Ukadbhai Bhaijibhai Tadvi & 3 ­ Defendants

1.0 Present Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellants­original defendants nos. 1 to 4 to quash and set aside the impugned judgment and order/decree passed by the learned appellate Court­ learned 2nd Extra Assistant Judge, Vadodara dated 20/03/1991 in Regular Civil Appeal No. 353/1983 by which the learned appellate Court has allowed the said appeal preferred by respondent no. 1­ original plaintiff by quashing and setting aside the judgment and decree passed by the learned trial Court dismissing the suit and consequently decreeing the suit declaring the sale deed dated 07/03/1955 executed by original defendants nos. 6 and 7­mother and cousin of the original plaintiff as null, void and executed illegally, without any right and authority by the executant­original defendants nos. 6 and 7, executed in favour of the appellants.

2.0 The facts leading to the present Second Appeal in nutshell are as under:

2.1. That the suit “Vada” land in question was owned by the father of the original plaintiff. However, at the relevant time, the father of the original plaintiff and husband of original defendant no. 6 was suffering from leprosy and, therefore, original defendant no. 6­mother and cousin brother of the original plaintiff (original defendants nos. 6 and 7) executed the sale deed on 7.3.1955 with respect to the suit 'vada' land in favour of the appellants­original defendants nos. 1 to 4. It is required to be noted that the said sale deed executed by original defendants nos. 6 and 7­mother and cousin brother of the original plaintiff was a registered sale deed registered with the office of Sub­Registrar. It appears that at the relevant time in the year 1955 when the sale deed was executed at that time the plaintiff was minor who attained the age of majority in the year 1958. It appears that one criminal Complaint came to be filed by the original defendant no. 6­mother of the original plaintiff against the appellants herein ­original defendants no.1 to 4 in the year 1981 for the offences under Sections 447, 504, 506 and 114 of the Indian Penal Code against original defendant no. 1­appellant no. 1. However, the same came to be dismissed for non­prosecution subsequently. Only thereafter and having failed to get any relief in the complaint which was filed by her mother, respondent no. 1­ original plaintiff instituted Regular Civil Suit No. 52/1982 against the appellants­original defendants no. 1 to 4 ­purchaser as well as the mother and cousin brother of the original plaintiffs (defendants no. 6 and 7) in the Court of learned Civil Judge (Junior Division), Sankheda for declaration and permanent injunction to declare the sale deed executed by original defendants nos. 6 and 7 in favour of the appellants­original defendants nos. 1 to 4 as illegal, null and void and without any right and authority. It was the case on behalf of the original plaintiff that at the relevant time when original defendants nos. 6 and 7 (mother and cousin brother of the original plaintiff) executed the sale deed in the year 1955 he was minor and the same was sold as his guardian and at the relevant time as such there was no legal necessity to sell the said 'vada' land and, therefore, it was submitted that original defendants nos. 6 and 7 (mother and cousin brother of the original plaintiff ) had no authority/right to execute the sale deed. It was also submitted that at the relevant time his father was alive and, therefore, original defendants nos. 6 and 7 could not have executed the sale deed and, therefore, the same is illegal. It was further submitted that the original plaintiff is in possession of the disputed 'vada' land in question and as original defendants nos. 1 to 5 were trying to disturb the possession it was requested to grant permanent injunction against original defendants nos. 1 to 5 restraining them from disturbing the possession of the original plaintiff.

2.2. The suit was resisted by original defendant no. 1 by filing written statement at Exh. 14. The original defendants nos. 6 and 7 (mother and cousin of the original plaintiff), who executed the sale deed dated 07/03/1955 did not file any written statement. The suit was resisted by original defendant no. 1 by submitting that the suit is barred by the law of limitation. It was submitted that the registered sale deed was executed by the original defendants no. 6 and 7 in favour of defendant nos.1 to 4 with respect to the suit land, which was joint family property and was sold for the benefit of the family members executed by original defendants nos. 6 and 7 as 'vahivat karta' as at the relevant time father of the original plaintiff was suffering from leprosy. It was also submitted that though the entire 'vada' land was sold, by showing grace some portion of the “vada” land on which there was hut, possession of the same was permitted to be continued to be occupied by the original defendant no. 6­mother as she was staying in the hut. It was specifically denied that except the hut, which was occupied by original defendant no. 6, the original plaintiff is in possession of the suit 'vada' land. It was submitted that as such the original plaintiff was serving in the Railway and other places and was not residing in the hut along with defendant no.6 and was not in possession of the suit 'vada' land as alleged.

