Mrs. Poonam Srivastava, J.:— Heard Sri S.K Mehrotra, Counsel for the appellants and Sri Mohd. Arif Khan, learned Senior Advocate, assisted by Mohiuddin Khan, Advocate, appearing for the respondents.
2. This is defendant's second appeal arising out of judgment and decree dated 24.2.2001 in Civil Appeal No. 73 of 2000 passed by the IInd Additional District Judge, Unnao partly decreeing the suit filed by the plaintiff/respondents No. 1 against the judgment and decree dated 17.5.2000 in Regular Suit No. 30 of 1981 dismissing the suit instituted by the plaintiff/respondent No. 1. The suit was instituted for cancellation of a registered lease deed dated 4.1.1955 regarding plot Nos. 1336 and 1340 situated at Bangermau, District Unnao. Lease deed is said to be executed by Smt. Nanhi Devi.
3. Facts of the case are that initially a Regular Suit No. 11 of 1968 was instituted in the Court of Munsif on 13.8.1968 The suit was kept pending for a considerable period and finally on 10.4.1981, plaint was returned under Order VII, Rule 10, C.P.C for being filed in the appropriate Court. Thereafter, plaint was presented in the Court of Civil Judge (Senior Division), Unnao, on 7.5.1981 and suit was registered as a Regular Suit No. 30 of 1981.
4. Claim of the plaintiff was that plot No. 1336 having an area of 5 bighas and plot No. 1340 having an area of 13 biswa, 10 biswansi were recorded as a grove immediately before abolition of Zamindari and after Act No. 1 of 1951 was enforced, bhoomdhari right was acquired in respect of plot No. 1340. Father of the plaintiff Bhupal Singh @ Ganesh Singh was owner of plot No. 1336 having an area of 2 bighas, 2 biswa and 15 biswansi. A temple was constructed on the remaining area, which is not disputed. Bhupal Singh had half share of plot No. 1340 and other half belonged to defendant Nos. 1 to 7. The aforesaid areas were partitioned in family settlement.
5. Suit was instituted for cancellation of registered lease deed dated 4.1.1955, executed by Smt. Nanhi Devi on her behalf and also on behalf of minor son Ravindra Singh (Plaintiff No. 1) as well as other two sons Chaudhary Sukhbir Singh and Gyanendra Singh in favour of deceased Chaudhary Surendra Singh (defendant). Other reliefs claimed was for possession, mesne profits and damages, and permanent prohibitory injunction.
6. Case of the plaintiff was that both the plots exclusively belonged to the plaintiff but the lease deed was executed by Smt. Nanhi Devi, which was invalid, as Ravindra Singh plaintiff No. 1 was minor and the signature of her mother Smt. Nanhi Devi was obtained on account of undue influence by her other sons Sukhbir Singh. Market was held on the above plot since a very long time, but only one year before, institution of the suit, when the plaintiff No. 1 held market on the plot he was interfered on 13.8.1968 It was for the first time, it came to his knowledge about the existence of lease deed which led to institution of the suit. The suit was instituted on 13.8.1968 in the Court of Munsif, numbered as R.S No. 11 of 1968, subsequently the plaint was returned on 10.4.1981 under Order VII, Rule 10, C.P.C for presentation before appropriate Court. The plaint was thereafter presented on 7.5.1981 in the Court of Civil Judge (Senior Division) Unnao, as R.S No. 30 of 1981. The suit was dismissed on 17.5.2000 Against this order, Civil Appeal No. 73 of 2000 was preferred. The Additional District Judge, Unnao, set aside the judgment of the Trial Court on 24.2.2001
7. The instant second appeal was admitted by this Court vide order dated 29.3.2001 on the following substantial questions of law:
“1. Whether the suit for cancellation of lease deed and for recovery of possession said to be based on the same was liable to be dismissed for not filing the original deed in the suit?
2. Whether the secondary evidence of certified copy of the lease deed in question filed in the suit without following the procedure provided in section 65 of Evidence Act, was liable to be rejected as inadmissible?
3. Whether the suit in question was barred by limitation in view of the provisions under sections 6 and 27 of the Limitation Act as held by the Trial Court?
4. Whether the plaint of the suit in question was liable to be rejected for not complying with the mandatory provision under Order VII, Rule 6, C.P.C?”
