(Per : MR.JUSTICE Y.B.BHATT)
1.This is an appeal under section 96, CPC, at the instance of the appellant-original plaintiff, challenging the judgement and decree passed by the Civil Judge (Senior Division), in Special Civil Suit No. 19/97, whereby the trial court dismissed the suit of the appellant-plaintiff.
2.We have heard the learned counsel for the appellant, carefully perused the impugned judgement and decree and have referred to such evidentiary material on record to which our attention has been drawn. As a result of this exercise, we are satisfied that the impugned judgement and decree are eminently sustainable and do not justify any interference by way of the present appeal.
3.Only a few salient features require to be noted.
4.The plaintiff sued the defendants in the sum of Rs.1,19,370/- on the basis of a document dated 31st May 1995. The plaintiff's case was that the predecessor of the defendants had sold an immovable property to the plaintiff by a registered sale deed executed as early as 2nd March 1991. However, according to the plaintiff, the vendor had no interest in the property or at any rate did not have full title in respect of the property alleged to have been sold in favour of the plaintiff by the registered sale deed. According to the plaintiff, therefore, she acquired no title or a defective title under the said sale deed. According to the plaintiff, therefore, a solution was worked out with the predecessor of the defendants, whereby the said predecessor Kantilal Dahyalal executed a document referred to by the plaintiff as an acknowledgment, on 31st May 1995 (Exh.46) on the basis of which the said Kantilal Dahyalal had agreed to refund certain amount to the plaintiff-Vendee, the amount having been calculated on the basis of the difference of sale consideration between the two dates.
5.It is pertinent to note that the plaintiff has sued only on the basis of a document at Exh.46, which is referred to as an acknowledgment. It is also pertinent to note that the registered sale deed executed on 2nd March 1991, in respect of which the plaintiff complains, has not been challenged in the suit, and there is absolutely no prayer to have the said sale deed declared null and void or inoperative or not binding on the plaintiff or any other similar prayer. In fact the said sale deed is neither produced nor proved on the record of the suit.
6.The entire case of the plaintiff is based upon an allegation that the said registered sale deed confers no title on the vendee-plaintiff, but the plaintiff nevertheless sues for an amount alleged to have been settled between the parties as constituting a refund of consideration, which document is at Exh.46.
7.However, we must note that Exh.46, as rightly found by the trial court, is not an independent document creating a debt on the part of the deceased Kantilal Dahyalal, and does not make the plaintiff the creditor ipso facto by the execution of the said document. The trial court was right in concluding that it is in continuation of and with direct reference to the registered sale deed dated 2nd March 1991. Obviously, therefore, any acknowledgment to refund the consideration (and/or the quantified amount as agreed between the parties) would be enforceable in law only while the claim is preferred within the period of limitation, counting from the date of the registered sale deed. As aforesaid, the sale deed is dated 2nd March 2001, whereas Exh.46 was executed on 31st May 1995. Obviously, Exh.46, whether referred to as an acknowledgment and/or by any other name, would create or extend the cause of action in favour of the plaintiff only if it was within the prescribed period of three years from the date of the sale deed. Obviously, Exh.46 is beyond that period. Thus, the document at Exh.46 would not independently confer upon the plaintiff any cause of action to recover the amount stipulated in the said document.
8.We may only observe that if this document had been relied upon, for the purpose of challenging the original sale deed, or for the purpose of having the original sale deed set aside, the question would have been different. However, as the facts stand in the present case, and looking to the prayers made by the plaintiff in the suit, the trial court was justified in dismissing the said suit.
9.In the premises aforesaid, we find that there is no substance in the present appeal and the same is, therefore, summarily dismissed.
[Y.B. BHATT J.] [SHARAD D. DAVE J.] *ar*