Ujjal Das v. Purnima Das & Ors

Judgment

#1. This appeal has been filed against the judgment dated 16.06.2022 (Decree sealed and signed dated 04.07.2022) passed by the learned District Judge-I, Rajmahal in Civil Appeal No. 16 of 2010 reversing the judgment and decree dated 16.03.2010 (decree sealed and signed on

30.03.2010) passed by the learned Sub-ordinate Judge-III, Rajmahal, District Sahibganj in Title Suit No. 40 of 1993. 2. The substantial question of law has been framed vide order dated

18.12.2023, which is as under: - “(i) Whether the learned court of appeal below has failed to appreciate the Sale Deed No.3576 dated 24.02.1960 as ‘Bharnanama’ and cancelled the same after long lapse of limitation as envisaged under Article 59 of the Limitation Act, 1963, is sustainable in law? Arguments of the appellant 3. The learned senior counsel for the appellant has referred to the plaint and has submitted that the plaint was filed by Ujjal Das S/o Madhav Narayan Das against the defendant 1st party, namely, Pradeep Kumar Agrawal and defendant 2nd party were the persons from the extended family of Ujjal Das. 4. The plaintiff claimed that the suit property belonged to Late Lakhi Narayan Das great grand-father of the plaintiff and his sons succeeded the property in the year 1944 and came in possession of the same and as per the plaint, Late Nagesh Chandra Das resident of Calcutta had some 2 2025: JHHC: 22351 business relation with his late grand-father Satya Narayan Das. It was the further case of the plaintiff that to avoid tax liability Late Nagesh Chandra Das executed a fictitious sale-deed with incorrect plot number at Malda. It was his case that the suit property is situated at Rajmahal in Bihar and could not have been registered at Malda and that fictitious property at Malda was included so as to execute the sale deed at Malda. It was his further case that in spite of fictitious sale deed, the suit property remained in possession of the plaintiff’s father and grandfather as usual and Nagesh Chandra Das, as long as he was alive, never claimed the property from the plaintiff or their predecessor in interest. 5. It was the further case of the plaintiff that during the settlement operation, one Hari Shankar and Prem Shankar claimed the suit property and the uncle of the plaintiff, Shiv Narayan Das, resisted the claim but died in the meanwhile. It is the case of the plaintiff that the Settlement Officer found that the plaintiff and his father were in possession of the property. 6. It was further case of the plaintiff that Late Jagdish Narayan had some business jointly with Late grand-father of the plaintiff-Satya Narayan Das and Jagdish Narayan played a trick with Hari Shankar and got a sale deed No. 6147 of 1987 executed for the suit property inspite of knowing fully well that Hari Shankar and his late brother Gouri Shankar had no title and possession over the suit property and he wanted to dispossess the plaintiff from the suit property. A proceeding under Section 145 of Cr.P.C. was instituted and ultimately, an order was passed declaring the possession of Hari Shankar and others. It was the case of the plaintiff that the Settlement Officer had decided the title of the plaintiff in favour of his father and uncle, but the records of the Settlement Officer were managed to be removed from the office of the Settlement Officer which became untraceable. 7. In the meantime, the contesting defendant 1st party filed a petition for mutation before the Circle Office, Rajmahal, which was allowed, 3 2025: JHHC: 22351

against which an appeal was filed but the same could not be decided for want of records. Hari Shankar and others had also filed a suit before the Settlement Officer for declaration of their title and delivery of possession with respect to some portion of the suit property against one Nagesh Mandal which was numbered as Title Suit No. 23/1985 and it was stated in the plaint that the suit was still pending as the records of the settlement officer remained untraced. 8. The learned senior counsel submits that the cause of action for the suit arose when the order under Section 145 of Cr.P.C. was passed by the Executive Magistrate with respect to the suit property a year ago before filing the suit and further cause of action arose when the mutation order was passed by the Circle Officer on or about 08.09.1989. 9. The learned senior counsel has also referred to the relief as prayed for in the plaint and has submitted that the suit was filed for declaration that plaintiff, the father and uncle of the plaintiff i.e. defendant 2nd party were the rightful owner of the suit property and the defendant 1st party had not acquired any title by virtue of deed executed by Hari Shankar and others vide deed No. 6147 of 1987 executed at Calcutta. The learned senior counsel has also submitted that the title deed of the year 1987 was not specifically challenged in the suit, rather it was only prayed that the defendant 1st party had not acquired any title by virtue of the sale deed. 10. The learned senior counsel has submitted that although in the plaint, it has been averred that one fictitious deed was executed with incorrect plot number at Malda, but no details of that deed was disclosed in the plaint and when the written statement was filed, a reference was made to the sale deed dated 24.02.1960 executed by Madhu Malti Dasi for herself and as guardian of her minor sons and daughters along with adult sons, namely, Shiv Narayan Das, Madhav Narayan Das and Bani Dasi and the deed was executed after taking due permission from the District Judge at Malda under the provisions of Hindu Minority and Guardianship Act,

#1956. 4 2025: JHHC: 22351

#11. The learned senior counsel has referred to Exhibit-D/2, from the records received from the court concerned, and submitted that the permission was granted for the purpose of transfer of the property. He has also submitted that the reasons for grant of permission have also been mentioned in the order dated 21.09.1959 and the order was passed after due notice to all concerned. The learned senior counsel has submitted that at the time of grant of permission, three of the children of Madhu Malti Dasi were major, who had also joined while executing the sale deed, and they also never objected to any of the grounds mentioned in the petition seeking permission. The learned senior counsel has submitted that the District Judge at Malda had the jurisdiction to grant the permission in view of the fact that it was disclosed in the petition that some property was also available at Malda and therefore the Court had the jurisdiction to grant permission with respect to the other properties situated in other District and in the present case, the permission was sought for in connection with the property situated in the District of Rajmahal, in the then State of Bihar. The learned senior counsel has submitted that neither the persons who had executed the sale deed nor the children who were major at that point of time nor the children who acquired majority subsequently, have ever questioned/challenged the sale deed executed in the year 1960 and even the plaintiff of the present case did not challenge the sale deed of the year 1960 knowing fully well that the challenge to the same would be barred by limitation. The plaintiff also did not challenge the subsequent sale deed of the year 1987. 12. The learned senior counsel has submitted that there was no occasion for the learned trial court to enter into the legality and validity of the sale deed of the year 1960 and ultimately the learned 1st appellate court has held that the sale deed was void-ab-initio. The learned senior counsel has submitted that the fact that as to whether the sale deed was void-ab-initio or not was itself a mixed question of fact and law and in absence of any specific plea challenging the sale deed of the year 1960 and also in 5 2025: JHHC: 22351 absence of any challenge to the sale deed of the year 1987, no such relief could have been granted. The learned senior counsel submits that the entire case of the plaintiff was framed in such a manner so as to avoid the limitation prescribed under Section 59 of the Indian Limitation Act and ultimately when the sale deed of the year 1960 is set-aside, the provision of Section 59 of the Indian Limitation Act cannot be ignored. He submits that the impugned judgment setting aside the sale-deed of the year 1960 cannot be justified in the eyes of law and such relief was barred by limitation. 13. The learned senior counsel has relied upon the judgment passed by the Hon’ble Supreme Court reported in AIR 2010 SC 211 (Abdul Rahim & Others vs. Abdul Zabar & Others) para 19, to submit that 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 and the suit has to be filed within 3 years from the date of knowledge of the fact that the transaction, which according to the plaintiff was void or voidable, had taken place. A reference has been made to paragraph 19 of the judgement. 14. The learned counsel has also submitted that the sale deed of the year 1960 is a sale deed and the title Bharnanama will not decide the true nature of the sale deed. The permission was granted for transfer and transfer was done in terms of the sale deed by taking an amount of Rs. 7,000/- and satisfying the decree passed in favour of the purchaser of the property. Arguments of the respondents 15. Learned counsel for the respondents has submitted that the deed involved in this case of the year 1960 has been termed as Bharnanama- kewala which means a deed of fructuary mortgage. He has referred to the judgement passed by the Hon’ble Calcutta High Court reported in 1893 ILR 20 CAL. 609. He has also submitted that upon perusal of the deed the parties have been mentioned and termed as Grahita and Data and such 6 2025: JHHC: 22351 terms are not used in sale deed where the terms used are Lekhakari and Lekhadhari. The learned counsel has further submitted that it is mortgage deed and not a sale deed. He has further submitted that for enforcement of mortgage earlier, there was a limitation of 60 years which has now been reduced to 30 years and therefore the deed executed in the year 1960, which was subject matter of consideration in the Title Suit, could not have been executed. The learned counsel further submits that perusal of the deed of 1960 reveals that the same was executed by way of some kind of compromise in connection with decree passed in Money suit for an amount of Rs. 26,700/- sought to be settled for Rs. 7,000/- only, but nothing has been mentioned regarding taking any permission from the High Court of Calcutta under whose charge the property was in connection with the Money Suit. The learned counsel has submitted that the deed having been termed as Bharnanama, if the appellant claims that it is a sale deed, it was for them to prove that it is a sale deed and the onus was upon the appellant to prove that it is a sale deed. The learned counsel has also submitted that the deed of the year 1960 was executed after taking permission from the court at Malda in the state of West Bengal, but there was no property situated as Malda. However, during the course of argument, permission granted for execution of deed of 1960 has been placed which was granted with respect to Schedule-A property and the Schedule-A property included the property at Santhal Pargana and also the property at Malda. Even the deed of 1960 also referred to the property at Santhal Pargana and also the property at Malda. 16. The learned counsel has submitted that numerous reasons has been cited by the learned First Appellate Court to hold that the Bharnanama Kewala was void ab initio and he has also submitted that if a deed is void ab initio, there is no question of applicability of the Limitation Act as the same stands as nullity in the eyes of law. 7 2025: JHHC: 22351

