J.K Ranka, J.:— It is the plaintiff's Special Appeal filed u/Sec. 18 of the Rajasthan High Court Ordinance arises out of the judgment & decree dt. 17.1.1994 whereby the Regular First Appeal preferred by the defendant No. 2 & 3 (respondents herein) u/Sec. 96 CPC was allowed setting aside the judg-ment and decree dt. 17.3.1986 passed by the trial court in Civil Suit No. 17/1981.

2. The brief facts of the case are stated as under:

2. 1 For the sake of brevity and expression, the parties are referred to as per the rank assigned to them in the suit.

3. Plaintiff Malika Zamitul Jamanu Begum filed a suit for declaration, possession & mesne profit on 16/3/1981 with respect to the suit property against defendant No. 1 Abdul Kayyum Khan and defendant No. 2 Mohd. Islam & defendant No. 3 Smt. Sharifan (subsequent purchaser). In the suit, the plaintiff sought herself to be declared as the true owner of the suit property. Such claim was based on an agreement dt. 03/07/1971 (unregistered), allegedly executed by the defendant No. 1 in favour of the plaintiff. It is the case of the plaintiff that she executed a sale deed of the suit property on 02/07/1971 in favour of the defendant No. 1 presented before Sub-Registrar on 5/7/1971 & registered on 21/7/1971 but such sale deed was a sham transaction. No sale consideration was ever paid by the defendant No. 1 in lieu of such execution and it was never intended to transfer ownership to defendant No. 1. The plaintiff further claimed that defendant No. 1 executed an agreement on the very next date i.e 03/07/1971(unregistered) agreeing to re-convey the suit property to the plaintiff upon receipt of Rs. 20,000/-. The plaintiff claimed that the sale deed was executed as a device to shield attachment/sale of the suit property. The plaintiff further claimed that in defiance of such agreement of re-conveyance, defendant No. 1 transferred the suit property to defendant No. 2 & 3 and put them in possession of the same, the plaintiff claimed possession from defendant No. 2 & 3. The plaintiff further claimed that the agreement for re-conveyance dt. 03/07/1971 was stolen by the defendant No. 1 and upon its discovery, the suit was instituted on 16/03/1981.

4. Defendant No. 1 did not put his appearance in the suit despite service and the suit proceeded ex-parte against him but defendants No. 2 & 3 (subsequent purchaser) entered appearance and denied the plaint averments. They claimed that the sale deed dt. 2/7/1971 was registered on 21/7/1971 was executed by the plaintiff in favour of the defendant No. 1 was a real and genuine transaction and title was passed on to the defendant No. 1 who, by execution and registration of two sale deeds dt. 29/10/1980, transferred the suit property alongwith its possession to defendants No. 2 & 3 and thus claimed themselves to be the real owner of the suit property. The defendants further claiming the re-conveyance agreement to be a false and fabricated document and a byproduct of the conspiracy between the plaintiff and defendant No. 1, designed to defeat the legitimate ownership of the defendants Nos. 2 & 3 pleaded to dismiss the suit of the plaintiff. Contentions with respect to maintainability of the suit for failure to seek cancellation of the sale deed and the suit being time barred were also raised by the defendants.

5. The trial court, based upon the pleadings of the parties, framed following issues:—

(i) Whether the plaintiff was the real owner of the suit property.

…Plaintiff

(ii) Whether the sale deed dt. 2.7.1971 in favour of defendant No. 1 was sham transaction, executed by the plaintiff without any consideration and defendant No. 1, was merely a Benami owner.

…Plaintiff

(iii) Whether defendant No. 1 was bound by the agreement (admission) dt. 07/02/1980 as per the averments made in Para 10 of the plaint.

…Plaintiff

(iv) Whether the plaintiff was not bound by the two sale deeds dt. 29/10/1980 executed in favour of defendants No. 2 & 3.

…Plaintiff

(v) Whether the plaintiff was entitled to get Rs. 1000 per month as mesne profit from defendants No. 2 & 3.

…Plaintiff

(vi) Whether defendants No. 2 & 3 were bonafide purchasers who purchased the suit property by paying full consideration.

…Defendant.

(vii) Relief.

6. The plaintiff examined Fida Ahmed (power of attorney holder) as PW-1; Ratanlal Kamdar as PW-2; Sujan Mal as PW-3; Ganeshlal as PW-4; Aziz-Ul-Haq as PW-5, Abdul Kayyum as PW-6 in her oral testimony. In the form of documentary evidence, the plaintiff submitted power of attorney as Exhibit-1; agreement as Exh. 2; letters of Patwar Training Center, Tonk as Exhs. 3 & 4; letter of plaintiff to Assistant Engineer, State Electricity Board as Exh. 5; agree-ment Munavirunnisa Begum as Exh. 6 and receipt of the municipality as Exh. 7.

