# Smt. Shajia & Anr v. Munazir Ali & Ors

- **Citation:** (2023) 1 ILRA 1070
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-18
- **Case number:** First Appeal From Order No. 2239 of 2022
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-shajia-anr-v-munazir-ali-ors-49300
- **Pages:** 10

## Headnote

Civil Law - Civil Procedure Code, 1908 -
Order 7 Rule 11 - Section - 96 - Limitation
Act, 1963 - Article 59: - Appeals - against
order of lower appellate court - Original suit for
cancellation of sale-deed - wherein appellant
filed an application contending suit is time
barred since alleged sale deed was executed in
year 2006 but he challenged in year 2012 - Trial
court rejected the Suit being time barred by
1 All. Smt. Shajia & Anr. Vs. Munazir Ali & Ors.
1071
three years under article 59 - Civil Appeal -
lower appellate court allowed the Civil appeal -
court finds that - in the plaint plaintiff's taken
plea that he got knowledge of execution of the
sale deed of 2006 only in the last week of Jan.
2012 - court held that, the question of limitation
is not a pure question of Law but a mixed
question of fact and law - and - question as to
whether the averments made in plaint are true
or not, can be adjudicated only after the
evidence is led by the parties - hence, no any
illegality in the order passed by the lower
appellate court in setting aside the order of trial
court - accordingly appeal lacks of its merit and
hence dismissed. (Para - 26, 30, 34, 35)

Appeal is allowed. (E-11)

List of Cases cited:

## Text

1070 INDIAN LAW REPORTS ALLAHABAD SERIES
cannot delve into this disputed question of
fact which has been decided by the
Commissioner which is first court of fact.
The owner, who has been examined as
DW1, had put the vehicle at the command
of the deceased, who was in employment.
Charan Singh was done to death being on
duty which is proved before the court
below. The first information report also
mentions that on 19.8.2002 Charan Singh
was driver of the vehicle and had taken the
vehicle for getting it washed in the morning
at 9:00 a.m. This fact is corroborated by the
chargesheet
also.
The
deceased
was
murdered as he was kidnapped is a finding
of fact in issue no.1. In that view of the
matter, these being questions of fact and
proved that he was done to death by certain
elements, the judgment of the Apex Court
in Rita Devi Vs. New India Assurance Co.
Ltd., LAWS (SC) 2000 499, will apply to
the facts of this case. As far as the question
of breach of policy is concerned, the said
driving
licence
whether
had
an
endorsement or not is covered by the
judgment in Mukund Dewangan Vs.
Oriental Insurance Co. Ltd., AIR 2017 SC
3668. It is nobody case that the vehicle was
run as taxi quota vehicle. As far as issue no.
(c) is concerned, the learned Commissioner
while deciding issue no.5 has decided this
factual data against the appellant. I concur
with the same for the reasons assigned
herein above and on the basis of the
judgment of the Apex Court in Mukund
Dewangan (supra). As in issue no.5, it is
proved that the vehicle was insured and the
driver was insured and the driver had a
driving licence. They had even contended
that the driving licence was valid but there
was no endorsement. As far as substantial
question of law is concerned, the postmortem report and the F.I.R. categorically
proves that it was Charan Singh dead-body
and there is no need to wait for the decision
of criminal court once the Commissioner
was satisfied on the facts of the case that
Charan Singh was done to death.

16. In that view of the matter this
appeal fails and is dismissed. The so called
questions of law framed by the Insurance
Company are answered against it. In fact
the substantial questions of law raised are
the questions of fact.

17. Interim relief shall stand vacated
forthwith. The Registry will forward this
order to the W.C. Commissioner who shall
immediately summon the claimants and
disburse the amount kept in fixed deposit
with interest accrued on the said amount till
date within 30 days from today.
----------
(2023) 1 ILRA 1070
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.11.2022