#17. The learned counsel has relied upon the judgment passed by the Hon’ble Supreme Court reported in Prem Singh versus Birbal reported in (2006) 5 SCC 353. It is submitted that the point of limitation under Section 59 of the Limitation Act does not apply to the facts and circumstances of the case. Rejoinder of the appellant. 18. The learned senior counsel for the appellant in response has submitted that the law is well settled that the nature of the deed is to be ascertained upon its complete reading and the title of ‘Bharnanama’ will not decide the nature of the deed. The learned senior counsel has further submitted that the consideration amount of Rs. 7,000/- is reflected in the deed itself and therefore the same was not a mortgage deed but was a sale deed. 19. The learned counsel has submitted that the learned 1st Appellate Court while recording the findings has committed an error of record at internal page 19 that the major sons were not the party to the alleged document (deed of 1960) and they were adult and they could have disagreed. He has submitted that in the deed of 1960, the major sons had also joined to execute the deed along with the mother who was acting on behalf of the minor children. The learned counsel has submitted that at the stage of suit, none of the second set defendants had objected. Further argument of the parties on 28.07.2025 20. When the matter was taken up for dictation of the judgment on

28.07.2025, learned counsel for the contesting respondents has submitted that he wanted to cite two judgments on the provision of Order XXI Rule 2 of CPC which deals with the manner in which compromise can be entered into after passing of the decree and recorded by the executing court to discharge the liability arising out of a decree. He has referred to

05.10.1987/09.11.1987. 32. It was also stand of the defendant 1st party that Nagesh Chandra Agarwal died in the year 1980 and alleged claim put forward by Hari Shankar and Prem Shankar in the year 1979 was not correct. It was asserted that there was a Tanaza in respect of the suit land as per Khanapuri Tanaza Case No. 1, Mouza Rai Bazar, Thana No. 29, Rajmahal Camp and an order dated 27.08.1989 was passed holding that plot nos. 156, 158 and 179 were owned and possessed by Nagesh Chandra Agarwal and that the plaintiff and the defendant 2nd party had no manner of right, title and possession with respect to the aforesaid property. 33. A reference was also made to one Title Suit No. 33 of 1981, however, not much detail with regard to the said title suit was given 17 2025: JHHC: 22351 therein. A reference was also made to another Title Suit No. 23 of 1985 which was fought between Nogen Mandal and his associates with Nagesh Chandra Agarwal. It was asserted that the sale-deed dated 24.02.1960 was a true and honest transaction. It was also asserted that the defendant 2nd party were fully alive and conscious of the fact and that a dead claim was sought to be ventilated by the plaintiff and they did not file any suit in the case. It was also asserted that the description of the property was also vague as per the suit. Case of the defendant 2nd party 34. The defendant 2nd party had filed a separate written statement in which they had supported the case of the plaintiff. 35. The trial court learned framed following issues consideration: “I. Is the suit as framed maintainable? II. Has the plaintiff got any valid cause of action for the present suit? III. Is the suit barred by limitation, waiver, acquiescence and estoppel? IV. Is the suit bad for mis-joinder of necessary parties? V. Is the suit hit by section 34 of Specific Relief Act? VI. Has the court fee paid sufficient? VII. Whether the sale deed dt. 24.2.1960 executed by Madhu Mati Devi, for self and as a guardian of her minor sons and daughter alongwith adult son Shiv Narayan Das, Madhab Narayan Das, Bani Das is valid, legal & genuine document executed on permission and sanction to liquidate the decretal amount passed by Hon’ble High Court? VIII. Whether the defendant is a valid purchaser of the suit property for valuable consideration though registered sale deed dt. 12.6.1987? IX. Whether plaintiff is in possession of the suit land? 18 2025: JHHC: 22351 X. Whether the plaintiff has subsisting right, title, interest and possession over the suit land? XI. Whether the plaintiffs entitled to declaration of title and recovery of possession? XII. Whether the plaintiff is entitled to any of the relief whatsoever as claimed?”

#36. Considering the nature of the substantial question of law involved in the present case, issue nos. (ii), (iii), (vii), (viii) and (x) would be relevant. 37. The plaintiff had examined altogether 6 witnesses. P.W. 1 was the plaintiff himself. P.W. 2 was Nagen Mandal, P.W. 3 was Aghori Mandal, P.W. 4 was Md. Khalil, P.W. 5 was Birendra Agrawal and P.W. 6 was Shayam Sundra Saha. The plaintiff also filed numerous documents which were numbered from exhibit 1 series to exhibit 6 and 6/a. 38. So far as the defendant 2nd set are concerned, they also examined one witness namely, Ganga Narayan Das, who was defendant no. 3 of defendant 2nd party. Defendant 2nd party had produced one document which was post card dated 06.04.1954 and marked exhibit-A. 39. So far as the contesting defendant i.e., defendant no. 1- defendant 1st party is concerned, he examined altogether six witnesses. D.W. 5 was the defendant no.1 himself. D.W. 1 was Md. Sabur, D.W. 2 was Abhay Chand Choudhary, D.W. 3 was Sanjeev Kr. Pandit, D.W. 4 was Amar Nath Mandal and D.W. 6 was Narad Chand Sah. They also produced numerous documents right from exhibit-A series to Exhibit-F series and amongst them, exhibit B was registered sale-deed no. 3576 dated