8. One more substantial question of law was framed subsequently on 6.4.2007 by means of an application dated 26.3.2007 which is quoted herein below:
”Whether the impugned judgment and decree passed by the Court below is legally unsustainable for invalidating the lease in question on the ground that the same was violative of the provisions under section 8 Hindu Minority and Guardianship Act overlooking the well settled law that the said Act is not applicable after the enforcement of the U.P.Z.A & L.R Act, 1950 with respect to the agricultural?”
9. The defendants claimed that market was held on the aforesaid plot since last 30 years whereas his father Chaudhary Mahendra Singh also held market on the plot No. 1340 since last 60 to 70 years. Cause of action arose one year before institution of the suit when holding of the market was disputed by the defendant. The original lease deed dated 4.1.1955 was not brought on record and it was only by way of secondary evidence i.e certified copy was filed without issuing any notice to the defendant No. 1 to produce the original and, therefore, procedure adopted was without compliance of provisions of sections 65 and 66 of Evidence Act. Lease deed was neither filed along with plaint nor its content was mentioned.
10. Case of the defendant set up before the Trial Court was that since there was a considerable delay in filing the lease deed and that too without leave of the Court thereby provision contained in Order VII, Rule 14, C.P.C stood violated and lease deed could not be read in evidence. Besides, relief for cancellation of lease deed in question as well as possession was barred by limitation. The defendant also raised specific objection that after return of the plaint for filing before the competent Court, it would not amount to continuation of the suit, which was initially instituted on 13.8.1968 The plaintiffs were not entitled to any benefit provided under Order VII, Rule 10, C.P.C The Trial Court declined to accept explanation tendered by the plaintiffs regarding the date on which the plaintiffs acquired knowledge about execution of the lease deed and, therefore, refused to accept that cause of action set up in the plaint was one year before institution of the suit. It was held that litigation continued between the parties up till the Board of Revenue regarding holding of market relating to the year 1941 to 1942 much before the institution of the suit. Documents regarding said litigation were also brought on record vide paper Nos. Ga-287 and Ga-288. The Trial Court was of the view that cause of action wrongly set up by the plaintiffs and, therefore, execution of lease deed in question was known to the executants and terms were also accepted in partition suit, therefore, lease deed is binding upon the plaintiffs and their family and could not be cancelled.
11. The Trial Court recorded its finding on issue No. 4 regarding limitation. Paper No. Ga-140/8 shows that age of the plaintiff was recorded as 8 years in 1953. It is evident that the plaintiff was born in the year 1945 and, therefore, he will attain majority in the year 1963. But suit was instituted only in the year 1968, therefore, it cannot be said that the suit was instituted within 3 years of attaining majority and the suit was held to be time barred.
12. The Lower Appellate Court framed 8 points of determination. The Appellate Court disagreed with the findings of the Trial Court and specifically held that the suit was instituted in the year 1968 and after return of the plaint, it was immediately presented before the appropriate Court, therefore continuity did not break and came to a conclusion that suit was not time barred under Order VII, Rule 8, C.P.C So far as bar of limitation regarding suit is concerned, the Court below placed reliance on high school certificate, where date of birth was recorded as 1.10.1947
13. Counsel for the appellants has disputed both findings on the ground that Lower Appellate Court failed to take into consideration decision of the Apex Court. Submission is that educational certificate is prepared in accordance with provision of section 35 of Evidence Act and, therefore, it is not liable to be considered as admissible evidence.
14. I am not in agreement with the submission of the Counsel for the appellants. In fact, the Lower Appellate Court was absolutely correct while placing reliance on the high school certificate, which is the basis and valid document for assessing the age, besides high school certificate, school leaving certificate, medical certificate as well as horoscope of the plaintiff was also taken into consideration.
15. Objection of the Counsel for the appellants that it was not prove by leading evidence cannot be accepted. It is a fact that the Court accepted age of the plaintiff on the basis of high school certificate and other documentary evidence, which substantiated claim of the plaintiff. However, main objection of the Counsel for the appellant is that assuming date of birth to be 1.10.1947, even then the plaintiff completes 18 years of age on 1.10.1965, whereas suit was instituted only on 13.8.1968
16. Counsel for the appellants has specifically pointed out that Lower Appellate Court instead of accepting the age of majority as 18 years has erroneously held the age of majority to be 21 years. Section 4 of Hindu Minority and Guardianship Act, 1956 was placed before me in support of the argument that person is a minor only up till age of 18 years and section 5 of the said Act clearly provides that Hindu Minority and Guardianship Act, 1956 shall have overriding effect on other law, therefore, findings recorded by the Lower Appellate Court assuming age of majority as 21 years amounts substantial error of law and judgment impugned is liable to be set aside on the ground of limitation alone.
