PROPERTY — Limitation — Articles 58, 59 and 65, Limitation Act, 1963 — Suit (2003) for cancellation of sale deeds (1992), recovery of possession and injunction — Whether suit barred by limitation — Held, yes. Where cause of action is composite but primary relief is cancellation of registered instruments, limitation for cancellation (Article 59 / Article 58 where applicable) runs from the date when the right to sue first accrues; registered sale-deeds executed and possession taken in June 1992 constituted the date when plaintiffs’ right to sue first accrued — suit filed in 2003 barred. (Paras 30–36, 68–69)
TRANSFER OF PROPERTY — Lis pendens (Section 52, Transfer of Property Act, 1882) — Effect of injunction passed in earlier suit and subsequent sale — Section 52 does not ipso facto render transfer void; it subjects transfer to result of pending suit — Transfers during pendency valid inter se between transferor and transferee unless tainted by notice or collusion — Where earlier proceedings on record show indicia of collusion and mutation in favour of alleged vendor had been permitted, bona fide purchasers for value without notice may still be protected. (Paras 40–45, 41–43)
EVIDENCE — Proof of WILL (Section 68, Evidence Act, 1872) and secondary evidence (Section 65) — A will that forms the basis of title must be proved by calling at least one attesting witness unless the loss or non-production of original is satisfactorily proved — Certified copy without proof of loss or acceptable foundation inadmissible to establish will — State presumptions (U.P. amendment Section 90A) excluded where document forms basis of suit. (Paras 46–56)
RES JUDICATA / ADMISSIONS — Earlier suits decreed by compromise — Admission of will or compromise in earlier suits will not bind strangers (transferees) not parties thereto; a party cannot be bound by admission of predecessor-in-interest unless estoppel pleaded and proved; proof obligation on plaintiffs to establish will afresh. (Paras 46–58)
APPELLATE JURISDICTION / RELIEF — Appellate court cannot grant possession decree in absence of substantive declaration/cancellation where plaint is defective as to primary relief — First appellate court erred in decreeing recovery of possession without declaring plaintiffs’ title or cancelling disputed instruments when such reliefs had not been properly pleaded or allowed; High Court failed to exercise judicial mind in second appeal. (Paras 60–67)
JUDGMENT — Civil appeal allowed. Judgment and decree of the High Court and first appellate court set aside insofar as they are inconsistent; judgment and order of trial court (dismissal of plaintiffs' suit) restored. Parties to bear their own costs. (Paras 68–70)
JUDGMENT (DIPANKAR DATTA, J.) — The Court examines interplay of limitation provisions (Articles 58/59/65/113), principles of lis pendens under Section 52 ToP Act, ostensible ownership under Section 41 ToP Act, and the requirement for proving a WILL under Section 68 Evidence Act. On facts, the plaintiffs’ suit (2003) to cancel registered sale-deeds of 1992 and recover possession was time-barred as the right to sue first accrued in June 1992 when sale-deeds were executed and possession taken; plaintiffs failed to prove the WILL as required by law; Section 52 ToP does not render the transfer void ab initio and appellants were bona fide purchasers; and the first appellate court exceeded jurisdiction by decreeing possession without necessary substantive relief. Consequently, the trial court's dismissal is restored. (Full text paras 1–70)
ORDER — Appeal allowed; impugned judgments set aside; trial court decree restored; parties to bear own costs.
2025 INSC 552
Page 1 of 38
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 11061 OF 2024
[Arising out of SLP(C) NO. 2998 OF 2022]
RAJEEV GUPTA & ORS. …APPELLANTS
VERSUS
PRASHANT GARG & ORS. …RESPONDENTS
J U D G M E N T
DIPANKAR DATTA, J.
THE APPEAL
1. This appeal, by special leave, is at the instance of the second to fifth
defendants1
in a suit for cancellation of sale deeds, recovery of
possession and injunction. The appellants mount a challenge to the
judgment and decree dated 21st September, 2021 of the High Court of
Judicature at Allahabad2
, dismissing their second appeal under Section
100 of the Code of Civil Procedure, 19083
. In such appeal, the first
appellate judgment and decree was under challenge which reversed
1 appellants, hereafter
2 High Court, hereafter
3 CPC, hereafter
Page 2 of 38
the decree of the trial court of dismissal of the civil suit instituted by
the respondent 1.
RESUME OF FACTS
2. The factual conspectus of the case, to the extent relevant for
adjudication of the present lis, is set out below:
i) The common ancestor of the parties, Dr. Babu Ram Garg,
allegedly executed a will dated 17th October, 19514
, bequeathing
House No. 49/1, Nai Mandi, Muzaffarnagar5
in favour of his two
sons - Ishwar Chand and Dr. Karam Chand. The third son, i.e.,
Ramesh Chand was not given a share in the suit property;
instead, he was bequeathed the business of a pharmacy and a
sum of Rs 5,000/- (Rupees five thousand only). The suit property
was a two storeyed building, with shops being run in part /
portion of the ground floor.
ii) The genealogical chart of the family is reproduced below for the
sake of convenience:
4 WILL, hereafter
5 suit property, hereafter
Page 3 of 38
iii) In the year 1956, a family settlement was entered into by the
parties concerned in terms whereof the names of Leelawati and
Ramesh Chand were mutated in respect of the suit property, with
the remaining properties being allotted to Dr. Karam Chand.
iv) After the death of Ishwar Chand in 1984, a civil suit6 was filed
by his wife Leelawati against Ramesh Chand, praying that she
be declared the owner of the western portion of the suit property
admeasuring 48 ft x 83 ft 6 inches, leaving the eastern portion
of the house, admeasuring 96 ft 6 inches x 48 ft for Ramesh
Chand. The said suit stood decreed on 30th May, 1987 by
compromise.
v) Litigation inter se the family members did not end with the first
suit being decreed on compromise. The same continued with Dr.
Karam Chand instituting a suit7 against his brother Ramesh
Chand as well as the heirs of late Ishwar Chand, whereby
permanent injunction was sought restraining them from
alienating the suit property. An ex-parte ad-interim injunction
was granted vide order dated 15th June, 1992 as regards the suit
property. Such order does not seem to have been served upon
Ramesh Chand or Ishwar Chand’s heirs.
vi) During the pendency of the second suit, on 16th June, 1992 and
29th June, 1992 to be precise, two sale deeds were executed qua
the southern and eastern portion of the suit property by Ramesh
6 Original Suit No. 307/1987, referred to as the “first suit” hereafter
7 Original Suit No. 458/1992, referred to as the “second suit” hereafter
Page 4 of 38
Chand, in favour of the appellants for a total consideration of Rs
80,000/- (Rupees Eighty thousand only). The deeds were duly
registered, and entered in the relevant book (Book No.1) on 17th
June, 1992 and 30th June, 1992, respectively. It is material to
note that the appellants were not wholly unknown to the family;
they resided in the building immediately to the south of the suit
property.
vii) During the pendency of the second suit instituted by Dr. Karam
Chand, again a compromise was arrived at between Dr. Karam
Chand and Ishwar Chand’s heirs on 28th September, 1992. In
terms thereof, Dr. Karam Chand relinquished his rights in respect
of the western portion of the house which had continuously been
in the possession of Ishwar Chand’s family.
viii) In yet another seemingly filial turn of events, the second suit
was finally compromised between Dr. Karam Chand and Ramesh
Chand. Dr. Karam Chand’s absolute rights over the eastern
portion of the suit property having been accepted, Ramesh
Chand was permitted to remain in possession thereof. In view of
the latter’s unemployment, he was allowed to use part of the
rental receipts from the shops to support his family, with the
remainder being given to Dr. Karam Chand. Lastly, the revenue
records were to be mutated to insert Dr. Karam Chand’s name.
ix) It is the appellants’ claim that this compromise was never acted
upon, which is evinced by the fact that as agreed upon in the
Page 5 of 38
compromise, mutation in the revenue entries was never carried
out.
x) In 1997, however, a mutation did occur in the revenue records.
