RAJPAL SINGHversusSAROJ (DECEASED) THROUGH LRS AND ANR

202                      [2022]REPORTS
               SUPREME COURT   19 S.C.R. 202               [2022] 19 S.C.R.


A                               RAJPAL SINGH
                                        v.
             SAROJ (DECEASED) THROUGH LRS AND ANR.
                         (Civil Appeal No. 3489 of 2022)
B                                MAY 18, 2022
               [M. R. SHAH AND B. V. NAGARATHNA, JJ.]
             Specific Performance: Agreement to sell – Cancellation of
      sale deed – Limitation period – Respondentno. 2-original owner
      agreed to sell his agricultural land to appellant-purchaser for the
C
      sale consideration – Before the execution of the sale deed, a
      declaration decree was obtained by the wife of the respondent no.
      2 against the respondent no. 2 whereby she was declared the owner
      of the land, however, this was not brought to the notice of the
      appellant nor there was mutation in the revenue record – Thereafter,
D     respondent no. 2 executed registered sale deed in favour of appellant
      and its name was entered in the revenue records – Appellant
      remained in possession and since then is cultivating the land – After
      5 years, the wife of the respondent no. 2 filed a suit seeking
      cancellation of sale deed in respect of the suit property on the basis
      of the declaratory decree obtained by her – Trial court decreed the
E
      suit, declaring that the sale deed in favour of the appellant was
      illegal and nullity as the respondent no. 2 had no title over the land
      when he executed the sale deed in favour of the appellant – However,
      the first appellate set aside the decree – In appeal, the High Court
      restored the judgment and decree passed by the trial court – On
F     appeal, held: Suit for cancellation of sale deed filed by the wife of
      the respondent no. 2 was clearly barred by law as it was required to
      be filed within the period of three years from the date of the
      knowledge of the sale deed – Relief for possession is a consequential
      prayer and the substantive prayer was of cancellation of the Sale
      Deed and thus, the limitation period is required to be considered
G
      with respect to the substantive relief claimed and not the
      consequential relief–When composite suit is filed for cancellation
      of the sale deed as well as for recovery of the possession, the
      limitation period is to be considered with respect to the substantive
      relief of cancellation of the sale deed, which would be three years
H     from the date of the knowledge of the sale deed sought to be
                                       202
RAJPAL SINGH v. SAROJ (DECEASED) THROUGH LRS AND                              203
                        ANR.

cancelled – Suit filed by the wife of the respondent no. 2 for                A
cancellation of the sale deed, can be said to be a substantive thus,
the same was clearly barred by limitation–Hence, the suit ought to
have been dismissed on the ground of limitation –Appellant can be
said to be a bona fide purchaser and that the decree obtained by
the wife of the respondent no. 2 was a collusive decree – When the
                                                                              B
wife of the respondent no. 2 obtained the collusive decree,there
was already an agreement to sell in favour of the appellant and
subsequently appellant paid the entire balance sale consideration,
which was accepted by the respondent no. 2–High Court failed to
consider all these aspects – Thus, the judgment and order of the
High Court is unsustainable and is set aside and that of the first            C
appellate court is restored and the suit filed by the wife of the
respondent no. 2 is dismissed – Limitation.
      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3489
of 2022.
      From the Judgment and Order dated 29.09.2016 of the High Court          D
of Punjab and Haryana at Chandigarh in R.S.A. No.4594 of 2009 (O&M).
      Ankur Mittal, Ms. Nidhi Mittal, Advs. for the Appellant.
      Rudra Pratap, Talha A. Rahman, Shyam D. Nandan, Advs. for
the Respondents.
                                                                              E
      The Judgment of the Court was delivered by
      M. R. SHAH, J.
       1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 29.09.2016 passed by the High Court of Punjab and
Haryana at Chandigarh in Second Appeal No. 4594 of 2009 by which              F
the High Court has allowed the said appeal preferred by the original
plaintiff and has quashed and set aside the judgment and order passed
by the First Appellate Court decreeing the suit for specific performance
and restoring the judgment and decree passed by the learned Trial Court
dismissing the suit for specific performance of the agreement to sell, the    G
original respondent No.1 has preferred the present appeal.
      2. The facts leading to the present appeal in nutshell are as under:-
      2.1 That the respondent No.2 herein – original defendant No.2
was the owner of the property in question being in the nature of
agricultural land. The original owner – original defendant No.2 entered       H
204             SUPREME COURT REPORTS                          [2022] 19 S.C.R.


