MAMTA GURUNG Vs. CHIEF SECRETARY

JUDGEMENT

(1.) The Appellants are aggrieved by the Order of the Court of the Learned District Judge, Special Division - I, Sikkim, at Gangtok, in Title Suit No.02 of 2021 (Mamta Gurung and Others vs. The Chief Secretary, Government of Sikkim and Others), dtd. 27/3/2023, which dismissed the Plaint of the Plaintiff/Appellants herein, in terms of Order VII Rule 11(d) of the Code of Civil Procedure, 1908 (hereinafter, the -CPC?). Before this Court, the Appellants contend that the suit is not barred by limitation as erroneously opined in the impugned Order.

(2.) Learned Senior Counsel for the Appellants advanced the argument that where a suit is based on a fraud of the Mamta Gurung and Others vs. Chief Secretary and Others Defendant, the period of limitation will not commence until the Plaintiff has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it, or in the case of a concealed document, until the Plaintiff first had the means of producing the concealed document or compelling its production. That, a fraud was committed by the Respondent No.12 on the Appellants, by registering and mutating a portion of the suit property surreptitiously in his name. That, the Respondents No.3 and 4 are complicit in the matter having permitted the procedure of fraudulent registration. That, despite this circumstance, the Learned Trial Court was remiss in not discussing Sec. 17(1)(a) of the Limitation Act, 1963, (hereinafter, the 'Limitation Act'), in the impugned Order although it was raised in the pleadings. That, the commission of the fraud came to the knowledge of the Appellants No.4 and 5 only in the year 2002, on the demise of their mother in 2001, who till then had remained in charge of the properties. Thereafter, on tracing the parcha khatiyan, dated 18- 06-1992, it came to light that the land measuring 3.65 acres purchased by their father in the year 1961 was recorded only as 2.20 acres. The cause of action is a continuing one as on their knowledge of the fraud, on 25/12/2002 the Appellant No.4 took immediate steps and submitted an application to the Respondent No.4, seeking demarcation of their land. In the absence of any response, another application was filed by him on 17/5/2006 and on the continued unresponsiveness of the Respondents No.3 and 4, it was followed by one on 3/3/2008 and on 10/7/2013. That, on 12/9/2013 spot verification as called for in terms of the Notice of Respondent No.4, dtd. 10/9/2013, failed to materialise. Another Mamta Gurung and Others vs. Chief Secretary and Others application dtd. 19/11/2014 was then filed by the Appellant No.4 and on spot verification the area of their land was found to be reduced but the Respondents No.5 to 11 failed to produce relevant documents pertaining to the recording of an area of 1.45 acres in their names, (which is the area of land reduced from that of the Appellants) or in the name of any other person, from that of late Chandra Bir Gurung alias Chandra Bahadur Gurung, the father of the Appellants No.4 and 5. On 31/8/2015 the Appellant No.4 filed an application before the Respondent No.4 seeking a restraining Order against the Respondents No.5 to 11, from mutating the suit land in the name of any third party, till the finalization of the dispute, which was allowed on 24/5/2016. On 4/5/2018 the Appellant No.4 filed another application before the Respondent No.3, to which, on 19/9/2019 the Appellants were directed to approach the Civil Court. That, the suit was filed on 2/3/2021 for declaration, recovery of possession and other consequential reliefs against the Respondents No.5 to 12. That, the Appellants No.4 and 5 continuously pursued their matter before the concerned authority who failed to address their grievances and the Appellants cannot be deprived of their rights on account of the passivity of the government authorities. That, on each of the dates reflected above the cause of action was continuing, apart from which as it was a case of fraud the limitation would fall within the ambit of Sec. 17(1)(a) of the Limitation Act.

(3.) Learned Counsel for the Respondents No.5 to 11 contesting the above submissions canvassed that the first application was filed by the Appellant No.4 on 25/12/2002 followed by another one after almost four years in 17/5/2006, revealing his lack of interest and diligence. That, contrary to the grounds put forth by the Appellants with regard to the period of limitation, the application dtd. 25/12/2002 reveals that they were aware of the reduced area of the suit land in the year 2002 itself but failed to furnish reasons for not pursuing the matter. Parcha khatiyan issued on 18/6/1992 in the joint names of the Appellants No.4 and 5 reveals the reduced area of the land but they chose not to agitate the matter before any forum. Moreover, no allegations of fraud were made in the applications of the Appellant No.4, who only sought measurement and demarcation of plot no.808, nor was the issue raised before the Learned Trial Court. That, the argument of fraud on the edifice of Sec. 17(1)(a) of the Limitation Act is not tenable as Article 56 of the Limitation Act specifies that to declare forgery of an instrument the period of limitation is three years from the date of knowledge. Besides, it is unimaginable that Appellant No.4 after seeking mutation of the property in 1992, as instructed, allegedly by his mother, would not pursue the matter or remained oblivious of the developments, when both Appellants No.4 and 5 were adults at the relevant time. That, the cause of action arose in the year 1992 when the Mamta Gurung and Others vs. Chief Secretary and Others Appellants No.4 and 5 applied for the parcha khatiyan but the suit was filed only on 2/3/2021, which is thus clearly barred by limitation. Hence, the impugned Order of the Learned Trial Court warrants no interference.