This was carried out in favour of the appellants.
xi) Ramesh Chand left for his heavenly abode in 2002.
3. This factual background set the stage for the commencement of the
third round of legal proceedings, out of which this civil appeal has
arisen.
4. As late as on 25th February, 2003, Dr. Karam Chand (since deceased)
along with his son8
instituted a suit9 against the appellants, their
mother (the first defendant) (since deceased), the other heirs of Dr.
Karam Chand, and the heirs of Ramesh Chand seeking, inter alia, the
following relief:
“A. That the sale deed dated 16.06.1992 executed by Shri Ramesh
Chand favoring Smt. Meena Kumari etc. at Rs.80,000/- whose
registry has been done on date 17.06.1992 in Book No.1 Section 440
at Page No.347/360 at Serial No.4215 and dated 29.06.1992
executed by Shri Ramesh Chand favoring Smt. Meena Kumari etc. at
Rs.80,000/- the registry of which has been done in Book No.1 at
Section 3317/3485 at Page No.350/408 at Serial No.5179 on date
30.06.1992 and whose details have been given at the end of the
plaint and which are in respect of House No.49B, Nai Mandi,
Muzaffarnagar, should be cancelled and possession be given to
Plaintiff No.2 from the Defendant No.1 to 5 and the intimation of
cancellation of the sale deeds be sent to the office of Sub-Registrar,
Registry, Muzaffarnagar. In case the Hon'ble Court considers that the
relief cannot be granted only in favour of the Plaintiff No.2 then the
relief may be granted in favour of the Plaintiff No.2 and Defendant
No.8 and 9.
B. That the Defendants should be restrained by way of injunction
order that the property built in A B C D as shown in map plaint in
which on the ground floor Defendant No. 6 and 7 are in possession
over some portion should not execute the sale deed in favour of
Defendant No.1 to 5 or in favour of any other person or in any other
8 plaintiffs, hereafter
9 Original Suit No. 117/2003, referred to as the “subject suit” hereafter
Page 6 of 38
manner should not put the Defendant No.1 to 5 or any other person
into the possession over the property of occupancy by oneself or on
any other portion.
C. That the total cost of the suit be directed to be paid by the
defendants to the Plaintiff No. 2.
D. That any other or further order which this Hon'ble Court may deem
fit and proper in the facts and circumstances of the case may be
passed in favour of the Plaintiff No.2 and against the Defendants.”
5. The plaintiffs had applied for amendment of the plaint by filing an
application under Order 6 Rule 17, CPC. They intended to insert
paragraph 13A, after paragraph 13, reading as follows:
“13A: - That the suit is based on title and the suit has been filed for
recovery of possession based on title and the ground in the plaint is
that through the two sale deeds dated 16.06.1992 and 29.06.1992
which are executed by Ramesh Chand Garg in favour of Defendant
No. 1 to 5 no title has been transferred to Defendant No. 1 to 5 or
any one of them. Ramesh Chand Garg had no title in the said property
to which those two sale deeds relate. Plaintiff by way of abundant
precaution also seeks the relief of cancellation of sale deeds in the
suit but which is not required under the law. Dr. Karam Chand Garg
is not a party in both the sale deeds and Ramesh Chand Garg had no
title in the property.”
6. The order passed on such prayer for amendment by the trial court is
reproduced hereunder:
“From the proposed amendment in the Plaint the nature of the suit is
not changed and nor any irreparable loss is to be caused to the
Defendants at all. The condonation of delay may be compensated
through the costs. Hence the amendment application is liable to be
accepted with costs.”
7. The amendment, though innocuous, was applied with a definite
purpose in mind, which will unfold as the discussion goes ahead.
8. In the subject suit, a compromise was eventually arrived at between
the plaintiffs and Ramesh Chand’s legal heirs on 28th January, 2008.
The latter accepted execution of the WILL by the common ancestor,
thus, consequently accepting that they had no right or title in the suit
Page 7 of 38
property. It was accepted that Ramesh Chand was merely in
permissive possession and, thus, did not have the right to execute sale
deeds qua the suit property in favour of the appellants.
VERDICTS OF THE TRIAL COURT, THE FIRST APPELLATE COURT AND THE HIGH
COURT
9. On 25th January, 2015, the subject suit was dismissed by the trial court
on the following grounds:
i) That the plaintiffs failed to prove execution of the WILL in view
of Section 68 of the Indian Evidence Act, 187210 and Section 90A
thereof as amended by the State of Uttar Pradesh. It was held
that the presumption of valid execution of documents older than
30 (thirty) years would not be attracted to those documents
which formed the basis of the subject suit. The plaintiffs’ claim
having arisen from the WILL, they failed to prove its execution
inasmuch as only a certified copy of the WILL was produced
before the trial court. Further, the plaint was found to be bereft
of the date of the execution of the WILL, nor was there any
description of the witnesses to the WILL or whether they were
alive at the time.
ii) Reliance was placed on Section 41 of the Transfer of Property
Act, 188211 to observe that ever since the death of the common
ancestor, the plaintiffs had allowed Ramesh Chand to reside in
10 Evidence Act, hereafter
11 ToP Act, hereafter
Page 8 of 38
the suit property, allowed his name to be mutated in the revenue
records and collected rent from the shopkeepers, thus,
effectively portraying Ramesh Chand as the owner. In such
circumstances, the plaintiffs could not appear out of the blue as
the actual owners so as to challenge the sale deeds by which the
appellants derived title to the suit property.
iii) With respect to the contention that the sale deeds were barred
by the doctrine of lis pendens, the trial court held that the
doctrine excepted from its ambit suits that are collusive in
nature, which the second suit was found to be. Furthermore, no
objection had been taken by the plaintiffs during the pendency
of the second suit with respect to the strangers taking
possession.
iv) The amendment applied for by the plaintiffs, referred to above,
was ostensibly made with the purpose of getting over the bar of
limitation. If it were a suit seeking only recovery of possession,
the prescribed period of limitation would be 12 (twelve) years,
whereas for cancellation, it would be 3 (three) years. However,
the trial court did not confine itself to what the plaintiffs averred
in paragraph 13A (inserted by way of amendment) and looking
at the nature of relief claimed, placed reliance on Article 59 of
the Limitation Act, 196312 providing only a three-year limitation
period for cancellation of documents. The subject suit was
12 Limitation Act, hereafter
Page 9 of 38
instituted only in 2003 qua sale deeds which had been executed
11 (eleven) years prior in 1992. Thus, the suit was held to be
barred by limitation.
v) Additionally, it was held that the plaintiffs had been unable to
prove their ownership of the suit property and, thus, were not
entitled to the consequential reliefs sought for.
