1. The instant second appeal on remand by the Apex Court being Civil Appeal No. 5129 of 2001 restoring the case to the file of this Court after setting aside the judgment and order dated 7. 1. 2000 passed in Second Appeal No. 8/94 directing for a fresh decision after framing substantial question of law and accordingly in exercise of power under Section 100 of Code of Civil Procedure (Code for short) the following substantial questions of law have been formulated for adjudication of the case afresh in presence of the contesting parties viz. ,- (1) Whether the suit of the plaintiff is barred by Section 31 of the Specific Relief Act and
(2)Whether the suit of the plaintiff is barred by the law of limitation?
2. Before determining the lis between the parties it would be appropriate to refer the provision of Section 31 of the Specific Relief Act, 1963 ( Act 1963 for short) along with Article 59 of the Limitation Act,1963:
Section 31- When cancellation may be ordered- (1)Any person against whom a written instrument is void or voidable and who has reasonable apprehension that such instrument, if left outstanding, may cause him serious injury; may sue to have it adjudged void or voidable; and the Court may, in its discretion so adjudge it and ordered it to be delivered up and cancelled.
(2) If the instrument has been registered under the Indian Registration Act, 1908 ( 16 of 1908), the Court shall also send a copy of its decree to the Officer in whose office the instrument has been so registered; and such Officer shall note on the copy of the instrument contained in his books the fact of its cancellation.
Article 59 of the Limitation Act, 1963:
Description of SuitPeriod of limitationTime from which period Begins to run.
Article 59
To cancel or set three yearsWhen the facts entitling aside an instrumentthe plaintiff to have the or decree or for theinstrument or decree rescission of contractcancelled or set asideor the contract rescinded first
become known to him.
3. The appellant, herein is the defendant in Title Suit No. 14/88 on the file of the learned Munsiff No. 1, Golaghat has assailed the judgment and decree dated 30. 8. 93 passed in Title Appeal No. 4/92 by the learned Assistant District Judge, Golaghat whereby and whereunder the learned Assistant District Judge dismissed the appeal and affirmed the judgment and decree dated 6. 7. 92 passed by the learned Munsiff No. 1, Golaghat in Title Suit No. 14/88.
4. The facts of the case in a nutshell is summarized hereinbelow:
One Smti. Mismai Begum @ Smti. Afzuman Nessa alongwith her daughter Smti. Motimai Begum have brought a suit being Title Suit No. 14/88 in the Court of Munsiff No. 1, Golaghat arraying 9 (nine) persons as party defendant. Out of 9 (nine) party defendants, Sri Faiz Ahmed, Sri Habibur Rahman, Sri Safiur Rahman and Tileswar Saikia were arrayed as main defendants whereas the defendant Nos. 5 to 9 who are own sons of plaintiff No. 1 have been arrayed as proforma defendants. The plaintiff No. 1 is the wife of Late Sheikh Md. Hussain whereas the plaintiff No. 2 is the daughter of Late Sheikh Md. Hussain in the suit. The plaintiffs have prayed the following reliefs:
(a) For a declaration that the judgment and decree dated 23. 6. 88 passed in Title Suit No. 12 of 1987 by the learned Munsiff No. 1, Golaghat is not legal and valid and the same is inoperative under the law,
(b)For a declaration that registered sale deed No. 3758 dated 19. 9. 67 in connection with the land mentioned in schedule ka of the plaint, shown as executed by Sk. Md. Hussain, husband of the plaintiff No. 1 in favour of defendant No. 4 is not valid sale deed and for cancellation of the same being forged and obtained fraudulently.
(c)For a declaration that on the basis of the aforesaid sale deed the defendant No. 4 has not acquired any right, title and interest on the land mentioned in the schedule of the plaint;
(d)For permanent injunction;
(e)For recovery of khas possession in respect of Ka schedule land mentioned in the schedule of the plaint. (f) And with a further prayer that till the suit is finally disposed of status quo in respect of ka schedule land shall be maintained and a temporary injunction may be issued restraining the defendant No. 4 not to proceed with Partition Case being No. 27/81-82 till disposal of the suit.
