HUBBALAL Vs. RAMANAND & OTHERS

JUDGEMENT

(1.) This is plaintiff's First Appeal filed under section 96, C.P.C. against the judgment and decree dated 6.2.1981, passed by Shri S.S. Trivedi, 1st Additional District Judge, Rewa in Civil Suit No. 4-B of 1977, dismissing the suit of the appellant with costs.

(2.) The suit filed by the appellant was for refund of Rs. 14,500.00 paid as consideration on 20th June, 1966 to the respondent No. 1 for land measuring 8.12 acres owned by defendants 2 and 3. That the suit land was sold by the registered sale-deed dated 20th June, 1966 for a valuable consideration of Rs. 14,500.00is not in dispute. It is also not in dispute that the appellant had earlier filed a civil suit before this Civil Judge, Class II, Rewa alleging that.'though in pursuance to the aforesaid sale deed he had received possession of the suit land and remained in possession thereof till 1970 his possession was disturbed by the respondents in 1971 necessitating filing of the aforesaid suit for recovery of possession. The said suit was decided on 9.12.1976 against the appellant by holding that the sale by the respondent Ramanand of the property of minors without the permission of the Court was illegal and conferred no right or title on the appellant to receive possession of the sold property. of Ex. P-2). After the aforesaid judgment dated 9.12.1976 the appellant filed the present suit on 19.4.1977 for recovery of consideration paid together with interest. The defendants raised several pleas including the plea that no consideration was paid at the time of effecting the sale-deed and that the suit was barred by limitation. The trial Court by the impugned judgment and decree held that the period of limitation in a suit like the present one can-; not be said to have commenced on 9.12.1976 i.e., the decision of the earlier suit. It was consequently held that the suit was barred by limitation.

(3.) The submission of the learned counsel for the appellant is that sale of the property by respondent No. 1 as guardian of respondents 2 and 3 was only voidable and not void and hence limitation would be governed by Art. 47 of the Limitation Act and the period of limitation would start running from the date of failure of the existing consideration. It was therefore submitted that the suit would not be barred but would be within limitation. According to the learned counsel, the failure of consideration within the meaning of Art. 47 would be on a date when minors repudiated the earlier sale and thereby avoided the contract. Under the circumstances, it is submitted that the finding that the suit was barred by limitation was illegal. It is also submitted that the finding that no consideration was paid is perverse being contrary to evidence on record. Relying on earlier judgment (Ex. P-2) it is submitted that the respondents are estopped from challenging the receipt of consideration. Learned counsel for the respondents, however, supported the judgment and submitted that the suit had become barred by limitation long before.