10. Aggrieved, the plaintiffs filed a first appeal before the District Judge13
.
During the pendency of this appeal, the second plaintiff had also filed
an interlocutory application, again seeking an amendment. On this
occasion, he sought to introduce in the plaint the relief of declaration
with respect to the disputed sale deeds. Given the stand taken in
paragraph 13A of the plaint that cancellation of the sale deeds had
been prayed for only as and by way of abundant caution, a completely
new relief of declaration that the sale deeds dated 16th June, 1992 and
29th June, 1992 do not affect the title of the plaintiffs to the suit
property and are not binding on them was sought by the second
plaintiff which effectively turned his said stand on its face. Surprisingly,
this application was allowed by the first appellate court vide order
dated 18th October, 2016. However, on an application made by the
appellants under Article 227 of the Constitution, the High Court set
aside the same vide its order dated 06th December, 2016.
13 first appellate court, hereafter
Page 10 of 38
11. The first appellate court thereafter, vide judgment dated 04th March,
2017, allowed the appeal and decreed the suit of the plaintiffs on the
following grounds:
i) In the first suit, Ms. Leelawati relied upon the WILL which was
not contested by Ramesh Chand, thus, proving the veracity of
the WILL. Furthermore, the appellants being strangers to the
family could not question the validity of the WILL, more so when
none of the family members themselves had laid such a
challenge.
ii) The appellants traced their interest in the suit property from
Ramesh Chand, who himself had never claimed ownership of the
suit property either on the basis of the WILL or a family
settlement. Their case being that Ramesh Chand acquired
ownership through the latter, the burden to prove the same
rested on the appellants.
iii) Since Ramesh Chand was never the owner, the sale deeds
executed by him in favour of the appellants were void and, thus,
it could not affect the plaintiffs’ right to the suit property, hence
obviating the necessity to seek a declaration qua such sale
deeds. Consequently, Article 59 of the 1963 Act would not apply,
the deeds having been executed by a person who had no right
to execute them, with the plaintiffs not being a party thereto.
iv) The sale deeds were held to be hit by the doctrine of lis pendens,
having been executed during the pendency of the second suit.
The trial court’s finding of the second suit being collusive was set
Page 11 of 38
aside on the ground that the compromise arrived at in the said
suit benefitted only Ramesh Chand, and not the plaintiffs.
12. The second appeal carried by the appellants before the High Court
resulted in the judgment and decree impugned in this civil appeal. It
was held by the High Court as follows:
i) The sale deeds being void, having been hit by lis pendens, the
plaintiffs were not obliged to seek the relief of cancellation.
Further, it was Article 65 of the 1963 Act which would govern
the suit proceedings and the relief of possession having been
sought, the period of limitation prescribed therefor being 12
(twelve) years.
ii) The plaints of both the first and the second suits were
examined. In the first suit, Ms. Leelawati claimed title to the
suit property through the WILL, which suit was eventually
compromised. In the second suit too, it was categorically
averred that the WILL executed did not give any share in the
suit property to Ramesh Chand. This suit too was decreed on
compromise, with both parties admitting execution of the WILL.
The execution of the WILL having, thus, been proved by
admission of both the plaintiffs and the predecessor-in-interest
of the appellants, there thus arose no need to prove the WILL
in the present proceedings, the issue being barred by resjudicata.
iii) The subject suit was held to be instituted within limitation,
Article 65 of the 1963 Act being applicable since the plaintiffs
Page 12 of 38
sought possession not on the basis of the cancellation of void
documents, but on the basis of title. Though there was a prayer
seeking cancellation of the documents, the benefit of the outer
limitation period of 12 (twelve) years for recovery of possession
would still accrue in favour of the plaintiffs.
iv) The compromise decree in the first suit would not bind the
plaintiffs since they were not parties to the suit. Hence, the
subject suit being decreed by the first appellate court was
confirmed.
ARGUMENTS
13. Mr. Gulati, learned senior counsel on behalf of the appellants, assailed
the impugned judgment on the following grounds:
(i) First, though the plaintiffs’ claim to title rested entirely on the WILL,
the plaint was woefully bereft of pertinent particulars with respect
to execution of the document, such as the date of its execution, who
were the attesting witnesses and whether the WILL was registered
or not. Furthermore, the original of the WILL had not been produced
before any forum in the present proceedings, and only a certified
copy of the WILL was produced, that too 5 (five) years after the
subject suit was instituted. There was no pleading in the plaint that
the original WILL had been misplaced or lost. Thus, the courts below
could not have accepted the WILL without the plaintiffs first having
proved the loss of the original.
(ii) Secondly, though the plaint originally contained a prayer for
cancellation of the sale deeds, the same was later given up on the
Page 13 of 38
premise that it was wholly unnecessary and had only been made
by way of abundant caution. Once such prayer stood removed, the
only prayer remaining in the suit was that of seeking possession.
However, where there lay a cloud over the title, such a suit for bare
relief of possession could not lie and succeed.
(iii) Thirdly, the first and the second suits, which were decreed by way
of compromise, were evidently collusive suits and, thus,
constituted an exception to the doctrine of lis pendens. Further, the
validity of the execution of the WILL was not an issue that was
determined in either of the two suits, so as to constitute res
judicata in the present proceedings. Even in the subject suit,
Ramesh Chand’s daughter, i.e., the seventh defendant had
admitted in her evidence that she was paid money by the plaintiffs
to settle the subject suit, though she was also a witness to both
the sale deeds executed by her father.
(iv) Fourthly, the compromise in the second suit was recorded only on
13th October, 1992, by which time Ramesh Chand had already
executed the two sale deeds. Having sold his share in the subject
property anterior to the compromise, Ramesh Chand no longer had
any locus to enter into the said compromise, having transferred the
entirety of his rights, title and interest in the suit property to the
appellants. Reliance was placed on Section 18 of the Evidence Act
to urge that an admission by a person would be binding only if the
person still had an interest in the matter at the time the admission
was made.
Page 14 of 38
(v) Fifthly, the interim order of injunction dated 05th June, 1992 in the
second suit was never communicated to the appellants. Though the
plaint contains a bare averment with respect to such order being
within the knowledge of the appellants, no details of the same were
ever given. Furthermore, this interim order was not produced
before the trial court and was only produced for the first time at
the first appellate stage.
(vi) Sixthly, Section 41 of the ToP Act would apply to the present
proceedings, as rightly held by the trial court, since the plaintiffs
had allowed Ramesh Chand to act as the owner for all intents and
purposes to the world at large. This is evinced by the factum of
Ramesh Chand’s name being mutated in the municipal records in
respect of the eastern portion of the suit property all the way back
in 1956, and that he was allowed to collect rent from the tenants
in possession of part of the suit property.
(vii) Seventhly, the second plaintiff in his cross-examination admitted
that within 10 (ten) days of purchase of the suit property, in 1992
itself, the appellants had taken possession of the suit property.