24.02.1960 which is a bone of contention in the present case. Exhibit-B/1 was the certified copy of sale-deed no. 6147 dated 26.03.1987 executed by Hari Shankar Agarwal and others in favour of Pradeep Kumar Agarwal, Exhibit -C series was the rent receipts, Exhibit-D was the certified copy of the order dated 20.02.1996 of Title Suit No. 23 of 1985, Exhibit-D/1 was the certified copy of the order dated 23.12.1999 passed in Execution Case 19 2025: JHHC: 22351 No. 1 of 98/Title Suit No. 22 of 1985, Exhibit- D/2 was the certified copy of the order dated 21.09.1959 passed in Miscellaneous Case No. 107 of 1959, Exhibit- D/3 was certified copy of the order passed by Hon’ble Patna High Court in Criminal Revision No. 206 of 1976, Exhibit- D/4 was the certified copy of the order passed by Assistant Settlement Officer, Sahibganj dated 27.08.1979, Exhibit- D/5 was certified copy of the order dated 09.11.1987 passed by executive magistrate, Sahibganj in T.R. Case No. 3 of 1987, Exhibit D/6 was certified copy of the order passed in mutation case no. 214/1/89-90, Exhibit- D/7 was certified copy related to mutation appeal, Exhibit D/8 was certified copy of decree passed in Title Suit No. 23 of 1985 and other exhibits including exhibit- E which was certified copy of register no. II of Jamabandi No. 16 and exhibit F to F/2 were certified copies of purcha. The aforesaid documents were produced and relied upon by the contesting defendant i.e. defendant no. 1. 40. Issue nos. VII , VIII and X were taken up together and the learned trial court recorded the admitted fact of both the parties to the extent that suit land was originally recorded in the name of Lakhi Narayan Das. It was also an admitted fact that Satya Narayan Das had inherited the property from Lakhi Narayan Das after his death in the year 1944. It was the specific case of the plaintiff that the plaintiff and the defendant 2nd party were in possession of the suit property, but this fact was contested by the defendant no. 1 i.e. the only contesting defendant- the defendant 1st party. The learned trial court recorded with respect to exhibit-B that it was a sale-deed executed by Shiv Narayan Das, Madhav Narayan Das, Smt. Bani Das, Ganga Narayan Das, Sri Narayan Das and Smt. Ambika Das who were minors, by their mother Smt. Madhu Malti Dasi. 41. The learned trial court referred to recital in exhibit-B (registered sale-deed no. 3576 dated 24.02.1960 which is a bone of contention in the present case). The learned trial court recorded that it appeared from the recital in exhibit-B that Civil Case No. 1361 of 1955 was filed by Nagesh 20 2025: JHHC: 22351 Chandra Agarwal before the High Court of Calcutta in Original side and money decree was passed for an amount of Rs. 26,700/- against Satya Narayan Das who was father of the executants of the deed. It was further written in the deed that after passing of the decree, Satya Narayan Das had died and if the property charged in the decree was auctioned in the execution of the decree, then the maintenance of the executant of the exhibit-B would be impossible. Therefore, the executant of the exhibit-B had requested Nagesh Chandra Agarwal, who left his claim, except for an amount of Rs. 7000/-, for which the properties of the deed -exhibit-B were transferred in the name of Nagesh Chandra Agarwal. It was also recorded in the deed itself that for the execution of the said deed, Madhu Malti Dasi got permission from District Judge, Malda for their minor children in case no. 107 of 1995 under the Act of 1956 which was granted on 21.09.1959 on behalf of the minors and it was written in the deed that the money decree was fully satisfied by adjustment of the consideration amount of Rs. 7,000/- in the deed. 42. The learned trial court recorded that the deed was executed in execution of money decree passed by Hon’ble Calcutta High Court in favour of Nagesh Chandra Agarwal. The learned trial court also referred to exhibit- B/1 which was the certified copy of the sale-deed dated

26.03.1987 which was executed by Hari Shankar Agarwal, son of Late Nagesh Chandra Agarwal and others in favour of Pradeep Kumar Agarwal, the defendant no. 1- the defendant 1st party, who claimed to be in possession of the property. 43. The learned trial court recorded that it was very surprising that the facts which were mentioned in the sale-deed of the year 1960 (exhibit-B) were not pleaded by the plaintiff in the plaint nor mentioned in the deposition. The learned trial court, after considering all the materials on record, held in paragraph 22 as follows: “22. It appears from Ext. D/2, Ext. D/2-a that all the properties left by late Satya Narayan Agrawal was charged 21 2025: JHHC: 22351 for satisfaction of the decretal amount, on installment of decree dt. 14.2.55 passed in suit no. 136/55. The judgment debtor Satya Narayan Agrawal died on 13.12.1957 at Malda leaving behind his widow four sons and two daughters. At that time Sri Narayan Das- Ganga Narayan Das and Ambika Das were minors. It also appears from record that due to acute disresss and death of Satya Narayan, no money could be paid to the Nagesh Chand Agrawal and the whole decretal amount was due for payment as per terms of the decree. Decree holder had right to execute his decree through court and in that case all the properties left by Satya Narayan Agrawal would be sold out in execution of the decree. It also appears from above exhibits that decree holder, on request by the family members of late Satya Narayan Agrawal agreed to discharge and satisfy in full the decree on receiving the properties mentioned in schedule-A of his petition and was ready to forego all his other claims. The value of the schedule-A property was Rs. 7000/- and for the interest and benefit of the minors and to save their pucca building in which they were leaving at that time alongwith other properties given in schedule-B, it was necessary to deliver the schedule-A properties to decree holder. Therefore, in the interest of minors District Judge, Malda allowed the petition on 21.09.1959. He mentioned in his order that “Heard ld. Lawyer for the petitioner. Seen the certified copy of the decree of the Hon’ble Court in suit no. 136/55. In the order, I find a decree for Rs. 26,700/- was passed against father of the minors (since deceased) and the properties mentioned in in schedule-A and other properties have been charged in favour of Nagesh Chand Agrawala till recovery of his dues. It has been submitted before me that decree holder Nagesh Chandra Agrawala has consented to have the decree satisfied, if the properties mentioned in the schedule-A, be transferred to him. In the circumstances I am of the opinion that the transfer will be in the interest of minors, as some of the charged propertied will be released by transferring schedule-A.” The Hon’ble District Judge, Malda has very clearly mentioned in his order that out of charged properties relaasing for transfer schedule-A properties will be in the interest of minors, as some properties will be left for minors by the decree holder 22 2025: JHHC: 22351 and finally the Hon’ble District Judge ordered that “ I therefore accord permission to the guardian on behalf of minors to transfer the property mentioned in schedule-A to the petitioner to Sri Nagesh Chandra Agrawala for satisfaction of his decretal dues.” I think, therefore, in the light of above order of the District Judge- Malda, the sale deed no. 3576 (Ext.-B) dt. 24.2.1960 was executed. As I have earlier discussed that the contents of this deed also corroborates the fact that the transfer was absolute transfer and it was not mortgage by depositing deed of land. As regard the heading of this deed is concerned which has been mentioned as Bharnanama kewala. This Bharnanama kewala has been mentioned twice in this deed. It is not the pleadings of the plaintiff as argued on behalf of plaintiff, that the Bharnanama Kewala is for repayment of money and thereafter, release of property in favour of executants. for using word the deed-writer The Bharnanama was satisfaction of entire decretal amount, which was passed in case no. 1361/55 by Hon’ble Cancutta High Court for amount of Rs. 26,700/-. As the decretal amount was Rs. 26,700/- and the amount of this deed was only Rs. 7000/-. Therefore, to show that the entire decretal amount Rs. 26,700/- has been satisfied for Rs. 7000/- in this deed, ‘Bharnanama’ kewala word has been used. This fact has also been mentioned in the recital of this deed. intention of The ld. Lawyer for the plaintiff has mentioned an authority of Hon’ble Apex Court mentioned in 2005 (4) C.C.C. 104(SC) and submitted that the Hon’ble Court has treated the sale deed as a deed of agreement to reconvey properties but these facts does not relate with the facts of this case. Therefore, it is not helpful for the plaintiff. It would not be out of place to mention here is that at the time of execution of this deed, Shiv Narayan Das, Madhav Narayan Das, Bani Das were major and they have been made defendants in this case. Plaintiff has also sought relief for declaration of their right, title. But these defendants themselves do not appear before the Court to say & corroborate the story of the plaintiff, the reason best known to them. “23. …………………………………………………… 23 2025: JHHC: 22351 From the above discussion I come to the conclusion that the heirs of Satya Narayan Agrawal had executed a sale deed no. 3576 dt. 24.2.1960 in favour of Nagesh Chandra Agrawal, and who got absolute right, title, interest and possession by this deed of sale. There is no dispute that Nagesh Chandra Agrawal died on 30th September, 1980 (Ext.-B/1). The heirs of Nagesh Chandra Agrawal executed a sale deed on 26.3.1987 in favour of Pradeep Kumar Agrawal contesting defendant for a consideration of Rs. 36,000/- the area 21 bigha 1 katha 14 dhur of Dag 59, 60, 53/288 of khata no. 62 of or Rai Bazar P.S., Rajmahal District Sahibganj (Bihar) bounded by north public road, East village, south-land occupied Jetha Tulu and village road and west village. In this regard, the case of plaintiff as per para-12 of the plaint is that late Jagdish Narayan have some business jointly with late grandfather of the plaintiff and he played a trick with Hari Shankar and got a sale deed no. 6147 of 1987 executed for the suit property knowing full well that Hari Shankar and his late brother Gauri Shankar had no title or possession over the suit property. But it has not been brought on record by the plaintiff that what trick was played by Jagdish Narayan in execution sale deed no. 6147 of 1987. …………………………………………………………. But the claim of the defendant is only for an area 21 bigha 1 katha 14 dhur under jamabandi no. 62 of Mauza Rai Bazar. It means contesting defendants have no claim over an area 1 bigha 12 dhurs. Plaintiff has not mentioned the exact jamabandi no. and area of each plot but as defendant has no claim over this land. Therefore, the plaintiff is the rightful owner and title holder of 1 bigha 12 dhurs of land of plot no. 60, 61 and 65.” “24………………………………………………………………. But it is a fact that total area 21 bigha 1 katha 14 dhurs under jamabandi no. 62 of Mauza Rai Bazar was transferred to the Nagesh Chandra Agrawal by the heirs of Satya Narayan Agrawal. Ext-5/a and Ext. 5/b 24 2025: JHHC: 22351 corroborate that jamabandi no. 62 & total area 21 bigha 1 katha 14 dhur containing plot nos. 59, 63, -63/268 and plaintiff has also sought declaration of his right, title for the said plots. Now there is no doubt from the above discussion that contesting defendant has got valid right, title & interest over the suit land.”