2.3. The learned trial Court framed the issues at Exh. 24.

Both the sides led the evidence, documentary as well as oral. The learned trial Court relying upon Article 60 of the Limitation Act held that as the original plaintiff attained the age of majority in the year 1958 and the suit has been instituted in the year 1982 challenging the sale deed executed by original defendants nos. 6 and 7 beyond the period of three years after plaintiff attained the age of majority, the suit is barred by limitation. Consequently, the learned trial Court dismissed the suit and refused to grant declaration as prayed for. On appreciation of evidence the learned trial Court held that the original plaintiff has failed to prove his possession of the disputed 'vada' land and, therefore, is not entitled to permanent injunction as prayed for. Consequently, the learned trial Court dismissed the suit by judgment and decree dated 18/08/1983.

2.4. Being aggrieved and dissatisfied with the judgment and decree passed by the learned Civil Judge (Junior Division), Sankheda dated 18/08/1983 in Regular Civil Suit No. 52/1983, respondent no. 1­original plaintiff preferred Regular Civil Appeal No. 33/1983 before the learned District Court, Vadodara and the learned appellate Court­learned Second Extra Assistant Judge, Vadodara by impugned judgment and order dated 20/03/1991 has allowed the said appeal by quashing and setting the judgment and decree passed by the learned trial Court dismissing the suit and consequently decreeing the suit and granting permanent injunction as prayed for by holding that considering Article 58 of the Limitation Act, the suit is not barred by law of limitation.

2.5. Being aggrieved and dissatisfied with the impugned judgment and order passed by the learned appellate Court, the appellants­original defendants nos. 1 to 4 have preferred the present Second Appeal under Section 100 of the Code of Civil Procedure.

3.0 At the outset, it is required to be noted that while admitting the present Second Appeal the learned Single Judge raised the following substantial question of law in the present Second Appeal.

"Whether in the facts and circumstances of the case the learned appellate Judge erred inholding that the suit is covered by Article 58 of the Limitation Act, 1963?”

4.0 Shri J. M. Patel, learned advocate appearing on behalf of the appellants­original defendant nos. 1 to 4 has vehemently submitted that the learned appellate Court has materially erred in allowing the appeal and quashing and setting aside the judgment and decree passed by the learned trial Court. It is submitted that the learned appellate Court has materially erred in holding that the suit filed by the original plaintiff was within the period of limitation. It is submitted that the learned appellate Court has materially erred invoking Section 17 of the Limitation Act as well as Article 58 of the Limitation Act. It is submitted that as such looking to the averments made in the plaint and the ground on which the sale deed dated 07/03/1955 executed by his mother and cousin brother was sought to be set aside, the learned appellate Court ought to have considered Article 60 of the Limitation Act. It is submitted that as the original plaintiff attained the age of majority in the year 1958 he was required to institute the suit to set aside the sale deed executed in the year 1955 within a period of three years from the date of attaining the age of majority and, therefore, it is submitted that as such the learned appellate Court has materially erred in quashing and setting the judgment and decree passed by the learned trial Court by which the learned trial Court applied Article 60 of the Limitation Act by holding that the suit was barred by the law of limitation. In support of his above submission, Shri Patel, learned advocate appearing on behalf of the appellant has heavily relied upon the decision of the full Bench of this Court in the case of Jadav Prabhatbhai Jethabhai vs. Parmar Karsanbhai Dhulabhai reported in 2001 (1) GLR 16. Making the above submission, it is requested to allow the present Second Appeal.

5.0 The present Second Appeal is opposed by Shri Sunil Patel, learned advocate appearing on behalf of the original plaintiff. Shri Patel, learned advocate appearing on behalf of the original defendant no. 1 has vehemently submitted that considering the cause of action pleaded in the plaint when it was the case on behalf of the original plaintiff that he came to know about the sale deed in the year 1982 when the Complaint was filed by his mother and thereafter when original defendants nos. 1 to 5 tried to disturb his possession, the learned appellate Court has rightly applied Article 58 of the Limitation Act as well as Section 17 of the Limitation Act. It is submitted that as rightly observed by the learned appellate Court Section 17 of the Limitation Act and Article 58 of the Limitation Act would be applicable and, therefore, considering the same, it is rightly held by the learned appellate Court that the suit instituted by the original plaintiff was within the period of limitation.