Despite the cause of action having arisen in 1992, the plaintiffs
chose to institute the suit 11 (eleven) years later in 2003. The
limitation period prescribed for suits seeking cancellation of
documents being 3 (three) years, as laid down in Article 59 of the
1963 Act, the plaintiffs’ suit was evidently barred by limitation.
Page 15 of 38
14. Mr. Gulati, resting on the aforesaid contentions, appealed that it was a
fit and proper case where the impugned second appellate judgment
and decree ought to be reversed and that of the trial court restored.
15. Mr. Kumar, learned counsel for the plaintiffs, assiduously argued in
favour of upholding of the impugned second appellate judgment and
decree, asserting that it was in accordance with law and did not
deserve interference, on the following grounds:
(a) First, the WILL of Dr. Babu Ram Garg gave all the three sons
shares of the testator’s properties, leaving none behind. As per
the document, Ramesh Chand only inherited the pharmacy
business and Rs 5000. Thus, Ramesh Chand (the vendor of the
appellants) not having been bequeathed any interest in the suit
property by his father, he could not have transferred any
portion thereof to the appellants. The plaintiffs had duly
produced a certified copy of the registered WILL on 26th
February, 2003 and a certified copy was also exhibited on 06th
February, 2008. At no point in the proceedings did the
appellants raise any additional issue with respect to the WILL
or non-production of the original thereof. Thus, the issue could
not be agitated for the first time before this Court.
(b) Secondly, the WILL stood admitted by all heirs of Dr. Babu Ram
Garg with none of the legal heirs contesting the same. In view
thereof, the appellants could not have raised a challenge to the
WILL when the party through whom they traced their title, i.e.,
Ramesh Chand, never contested the WILL. It was argued that
Page 16 of 38
any defence that could not have been taken by the person from
whom a transferee derives his title could not be taken by such
transferee.
(c) Thirdly, the sale deeds executed by Ramesh Chand in favour of
the appellants were executed in violation of the ad-interim stay
order dated 05th June, 1992 passed in the second suit and
hence, were void.
(d) Fourthly, the plaint duly prayed for cancellation of sale deeds,
by way of abundant caution. The issue was duly contested by
the appellants and, thus, they cannot today claim that such
prayer was never made.
(e) Fifthly, the appellants would not get the benefit of Section 41
of the ToP Act in the absence of any pleadings to such effect. It
was argued that there is no whisper of the alleged ostensible
ownership of Ramesh Chand in either the written statement,
the grounds of the second appeal or the present special leave
petition. The appellants could not be held entitled to the benefit
of such provision since no case was specifically made out for
the same.
(f) Sixthly, without prejudice to the submission that no challenge
could have been laid to such compromise without filing an
application under Order XXIII Rule 3, CPC, it was contended
that no issue was framed in the subject suit/proceedings with
respect to the compromise decrees passed in the earlier suits
being collusive. Further, no questions or suggestions in this
Page 17 of 38
regard were put to the plaintiffs’ witnesses. The compromise
decree in the second suit was, thus, valid and binding on the
appellants.
(g) Lastly, it was submitted that the main relief sought in the
subject suit was recovery of possession, the limitation period
for which is 12 (twelve) years, as prescribed in Article 65 of the
Limitation Act. The dispossession of the plaintiffs having
occurred in 1992, institution of the subject suit in 2003 was well
within the period of limitation. The relief of cancellation of void
sale deeds was merely an ancillary relief, and would not
disentitle the plaintiffs to the primary relief for which the
limitation period is 12 (twelve) years.
ANALYSIS AND REASONS
16. The present proceedings involve determination of multiple legal issues
of some complexity. We would endeavour to deal with them
sequentially.
I. WHETHER THE SUIT WAS BARRED BY LIMITATION
17. A coordinate Bench of this Court, in its decision of Khatri Hotels (P)
Ltd. v. Union of India14
, examined the position under Article 120 of
the Limitation Act, 1908 vis-à-vis Article 58 of the Limitation Act to
observe that the right to sue would accrue when there was a clear and
unequivocal threat of infringement of the plaintiff’s right. However,
while the former provision simply stated that the period of limitation
14 (2011) 9 SCC 126
Page 18 of 38
commenced when the right to sue accrues, in a marked linguistic
departure, the latter provision stated that the limitation would
commence when the right to sue “first” accrued. Having observed so,
this Court held that:
“30. While enacting Article 58 of the 1963 Act, the legislature has
designedly made a departure from the language of Article 120 of the
1908 Act. The word ‘first’ has been used between the words ‘sue’ and
‘accrued’. This would mean that if a suit is based on multiple causes
of action, the period of limitation will begin to run from the date when
the right to sue first accrues. To put it differently, successive violation
of the right will not give rise to fresh cause and the suit will be liable
to be dismissed if it is beyond the period of limitation counted from
the day when the right to sue first accrued.”
(emphasis supplied)
18. Khatri Hotels (P) Ltd. (supra) noticed the decision of a three-Judge
Bench in Rukhmabai v. Lala Laxminarayan15 wherein the legal
position was stated thus:
“34. The legal position may be briefly stated thus : The right to sue
under Article 120 of the Limitation Act accrues when the defendant
has clearly and unequivocally threatened to infringe the right
asserted by the plaintiff in the suit. Every threat by a party to such a
right, however ineffective and innocuous it may be, cannot be
considered to be a clear and unequivocal threat so as to compel him
to file a suit. Whether a particular threat gives rise to a compulsory
cause of action depends upon the question whether that threat
effectively invades or jeopardizes the said right.”
(emphasis supplied)
19. Khatri Hotels Pvt. Ltd. (supra) was noticed and applied by a bench
of three-Judges in Shakti Bhog Food Industries Ltd. v. Central
Bank of India16, although in the context of Order VII Rule 11, CPC.
It was held thus:
“17. The expression used in Article 113 of the 1963 Act is ‘when the
right to sue accrues’, which is markedly distinct from the expression
used in other Articles in First Division of the Schedule dealing with
15 AIR 1960 SC 335
16 (2020) 17 SCC 260
Page 19 of 38
suits, which unambiguously refer to the happening of a specified
event. Whereas, Article 113 being a residuary clause and which has
been invoked by all the three courts in this case, does not specify
happening of particular event as such, but merely refers to the
accrual of cause of action on the basis of which the right to sue would
accrue.
18. Concededly, the expression used in Article 113 is distinct from
the expressions used in other Articles in the First Division dealing with
suits such as Article 58 (when the right to sue ‘first’ accrues), Article
59 (when the facts entitling the plaintiff to have the instrument or
decree cancelled or set aside or the contract rescinded ‘first’ become
known to him) and Article 104 (when the plaintiff is ‘first’ refused the
enjoyment of the right). The view taken by the trial court, which
commended to the first appellate court and the High Court in the
second appeal, would inevitably entail in reading the expression in
Article 113 as — when the right to sue (first) accrues. This would be
rewriting of that provision and doing violence to the legislative intent.
