2025:JHHC:38442 1 IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No. 92 of 2024 Ursela Orain, aged about 71 years, daughter of late Radha Oraon, Resident of village – Lurgumi Khurd, P.O. – Durup, P.S. – Netarhat, District – Latehar … … Plaintiff/Appellant/Appellant Versus 1. Norverla Kispotta, wife of Taraius Kujur 2. Mohammad Mian, son of Khatir Mian Both are residents of village – Lurgumi Khurd, P.O. – Durup, P.S. – Netarhat, District Latehar 3. Deputy Commissioner, Latehar, P.O. & P.S. – Latehar, District – Latehar … … Defendants/Respondents/Respondents --- CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- For the Appellant : Mr. Shashank Shekhar, Advocate : Mr. Nagmani Tiwari, Advocate For the State : Ms. Rishi Bharati, AC to AAG III --- 08/20.12.2025 Heard the learned counsel for the appellant. 2. This Second appeal has been filed against the judgement and decree dated 20.12.2023 (decree signed on 02.01.2024) passed by learned District Judge I, Latehar in Civil Appeal No.22 of 2019 whereby the first appeal has been dismissed. The trial court’s judgement was passed vide judgement and decree dated 27.09.2019 (decree signed on 03.10.2019) passed by learned Civil Judge (Sr. Division II) Latehar in Title Suit No.42 of 2013. 3. The suit was dismissed and the First Appeal was also dismissed. Consequently, the plaintiff is the appellant before this case. 4. The learned counsel for the appellant has referred to the trial court’s judgement and submitted that specific findings were recorded that defendant no.1 had no right to execute the sale deed no.2334 of 2007 dated 10.10.2007 in favour of defendant no.2 and issue no.3 was decided in favour of the plaintiff and against defendant nos.1 and 2, still the suit was dismissed. 5. The learned counsel submits that the learned 1st appellate court has sustained the judgement of dismissal on the ground that the suit 2025:JHHC:38442 2 itself was barred by limitation and had applied Article 59 of the Limitation Act. The learned counsel submits that the sale deed itself was null and void as the same was not executed by the plaintiff and since the plaintiff was in possession, there was no need to seek any declaration of title by adverse possession. He submits that since the sale deed was not executed by the plaintiff, the suit was to be governed by the provision of Article 65 of the Limitation Act and the period of Limitation would have been 12 years. 6. He has referred to the judgement passed by Hon’ble Supreme Court in the case reported in 2011 (1) AIR Jhar R 463 (Suhrid Singh @ Sardool Singh Vs. Randhir Singh and Ors.), in Civil Appeal No.2811-2813 of 2010, and has referred to paragraph 6 thereof to submit that when the executant of a deed wants it to be annulled, he has to seek cancellation of the deed, but if a non-executant seeks annulment, then he has to seek a declaration that the deed is invalid or non est or illegal and not binding upon him. The learned counsel then relied upon the judgement passed by Hon’ble Supreme Court reported in AIR 2025 Supreme Court 4342 (Shanti Devi through Lrs. Goran Vs. Jagan Devi and Ors.) and referred to paragraphs 5, 9 to 12 to give the factual background of the cited judgement and then referred to paragraphs 21 and 22, which was the argument advanced on behalf of the original plaintiff before the Hon’ble Supreme Court and has also referred to the findings of the Hon’ble Supreme Court in paragraphs 38 and 39, which are quoted as under: “38. Concurrent findings of both the First Appellate Court and the High Court indicated that the husband of the defendant i.e., one Bagdawat, who had allegedly given the remaining sale consideration of Rs. 6,000/- during the time of execution of the sale deed, had not stepped into the witness box. Furthermore, one of the attesting witnesses to the execution of the sale deed i.e., the Sarpanch had also died before his deposition could be recorded. One Budhu, who was the second attesting witness, was the brother of the defendant and both the Courts had doubted his testimony as being partial to the defendant. All in all, there was no witness who could substantiate the case of the defendant that there was part-payment of the sale 2025:JHHC:38442 3 consideration, i.e., Rs. 6,000/- during the time of execution of the sale deed. Furthermore, no evidence was adduced by the defendant to prove that even the initial amount of Rs. 9,000/- which was purportedly paid before the execution of the sale deed was actually received by the plaintiff. Therefore, the averment of the plaintiff in the plaint, that she had not received the sale consideration, had not been otherwise proven as false. In such circumstances as well, i.e., in the absence of the sale consideration being tendered, the sale deed would be void and the plaintiff would not be required to seek its cancellation. Therefore, Article 59 of the Limitation Act, 1963 could not be said to be applicable to the present facts. 