High Court
Case Details
RSA 145/2012 BEFORE HON’BLE MR. JUSTICE B.P. KATAKEY
Legal Reasoning
Heard Mr. Laskar, learned counsel for the appellants as well as Ms B Cho udhury, learned counsel for the respondents. The appellants, who were the plaintiffs in Title Suit No. 51/2002, by th e present appeal sought to challenge the judgment and decree dated 4.3.2006 pass ed by the learned Civil Judge (Sr. Division) Hailakandi in Title Appeal No. 8/20 05 whereby and whereunder the appeal preferred by them has been dismissed affirm ing the judgment and decree passed by the learned Civil Judge (Jr. Division), Ha ilakandi in the suit. The appellants herein instituted the said suit for declaration of their right, title and interest along with the principal defendant Nos. 8 to 10 and co nfirmation of possession apart from the declaration that the sale deed dated 4.6 .1906 (Ext. B) executed by Sabed Ali, the predecessor-in-interest of the appella nts in favour of Yasin Ali Laskar, the predecessor-in-interest of the defendants /respondents is illegal, fraudulent, collusive and would not create any right, t itle and interest on the basis of such sale deed. It has been contended that the plaintiffs/ appellants and the principal defendant Nos. 8 to 10 acquired the ri ght over the schedule 2 land by right of inheritance, they being the grand child ren of Sabed Ali. The defendants contested the suit by filing written statement contending inter a lia that Sabed Ali during his lifetime sold the said land in favour of their pre decessor-in-interest Yasin Ali Laskar and by virtue of such sale they have acqui red such right, title and interest. The title of Sabed Ali over the suit land, t herefore, was not in dispute. The trial court on the basis of the pleadings of the parties framed the followin g eight issues including the issue relating to limitation as issue No. 3: - (cid:28)1. Is there any cause of action for the suit? 2. Is the suit maintainable in its present form and manner? 3. Is the suit barred by limitation? 4. Is the suit bad for estoppel, waiver and acquiescence? 5. Whether the sale deed dated 4.6.1906 is illegal, false, fraudulent, collusive , and without consideration? 6. Whether the plaintiffs and proforma defendant Nos. 40 to 52 have right, title and possession over the suit land in the schedule -2? 7. Whether the plaintiffs are entitled to get relief as prayed? 8. To what relief or reliefs, the plaintiffs are entitled? (cid:29) The trial court upon appreciation of the evidence on record though has d ecided the issue relating to limitation in favour of the plaintiffs, the suit, h owever, was dismissed by holding that by Ext. B sale deed the predecessor-in-int erest of the plaintiffs has sold the suit land in favour of the predecessor-in-i nterest of the defendants by answering the issue No. 5 in favour of the defendan ts. The plaintiffs, therefore, preferred the aforesaid appeal which has been dismiss ed also on the ground that the suit filed by the plaintiffs is barred by time. It is contended by the learned counsel for the appellants that since the appellants who came to know about the existence of the aforesaid sale deed on 1 1.1.1996 i.e. the date of grant of the mutation in favour of the predecessor-in- interest of the defendants and thereafter the appellants have agitated the same before the Board of Revenue questioning the mutation granted, which proceeding h aving been disposed of 17.7.2002, the first appellate court ought not to have he ld that the suit of the plaintiff is barred by time, as the plaintiffs were awai ting the decision of the Board of Revenue. Per contra it is submitted by the learned counsel for the defendants tha t since the plaintiffs have prayed for declaration that the sale deed dated 4.6. 1996 (Ext. B) is illegal, fraudulent and collusive, the suit has to be filed wit hin three years from the date of knowledge about the existence of such sale deed and even if 11.9.1996 is taken as the date when the plaintiffs came to know abo ut the existence of the sale deed, the suit ought to have been filed within thre e years therefrom i.e. within 10.9.1999. The suit having been filed in the year 2002, it is out and out barred by time submitted by the learned counsel. The lea rned counsel further submits that the plaintiffs are not entitled to exclusion o f the period of litigation before the Board of Revenue. It is evident from the pleadings in the plaint as well as the prayer mad e that the plaintiffs have challenged the sale deed dated 4.6.1906 (Ext. B) exec uted by Sabed Ali, their grandfather, in favour of the predecessor-in-interest o f the defendants, by virtue of which, according to the defendants, they have acq uired right, title and interest over the suit land. The said sale deed having be en put to challenge along with prayer for declaration of right, title and intere st the suit has to be filed within three years from the date of knowledge about the existence of such sale deed. According to the plaintiff they came to know ab out the sale deed on 11.1.1996 when the mutation was granted in favour of the pr edecessor-in-interest of the defendants. The plaintiffs, thereafter, approached the Board of Revenue challenging only the order of grant of mutation. Even if th e date of knowledge of the plaintiffs about the existence of the said sale deed is taken as 11.1.1996, the plaintiffs ought to have filed the suit within three years thereof. The plaintiffs have filed the suit in the year 2002. The period o f litigation before the Board of Revenue cannot be excluded, the said litigation being for cancellation of the order of grant of mutation and not relating to ch allenge to the sale deed. In view of the above, the first appellate court has rightly held the sui t of the plaintiff as barred by time. The appeal, therefore, being devoid of any substantial question of law is dismis sed. No cost.