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

First Appeal From Order No. 2239 of 2022

Smt. Shajia & Anr. ...Appellants
Versus
Munazir Ali & Ors. ...Respondents

Counsel for the Appellants:
Sri Ajay Kumar Singh Yadav, Sri Divyansh

Counsel for the Respondents:
--

Civil Law - Civil Procedure Code, 1908 -
Order 7 Rule 11 - Section - 96 - Limitation
Act, 1963 - Article 59: - Appeals - against
order of lower appellate court - Original suit for
cancellation of sale-deed - wherein appellant
filed an application contending suit is time
barred since alleged sale deed was executed in
year 2006 but he challenged in year 2012 - Trial
court rejected the Suit being time barred by
1 All. Smt. Shajia & Anr. Vs. Munazir Ali & Ors.
1071
three years under article 59 - Civil Appeal -
lower appellate court allowed the Civil appeal -
court finds that - in the plaint plaintiff's taken
plea that he got knowledge of execution of the
sale deed of 2006 only in the last week of Jan.
2012 - court held that, the question of limitation
is not a pure question of Law but a mixed
question of fact and law - and - question as to
whether the averments made in plaint are true
or not, can be adjudicated only after the
evidence is led by the parties - hence, no any
illegality in the order passed by the lower
appellate court in setting aside the order of trial
court - accordingly appeal lacks of its merit and
hence dismissed. (Para - 26, 30, 34, 35)

Appeal is allowed. (E-11)

List of Cases cited:

1. Sukhbiri Devi & ors. Vs U.O.I. & ors. (Civil
Appeal No. 10834 of 2010),

2. Raghwendra Sharan Singh Vs Ram Prasanna
Singh (Dead) by LRs. (Civil Appeal No. 2960 of
2019),

3. C.S. Ramaswamy Vs V.K. Senthil & ors. (Civil
Appeal No. 500 of 2022),

4. Md. Noorul Hoda Vs Bibi Raifunnisa & ors.,
(1996) 7 SCC 767),

5. Saranpal Kaur Anand Vs Praduman Singh
Chandhok & ors., (2022) 8 SCC 401.

(Delivered by Hon'ble Saral Srivastava, J.)

1. Heard Sri A.K.S. Yadav, learned
counsel for the appellant.

2. The defendants/appellants have
preferred the present appeal against the
order dated 21.09.2022 passed by the lower
appellate court setting aside the order of the
trial Court dated 11.03.2019 by which the
trial Court has rejected the plaint of
Original Suit No.59 of 2012 instituted by
the
plaintiff/respondent
no.1
for
cancellation of sale deed with respect to the
suit property on the ground that the suit is
barred by limitation.

3. Brief facts of the case are that the
plaintiff/respondent no.1 has instituted
Original Suit No.59 of 2012 praying for
cancellation of the sale deed alleged to
have been executed on 05.12.2006 with
respect to the suit property. The suit has
been instituted by the plaintiff/respondent
no.1 alleging that respondent no.2 Araish
Ali (defendant no.2 in the suit) was the son
of
the
plaintiff/respondent
no.1
and
appellant
no.1
Smt.
Shazia
Khan
(defendant no.1 in the suit) is the wife of
respondent no.2 (hereinafter referred to as
the 'wife of respondent no.2). Further
allegation in the plaint is that respondent
no.4 (defendant no.4 in the plaint) is the
father of appellant no.1.

4. The marriage of respondent no.2,
son of the plaintiff/respondent no.1, was
solemnized
with
appellant
no.1
on
30.04.2006.
Thereafter
appellant
no.1
started living as the wife of respondent no.2
in the house of the plaintiff/respondent
no.1. It is further pleaded that appellant
no.1 has colluded with respondent no.2 to
usurp
the
property
of
the
plaintiff/respondent no.1. To achieve the
said object, the appellant no.1 registered a
false complaint against the wife and
nephew (sister's son) of plaintiff/respondent
no.1 under the Dowry Prohibition Act on
30.11.2006. Pursuant to the FIR dated
30.11.2006
the
nephew
of
the
plaintiff/respondent no.1 was arrested and
had to remain in jail.

5. It is further stated that respondent
no.4 in collusion with appellant no.1 had
agreed to withdraw the FIR on the
condition that the plaintiff/respondent no.1
transfer the house owned by him by way of
1072 INDIAN LAW REPORTS ALLAHABAD SERIES
a sale deed in favour of appellant no.1. It
was agreed that on the execution of sale
deed, the FIR dated 05.12.2006 would be
withdrawn.

6.

