When the facts entitling & Ors. v. Abdul Majeed & Ors.

When the facts entitling the plaintiff to have th e or decree or for the rescission of contract the contract rescinded first instrument or decree cancelled or set aside become known to him.

The appellant, herein is the defendant in Title Suit No.14/88 on the fil e of the learned Munsiff No.1, Golaghat has assailed the judgment and decree dat ed 30.8.93 passed in Title Appeal No. 4/92 by the learned Assistant District Jud ge, Golaghat whereby and whereunder the learned Assistant District Judge dismiss ed the appeal and affirmed the judgment and decree dated 6.7.92 passed by the le arned Munsiff No.1, Golaghat in Title Suit No. 14/88.

The facts of the case in a nutshell is summarized hereinbelow: One Smti. Mismai Begum @ Smti. Afzuman Nessa along with her daughter Smti . Motimai Begum have brought a suit being Title Suit No.14/88 in the Court of Mu nsiff No.1, Golaghat arraying 9 (nine) persons as party defendant. Out of 9 (nin e) party defendants, Sri Faiz Ahmed, Sri Habibur Rahman, Sri Safiur Rahman and Tileswar Saikia were arrayed as main defendants whereas the defendant Nos. 5 to 9 who are own sons of plaintiff No.1 have been arrayed as proforma defenda nts. The plaintiff No.1 is the wife of Late Sheikh Md. Hussain whereas the plain tiff No.2 is the daughter of Late Sheikh Md. Hussain in the suit. The plaintiffs have prayed the following reliefs: (a) For a declaration that the judgment and decree dated 23.6.88 passed in Titl e Suit No. 12 of 1987 by the learned Munsiff No.1, Golaghat is not legal and val id and the same is inoperative under the law, For a declaration that registered sale deed No.3758 dated 19.9.67 in con (b) nection with the land mentioned in schedule ’ka’ of the plaint, shown as execute d by Sk. Md. Hussain, husband of the plaintiff No.1 in favour of defendant No.4 is not valid sale deed and for cancellation of the same being forged and obtaine d fraudulently. (c) For a declaration that on the basis of the aforesaid sale deed the defen dant No.4 has not acquired any right, title and interest on the land mentioned in the schedule of the plaint; (d) (e) ed in the schedule of the plaint. (f) And with a further prayer that till the suit is finally disposed of stat us quo in respect of ’ka’ schedule land shall be maintained and a temporary inju nction may be issued restraining the defendant No.4 not to proceed with Partitio n Case being No. 27/81-82 till disposal of the suit. For permanent injunction; For recovery of khas possession in respect of ’Ka’ schedule land mention

The facts pleaded in the plaint by the plaintiff is that the entire land measuring 36 Bighas covered by P.P.No. 234, Dag No. 1824 belongs to Late Noor M d., Sk Md. Hussain and other three brothers, i.e. defendant Nos.1 to 3. The enti re land was mutually divided between the above mentioned four brothers, i.e. hei rs of Late Noor Md. and accordingly, 5 Bighas of land out of 36 Bighas falls in the share of Late Sk. Md. Hussain who was in possession of the land till his dea th in the year 1984 and accordingly, the defendant Nos.1 to 3 have no share in r espect of 5 Bighas of land mentioned in schedule ’ka’ of the plaint. The aforesa id defendant Nos.1 to 3 filed a suit being Title Suit No. 12/87 against the defe ndant No.4 without arraying the plaintiffs as parties in the suit though her son s were arrayed as proforma defendants in the suit and consequently thereupon she (plaintiff No.1) was not aware of the suit filed by the defendant Nos.1 to 3 a s plaintiff. The said suit was dismissed on 23.6.88 whereof it has been mentione d in ’kha’ schedule land. The plaintiffs have further pleaded that the suit land in Title Suit No. 12/87 never sold to defendant No.4 and the sale deed alleged to have been execut ed by Late Sk. Md. Hussain was forged which do not entitle the defendant No.4 t o acquire right, title and interest on the aforesaid land even if there was ag reement for sale of the schedule land and consequently thereupon the defendan t No.4 on the basis of forged sale deed mutated his name in respect of ’ka’ sc hedule land which was not known to the plaintiffs in the Title Suit No. 12/87 and only on 8.7.88, when the defendant No.4 started to construct a thatched hou se on the suit land and inspite of their protest he occupied the land and constr ucted the house, they came to know the actual fact and obtained certified copie s of the sale deed on 6.8.88 and decree passed on 23.6.88 in Title Suit No. 12/87 and filed the suit on 23.8.88 seeking relief as indicated above.