5. The facts pleaded in the plaint by the plaintiff is that the entire land measuring 36 Bighas covered by P. P. No. 234, Dag No. 1824 belongs to Late Noor Md. , Sk Md. Hussain and other three brothers, i. e. defendant Nos. 1 to 3. The entire land was mutually divided between the above mentioned four brothers, i. e. heirs of Late Noor Md. and accordingly, 5 Bighas of land out of 36 Bighas falls in the share of Late Sk. Md. Hussain who was in possession of the land till his death in the year 1984 and accordingly, the defendant Nos. 1 to 3 have no share in respect of 5 Bighas of land mentioned in schedule ka of the plaint. The aforesaid defendant Nos. 1 to 3 filed a suit being Title Suit No. 12/87 against the defendant No. 4 without arraying the plaintiffs as parties in the suit though her sons were arrayed as proforma defendants in the suit and consequently thereupon she (plaintiff No. 1) was not aware of the suit filed by the defendant Nos. 1 to 3 as plaintiff. The said suit was dismissed on 23. 6. 88 whereof it has been mentioned in kha schedule land.
The plaintiffs have further pleaded that the suit land in Title Suit No. 12/87 never sold to defendant No. 4 and the sale deed alleged to have been executed by Late Sk. Md. Hussain was forged which do not entitle the defendant No. 4 to acquire right, title and interest on the aforesaid land even if there was agreement for sale of the schedule land and consequently thereupon the defendant No. 4 on the basis of forged sale deed mutated his name in respect of ka schedule land which was not known to the plaintiffs in the Title Suit No. 12/87 and only on 8. 7. 88, when the defendant No. 4 started to construct a thatched house on the suit land and inspite of their protest he occupied the land and constructed the house, they came to know the actual fact and obtained certified copies of the sale deed on 6. 8. 88 and decree passed on 23. 6. 88 in Title Suit No. 12/87 and filed the suit on 23. 8. 88 seeking relief as indicated above.
6. On receipt of the summons the defendant No. 4 contested the suit by filing written statement contending, inter alia, that there is no cause of action and the suit is barred by limitation. It has further been averred that the suit is barred by res-judicata, estoppel and by law of acquiescence. It is his specific case that the plaintiffs and the other defendants are related to each other and denied the fact that the plaintiffs had no source to know about the suit and the sale deed which was purchased in consideration of money amounting to Rs. 625/- from Sk Md. Hussain on 19. 9. 67 under registered sale deed and there was an agreement to sale the land executed on 5. 10. 58 and he paid Rs. 200/- as advance and prior to the agreement he has been possessing the suit land since 1957 and accordingly his name was rightly mutated and prayed for dismissal of the suit. The proforma defendant Nos. 5 to 8 filed the written statement supporting the case of the plaintiffs though the defendant Nos. 1 to 3 did not file the written statement.
7. On the pleadings of the parties, the learned trial Court framed the following issues:
1. Whether there is any cause of action for the suit? 2. Whether the suit is barred by limitation? 3. Whether the suit is barred by the principles of res- judicata ?
4. Whether the plaintiffs have any right to sue? 5. Whether the defendant No. 4 has been possessing the suit land since 1957? If not whether the defendant No. 4 dispossesses the plaintiffs therefrom as alleged? 6. Whether the sale deed No. 3758 dated 19. 9. 67 alleged to be executed by Sk. Md. Hussain in favour of the defendant No. 4 is forged one and as such liable to be cancelled ?
7. Whether the judgment and decree passed in TS No. 12/87 by this Court is operative in law? 8. Whether the plaintiffs are entitled to any decree as prayed for?
