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2016 Supreme(Tri) 159
IN THE HIGH COURT OF TRIPURA, AGARTALA
S.C. DAS, J.
Sri Gopilal Dey Son of Lt. Khetramohan Dey - Appellant
Vs.
Sri Sukumar Dey Son of Lt. Khetramohan Dey and Ors. - Respondents
RSA 01 OF 2012, CO (RSA) 01 OF 2012
Decided On : 14-11-2016
For the Appellant : Ms S. Deb Gupta
For the Respondents: Mr. D. Chakraborty, Mr. H Laskar
The court emphasized that a suit barred by limitation has no jurisdiction, power, or authority to be entertained and decided on merits. It also clarified that a transfer made by the allottee without consent of the Collector was not void ab initio and had force.
Headnote:
Limitation - Property Dispute - Allotment of Land Rules, 1962 - Rule 15 - Article 59 of the Limitation Act - The court discussed the validity of a gift deed executed in violation of the conditions of land allotment and the issue of limitation. The court held that the suit was barred by limitation as it was not filed within three years from the date of knowledge of the execution of the gift deed. It also concluded that the transfer made by the allottee without consent of the Collector was not void ab initio and had force, as the allotting authority did not take any steps to cancel the allotment.
Fact of the Case:
The plaintiff sought declaration that a gift deed was void ab initio as it was executed in violation of land allotment conditions. The trial court dismissed the suit, and the appellate court partly allowed the appeal, holding the gift deed was not enforceable and that the suit was barred by limitation.
Finding of the Court:
The court found that the suit was barred by limitation and that the transfer made by the allottee without consent of the Collector was not void ab initio and had force.
Issues: Validity of gift deed, limitation period for filing the suit.
Ratio Decidendi: The suit was barred by limitation as it was not filed within three years from the date of knowledge of the execution of the gift deed. The transfer made by the allottee without consent of the Collector was not void ab initio and had force.
Final Decision: The second appeal filed by the appellant was dismissed, and the cross objection filed by the defendant-respondent No.1 was allowed. The finding that the gift deed is void and not enforceable was set aside.
Both the second appeal and the connected cross-objection are directed against the judgment and decree dated 30.09.2011 passed by learned Addl. District Judge, Agartala, West Tripura (Court No.4) in Title Appeal No. 13 of 2011, whereunder the learned Addl. District Judge partly upheld and partly set aside the judgment and decree dated 31.03.2011 passed by the learned Civil Judge, (Jr. Div.), Court No.2, Agartala, West Tripura in Title Suit No. 25 of 2007.
2. Heard learned counsel, Ms S. Deb Gupta for the appellant and learned senior counsel, Mr. D Chakraborty assisted by learned counsel, Mr. H Laskar, for the respondents in the appeal and vice-versa in the cross-objection.
3. This common judgment shall govern both the second appeal and the cross objection.
4. The second appeal has been admitted for hearing on the following substantial question of law:
“Whether the appellate court below has misread the evidence in regard to the limitation? and other substantial questions of law, which may be required for just decision of the second appeal.”
5. Shorn of unnecessary details, the case of the plaintiff-appellant is that the suit land described in the schedule of the plaint was allotted in the name of Lt. Khetramohan Dey, father of the plaintiff-appellant and defendant-respondent No.1. Khetramohan Dey died on 30.01.1987 leaving behind the plaintiff, defendant No.1, another daughter namely, Smt. Maya Rani Dey and the legal heirs of deceased son Rabilal Dey. A partition suit vide T.S.(P)26/2006 was filed in respect of the property left by Khetramohan Dey and from the plaint of that suit, the plaintiff came to know on 12.05.2006 that the land described in the schedule of the plaint was gifted by khetramohan Dey to defendant No.1, Sri Sukumar Dey by executing a gift deed No.I-3396 dated 21.05.1986 in violation of the conditions of allotment and therefore, the appellant prayed for declaration that the said gift deed is void ab initio and prayed for cancellation of the deed.
6. The defendant No.1, Sri Sukumar Dey contested the suit by filing written statement denying the averments made in the plaint and stated that the suit was barred by limitation and that the gift deed was validly made and was not liable to be cancelled. The defendant No.2 also submitted written statement that the suit was barred by limitation and the defendant No.2 also prayed for dismissal of the suit.
7. The trial court framed four issues, namely:
“(i). Whether the suit is maintainable in law and facts?
(ii). Whether the plaintiff is entitled to a decree declaring the gift deed bearing No.I-3396, dated 21.05.1986 executed by Kshetramohan Dey is void ab initio?
(iii) Whether the plaintiff is entitled to a decree of cancellation of the gift deed vide No.I-3396, dated 21.05.1986 along with a direction to District Sub-Registrar Sadar, Agartala for cancellation of its registration?
(iv) Whether the plaintiff is entitled to any other relief or reliefs in this case?
(v) Whether the suit is barred by limitation?”
8. In course of trial, the plaintiff examined himself as PW1 and also examined two more witnesses namely, Sri Subash Debbarma (PW2) and Sri Subash Brata Chakma (PW3). The plaintiff proved the following documents:-
(i) Ext.1-The certified copy of Khatian No.27344;
(ii) Ext.2-The original Death Certificate of Khetramohan Dey;
(iii) Ext.3- The certified copy of gift deed vide No.1-3396 dated 21.05.1986.
The defendant No.1 examined himself as DW1 and proved the following documents:-
(i) Ext.A1- The Khatian No.27940;
(ii) Ext.A2- The certified copy of Khatian No.27334;
(ii) Ext.B1-The Khatian No.1877;
(iv) Ext.B2- The certified copy of Gift Deed No.1-3396, dated 21.05.1986.
On behalf of defendant No.2 also, one witness was examined, namely, Sri Subash Brata Chakma and the witness proved one document, namely, Ext.X-1.
9. The trial court decided the material issues against the plaintiff and dismissed the suit.
10. Aggrieved, the plaintiff preferred Title Appeal No. 13 of 2011 and