On receipt of the summons the defendant No.4 contested the suit by filin g written statement contending, inter alia, that there is no cause of action and the suit is barred by limitation. It has further been averred that the suit is barred by res-judicata, estoppel and by law of acquiescence. It is his specific case that the plaintiffs and the other defendants are related to each other and denied the fact that the plaintiffs had no source to know about the suit and the sale deed which was purchased in consideration of money amounting to Rs. 625/- from Sk Md. Hussain on 19.9.67 under registered sale deed and there was an agree ment to sale the land executed on 5.10.58 and he paid Rs.200/- as advance and pr ior to the agreement he has been possessing the suit land since 1957 and accordi ngly his name was rightly mutated and prayed for dismissal of the suit. The pro forma defendant Nos. 5 to 8 filed the written statement supporting the case of t he plaintiffs though the defendant Nos. 1 to 3 did not file the written statemen t. On the pleadings of the parties, the learned trial Court framed the foll

owing issues: 1. 2. 3. 4. 5. Whether there is any cause of action for the suit? Whether the suit is barred by limitation? Whether the suit is barred by the principles of res- judicata ? Whether the plaintiffs have any right to sue? Whether the defendant No.4 has been possessing the suit land since 1957? If not whether the defendant No.4 dispossesses the plaintiffs therefrom as alle ged? 6. Whether the sale deed No. 3758 dated 19.9.67 alleged to be executed by S k. Md. Hussain in favour of the defendant No.4 is forged one and as such liable to be cancelled ? 7. operative in law? 8. 9. Whether the plaintiffs are entitled to any decree as prayed for? To what other reliefs, if any, the parties are entitled to? Whether the judgment and decree passed in TS No. 12/87 by this Court is

The learned trial Court while deciding the issue No.1 has held that the plaintiffs came to know about the dismissal of the Title Suit being TS No.12/87 on 8.7.88 when the defendant No.4 constructed house on the suit land and disposs essed the plaintiffs though she was not made party in the suit and the judgment being delivered on 23.6.88 there is cause of action for the suit. While deciding issue No.2 which relates to limitation, the learned trial Court has held that t he plaintiffs came to know the existence of the sale deed and Title Suit No.12/8 7 only on 8.7.88 and filed the suit on 23.8.88 which is within three years as pr ovided under Article 59 of the Limitation Act and decided the issue in favour of the plaintiffs. Relating to issue No.3,the learned trial Court answered the iss ue in the negative. Relating to issue Nos.4 to 7, the learned trial Court on car eful scrutiny of the pleadings of the parties and evidence on record has held th at the Title Suit No.12/87 is bad for non-joinder of necessary party since the p laintiffs were not made parties to the suit on the death of Late Sk.

trial Court, framed the following points for determination: The learned Appellate Court apart from the issues framed by the learned (cid:28)i) Whether the judgment and decree in TS No.12/87 was obtained by f raudulent means? ii) Whether the suit is barred by res-judicata, acquiescence and waiver? iii) Whether the suit is barred by law of limitation? (cid:29) The learned Appellate Court dealt with point No.1 in details contending 11. inter alia that in Dag No.1824 of Patta No.234 there is 36 Bighas of land which was the common property of Late Sk. Md. Hussain, Late Noor Md. (father of defend ant No.1) and defendant Nos.2 and 3 (sons of Late Khatnur Rahman). The land was mutually divided amongst the brothers and 5 Bighas of land comprising the suit l and was possessed by Late Sk. Md. Hussain till his death in the year 1984. On th e 5 Bighas of land the defendant Nos.1, 2 and 3 had no share and on the death of Sk.

