Dubey & Ors Vs. Masomat Asha Kaur & Ors  INSC 890 (5 August 1996)
O R D
notice was served on the legal heirs of the 1st respondent and the counsel who
had appeared earlier and had taken time has now reported that in spite of his
writing three letters, there is no response from them. The legal heirs are
brought on record.
only question that arises for consideration in this case is: which article of
Schedule to the Limitation Act, 1963 (for short, the 'Act') would be applicable
to the facts in this case? The courts below found as a fact that though the
sale deed was executed on July 12, 1966 by Asha Kaur, the first respondent in favour
of one Ganesh Missir, it was found that Ganesh Missir had played fraud upon her
and that, therefore, the sale deed is vitiated by fraud. She remained in
possession till December
14, 1970 and,
therefore, the sale deed does not bind her. She filed a suit against the
defendants including the appellants who came to have another sale deed dated December 14, 1970 pursuant to which the plaintiff was
sought to be dispossessed. She filed the suit within three years for
adjudication under Section 31 of the Specific Relief Act that the sale deeds are
void and for injunction when she was sought to be dispossessed on February 15, 1973 under the sale deed. It was also
her contention that the second sale deed also was vitiated by fraud because of
her incapacity and illiteracy. That also found favour with the courts below and
the High Court.
her suit came to be decreed.
contended by the appellants that whatever may be the finding regarding the sale
deed of 1966, there cannot be any second fraud in the case of second sale deed.
The suit ought to have been filed under Article 58 of the Schedule to the Act
and not under Article 34. We find no force in the contention. In view of the
finding recorded by the courts below as a finding of fact that a fraud was
played upon her, the fraud unravels the entire transaction to be a void
document. Therefore, the limitation starts running from the date when the cause
of action had arisen, viz., when dispossession was sought to be made. It is
seen that the first respondent was sought to be dispossessed from her land in
1973. The sale deed came to be executed within three years from the date. Under
these circumstances, since she remained in possession till that date, there is
no need to file a suit under Article 59 of the Schedule of the Act.
the suit was rightly filed within three years under Article 58 of the Schedule
to the Act and the courts below decreed it and the High Court upheld the same.
it does not warrant interference.
appeal is accordingly dismissed. No costs.