9. To what other reliefs, if any, the parties are entitled to?
8. The learned trial Court while deciding the issue No. 1 has held that the plaintiffs came to know about the dismissal of the Title Suit being TS No. 12/87 on 8. 7. 88 when the defendant No. 4 constructed house on the suit land and dispossessed the plaintiffs though she was not made party in the suit and the judgment being delivered on 23. 6. 88 there is cause of action for the suit. While deciding issue No. 2 which relates to limitation, the learned trial Court has held that the plaintiffs came to know the existence of the sale deed and Title Suit No. 12/87 only on 8. 7. 88 and filed the suit on 23. 8. 88 which is within three years as provided under Article 59 of the Limitation Act and decided the issue in favour of the plaintiffs. Relating to issue No. 3,the learned trial Court answered the issue in the negative. Relating to issue Nos. 4 to 7, the learned trial Court on careful scrutiny of the pleadings of the parties and evidence on record has held that the Title Suit No. 12/87 is bad for non-joinder of necessary party since the plaintiffs were not made parties to the suit on the death of Late Sk. Md. Hussain in the year 1984 though Late Sk. Md. Hussain was in possession of the suit land till his death, moreso, when the defendant Nos. 1 to 3 filed the Title Suit No. 12/87 which was dismissed without the knowledge of the plaintiffs and hence the plaintiffs have rightly filed the suit. Further more, the learned trial Court came to a conclusion that though there was an agreement for sale which is admitted by the plaintiff also but the sale deed was not executed by Late Sk. Md. Hussain in favour of defendant No. 4 and the defendant No. 4 has failed to produce any evidence in support of his possession and thus disbelieved the execution of the sale deed relying on the evidence of DWs-2 and 3 holding that the sale deed No. 3758 is a doubtful document thereby cancelled the same further holding that the judgment and decree passed in TS No. 12/87 is inoperative in law and the decree was passed in favour of the plaintiffs.
9. The defendant No. 4 has assailed the judgment and decree dated 6. 7. 92 passed in TS No. 14/88 by the learned Munsiff No. 1, Golaghat on the file of the learned District Judge, Golaghat being Title Appeal No. 4/92. Before the learned Appellate Court the following grounds, inter alia, were urged:
a)That the learned Munsiff has failed to consider the previous judgment delivered in Title Suit No. 12/87 for which the present suit being Title Suit No. 14/88 would be barred on the ground of res-judicata, acquiescence, waiver and limitation.
b)That the learned Munsiff has failed to scrutinize the evidence led by the parties and wrongly decided the suit.
10. The learned Appellate Court apart from the issues framed by the learned trial Court, framed the following points for determination:
i)Whether the judgment and decree in TS No. 12/87 was obtained by fraudulent means?
ii)Whether the suit is barred by res-judicata, acquiescence and waiver?
iii)Whether the suit is barred by law of limitation?
11. The learned Appellate Court dealt with point No. 1 in details contending inter alia that in Dag No. 1824 of Patta No. 234 there is 36 Bighas of land which was the common property of Late Sk. Md. Hussain, Late Noor Md. (father of defendant No. 1) and defendant Nos. 2 and 3 (sons of Late Khatnur Rahman). The land was mutually divided amongst the brothers and 5 Bighas of land comprising the suit land was possessed by Late Sk. Md. Hussain till his death in the year 1984. On the 5 Bighas of land the defendant Nos. 1, 2 and 3 had no share and on the death of Sk. Md. Hussain, the suit land devolves on his wife, daughter and sons and anybody having claim over the suit land must be made party in the suit. Though the sons of Late Sk. Md. Hussain were made proforma defendants but notices were not served on their place of posting but served through the plaintiff No. 1, who being an old lady knows nothing about the piece of paper she received. All these things would go to show that the suit was filed with ulterior motive knowing fully that the suit land falls in the share of the respondents and her children. While dealing with the possession of the suit land, the learned Appellate Court has dealt with all the five PWs and their evidence on record, wherein, all the witnesses have categorically deposed that Late Sk. Md. Hussain was in possession of the suit land till his death and thereafter, his wife was in possession of the land till dispossessed in the year 1988 by the appellant Tileswar Saikia. In regard to execution of the sale deed, the learned Appellate Court has found that an agreement of sale was made by paying Rs. 200/- out of the total agreed amount of Rs. 625/- and by paying the remaining amount the appellant purchased the land by executing the registered sale deed. In order to establish the factum of execution of sale deed the appellant examined four witnesses including himself. The appellant himself deposed that the deed of sale was written in the Court and both the parties were identified by DW-3 who is a signatory to the sale deed. According to DW 3 who was working at his office from where DW 1 called him to the Sub-Registrar s office and asked him to put his signature. He signed and left but did not notice any other signature in the deed nor he knows the signature of Late Sk. Md. Hussain. DW-3 is stated to be an identifying witness who is supposed to identify the signatures of both the seller and the purchaser. DW-2 also deposed that he put his signature as a witness but he does not know the seller Sk. Md. Hussain. The witness who is examined as DW-4 is the brother of the appellant DW-1 wherein the learned Appellate Court has held that the less it is said, the better it will be, by holding that the sale deed became a very doubtful document and cannot be relied upon. The facts pleaded and established in the aforesaid circumstances, the learned Appellate Court came to the conclusion that there is no occasion to file the Title Suit No. 12/87 and that too without making the actual owners as party defendants, more so, when the non service of summons is added with deliberate inaction of fraud and obtained the decree and jumped upon the land to dispossess the real owner by holding that respondents were not aware of the previous suit and its subsequent decree. The other decisions rendered by the learned trial Court have been affirmed by the learned Appellate Court thereby dismissing the appeal.