We must assume that Parliament was conscious of the distinction
between the provisions referred to above and had advisedly used
generic expression ‘when the right to sue accrues’ in Article 113 of
the 1963 Act. Inasmuch as, it would also cover cases falling under
Section 22 of the 1963 Act, to wit, continuing breaches and torts.”
20. Shakti Bhog Food Industries Ltd. (supra) also noticed the earlier
three-Judge bench decision in Union of India v. West Coast Paper
Mills Ltd.17. There, the distinction between Article 58 and Article 113
of the Limitation Act was noticed and delineated as under:
“21. A distinction furthermore, which is required to be noticed is that
whereas in terms of Article 58 the period of three years is to be
counted from the date when ‘the right to sue first accrues’, in terms
of Article 113 thereof, the period of limitation would be counted from
the date ‘when the right to sue accrues’. The distinction between
Article 58 and Article 113 is, thus, apparent inasmuch as the right to
sue may accrue to a suitor in a given case at different points of time
and, thus, whereas in terms of Article 58 the period of limitation
would be reckoned from the date on which the cause of action arose
first, in the latter the period of limitation would be differently
computed depending upon the last day when the cause of action
therefor arose.”
21. One other three-Judge bench decision of this Court is Madhukar
Vishwanath v. Madhao18
, wherein the question arising for decision
17 (2004) 2 SCC 247
18 (1999) 9 SCC 446
Page 20 of 38
was whether a suit filed by a minor, 7 (seven) years after having
attained majority, seeking a declaration that the alienation made by
his guardian was barred by limitation. While the appellant argued that
possession being sought, Article 65 of the 1963 Act would govern the
question of limitation, the respondents argued that the suit being one
seeking declaratory relief, would be governed by Article 60 of the 1963
Act. Upholding the latter argument, this Court held that possession
only being a consequential relief, Article 65 would not apply.
22. This principle was further relied upon and affirmed by this Court in L.C.
Hanumanthappa v. H.B. Shivakumar19
.
23. Further, in Rajpal Singh v. Saroj20, this Court held that where a
composite suit had been filed for cancellation of the sale deed and of
possession, the limitation period would have to be adjudged from the
primary relief of cancellation which is 3 (three) years, and not the
ancillary relief of possession which is 12 (twelve) years. In holding so,
this Court held that:
“14. The submission on behalf of the original plaintiff (now
represented through her heirs) that the prayer in the suit was also
for recovery of the possession and therefore the said suit was filed
within the period of twelve years and therefore the suit has been filed
within the period of limitation, cannot be accepted. Relief for
possession is a consequential prayer and the substantive prayer was
of cancellation of the sale deed dated 19-4-1996 and therefore, the
limitation period is required to be considered with respect to the
substantive relief claimed and not the consequential relief. When a
composite suit is filed for cancellation of the sale deed as well as for
recovery of the possession, the limitation period is required to be
considered with respect to the substantive relief of cancellation of the
sale deed, which would be three years from the date of the knowledge
of the sale deed sought to be cancelled. Therefore, the suit, which
was filed by the original plaintiff for cancellation of the sale deed, can
be said to be substantive therefore the same was clearly barred by
19 (2016) 1 SCC 332
20 (2022) 15 SCC 260
Page 21 of 38
limitation. Hence, the learned trial court ought to have dismissed the
suit on the ground that the suit was barred by limitation. …”
(emphasis supplied)
24. These precedents would certainly have a bearing on the question of
limitation, which we are tasked to decide.
25. Heavy reliance has been placed by the plaintiffs on a 3-Judge Bench
decision of this Court in Sopanrao v. Syed Mehmood21 wherein,
while adjudicating a suit for possession and declaration of title, this
Court held that:
“9.***The appellants contend that the limitation for the suit is three
years as the suit is one for declaration. We are of the view that this
contention has to be rejected. We have culled out the main prayers
made in the suit hereinabove which clearly indicate that it is a suit
not only for declaration but the plaintiffs also prayed for possession
of the suit land. The limitation for filing a suit for possession on the
basis of title is 12 years and, therefore, the suit is within limitation.
Merely because one of the reliefs sought is of declaration that will not
mean that the outer limitation of 12 years is lost. Reliance placed by
the learned counsel for the appellants on the judgment of this Court
in L.C. Hanumanthappa v. H.B. Shivakumar [(2016) 1 SCC 332 :
(2016) 1 SCC (Civ) 310] is wholly misplaced. That judgment has no
applicability since that case was admittedly only a suit for declaration
and not a suit for both declaration and possession. In a suit filed for
possession based on title the plaintiff is bound to prove his title and
pray for a declaration that he is the owner of the suit land because
his suit on the basis of title cannot succeed unless he is held to have
some title over the land. However, the main relief is of possession
and, therefore, the suit will be governed by Article 65 of the Limitation
Act, 1963.***”
(emphasis supplied)
26. Mr. Kumar has been vociferous in his argument that the aforesaid
precedent binds us.
27. However, what we find from the decision in Sopanrao (supra) is that
the larger bench did not have the benefit of taking into consideration
number of precedents in the field some of which are noticed above.
21 (2019) 7 SCC 76
Page 22 of 38
28. Bare reading of the aforesaid precedents reveals a cleavage of opinion.
While all the precedents seem to be ad idem on the point of
interpretation of Articles 58, 59 and 113 under FIRST DIVISION – SUITS
forming part of the SCHEDULE to the Limitation Act, the decision in
Sopanrao (supra) does seem to strike a discordant note on such point.
29. Taking into consideration all the precedents, we may summarise our
views on the question under consideration.
30. Insertion by the Parliament of the word “first” under the column ‘Time
from which period begins to run’ in Article 58 is not without a purpose.
Such word, which was not there in the Limitation Act, 1908, has been
designedly used in Article 58 to signify that a suit to obtain declaration
(other than those referred to in Articles 56 and 57) has to be instituted
within three years of ‘when the right to sue first accrues’. In simpler
terms, if cause of action to sue means accrual of the right for an
actionable claim, it is the moment from which such right first accrues
that the clock of limitation would start ticking. Thus, even though
cause of action for instituting a suit might arise on varied occasions
and/or at different times, what is material and assumes relevance for
computing the period of limitation under Article 58 is the date when
the right to sue first accrues to the aggrieved suitor. Though dominus
litus, a suitor cannot pick and choose a time for approaching court.
The period of limitation in terms of Article 58 being 3 (three) years,
the prescribed period has to be counted from that date of the right to
sue first accruing and the suit, if not instituted within 3 (three) years
therefrom, would become barred by time.
Page 23 of 38
31. Similarly, under the column ‘Time from which period begins to run’ in
Article 59 providing for a three-year limitation period for cancellation
of an instrument, the ordainment is that the period will run ‘when the
facts entitling the plaintiff to have the instrument … cancelled or set
aside … first become known to him’. Any suit seeking cancellation of a
particular instrument as void or voidable would be governed by Article
59 and, therefore, has to be instituted within 3 (three) years from date
the suitor could be said to have first derived knowledge of the fact of
such an instrument (which, according to him, is void or voidable)
coming into existence. The word “first” in Article 59 would ordinarily
have the same connotation as in Article 58.