17. The Lower Appellate Court has also refused to give any weightage to the lease deed as it was executed on behalf of minor by an illiterate lady and all the benefits available to pardanaseen lady should be given to her though it was objected by the defendant that she was able to read the Ramayana and look after parvi of various litigations and, therefore, said benefit could not be given to her. Counsel for the appellants has also specifically raised objection regarding admissibility of certified copy of lease deed as it was inadmissible in evidence under sections 65 and 66 of Evidence Act and Order VII, Rule 14, C.P.C The defendant was never asked to present the original lease deed and, therefore, in absence of any demand for original lease deed, certified copy could not be accepted and read in evidence as secondary evidence.
18. Counsel for the appellants has placed reliance on decision of the Apex Court Bailochan Karan v. Basant Kumari Naik . 1999 36 ALR 8 Sum, where it is provided that the starting point of limitation is on the date of attaining majority and the period of limitation is 3 years. For ready perusal paragraph No. 5 is quoted hereinbelow:
“We are unable to accept this contention. Section 60 of the Limitation Act, 1963, provides for a suit to set aside a transfer of property made by the guardian of a ward. The starting point of limitation is the attaining of majority by the ward and the period of limitation is three years. Even assuming that the contention of the learned Counsel of the appellant is correct that the sale in this case was not by a guardian and the person who represented the minor was only a de-facto guardian being the maternal grandfather and that Article 60 will not apply. In that case the period of limitation would be 12 years from the date on which the alienation was effected. In the present case, the alienation was effected in 1953 and the period of 12 years should be calculated from that date. Section 6 of the Limitation Act provides that if a person entitled to institute a suit is at the time from which the prescribed period is to be reckoned, a minor, he may institute the suit within the same period after the disability has ceased as would otherwise has been allowed from the time specified therefore in the third column of the schedule. Section 8 provides that nothing in section 6 applies to suits to enforce rights of pre-emptions, or shall be deemed to extend for more that three years from the cessation of the disability, the period of limitation for any suit.”
19. In the case of Binod Bihari Singh v. Union Of India. . AIR 1993 SC 1245., the Apex Court held that the question of limitation should be considered even in absence of a plea not raised specifically. On the basis of the aforesaid two decisions, it is correct that plea of exemption from limitation must be pleaded. In the present case, no such relied is claimed, therefore, the Lower Appellate Court was not correct while reversing findings and substituted its own without there being any pleadings to the said effect. So far as return of the plaint by the Munsif for being presented before the appropriate Court is concerned, benefit under Order VII, Rule 10, C.P.C cannot automatically held to be continuation of the suit.
20. In the case of Amar Chand Inani v. Union of India . AIR 1973 SC 313., and subsequent view expressed in Gopal Ram v. Mohan Ram . 1995 RD 538., the Court held that plaint after return by a Court filed in a different Court will be afresh presentation of the plaint. If the plaint is returned on account of want of jurisdiction and thereafter presented to different Court, it will be afresh presentation. This question has been considered by several Courts and it was held that second suit can not be recorded as continuation of the first, even though subject matter and parties to the suit are one and same. Subsequently, view has been expressed by the Apex Court; Harshad Chimanlal Modi v. D.L.F Universal Ltd. . 2006 62 ALR 335 SC.
21. Findings of the Lower Appellate Court that Patta in question executed by mother of minor as guardian without establishing any need for doing so, therefore, above patta was void to the extend of share of minor is also not acceptable. In view of well settled law that alienation by the guardian without legal necessity is not void document but voidable document and since it is accepted that the plaintiff had instituted suit after lapse of 3 years of attaining his majority, therefore, this objection is not available to the plaintiff and judgment of the Lower Appellate Court is not sustainable in law. Question of law raised that whether lease deed 4.1.1955 was void? I am of the considered view that the deed was not void but voidable document, it should have been challenged within the period of limitation after attaining majority. Having failed to do so, findings of the Lower Appellate Court are not sustainable in law.
22. In view of the various decisions as well as bar of limitation in filing the suit cannot be exempted. I come to a conclusion that judgment of the Lower Appellate Court suffers from substantial error of law and is liable to be set aside. The suit is decreed (sic-dismissed) and judgment of the Trial Court is restored. The impugned judgment passed in Civil Appeal No. 73 of 2000 is set aside. The instant second appeal is allowed.
23. No order as to costs.
Appeal Allowed.
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