#44. The learned trial court considered the nature of the document (exhibit-B) and held that the transfer was absolute transfer and it was not mortgage deed. With respect of the heading of ‘Bharnanama Kewala’, the learned trial court considered the recitals of exhibit B and hed that it was a sale deed. The learned court recorded that the intention of the deed writer for using word Bharnanama was satisfaction of the entire decretal amount which was passed in case no. 1361 of 1955 by the Hon’ble Calcutta High Court for an amount of Rs. 26,700/- and as the decretal amount was Rs. 26,700/- and the amount of deed was only Rs.7000/-, therefore to show that the entire decretal amount of Rs. 26,700/- has been satisfied for Rs. 7000/- in the said deed, Bharnanama word was used. These aspects of the matter were drawn by the learned trial court from the recital of the deed (exhibit-B) itself. 45. The learned trial court also recorded that at the time of execution of the deed, Shiv Narayan Das, Madhav Narayan Das and Bani Das were major and they were made defendants in the case. Plaintiff had also sought relief for declaration of his right and title, but those defendants themselves did not appear before the court to say or corroborate the story of the plaintiff for the reasons best known to them. The learned trial court reached at the conclusion in paragraph 23 of its judgment that from the discussions made, it came to the conclusion that the heirs of Satya Narayan Agrawal had executed sale-deed no. 3575 dated 24.02.1960 in favour of Nagesh Chandra Agarwal who got the absolute right, title, interest and possession over the property. The learned court also recorded that there was no dispute that Nagesh Chandra Agarwal died on

30.09.1980 and heirs of Nagesh Chandra Agarwal executed sale-deed on 25 2025: JHHC: 22351

26.03.1987 in favour of Pradeep Kumar Agarwal – the contesting defendant 1st party for a consideration amount of Rs. 36000/- with respect to the major portion of the suit property to the extent of 21 Bigha 1 Katha and 14 Dhurs with the boundaries mentioned therein. Learned trial court ultimately held in paragraph 27 as follows: “27. From the above discussion, I come to the conclusion that the sale deed dt. 24.2.1960 executed by Madhu Malti Devi for self and as guardian of her minor sons and daughter alongwith the adult Shiv Narayan Das, Madhav Narayan Das, Bani Das is valid legal and genuine document executed on the permission and sanction to liquidate the decretal amount passed by the Hon’ble High Court and contesting defendant is a valid purchaser of only an area 21 bigha 1 khatha 14 dhur, which he purchased for valuable consideration through registered sale deed dt. 12.6.1967 Plaintiff is rightful owner of rest area 1 bigha 12 dhurs of plot no. 60, 61 and 65 of Mauza Rai Bazar. Hence, therefore, these issues are decided accordingly.”

#46. With respect to possession, while deciding issue no. (IX), the learned trial court recorded that nothing was brought on behalf of the plaintiff to support his possession over the suit property. The learned trial court ultimately recorded that the plaintiff had failed to prove his possession over the suit land but the contesting defendant had no claim over plot no. 60, 61 and 65 and there was no dispute with respect to possession of the plaintiff over those plots. The plaintiff was held in possession over plot nos. 60, 61 and 65. 47. 48. The learned trial court decided issue no. II in paragraph 31 of its Issue Nos. III, IV, V and VI were not pressed. judgment and held as under: - “31. Plaintiff has stated in para-27 of his plaint that cause of action of this suit arose about a year ago, when order under section 145 Cr.P.C. was passed by the executive magistrate with respect to the suit property and also arose by the order made by the C.O., Rajmahal on 08.09.1989 in favour of defendant first party. The present suit was filed in the year 26 2025: JHHC: 22351

#1993. Plaintiff has not filed the certified copy of order passed by executive magistrate in respect to suit land under section 145 Cr.P.C. The onus was on the plaintiff to prove his cause of action but as stated above, plaintiff has not filed the copy of order and he has not mentioned the date of order. Defendant has filed certified copy of order passed by Sri. R. Prasad Executive Magistrate Sahibganj in T.R . Case No. 03/87 on 09.11.87. The order shows that the plaintiff Ujjal Das was not party in that case, rather Shiv Narayan Das who was the party and even though Shive Narayan has not preferred any suit before civil court. Cause of action is nothing to a bundle of facts but plaintiff has failed to produce any facts as regards cause of action. Therefore, this issue is decided accordingly.”