Further
case
of
the
plaintiff/respondent no.1 is that because of
the pressure tactics adopted by the
appellant no.1, the plaintiff/respondent no.1
had no option but to execute the sale deed
because
of
the
false
criminal
case
registered against his wife and nephew by
appellant no.1 without getting any sale
consideration with respect to the house
owned by him. It is stated that he executed
the sale deed only in respect to the house.
The plaintiff/respondent no.1 has further
stated that he had no knowledge about the
execution of the sale deed date 05.12.2006
with respect to the agricultural land
described in the plaint, which was got
executed by appellant no. 1 by playing
fraud.

7. It is the specific case of the
plaintiff/respondent no.1 in the plaint that
he has not executed any sale deed in
respect of the agricultural land which is the
suit property, nor he has received any sale
consideration as alleged in the said sale
deed. The plaintiff/respondent no.1 in para8 of the plaint has categorically stated that
the plaintiff/respondent no.1 was forced to
execute the sale deed of the house and
when he reached the Court for the
execution of the sale deed, the sale deed
was not read over to him and wherever he
was asked to put his signature, he had put
his signature as he was told that the papers
are related to the sale deed in respect of the
house.

8. It is the further case of the
plaintiff/respondent
no.1
that
the
consolidation proceeding was undertaken
in the village in which a chak was carved
out, in which the name of the plaintiff/
respondent no.1 is still recorded and the
possession of chak has been handed over to
the plaintiff/respondent no.1.

9.

It
is
stated
that
the
plaintiff/respondent no.1 came to know
about the sale deed dated 05.12.2006
executed in the last week of January 2012
when the appellant interfered with the
possession of the plaintiff/respondent no.1
which gave rise to the cause of action to the
plaintiff/ respondent no.1to institute the
present suit. Thereafter, the suit has been
filed for cancellation of the sale deed dated
05.12.2006 with respect to the suit property
described in para-1 & 2 of the plaint.

10. In the said suit, the appellant filed
an application under Order 7 Rule 11
C.P.C. contending inter alia that the suit is
barred by limitation since the sale deed is
alleged
to
have
been
executed
on
05.12.2006 whereas the suit has been
instituted on 14.02.2012 after three years
which is the period of limitation for a suit
for cancellation of the sale deed as
provided under Article 59 of the Indian
Limitation Act.

11. The trial Court held that on the
reading of the plaint, it is evident that the
suit has been filed for cancellation of the
sale deed dated 05.12.2006 whereas the suit
has been instituted in February 2012 and as
the period of limitation for filing the suit
for cancellation of the sale deed is three
years as provided under Article 59 of
Limitation Act, 1963, therefore, the suit is
barred by limitation.

12. The plaintiff/respondent no.1
preferred an appeal under Section 96 of the
C.P.C.
before
the
appellate
Court,
1 All. Smt. Shajia & Anr. Vs. Munazir Ali & Ors.
1073
registered as Civil Appeal No.28 of 2019
which came to be allowed by the appellate
Court by order dated 21.09.2022 holding
that the trial Court has framed Issue no.10
"whether the suit is barred by limitation".
The trial Court on the said issue on
20.10.2013 passed an order that the counsel
for both the parties, i.e., plaintiff and
respondents have agreed to the disposal of
issue no.10 after the evidence is led by the
parties.

13. The appellate Court found that as
there was an order dated 20.10.2013
wherein counsel for both the parties had
agreed to the disposal of Issue no.10 after
the evidence are led, therefore, the trial
Court was bound by the order dated
20.10.2013 and until the order dated
20.10.2013 is reviewed, the application
under Order 7 Rule 11 C.P.C. could not
have been disposed of since both the
counsel, i.e., counsel for the plaintiff and
defendant had consented for disposal of
Issue no.10 after the evidence are led by the
parties.

14. Challenging the order, learned
counsel for the appellants has contended
that on a bare reading of the plaint, it is
evident that the suit is barred by limitation.
It is contended that it is admitted on record
that the sale deed in respect to the suit
property had been executed on 05.12.2006
whereas the suit has been instituted in
February 2012 and thus, it is manifest that
the period of three years has expired,
therefore, the plaint is liable to be rejected
on the ground that the suit is barred by
limitation in view of Article 59 of the Act,
1963.

