The necessity of a prayer to set aside a sale deed and the application of the limitation period under Article 59 of the Limitation Act, 1963.

JUDGMENT

Dr. A.K. Rath, J. - Plaintiffs are the appellants against a confirming judgment in a suit for declaration of title over Schedule-B land, confirmation of possession and recovery of possession in the event they are dispossessed during pendency of the suit and permanent injunction.

2. One Basen Majhi was the common ancestor of the parties. He had two sons; Bad Nuna and Galu. Bad Nuna died leaving behind his widow Pama and daughter Salega. Salega died leaving behind two daughters Basa and Pama Majhiani, plaintiff no. 2 and defendant no. 1 respectively. Fagu is the husband of Pama. Galu died leaving behind his son San Nuna. The disputed land belonged to Bad Nuna. The same was mutated in the name of Pama. The parties are Santala. They are scheduled tribes. The case of the plaintiffs was that after death of Bad Nuna, Galu was looking after the lands. After death of Galu, plaintiff no.1 looked after the lands. He was in possession of the land. Defendant no.2 taking advantage of illiteracy of Pama got the sale deed, vide Ext.C, in the name of his son Bakuli on 19.6.1963. The same was not acted upon. The possession of the land was not delivered to Bakuli or defendants 1 and 2. No consideration was paid. The sale deed was obtained by practising fraud. No title was passed to Bakuli. When a criminal case was filed by defendant no.2 in the year 1974, the plaintiffs came to know about the existence of the sale deed and the mutation on the strength of the deed. With this factual scenario, they instituted the suit seeking the reliefs mentioned supra.

3. Defendants 1 and 2 entered appearance and filed a written statement denying the assertions made in the plaint. Case of the defendants was that Galu predeceased Bad Nuna. Pama stayed with San Nuna. As San Nuna quarrelled with Pama, she left the house and stayed separately. Pama was suffering from rheumatism. She borrowed money for her maintenance. To liquidate the loan amount, she sold the suit land to Bakuli for a consideration of Rs. 1500/-. They are in possession of the same.

4. On the inter se pleadings of the parties, learned trial court struck seven issues. Parties led evidence, oral and documentary, to substantiate their case. Learned trial court dismissed the suit holding, inter alia, that the sale in favour of the son of defendants 1 and 2 was for a valid consideration. The transaction was not vitiated by fraud or undue influence. Unsuccessful plaintiffs filed Title Appeal No.36 of 1986 before the learned District Judge, Mayurbhanj, Baripada, which was eventually dismissed. It is apt to state here that during pendency of the first appeal, plaintiff no.1 died, whereafter his legal heirs have been substituted.

5. The second appeal was admitted on the following substantial questions of law;

"1. Whether the decision of the lower appellate court is correct in view of the fact that the lower appellate court has failed to give any decision on the validity of the sale deed, Ext.C ?

2. Whether the plaintiffs have lost title by way of adverse possession of the defendants ?

3. Whether the evidence of Pama's difficulty is sufficient to validate her transfer on the ground of legal necessity in the absence of any proof that she had no other support?

4. Whether the suit is barred by limitation in view of the averment made in paragraph 5 of the plaint that the plaintiff came to know the execution of the sale deed in the year 1974, when the suit was instituted on 23.11.1981 ?"

6. Heard Mr. S.K. Samantray on behalf of Mr. Ramakanta Mohanty, learned Senior Advocate for the appellants. None appeared for the respondents.

7. Learned counsel for the appellants submitted that the learned trial court framed an issue "Whether the sale deed executed by late Pama in favour of late Bakuli son of Pama Majhiani, defendant no. 1 is a sham transaction or a genuine one?" and answered the issue in negative against the plaintiffs. But then, learned appellate court has not rendered any finding for the said issue. T