TaxTMI 
TaxTMI 
2015 (1) TMI 1495
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....h his brother Sarup Singh and the marginal witnesses had fabricated a false sale deed dated 30.11.1981. The case set up by the plaintiff was that he had never sold the land. The plea raised by the plaintiff was that the sale to the extent of his share did not confer any right on the defendant. The plaintiff approached the police and lodged a complaint against the persons who were involved. The Lambardar, a witness to the document had already died and the defendant was residing in Muscat. The trial commenced and the Court convicted Bakshish Singh and Sarup Singh vide judgment dated 20.02.2007. In 2005, Ranjit Singh through his wife Satinder Kaur being his attorney filed a suit in September 2005 asserting their title in the land in suit claiming title on the basis of the sale deed dated 30.11.1981 which was dismissed on 17.10.2006. The plaintiff requested the attorney to admit his claim and hand over the possession. It was pleaded that the cause of action arose to the plaintiff in January 2004 when he came to know of the false sale deed. The plaintiff prayed for a decree of possession and cancellation of the sale deed. 3. The defendant took the plea that the land had been purchase....
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....lation under Section 31 of the Specific Relief Act the suit could have been filed within three years of date of knowledge and the plaintiff had admitted that he knew about the sale deed in 2004, therefore, the suit filed in February 2007 i.e. more than three years from the date of knowledge was barred by limitation. A finding was returned against the defendant on the plea of adverse possession. A finding was also returned against defendant on issue No. 1. The suit was dismissed being barred by limitation. 6. Aggrieved by the said judgment and decree of the trial Court the plaintiff preferred an appeal which was also dismissed. The finding recorded on the issue of limitation was affirmed. 7. The present appeal came to be admitted on the following substantial questions of law framed on 21.08.2014:- "(i) Whether the plaintiff can be non-suited on the ground of limitation in a suit for possession? (ii) Whether dismissal of earlier suit filed by Ranjit Singh son of Sohan Singh (respondent in the instant appeal) through his wife Satwinder Kaur will operate as res judicata?" 8. The only issue which has to be examined is whether the suit is governed by Article 59....
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....on to be placed on Article 59 and Article 65 of the Act. 14. Article 59 and 65 reads as under: 15. It is clear from Article 59 that it deals with the cancellation of an instrument. The cancellation of instrument is dealt with under Section 31 of the Specific Relief Act, 1963 and it reads as under: "31. When cancellation may be ordered.- (1) Any person against whom a written instrument is void or voidable, and who has responsible apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court may in its discretion, so adjudge it and order it to be delivered up and cancelled. (2) If the instrument has been registered under the Indian Registration Act, 1908 (16 of 1908), the Court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation." 16. A reading of the aforesaid provision makes it clear that the suit for cancellation could be filed both in respect of an instrument, which is void or voidable. 17. The Apex Court i....
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....The fact that the plaintiff has sought a declaration with respect to the sale deed is of no consequence. The possession of the property has been taken by the defendant pursuant to a void document and he had no title and has no right to remain in possession. Since the possession has been taken on the basis of void document Article 65 of the Limitation Act would apply and the limitation to file a suit would be 12 years. 20. In Ajudh Raj and others vs. Moti s/o. Mussadi, 1991(3) SCC 136, it was held that if the order has been passed without jurisdiction, the same can be ignored as nullity, that is, non-existent in the eyes of law and is not necessary to set it aside, and such a suit will be governed by Article 65 of the Limitation Act. 21. The plaintiff is claiming possession of the property on the basis that he was a co-owner. By way of a registered sale deed, the property had been sold to the defendant by the brother of the plaintiff by impersonation. The possession of the defendant is not authorized. The plaintiff as owner is seeking to recover possession from the defendant. The defendant had relied upon the sale deed as it purported to create some right in him. The document ....