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PETITIONER: RAMESHWER DUBEY & ORS.

       Vs.

RESPONDENT: MASOMAT ASHA KAUR & ORS.

DATE OF JUDGMENT:       05/08/1996

BENCH: K. RAMASWAMY, G.B.PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Though notice  was served on the legal heirs of the 1st respondent and  the counsel who had appeared earlier and had taken time  has now  reported that  in spite  of his writing three letters,  there is  no response  from them.  The legal heirs are brought on record.      Leave granted.      The only question that arises for consideration in this case is:  which article  of Schedule  to the Limitation Act, 1963 (for short, the ’Act’) would be applicable to the facts in this  case? The  courts below found as a fact that though the sale  deed was  executed on  July 12, 1966 by Asha Kaur, the first  respondent in favour of one Ganesh Missir, it was found that Ganesh Missir had played fraud upon her and that, therefore, the  sale deed is vitiated by fraud. She remained in possession  till December  14, 1970  and, therefore,  the sale deed  does not  bind her.  She filed a suit against the defendants including the appellants who came to have another sale deed  dated December  14, 1970  pursuant to  which  the plaintiff was  sought to be dispossessed. She filed the suit within three  years for adjudication under Section 31 of the Specific Relief  Act that  the sale  deeds are  void and for injunction  when  she  was  sought  to  be  dispossessed  on February 15,  1973 under  the sale  deed. It  was  also  her contention that  the second  sale deed  also was vitiated by fraud because  of her  incapacity and  illiteracy. That also found favour  with the  courts below  and  the  High  Court. Accordingly, her suit came to be decreed.      It is  contended by the appellants that whatever may be the finding regarding the sale deed of 1966, there cannot be any second  fraud in  the case of second sale deed. The suit ought to have been filed under Article 58 of the Schedule to the Act  and not  under Article  34. We find no force in the contention. In  view of  the finding  recorded by the courts below as a finding of fact that a fraud was played upon her, the fraud  unravels the  entire transaction  to  be  a  void document. Therefore,  the limitation starts running from the date when  the  cause  of  action  had  arisen,  viz.,  when dispossession was  sought to  be made.  It is  seen that the first respondent was sought to be dispossessed from her land

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in 1973.  The sale  deed came  to be  executed within  three years from  the date.  Under these  circumstances, since she remained in  possession till  that date, there is no need to file a  suit under  Article 59  of the  Schedule of the Act. Therefore, the  suit was  rightly filed  within three  years under Article  58 of  the Schedule to the Act and the courts below decreed  it  and  the  High  Court  upheld  the  same. Accordingly it does not warrant interference.      The appeal is accordingly dismissed. No costs.