39. The First Appellate Court had rightly observed that the plaintiff had claimed the relief of joint possession. It had also arrived at the finding that the transaction in question was void. To put it simply, in the eyes of the law, the plaintiff could not be said to have executed the sale deed. Therefore, the plaintiff could indeed have maintained an action to obtain possession of the property on the basis of her title and filed the same within the period of 12 years from the date of knowledge that the possession of the defendant was adverse to that of the plaintiff. Even if the date of execution of the sale deed, i.e., 14.06.1973 is considered, the suit having been filed on 28.02.1984, i.e., almost 11 years later, could be said to be well within limitation as stipulated under Article 65.” 7. After hearing the learned counsel for the appellant, this Court finds that Title Suit No.42 of 2013 was filed seeking a declaration that the sale deed no.2234 of 2007 dated 10.10.2007 be declared null and void and for a further declaration that the sanction for the sale deed granted by Deputy Collector Land Reforms, Latehar was without jurisdiction and for the further declaration that if the suit land has again been transferred to defendant no.3 through any registered sale deed, the same be also declared null and void. The plaintiff also sought a declaration of title with respect to the suit land. However, there was no relief seeking recovery of possession or seeking confirmation of possession with respect to the suit property. 8. The specific case of the plaintiff was that the suit property stood recorded in the name of Mikhail Oraon, who died issueless and was 2025:JHHC:38442 4 survived by his wife namely defendant no.1 and defendant no.1 had sold the property to defendant no.2. The plaintiff is the sister of Mikhail Oraon. The further case of the plaintiff was that following the death of Mikhail Oraon, his wife defendant no.1, sold the suit property by registered sale deed dated 10.10.2007 after taking sanction from the Deputy Collector Land Reforms, Latehar dated 04.10.2007 regarding which she had no knowledge. As per the plaint, the plaintiff was the sister of Mikhail Oraon and she had one more sister namely Susana Orain, who had expired. However, the plaintiff remained unmarried. It was further case that the parties are governed by the customary law as per Oraon tribe. The specific case of the plaintiff was that defendant no.3 had tried to grab the suit land and a proceeding was initiated under Section 144 Cr.P.C and it remained inconclusive. The cause of action arose when the sanction for sale of the suit land was accorded on 04.10.2007 and 10.10.2007 when the sale deed was executed in connection with which the plaintiff had no knowledge and when she was threatened, the suit was filed. 9. Defendant nos.1 and 2 contested the suit by taking various technical plea including the plea that the suit was barred by limitation. It was also asserted that the suit property was originally raiyati land of Abdul Mian, who was the exclusive owner and he sold the property through two registered sale deeds one dated 05.07.1958 and the another dated 16.08.1960 for a consideration amount to Mikhail Oraon and thereafter Mikhail Oraon came in possession of the property and got his name mutated. However, Mikhail Oraon died leaving behind his wife defendant no.1, who came in possession and got her name mutated in the government record and was paying rent. It was also asserted that the wife of Mikhail Oraon was the owner of the property and the plaintiff has no claim over the suit property. It was also asserted that there was no question for the sisters of Mikhail Oraon to share the landed property of Mikhail Oraon and there was no customary law prevailing in the tribal society to share through female. 10. It was also asserted that defendant no.1 sold her own land and was in peaceful possession and there was no occasion of threat to the 2025:JHHC:38442 5 plaintiff and there was no occasion for the plaintiff and others to be in possession of the suit property. 11. Defendant no.3 had not appeared before the court and therefore the proceeding was ex parte. The defendant no.4 was the Deputy Commissioner, who also did not file his written statement and was ultimately debarred from filing the written statement. 12. The following issues were framed by the learned trial court vide order dated 24.08.2017 and 25.09.2019: - “(I) Whether this suit is maintainable as present form? (II) Whether the plaintiff has valid cause of action to file this suit or not? II(a) Whether the plaintiff deposited the court fees according to valuation of suit or not? (III) Whether this suit land is belong to defendant and defendant no. 3 have right to execute sale deed No. 2334/07 dated 10.10.07? (IV) Whether plaintiff has right, title and possession over the suit land? (V) Whether the plaintiff is entitled to get relief or any other relieves?” 