12. The appellant being aggrieved with the judgment and decree passed in Title Appeal No. 4/92 preferred an appeal being Second Appeal No. 8/94 on the file of this Court which was allowed on 7. 1. 2000 and on further appeal before the Apex Court by the respondents herein, the Apex Court remanded the matter for fresh hearing after formulating the substantial questions of law which were accordingly formulated as indicated hereinabove and the matter is taken up for hearing only on the substantial questions of law formulated by this Court in presence of the parties.
13. Mr. TJ Mahanta, learned counsel appearing for the appellant has urged the following points while criticising the judgment and decree passed by both the Courts below viz. i)The appellant is admittedly in possession of the land measuring 1 bigha 2 kathas and 10 lechas since the year 1957 and accordingly, an agreement to sale was executed with Late Sk. Md. Hussain on 5. 10. 58 and subsequently, thereupon a deed of sale was executed by Late Sk. Md. Hussain on 19. 9. 67 being No. 3758 which was not denied by the plaintiffs and this factum amply demonstrate that the plaintiffs were aware of the sale deed which is now being challenged after 21 years which is barred under Article 59 of the Limitation Act and the findings of both the Courts below being perverse requires interference under Section 100 of the Code. ii)Learned counsel has contended referring the earlier suit being Title Suit No. 12/87 before the learned Munsiff No. 1 at Golaghat filed by the plaintiff Nos. 1, 2 and 3 (respondents in this appeal) seeking a decree for declaring the registered sale deed No. 3758 dated 19. 6. 1967 executed by Late Sk. Md. Hussain in favour of the defendant No. 4, appellant herein is void, illegal and unenforceable in law whereas the factum of sale of the suit land to the appellant were known to them at the time of hearing the perfect partition case No. 27/1981- 82 initiated by the appellant herein, wherein the plaintiffs have filed objection on 31. 7. 82 and thus they had the knowledge of sale and as such the suit ought to have been filed on 26. 5. 87, more so, when the service of notice of TS No. 12/87 on the proforma respondents were served through the plaintiff No. 1 in Title Suit No. 14/88 as valid under Order 5 Rule 15 of the Code and as such, the suit is barred under Article 59 of the Limitation Act and the cancellation of the sale deed under Section 31 of the Specific Relief Act requires interference under Section 100 of the Code being perverse findings arrived at by both the Courts below.
iii)The learned counsel appearing for the appellant has drawn the attention of this Court to para 8 and 9 of the plaint in Title Suit No. 12/87 wherein it is admitted by the plaintiffs that on receipt of the notices of Perfect Partition Case No. 27/1981-82 the plaintiff Nos. 2 and 3 alongwith Late Sk. Md. Hussain, husband of the plaintiff No. 1 in Title Suit No. 14/88 filed their objection on 31. 7. 1982 and in the midst of the proceeding, Sk. Md. Hussain authorized his son Sk. Amzed Ali (respondent No. 8 herein) to represent him in the partition case, who had executed the sale deed on 19. 9. 1967 and it is too late of the day for the plaintiffs to aver that they came to know from the judgment passed in Title Suit No. 12/87 relating to the sale deed certified copy of which was obtained on 6. 8. 88 and accordingly, the suit was filed within the time cannot be sustained which is beyond the prescribed period of limitation as provided under Article 59 of the Limitation Act and therefore, the sale deed cannot be cancelled in exercise of power under Section 31 of the Specific Relief Act. Impugned judgment and decree thus require interference under Section 100 of the Code.