15. It is submitted that the Court is
under obligation to appreciate the pleading in
its true spirit and if on reading the plaint and
other material enclosed with the plaint that
the suit is barred by limitation, the clever
drafting of the plaint to bring the suit within
limitation cannot save the plaint from being
rejected on the ground that it is barred by
limitation.

16. He submits that it is evident from
the plaint that the plaintiff/respondent no.1
has admitted the execution of the sale deed
and only denies the contents of the
documents, and thus, it is evident that he had
knowledge about the execution of the sale
deed dated 05.12.2006 on the date it was
executed and as the suit has been instituted in
the year 2012, therefore, it is evident that the
suit is barred by limitation and the appellate
Court has committed material irregularity in
not appreciating the correct facts on record. It
is further submitted that even the plaintiff/
respondent no.1 has admitted in the suit that
consolidation
proceeding
had
been
undertaken in which an objection has been
raised.

17. It is contended that after the
execution of the sale deed, appellant no.1
had submitted an application for mutation
of her name in the revenue records which
was objected to by the plaintiff/respondent
no.1 in the year 2007 and therefore, it is
manifest that the plaintiff/ respondent no.1
had knowledge about the sale deed on the
date of filing of the objection in the year
2007 and, therefore, the suit is even
otherwise barred by limitation. In support
of his case, he has placed reliance upon the
judgement of the Apex Court passed in
Civil Appeal No.10834 of 2010, Sukhbiri
Devi and Others Vs. Union of India ad
Others, Civil Appeal No.2960 of 2019,
Raghwendra Sharan Singh Vs. Ram
Prasanna Singh (Dead) by LRs & Civil
Appeal No.500 of 2022 C.S. Ramaswamy
Vs. VK. Senthil and Others.
1074 INDIAN LAW REPORTS ALLAHABAD SERIES

18. I have considered the submissions
advanced by the learned counsel for the
appellant and perused the record.

19.

Before
appreciating
the
controversy in hand, it would be apposite to
appreciate the facts on which the suit has
been instituted.

20. The plaintiff/respondent no. 1 has
stated in the plaint that he is the owner of
the suit property described in paras-1 & 2
of
the
plaint.
Further
case
of
the
plaintiff/respondent no.1 is that respondent
no.2 was the son who was married to
appellant no.1. The appellant no.1 took
respondent no.2 in confidence and hatched
a conspiracy to usurp the movable and
immovable
property
of
the
plaintiff/respondent no.1, and to achieve
this object, appellant no.1 registered FIR on
30.11.2006 against the wife and nephew
(sister's son) of the plaintiff/respondent
no.1.
Thereafter,
appellant
no.1
and
respondent
no.4
had
forced
the
plaintiff/respondent no.1 to execute a sale
deed in respect of the house owned by him
in favour of appellant no.1 on the condition
that on the execution of the sale deed, FIR
dated 30.11.2006 shall be withdrawn. It is
also pleaded that after registration of the
FIR dated 30.11.2006, the nephew of the
plaintiff/respondent no.1 was arrested and
was in incarceration, in such circumstances,
the plaintiff/respondent no.1 had no option
but to execute the sale deed because of the
pressure tactics adopted by the appellant
no.1, and in such circumstances, he
executed a sale deed only in respect to the
house owned by him on 05.12.2006.

21. It is specifically pleaded in the
plaint that when the plaintiff/respondent
no.1 reached the Court for the execution of
the sale deed, he signed all the papers as he
was under pressure because of false FIR
against the wife and nephew. It is also
pleaded that the contents of the documents
were not read over to him and he was under
the bonafide belief that he had been signing
documents only with respect to the house
and not with respect to the suit property. It
is also averred in the plaint that the
plaintiff/respondent no.1 has not executed
any sale deed in respect of the suit property,
nor has received any sale consideration. He
executed the sale deed in respect of the
house because of pressure tactics adopted
by appellant no.1 by lodging FIR. He
signed all the documents under the
bonafide belief that the documents are with
respect
to
the
house
of
the
plaintiff/respondent
no.1.The
plaintiff/respondent no.1 has also stated
that he is illiterate and he can merely sign
his signature.

22. It is stated that he has not
executed any sale deed in respect of the suit
property and he came to know about the
alleged execution of the sale deed in the
last week of January 2012 when the
appellant no.1 tried to interfere with the
possession of the property and that gave
rise him cause of action to institute present
suit.

