High Court
Case Details
RSA 129/2003 BEFOR THE HON’BLE MR. JUSTICE N. CHAUDHURY
Legal Reasoning
This second appeal has been preferred by the plaintiffs challenging the judgment and order of reversal, dated 11.07.2013, passed by the learned Civil J udge (Sr. Div.), Morigaon, in Title Appeal No. 12/2013. [2] Plaintiffs instituted Title Suit No. 08/2000 in the Court of learned Civ il Judge (Jr. Divn.), Morigaon stating that the land measuring 2 Bigha 4 Katha 1 2 Lessa of Dag No. 213 of P.P. No. 7 described in ’Ka’ schedule to the plaint o riginally belonged to one Adatia Gaonburah, who died on 28.12.1969, leaving plai ntiffs as his legal heirs. It is further stated that the defendants were permitt ed to occupy the ’Kha’ schedule land within ’Ka’ schedule land as permissive occ upier. But on 25.03.1994, when the plaintiffs went to cut bamboo from the bamboo groove situated on ’Ga’ schedule land within ’Ka’ schedule of the plaint, the defendants raised objection and claimed title. Thereafter, the plaintiffs enquir ed into the matter and on 05.05.1998, they came to know that the defendants had created a forged gift deed, dated 23.03.1971, by impersonating the Adatia Gaonbu rah, the predecessor of the plaintiffs. [3] The plaintiffs, therefore, filed the title suit for canceling the gift d eed and also for declaring that the aforesaid gift deed dated 23.03.1971 was for ged. [4] The defendants appeared and submitted their written statement. According to them, one Sheikh Ladhi was the original owner of the land and after his deat h, the same was inherited by his son Alipur Sheikh, the predecessors of the defe ndants and as such, the defendants have been enjoying the land uninterruptedly b y exercise of their right of inheritance. But, subsequently, they came to know t hat Alipur Seikh had got mutation of the land in his name in place of the origin al owner and as such to avoid any dispute, they obtained a gift deed from the sa id Adatia Gaonburah, on 23.03.1971. It is the case of the defendants that they have been possessing the suit land all throughout and plaintiffs were never in p ossession of the same at any point of time. [5] After hearing the aforesaid pleadings of the parties, the learned trial Court framed as many as 9 (nine) issues and Issue No. 2 is on the point of limit ation. Both sides were heard at length. Plaintiffs examined 4 (four) witnesses and exhibited some documents. The defendants, in reply, examined 3 (three) witne sses and exhibited some documents. After perusal of the materials on record, the learned trial Court came to the findings that Adatia Sheikh was the owner and h e did not execute any gift deed in favour of the defendants. Accordingly, the su it was decreed in favour of the plaintiffs vide judgment and decree dated 03.05. 2003. [6] The defendants preferred Title Appeal No. 12/2003 against the said judgm ent of the learned trial Court. The learned Appellate Court, by judgment and ord er, dated 11.07.2003, allowed the appeal and set aside the trial Court’s order h olding that the suit of the plaintiffs is barred by limitation. [7] The learned first Appellate Court held that the plaintiffs’ came to know about the execution of gift deed on 05.05.1998, but the dates on the certified copy of the deed in question, was found to be interpolated. Moreover, from the e vidence of PW-1 it is clear that the plaintiffs were aware about the gift deed in question in the year 1990 itself and as such suit having been filed in the ye ar 2000, it was time barred Under Article 56 of the Indian Limitation Act. In a suit for declaring a document as forged, the bar of limitation is 3 (three) year s and it runs from the time when such document comes to knowledge. The learned f irst Appellate Court has held that the suit having been filed after 6 (six) year s, it was prima-facie time barred and accordingly, the suit was dismissed. It is this judgment, which the plaintiffs have challenged by way of second appeal. [8] As many as 3 (three) substantial questions of law were framed by this Court at the time of admission of this appeal. Today, when the hearing started, the le arned Counsel for both sides agreed that the real substantial question of law in volved in this case is as to whether the suit of the plaintiffs is barred by lim itation. As agreed to by both sides, the substantial questions of law, which wer e drawn at the time of admission of the appeal did not arise out of the material s of this case and as such, the following substantial question of law is framed: (cid:28)Whether the suit of the plaintiffs is barred by limitation in view of Article 5 6 of the Indian Limitation Act, 1963? (cid:29) [9] I have heard Md. M.H. Choudhury, learned Counsel for the appellants and Mr. P.K. Kalita, learned Counsel for the defendants. Mr. Choudhury submits that it is the specific case of the plaintiffs that on 05.05.1998, they have come to know about the gift deed for the first time. On 25.03.1994 the plaintiffs were r esisted by the defendants from entering into the ’Ga’ schedule land. On that day , the plaintiffs were not aware that the gift deed referred to above was in exis tence. Thereafter, the plaintiffs enquired into the matter on 05.05.1998 and the y got the certified copy of the gift deed wherefrom they came to know about the existence of the gift deed. Accordingly they filed a suit after 3 (three) years from such date and hence, suit is not barred by limitation.
Legal Reasoning
[10] Per contra, Mr. P.K. Kalita, learned Counsel for the defendants submits that from a bare perusal of the cross-examination of PW-1 it is seen that the pl aintiffs were very much aware about the gift deed in question in the year 1998 i tself. Mr. Kalita has drawn my attention to the relevant part of the cross-exami nation of the PW-1. The PW-1 (Nur Islam) stated as follows: ’ & & & & & & &.defendants are residing on the land for last 35-40 years. In th e year 1990-91 we approached the Sub-Deputy Collector for mutation and then we c ame to know that none of the defendants have been included in our land. At that time we realized that the defendants prepared a forged deed. We did not file sep arate proceedings for cancellation of the forged sale deed and for rejection of collusive mutation & & & &.. (cid:29) [11] While in paragraph 4 of the plaint the plaintiffs stated that they came to know about the gift deed on 05.05.1998 after getting certified copy thereof f rom the Sub-Registrar, Nagaon, on the contrary PW-1 (Nur Islam) disclosed that t hey were really aware about the gift deed 10 years ago in 1990 when they had app roached the Sub Deputy Collector, Nagaon for the purpose of mutation of their na mes. [12] The finding of the learned first appellate Court is that the appellants/ plaintiffs knew about the alleged forged gift deed dated 23.03.1971 in the year 1990. It is based on record and this is not a perverse one and in that view of the matter, I hold that the findings of the learned first appellate court that t he suit of the plaintiffs is barred by limitation in view of the provisions unde r Article 56 of the Indian Limitation Act, 1963 can not be interfered with and c onsequently the sole substantial question of law is decided in the affirmative a gainst the plaintiffs. Hence, this second appeal stands dismissed. [13] Send down the LCR immediately. No order as to cost.