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1996 Supreme(P&H) 399
PUNJAB & HARYANA HIGH COURT
N.K.Kapoor, J.
Jagga Singh
Versus
Mal Singh
Civil Regular Second Appeal No. 842 of 1988,
Decided On : MARCH 6, 1996
Important Points
Subject
Property Law - SPECIFIC RELIEF ACT
Act Referred
Headnote
SPECIFIC RELIEF ACT, 1963 - SECTION 26 - RECTIFICATION OF INSTRUMENT - FRAUD OR MUTUAL MISTAKE - LIMITATION ACT, 1963 - SECTION 58 - PERIOD OF LIMITATION FOR SUIT FOR RECTIFICATION OF INSTRUMENT - EVIDENCE ACT, 1872 - SECTION 92 - ORAL EVIDENCE TO CONTRADICT, VARY OR ADD TO TERMS OF WRITTEN AGREEMENT - FRAUD AS EXCEPTION.
Fact of the Case:
Plaintiff filed a suit for declaration of ownership of land and rectification of a sale deed, alleging that the defendants fraudulently incorporated incorrect Khasra numbers in the sale deed, resulting in the transfer of land he did not intend to sell. The defendants denied the fraud and claimed that the sale was valid and that the plaintiff was estopped from filing the suit due to limitation and his own conduct.
Finding of the Court:
The trial court and the appellate court found in favor of the plaintiff, holding that the sale deed was procured by fraud and that the suit was within limitation. The High Court, on appeal, set aside the lower courts' judgments, holding that the plaintiff failed to prove fraud and that the suit was barred by limitation.
Issues: 1. Whether the plaintiff proved fraud in the execution of the sale deed? 2. Whether the suit was filed within the limitation period?
Ratio Decidendi: 1. The court held that the plaintiff failed to provide sufficient evidence to establish fraud on the part of the defendants in incorporating incorrect Khasra numbers in the sale deed. The court noted that the plaintiff's allegations were general and lacked specific details regarding the fraudulent acts. 2. The court held that the suit was barred by limitation as it was filed more than three years after the date of the registered sale deed. The court noted that the cause of action for rectification of the instrument accrued on the date of the sale deed, and the plaintiff failed to file the suit within the limitation period prescribed under Section 58 of the Limitation Act.
Final Decision: The High Court allowed the appeal, set aside the judgments of the lower courts, and dismissed the plaintiff's suit.
N.K.Kapoor, J.
1. This is defendants regular second appeal. Plaintiff filed a suit for declaration to the effect that he is owner to the extent of 1/3rd share of land measuring 7 Bighas 8 Biswas Pukhta comprised in Khewat No. 126 Khatauni No. 154, Khasra Nos. 838, 839 and 853 with structures of house existing thereon with all rights appurtenant thereto and is also owner of 1/3rd share of land measuring 1B-1B-9B comprised in Khewat No. 126 Khatauni No. 155 and 156, Khasra No. 331 min. (0-12-9) and khasra No. 331 min (0-9-0) situated in village Issewal. In addition thereto, he is owner to the extent of 1/3rd share measuring 7 Biswas comprised in khewat No. 126 Khatauni No. 157 Khasra No. 332/2 situated at village Issewal and that the Khasra Nos. have been fraudulently got entered by the defendants in their names in the registered sale deed dated 5.1.1981. According to the case of the plaintiff, he intended to part with his holding situated on the northern side of the Rajwaha whereas in the sale deed land situated on the Southern side of the Rajwaha stands mentioned in the impugned sale deed. In fact, at the spot on this land existed the houses of the plaintiff as well as other co-sharers. The plaintiff did not intend to part with the land situated on the Southern sides of Rajwaha and this has been got incorporated fraudulently by the defendants in connivance with the petition writer in the impugned sale deed.
2. The defendants in their written statement resisted the claim of the plaintiff stating therein that the plaintiff agreed to part with the land as finds mentioned in the sale deed for a valuable consideration. Pursuance to the registration of the sale deed, mutation too has been sanctioned and ever since then they are enjoying the property purchased to the exclusion of others. The defendants specifically denied the assertion of the plaintiff that the sale was intended to be in respect of the property situated on the northern side of the Rajwaha. The plea raised by the plaintiff that wrong Khasra Nos. have been incorporated in the sale deed too has been specifically denied. By way of preliminary objection, it has been stated that the suit of the plaintiff is barred by limitation and otherwise too the plaintiff is estopped by his own act and conduct to file the present suit.
3. On the pleadings of the parties, following issues were framed :-
1. Whether plaintiff is entitled to declaration prayed for ? OPP 1-A. Whether the suit in the present form is not maintainable ? OPD.
2. Whether sale deed executed by the plaintiff on 5.1.1981 was a result of misrepresentation and fraud? OPD.
3. Whether the suit of plaintiff is within time OPP
4. Whether the plaintiff is estopped by his Act and conduct from filing the present suit OPD.
5. Relief.
4. The trial court took up issues No. 1, 2 and Additional Issue No. 1A together and after considering the evidence led by the parties found some substance in the plea of the plaintiff to the effect that wrong khasra Nos. had been incorporated in the sale deed fraudulently and so the sale deed is liable to be set aside. This way the Court decided all the three issues in favour of the plaintiff and against the defendants. Issue No. 4 was decided against the defendants. Under issue No. 3, the Court came to the conclusion that the suit is within limitation. Resultantly, the suit was decreed.
5. The appellate court to on reappraisal of evidence found no ground to differ with the conclusion arrived at by the trial Court and so affirmed the same in the appeal.
6. Challenging the concurrent findings recorded by the Courts below, the learned counsel for the appellants has termed these to be wholly illegal and otherwise unwarranted as per facts on record. According to the counsel, the courts below have miserably failed to construe the matter in the right prespective. The plaintiff if at all could bring the suit, the same at best could be filed for rectification of the sale deed in terms of Section
