AMRISH R. KILACHAND Vs. MADHVI HARSH KILACHAND

JUDGEMENT

(1.) Writ petition under Article 227 of the Constitution of India is directed against the judgment and order dated 10.06.2011, passed by the District Judge, Nainital, in Civil Revision no. 64 of 2010, Smt. Madhvi Harsh Kilachand Vs Amrish R. Kilachand, whereby the said court allowed the revision filed by respondent no. 1.

(2.) Facts leading to the present writ petition, in brief, are that petitioner/plaintiff instituted an Original Suit no. 105 of 2009, seeking a relief of prohibitory injunction as well as the relief of mandatory injunction/ declaring the sale deed executed by respondent no. 2 in favour of respondent no. 1 as null and void. It is averred in the plaint that the plaintiff purchased the land in dispute through registered sale deed dated 22.02.1993 and is registered owner in possession of the suit property. Respondent no. 2 claiming himself to be the Power of Attorney holder of the plaintiff executed a registered sale deed in favour of respondent on. 1, whereof the plaintiff did not execute any Power of Attorney in favour of respondent no. 1. It is alleged that on the basis of non-existent Power of Attorney the sale deed has been executed in favour of respondent no. 1.

(3.) Defendant no. 1/Respondent no. 1 filed her written statement denying the plaint averments. Respondent no. 1 stated that she purchased the said land from respondent no. 2 and her name has been mutated in revenue records. It is further stated that suit has been under valued. It is contended that she is lawful owner in possession of the suit property. It is further contended that the suit is barred by limitation as the suit has been instituted on 07.09.2009 seeking declaration of the sale deed dated 06.05.1994 null and void. It is also contended that since the plaintiff is having knowledge of the sale deed and the suit has not been filed within three years for cancellation of the sale deed from the date of knowledge, therefore, the suit is barred by limitation. For ready reference paragraph 24 of the written statement is excerpted hereunder: 24. That the plaintiff's suit is barred by Law of Limitation, because the said sale deed, which has been challenged in the instant suit is dated '06.05.1994', whereas the above suit has been filed as late as on 07.09.2009 although the limitation for seeking cancellation of sale deed/for declaration of said sale deed as void, is only three years, from the date of the said sale deed.