14. In support of his submission Mr. Mahanta has relied upon the following decision:-
1. (2001) 7 SCC 189, Hafazat Hussain v. Abdul Majeed and Others.
15. Countering the argument advanced by the counsel representing the appellant, Mr. BC Das, learned Senior counsel assisted by Mr. UC Dutta, learned counsel appearing for the respondents would urge that after the amendment of Section 100 of the Code, the role of the High Court in the matter of second appeal is very limited and the High Court cannot substitute its own finding on re-appreciation of evidence over the concurrent findings of fact arrived at by both the Courts below. When the findings of fact of the lower Appellate Court are based on evidence, the same do not require to be interfered with under Section 100 of the Code.
16. The learned Senior counsel has drawn the attention of this Court to the judgment rendered by the first Appellate Court wherein three points were formulated in order to determine the dispute raised by the parties. The first point relates to the judgment and decree passed in Title Suit No. 12/87 whereof the first Appellate Court has held that the decree was obtained by fraudulent means without making the wife as party in the suit though the suit land devolves on her and on her children and the plaintiffs in the suit had nothing to gain since it falls in the share of the plaintiffs in Title Suit No. 14/88 and the proforma defendants. Moreover, service of summons on the proforma defendants in Title Suit No. 12/87 were not issued in their place of posting; rather notices were served through the plaintiff No. 1, i. e. mother of the pro- forma defendants and thus finding of fact cannot be overturned under Section 100 of the Code.
17. Regarding execution of sale deed alleged to have executed by Late Sk. Md. Hussain, Mr. Das would contend that from the evidence of DWs it has become crystal clear that it was a doubtful document and cannot be relied upon and thus the concurrent findings of fact arrived at by both the Courts below may not be interfered with under Section 100 of the Code.
18. In regard to the vital point, i. e. the point of limitation, Mr. Das has further contended that the suit was filed within three years as provided under Section 59 of the Limitation Act because the existence of the sale deed and about Title Suit No. 12/87 was known to the plaintiffs on 8. 7. 88 and the suit was filed on 23. 8. 88. Mr. Das has also contended that the evidence led by the parties relating to the execution of sale deed would show that it was not a valid document as has been held by both the Courts below and the existence of sale deed came to the knowledge on 8. 7. 88. Even if Article 59 is not attracted residuary Article would be applicable and thereby supported the judgment and decree passed by both the Courts below.
19. In support of his submission, Mr. Das has relied upon the following decisions:
i)(2007) 1 SCC 546: AIR 2006 SC 1975, Gurdev Kaur and ors. Vs- Kaki and ors.
ii)(2006) 5 SCC 353, Prem Singh and ors. Vs- Birbal and ors.
iii)(1999) 3 SCC 722 : AIR 1999 SC 2213, Kondiba Dagadu Kadam Vs- Savitribai Sopam Gujar and others.
iv)(1999) 7 SCC 288 : AIR 1999 SC 3325, Hari Singh vs- Kanhaiya Lal,
v)(1996) 7 SCC 767, Md. Noorul Hoda Vs- Bibi Rafiunnisa and others,
vi)AIR 1968 SC 956, Ningawwa v. Byrappa
Shiddappa Hireknrabar,
vii)AIR 1963 Assam 4, Niasha Ghosh v. Kari Siddek Ali and Others,
viii)AIR 1960 Madras 1, Muppudathi Pillai v. Krishnaswami Pillai and Others.
20. Considered the submissions made by the learned counsel representing the contesting parties. Perused the judgment under appeal alongwith the pleadings of the parties including the evidence on record. The reasons and decisions thereof are as follows:
Admittedly a suit was filed by the three brothers-in-law of the plaintiff No. 1 seeking a decree for cancellation of the registered sale deed No. 3758 dated 19. 9. 67 executed by Late Sk. Md. Hussain in favour of the appellant herein being Title Suit No. 12/87 on the file of the learned Munsiff No. 1 at Golaghat wherein the wife of Late Sk. Md. Hussain was not made party. The said suit was dismissed on 23. 6. 88.