32. In the present case, the appellants had been put in possession of the
suit property in furtherance of the sale deeds executed by and between
Ramesh Chand and the former after the same were registered. Hence,
a civil suit seeking declaration of status or right simplicitor would not
have sufficed for the plaintiffs since admittedly, they were required to
seek further relief. A composite suit seeking cancellation, recovery of
possession and injunction is what was required to be instituted, as
distinguished from a suit seeking only recovery of possession. There is
an admission of the plaintiffs on record that the appellants had moved
into the suit property soon after execution of the sale deeds. Thus, the
facts and circumstances were such that in addition to seeking
cancellation of the sale deeds, since registered, the plaintiffs had to
and did seek recovery of possession. Cancellation, we are inclined to
Page 24 of 38
hold, was the primary relief in the circumstances with recovery of
possession being the ancillary relief.
33. Turning to the facts, the sale deeds executed by and between Ramesh
Chand and the appellants were not sham and inoperative such that the
plaintiffs could, at their option, not seek cancellation thereof. Execution
of the sale deeds was followed by registration as required by law.
Whether or not Ramesh Chand had any subsisting right to transfer the
suit property or whether or not the plaintiffs did trace their title through
any valid deed/document could be examined by the trial court only if
the civil suit had been instituted by the plaintiffs within the period of
limitation, as prescribed. In a case of the present nature, it was not
sufficient for the plaintiffs to claim a decree for recovery of possession
only. They had to otherwise establish their right to the suit property.
34. The civil suit was instituted with a prayer for cancellation of the
registered sale deeds, which the plaintiffs conveniently sought to give
up to project that the suit was only for recovery of possession and,
thus, duly instituted in terms of Article 65, i.e., within 12 (twelve) years
‘when the possession of the defendant becomes adverse to the
plaintiff’. After the civil suit failed on the ground of limitation, the relief
of declaration was belatedly sought to be inserted in the plaint in
course of the first appeal. Although the plaintiffs sought to contend
that the prayer for cancellation as well as the proposed insertion of the
prayer for a declaration was by way of an abundant caution, we have
no hesitation in rejecting such a contention as an after-thought.
Page 25 of 38
35. It is not in dispute that the plaintiffs did have knowledge - constructive
as well as actual - during the pendency of the second suit or soon
thereafter of transfer of the suit property in favour of the appellants
effected by Ramesh Chand by way of execution of the sale deeds which
were subsequently registered as required by Section 54 of the ToP Act.
Once the appellants started residing in the suit property, what
crystallised was the invasion of the plaintiffs’ rights. Their right to the
suit property, if any, was put to clear jeopardy. With the execution of
the sale deeds, subsequently registered, this was the moment when
the right to sue first accrued to the plaintiffs. In fact, according to the
plaintiffs, Ramesh Chand was proposing to dispose of the suit property
in favour of third parties and such apprehension of an intended transfer
was precisely the cause of action that was pleaded for institution of the
second suit. In any event, whatever be the relevant date, i.e.,
execution of the sale deeds by which Ramesh Chand conveyed the suit
property to the appellants or the date of taking actual possession of
the suit property by the appellants from Ramesh Chand a few days
after execution of such deeds, it is from such date of knowledge in
June, 1992 that the said transfer effectively did invade or jeopardize
the plaintiffs’ interest in respect of the suit property. Contention of Mr.
Gulati, therefore, has sufficient force that the suit had to be instituted
within 3 (three) years, since the title in respect of the suit property
had passed on to the appellants. He is also right in submitting that the
conduct of the plaintiffs does throw light on how they juggled to
overcome the bar of limitation by seeking a decree for cancellation of
Page 26 of 38
the sale deeds, which they sought to abandon midway by applying for
amendment; thereafter, again they made an attempt for insertion of
the prayer for declaration, also by way of an amendment at the
appellate stage, which did not ultimately fructify.
36. The civil suit of the plaintiffs having been instituted in 2003, it was
hopelessly barred by limitation and Section 3 of the Limitation Act
essentially entails its dismissal. The trial court, therefore, was right in
dismissing the suit, inter alia, on the ground of limitation.
37. The civil suit of the plaintiffs being barred by limitation, normally, we
would not be required to delve into the other questions urged by the
parties.
38. However, in view of the fact that we have expressed a view in accord
with other precedents in the field but not necessarily a view which is
wholly in consonance with the larger bench decision in Sopanrao
(supra) and Mr. Kumar having urged that we are bound thereby,
freeing ourselves of the finding that the civil suit was time-barred, we
wish to deal with the other questions arising for decision as well.
39. However, before parting with our discussion on this question, we also
wish to observe that there is one observation in the same relied on
paragraph of the decision in Sopanrao (supra) which could cost the
plaintiffs dearly. We propose to refer to the same at a later part of this
judgment, while proceeding to decide the other questions arising for
decision.
Page 27 of 38
II. WHETHER THE SALE DEEDS WERE VOID DOCUMENTS
40. The plaintiffs contended that Ramesh Chand had no right in the
property, and being devoid of any ownership rights, was in no position
to transfer title of the same to the appellants. Reliance has been placed
on the legal maxim nemo dat quod non habet, i.e., no one can transfer
a better title than what he himself possesses. Furthermore, the sale
deeds having been executed when an ad-interim injunction order was
in operation, the bar in Section 52 of the ToP Act would render the sale
deeds void ab initio. On the other hand, the appellants have relied on
Section 41 of the ToP Act to advance the submission that Ramesh
Chand having been portrayed to the world at large as owner, the
plaintiffs could not emerge from out of the woodwork to claim a secret
title.
41. The High Court’s finding that the sale deeds would be rendered void
solely on account of the operation of an injunction order has
necessarily to be set aside. It is settled law that Section 52 of the ToP
Act does not ipso facto render a sale transaction as inoperative, it
merely subjects it to the outcome of the pending proceedings. This
Court in G.T. Girish v. Y. Subba Raju22 held that:
“137. A transfer which is made lis pendens it is settled law, is not a
void document. It does create rights as between the parties to the
sale. The right of the party to the suit who conveys his right by a sale
is extinguished. All that Section 52 of the Transfer Property Act
provides is that the transfer which is made during the pendency of
the proceeding is subjected to the final result of the litigation.”
22 (2022) 12 SCC 321
Page 28 of 38
42. Furthermore, the High Court failed to scrutinise the nature of the
second suit in which the alleged ad-interim injunction order was
passed. A perusal of the same reveals that the second suit was filed
by Dr. Karam Chand on 15th June, 1992 and was compromised 4 (four)
months later on 12th October, 1992 with one of the terms of
compromise being that the revenue records would be mutated in the
name of Dr. Karam Chand, which mutation was never carried out.
