Judgment:
P.K. Tripathy, J.
1. Defendants in Title Suit No. 33 of 1975 of the Court of Subordinate Judge, Bhawanipatna (presently Civil Judge, Senior Division) filed the suit claiming the relief of (1) declaration of sale deed executed on 02.03.1964 by Sriramulu Naik in favour of defendant No. 1 Ram Pujari as a void document; (2) grant recovery of possession of the suit land measuring an area of Ac. 16.90 decimals out of Khata No. 86 (current settlement) of village Thuamal Rampur in the district of Kalahandi; and (3) to declare their right, title and interest over the said case land.
2. Plaintiffs sought for the aforesaid prayer on the ground that their father Sriramulu Naik borrowed some money from defendant No. 1 and could not repay the same and, therefore, defendant No. 1 pressurized and persuaded him (Sriramulu) to execute a mortgage deed. By then Sriramulu was 90 years old, he was sick, heard of hearing with defective vision and therefore, was not in a fit state of mind and health to take an independent decision in respect of transaction of properties. When the matter stood thus, on 02.03.1964 defendant No. 1 succeeded in getting a document executed by Sriramulu. The latter was under the belief that the said document was a deed of mortgage, but in fact that was a registered sale deed, which was obtained by defendant No. 1 clandestinely. In 1975, a few years after the death of Sriramulu, plaintiff No. 1 offered the loan amount to regain the case land and then he could come to know that defendant No. 1 with the help of others played the mischief and obtained the sale deed Ext. B for a very nominal consideration of Rs. 600/- (rupees six hundred) though by then value of the case land was about Rs. 8,000/-(rupees eight thousand). With the said description of facts and circumstances, plaintiffs claimed for the aforesaid relief.
3. Defendant Nos. 2 to 4 are the children of defendant No. 1. They filed a joint written statement denying to the aforesaid plaint allegations and stating that the arrear revenue to the tune of Rs. 315/-(three hundred fifteen) was required to be paid and defendant No. 1 advanced that money in favour of Sriramulu. Thereafter Sriramulu expressed his inability to repay the loan and agreed to transfer the case land. The locality where the suit land exists was then infested with wild animals in the main jungle and there was no one willing to purchase that land. However, defendant No. 1 agreed and purchased the said land at the then existing market price of Rs. 600/-. After execution of such sale deed the land was mutated in the name of the defendants and they are in peaceful possession of the case land all throughout. Defendants also raised the legal issue that the suit is barred by law of limitation and the plaintiff is not entitled to the reliefs claimed and that the suit is highly under-valued.
4. On the basis of the aforesaid pleadings of the parties, trial Court framed the following issues:
Issues
1. Was the alleged sale deed in fact a mortgage deed?
2. Was that deed obtained by exercise of undue influence by the defendant No. 1?
3. Is the deed binding on the plaintiff ?
4. Is the suit properly valued and proper court fee paid ?
5. Is the suit barred by time ?
6. What reliefs are the plaintiff entitled ?
5. Both the parties adduced oral and documentary evidence. Plaintiff No. 1 examined himself as P.W. No. 1 and two other witnesses as P.Ws. 2 and 3 in support of the claim of title and possession and low valuation of the property besides the old age and handicapped condition of Sriramulu by the date of execution of the impugned sale deed, Ext. B. Similarly defendant No. 1 examined himself as D.W. No. 1 and one more witness as D.W. 2 in support of their plea. Ext. B is the impugned sale deed, Ext. A is the Record of Right and Ext. C series are the rent receipts. Similarly, Ext. 1 is the certified copy of the Record of Right and Ext. 2 is a sale deed dated 14.03.1963, which was marked without objection.
6. On assessment of oral and documentary evidence, trial Court recorded the findings that valuation of the suit land was about Rs. 8.000/- (rupees eight thousand) by the date of execution of the sale deed Ext. B and it was about Rs. 16,000/- (rupees sixteen thousand) by the date of institution of the suit in the year 1975. He found the consideration amount of Rs. 600/- (rupees six hundred) mentioned in Ext. B was totally inadequate price. D.W. 2, in his evidence, admitted that Sriramulu was 90 years old and was not capable of seeing (due to defective vision). That evidence corroborates the evidence of the plaintiffs that Sriramulu was old, infirm and sick by the date of execution of Ext. B and, therefore, the low price noted in the sale deed and the aforesaid physical condition of Sriramulu makes it clear that the document was not voluntarily and knowingly executed as a sale deed. Learned Sub-ordinate Judge then held that when the suit is predominantly for recovery of possession and because of the aforesaid ground the sale deed is void, therefore, plaintiffs are entitled to the relief of recovery of possession. Accordingly he granted the decree of recovery of possession subject to payment of ad valorem court fees on the valuation of the suit at Rs. 16,000/-.
