2017 PLP 116 (CLCN)

AM1N-UD-DIN KHAN, J.

Through this civil revision the petitioners have challenged the judgment and decree dated 11.02.1998 passed by the learned Additional District Judge, Alipur, whereby the appeal filed by the predecessor of present petitioners was dismissed and the judgment and decree dated 25.07.1995 passed by the learned Civil Judge 1st Class, Alipur, whereby, the suit for cancellation of document was decreed.

2. Briefly, the facts of this case are that the plaintiffs-respondents on 22.05.1988 filed a suit for cancellation of gift through a decree of the court dated 12.10.1977 passed in suit No.927 of the year 1977 from the court of learned Civil Judge, Alipur with regard to land fully described in the head note of the plaint measuring 04-kanals 08-marlas situated in Mouza Jahan Pur Tehsil Alipur in accordance with Register Haq Daran Zamin for the year 1984-85, on the ground that it is without consideration, without possession on the basis of non-compliance. The conditions, against the public policy, against the law and facts. The case pleaded by the plaintiffs was that the plaintiffs and defendant are of same caste. The transaction of gift through decree of the court was for a consideration of marriage of daughters of the defendant with the nephews of plaintiffs. The written statement was filed and suit was contested. In the written statement a preliminary objection was raised that previously the plaintiffs filed a suit for declaration which was dismissed, thereafter an application under section 12(2) of the C.P.C. was moved which too was dismissed, thereafter the suit has been filed which is otherwise time barred and in fact it was not maintainable. It is pleaded that decree in the suit in hand and challenged through the connected suit was passed and intervening period between the decrees challenged through the suits is about one year. The story narrated by the plaintiffs was vehemently refuted. Learned trial court framed the issues and invited the parties to produce their respective evidence. Both the parties produced oral as well as documentary evidence in support of their versions. After the completion of trial vide judgment and decree dated 25.07.1995 the suit was decreed by the learned trial court. Feeling aggrieved thereby an appeal was preferred which also met with the same fate vide judgment and decree dated 11.02.1998. Hence, this civil revision.

3. Learned counsel for the petitioners argues that the main attack on the transaction of gift was that the possession was not delivered to the donees. States that through Khasra -Girdawari the petitioners-defendants have fully proved their possession from the date of transfer. The findings recorded by both the learned courts below are incomplete, result of ignorance of documentary evidence available on the file. Prays for acceptance of the civil revision.

4. On the other hand, learned counsel for the respondents/plaintiffs argues that when the possession was taken by the defendant/predecessor of petitioners, the prayer of possession was also made. States that the gift was conditional one, therefore, the judgments and decrees passed by two courts below are accordance with law.

5. I have heard the learned counsel for the parties at full length and also gone through the record as well as the findings recorded by both the courts below, the pleadings and the evidence produced by the parties.

6. The plea pleaded through the suit which is subject matter of this civil revision is that the plaintiffs/respondents sought cancellation of gift implemented through a decree of the civil court dated 12.10.1977 and the instant suit has been filed after about 10 years of the passing of decree i.e. on 22.05.1988. Before filing the instant suit as per the defendant/predecessor of petitioners when he appeared as DW-1 stated that earlier twice the decree had been challenged, first in a suit for declaration which was dismissed and thereafter through an application under section 12(2) of the C.P.C. In the application which was filed on 23.09.1981, certified copy of the order has been produced as Ex.P-3, the case of present plaintiffs/respondents was that the decree has been procured through misrepresentation and fraud, whereas the application filed under section 12(2) of the C.P.C. was dismissed on 20.03.1982. The present suit has been filed on 22.05.1988, thereafter after about six years of dismissal of the application the suit in hand has been filed. The case pleaded by the plaintiffs that the gift was conditional, is not borne out from the impugned decree. The statement got recorded by Mst. Jindan and Mst. Bakhto has been produced as Ex.D-1 and the order of court as Ex.D-2, which negate the version of plaintiffs/respondents.

7. The facts in series are that a suit for declaration was filed by the defendant Ameer Bakhsh on 12.10.1977. The parties appeared before the learned trial court and got recorded their statements and the suit was decreed on the same day i.e. 12.10.1977. Thereafter through a declaratory, suit the said judgment and decree were challenged. After dismissal of suit an application under section 12(2) of the C.P.C. was filed on 23.09.1981, which too was dismissed on 20.03.1982 and the instant suit has been filed on 22.05.1988, which clearly establishes the contradictory pleas taken by the plaintiffs/respondents. Further when date of knowledge of the passing of decree i.e. 12.10.1977 has not been denied and suit has been filed on 22.05.1988, same was clearly barred by time. For filing a suit for declaration the limitation is six years under Article 120 of the Limitation Act, 1908.

8. So far as the implementation of the decree in the revenue record is concerned, it has not been denied by the plaintiffs/respondents, which fact is confirmed through Ex.P-1, which document has been produced by the plaintiffs-respondents themselves. Khasra-Girdawari negates the plea of the plaintiff's/respondents with regard to their possession over the suit property even after the passing of the decree. Khasra Girdawari producec by the petitioners/defendants proves their possession over the suit property. The resume of above discussion is that the form of suit was not correct when the plaintiffs/respondents withdrew their suit on 25.07.1987 in order to file an application under section 12(2) of the C.P.C. The said order was not challengeable through a declaratory suit and further the suit was not competent for cancellation of the transaction, which was confirmed through the decree of the court and further that another suit for declaration was dismissed and thereafter an application under section 12(2) of the C.P.C. filed by the plaintiffs-respondents was also dismissed. Therefore, the present suit which is subject matter of the civil revision was not competent. The suit is barred by time. Therefore, the findings recorded by both the learned courts below by ignoring all these legal points are not sustainable under the law.

9. The crux of above discussion is that this civil revision is allowed and the impugned judgments and decrees dated 11.02.1998 and 25.07.1995 passed by the learned courts below are set aside. The result would be the suit filed by the respondents/plaintiffs shall stand dismissed. ZC/A-36/L Revision allowed.