A     into one Agreement to Sell dated 04.04.1993 with the appellant agreeing
      to sell the property in question for a sale consideration of Rs. 115,000/-.
      The time for executing the sale deed was extended twice in writing on
      account of request by original defendant No.1 – executant of the sale
      deed – original owner.
B            2.2 According to the case of the appellant herein – original
      defendant No.1, the original defendant No. 2 and the original plaintiff
      (husband and wife) hatched a conspiracy. The original plaintiff – wife of
      the executant of the agreement to sell filed a collusive suit for declaration
      (without seeking any consequential relief) against her husband - original
C     defendant no. 2 being Civil Suit No. 1643 of 1994. The said suit was
      filed on the premise that as per some alleged family settlement, the
      property in question fell to the share of the original plaintiff - wife.
      However, no family settlement was placed on record.
             2.3 In the said collusive suit, the husband - original defendant No.
D     2 (executant of the agreement to sell in favour of the appellant) filed
      written statement admitting everything and praying for a decree in favour
      of his wife – original plaintiff in the present case. Consequently, a decree
      of declaration was passed on 01.02.1995. The said decree was neither
      registered with Sub-Registrar’s Office, nor any entries were ever mutated
      in the revenue records. Therefore, the appellant herein – original
E     defendant No.1 was kept in the dark as everything happened behind his
      back.
             2.4 On the strength of the Agreement to Sell dated 04.04.1993,
      the original defendant No.2- original owner executed the registered Sale
      Deed in favour of the appellant herein – original defendant No.1 on
F
      19.04.1996. Necessary changes were consequently made in the revenue
      records as well as entering the name of the appellant immediately on
      31.05.1996. The appellant herein – original defendant No.1 remained in
      possession and cultivating the agricultural land in question since then.
             2.5 Almost after five years from the date of execution of the
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      registered sale deed in favour of the appellant, the original plaintiff (wife
      of the original owner) filed the present suit being Civil Suit. No. 419/
      2007 seeking cancellation of Sale Deed dated 19.04.1996 and relief of
      possession, claiming her title on the basis of the collusive decree dated
      01.02.1995.
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RAJPAL SINGH v. SAROJ (DECEASED) THROUGH LRS AND                                 205
                 ANR. [M. R. SHAH, J.]

       2.6 The suit was resisted by the appellant herein – original              A
defendant No.1. The original defendant No.2 – respondent No.2 herein
– the original executant of the registered Sale Deed dated 19.04.1996
deliberately chose not to appear or file any written statement. That solely
based on the collusive decree dated 01.02.1995 between the original
plaintiff (wife) and the original defendant No.2 (husband), the learned
                                                                                 B
Trial Court decreed the suit vide judgment and decree dated 20.04.2009
observing that in view of the decree dated 01.02.1995 in Civil Suit
No.1643 of 1994, the day on which the original defendant No.2 executed
the registered Sale Deed dated 19.04.1996 in favour of the appellant
herein – the original defendant No.1, he had no title and therefore, the
subsequent registered Sale Deed dated 19.04.1996 in favour of the                C
appellant is illegal and a nullity.
       2.7 Feeling aggrieved and dissatisfied with the judgment and decree
passed by the learned Trial Court, the appellant herein – original defendant
No.1 filed the appeal before the First Appellate Court. By a detailed
judgment and order dated 31.07.2009, the learned First Appellate Court           D
allowed the said appeal and set aside the judgment and decree passed
by the learned Trial Court on merits as well as on the ground that the suit
was barred by limitation. At this stage, it is required to be noted that prior
thereto and having come to know about the cheating and fraud committed
by the plaintiff and the original defendant No.2 (husband and wife), the         E
appellant herein had filed a complaint case for the offence under Section
420 and 120B IPC and the same is reported to be pending.
       2.8 Feeling aggrieved and dissatisfied with the judgment and order
passed by the First Appellate Court, the original plaintiff (wife) through
her legal heirs filed the present second appeal before the learned Single        F
Judge of the High Court. By the impugned judgment and order, the learned
Single Judge of the High Court has allowed the said appeal and has
quashed and set aside the judgment and order passed by the First Appellate
Court and consequently has restored the judgment and decree passed
by the learned Trial Court decreeing the suit preferred by the original
                                                                                 G
plaintiff and granting the declaration that the registered Sale Deed dated
19.04.1996 in favour of the appellant executed by the original defendant
No.2 (original owner – husband) is null and void.
      2.9 Feeling aggrieved and dissatisfied by the impugned judgment
and order passed by the High Court in allowing the second appeal and
                                                                                 H
206                SUPREME COURT REPORTS                        [2022] 19 S.C.R.