7. Defendants No. 2 & 3 examined Mohd. Islam as DW-1; Girdhari Gopal Shrivastava as DW-2; Ahmed Ali Alias Bhura Miya as DW-3; Kesar Lal as DW-4; Mohd. Aziz as DW-5 and Azizul Haq as DW-6 in their oral testimony and submitted sale deed in favour of Abdul Kayyum as Exhibit-A-1; agreements as Exhibit-A-2 & Sale Agreement A-3; Receipt of possession as Exhibit-A-4, Sale deed in favour of Mohd. Islam by Abdul Kayyum as Exhibit-A-5; Sale deed in favour of Smt. Sharifan as Exhibit-A-6 and Receipts of Municipality as Exhibits-A7 to Exhibit-A-9.

8. The trial court vide judgment and decree dt. 17/03/1986 decreed the suit of the plaintiff. The trial court was of the view that although no proper explanation was put forward about the whereabouts of the re-conveyance agreement dt. 3.7.1971 from the date of its execution upto the time just prior to institution of the suit, but held that this fact did not lead to the inference that the same was fabricated afterwards just to defeat the sale deed dt. 2.7.1971 The trial court was impressed by the fact that although defendant No. 2 Mohd. Islam denied signatures of Abdul Kayyum Khan on the re-conveyance agreement but still no evidence in rebuttal was led by the defendants. The trial court further opined that though the re-conveyance agreement was time barred as far as suit for specific performance is concerned but its execution in itself was an incidence itself to prove that the sale deed dt. 2.7.1971 was void and ineffective. Ultimately, the trial court concluded that the sale deed dt. 2.7.1971 was ‘Benami’ and the plaintiff was the real owner of the suit property.

9. The trial court repelled the objection with regard to maintainability of the suit for failure to seek cancellation of the registered sale deed dated 02/07/1971, by holding that the same being without consideration was a void and illegal document for which relief of cancellation was not required.

10. The judgment and decree dt. 17/03/1986 was assailed by defendants No. 2 & 3 by way of regular first appeal, which was allowed by the ld. Single Judge of this Court on 17/01/1994. The ld. Single Judge was of the view that the suit for declaration without seeking cancellation of the registered sale deed executed by the plaintiff in favour of the defendant No. 1 was not maintainable. The ld. Single Judge, giving credence to the failure of the plaintiff to seek specific performance of the contract and was also not impressed by the explanation offered by the plaintiff for non availability of the agreement dt. 3/7/1971 till about a month prior to the date of filing of the suit. The ld. Single Judge was also of the view that if the sale deed executed by the plaintiff in favour of defendant No. 1 was merely a ‘Benami’ transaction entered without payment of the sale consideration, there was no occasion to get the re-conveyance agreement executed from defendant No. 2 for a consideration of Rs. 20,000/-. The ld. Single Judge also opined that the suit was filed beyond the prescribed period of limitation and was liable to be dismissed on this additional count also.

11. The ld. Single Judge, holding that title stood vested in defendant No. 1 by virtue of registered sale deed being executed by the plaintiff, further vested in defendants No. 2 & 3 by sale deeds dt. 29/10/1980 in favour of them by defendant No. 1, allowed the appeal and dismissed the suit of the plaintiff with cost throughout.

12. Feeling aggrieved the plaintiff has come up in this special appeal.

13. The ld. counsel for the plaintiff vehemently contended that the first appellate court committed a grave error in allowing the appeal and dislodging the well reasoned judgment passed by the trial court. According to him, the appellate court overlooked the clinching fact that the defendant No. 1 was the grandson (Nawasa) of the plaintiff and defendants No. 2 & 3 were husband and wife and thus the relationship was pivotal to assess the effect of the original sale deed executed on 2.7.1971 He further contended that the re-con-veyance agreement dt. 3.7.1971 was well proved by the plaintiff and the first appellate court was legally erroneous in opining that the suit for declaration was not maintainable in the absence of prayer for cancellation of specific performance of the agreement. According to him, the original sale deed being void for want of any consideration was not required to be annulled. He further stressed that without there being an issue with regard to limitation, the appellate court fell in error in opining that the suit was beyond limitation.

