Back
Allahbad High Court
DEOKINANDAN
Sudarshan Prasad - Appellant
Versus
Radha Kishun Ram - Respondent
Decided On : 01/07/1982
LIMITATION - Adverse possession - Article 109 of the Limitation Act, 1963 - Applicability - Suit by a grandson to set aside an alienation made by his grandfather - Whether governed by Article 109 - Held, no - Article 144 of the Limitation Act, 1908, or Article 65 of the Limitation Act, 1963, is applicable.
Fact of the Case:
The plaintiffs in two suits challenged the validity of a sale deed executed by their grandfather and uncles on the ground that there was no legal necessity for the sale or benefit to the estate by its execution. The defendants pleaded res judicata on the basis of a decision in an earlier suit filed by the plaintiffs' fathers and uncles to set aside the same sale deed, limitation, and S.34, Specific Relief Act, as bars to the suit.
Finding of the Court:
The trial court and the lower appellate court dismissed both the suits, holding that they were barred by res judicata, S.34, Specific Relief Act, and limitation. The court found that possession of the property was delivered to the alienee on the date of the sale deed and that the alienee had continued to be in possession ever since.
Issues: 1. Whether the suits were barred by res judicata? 2. Whether the suits were barred by limitation? 3. Whether the plaintiffs had a right to sue on account of their being after-born sons?
Ratio Decidendi: 1. Res judicata: The court held that the earlier decision in the suit filed by the plaintiffs' fathers and uncles operated as res judicata, as the present suits were based on the same cause of action and the parties were the same or their privies. 2. Limitation: The court held that the suits were barred by limitation under Article 109 of the Limitation Act, 1963, as the plaintiffs had not filed the suits within 12 years from the date on which the alienee took possession of the property. The court rejected the plaintiffs' contention that Article 59 of the Limitation Act, 1963, applied, as the plaintiffs had knowledge of the sale deed more than three years before filing the suits. 3. Right to sue of after-born sons: The court held that the after-born sons had no independent right to sue to set aside the alienation made by their grandfather, as the cause of action arose when the alienee took possession under the father's invalid alienation. The court held that the suit by an after-born son must be filed within the limitation period for a suit by the youngest of the sons in existence on the date of the execution of the sale deed and/or taking of possession by the alienee.
Final Decision: The appeals were dismissed with costs.
2. It would be convenient to have before us the family tree of the plaintiffs and the pro forma defendant-respondents in both the suits.
3. The plaintiffs in the first suit were seriatim (1) Sudarashan Prasad son of Nand Lal Ram (2) Ram Mohan son of Ram Subhag Ram (3) Rama Shanker Prasad (4) Bharat Prasad and (5) Shanker Dayal sons of Dhodha prasad, and (6) Sheo Shanker Prasad son of Harihar.
4. The first two defendants in both the suits were. (1) Radha Kishun Ram and (2) Dina Nath Ram sons of Ganesh Ram the transferees under the impugned sale-deed. The pro forma defendants originally were seriatim (3) Harihar Ram son of Jhingur Ram (4) Hari Ram, and (5) Nand Ram Lal sons of Anant Ram (6) Bhrigu Nath Prasad son of Radha Kishan (7) Balbhadra Prasad son of Nand Lal Ram, who died during the pendency of the suit and his name was accordingly struck off (8) renumbered as (7) Surendra Prasad son of Hare Ram; (9) renumbered as (8) Shri Kishun Prasad son of Ram Subhag Ram (10) renumbered as (11) Dhodha Prasad son of Jhingur Ram (11) renumbered as (10) Gauri Shanker Prasad son of Harihar Ram, Babban Prasad son of Nand Lal and Chatthu Prasad son of Harihar Ram were added as defendants 11 and 12 subsequently. In the other Suit 99 of 1970, the plaintiffs were seriatim (1) Babban Prasad son of Nand Ram (2) Chhathu Prasad and (3) Vir Prasad sons of Harihar Prasad and (4) Shatrughan prasad son of Dhodha. The first two defendants were the same Radha Kishun and Dina Nath sons of Ganesh Ram. The pro forma defendants were seriatim (3) Harihar Ram son of Jhingur Ram (4) Hare Ram and (5) Nand Lal sons of Anant Ram, (6) Bhrigu Nath prasad son of Radha Kishun Prasad (7) Shri Kishun Prasad son of Subhag Ram (8) Dhodha Prasad son of Jhingur Prasad (9) Gauri Shanker Prasad son of Harihar; (10) Sudarshan prasad son of Nand Lal (11) Ram Mohan son of Subhag (12) Rama Shanker Prasad son of Dhodha (13) Bharat Prasad and (14) Shanker Dayal sons of Dhodha and (15) Sheo Shanker Prasad son of Harihar. It would thus appear that the pro forma defendants 3 to 10 in Suit 15 of 1967 except for pro forma defendant Surendra Prasad are the pro forma defendants 3 to 9 in suit 99 of 1970. The plaintiffs of suit 15 of 1967 are the pro forma defendants 10 to 15 of suit 99 of 1970. Of the four plaintiffs in suit 99 of 1970, the first two Balbhadra Prasad and Chhattu Prasad are pro forma defendants 11 and 12 in suit 15 of 1967. Vir prasad son of Harihar Prasad and Shatrughan Prasad son of Dhodha, plaintiffs 3 and 4 in suit No. 99 of 1970 are not parties to the other suit and as already noticed above, Surendra son of Hare Ram, originally defendant 8 but renumbered as defendant 7 of suit 15 of 1967 (respondent
12 in second appeal 291 of 1971) is not a party to suit 99 of 1970 however, these variations are inconsequential.
5. The impugned sale deed dated 1st September, 1943 was executed by Anant Ram, Ram Subhay Ram and Harihar Ram for an ostensible consideration of Rs. 2750/- in favour of Ganesh Ram the father of defendants 1 and 2. The validity of the sale deed was challenged on the ground that there was no legal necessity for the sale or benefit to the estate by its execution. One important factor o
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