A     quashing and setting aside the judgment and order passed by the learned
      First Appellate Court and restoring the decree passed by the learned
      Trial Court, the purchaser – the appellant herein - the original defendant
      No.1 has preferred the present appeal.
            3. Shri Ankur Mittal, learned counsel appearing on behalf of the
B     appellant has vehemently submitted that as such, the appellant is the
      victim of the fraud played by the original plaintiff as well as the original
      defendant No.2 (wife and husband).
             3.1 It is vehemently submitted that after having obtained the
      collusive decree in favour of the original plaintiff – wife, the original
C     owner – husband executed the registered sale deed in favour of the
      appellant by taking the full sale consideration, i.e., Rs.1,15,000/- without
      disclosing the appellant about any decree dated 01.02.1995 passed in
      Civil Suit No.1643 of 1994.
            3.2 It is submitted that both the learned Trial Court as well as the
D     High Court have not properly appreciated the fact that: -
            (i)      The appellant is the victim of fraud;
            (ii)     That the original plaintiff obtained a collusive decree in her
                     favour in Civil Suit No.1643 of 1994 and the decree was
E                    without any contest by the original owner;
            (iii)    That the collusive decree in Civil Suit No.1643 of 1994 was
                     obtained on the basis of the so-called family settlement,
                     which never came on record;
            (iv)     That even after obtaining the original decree dated
F
                     01.02.1995 in Civil Suit No.1643 of 1994, neither the same
                     was registered before the Office of Sub-Registrar nor any
                     mutation entry in the revenue record was made. It is
                     submitted that thereafter the original owner – original
                     defendant No.2 – husband of the original plaintiff executed
G                    the Sale Deed dated 19.04.1996 by accepting the full sale
                     consideration of Rs.1,15,000/-;
            (v)      That immediately the appellant was put in possession and
                     since then he has been in possession and cultivating the
                     land in question;
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 RAJPAL SINGH v. SAROJ (DECEASED) THROUGH LRS AND                                 207
                  ANR. [M. R. SHAH, J.]

       (vi)   That immediately after the registered sale deed in favour           A
              of the appellant, the same was mutated in the revenue record
              on 31.05.1996 and despite the same, the present suit has
              been filed after a period of five years, which is beyond the
              period of limitation, i.e., three years.
       3.3 It is submitted therefore that when on appreciation of evidence,       B
the First Appellate Court by a detailed judgment and order set aside the
judgment and decree passed by the learned Trial Court and consequently
dismissed the suit, the same was not required to be interfered with by
the High Court in exercise of the very limited jurisdiction while deciding
the second appeal.                                                                C
      3.4 Making above submissions, it is prayed to allow the present
appeal.
      4. Present appeal is opposed by Shri Rudra Pratap, learned counsel
appearing on behalf of the respondents herein.
                                                                                  D
       At this stage, it is required to be noted that the heirs of the original
plaintiff (wife) and the original defendant No.2 (husband) are represented
by the same counsel. At this stage, it is also required to be noted that as
such the original defendant No.2 never contested the suit and/or filed
the written statement.
                                                                                  E
       4.1 Shri Rudra Pratap, learned counsel appearing on behalf of
the respondents has vehemently submitted that in the facts and
circumstances of the case, the High Court has not committed any error
in quashing and setting aside the judgment and order passed by the
First Appellate Court and restoring the judgment and decree passed by             F
the learned Trial Court.
       4.2 It is vehemently submitted by learned counsel appearing for
the respondents that as rightly observed and held by the learned Trial
Court as well as the High Court in second appeal that at the time when
the original defendant No.2 executed the registered sale deed in favour           G
of the appellant, he had no valid title in view of the decree passed in
favour of the original plaintiff – wife in Civil Suit No. 1643 of 1994. It is
submitted that when it was found that the registered Sale Deed Dated
19.04.1996 in favour of the appellant was by a person, who had no title,
the same was a nullity and therefore, the learned Trial Court rightly
                                                                                  H
208             SUPREME COURT REPORTS                           [2022] 19 S.C.R.