Suspicion clouds the second suit, more so, when it is noted that though
the first sale deed was executed by Ramesh Chand on the very next
day the order of injunction was passed, i.e., on 16th June, 1992 and
the second deed executed on 29th June, 1992, whereafter the
appellants were put in possession, neither was the ad-interim
injunction order ever produced before the trial court in the present
proceedings (having seen the light of day in the first appellate court
for the first time) nor was the issue brought before the trial court for
its examination and decision. Dr. Karam Chand and Ramesh Chand
conveniently had the civil suit disposed of on the basis of compromise,
when Ramesh Chand did not have any subsisting right in the suit
property having sold it to the appellants. The effect of the doctrine of
lis pendens, which Section 52 of the ToP Act embodies, is not to annul
all voluntary transfers effected by a party to the suit but only to render
it subservient to the rights of the parties thereto under the decree or
order that the court may make in the suit. The transfer, subject to the
result of the suit, could remain valid. In view of Dr. Karam Chand and
Ramesh Chand conveniently entering into a compromise, collusion
Page 29 of 38
between the plaintiffs and Ramesh Chand is writ large. There being no
proof that the appellants had knowledge of this injunction order, the
transaction could not have been declared void ab initio. In view of the
facts and circumstances discussed above, we thus find this to be a case
which falls within the exceptions laid down under Section 52 of the ToP
Act, i.e., non-applicability of the provision to collusive suits.
43. We now proceed to advert to the second limb of the argument, i.e.,
the competence of Ramesh Chand to execute the sale deeds. In
arguendo, even if it is accepted that Dr. Babu Ram Garg by the WILL
did not bequeath any interest in the suit property to Ramesh Chand, it
is an admitted fact that he was allowed to reside in the property, and
that he was allowed to continue with collection of rent from shops
therein. Most importantly, in 1956, the name of Ramesh Chand was
mutated in the revenue records in respect of the suit property and this
record remained unchanged and unchallenged till 1997 when the
appellants applied for and obtained mutation of revenue records in
their favour. In view thereof, it would have been well-nigh impossible
for any vendee to conclude that someone other than Ramesh Chand
was the owner of the suit property. Thus, the appellants would have to
be held to be bona fide purchaser for value and, thus, entitled to the
benefit of Section 41 of the ToP Act.
44. Mr. Kumar has joined issue by citing absence of requisite pleadings for
attracting Section 41 of the ToP Act. Even though Section 41 might not
have been expressly referred to in their written statement by the
appellants, what was pleaded in paragraph 35 thereof is considered
Page 30 of 38
sufficient for the present purpose. The appellants have taken the same
plea in ground (cc) of the appeal. Contention of Mr. Kumar, to the
contrary, is thus not acceptable.
45. Disagreeing with the High Court, we answer this question in favour of
the appellants and against the plaintiffs.
III. WHETHER THE WILL STOOD ADMITTED IN THE PREVIOUS SUITS AND WAS NO LONGER
REQUIRED TO BE PROVED
46. An intriguing argument was presented by Mr. Kumar for the plaintiffs,
asserting that the execution of the WILL was not contested by the
predecessor-in-interest of the appellants in the initial two suits, and
therefore, the WILL is deemed to be admitted and they are bound by
such admission of their predecessor; and, also, because res judicata
applies. Reliance was placed upon Section 58 of the Evidence Act in
support of the argument that facts admitted, which in the present case
is the execution of the WILL, do not require further proof. As a result,
there was no obligation to prove the WILL in accordance with Section
68 of the Evidence Act, which mandates that at least one attesting
witness be called for proving the WILL.
47. At the first blush, this argument may appear to be rational but we find
it difficult to agree with it.
48. The principle that a will must be proven in accordance with Section 68
of the Evidence Act, is firmly established in law. In Ramesh Verma v.
Lajesh Saxena23
, this Court held that requirement of proof of a will
in accordance with Section 68 is not done away with, even if the will is
23 (2017) 1 SCC 257
Page 31 of 38
not disputed by the opposite party. For ease of understanding, we
quote the relevant passage hereunder:
“13. A will like any other document is to be proved in terms of the
provisions of Section 68 of the Evidence Act and the Succession Act,
1925. The propounder of the will is called upon to show by
satisfactory evidence that the will was signed by the testator, that the
testator at the relevant time was in a sound and disposing state of
mind, that he understood the nature and effect of the disposition and
put his signature to the document on his own free will and the
document shall not be used as evidence until one attesting witness
at least has been called for the purpose of proving its execution. This
is the mandate of Section 68 of the Evidence Act and the position
remains the same even in a case where the opposite party does not
specifically deny the execution of the document in the written
statement.”
(emphasis supplied)
49. Furthermore, it is worth mentioning that the plaint in the first suit
lacked essential details regarding the WILL; the original WILL was
never filed before the trial court; the WILL only came to light in 2003;
the plaint in the subject suit did not clarify the WILL’s current status —
whether it was lost or not. In light of such vague descriptions, it is
difficult to accept that there was deemed admission due to non-denial
in the first place. Nonetheless, for the sake of argument, even if these
flaws were absent and yet the defendant did not deny the execution of
WILL, the obligation to prove a WILL as specified in Section 68 would
remain unaltered (as discussed above).
50. Next, it was submitted by Mr. Gulati, and rightly so, that the benefit of
Section 90 of the Evidence Act of presumption as to documents thirty
years old could not have been given to the plaintiffs. As applicable in
the State of Uttar Pradesh, Section 90A with the State amendment is
reproduced below:
Page 32 of 38
“90-A. (1) Where any registered document or a duly certified copy
thereof or any certified copy of a document which is part of the record
of a Court of Justice, is produced from any custody which the court
in the particular case considers proper, the court may presume that
the original was executed by the persons by whom it purports to have
been executed.
(2) This presumption shall not be made in respect of any document
which is the basis of a suit or of a defence or is relied upon in the
plaint or written statement.”
The explanation to sub-Section (1) of Section 90 will also apply to
this Section.”
51. Section 90A(1) provides that where a registered document or its
certified copy being a part of the record of court is produced from the
custody of court, the court may presume that the original was
executed by the person by whom it is purported to have been
executed. Section 90A(2), however, makes it clear that the
presumption in Section 90A(1) will not be made if the said document
forms the basis of the suit. The plaintiffs in the subject suit traced their
title to the WILL. The WILL, therefore, formed the basis of the subject
suit and hence no presumption under Section 90A(1) can be raised to
the benefit of the plaintiffs.
52. Significantly, the statement made in paragraph 2 of the plaint is that
“Dr. Babu Ram Garg passed away in 1958 and he had executed a will
and also got it registered which is well into the knowledge of the
parties”. In their written statement, the appellants denied existence of
the WILL by pleading that Dr. Babu Ram Garg never executed any will.
Insofar as the appellants are concerned, there was no admission. In
fact, the plaintiffs were specifically put on notice by the appellants that
they were disputing the WILL. The burden was on the plaintiffs to prove
the WILL. The list of documents sought to be relied on by the plaintiffs
Page 33 of 38
included certified copy of the registered Will of Dr. Babu Ram Singh but
there was no pleading in the plaint as to whether the WILL was lost or
misplaced. A certified copy was only sought to be produced.
53. We may at this stage notice a few precedents on the point of a party
adducing secondary evidence in the nature of certified copy.
54. In Benga Behera v. Braja Kishore Nanda24
, a coordinate Bench of
this Court had the occasion to observe thus:
“31. A document upon which a title is based is required to be proved
by primary evidence, and secondary evidence may be given under
Section 65(c) of the Evidence Act. The said clause of Section 65
provides as under:
‘65. (c) when the original has been destroyed or lost, or when the
party offering evidence of its contents cannot, for any other reason
not arising from his own default or neglect, produce it in reasonable
time;’
Loss of the original, therefore, was required to be proved.