#49. The learned trial court decided the issue nos. I, XI and XII in paragraph 32 of its judgment and ultimately decreed the suit on contest and held as under: “32. Going through the case record and on the basis of discussion of entire gamut of evidence on the record, I find and hold that that plaintiff has succeeded to prove his right, title and possession over plot no. 60, 61 and 65 of Mauza Rai Bazar measuring an area 1 bigha 12 dhurs, but plaintiff has failed to prove his right, title and possession over plot no. 59, 63, 63/268 of Mauza Rai Bazar area 21 bigha 1 Khatha 14 dhur. Hence, on the basis of findings of mine as stated above. I find and hold that instant suit as framed is maintainable partly. Hence, ORDERED Let the instant suit be decreed on contest but in part, plaintiff and defendant second set are declared rightful owner, title holder and possessor of plot no. 60, 61, 65 of Mauza Rai Bazar. Plaintiff is not entitled to get any relief in respect to other plots of the suit land. However in the facts and the circumstances of the case, there would be no order as to costs.”

#50. The sole plaintiff preferred appeal and the defendants 2nd party remained as respondents 2nd party. Thus, the respondents 2nd party did not join the plaintiff as appellants in the 1st appeal. 27

#51. The learned 1st appellate court framed the points of determination as under: 2025: JHHC: 22351 “I. Whether there was any legal debt on the part of grand father of the plaintiff and Nagesh Chandra Agarwal when money suit bearing no. 1351-1955 was decided by Hon’ble High Court against his grand father for Rs. 26, 700/-.? II. Whether the court at Malda had jurisdiction to accord permission to the grand mother of the plaintiff to execute sale deed in favour of Nagesh Chandra Agarwal in the 1950, whether the sale deed executed by grand mother was as per law, whether she had no right to do so as per the law which existed for the rights of female in the year 1957? III. Whether the sale deed executed by grand mother of the plaintiff Ext. B is a Bharnanama deed/ mortgage deed or a sale deed what is true in impart of this document in the eyes of law ?. IV. Whether the respondent no. 1 has proved the mutation of the land in favour of Nagesh Chandra Agarwal by virtue of Bhanarnama of deed executed by the grand mother of the plaintiff ? V. Whether the Nagesh Chandra Agarwal had sought any permission of the Hon’ble High Court to compromise for Rs. 7000/- when the settlement was duly filed by him in the Hon’ble High Court which has been filed by the defendant in this appeal. The terms of settlement were dated 13.07.1957 and the decree also which has been filed by the ancestor of defendant no. 1/respondent no.1 is for Rs. 26,700/- of his claim and cost. The defendant no. 1 in the recital of sale deed executed by Harishanker Agarwal and others they have not where stated that they have taken permission from Hon’ble Calcutta High court before settling the money decree of Rs. 26,700/- for an amount of Rs. 7000/- only. ? VI. Whether the defendant no. 1 has proved the transaction of Rs. 36,000/- for sale of the land during trial be paid to Doctor Hari Shanker Agarwal and others whether doctor Haris shanaker Agarwal had right title and interest to dispose of the law which was given to his father as per Bharnama deed of 1960 ?. VII. Whether the appreciation of issue No. 7, 8, and 9 were correctly decided by the Ld. Trial court based evidence on the lead by the parties and whether the onus of proof was 28 2025: JHHC: 22351 rightly held to be on the plaintiff to prove that it was Bharnama documents?. VIII. Whether the judgment of Trial court is vitiated having legal infirmities as submitted by the appellants in the appeal the same is liable to be set aside in this appeal ?. IX. Whether the appellant claimed to relief in this appeal ?”

#52. While deciding point of determination no. I, the learned 1st appellate court held that when the evidence of the plaintiff is seen, the plaintiff had nowhere given the suggestion that the promissory note was validly executed by Satya Narayan Das in favour of Nagesh Chandra Agarwal. They were staying at two different places, so business transaction before the year 1952 was not proved in the trial so the basic fundamental of Bharnanama/mortgage deed/sale-deed was not proved by the defendant no. 1, but the decree had been passed in favour of Nagesh Chandra Agarwal. The learned 1st appellate court decided the point of determination no. I in favour of the plaintiff. 53. While deciding the point of determination no. II, the learned 1st appellate court held that the permission to execute the sale-deed was filed by the grandmother when she had major sons available on that day and consequently, observed that the right of the grandmother to execute the sale-deed was questionable during the period from 1929-30 till 1956 and that the female had very limited right to ancestral properties as legal heirs. The learned 1st appellate court held that the application filed before the Court of District Judge, Malda was filed at the instance of Nagesh Chandra Agarwal by involving property of Malda district. The defendant no. 1 had not filed any document regarding the land in Malda district and therefore, the right of the grandmother to execute the sale-deed was highly questionable as in the year 1957, the right of the female was very limited as legal heirs. The learned 1st appellate court held that the application filed before the District Judge, Malda was without jurisdiction and should have been filed before the District Judge at Santhal Pargana. The learned 29 2025: JHHC: 22351 1st appellate court held that the right of grandmother to execute the document of the year 1960 - Bharnanama deed (exhibit-B) was highly questionable when she had only limited right to enjoy the property without alienation and consequently, the point of determination no. II was also decided in favour of the plaintiff and against the respondent no. 1. 54. With respect to point of determination no. IV, the learned 1st appellate court held that there was no mutation in favour of Nagesh Chandra Agarwal and no Khatiyan was filed by defendant no. 1 to prove that Bharnanama land of sub division Rajmahal was ever mutated in the name of Nagesh Chandra Agarwal, so the point of determination no. IV was also decided in favour of the plaintiff and against the defendant no. 1. 55. So far as the point of determination no. V is concerned, the learned 1st appellate court held that defendant no. 1 did not seek any permission from Calcutta High Court when the properties were under charge of Hon’ble High Court before entering into compromise by virtue of earlier settlement with grandfather of the plaintiff. It was also held that the recital of the sale-deed executed by Hari Shankar Agarwal and others does not mention that they had taken permission from Hon’ble Calcutta High Court before settling the money decree of Rs. 26,700/- for an amount of Rs. 7000/- only. The Court also recorded that defendant no. 1 had filed agreement and decree of Hon’ble High Court of Calcutta but nowhere filed any terms of permission petition from the Hon’ble High Court of Calcutta for amount of settlement. It was also mentioned that the decree of the amount was Rs. 26,700/- for an amount of Rs. 7000/- in Bharnanama deed has everywhere mentioned that there was a decree of Rs. 26,700/- from Hon’ble High Court of Calcutta but nowhere it was stated that the compromise to settle for even less than 1/3rd of the decretal amount was ever put before the Hon’ble High Court of Calcutta before execution of Bharnanama deed was made by the grandmother of the plaintiff and Nagesh Chandra Agarwal. 30 2025: JHHC: 22351

#56. The learned 1st appellate court expressed surprise that although the money decree was passed by the Hon’ble High Court of Calcutta and Bharnanama deed was executed , but the High court should have been informed and permission should have been taken to settle the decretal amount for less than 1/3rd of the decretal amount before Bharnanama deed (exhibit-B) could be executed. The learned 1st appellate court ultimately decided the point of determination no. V against the defendant no. 1 and in favour of the plaintiff primarily on the ground that no permission was taken from Hon’ble High Court of Calcutta for the purposes of entering into compromise in connection with the decree. 57. With respect to point of determination no. VI, the learned 1st appellate court held that Bharnanama deed (exhibit-B) was executed for Rs. 7000/- in the year 1960 and the sale-deed dated 26.03.1987 was executed 27 years later for an amount of Rs. 36000/- which was very less as compared to the consideration mentioned in the Bharnanama deed (exhibit-B). It was observed that the sale-deed which was based on Bharnanama deed (exhibit-B) was never mutated in favour of Nagesh Chandra Agarwal and the land was sold by the defendant no. 1 to Pradeep Kumar Agarwal without any legal right. The point of determination no. VI was decided in favour of the plaintiff and against the defendant no.