23. From the facts delineated above, it
is evident that the plaintiff/respondent no.1
has pleaded a specific case that he has not
executed any sale deed in respect to suit
property and in this respect, it would be apt
to reproduce paras-7 & 8 of the plaint:-

"7. यह की माह जनवरी 2012 के अखन्तम
सप्ताह में प्रग्रतवादीगण नम्बर 1, 2 व 5 ने
ग्रववाग्रदत आराजी गाट्ा सोंख्या- 204 पर
अवैिाग्रनक रूप से जबरदस्ती ग्रबना ग्रकसी
अग्रिकार के कब्जा करने की क ग्रशश की
1 All. Smt. Shajia & Anr. Vs. Munazir Ali & Ors.
1075
लेग्रकन वादी ने स्वयों व दीगर ल ग ों की मदद से
उपर क्त प्रग्रतवादीगण क उनके मकसद मे
कामयाब नही ह ने ग्रदया तभी उपर क्त
प्रग्रतवादीगण ने वादी की कग्रथत मकान के
बयनामे के समय प्रग्रतवादीगण नम्बर 1, 2 व 5 ने
प्रग्रतवादीगण नम्बर 3 व 4 की मदद से उपर क्त
आराजी ग्रजसकी तफसील वाद पत्र के पैरा नम्बर
2 में ग्रलिी है, का भी कग्रथत बयनामा करा
ग्रलया। वादी ने उपर क्त आराजी का ग्रदनाोंक-
5.12.06 क प्रग्रतवादनी नम्बर 1 के हक में
कग्रथत क ई बयनामा तहरीर, तकमील व
रग्रजस्टरी नही कराया और न ही वादी ने
प्रग्रतवादनी नम्बर 1 से कग्रथत बयनामे का कग्रथत
4,00000 रूपये प्रग्रतफल प्राप्त ग्रकया। कग्रथत
बयनामा अकृत व शून्य है, ि िे व षडयन्त्र पर
आिाररत है और ग्रबना प्रग्रतफल के है। वादी ने
प्रग्रतवादनी नम्बर 1 से कग्रथत मकान के बयनामें
का भी एक रूपये प्रग्रतफल प्राप्त नहीों ग्रकया।

8. यह ग्रक कग्रथत मकान के बयनामे के
समय वादी कग्रथत बयनामा कराने के ग्रलये
मजबूर था और जब वादी तहसील पहुोंिा त
कग्रथत मकान के कागजात तैयार थे और वादी
क यही बताया गया ग्रक कग्रथत कागजात मकान
से सम्बखन्धत हैं और वादी क क ई भी कागज
पढ़कर नहीों सुनाया गया। जहााँ जहााँ िाहे कग्रथत
दस्तावेज लेिक ने कग्रथत कागजात पर वादी के
ग्रनशान अोंगूठे लगवा ग्रलये। वादी पढ़ा ग्रलिा
व्यखक्त नहीों है केवल वादी ने हस्ताक्षर करना
सीि ग्रलये हैं। वादी ने कग्रथत कागजात पर
मकान का बयनामा समझकर अपने ग्रनशान
अोंगूठे लगा ग्रदये। काग्रतब ने या प्रग्रतवादीगण ने
या सब रग्रजस्टरार के कायािलय में ग्रकसी ने भी
वादी क क ई कागजात पढ़कर नहीों सुनाये और
वादी ने मकान के कागजात समझकर अपने
ग्रनशान अोंगूठे लगा ग्रदये। यग्रद वादी क यह
मालूम ह ता ग्रक प्रग्रतवादीगण मकान के अलावा
वादी की आराजी का भी कग्रथत बयनामा करा
रहे हैं तब कभी भी वादी कग्रथत बयनामें पर
अपने ग्रनशान अोंगूठे नहीों लगाता। कग्रथत
बयनामा बाबत आराजी ग्रनजाई सरासर गलत,
अवैिाग्रनक व शून्य है और ग्रबना प्रग्रतफल के है
तथा वादी पर काग्रबले पाबिी नहीों है। कग्रथत
बयनामे के आिार पर प्रग्रतवादनी नम्बर 1 का
नाम कभी भी राजस्व अग्रभलेि ों में दजि नही
हुआ और नही वादी ने कग्रथत बयनामें के आिार
पर ग्रववाग्रदत आराजी पर प्रग्रतवादनी नम्बर 1 का
कब्जा व दिल कराया। िकबिी के दौरान भी
िक वादी के नाम बनाया गया है और वादी क
ही िक पर कब्जा व दिल ग्रदलाया गया है।