7. Learned Counsel for the defendants-appellants argues that all the norms fixed under Section 102 of the Indian Evidence Act were bye-passed by the trial Court in saddling both the onus and burden on the defendants when the sale transaction of 1964 and continuance of possession of the defendants by that date was within the knowledge and information of the plaintiffs. He further argues that when the suit was not filed within the period of three years in terms of Article 58 of the Limitation Act with respect to declaration sought for on Ext. B, learned Sub-ordinate Judge should have dismissed the suit instead of granting a decree for recovery of possession. In substance, that is the bone of contention of the appellants. In that respect defendants-appellants put forth that they have succeeded in substantiating their plea in the written statement through proper oral and documentary evidence whereas the plaintiffs-respondents have failed to discharge the initial burden on them on voidability of the document and about delay in approaching the Court beyond the period of limitation prescribed under Article 58 of the Limitation Act. On the other hand, plaintiffs-respondents reiterate the finding recorded by the trial Court that since their effort is to get back their property, which is under possession of the defendants on the basis of a void document, therefore, the predominant prayer in the suit is to get recovery of possession of the property, and once the trial Court found that the sale transaction was a sham one, therefore, they need not satisfy the limitation under Article 58 in view of the ratio in the case of State of Maharashtra v. Pravin Jethalal Kamdar (dead) by L.Rs. : [2000]2SCR134 . By the by, on the relevant issues plaintiffs-respondents state that Court is to assess the evidence on record, whether it has been tendered by the plaintiffs or the defendants, so as to decide the dispute. Ext. 2 is the document which proves that prevalent market price in the locality was not that much low as has been claimed by the defendants but it was near about the price, which plaintiffs have asserted in their plaint. They further state that the categorical admission of D.W. 2 about the old age and physical handicapness of Sriramulu is only corroborative in nature to the case of the plaintiffs and the evidence of P.Ws. 1 to 3 and, therefore, there is nothing to interfere with the impugned judgment.
8. On consideration of the aforesaid contention of the parties, going through the pleadings and evidence on record more than once (at the instance of the parties), it is seen that predominant intention of the plaintiffs is to secure recovery of possession of the case land on the ground that their father was cheated and without the knowledge and consent of anybody sale deed Ext. B was obtained from him. By the date of execution of Ext. B, plaintiff No. 1 was a major son of Sriramulu. He presence was not secured at the time of execution of Ext. B and no explanation was offered by the defendants in that respect. Be that as it may, Ext. 2'indicates that about 64 decimals of 'Berana' variety-of land was sold for Rs. 360/- (rupees three hundred sixty). That means about Rs. 600/- (rupees six hundred) was the price per acre of 'Berana' land. 'Banal' lands are much better quality of paddy-land than 'Berana' land. On perusal of the record of rights and the sale deed Ext.B, it is seen that near about 4 1/2 acres of land were 'Bahal1 land and about one acre of land was 'Berana' land. Under such circumstance, an area of Ac. 16,90 decimals of land could not have been sold for such a paltry sum of Rs. 600/-. Whether or not admitted by defendant No. 1, it is sufficiently indicated in the record that he was doing money-lending business. It is borne out on record that by the date of execution of the sale deed, Sriramulu was 90 years old having defective vision. No proper evidence is forthcoming from the side of the defendants that notwithstanding that physical and mental condition, he could understand contents of the document and executed the sale deed. Apart from that, a question, which was not raised in the Court below, also comes for discussion (not for consideration) that Sriramulu could not have alienated the property belonging to him and his family consisting of three sons. As noted above, such a contention was never mooted either in the pleading or evidence of the parties. Therefore, that aspect is only discussed and not considered. Learned Sub-ordinate Judge decided the issue that Ext. B is a sham and nominal transaction and therefore void ab initio. Under such circumstance, the ratio in the case of Pravin Jethalal (supra) clearly states that even if a document is sought to be declared as avoid and that is barred by law of limitation, then also the predominant plea being for recovery of possession, the suit is maintainable under Article 65 of the Limitation Act and Article 58 does not put a bar of granting just relief. Therefore, in this case the said ratio is followed and the relief granted is not interfered with relating to recovery of possession.
9. Accordingly, the appeal is dismissed. Under the given facts and circumstance, both the parties are directed to bear their respective cost of litigation in this forum. Hearing fee is assessed at contested scale.