21. The cause of action for the suit being Title Suit No. 12/87 arose on 9. 9. 86 when the learned SDO (Civil) Golaghat passed the order asking the plaintiffs in the suit to take recourse to the civil Court and on 12. 11. 86 when the certified copy of the sale deed No. 3758 dated 19. 9. 1967 was received by the plaintiffs from the Sub-Registrar s Office, Jorhat and lastly on and from 24. 9. 86 when the jamabandi was received by the plaintiffs from the Kanungoo s office, Golaghat.
22. It is also an admitted fact that the appellant herein had filed a perfect partition case being No. 27/81-82 relating to the suit land. In the said partition case, the plaintiff Nos. 2 and 3 in Title Suit No. 12/87 alongwith Late Sk. Md. Hussain filed their objection on 31. 7. 82. Therefore, at least they have the knowledge of sale even if not prior to the date from 31. 7. 82 and for cancellation of the deed of sale it can be presumed that Late Sk. Md. Hussain had knowledge of execution of sale deed on 19. 9. 1967 and the suit ought to have been brought within three years from the date of knowledge which was not instituted within the period of limitation as provided under Article 59 of the Limitation Act and the suit filed subsequent to the Title Suit No. 12/87 automatically would be time barred though both the learned Courts below have held that the plaintiffs came to know about the case only on 6. 8. 88 when they received the certified copy of sale deed alleged to have been executed by Late Sk. Md. Hussain and about Title Suit No. 12/87 on 8. 7. 88 and the suit filed on 23. 8. 88 was within the period as provided under Article 59 of the Limitation Act which is perverse finding and it goes to the root of cause of action relating to the existence of the suit which cannot be concurred with the findings of fact arrived at by both the learned Courts below.
23. Moreover, the plaintiffs in Title Suit No. 12/87 have averred that on receipt of the notices of Perfect Partition Case No. 27/1981-82, Late Sk. Md. Hussain husband of the plaintiff No. 1 in Title Suit No. 14/88 had filed objection along with the plaintiff Nos. 2 and 3 in Title Suit No. 12/87 as admitted in para 8 of the plaint and Late Sk. Md. Hussain had the knowledge of the alleged execution of the sale deed on 19. 9. 67 and it can safely be presumed that the knowledge of Late Sk. Md. Hussain relating to the execution of sale deed was known to the plaintiff No. 1 in Title Suit No. 14/88 at least on 31. 7. 1982 (the date of filing objection in Perfect Partition Case No. 27/1981-82) but neither Late Sk. Md. Hussain (who died in the year 1984) nor his wife, i. e. plaintiff No. 1 in Title Suit No. 14/88 approached the Court within the period of limitation for cancellation of the sale deed as provided under Article 59 of the Law of Limitation and therefore this Court has no hesitation to hold that Title Suit No. 14/88 brought by the plaintiffs is beyond the prescribed period of limitation and on this ground alone the instant appeal deserves to be allowed.
24. Now the decisions cited by the parties are required to be examined as to the applicability of the same under reference. In Hafazat Hussain (supra), the decision relied upon by Mr. Mahanta, the Apex Court has held that the rule of non- interference in concurrent findings of the Courts below is not an absolute rule of universal application; what must be examined, where second Appellate Court has interfered with such findings, is whether its conclusions are justifiable according to the parameters of consideration for interference under Section 100. In the instant case the sole question that requires for consideration is as to whether the Title Suit No. 14/88 was filed within 3 years when the facts of alleged sale deed executed on 19. 9. 67 first became known to the plaintiff. Late Sk. Md. Hussain for the first time came to know in regard to alleged sale deed on 31. 7. 82 in perfect Partition case No. 27/81-82. The Title Suit filed by the wife of Late Sk. Md. Hussain is time barred since it can be presumed that the knowledge of Sk. Md. Hussain is knowledge of his wife the plaintiff No. 1 in Title Suit No. 14/88 and hence the decision cited by Mr. Mahanta is squarely applicable in the instant case which would come within the parameters of consideration for interference under Section 100 of the Code.