8 अ- यह ग्रक मान्य न्यायालय के
आदेशानुसार प्रग्रतवादी नों० 8 क फरीक
मुकदमा बनाया जा रहा है प्रग्रतवादी नों०8"

24. There is a specific pleading of the
plaintiff/respondent no.1 in the suit that he
has never executed the sale deed dated
05.12.2006 in respect of the suit property.
The plaintiff/respondent no.1 had denied
the execution of the sale deed dated
05.12.2006 by him and, therefore, this
Court is not inclined to accept the
contention of learned counsel for the
appellant that the plaintiff/respondent no.1
has admitted the execution of sale deed but
has only denied the contents of the sale
deed and, therefore, the suit is barred by
limitation in view of Article 59 of the Act,
1963.

25. The law on the point that in
considering the application under Order 7
Rule 11 C.P.C. is settled that the Court is
required to see only the averments made in
the plaint, and if on the reading of the
plaint, a cause of action is made out, the
plaint under Order 7 rule 11 C.P.C. cannot
be rejected.

26.

In
the
instant
case,
the
plaintiff/respondent no.1 has denied the
execution of the sale deed dated 05.12.2006
and has averred in the plaint that he came
1076 INDIAN LAW REPORTS ALLAHABAD SERIES
to know about the execution of the sale
deed dated 05.12.2006 only in the last week
of January 2012 when the respondents
started
interfering
with
the
peaceful
enjoyment of the suit property.

27. The specific case of the
plaintiff/respondent in the present case is
not that he had executed the instrument
(sale deed) dated 05.12.2006 and he did not
know the contents of the sale deed, rather
the plaintiff/respondent has denied the
execution of the sale deed dated 05.12.2006
in respect to suit property and has further
detailed in the plaint that under compelling
circumstances, he signed all the documents
as asked by the defendant/appellants
believing it to be the document with respect
to the sale of his house. Therefore, the
question as to whether the averments made
in paras 7 & 8 of the plaint are true or not,
can be adjudicated only after the evidence
is led by the parties. In case the averments
of the plaint are found to be correct based
on evidence on record, then the limitation
would be counted from the date the
plaintiff/appellant came to know about the
alleged sale deed dated 05.12.2006 in
respect of the suit property.

28. In a case where the instrument is
alleged to have been got executed or
obtained by fraud, the starting point of
limitation to set aside or cancel such an
instrument is the date of knowledge of the
alleged fraud. In this respect, it would be
useful to reproduce para-6 of the judgement
of Apex Court in the case of Md. Noorul
Hoda Vs. Bibi Raifunnisa and Others
(1996) 7 SCC 767, which is reproduced
herein-below:-

"6. The question, therefore, is as to
whether Article 59 or Article 113 of the
Schedule to the Act is applicable to the
facts in this case. Article 59 of the Schedule
to the Limitation Act, 1908 had provided
inter alia for suits to set aside decree
obtained by fraud. There was no specific
article to set aside a decree on any other
ground. In such a case, the residuary
Article 120 in Schedule III was attracted.
The present Article 59 of the Schedule to
the Act will govern any suit to set aside a
decree either on fraud or any other ground.
Therefore, Article 59 would be applicable
to any suit to set aside a decree either on
fraud or any other ground. It is true that
Article 59 would be applicable if a person
affected is a party to a decree or an
instrument or a contract. 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
1 All. Smt. Shajia & Anr. Vs. Munazir Ali & Ors.
1077
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 become known to him."