14. Per-contra, ld. Senior counsel, appearing for defendants No. 2 & 3, strenuously supported the judgment of the first appellate court. He contended that the alleged re-conveyance agreement dt. 03/07/1971 was nothing but a device fabricated at a later point of time to defeat the registered sale deed dt. 2/7/1971. He further argued that the plaintiff, being the executory of the sale deed dt. 02/07/1971, it was incumbent upon the plaintiff to bring a suit for cancellation of the sale deed, in absence of which the suit for declaration was not maintainable. He further contended that the suit was filed beyond the prescribed period of limitation and in support of his submission, relied upon judgments rendered in the case of Suhrid Singh @ Sardool Singh v. Randhir Singh : (2010) 12 SCC 112 : AIR 2010 SC 2807 : 2010 (2) RLW 1118 (SC); Sukh Lal v. Devi Lal : AIR 1954 Rajasthan 170; Ramti Devi (Smt) v. Union Of India. : (1995) 1 SCC 198; Man Kaur (Dead) By Lrs. v. Hartar Singh Sangha : (2010) 10 SCC 512 : 2010 (4) RLW 3663 (SC); Janki Vasudeo Bhojwani v. Indussind Bank Ltd. : (2005) 2 SCC 217.

15. We have heard the rival contention raised at the bar and have carefully perused the record and given our anxious consideration to the factual controversy in the light of the legal principles.

16. The plaintiff has set up an agreement of re-conveyance dt. 03/07/1971 to claim ownership of the property. The agreement is an unregistered instrument. It is not disputed that the plaintiff executed a registered sale deed dt. 2/7/1971 in favour of defendant No. 1. By force of provisions of the Transfer of Property Act and Registration Act, title passes by its execution and due registration of a sale deed unless the deed incorporates a stipulation otherwise. Such being the position, the title of the suit property stood transfered to defendant No. 1 upon registration of the sale deed on 2/7/1971. It is not the case of the plaintiff that the sale deed contained any stipulation otherwise. The plaintiff-appellant wants to get over the sale deed by taking two divergent stands. One stand is that no sale consideration was transferred to her and the defendant No. 1 was merely a ‘Benami’ holder. The other stand is of execution of the re-conveyance agreement dt. 3/7/1971. We are of the opinion that the two stands are mutually destructive. If nothing was conveyed or transferred by virtue of sale deed dt. 2/7/1971 in favour of defendant No. 1, where was the need to “re-convey” or “re-transfer” and get an agreement for re-conveyance executed for a consideration of Rs. 20,000/- by defendant No. 1 on 3/7/1971. It is settled proposition of law that title passes by due execution and registration of sale deed irrespective of the payment of sale price. The remedy available to such an unpaid seller is to file a suit for recovery of the unpaid sale price. The plaintiff has not come up for a suit for recovery of the alleged unpaid sale price nor has sought cancellation of the registered sale deed dt. 02/07/1971 to which she was an executory.

17. In Sukh Lal v. Devi Lal (supra), the Division Bench of this Court held as under:—

“When the plaintiff seeks to establish a title in himself and cannot establish that title without removing an insuperable obstacle such as a decree or a deed to which he has been a party or by which he is otherwise bound then he must get that decree or deed cancelled.”

18. In the case of Suhrid Singh @ Sardool Singh v. Randhir Singh (supra), the Hon'ble Apex Court held as under:—

“Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed.”

19. In the case of Ramti Devi (Smt) v. Union Of India. (supra), the Hon'ble Apex Court held as under:—

“Since the appellant is seeking to have the document avoided or cancelled, necessarily, a declaration has to be given by the court in that behalf. Until the document is avoided or cancelled by proper declaration, the duly registered document remains valid and binds the parties.”

20. Assessing the facts of the case in the light of the legal principles enshrined in the above authorities, it can safely be held that it was incumbent upon the plaintiff to seek cancellation of the registered sale deed dt. 2/7/1971 (Ex. A-1) executed by her in favour of the defendant No. 1. A duly registered document remains valid and binding between the parties until and unless the document is avoided or cancelled by proper declaration. The sale deed was an insuperable obstacle to which the plaintiff was herself an executory and without removing the same, the plaintiff was barred from establishing any title in herself.