13. The parties lead both oral and documentary evidence. Exhibit 1 was the registry slip dated 12.09.2013; Exhibit 2 was the certified copy of the sale deed dated 10.10.2007/11.10.2007 executed by defendant no.1 in favour of defendant no.2 for a consideration amount of Rs.1,39,000/-. Exhibit A was the original sale deed no.2234 dated 11.10.2007. Exhibit B series were the rent receipts. Exhibit C was the certified copy of the registered sale deed no.3624/1960 which was executed in favour of the deceased Mikhail Oraon by Kadir Baxh Mian. Exhibit C/1 was another the registered sale deed no.1918 which was executed in favour of Mikhail Oraon by Kadir Baxh Mian. 14. Issue no.II (a) was relating to court fees. The learned trial court was of the view that the plaintiff must deposit the court fee on the valuation of Rs.1,39,000/- and it was held that it was necessary to 2025:JHHC:38442 6 deposit the court fee of the suit land in this suit and the point was decided against the plaintiff. 15. While deciding issue no. IV regarding the claim of right, title, interest and possession over the suit land, the learned trial court at internal page 13 recorded the finding that “…………as such from perusal of plaintiff witnesses it appears that plaintiff has not possessed the suit property and from perusal of the plaintiff witnesses it appears that plaintiff claimed her ancestral property of suit land. From the perusal of Exhibit C and C/1 it appears that deceased Mikhail Oraon has purchased suit land from Abdul Kadir Baxh Mian. Defendant no.1 Norberla Kispotta also admitted aforesaid facts in his deposition. As such many contradictions available on plaintiff witnesses. Therefore, they have confused that suit property is ancestral property or self- acquired property of deceased Mikhail Oraon. Sanction order of aforesaid sale deed has not proved or produced on behalf of the plaintiff. Plaintiff neither filed notice u/s 80 CPC nor proved aforesaid notice u/s 80 CPC before the court….” “On the basis of aforesaid facts and circumstances plaintiff failed to prove her right, title, interest and possession over the suit land. Therefore, issue no.IV is decided against plaintiff and in favour of defendants. 16. While deciding issue no. III, the learned trial court recorded that it appeared that defendant no.1 executed the sale deed in favour of defendant no.2 after receiving consideration amount and the suit property was self-acquired property of deceased Mikhail Oraon. After death of Mikhail Oraon, his wife defendant no.1 succeeded the aforesaid property and acquired right, title, interest and possession over the suit property. Later on, she executed sale deed Exhibit 1/A and as such due to being self-acquired property of deceased Mikhail Oraon, his widow acquired right, title, interest and possession over the suit land. Therefore, she had the right to execute the aforesaid sale deed i.e. exhibit 1/A in favour of defendant no.2 namely Norberla Kispotta. 2025:JHHC:38442 7 17. Further, the learned trial court recorded that it was admitted fact that both the parties are tribal community. The witnesses have established that they are governed by tribal custom. Any woman of Oraon community has only limited right for maintenance of any property in tribal custom and recorded that the learned counsel for the defendant nos.1 and 2 failed to file or produce any provision or citation that self-acquired property is not covered or governed by tribal community and lady has full right, title, interest over the self- acquired property in tribal community and on this basis, the learned trial court held that defendant no.1 had no right to execute sale deed dated 10.10.2007 in favour of defendant no2 and issue no.III was ultimately decided in favour of the plaintiff and against the defendant nos.1 and 2. 18. 18. The learned trial court thereafter disposed of issue nos.I and II and held in view of the discussions in connection with issue no.II (a) and issue no.IV, the suit was not maintainable in the present form and issue nos.I and II were decided against the plaintiff. Issue no.V was decided by holding that the plaintiff is not entitled to any relief and ultimately the suit was dismissed. 19. So far as the learned 1st appellate court is concerned, the points for determination were as under: I. Whether the suit is barred by law of limitation? II. Whether the findings recorded by the learned trial court is correct or deserves interference? 