1986 Supreme(MP) 689

IN THE HIGH COURT OF MADHYA PRADESH
K. N. SHUKLA, J.
Raghunandanlal Agarwal - Appellant
Versus
Durgadas - Respondent
S. A. No. 381 of 1980 (J)
Decided on : 19-09-1986

Headnote:(1) Specific Relief Act, 1963 – S. 31 – suit for declaration of title – relief of setting aside sale deed not necessary.

       (2) Civil Procedure Code, 1908 – O. 6, R. 17 – amendment not changing nature of suit – only for clarifying pleadings – should be allowed

       (3) Limitation – suit for declaration of title – cause of action is continuous in nature.

        Short Note

       1. Before dealing with the question of limitation, it will be useful to dispose of the application for amendment filed by the appellants for deleting from the relief clauses Relief No.1 and substituting another relief in the nature of a declaration of title.

       2. Held : This application was hotly opposed by the learned counsel for the respondents. After hearing learned counsel on both sides, I am of the view that this application should be allowed because it is more or less clarificatory in nature and does not change the nature of the suit. I have already narrated the principal facts on which the cause of action was based. The allegation in the plaint wall that the document described a sale deed was nominal in nature only to enable Hrishkesh to obtain a loan on the security of the land. At this stage, I am not concerned with the truth or falsity of this averment because no written statement was filed and, therefore the question is still open and will be decided on the basis of evidence led by the parties. The fact remains, however, that the plaintiff appellants never alleged that the sale was void or voidable. But the essence of his case was that the transaction was only nominal and was never intended to be acted upon. The proposed amendment only makes this averment clearer and removes any doubt if at all about the precise nature of the claim set up by the plaintiff.

       3. It will be useful to record a finding on the question of limitation as well in order to put the record straight. The relief about cancellation of the sale deed was in fact misconceive and, as stated by learned counsel for the appellants, mistaken. The principal relief on the basis of the averment was that the plaintiff was entitled to declaration of title and also injunction as clamed in Relief No.2 of the relief clauses. It was not necessary to get a decree for setting aside the sale or for cancellation of the sale deed as contemplated by section 31 of the Specific Relief Act. The period of limitation in the instant case, therefore, could not be reckoned from the date of the sale deed, but from the date when the plaintiff felt that a cloud may be cast on his title because of the activities of the defendant before the revenue Court. In fact, it was a case where the cause of action was continuous. This finding about limitation has been recorded only on the basis of the averment in the plaint as laid.

       Appeal allowed. Case remanded.