21. The plaintiff also abstained from claiming specific performance of the alleged agreement for re-conveyance. An agreement by itself does not create right, title or interest in property. It merely provides the holder a cause of action to sue for specific performance of the agreement and get a decree for execution of a registered sale deed. There was a registered instrument execu-ted by the plaintiff in favour of defendant No. 1 which prima-facie, was valid and binding between themselves. The plaintiff was divested and defendant No. 1 was vested with certain rights by virtue of execution and due registration of such document on 21.7.1971 Such rights could not be eclipsed completely by the mere execution of an unregistered agreement for re-conveyance dt. 3.7.1971 It was obligatory on the plaintiff to seek specific performance of such agreement and obtain a decree for execution of an unregistered sale deed & only upon execution and due registration of sale deed from defendant No. 1 to plaintiff without which rights flowing from the registered sale deed dt. 2.7.1971 could not be curbed. The contention of ld. counsel for the appellants that the facts of the case are to be appreciated keeping in mind the relationship of the original plaintiff and defendant No. 1, carries no force. Even if an instrument is registered & executed between near relations, it carries the same legal consequences flowing therefrom and are not diminished by the mere fact that the executories of the documents are in near relations.

22. The whole foundation of the plaintiff's case was that the sale deed was executed merely as a device to shield the probable attachment/sale of the property which was apparent as her son was burdened with huge losses. But no credible evidence was led by the plaintiff about such assertion. Besides, the plaintiff herself did not turn up into the witness box and avoided the defendants an opportunity to cross examine her. It is settled proposition of law that though it is not incumbent in each and every case for a plaintiff or a party to herself enter into witness box to prove his/her case and the case may be proved by oral testimony of other person including a power of attorney holder who does not depose as a substitute for the plaintiff but depose in her personal capacity about the facts to which she is well conversant, but in the peculiar facts and circumstances of the instant case, the plaintiff could not transfer her duty upon the shoulders of the power of attorney holder (PW-1-Fida Ahmed)), who was not conversant with the facts of the case. The cumulative effect of the instances, herein before mentioned, lead to an irresistible conclusion that the plaintiff utterly failed to discharge her burden.

23. The lis has another aspect. Admittedly, the sale deed executed by the plaintiff is dt. 02/07/1971 and the suit was instituted on 16/03/1981 that is after a lapse of more than nine years.

24. The period of Limitation as provided in Art. 59 of the Schedule appended to the Limitation Act is as under:—

59 To cancel or set aside an instrument or decree or for the rescission of the contract. Three years 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

25. A bare glance of the above provisions clarifies that a suit for declaration has to be filed within a period of three years from the date the facts entitling the plaintiff become “first” known to him. The word “first” is of utmost significance. The sale deed was a registered instrument executed by the plaintiff. The plaintiff was not kept in dark either about the contents of the documents or its nature. The document was known to her from inception and as such, it was incumbent for her to bring a suit for a suitable relief within the prescribed period of limitation from the execution of the document. The alleged discovery of the re-conveyance agreement dt. 3/7/1971 just one month prior to the institution of the suit was of no avail and was an afterthought.

26. It was the execution and registration of the sale deed dt. 2/7/1971 (Ex. A-1) which provided cause of action to the plaintiff and the alleged recovery of the re-conveyance agreement dt. 3/7/1971 do not come to her rescue to save her from the rigours of the Limitation Act and the suit was hopelessly barred by limitation.

27. We do not subscribe to the contention of ld. counsel for the appellant that the first appellate court was not entitled to opine on the controversy of limitation without there being any issue struck on limitation. It is settled law that when parties are alive to the real controversy, mere non-framing of an issue shall not disentitle the court to probe and decide the emerging controversy. We also take support from Section 3 of the Limitation Act which reads as under:—

“3. Bar of limitation.-(1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.

(2) For the purposes of this Act—

(a) a suit is instituted—

(i) in an ordinary case, when the plaint is presented to the proper officer;

(ii) in the case of a pauper, when his application for leave to sue as a pauper is made; and

(iii) in the case of a claim against a company which is being wound up by the court, when the claimant first sends in his claim to the official liquidator;

(b) any claim by way of a set off or a counter claim, shall be treated as a separate suit and shall be deemed to have been instituted—

(i) in the case of a set off, on the same date as the suit in which the set off is pleaded;

(ii) in the case of a counter claim, on the date on which the counter claim is made in court;

(c) an application by notice of motion in a High Court is made when the application is presented to the proper officer of that court.”

28. The provision casts an incumbent duty upon the court to dismiss a suit filed beyond the period of limitation even if no objection is raised in this behalf from the opponent. The suit appears to be filed beyond the prescribed period of limitation on a prima-facie assessment of the admitted facts and hence, the ld. Single Judge was correct in concluding that the suit was time barred. We concur with the conclusion drawn by the first appellate court.

29. Resultantly, the special appeal, being devoid of any merit, deserves to be dismissed and is accordingly dismissed. No order as to costs.