Find a Lawyer

Civil Appeal No.13 of 1988, decided on 15th June, 1988.

S.42 Limitation Act (I X of 1908) , Art. 142 Declaratory suit on basis of title Limitation for Sale by co owner in excess of his share Declaratory suit by plaintiff to protect his rights in respect of such land could be filed within twelve years Suit filed by plaintiff within five years of sale of land would thus be within time.

S. 42 Declaratory suit Collusion with .vendor in filing suit, plea of Factum of collusion not borne out by evidence on record Vendor did not benefit by grant of decree in favour of plaintiff Mere obtaining of copy of revenue record and sale deed, by vendor for filing of case by plaintiff would not be sufficient to resolve that suit was collusive Cogent and strong evidence would be needed to deprive a person of his rights Defendant failing to appear as a witness in spite of the fact that onus to prove collusion was on him Fact that suit was collusive with vendor not proved in circumstances.

Co owner, entitlement to sell Co owner would be entitled to effect sale to the extent of his share in joint property Sale effected beyond the share of co owner Sale deed would be illegal.

S. 42 Civil Procedure Code (V of 1908), O. XLI, R. 33 Proper relief to parties Competency of Court to grant Lower Appellate Court granted relief to plaintiff to which he neither prayed nor was entitled thereto Decree amended by High Court in accordance with the entitlement of plaintiff.

Muhammad Ashfaq Kiani for Appellant.

Ghulam Mustafa Mughal for Respondents.

This appeal has been filed to challenge an order, dated 16th March, 1988 passed by the District Judge, Muzaffarabad whereby the appeal filed by the respondents against an order, dated 31st August 1987, passed by the Additional Sub Judge, Muzaffarabad was allowed and decree prayed for by the respondents was granted.

2. The facts of the case which gave rise to this appeal briefly stated are that Abdur Rehman, respondent No.2 sold a piece of land measuring 7 kanals and 14 marlas comprising survey number 724 min, situate in village Kanor Tehsil and District Muzaffarabad with the rights of grazing etc., in favour of the appellant and the respondent No.1 filed a suit on 19th October, 1986 for declaration to the effect that the vendor was not competent to effect the sale and he had exceeded his rights by alienating a joint land, therefore, the sale deed was null and void beyond land measuring 2 kanals and 11 marlas and 3 sarsais.

3. The defendant appellant through written statement filed on 23rd November, 1986, contested the suit on the point of limitation and also prayed that the suit has collusively been got filed by the vendor when the two previously collusive suits filed by his wife and nephew had been dismissed. The improvements over the land worth thousands of rupees were also claimed.

4. The trial Judge after the trial of the suits, found that the respondent/ plaintiff"s suit was collusive one and it was got filed by the vendor. He also found that the vendor was competent to sell the land, consequently, .the suit was dismissed through an order, dated 13th August, 1985.

5. The plaintiff respondent challenged the order of the trial Judge by way of an appeal in the Court of District Judge Muzaffarabad who found that the plaintiff /respondent filed the suit to protect his own rights and the allegation that the suit was collusive one was incorrect. He also found that the vendor was not competent to effect the sale, consequently the appeal was allowed and the order of the learned trial Judge was set aside and a decree for possession of the land measuring 7 kanals and 14 marlas was granted in favour of the plaintiff respondent on payment of Rs.8,290 which was to be deposited till 30th instant and this order of the learned District Judge is a subject matter of the present appeal.

6. The learned Counsel for the appellant has challenged the order passed by the District Judge on the following grounds:

(i) That the respondent No.1 filed a collusive suit on behest of the vendor and the first appellate Court fell in error to discharge the finding arrived at by the trial Court on this point.

(ii) The suit land was in possession of the vendor who was fully entitled to alienate it in favour of the appellant but the lower Court fell in error to hold that the vendor was not competent to effect the sale.

(iii) The suit filed by the respondent No.1 was time barred and it was the duty of the District Judge to approve the finding of the trial Judge on this point and confirm the order whereby the suit was dismissed.

7. The trial Judge after taking "into consideration the evidence on the point that the suit was a collusive one which was got. filed by the vendor, dismissed the same but the learned District Judge fell in error to hold that the appellant failed to produce sufficient evidence to prove that the suit was collusively got filed by the vendor, it was submitted by the Counsel for the appellant. He took me through the record and made a reference to the copy of "Jamabandi" (DC), the power of attorney, executed by the respondent No.1 in favour of Shah Wali and the copy of the impugned sale deed and pointed out that all these documents were obtained by Abdur Rehman, the vendor which would show that the respondent No.1 was not himself interested in cancellation of the sale deed, ratter it was the vendor who obtained these documents and got the, respondent No.1 to file a collusive suit in order to deprive the appellant of the suit land.