25. In Gurdev Kaur (supra) the Apex Court has held that the finding of fact arrived by the courts below however, wrong or grossly inexcusable is not liable to be interfered with under Section 100 of the Code. The Apex Court has further held that the High Court would have jurisdiction of interfering under Section 100 of the Code only in a case where substantial question of law are involved and those questions have been clearly formulated in the memorandum of appeal. In Prem Singh (Supra) the Apex Court held that 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. It further held that 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. In Kondiba Dagadu (supra) the Apex Court held that under Section 100 of the Code, concurrent finding of facts, howsoever erroneous cannot be interfered with and relief cannot be granted merely on equitable grounds. In Hari Singh (supra) the Apex Court held that concurrent findings of fact set aside by High Court by reappraisal of evidence, and without framing any substantial question of law is not permissible.
In Md. Noorul Hoda (supra) the Apex Court held that Article 59 of the Limitation Act is a general provision. It would apply to set aside the instrument, decree or contract between the inter se parties. 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 a party seeks avoidance of the instrument, decree or contract and seeks a declaration to have the decree set aside or cancelled, he is necessarily bound to lay the suit within three years from the date when the facts entitling to have the decree set aside, first become known to him.
In Ningawwa (supra) the Apex Court held that the fraudulent misrepresentation as regards character of a document is void but fraudulent misrepresentation as regards contents of a document is voidable, stating at paragraph 5 as thus:
the legal position will be different if there is a fraudulent misrepresentation not merely as to the contents of the document but as to its character. The authorities make a clear distinction between fraudulent misrepresentation as to the character of the document and fraudulent misrepresentation as to the contents there of. With reference to the former, it has been held that the transaction is void, while in the case of the later, it is merely voidable In that case, a fraud was found to have been played and it was held that as the suit was instituted within a few days after the appellant therein came to know of the fraud practised on her, the same was void. It was, however, held: - Article 91 of the Indian Limitation Act provides that a suit to set aside an instrument not otherwise provided for (and no other provision of the Act applies to the circumstances of the case) shall be a subject to a three years limitation which begins to run when the facts entitling the plaintiff to have the instrument cancelled or set aside are known to him. In the present case, the trial Court has found, upon examination of the evidence, that at the very time of the execution of the gift deed, Ext. 45 the appellant knew that her husband prevailed upon her to convey survey plot Nos. 407/1 and 409/1 of Tadavalga village to him by undue influence. In view of this finding of the trial Court it is manifest that the suit of the appellant is barred under Article 91 of the Limitation Act, so far as plot Nos. 407/1 and 409/1 of Tadavalga village are concerned.
Muppudathi Pillai s case (supra) was decided before the amendment of the Specific Relief Act and in the earlier Act, it was Section 39 which after amendment is now Section 31. The Full Bench of Madras High Court in Muppudathi Pillai s case (supra) has held as thus:
It is clear from the provisions of Section 41 that the jurisdiction to award compensation would arise when the Court adjudges the cancellation of an instrument. Section 39, which provides for the relief as to cancellation of an instrument applies not merely to the case of an instrument, which is voidable, but also one that is void. Section 35 provides for the case of rescission of voidable contract. It is evident that Section 39 covers not only a case contemplated under Section 35, but also a wider field, that is, a case of a void document, which under the law need not be set aside. The Principle is that such document though not necessary to be set aside, may, if left outstanding, be a source of potential mischief. The jurisdiction under Section 39 is, therefore, a protective or a preventive one. It is not confined to a case of fraud, mistake, undue influence etc. , and it was to prevent a document to remain as a menace and danger to the party against whom under different circumstances it might have operated. Section 39 embodies the principle by which he is allowed to anticipate the danger and institute a suit to cancel the document and to deliver it up to him. The principle of the relief is the same as in quia timet actions.
