KETAKI SAHU Vs. LAXMI DEVI

JUDGEMENT

(1.) THE legal representatives of the deceased defendant No. 1 are the appellants against the reversing judgment of the learned Subordinate Judge, Bhadrak who has decreed the plaintiffs suit for declaration of right and title over the suit land and their entitlement to get vacant oossession of the suit house.

(2.) THE respondents 1 and 2 are the plaintiffs. Their case is that they are the daughters of one Rama Sahu who died in the year 1950 leaving behind his widow Subarna, a son called Sukuti and the plaintiffs. After death of Rama Sahu, his son Sukuti and widow (mother of the plaintiffs) became the owners in possession of the suit land. Following the death of Sukuti in the year 1970 their mother Subarna became the full owner of the property. She died in the year 1972 leaving behind the plaintiffs and her successors -in -interest who were staying in the house of their father's -in -law. On 1 8 -1977 when the plaintiffs were repairing the suit house standing on the suit land, the original defendant No 1 by breaking open the lock of the house forcibly entered into it On query being made, he disclosed that Subarna had sold the land to him for consideration. Taking advantage of the old age and illness of their mother Subarna, the defendant No. 1 took her to Dhamnagar on the plea of filing application before the Tshasildar to mutate her name in respect of her property but fraudulently obtained a sale -dead from her. According to the plaintiffs, the deed was not read over and exolained to Subarna nor any consideration passed thereunder and was not otherwise acted upon. On these allegations, the suit was filed claiming for declaration of their right, title and interest and confirmation of possession over the suit land and alternatively for recovery of possession of the same. Their further prayer was to declare the sale -deed executed by their mother Subarna in favour of the original dafendant No. 1 as void and in case the sale -deed is found valid, then a decree for partition. The defendant No. 1 contested the suit and in his written statement, he pleaded that the document in question is a genuine sale -deed and Subarna after fully Knowing the contents thereof executed it for consideration of Rs. 1000/ -.

(3.) THE finding of the learned Subordinate Judge that the period of limitation for filing the suit in question is 12 years which is governed by Art, 113 of the Limitation Act, 1963 and not by Art, 60 is the subject -matter of challenge in this appeal, At this stage, it is relevant to observe here that the learned Subordinate Judge has wrongly referred to Art, 113 of the Limitation Act, 1963 which is a residuary article applicable to every variety of suit not otherwise provided for in the schedule of the Act. He should have referred to Art. 65 of the Limitation Act, 1963 which prescribed 12 years as a period of limitation in respect of a suit for possession of immovable property or any interest thereon based on title. The trend of discussion made by him in the impugned judgment would show that he had Art. 65 in view, but wrongly referred to Art. 113 which prescribes only 3 years as the period of limitation in respect of suits not otherwise provided for in the schedule.