8. In support of his point of view that the vendor was competent to sell the land, he stated that although the land was a joint property "yet it was in possession of the vendor and it was within his share, keeping in view his holdings in the "khewat", thus the vendor was fully competent to sell the land but the learned District Judge has not considered the point in its true perspective and arrived at a wrong decision.

9. As to whether the suit was filed within the period of limitation, he prayed that the suit could have been filed within 3 years from the date of the sale in dispute, yet it was filed after 5 years, therefore, it was time barred and was required to be dismissed.

10. The suit was filed by the respondent No.1 in his own right to protect his rights and as he was out of the country at the time of the institution of the suit, therefore, he purchased stamps for the execution of the power of attorney through Abdur Rehman, and there was no defect of any nature into it and these actions are not sufficient to hold that the suit was collusive one, it was argued by the counsel for the respondents.

11. The limitation for filing a suit is 12 years as is evident from the provisions of section 142 of the Limitation Act and the suit was filed within a period of 5 years, therefore, it was within time, as such the lower appellate Court did not falter in any way.

12. I have very carefully examined the evidence brought on the file in the light of the objections raised by the appellant"s Counsel against the impugned order.

13. The objection of the appellant"s Counsel that the vendor got a collusive suit filed by the respondent No.1 in order to defeat the sale, I think, is not correct. The fact that the decree for possession was sought for by the respondent No.1 in his own right, is itself indicative of the fact that the respondent No.1 did not file the suit on behest of the vendor. The vendor has not been benefited in any way by grant of the decree in favour of plaintiff respondent and mere obtaining of the copy of Revenue record and the sale deed, to file the suit, by the vendor, I think, is not itself sufficient to resolve that the suit was collusive one. To deprive a person of his rights, there is needed strong and cogent evidence whereas in the present case, even leaving aside the other evidence, the defendant appellant (vendee) did not appear as a witness in support of his claim in spite of the fact that the onus was on him. I don"t find any illegality in the finding arrived at by the District Judge on this point, therefore, the finding cannot be set aside.

14. The point that the vendor was in possession of the property and he was competent to alienate the whole of the suit land, I think, is not supported by any evidence. The copy of "Jamabandi" (DC), shows that the vendor held one sixth share in survey No. 724 measuring 15 Kanals and 8 Marlas and as this land was not in his sole possession, therefore, he was entitled to effect the sale to the extent of his share i.e.2 Kanals and 11 Marlas and 3 Sarsais and the beyond this land is illegal.

15. The objection that the respondent had filed the suit after the expiry of the period of limitation, I think, is not correct. The period for limitation to recover the possession of immovable property is 12 years and the present suit was filed after the expiry of 6 years 9 months and 14 days, therefore, it was not time barred hence the District Judge correctly rejected the objection raised by the appellant on this point.

16. It remains to be seen as to whether the decree passed by the District Judge is in accordance with law or he has made violation of any law while passing this order.

17. The respondent No. l filed declaratory suit to the effect" that the sale deed, dated 5th January, 1980 whereby Abdur Rehman vendor sold land measuring 7 Kanals and 14 Marlas comprising survey number 724 is illegal, because he has exceeded his rights of sale and according to the plaintiff, the vendor" was competent to alienate land measuring 2 Kanals and 11 Marlas and 3 Sarsais only, therefore, the respondent No. l was entitled to get a decree to. the extent of his prayer. Here in this case, the District Judge instead of granting decree for joint possession of land measuring 5 Kanals 2 Marlas and 6 Sarsais forming part of the land measuring 15 Kanals and 14 Marlas comprising survey No. 724 situate in village Kanor, granted a decree for possession of land measuring 7 Kanals and 14 Marlas comprising survey No. 724 village Kanor in favour of the respondent No.1 on payment of Rs.8,296 and this action of the District Judge, I think, is not warranted by law.

18. Although neither the appellant nor the respondent has challenged the decree passed by the District Judge on the aforesaid point yet in view of the provisions of Order XLI, Rule 33, C.P.C. this Court is competent to grant proper relief to the parties. As the lower Court has misdirected itself and has granted a relief to the respondent No.1 (plaintiff) .to which he did neither pray nor he was entitled to it, I, therefore, hereby amend the decree passed by the District Judge and hereby grant a decree for joint possession of land measuring 5 Kanals 2 Marlas and 6 Sarsais farming part of land measuring 15 Kanals and 14 Marlas, comprising survey number 724, situate in village Kanor, Tehsil and District Muzaffarabad in favour of the respondent No.1 without payment of any amount.

A.A./339/H.A. Decree modified.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.