29. It is also pertinent to mention the
judgement of the Apex Court in the case of
Saranpal Kaur Anand Vs. Praduman
Singh Chandhok and Others (2022) 8
SCC
401
wherein
Apex
Court
in
paragraphs 11 & 12 has held as under:-

"11... The general principle, which
also manifests itself in Section 17 of the
Limitation Act, is that every person is
presumed to know his own legal right and
title in the property, and if he does not take
care of his own right and title to the
property, the time for filing of the suit
based on such a right or title to the
property is not prevented from running
against him. The provisions of Section
17(1) embody fundamental principles of
justice and equity viz. that a party should
not be penalised for failing to adopt legal
proceedings
when
the
facts
or
the
documents have been wilfully concealed
from him and also that a party who had
acted fraudulently should not be given the
benefit of limitation running in its favour by
virtue of such frauds. However it is
important to remember that Section 17 does
not defer the starting point of limitation
merely
because
the
defendant
has
committed a fraud. Section 17 does not
encompass all kinds of frauds, but specific
situations covered by clauses (a) to (d) to
Section 17(1) of the Limitation Act. Section
17(1)(b) and (d) encompass only those
fraudulent
documents
or
acts
of
concealment of documents which have the
effect of suppressing knowledge entitling
the party to pursue his legal remedy. Once
a party becomes aware of antecedent facts
necessary to pursue legal proceedings, the
period of limitation commences.

12. Therefore in the event the plaintiff
makes out a case that falls within any or
more of the four clauses to sub-section (1)
to Section 17 of the Limitation Act, the
period of limitation for filing of the suit
shall not begin to run until the plaintiff or
applicant has discovered the fraud/ mistake
or could with reasonable diligence have
discovered it or if the document is
concealed till the plaintiff has the means of
producing the concealed document or
compelling its production a fortiori."

30. Thus, in the present case, the
question of limitation is not a pure question
of law but a mixed question of fact and law.
Perhaps, keeping this fact in mind, learned
counsel for the appellant has also consented
before the trial Court which has been
recorded in the order of the trial Court
dated 21.09.02022 that Issue No.10 shall be
decided
after
the
parties
lead
their
evidence.

31. Now, coming to the first
judgement of the Apex Court relied upon
by the learned counsel for the appellants in
Civil Appeal No.10834 of 2010, decided
on 29.10.2022, this Court may note that in
the said case, the predecessor-in-interest of
1078 INDIAN LAW REPORTS ALLAHABAD SERIES
the appellants, namely, Rama Nand, was
the
bhumidhar
of
certain
extent
of
agricultural land situated in Village Naraina
in Delhi. The said plot of agricultural land
was acquired and an award was passed in
relation to its acquisition on 09.01.1976.
The
predecessor-in-interest
of
the
appellants, namely, Rama Nand died,
leaving behind his widow, two sons,
namely, Nahar Singh and Dhan Singh, and
four daughters. The widow of the late
Rama Nand also died. The policy provided
that
the
bhumidhar
was
entitled
to
allotment of alternative residential plot in
lieu of the acquired land. Late on, the
alternative
plot
was
allotted
in
the
exclusive name of Dhan Singh, upon his
production of the registered relinquished
deed as per a letter dated 08.03.1991. The
fact of allotment of the plot in favour of
Dhan Singh came in the knowledge of his
brother Nahar Singh, who filed an
objection on 05.04.1991 with regard to the
allotment of the plot in the exclusive name
of Dhan Singh. Subsequently, Nahar Singh
died on 14.05.1993. Thereupon, his widow
and children stepped into his shoes. As per
the plaint case, the original plaintiff no.1
submitted several representations to the
authorities to refrain them from allotting
the alternative plot in the exclusive name of
Dhan Singh. Subsequently, they instituted
suit No.410 of 2000 on 14.06.2000 seeking
a decree for a declaration that the
appellants be declared as joint co-owner of
the residential plot allotted in the name of
Dhan Singh. In the said suit, the defendant
raised a plea that till the relinquished deed
dated 21.10.1985 is held to be illegal, null,
void,
and
not
binding
upon
the
plaintiff/appellants, they cannot be declared
as co-owner of the suit. It is pleaded that in
the instant case the relinquished deed dated
21.10.1985 came to the knowledge of the
plaintiff on 08.03.1991 and the suit has
been filed in the year 2000, therefore, the
suit is barred by limitation. In such a
factual backdrop, the Apex Court held that
the question of limitation can be decided as
a preliminary issue, and on consideration of
the fact in the said case, the Apex Court
was of the view that the Trial Court has
rightly dismissed the suit on the ground of
limitation.