#1. 58. So far as the point of determination no. III and VII are concerned, they were taken up together by the learned 1st appellate court and the learned Court considered the materials and case of the respective parties and observed that the onus which was put by the learned trial court upon the plaintiff to prove that the document was not a sale-deed, but was Bharnanama deed only, such onus was wrongly put to the plaintiff. 59. The learned 1st appellate court ultimately held that seeking of permission from District Judge, Malda was dealt with while determining the point of determination no. II as the sale-deed/ Bharnanama deed dated

24.02.1960 was executed by the grandmother who had only limited right 31 2025: JHHC: 22351 to use the property as long as she was alive and that too, for only limited portion of land which would have come in her share when the partition would have been made between sons. The learned 1st appellate court held that by no stretch of imagination, it could be presumed that Madhu Malti Dasi would have received the entire share of the land which was held by her husband, her father-in-law and grandfather in law, as property were ancestral property in the hands of ancestors of the plaintiff . It was held that the alleged deed dated 24.02.1960 was executed by Madhu Malti Dasi without any right and title available to her under law for family at the time of execution of the deed. 60. The learned 1st appellate court also recorded that the major sons were not party to the alleged document, Bharnanama deed (exhibit-B) . They were adult and they could have agreed with Nagesh Chandra Agarwal and there was no need for them to agree in the execution of the deed of the year 1960. The learned 1st appellate court ultimately held that the alleged document of the year 1960 [Bharnanama deed (exhibit-B)] was executed by grandmother of the plaintiff without any right in the eyes of law and when the deed of 1960 was invalid, void ab initio then no right has passed to Nagesh Chandra Agarwal by virtue of subsequent sale deed. The point of determination nos. III and VII were decided in favour of the plaintiffs and against the defendant no. 1. 61. So far as point of determination no. VIII and IX are concerned, the learned 1st appellate court observed that in absence of pleading from the plaintiff, how the learned trial court had ventured out to uphold deed of 1960 Bharnanama as sale-deed which was outside the pleading of the plaintiff as per the judgment of the learned trial court. The learned 1st appellate court held that the onus of proof was wrongly taken up by the learned trial court. It was held that the findings of the learned trial court were vitiated on account of surmises and conjectures which can never be upheld in the eyes of law and that the case of the plaintiff should be decided on its strength and weakness and not on the strength and 32 2025: JHHC: 22351 weakness of defendant no. 1. The point of determination no. VIII and IX were also decided in favour of the plaintiff and against the defendant no. 1. 62. This Court finds that all the points of determination were decided in favour of the plaintiff, who was the appellant before the learned 1st appellate court and the judgment and decree passed in the original suit being Title Suit No. 40 of 1993 dated 16.03.2010 and the subsequent decree dated 30.03.2010 were set-aside. Findings of this Court 63. It is an undisputed fact on record that the suit property belonged to Lakhi Narayan Das great-grandfather of the plaintiff and his son Satya Narayan Das grandfather and sons of Satya Narayan Das succeeded the suit property in the year 1944. It is further not in dispute that a money decree of Rs. 26,700/- was passed in Money Suit No. 136 of 1955 by the Hon’ble Calcutta High Court in favour of one Nagesh Chandra Agrawal and the properties which were in possession of Satya Narayan Das and his family members were attached and, in the meantime, Satya Narayan Das expired. 64. It has been asserted in the plaint in paragraph 5 that to avoid tax liabilities late grandfather of the plaintiff prevailed upon by Nagesh Chandra Agrawal of Calcutta to execute a fictitious deed wherein the property situated at Rajmahal and fictitious property at Malda were included although no such property existed in Malda. The fictitious deed was due to a collusive money suit filed by Late Nagesh Chandra Agrawal at Calcutta. 65. During the course of argument and from perusal of the records of this case, it is not in dispute that this statement in paragraph 5 of the plaint was referable to the registered deed dated 24.02.1960 (Exhibit-B). No relief was prayed for in the suit with respect to Exhibit-B. Rather, the plaintiff had made a prayer with respect to the subsequent title deed 33 2025: JHHC: 22351 executed by Hari Shankar and others vide registered deed No. 6147/1987 which were registered at Calcutta by asserting that the defendant 1st party had acquired no title by virtue of such deed. The perusal of the plaint reflects that no further or other allegation was made in connection with the aforesaid deed dated 24.02.1960 (Exhibit-B) and the plaint also does not disclose as to when and how the plaintiff came to know about the aforesaid deed which was alleged to be a fictitious deed of the year 1960 (exhibit-B) . The plaintiff claimed that they/their ancestors remained in possession of the suit property throughout and at no point of time, the possession arising out of the said fictitious deed or subsequent deed was handed over to Nagesh Chandra Agrawal and the plaintiff sought confirmation of possession over the suit property. However, the learned trial court had framed a specific issue being Issue No. VII with regard to the aforesaid sale deed dated 24.02.1960 (Exhibit-B). 66. This Court while framing the substantial question of law has touched upon both the points; firstly, regarding the interpretation of the sale deed No. 3576 dated 24.02.1960 (Exhibit-B) and secondly, with respect to the point of limitation under Article 59 of the Limitation Act,

#1963. The law is well-settled that the point of limitation has to be considered by the Court irrespective of whether specific plea to that effect is raised by one or the other party. 67. On the one hand, the learned counsel for the appellant has submitted that the challenge to the deed dated 24.02.1960 (Exhibit-B) was barred by limitation and even in case of fraud and similar allegations, the date of knowledge becomes important and fraud is required to be proved and therefore Article 59 of the Limitation Act comes into play. For this, the learned counsel for the appellant has relied upon the judgment passed by the Hon’ble Supreme Court in the case of Abdul Rahim (supra) which in turn had relied upon the judgment passed by the Hon’ble Supreme Court reported in (1996) 7 SCC 767 (Mohd. Noorul Hoda v. Bibi Raifunnisa). 34 2025: JHHC: 22351 On the other hand, the argument of the respondent-plaintiff is that once the deed is void-ab-initio, the point of limitation has no role to play and it is a nullity right from inception and void deeds can be avoided without specifically challenging the same. For this, the learned counsel for the respondent-plaintiff has relied upon the judgment passed by the Hon’ble Supreme Court in the case of Prem Singh (supra). 68. Both the parties have made extensive arguments on the point as to whether Exhibit-B was a Bharannama or it was a sale deed. It is certainly not in dispute that the deed was termed as “Bharannama” and the vendor was termed as “data” and vendee was terms as “grahita” and the term “lekhakari” and “lekhadhari” has not been used in the deed. 69. Further arguments have also been advanced with regard to legality and validity of the deed of 1960 (exhibit-B) that the same could not have been executed at Calcutta and no permission could have been granted by the District Court at Malda and it is the specific case of the plaintiff that such deed could not have been executed in satisfaction of a money decree in which the property was charged . 70. This court is of the view that the Exhibit-B cannot be seen in isolation in view of the fact that it is backed by a permission granted by the District Court at Malda in the State of West Bengal under the provisions of Hindu Minority and Guardianship Act and the permission to transfer was granted vide order dated 21.09.1959. The permission so granted has been brought on record vide Exhibit D-2, which is quoted as under: - “……………………………………… In the circumstances, I am of opinion that the transfer will be to the interest of the minors as some of the charged properties will be released by transferring Sc. A. I therefore accord permission to the guardian on behalf of the minors to transfer the property mentioned in Sch. A to the petition to Sri Nagesh Chandra Agarwala for satisfaction of his decretal dues.” 35 2025: JHHC: 22351