32. In a case of this nature, it was obligatory on the part of the first
respondent to establish the loss of the original will beyond all
reasonable doubt. His testimony in that behalf remained
uncorroborated.”
55. Yet again, in Jagmail Singh v. Karamjit Singh25
, the law was
reiterated in the following words:
“14. It is trite that under the Evidence Act, 1872 facts have to be
established by primary evidence and secondary evidence is only an
exception to the rule for which foundational facts have to be
established to account for the existence of the primary evidence. In
H. Siddiqui v. A. Ramalingam, (2011) 4 SCC 240, this Court reiterated
that where original documents are not produced without a plausible
reason and factual foundation for laying secondary evidence not
established it is not permissible for the court to allow a party to
adduce secondary evidence.”
56. We do not find from the materials on record including the judgments
of the trial court and the first appellate court as to whether any
24 (2007) 9 SCC 728
25 (2020) 5 SCC 178
Page 34 of 38
evidence was led that the WILL of Dr. Babu Ram Garg was misplaced
or lost or not otherwise available. In the absence of evidence being
led, acceptable to the court, that the original WILL was misplaced or
lost or otherwise not available, the precedents above referred would
apply on all fours.
57. Interestingly, the first appellate court proceeded on the basis that the
WILL was accepted by the parties to the first and the second suit and,
therefore, res judicata applied without, however, realising that the
appellants were not parties to any of those two suits and neither was
there any occasion for them to be bound by any admission or
acceptance of the WILL by their predecessor-in-interest nor did the
appellants ever make any such admission.
58. In such view of the matter, the inevitable conclusion that we reach is
that the plaintiffs’ title to the suit property could not have been traced
to the WILL of Dr. Babu Ram Garg.
59. This question too stands answered in favour of the appellants and
against the plaintiffs.
IV. WHETHER THE FIRST APPELLATE COURT WAS RIGHT IN DECREEING THE SUIT WITHOUT
THE PLAINTIFFS SEEKING RELIEF OF DECLARATION/CANCELLATION?
60. The decree passed by the first appellate court reads as follows:
“Civil Appeal is accepted. Judgment and order under question dated
25.02.2015 is set aside. Respondents are directed to vacate the
possession of the property, possessed on the basis of disputed
document dated 16.06.1992 and 29.06.1992 within 30 days and
hand over the possession to the plaintiff/ appellant otherwise
appellant/plaintiff will be entitled to take possession in accordance
with law.
So far as the question of grant of relief of injunction against
Defendant No. 6 and 7 is concerned; Defendant No.6 and 7 has the
possession on the ground floor of the disputed house being A. B. C.
Page 35 of 38
D. with the permission of the plaintiff and his father, therefore,
plaintiff / appellant will be entitled to dispossess the Defendant No. 6
& 7 by filing a suit of eviction against the Defendant No. 6 & 7 in
accordance with law and the plaintiff / appellant will be entitled to get
the possession of the disputed property.”
61. It is, therefore, seen that the first appellate court without passing any
decree in favour of the plaintiffs (i) declaring their right, title and
interest in respect of the suit property; (ii) declaring that the sale
deeds dated 16th June, 1992 and 29th June, 1992 did not affect their
title and/or that they were not bound thereby and (iii) cancelling the
registered sale deeds dated 16th June, 1992 and 29
th June, 1992,
granted relief by issuing a decree for recovery of possession.
62. This Court in Anathula Sudhakar v. P. Buchi Reddy26
had the
occasion to hold that where the plaintiff is in possession, but his title
to the property is in dispute, or under a cloud, or where the defendant
asserts title thereto and there is also a threat of dispossession from
the defendant, the plaintiff will have to sue for declaration of title and
the consequential relief of injunction; however, where the title of the
plaintiff is under a cloud or in dispute and he is not in possession or
not able to establish possession, necessarily the plaintiff will have to
file a suit for declaration, possession and injunction (emphasis
supplied).
63. In Sopanrao (supra) too, the three-Judge bench reiterated the
position by holding that in a suit filed for possession based on title the
plaintiff is bound to prove his title and pray for a declaration that he is
the owner of the suit land because his suit on the basis of title cannot
26 (2008) 4 SCC 594
Page 36 of 38
succeed unless he is held to have some title over the land (emphasis
supplied).
64. We have noticed hereinbefore that the sale deeds executed by Ramesh
Chand in favour of the appellants were registered. On the date the
second suit was compromised by Ramesh Chand with Dr. Karam
Chand, Ramesh Chand had lost title to the suit property. Legally
speaking, he could not have entered into any compromise with Dr.
Karam Chand and thereby confer on him any right, title or interest in
respect of the suit property. Although, transfer of property by the sale
deeds was well within the knowledge of the plaintiffs, neither did they
bring the fact of such sale to the notice of the trial court, seized of the
second suit, nor could the appellants be shown to have knowledge of
the pending suit while the sale transaction was effected. In such
circumstances, any compromise arrived at when the first and the
second suits were pending by and between the family members of the
plaintiffs in the absence of the appellants as parties to such
proceedings, such compromise decrees could not have had the effect
of binding the appellants. Thus, the appellants having legitimately
objected to validity of the WILL in their written statement, law required
the plaintiffs to prove such WILL in accordance with law. For the
reasons mentioned in Section III above, we have held that the WILL
was not proved.
65. That apart, the plaintiffs having given up the relief of cancellation
before the trial court and their attempt to insert in the plaint the prayer
for relief of declaration that the sale deeds dated 16th June, 1992 and
Page 37 of 38
29th June, 1992 do not affect their title and are not binding on them
having been spurned by the High Court in its revisional jurisdiction,
which has since attained finality, we hold that on the face of the strong
opposition raised by the appellants the first appellate court acted
illegally in the exercise of its jurisdiction in granting relief to the
plaintiffs by passing a decree for recovery of possession without there
being any decree for declaration of rights/cancellation of deeds. At the
stage of exercise of jurisdiction by the appellate court under Section
96 of the CPC, the plaint in the form it was there before such court
was incurably defective and no relief could have been granted to the
plaintiffs.
66. The High Court, in the exercise of its second appellate jurisdiction, did
not fare better. In fact, application of judicial mind to the substantial
questions of law arising for decision on the second appeal is
conspicuous by its absence.
67. For the reasons aforesaid, this question is also answered in favour of
the appellants and against the plaintiffs.
CONCLUSION
68. Having regard to the foregoing discussions, we have no hesitation to
hold that the subject suit of the plaintiffs could not have succeeded.
The trial court, in our opinion, was right in dismissing the suit.
69. The impugned second appellate judgment and decree of the High Court
and the first appellate judgment and decree of the first appellate court
Page 38 of 38
are both set aside and that of the trial court is restored, with the result
that the subject suit shall stand dismissed.
70. The civil appeal, thus, stands allowed. Parties shall, however, bear their
own costs.
………….………..…………………J.
(DIPANKAR DATTA)
……………….……..………………J.
(PRASHANT KUMAR MISHRA)
NEW DELHI;
APRIL 23, 2025.
