MOHAMMAD NOORUL HODA Vs. BIBI RAIFUNNISA

JUDGEMENT

(1.) In a see-saw legal battle between S. K. Mahangu and S. K. Rafique, the brother-in-law of the petitioner, the court is called upon to decide whether the petitioner's title Suit No. 148 of 1981 filed in the court of Munsif, Arari in Bihar was filed within the limitation. Though the proceedings are numerous, the facts relevant to decide the question of limitation may be culled out in a short compass. In Khata No. 1593 which is part of Plot No. 4364 of an extent of 473 acres situated in Basantpur Village, the names of Bibi Raifunnisa, Mahangu and Bibi Afta, heirs of Fidvi were recorded as owners thereof. Khata No. 1593admeasuring 7 bighas 6 kathas of the land is the subject-matter of the dispute. The petitioner claimed that he had purchased the said land, benami in the name of Rafique on 1/12/1959 and was in possession and enjoyment thereof. Bibi Raifunnisa filed Title Suit No. 220 of 1969 for partition and division by metes and bounds was decreed and a preliminary decree dated 22/1/1973 was passed. In furtherance thereof, final decree was passed on 9/2/1974. The suit land fell to the share of Bibi Raifunnisa. The petitioner obtained another sale deed from Rafique on 6/9/1980. He filed the suit in !981 for a declaration that the preliminary and final decrees dated 22/1/1973 and 9/2/1974 respectively made in Title Suit No. 220 of 1969, were illegal, collusive and did not bind him and made a prayer to adjudicate and set aside the same as such and to grant perpetual injunction.

(2.) The trial court decreed the suit but on appeal, the District court held that the petitioner being not a party to the preliminary or final decree, they could not bind the petitioner but nonetheless Rafique, the benamidar had knowledge of the preliminary decree passed in 1973 and final decree passed in 1974. The lands were allotted to Bibi Raifunnisa. The petitioner had thereby constructive notice. The suit having been filed beyond three years, was barred by limitation applying Article 59 of the Schedule to the Limitation Act, 1963 (for short "the Act"). The High court in AAD No. 18 of 1988 by judgment and order dated 7/8/1995 confirmed the same. Thus this petition by the plaintiff.

(3.) The appellate court recorded the finding that: "moreover, Public Witness 8, Rafique himself admitted in his evidence that he had filed the said Kewala (sale deed) in Title Suit No. 220 of 1969 and this fact has also been corroborated from the Exh. list of document filed in Title Suit No. 220 of 1969. Exhs. H-l and H-2 clearly indicate that Kewala dated 1/12/1959, alleged to have. been executed in favour of Rafique was filed in Title Suit No. 220 of 1969". It was also found that the petitioner as Public Witness 9 admitted "that he liad not paid any amount to Rafique. He further admitted in para 32 that there is mention that Rafique was the benamidar and so the land is now transferred". On those findings it was held that in the preliminary and final decrees Exhs. 1 and J-l, the lands were allotted to Raifunnisa. The petitioner had not filed the original sale deed dated 6/9/1980 and accordingly, it found that Rafique had full knowledge about the Title Suit No. 220 of 1969. The petitioner, Public Witness 9 came to know about the title suit through his benamidar. Article 59 of the Schedule to the Act is applicable to the facts. Therefore, the suit is barred by limitation. The High court in the impugned judgment held that the knowledge of the benamidar under the facts and circumstances of this case could be imported to be the knowledge of the real owner, namely, the petitioner. The petitioner, therefore, had full knowledge about the earlier proceedings of the preliminary and final decrees and concluded thus: ". . from the very beginning the plaintiff had knowledge of the entire things inasmuch as he himself had purchased the suit property by the first sale deed dated 1/12/1959, but according to the plaintiff actually he was the owner and Rafique was Benamidar and again he himself had purchased the suit property by the subsequent sale deed dated 6/9/1980. Thus the Benamidar had got all the knowledge about the earlier proceedings. . In my opinion, therefore, the plaintiff is presumed to have got full knowledge of the earlier proceeding in the suit relating to the litigation in respect of the preliminary and final decree of thebenamidar. " Accordingly it was held that the suit is governed by Article 59 of the Schedule to the Act and the suit having been filed in 1981, is barred by limitation.