#71. The permission so granted reveals that the application was filed by the mother on behalf of two minor children and one daughter with respect to Schedule-A properties. The application for permission has been also exhibited before the court marked as Exhibit D-2A which reveals that three children, namely, Ganga Narayan Das, Shree Narayan Das and Ambika Das were minor children and the mother being the natural guardian was seeking permission to dispose of the property and she was shown as wife of Late Satya Narayan Das. The application for permission reveals that all disclosures were made in connection with money suit decided at Calcutta and that the property was attached and also that the consideration amount was Rs. 7,000/- and it was in connection with decree passed in Money Suit. The Schedule-A property to the application was in two parts. Schedule-A(I) related to the property at Rajmahal in the district of Dumka falling under the then State of Bihar and Schedule-A(II) related to the property at Malda which was falling under the State of West Bengal. The Schedule-A Property to the application is quoted as under: - Schedule ‘A’ I. All the price or parcel of garden land containing an area of 21 bighas 1 cotta and 14 dhils situated at Raibazar no. 299, touzi no. 2721 khatian no. 62 dag no. 59, 60 and 53/28 Pargana Kakjoe, thana and Sub-Registrary Rajmahal, Dist. Rioat Registraton office Dumka, in the dist riot of Santhal parganas, in respect of which land on annual rent of Rs. 17/- is payable to the land ladies, Satyabhma Dasee and Sashibala Dasee and which land is recorded in the name of Lakhi Narayan Das, father of the defendant. II. All that piece or parcel of land containing an area of 22 bighas 5 cottas situated at mouza Paschim Narayan Tiuzi no. 242, khatian no. 175, Dag No. 1044, 1045, 1046, 1047, 1048, 1049, 1056, 1055, 1054, 1053, 1052, 1051 Revenue survey no. 5J.L. No. 21, thana Monikchak, Sub Registry Ratua, in the district of Malda, in respect of which land an annual rent of Rs. 17/- is payable to the Collector of Malda.

#72. The Exhibit-B reveals that the deed was executed by all the legal heirs and successors of Satya Narayan Das and Madhumati Devi wife of 36 2025: JHHC: 22351 Late Satya Narayan Das was representing the minor children and, in the deed, (exhibit-B) the major children had joined in the execution. 73. In this background and upon perusal of the Bharnanama deed (exhibit-B), this Court is of the considered view that the finding of 74. The learned 1st appellate court questioned the permission of the court granted to Madhumati Devi wife of Late Satya Narayan Das to execute the Bharnanama deed of the year 1960 (exhibit-B) when she had major sons available on that day and observed that the right to execute exhibit- B was itself questionable and that a female had very limited right to property during the period from 1929-30 till 1956. It was this finding which became one of the reasons to hold that the deed (exhibit-B) was void-ab-initio. However, the records of the case as pointed out by the learned counsel for the parties and referred to during the course of arguments and full text of these documents have been read during the course of argument reveal that the permission was granted to the mother being the natural guardian of minor children only and the sale deed was executed by mother on behalf of the minor children and on behalf of herself and so far as the major children are concerned, they joined in their individual capacity at the time of execution of the deed (exhibit- B) . In such circumstances, the finding of the learned 1st appellate court with respect to the competence of the mother to execute the deed is perverse and not in accordance with law and not based on correct appreciation of the recitals of the deed (exhibit- B) which was backed by due permission to sell by the competent court at Malda. 75. This Court also finds that so far as the nature of the deed is concerned, admittedly the same has been termed as “Bharannama” and Rs. 7,000/- has been specifically referred to as the consideration amount with respect to the property. It has also been recorded that the deed (exhibit-B) was in satisfaction of the money decree in the suit in which decree was passed to the extent of Rs. 26,700/- and that the decree was fully satisfied by virtue of execution of the deed (exhibit- B). The deed 37 2025: JHHC: 22351 (exhibit- B) also revealed that it was essentially a sale deed for consideration. The sale deed (exhibit- B) was required to be considered by the learned court on the face of the recitals made therein and mere title of the deed showing it as “Bharannama” and use of the term “grahita” and “data” could not decide the nature of the deed (exhibit- B) as to whether it was a sale deed or a mortgage deed (“Bharannama” deed). The finding of the learned 1st appellate court that it was for the defendant to prove that deed (exhibit- B) was not a “Bharannama” by leading evidence is not the correct way to consider the deed (exhibit- B), inasmuch as, the deed was required to be considered on the face of it and the recitals and the transactions recorded therein. In order to interpret the true nature of the deed, no further evidence was required, it is the deed itself which was required to be taken into consideration. 76. This Court is of the considered view that for a document to be a sale deed, it is not essential condition that the deed should disclose that it does not have any encumbrance. Sale deed or transfer deed can also be executed with encumbrance, if any, and the vendor can pass the title only with respect to the title which he possesses and nothing more. Therefore, merely none mentioning that the property did not have any encumbrance has no bearing with respect to the nature of the deed being a sale deed once all the basic ingredient of the sale deed has been found mentioned in the deed (Exhibit-B). 77. Further, the learned 1st appellate court has also recorded that due permission was not granted with regard to out of court settlement by the executing court at Calcutta arising out of earlier suit decreed in favour of Nagesh Chandra Agrawal and against Satya Narayan Das .For this the learned counsel for the respondents has heavily relied upon the judgment passed by the Hon’ble Supreme court reported in AIR 1997 SC 1006 (Sultana Begum vs. Prem Chand Jain) and also the judgment which follows this judgment reported in (2000) 7 SCC 240 (Lakshmi Narayanan vs. S.S. Pandian) and has in particular interpreted the 38 provision of Order XXI Rule 2(3) of CPC. Order XXI Rule 2 of CPC is quoted as under: - 2025: JHHC: 22351 “ORDER XII - EXECUTION OF DECREES AND ORDERS

#2. Payment out of Court to decree- holder: (1) Where any money payable under a decree of any kind is paid out of Court, or the decree of any kind is otherwise adjusted in whole or in part to the satisfaction of the decree-holder, the decree- holder shall certify such payment or adjustment to the Court whose duty it is to execute the decree, and the Court shall record the same accordingly. (2) The judgment-debtor or any person who has become surety for the judgment-debtor also may inform the Court of such payment or adjustment, and apply to the Court to issue a notice to the decree- holder to show cause, on a day to be fixed by the Court, why such payment or adjustment should not be recorded as certified; and if, after service of such notice, the decree-holder fails to show cause why the payment or adjustment should not be recorded as certified, the Court shall record the same accordingly. (2-A) No payment or adjustment shall be recorded at the instance of the judgment-debtor unless ---- (a) the payment is made in the manner, provided in Rule 1; or (b) the payment or adjustment is proved by documentary evidence; (c) the payment or adjustment is admitted by, or on behalf of, the decree-holder in his reply to the notice given under sub-rule (2) of Rule 1, or before, the Court. (3) A payment or adjustment, which has not been certified or recorded as aforesaid, shall not be recognised by any Court executing the decree.”

