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2001 Supreme(HP) 230
High Court Of Himachal Pradesh
ARUN KUMAR GOEL
ASHOK KUMAR CHAUHAN - Appellant
Versus
KANWAR SINGH - Respondent
R.S.A.No. 265 of 2001
Decided On : 09/07/2001
Mr. Ajay Kumar, Advocate with Mr. N.D. Sharma, Advocate, for the Appellants; Mr. S.S. Chauhan, Advocate with Mr. R.S. amalta, Advocate, for the Respondent Nos. 1 and 2; Mr. B.K. Sood, Advocate, for the Respondent No. 3.
The sale made by the plaintiff's father was voidable, not void, and steps had not been taken as per law to set it aside, leading to the dismissal of the suit.
Headnote:
Limitation Act - Property Dispute - Article 60 of Limitation Act - The plaintiff claimed ownership of the land and sought possession, alleging unlawful dispossession by the defendants. The courts below concluded that the suit was time-barred under Article 60 of the Limitation Act, as it was filed long after the plaintiff attained majority. The plaintiff's argument that the sale made by his father was void ab initio and in violation of Order XXXII Rules 7 and 8 CPC was rejected. The courts held that the sale was voidable, not void, and steps had not been taken as per law to set it aside. The plaintiff's failure to seek a declaration to set aside the sale and the compromise led to the dismissal of the suit. The courts found no substantial question of law to warrant interference and dismissed the appeal.
Fact of the Case:
The plaintiff claimed ownership of the land and sought possession, alleging unlawful dispossession by the defendants. The courts below concluded that the suit was time-barred under Article 60 of the Limitation Act, as it was filed long after the plaintiff attained majority.
Finding of the Court:
The courts held that the sale made by the plaintiff's father was voidable, not void, and steps had not been taken as per law to set it aside. The plaintiff's failure to seek a declaration to set aside the sale and the compromise led to the dismissal of the suit. The courts found no substantial question of law to warrant interference and dismissed the appeal.
Issues: Ownership of the land, unlawful dispossession, entitlement to possession, locus standi, res judicata, cause of action, limitation, valuation of the suit.
Ratio Decidendi: The suit was time-barred under Article 60 of the Limitation Act. The sale made by the plaintiff's father was voidable, not void, and steps had not been taken as per law to set it aside. The plaintiff's failure to seek a declaration to set aside the sale and the compromise led to the dismissal of the suit.
Final Decision: The appeal was dismissed.
Arun Kumar Goel, J.—Appellant (hereinafter referred to as the plaintiff) is aggrieved by the judgment and decree dated 3.4.2001 passed by the learned District Judge, Shimla in C.A. 109-S/13 of 1998, whereby the decree passed by Sub-Judge, 1st Class, Court No. 3, Additional Charge Court No. 2, Rohru in civil suit No. 49-1 of 1993 dated 13.5.1998 has been upheld and the appeal filed by the plaintiff has been dismissed.
2. With a view to properly appreciate what was argued at the time of hearing of this appeal contents of the plaint are extracted hereinbelow:— "1. That the plaintiff is the absolute owner of land comprised in khata khatauni 148/259 old khasra No. 805 and new khasra No. 1061 measuring 2 bighas 11 biswas situated at Chak Gawas Tehsil Chirgaon, District Shimla, which property was purchased by the plaintiff, when he was minor, through his father defendant No.3 from Sh. Het Ram son of Sh. Lakhu vide deed of sale dated 27.10.1975 duly registered in the office of the Sub-Registrar, Rohru on the same date for a consideration of Rs. 500. The plaintiff was put in possession of the suit property at the time of registration of the aforesaid deed of sale in favour of the plaintiff through his father. As submitted, at that time the plaintiff was a minor and as such the transaction of the sale etc. was done by the father of the plaintiff namely, defendant No. 3. The property was purchased in the name of the plaintiff with the funds of the plaintiff which had received on account of gifts in cash on various occasions from his relatives. The date of birth of the plaintiff is 3.3.1969. Needless to say with the sale of the said property coupled with delivery of possession, the said Sh. Het Ram ceased to have any right, title or interest in the said land and the plaintiff became its owner in possession.
2. That after the aforesaid sale, the plaintiff was put in possession of the property by Sh. Het Ram through his father and continued to be in possession of the said property through his father till the month of September/October, 1984. Thereafter, it appears that the defendant Nos. 1 and 2 unlawfully and forcibly dispossessed the plaintiff from the said property in September/ October, 1984 either in connivance with defendant No. 3 or the defendant No. 3 on account of his acts of omission, commission and negligence and mis-management allowed the defendant Nos. 1 and 2 to occupy the said property by dispossessing the plaintiff from the same. Since the plaintiff was a minor at the time when he was unlawfully dispossessed from the suit property in the month of September /October, 1984 he could not do anything and his father does not seem to have acted in a prudent manner to reclaim the possession of the suit property from the defendant Nos. 1 and 2 who illegally dispossessed the plaintiff there from on the basis of sale deed dated 4.11.1982 allegedly executed by Sh. Het Ram in their favour. The alleged sale in favour of the defendant Nos. 1 and 2 by Sh. Het Ram was illegal nul and void because at that time he had no right, title or interest in the suit land and could transfer none.
3. That the possession of the defendant Nos. 1 and 2 over the suit property is unlawful. They have no right to possess the property as the lawful owner thereof is the plaintiff and he alone is entitled to possess the same at any rate the plaintiff was unlawfully dispossessed therefrom in September/October, 1984 because of the plaintiff had been put in possession of the said property of Sh. Het Ram at the time of sale in the year, 1975 in favour of the plaintiff and continued to be in lawful possession thereof till September/October, 1984. If at all, the plaintiff could only be dispossessed from the suit land in due process of law. The defendant Nos.l and 2 do not have any right or title to possess the said property or at any rate better right or title than the plaintiff to the suit property. The plaintiff is entitled to the possession of the suit property