5.1. It is further submitted that as such the original plaintiff was found to be in possession of the entire suit 'vada' land and, therefore, the learned appellate Court has rightly allowed the appeal by quashing and setting aside the judgment and decree passed by the learned trial Court dismissing the suit and consequently decreeing the suit and granting the declaration and permanent injunction as prayed for. By making above submissions, it is requested to dismiss the present Second Appeal.

6.0 Heard the learned advocates for the respective parties at length and considered the impugned judgment and order passed by both the Courts below and evidence on record from the Record and Proceedings received from the learned trial Court.

7.0 At the outset, it is required to be noted that original defendants no. 6 and 7 executed sale deed in favour of the appellants­ original defendants no. 1 to 4 as far as in the year 1955 i.e. 7.3.1955 and admittedly original plaintiff attained the age of majority in the year 1958. Therefore, considering Article 60 of the Limitation Act as such plaintiff was required to institute the suit within the period of three years from the date he attained the age of majority. Admittedly, the suit has been filed after a period of 24 years after the plaintiff attained the age of majority. Therefore, as such considering the Article 60 of the Limitation Act, the suit instituted by the plaintiff to set aside the sale deed executed by his mother and cousin brother was barred by law of limitation. However, it is the case of the original plaintiff that Section 17 of the Limitation Act and Article 58 of the Limitation Act would be applicable and therefore, the suit is within the period of limitation. However, considering Section 17 of the Limitation Act this Court failed to appreciate how Section 17 of the Limitation Act would be applicable.

8.0 Under the circumstances, the reliance placed upon Section 17 of the Limitation Act is absolutely misplaced. As observed by the Full Bench of this Court in the case of Jadav Prabhatbhai Jethabhai (supra) the period of limitation prescribed under Article 60 of the Limitation Act is absolutely wider significance in a case when the minor on attaining the majority files a suit for possession on the premise that the de­facto guardian had alienated his property without authority and that there was no legal necessity for the de facto guardian to alienate the property. As observed in the said decision the suit for setting aside such a transaction is required to be filed within a period of three years from the date of attaining majority. It is further observed in the said decision that Ward on his attaining the age of majority like that on cessation of the disability, fails to pursue the legal remedy or to initiate a legal battle by filing a suit, he would not be entitled to file suit, thereafter, and therefore, the person in possession of the property would get his possession or title as the case may be perfected upon the exitnguishment of the right to file a suit in relation to a property. Under the circumstances, considering the aforesaid Full decision of this Court the learned Appellate Court has materially erred in allowing the appeal and quashing and setting aside the judgment and decree passed by the learned trial Court and consequently decreeing the suit by holding that the suit was within the period of limitation.

9.0 At this stage, it is also required to be noted that the plaintiff instituted the suit in the year 1982. As stated above in the year 1981, the mother of the plaintiff filed criminal Complaint against the appellants herein ­original defendants no.1 to 4 before the learned Magistrate for the offences under Sections 447, 504, 506 and 114 of the Indian Penal Code, however the same came to be dismissed for non prosecution subsequently and having failed to get any relief by the mother ­original defendant no.6, only thereafter the plaintiff instituted present suit in the year 1982.

10. Now, so far as contention on behalf of the original plaintiff that the original defendants no.6 and 7 have no right or authority to execute sale deed is concerned, it is required to be noted that once the suit is held to be barred by law of limitation, the aforesaid issue is not required to be considered. If the suit would have been within the period of limitation, further aspects were required to be considered on merits. Once the suit is already barred by law of limitation, the suit fails and same deserves to be dismissed.

11. In view of the above and for the reasons stated above, learned Appellate Court has materially erred in not applying Article 58 of the Limitation Act and in holding that the suit is barred by law of limitation and has materially erred in allowing the appeal quashing and setting aside the judgment and decree passed by the learned trial Court dismissing the suit on the ground of limitation and consequently decreeing the suit.

12. In view of the above and for the reasons stated above, present appeal succeeds. The impugned judgment and order/decree passed by the learned appellate Court­learned 2nd Extra Assistant Judge, Vadodara dated 20/03/1991 in Regular Civil Appeal No. 353/1983 is hereby quashed and set aside the and judgment and decree passed by the learned trial Court is hereby restored. Present Second Appeal is allowed to the aforesaid extent. No costs.

“kaushik”

sd/­ ( M. R. Shah, J. )