20. The perusal of the judgement of the learned 1st appellate court reveals that arguments were also advanced on the point of limitation, though the learned trial court did not frame any specific issue on the point of limitation but the defendants in their written statement had raised a plea of the suit being barred by limitation. 21. While considering point of determination no. I, the learned 1st appellate court, in paragraph 17 of the judgement, observed that it is the duty of the court to see as to whether the suit has been filed within the period of limitation and the court exercised power under Order 41 Rule 33 and observed that the same provision empowers the appellate 2025:JHHC:38442 8 court to exercise all powers of trial court. The learned 1st appellate court discussed the materials on record and recorded in paragraphs 20 and 21 the case of the respective parties on the point of limitation as under: “20. Plaintiff case in the plaint is that following the death of Mikhail Oraon, wife of the Late Mikhail Oraon who is defendant no. 1, sold the suit-land mentioned in schedule of the plaint through the execution of the registered sale-deed no. 2234/2007 dated 10.10.07. The D.C.L.R. Latehar had accorded his sanction for the sale vide Memo no. 742 dated 04.10.07 of which the plaintiff had no knowledge. Plaintiff has not stated in the plaint as to when she got knowledge regarding execution of the sale deed. She has further stated that earlier the defendant no. 3 had also tried to grab the suit- land without telling any one to know about the sale deed but never showed it to any one and both the times the proceeding u/s 144 Cr.P.C. ended inconclusively. Plaintiff has not mentioned the dates of proceeding u/s 144 Cr.P.C. but she had knowledge about sale can be inferred from the pleading. Further, plaintiff has stated that the cause of action arose on the dates when the sanction for the sale of the suit land was accorded on 04.10.07 and on 10.10.07 when the sale-deed was executed and pursuant to which the plaintiff had no knowledge. Later, on various dates when on the basis of a sale-deed, the defendant no. 3 threatened to eject the plaintiff from the suit-land and lastly on 27.07.2013. The plaintiff has prayed inter-alia, that the sale-deed no. 2234/07 dated 10.07.07 be declared null and void and that the sanction order of D.C.L.R. Latehar be declared as without jurisdiction. 21. The defendants No.1 & 2 have taken contention in their joint written statement that suit is barred by Limitation. It is argued on behalf of the respondent no. 2/2nd defendant that a challenge to the sale deed dated 10.10.2007 is barred by 2025:JHHC:38442 9 limitation as Article 59 of the Act applies to the facts of the case and the limitation is 3 years. As the suit is not filed within the Limitation Period relating to cancellation of the sale deed, hence suit is barred by Limitation.” 22. Thereafter, the learned court considered oral evidences of the respective parties. The learned appellate court ultimately in paragraphs 24 and 25 held that the suit was barred by limitation by referring to Article 59 of the Limitation Act. The findings are as under: “24. Sections 31 to 33 of the Specific Relief Act, 1963 mention when a sale deed can be cancelled. The plaintiff has prayed that the sale-deed no. 2234/07 dated 10.07.07 (Ext – 2) be declared null and void. The plaintiff filed present suit for cancellation of the said sale deed on 24/09/2013. Under Article 59 of the Schedule to the Limitation Act, 1963 in a suit filed for any declaration is to be filed within three years when the right to sue accrues. Under Article 59 of the Limitation Act, suit filed to cancel or set aside the instrument or decree, the suit has to be filed within three years from the date when the facts entitling the plaintiff to set aside or cancel the instrument or decree became first known to him. In the present suit, after completion of more than three years suit has been filed by the plaintiff. PW 1, plaintiff was cross examined in the case on 09/01/2018 and in her cross examination at para 15, she has stated that “fookfnr tehu dks djhc chl lky igys tksgkuh mjkbZau csp nh FkhA mDr tehu dks tksgkuh mjkbZau ls izfroknh la[;k& 2 ,o a 3 eksfcyk fdLiksV~Vk rFkk eks0 fe;ka [kjhn fy;k] tks vkt ls djhc 20&25 lky igys [kjhnk Fkk rFkk [kjhndj mDr tehu ij viuk dCtk dj fy;k] esjs [kkus&ihus ds fy, mUgksaus dksbZ tehu ugha NksM+k FkkA blhfy, eSa bl tehu ij viuk nkok djrh gwWaA ftl fnu mDr fookfnr tehu dks tksgkuh mjkbZau us cspk Fkk] mlh fnu eq>s fcdzh dh tkudkjh gks xbZ FkhA” 25. To sum up, plaintiff plaint is silent as to when she came to know about the sale deed and affidavit of plaintiff filed in examination in chief is completely silent on this point. In her cross-examination she admitted that she had knowledge about 2025:JHHC:38442 10 the sale deed at the time of execution i.e. in the year 2007. The suit must have been filed within three years of the date of knowledge