The appellant being aggrieved with the judgment and decree passed in Tit le Appeal No.4/92 preferred an appeal being Second Appeal No.8/94 on the file of this Court which was allowed on 7.1.2000 and on further appeal before the Apex Court by the respondents herein, the Apex Court remanded the matter for fresh he aring after formulating the substantial questions of law which were accordingly formulated as indicated hereinabove and the matter is taken up for hearing only on the substantial questions of law formulated by this Court in presence of the parties.

Mr. TJ Mahanta, learned counsel appearing for the appellant has urged th e following points while criticising the judgment and decree passed by both the Courts below viz. i) The appellant is admittedly in possession of the land measuring 1 bigha 2 kathas and 10 lechas since the year 1957 and accordingly, an agreement to sale was executed with Late Sk. Md. Hussain on 5.10.58 and subsequently, thereupon a deed of sale was executed by Late Sk. Md. Hussain on 19.9.67 being No.3758 whic h was not denied by the plaintiffs and this factum amply demonstrate that the pl aintiffs were aware of the sale deed which is now being challenged after 21 year s which is barred under Article 59 of the Limitation Act and the findings of bot h the Courts below being perverse requires interference under Section 100 of the Code. ii) Learned counsel has contended referring the earlier suit being Title Sui t No.12/87 before the learned Munsiff No.1 at Golaghat filed by the plaintiff No s.1, 2 and 3 (respondents in this appeal) seeking a decree for declaring the reg istered sale deed No.3758 dated 19.6.1967 executed by Late Sk.

ecision:- 1. In support of his submission Mr. Mahanta has relied upon the following d (2001) 7 SCC 189, Hafazat Hussain Vs. Abdul Majeed and Others.

Countering the argument advanced by the counsel representing the appella nt, Mr. BC Das, learned Senior counsel assisted by Mr. UC Dutta, learned counsel appearing for the respondents would urge that after the amendment of Section 10 0 of the Code, the role of the High Court in the matter of second appeal is very limited and the High Court cannot substitute its own finding on re-appreciation of evidence over the concurrent findings of fact arrived at by both the Courts below. When the findings of fact of the lower Appellate Court are based on evide nce, the same do not require to be interfered with under Section 100 of the Code .

The learned Senior counsel has drawn the attention of this Court to the judgment rendered by the first Appellate Court wherein three points were formula ted in order to determine the dispute raised by the parties. The first point rel ates to the judgment and decree passed in Title Suit No.12/87 whereof the first Appellate Court has held that the decree was obtained by fraudulent means withou t making the wife as party in the suit though the suit land devolves on her and on her children and the plaintiffs in the suit had nothing to gain since it fall s in the share of the plaintiffs in Title Suit No.14/88 and the proforma defenda nts. Moreover, service of summons on the proforma defendants in Title Suit No.12 /87 were not issued in their place of posting; rather notices were served throug h the plaintiff No.1, i.e. mother of the pro-forma defendants and thus finding o f fact cannot be overturned under Section 100 of the Code. Regarding execution of sale deed alleged to have executed by Late Sk. Md 17. . Hussain, Mr. Das would contend that from the evidence of DWs it has become cry stal clear that it was a doubtful document and cannot be relied upon and thus th e concurrent findings of fact arrived at by both the Courts below may not be int erfered with under Section 100 of the Code.

In regard to the vital point, i.e. the point of limitation, Mr. Das has further contended that the suit was filed within three years as provided under S ection 59 of the Limitation Act because the existence of the sale deed and about Title Suit No.12/87 was known to the plaintiffs on 8.7.88 and the suit was file d on 23.8.88. Mr. Das has also contended that the evidence led by the parties re lating to the execution of sale deed would show that it was not a valid document as has been held by both the Courts below and the existence of sale deed came t o the knowledge on 8.7.88. Even if Article 59 is not attracted residuary Article would be applicable and thereby supported the judgment and decree passed by bot h the Courts below.