TaxTMI 
TaxTMI 
1995 (12) TMI 399
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.... may be culled out in a short compass. In Khata No, 1593 which is part of Plot No. 4364 of an extent of 473 acres situated in Basantpur village, the names of Bibi Raifunnisa, Mahangu and Bibi Afta, heirs of Fidvi were recorded as owners thereof. Khatt No. 1593 admeasuring 7 bighas 6 kathas of the land is the subject matter of the dispute. The petitioner claimed that he had purchased the said land benami in the name of Rafique on December 1, 1959 and was in possession and enjoyment thereof. Bibi Raifunnissa filed Title Suit No. 220 of 1969 for partition and division by meets and bounds was decreed and a preliminary decree dated January 22, 1973 was passed. In furtherance thereof, final decree was passed on February 9, 1974. The suit land fel....
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....ed in favour of Rafique was filed in Tide Suit No. 220/69", It was also found that the petitioner as P.W, 9 admitted "that he had not paid any amount to Rafique. He further admitted in para 32 that there is mention that Rafique was the benamidar and so the land is now transferred." On those findings it was held that in the preliminary and final decrees Exh, .J. & Jl, the lands were allotted to Raifunnisa. The petitioner had not filed the original sale deed dated September 6, 1980 and accordingly, it found that Rafique had full knowledge about the Title Suit No. 220/69. The petitioner, PW.9 came to know about the Title Suit through his benamidar, Article 59 of the Schedule to the Act is applicable to the facts. Therefore, the suit is barred ....
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....re for the first time on June 17, 1981 when the possession was sought to be taken from him. Therefore, the suit was filed within three years. It is also sought to be contended that the original sale deed dated December 1, 1959 was not filed in the court. He had not knowledge of the proceeding in the partition suit. All the actions were collusive and fraudulent to deprive the petitioner, real owner of the property. We find no force in the contentions. The appellate court after exhaustive discussion of the evidence recorded the finding extracted hereinbefore. Admittedly Rafique, petitioner's brother-in-law is Benamidar and the petitioner derives title through him. The High Court also accepted the finding that the petitioner is presumed to....
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....it. Generally speaking, constructive notice may not be inferred unless some specific circumstances can be shown as a starting point of enquiry which if pursued would have lead to the discovery of the fact. As a fad is found that Rafique filed the sale deed dated December 1, 1959 executed in his favour by Mahangu, in Title Suit No. 220/69 for which the petitioner claims to have derivative title through Rafique, Rafique had full knowledge that despite the purported sale, Bibi Raifunnisa got the preliminary decree, passed in 1973 and in 1974 Under the final decree the right, title and interest in the suit property passed on to her. Under Section 55 when second sale deed dated September 6, 1980 was got executed by the petitioner from Refique, i....
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....act. There is no dispute that Article 59 would apply to set aside the instrument, decree or contract between the inter se parties. The question is whether in case of person claiming title through the party to the decree or instrument or having knowledge of the instrument or decree or contract and seeking to avoid the decree by a specific declaration, whether Article 59 gets attracted? As stated earlier, Article 59 is a general provision. In a suit to set aside or cancel an instrument, contract or a decree on the ground of fraud, Article 59 is attracted. The starting point of limitation is the date of knowledge of the alleged fraud. When the plaintiff seeks to establish his title to the property which cannot be established without avoiding t....