A suit for cancellation of a family settlement deed is subject to Article 59 of the Limitation Act, requiring action within three years of knowledge of the deed.

JUDGMENT :

ANUBHA RAWAT CHOUDHARY, J.

1. Heard the learned counsel for the appellant.

2. This appeal has been filed against the judgment and decree dated 6.01.2020 (Decree signed on 21.01.2020) passed by learned District Judge I, Deoghar in Title Appeal No. 27 of 2004 whereby the appeal has been dismissed and the learned appellate court has affirmed the judgment and decree dated 26.07.2004 (Decree signed on 07.08.2004) passed by the court of learned Sub Judge II, Deoghar in Title Suit No. 88 of 2000.

3. The suit was filed seeking a declaration and the cancellation of registered deed of family arrangement vide deed no. 207 dated 29.06.1977 and also for permanent injunction against the defendants and restraining the defendants from any act on the basis of the said deed.

4. The learned counsel for the appellant has submitted that the only substantial question of law which is involved in this case is-

Whether the suit could be said to be time barred?

5. It is submitted that it was the specific case of the appellant that though the deed of family arrangement was registered way back as on 29.06.1977 but the plaintiff had come to know about it subsequently and obtained the certified copy and filed the suit for cancellation of the registered deed within the period of three years of knowledge. He has relied upon the judgment passed by the Hon’ble Supreme Court reported in (2009) 6 SCC 160 (Abdul Rahim & Others Vs Sk. Abdul Zabar & Others) paragraph 19. He has also referred to Article 59 of the Limitation Act, 1963 .

6. After hearing learned counsel for the appellant and upon going through the impugned judgments, this Court finds that the suit was filed seeking cancellation of registered Family Settlement Deed No. 207 of 29.06.1977.

7. As per the case of the plaintiffs, Jamabandi No. 14 of Mouza Chulhiya, Jamabandi No. 5 of Mouza Chihutiya and Jamabandi No. 12 of Mouza Dudhwajor was recorded in the name of Chethru Choudhary and Bhothri Choudhary but the name of Bhothri Choudhary was shown differently in the Gantzer’s Survey Settlement Khatiyan. All the plaintiffs and the defendants are successors of Bhothri Choudhary. Bhothri Choudhary had two sons, Ayodhya Choudhary and Madin Choudhary. Ayodhya Choudhary had one son namely Krityanand Choudhary who was the plaintiff no. 1 and two sons of Krityanand Choudhary were plaintiff nos. 2 and 3. On the other hand, Madin Choudhary had one son who was defendant no. 1 and the grand sons of Madin Choudhary were defendant nos. 2 and 3. It was the case of the plaintiffs that there was a partition between Ayodhya Choudhary and Madin Choudhary way back in the year 1938 and the record of partition was also prepared and both the brothers were separated . It was further case of the plaintiffs that after the partition Ayodhya Choudhary bought property in Mouza Gokula, Tola Rajdha Andhri Sole in the District of Banka from his own means vide registered deed No. 5678 dated 30.09.1940 and the father of the plaintiff no. 1 came in exclusive possession of the property in which brother of the plaintiff no.1, namely, Madin Choudhary had no right, title, interest and possession; after purchase of the said property, in the year 1960 the property was sold to Uday Choudhary.

8. It was further case of the plaintiffs that the father of the plaintiff no.1 ,namely Ayodhya Choudhary, was an illiterate person and on 27.05.2000 he came to know that defendant no. 1 had executed a family settlement deed dated 29.06.1977 when the deed was produced in settlement operation in Mohanpur Camp and then the plaintiffs enquired about the deed and got the certified copy of the same on 03.08.2000 and came to know for the first time that defendant no. 1 fraudulently got the family settlement deed dated 29.06.1977 executed.

9. While explaining the execution of the family settlement deed dated 29.06.1977 the plaintiffs stated that the father of the plaintiff was in need of some money for his treatment and he had taken Rs. 5000 as loan from defendant no