32. In another judgement of the Apex
Court relied upon by the learned counsel
for the appellants in Civil Appeal No.2960
of 2019, decided on 13.03.2019, it may be
noted that the facts of the said case are
distinguishable from the facts of the present
case. In the said case, the respondent filed
T.S. Suit No.19 of 2003 against the
appellant-original defendant in the Court of
Munsif Danapur for a declaration that the
deed of gift dated 06.03.1981 executed in
favour of the appellant is showy and sham
transaction and no title and possession with
respect to the gifted property ever passed to
the appellant -original defendant and the
same is not binding on him. In the said
case, an application was filed under Order
7 Rule 11 C.P.C. for rejection of the plaint
on the ground that the suit is barred by law
of limitation on the ground that the deed of
the
gift
having
been
executed
on
06.03.1981, the suit under Article 59 of the
Limitation Act ought to have been filed
within three years from the date of
execution of gift deed, whereas the same
has been filed after more than 22 years
from the date of execution of the gift deed.
In that case, the fact as emanates from the
judgement are that the plaintiff/respondent
had knowledge about the execution of the
registered gift deed dated 06.03.1981, but
they did not raise any objection till the year
2003 and in such factual backdrop, the
Apex Court held that the suit is barred by
limitation.
1 All. Ishlam Vs. State of U.P. & Ors.
1079

33. In another judgement of the Apex
Court relied upon by the learned counsel
for the appellants in Civil Appeal No.500
of 2022 decided on 20.09.2022, the Apex
Court was considering a case where the
original plaintiff/respondent instituted a suit
for a decree of cancellation of the
registered sale deed executed by the
original plaintiff. The suit has been
instituted in the year 2015/2016 i.e., after
about a period of 10 years from the date of
execution of the registered sale deed. The
suit was instituted on the ground that the
sale deed has been got executed by fraud
and misrepresentation and the plaintiffs
signed the said documents believing or
treating it as a joint venture agreement and
the plaintiffs did not go through the
contents of the said documents and as in
the year 2015, they came to know about
such fraud and obtaining the documents of
the
sale
deed
by
misrepresentation,
therefore, considering Section 17 of the
Act, the said suit cannot be said to be
barred by limitation. In the said case, the
Apex Court while considering the import of
the pleading in the plaint of the suit found
that only bald averments have been made
with regard to the fraud and in such factual
backdrop, the Apex Court held that mere
stating in the plaint that fraud has been
played is not enough and the allegation of
fraud must be specifically averred in the
plain, otherwise merely by using the word
'fraud', the plaintiffs would try to get the
suits within the limitation, which otherwise
may be barred by limitation. So, this
judgment is also distinguishable on facts
and law enunciated in the said judgement in
the said judgment is not applicable in the
present case. Therefore, this judgment also
does not come in aid to the appellant.

34. Thus, for the reasons given above,
this Court does not find any illegality in the
order passed by the lower appellate court in
setting aside the order passed by the trial
Court rejecting the plaint on the ground of
limitation.

35. Accordingly, the appeal lacks
merit and is hereby dismissed with no order
as to costs.
----------
(2023) 1 ILRA 1079
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.01.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Second Appeal No. 172 of 2021

Ishlam ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Ramendra Asthana, Sri Vijay Kumar Ojha

Counsel for the Respondents:
Sri Devendra Dahma, Sri Girijesh Tripathi (S.C.)

Civil Law- Civil Procedure Code, 1908 -
Sections 100 & 331 - Order VII Rules 11, -
UP Panchayat Raj Act,1947 - Section 106,
- Wakf Act, 1995 - Sections 85 & 85-A, -
Constitution of India, 1950 -Articles 226
& 227 - UP Zamindari Abolition and Land
Reforms Act,1950 - Sections 122-B, 122B(3), 122-B(4-A), 122-B (4-D), 122-B(4E), 122-B(4-F), 229-B(1), 229-B(2) &
229-B(3)- Second Appeal - arising out of a
suit for declaration and permanent injunction -
jurisdiction - held, if the court below finds that it
has no jurisdiction to try the suit and the suit as
framed can be tried by the court of competent
jurisdiction, which is a Revenue Court, the Civil
Court ought not to dismissed the suit in fact,
issues on the merits of a party's case may not at
all be gone into if the Civil Court thinks that the
suit is not cognizable by it, but by the Revenue
Court in view of the provisions of Section 331 of