12 wilfully or
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intentionally omits to give such notice in the prescribed manner. Sections
19, 25, 26, 28 and 29 of the aforesaid Act are quoted as under:-
“19. Presumption of correctness of entries in continuous
Khatian and Tenant’s Ledger Register.- Every entry in the
continuous Khatian and Tenant’s Ledger Register finally
published under clause (iii) of sub-section (4) of Section 3-
(i) shall be an evidence of the matter referred to in such
entry; and
(ii) shall be presumed to be corrected until it is proved by
evidence to be incorrect in the following proceedings,-
(a) in a proceeding in a Civil Court of competent
jurisdiction; or
(b) in a proceeding under Chapter X of the Bihar
Tenancy Act, 1885 (Act VIII of 1885), or Chapter XII
of the Chota Nagpur Tenancy Act, 1908 (Act VI of
1908) or under the Santhal Parganas Settlement
Regulations, 1872 (Regulation 3 of 1872) or the Bihar
Consolidation of Holding and Prevention of
Fragmentation Act, 1956 (Bihar Act 22 of 1956) in
any area where the State Government has made an
order directing that a survey be made and a record of
rights be prepared in respect of the lands in that area,
and in pursuance of such an order, survey and
settlement operation is already in progress.”
25. Authorities under this Act to have power of Civil Court.-
While making enquiries and conducting proceeding under this
Act, the Collector, the Land Reforms Deputy Collector, the
Anchal Adhikari shall have the same powers in matter of
admission of evidence summoning and enforcing the attendance
of any person and examining him on oaths, compelling the
production of documents and award of costs, as are vested in a
Court under the Code of Civil Procedure, 1908 (Act V of 1908).
26. Inquiries and proceedings to be judicial proceedings. –
All inquiries and proceedings under this Act before the
Collector and Land Reforms Deputy Collector, and Anchal
Ahikari shall be deemed to be judicial proceedings for the
purpose of Sections 193, 196 and 228 of the Indian Penal Code,
1860 (Act XLV of 1860).
28. General direction, control and superintendence of the
Collector, etc. – The Land Reforms Deputy Collector and the
Anchal Adhikari shall in performance of their duties and in the
exercise of their power under this Act, be under the general
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direction, control and superintendence of the Collector of the
district, the Commissioner and the Board of Revenue.
29. Power of State Government to make rules. – (1) The State
Government may make rules not inconsistent with the
provisions of this Act, to carry out the purposes of this Act.
(2) In particular and without prejudice to the generality of the
foregoing powers, such rules may provide for all or any of the
following matters namely: –
(a) the mode of service of any order or notice issued under the
Act;
(b) the procedure to be followed in the disposal of mutation
proceedings and appeals;
(c) the manner of correction of the continuous khatian, the
Tenant’s Ledger Register, and the khata pustika;
(d) the value of court-fee stamps which every application,
memorandum of appeal or application for revision under this
Act shall bear; and
(e) any other matter which is to be or may be required to be
prescribed.
(3) Every rule under this section shall be laid, as soon as may
be, after it is laid before each House of State Legislature while
it is in session for a total period of fourteen days which may be
comprised in one session or in two successive sessions and if,
before expiry of the session in which it is so laid or the session
immediately following both the Houses agree that the rule
should not be made, the rule shall thereafter have effect only in
such modified form or be of no effect as the case may be, so,
however that any such modification or annulment shall be
without prejudice to the validity of anything previously done
under that rule.”
59. There can be no doubt that the revenue authorities under the aforesaid
Act do not have the status of civil court and certainly proceedings before
the revenue authority are not judicial proceedings in any court of law and
they do not decide the question of title to immovable properties. However,
in terms of section 25 of the aforesaid Act, while making enquiries and
conducting proceeding, the Collector, the Land Reforms Deputy Collector
and the Anchal Adhikari shall have the same powers in matter of admission
of evidence, summoning and enforcing the attendance of any person and
examining him on oaths, compelling the production of documents and
35
2025:JHHC:11840
award of costs, as are vested in a Court under the Code of Civil Procedure,
1908. Further, the entries made in land records are presumed to be correct
until contrary is proved which can be done through competent court of civil
jurisdiction in terms of Section 19 of the Act. The authorities exercise
power under original, appellate and revisional jurisdiction.
60. This Court is of the considered view that though the revenue
authorities do not have the status of civil court but the proceedings therein
have the trappings of civil court. Therefore, if a party has been agitating
his grievance diligently before the revenue authorities in the matter of
disputing the entries made in the record of rights and the appellate authority
ultimately holds that the title be decided by a competent court of civil
jurisdiction and thereafter the suit is filed, the period spent before the
revenue authorities while prosecuting the matter before them is certainly
required to be excluded in computing the period of limitation in terms of
section 14 of the Limitation Act, 1963.
61. Since the proceedings before the revenue authorities are not
proceedings before a civil court, but certainly such proceedings have
trappings of Court and accordingly, in the present case, the period which
was spent before the revenue authorities was required to be excluded and
such view has been taken by both the learned courts while computing the
period of limitation. The plaintiffs came to know about the settlement of
the year 1947 for the first time at the stage of proceeding before the revenue
authorities before the Deputy Collector Land Reforms who disposed of the
appeal in the year 2002 by observing that the plaintiffs may seek their
remedy before the civil court and soon thereafter within a period of one
year, the suit was filed in the year 2003.
62. In view of the aforesaid findings, and also in view of the judgment
passed in the case of “Abdul Rahim & Ors. vs. Sk. Abdul Zabar & Ors.”
reported in (2009) 6 SCC 160 [equivalent citation is AIR 2010 SC 211] as
referred to in the 1st substantial question of law, a suit for cancellation of
transaction whether on the ground of being void or voidable would be
36
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governed by Article 59 of the Limitation Act and such suit has to be filed
within a period of three years from the date of knowledge of the fact that
the transaction which according to the plaintiff was void or voidable had
taken place. This Court is of the view that the suit for setting aside of
registered settlement deed bearing no.1469 dated 03.11.1947 was required
to be filed within a period of 3 years from the date of knowledge in terms
of section 59 of the Limitation Act and the period of 3 years was not to be
counted from the date of registration of the settlement deed way back on
03.11.1947. Further, the plaintiffs were also entitled for exclusion of time
in terms of section 14 of the Limitation Act when they were pursuing the
matter before the revenue authorities in connection with mutation even after
coming to know for the first time in the proceedings before the revenue
authorities about the alleged fraud. The learned courts have rightly held
that the plaintiffs were entitled for such exclusion of time. The mutation
appeal was decided on 11.12.2002 with an observation that suit be filed for
deciding the title and the suit was filed on 01.08.2003. Consequently, the
suit was not barred by limitation and the point of limitation was rightly
decided by both the learned courts.
63. The substantial question of law no. (i) is accordingly decided.
64. Both the substantial questions of law having been decided in favour
of the respondents and against the appellants, this Second Appeal is hereby
dismissed.
65. Pending interlocutory application, if any, is dismissed as not pressed.
(Anubha Rawat Choudhary, J.)
Pankaj
37
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