A     decreed the suit for declaration declaring the registered Sale Deed dated
      19.04.1996 in favour of the appellant as null and void.
             4.3 Now, so far as the submission on behalf of the appellant
      that the suit was barred by limitation is concerned, it is submitted
      that in the suit, the original plaintiff also prayed for the relief of
B     possession. It is contended that the suit for relief of possession can
      be filed within a period of twelve years. Therefore, as the suit was
      filed within a period of twelve years and the same cannot be said to
      be barred by limitation.
            4.4 Making above submissions, it is prayed to dismiss the present
C     appeal.
            5. We have heard learned counsel appearing on behalf of the
      respective parties.
             6. The original plaintiff instituted the Civil Suit No. 419/2007
D     claiming cancellation of the Sale Deed dated 19.04.1996 in respect of
      the suit property on the basis of the decree obtained by her in Civil Suit
      No.1643 of 1994 dated 01.02.1995. It is required to be noted that in
      the earlier said suit filed by the original plaintiff being Civil Suit No.1643
      of 1994, which was filed against her husband – original defendant No.2,
      there was no contest by the original defendant No.2 – original
E
      landowner and in the written statement, he admitted everything averred
      in the plaint and on the basis of which the decree came to be passed in
      favour of the original plaintiff on 01.02.1995. It is also required to be
      noted that the case on behalf of the original plaintiff in the earlier Civil
      Suit No.1643 of 1994 was based on an alleged family arrangement,
F     which was never produced before the court and/or even thereafter
      also. At this stage, it is required to be noted that prior thereto, there
      was already an agreement to sell executed by the original defendant
      No.2 – husband of the original plaintiff dated 04.04.1993 in favour of
      the Appellant herein and the time for executing the sale deed was
      extended twice in writing on requests made by the original defendant
G
      No.2 – original owner on 02.04.1994 and 01.04.1995. After the
      aforesaid agreement to sell dated 04.04.1993 and after the first
      extension, the original plaintiff filed the aforesaid collusive suit being
      Civil Suit No.1643 of 1994 and obtained the collusive decree dated
      01.02.1995.
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RAJPAL SINGH v. SAROJ (DECEASED) THROUGH LRS AND                                209
                 ANR. [M. R. SHAH, J.]

        Thereafter, on the strength of the agreement to sell dated              A
04.04.1993 and without disclosing the decree passed against him in Civil
Suit No.1643 of 1994 dated 01.02.1995, the original defendant No.2 –
husband of the original plaintiff – original landowner executed the
registered Sale Deed dated 19.04.1996 and accepted the balance sale
consideration. Necessary changes were consequently made in the                  B
revenue records as well, entering the name of the original defendant
No.1 – appellant herein in the year 1996 itself. At this stage, it is to be
noted that there was no mutation in the revenue records pursuant to the
decree dated 01.02.1995 in Civil Suit No.1643 of 1994. It has also come
on record and even as admitted by the original plaintiff in the present
suit, the appellant herein - original defendant No.1 continued to be in         C
possession and cultivating the land from 1996 onwards and despite the
above she filed the suit for cancellation of the Sale Deed dated 19.04.1996,
which was in favour of the appellant - original defendant No.1 executed
by her husband – original defendant No.2 in the year 2001.
       Therefore, the subsequent present suit filed by the original plaintiff   D
in Civil Suit No. 419/2007 can be said to be clearly barred by the law of
limitation. The suit seeking cancellation of the sale deed was required to
be filed within a period of three years from the date of the knowledge of
the sale deed. Therefore, when the name of the appellant herein - original
defendant No.1 was mutated in the revenue records in the year 1996 on           E
the basis of the registered Sale Deed dated 19.04.1996 and when he
was found to be in possession and cultivating the land since then, the suit
was required to be filed by the original plaintiff within a period of three
years from 1996. The submission on behalf of the original plaintiff (now
represented through her heirs) that the prayer in the suit was also for         F
recovery of the possession and therefore the said suit was filed within
the period of twelve years and therefore the suit has been filed within
the period of limitation, cannot be accepted. Relief for possession is a
consequential prayer and the substantive prayer was of cancellation of
the Sale Deed dated 19.04.1996 and therefore, the limitation period is
required to be considered with respect to the substantive relief claimed        G
and not the consequential relief. When a composite suit is filed for
cancellation of the sale deed as well as for recovery of the possession,
the limitation period is required to be considered with respect to the
substantive relief of cancellation of the sale deed, which would be three
years from the date of the knowledge of the sale deed sought to be              H
210             SUPREME COURT REPORTS                            [2022] 19 S.C.R.