26. To answer the first substantial question of law, Mr. Das, learned Senior Counsel referred to and relied upon the decision in Muppudathi Pillai s case (supra). Section 31 of the Act,1963 has already been quoted hereinabove. Section 31 of the Act 1963 is with regard to cancellation of a deed of sale. In the present case in hand, admittedly there was an agreement for sale in the year 1958. That document was challenged in an earlier suit, where the execution of the document was admitted and the suit was dismissed refusing the prayer for cancellation of sale deed. Thereafter wife and daughter of plaintiff No. 1 (after his death) filed another suit in the year 1988. However, the said document was admitted without objection. That being the position, the question now arises as to whether this document is liable to be cancelled in the year 1988 after a lapse of 21 years, in the case filed by the wife of Plaintiff No. 1.
The decision relied upon by the learned Counsel i. e. Muppudathi Pillai s (supra) case was further relied in AIR 1972 Allahabad 376 (Devi Prasad and Other v. Smti Maika and Others) wherein while reiterating the law laid down in Muppudathi (supra) it has been pointed out that under Section 31 (Old Section 39) it may be cancelled only when three conditions are fulfilled. The three conditions are 1). That the plaintiff was such a person against whom the instrument was void or voidable. 2). That the plaintiff could entertain a reasonable apprehension that if such instrument is left outstanding it may cause him serious injury and 3). That the Court must adjudge the instrument void or voidable. In the instant case, condition Nos. 1 and 3 are not fulfilled in view of the fact that once it is held and that the document was duly executed, it is neither void nor is a voidable agreement. So, the question of cancellation of the deed by exercising the power under Section 31 of the Specific Relief Act does not arise. Therefore, the first question of law formulated is answered in favour of the appellant.
27. On the other hand, relying the decision in Ningawwa (supra), wherein the Apex Court has held that Article 95 (old)(New 59) prescribes a period of limitation of three years from the time when the fraud becomes known to the party wronged, Mr. Das learned Senior counsel would contend that the plaintiff came to know for the first time relating to execution of alleged sale deed on 6. 8. 88 and Title Suit No. 12/87 on 8. 7. 88 and hence the suit filed on 23. 8. 88 is within the prescribed period of limitation as provided under Article 59 of Limitation Act and the findings arrived at by the Courts below cannot be interfered with in exercise of power under Section 100 of the Code, since both the learned Courts below have held that the suit was filed within the period of limitation. Though both the Courts below have held that the suit was filed within the prescribed period of 3 years from the date of knowledge of alleged execution of sale deed, the same is the finding of fact which cannot be concurred in view of the findings arrived at by this Court in the preceding paragraphs of this judgment. The decision in Ningawwa (supra) referred would not support the case of the respondent since they have the knowledge of execution of sale deed on 31. 7. 82 and the suit filed would be definitely beyond the prescribed period of limitation. Since the plaintiffs are seeking to have documents avoided or cancelled, necessarily a declaration has to be made by the Court, which has been declared by both the Courts below. So the suit necessarily has to be laid within 3 years from the date when the cause of action arose. Since the cause of action had arisen on 31. 7. 82 as has been held by the learned Court in T. S. No. 12/87, the suit ought to have been filed within 31. 7. 85 and hence the suit filed in the year 1988 is time barred.
28. The decisions referred to in Md. Noorul Hoda (supra) by Mr. Das learned Senior counsel, wherein at paragraph 6 of the judgment the Apex Court has held that if the plaintiff seeks avoidance of the instrument, decree or contract and seeks a declaration to have the decree set aside or cancelled he is necessarily bound to lay the suit within 3 years from the date when the facts entitling the plaintiff to have the decree set aside, first became known to him. The husband of the plaintiff No. 1 came to know about the alleged execution of sale deed on 31. 7. 82 when he filed objection in Partition Case No. 27/81-82 which can be presumed that being the wife of Late Sk. Md. Hussain had the knowledge of execution of sale deed along with her husband on 31. 7. 82 which precludes her to bring the suit in the year, 1988 as provided under Article 59 of the Limitation Act and hence the suit is barred by limitation. So, the second question of law formulated is also answered in favor of the appellant.
29. Accordingly, I allow the appeal, set aside the judgments and decrees passed by both the Courts below and dismiss the suit of the plaintiffs-respondent. The parties are left to bear their own costs.
30. Registry is directed to send down the Lower Court records immediately.