#78. The perusal of the order XXI Rule 2(3) of CPC reveals that a payment or adjustment, which has not been certified or recorded as per provision under Rule 2 shall not be recognized by any court executing the decree. The provision does not say that it has got no value so far as the courts other than the executing the decree are concerned. Before the Hon’ble Supreme Court in (2000) 7 SCC 240 it is apparent from paragraph 6 of the judgment that the point which arose for consideration 39 2025: JHHC: 22351 was whether in view of compromise entered into between the parties and execution of new lease deed, the ex-parte decree dated 02.05.1990 got extinguished and as such whether the appellant could not get possession of the premise in execution of the existing decree. The plea of compromise was taken before the executing court and the Hon’ble Supreme Court ultimately held that Order XXI Rule 2 sub-rule 3 of CPC prohibits every Court executing the decree from recognizing a payment or adjustment which has not been certified or recorded by the Court under the aforementioned sub-rules. This Court is of the view that had the parties to the money decree in the suit decided by Hon’ble Calcutta High Court proceeded in connection with execution of the decree, the executing court could have entered into the issue as to whether this compromise could be entertained or could not be entertained. However, when the settlement between the parties in satisfaction of the decree passed in the suit decided by Hon’ble Calcutta High Court was entered into amongst them and was incorporated in the sale deed (exhibit-B), it cannot be said that such kind of arrangement cannot be recognized or considered by any other court including the court where the present suit was filed. 79. The fact remains that the arrangement which was made through the deed Exhibit-B of the year 1960 was to the full satisfaction of the money decree. In the plaint no statement was made with respect to the fact as to what happened in the executing court dealing with money decree passed in the suit decided by Hon’ble Calcutta High Court. 80. This Court is of the considered view that the learned 1st appellate court has erred in law by holding that the arrangement entered into between the parties has no value in the eyes of law in absence of its confirmation from the executing court. The judgments which have been relied upon by the learned counsel for the respondent-plaintiff do not help the plaintiff in any manner as sub-rule 3 of Rule 2 of CPC refers to the recognition of payment or adjustment by any court executing the decree 40 2025: JHHC: 22351 and it does not refer to all the courts and the same does not have effect of making the deed (exhibit-B) null and void or void-ab-initio on the face of it. The fact remains that the deed (exhibit-B) was entered into by stating that it was in satisfaction of the decree and the decretal amount was to the extent of Rs. 26,700/- which was agreed upon between the parties. In order to avoid the deed (exhibit- B), it was required to be specifically challenged by the plaintiff by citing reasons and deed (exhibit-B) being registered is presumed to be valid unless it is otherwise pleaded and proved to be invalid. 81. Deed (exhibit-B) cannot be said to be void -ab-initio or a nullity which need not be specifically challenged to escape the rigors of the limitation Act. The law is equally well settled that in case of fraud misrepresentation etc. there has to be specific pleading supported by cogent evidence. The reference may be had to Order VII Rule 4 of CPC. 82. In view of the aforesaid findings and discussions, it is held that registered deed (exhibit- B) no. 3576 dated 24.02.1960, though termed as “Bharannama”, is essentially a sale deed executed by the legal heirs and successors of Satya Narayan Das in favour of Nagesh Chandra Agrawal who subsequently transferred the property in favour of the father of the sole contesting defendant- the defendant 1st party. 83. So far as the applicability of Section 59 of Limitation Act is concerned, it has been held by the Hon’ble Supreme Court in the judgment in the case of Prem Singh (supra) that when a document is valid, there is no question arises for its cancellation and when a document is void-ab-initio, a decree for setting aside the same would not be necessary as the same is non-est in the eyes of law as it would be a nullity and Section 31 of the Specific Relief Act refers to both void and voidable document. It has also been held that 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 and Article 59 would be attracted when 41 2025: JHHC: 22351 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 and would not apply only to instruments which are presumptively invalid. paragraph 15 to 20 of the aforesaid judgment is quoted as under: - “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 non est 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. (See Unni v. Kunchi Amma and Sheo Shankar Gir v. Ram Shewak Chowdhri.)

#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.”

#84. In the aforesaid judgment passed in the case of Prem Singh (supra) judgment, it has been held in paragraph 27 that there is a presumption that a registered document is validly executed and a registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption and in 42 2025: JHHC: 22351 the said case, Respondent No.1 was not able to rebut the said presumption. It has also been held in paragraph 28 that if a deed was executed by the plaintiff, when the plaintiff was a minor and it was void, he had two options to file a suit to get the property purportedly conveyed thereunder. He could either file the suit within 12 years of the deed or within 3 years of attaining majority and since the step was not taken within mandate of law, the suit was held to be barred by limitation. Paragraph 27 and 28 of the aforesaid judgment are quoted as under: - “27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent 1 has not been able to rebut the said presumption.

#28. If a deed was executed by the plaintiff when he was a minor and it was void, he had two options to file a suit to get the property purportedly conveyed thereunder. He could either file the suit within 12 years of the deed or within 3 years of attaining majority. Here, the plaintiff did not either sue within 12 years of the deed or within 3 years of attaining majority. Therefore, the suit was rightly held to be barred by limitation by the trial court.”

#85. In the judgment in the case of Abdul Rahim (supra), it has been held in paragraph 19 that 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 Paragraph 19 of the aforesaid judgment is quoted as under:- “19. 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. In Mohd. Noorul Hoda v. Bibi Raifunnisa (1996) 7 SCC 767, this Court held: 43 2025: JHHC: 22351 “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 otherwise 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.” (See also Sneh Gupta v. Devi Sarup (2009) 6 SCC 194: (2009) 2 Scale 765)”

#86. While applying the aforesaid principle of law and considering the facts and circumstances of the present case, this case is a very peculiar case where the deed of 1960 (exhibit-B) has been alleged to be fictitious in nature without giving the exact details of the deed in the plaint or specifically challenging the same. Further, the plaint neither mentions that the plaintiff had no knowledge about the deed nor any date of knowledge 44 2025: JHHC: 22351 has been mentioned nor any date has been mentioned as to when the plaintiff attained majority and nor it was mentioned that the plaintiff was not even born at the time of execution of the Bharnanama deed (exhibit- B). It has also not been mentioned that the deed (exhibit-B) was never challenged by one or the other party to the deed . The relief also does not challenge the deed, it only mentions about the subsequent deed being not binding. The plaintiff appears to have tried to escape the rigors of limitation in the plaint. However, the point of limitation having been framed by this Court, this Court finds that the parties had contested the suit with regard to the legality and validity of the deed (exhibit-B) and it was never the case of the plaintiff that on the face of the document, it is invalid in the eyes of law. This is over and above the fact that the Hon’ble Supreme Court in the case of Prem Singh (supra) has clearly held that the registered document has to be taken as prima-facie valid document and the fact also remains that in the permission granted by the court at Malda to transfer the property and also in the deed (exhibit-B) , the properties of Malda as well as the Rajmahal were included. The argument that there was no property at Malda and it was wrongly shown in the permission and also in the deed is essentially a question of fact which requires evidence, therefore, it cannot be said that the deed (exhibit- B) was ex-facie invalid for such a reason and that it could be declared to be void-ab-initio without any basis. 87. In aforesaid circumstances this court is of the considered view that the plaintiff has not been able to clear/escape the rigors of limitation under Article 59 of the Limitation Act and it is held that the challenge with regard to the legality and validity of registered deed ( Exhibit-B) of the year 1960, was barred by limitation and once the challenge is held to be barred by limitation, the merit of the challenge has no relevance as the challenge itself is barred by limitation. The learned counsel for the respondent – plaintiff has failed to prove that the deed (exhibit- B) is a nullity or is void -ab-initio. 45 2025: JHHC: 22351

#88. In view of the aforesaid findings, the substantial question of law is answered by holding that the learned 1st appellate court of appeal has wrongly appreciated deed (exhibit- B) and the learned trial court had rightly held that the deed is a sale deed [ Deed No.3576 dated 24.02.1960]. Further, the learned 1st appellate court has wrongly cancelled the same after long lapse of limitation as envisaged under Article 59 of the Limitation Act, 1963. The substantial question of law is answered in favour of the appellant- the contesting defendant – the defendant 1st party and against the respondents herein . 89. The substantial question of law having been answered in favour of the appellant, the judgment passed by the learned 1st appellate court cannot be sustained in the eyes of law which is hereby set-aside. 90. Accordingly, this appeal is disposed of. 91. Pending I.A., if any, is closed. 92. Let this order be communicated to the courts concerned through ‘e- mail/FAX’. (Anubha Rawat Choudhary, J.) Dated: 29th July 2025 Pankaj/Mukul AFR 46