A     cancelled. Therefore, the suit, which was filed by the original plaintiff
      for cancellation of the sale deed, can be said to be a substantive therefore
      the same was clearly barred by limitation. Hence, the learned Trial Court
      ought to have dismissed the suit on the ground that the suit was barred
      by limitation. As such the learned First Appellate Court was justified and
B     right in setting aside the judgment and decree passed by the learned
      Trial Court and consequently dismissing the suit. The High Court has
      committed a grave error in quashing and setting aside a well-reasoned
      and a detailed judgment and order passed by the First Appellate Court
      dismissing the suit and consequently restoring the judgment and decree
      passed by the Trial Court.
C
              7. Even the High Court has also not properly appreciated and
      considered the fact that the appellant herein - original defendant No.1
      can be said to be a bona fide purchaser and that the decree obtained by
      the original plaintiff in the earlier Civil Suit No.1643 of 1994 was a collusive
      decree and everything was done behind the back of the appellant herein
D
      - original defendant No.1. After pocketing the money and receiving the
      full sale consideration, the original defendant No.2 as such did not contest
      the present suit and now in the present appeal, both, the heirs of the
      original plaintiff as well as the original defendant No.2 are represented
      by the same Advocate contesting the present appeal. Be that as it may,
E     when the original plaintiff – wife of the original defendant No.2 (original
      landowner) obtained the collusive decree dated 01.02.1995 in Civil Suit
      No.1643 of 1994, there was already an agreement to sell in favour of
      the appellant herein – original defendant No.1 by which the original owner
      – original defendant No.2 agreed to sell the land in question and a sum
F     of Rs.40,000/- was paid as earnest money at the time of agreement and
      subsequently the appellant herein – original defendant No.1 paid the
      entire balance sale consideration, which was accepted by the original
      defendant No.2 – husband of the plaintiff, the High Court has erred in
      allowing the Second Appeal. All these aspects have not at all been
      considered by the High Court, which were considered by the First
G
      Appellate Court. The High Court has also not at all considered whether
      the suit was barred by limitation or not, which ought to have been
      considered by the High Court. Under the circumstances, the impugned
      judgment and order passed by the High Court is unsustainable and the
      same deserves to be quashed and set aside.
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 RAJPAL SINGH v. SAROJ (DECEASED) THROUGH LRS AND                            211
                  ANR. [M. R. SHAH, J.]

       8. In view of the above and for the reasons stated above, the         A
present appeal succeeds. The impugned judgment and order passed by
the High Court dated 29.09.2016 passed in Second appeal No. 4594 of
2009 is hereby quashed and set aside. The judgment and order passed
by the First Appellate Court is hereby restored and consequently the suit
filed by the original plaintiff stands dismissed.
                                                                             B
      Present appeal is accordingly allowed. However, in the facts and
circumstances of the case, there shall be no order as to costs.


Nidhi Jain and Amarendra Kumar                             Appeal allowed.
(Assisted by : Bodhi Ramteke, LCRA)                                          C




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