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TMI Blog2015 (1) TMI 1495X X X X Extracts X X X X X X X X Extracts X X X X ..... ossession. Since the possession has been taken on the basis of void document Article 65 of the Limitation Act would apply and the limitation to file a suit would be 12 years. In AJUDH RAJ AND ORS. VERSUS MOTI S/O MUSSADI [ 1991 (5) TMI 258 - SUPREME COURT ], it was held that if the order has been passed without jurisdiction, the same can be ignored as nullity, that is, non-existent in the eyes of law and is not necessary to set it aside, and such a suit will be governed by Article 65 of the Limitation Act. The plaintiff is claiming possession of the property on the basis that he was a co-owner. By way of a registered sale deed, the property had been sold to the defendant by the brother of the plaintiff by impersonation. The possession of the defendant is not authorized. The plaintiff as owner is seeking to recover possession from the defendant. The defendant had relied upon the sale deed as it purported to create some right in him. The document has been held to be void and non-est in the eyes of law. The defendant had raised a plea of adverse possession and an issue was framed but at the time of arguments the plea was not pressed but a finding was recorded against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r and the defendant was a bonafide purchaser. The plea of limitation was raised as the suit had been filed 25 years after the cause of action arose. It was pleaded that the land had been purchased in 1981 and the mutation was entered in the revenue record. It was pleaded that the defendant had been visiting the village a number of times and he had been seeing his peaceful possession. It was pleaded that the plaintiff had sold another piece of land in 1991 and neither he nor his son had ever objected. It was pleaded that the limitation for avoiding or cancelling the sale deed was three years. In the alternative the defendant took the plea of adverse possession. It was pleaded that the appeal had been filed against the conviction order. It was pleaded that the judgment dated 17.10.2006 was not binding as the suit had been filed by Satinder Kaur without proper authorization. 4. On the pleadings of the parties following issues were framed:- 1. Whether the plaintiff is entitled to declaration that the sale deed dated 30.11.1981, registered on 2.12.1981, executed by defendant regarding suit land to the extent of his share in favour of plaintiff is illegal, invalid and confers no ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant urged that the sale deed executed in favour of the defendant had been held to be void and a result of impersonation and a case was got registered which ended in conviction but it was another matter that the appeal was accepted but the revision was pending. It was contended that the defendant's plea that he was bona fide purchaser was not accepted and those findings have not been assailed by the defendant but the plaintiff had been non suited on the point of limitation. It was contended that the defendant had filed a suit in 2005 in which appellant had taken a plea that the sale deed was a result of fraud and impersonation and that suit had been dismissed. It was urged that the defendant had taken a plea of adverse possession which implies that he had acknowledged the title of the plaintiff. It was pleaded that the suit was filed on the basis of title and the limitation was 12 years. 10. Per contra the submission on behalf of the respondent-defendant was that the sale deed was a registered document which means notice to all and when a suit is filed for cancellation of a transaction then it is governed by Article 59 of the Limitation Act and the limitation is three years. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence between a valid, void or voidable instrument has held as under: 15. Section 31 of the Specific Relief Act, 1963 thus, refers to both void and voidable document. It provides for a discretionary relief. 16. When a document is valid, no question arises of its cancellation. When a document is void ab initio, a decree for setting aside the same would not be necessary as the same is non-est in the eye of law, as it would be a nullity. 17. Once, however, a suit is filled by a plaintiff for cancellation of a transaction, it would be governed by Article 59. Even if Article 59 is not attracted, the residuary Article would be. 18. Article 59 would be attracted when coercion, undue influence, misappropriation or fraud which the plaintiff asserts is required to be proved. Article 59 would apply to the case of such instrument. It would, therefore, apply where a document is prima facie valid. It would not apply only to instruments which are presumptively invalid. 19. It is not in dispute that by reason of Article 59 of the Limitation Act, the scope has been enlarged from old Article 91 of 1908 Act. By reason of Article 59, the provisions contained in Articles 91 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e relief of possession was not dependent on the cancellation of the document. Even without cancellation of the document, it is a nullity and void ab initio. The relief of possession being claimed by the plaintiff is based on his title. The plaintiff was only explaining the circumstances as to how the defendant had got into possession, therefore, to succeed in the suit for possession which is based on title, the sale deed was of no consequence. So far as the plaintiff's rights are concerned, the plaintiff wanted cancellation of the document so that the public at large were not misguided/deceived in future. As held by the Apex Court in the aforesaid judgment that as the relief of possession is based upon title and not based upon the sale deed, the correct Article applicable would be Article 65 of the Limitation Act and not Article 59. 22. The defendant had raised a plea of adverse possession and an issue was framed but at the time of arguments the plea was not pressed but a finding was recorded against the defendant. The suit had been filed within 12 years and it is in time, therefore, the finding recorded by the Courts below on the point of limitation is set aside. 23. For ..... X X X X Extracts X X X X X X X X Extracts X X X X
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