or the date of the sale deed but the suit was filed on 24/09/2013. There is neither pleading nor evidence to prove that there was any justifiable cause for not challenging the sale deed within 3 years. Apparently suit filed on 24/09/2013 challenging the sale deed dated 10.07.07 is beyond the period of limitation of three years as prescribed under Article 59 of the Schedule to the Limitation Act and hence, I hold that plaintiff suit is barred by law of Limitation.” [emphasis supplied] 23. The learned 1st appellate court thereafter took up the 2nd point for determination from paragraph 26 onwards and observed that, as per the provision, Hindu Succession Act is not applicable to tribal community and observed that the learned trial court took reliance that both parties belonged to tribal community and customs gives only limited right of maintenance from any property but the pleadings were silent on this score. The learned 1st appellate court then referred to the judgement passed by Hon’ble Supreme Court in the case of Laxmi Bai Vs. Bhagwantbuva (2013) 4 SCC 97, wherein it has been held that the custom is required to be pleaded and proved and the party concerned must prove the alleged custom. It has also been held that material custom must be proved properly and satisfactorily until the time that such custom has by way of frequent proof in the court become so notorious, that the courts take judicial notice of the same. 24. The learned court also took into consideration the judgement passed by this Court in the case of Prabha Minz Vs. Martha Ekka, 2022 2 CurCC 327 wherein it has been observed that every case of claim of title to be decided on customary law is required to be pleaded and proved regarding the prevailing custom. The learned court thereafter referred to the judgement passed by the Hon’ble Supreme Court in the case of Swbastio Luis Fernandes Vs. KVP Shastri, reported in 2014 (1) JLJR 300 SC wherein it has been held that in title 2025:JHHC:38442 11 suit the plaintiff has to establish his claim of ownership and the initial onus is always on the plaintiff. 25. The learned 1st appellate court thereafter held in paragraph 40 of the judgement that the plaintiff had to prove customary rights strictly as per Section 48 of the Indian Evidence Act. The court recorded that from the pleadings, oral and documentary evidence adduced on behalf of the plaintiff, the plaintiff failed to plead and prove the general binding custom among the Oraon tribal that females were excluded from inheritance. The pleading and evidence of the plaintiff did not qualify the essentials to prove customary right. 26. Since the custom was to be proved by oral and other evidences and the 1st appellate court found that there was lack of sufficient pleading and evidence on the point of custom by the plaintiff, the court ultimately held that the finding of trial court that defendant no.1 had no right to execute sale deed no.2334 of 2007 dated 10.10.2007 in favour of defendant no.2 as per customary law of succession applicable to the tribal, warranted interference. 27. The findings of the learned 1st appellate court in paragraphs 40 and 43 are quoted as under: “40. The plaintiff has to prove their customary rights strictly as per Section 48 of the Indian evidence Act. In the present case, from the discussion above, of the pleading, oral and documentary evidence adduced by the plaintiff, I hold that the plaintiff has failed to plead and prove general binding custom among the Oraon tribe that females were excluded from inheritance. The pleading and evidence of plaintiff does not qualify the essentials to prove the customary right. Since custom was to be proved by oral and other evidence and this court finds that there is lack of sufficient pleading and evidence on the point of custom by the plaintiff. Hence, the finding of the trial court that defendant no. 1 has no right to execute sale-deed no. 2334/07 dated 10.10.07 in favour of defendant no. 2 as per the customary law of succession, applicable to the tribal, warrants interference. 2025:JHHC:38442 12 41. …. 42….. 43. In view of the discussion made above, it is apparent that suit as framed was not maintainable, the issue as to whether the plaintiff had valid cause of action, this is also incidental to the adjudication made above and it is held that plaintiff/appellant did not have any valid cause of action for the present suit. Since the genesis of claim of plaintiff is barred by law of limitation, hence, it is redundant to decide the other claim of plaintiff with respect to other issue regarding title of the plaintiff. I find and hold that the plaintiff is not entitled for any other relief or reliefs as prayed for.” 28. This Court finds that the learned 1st appellate court has given a clear finding that the plaintiff has failed to plead and prove the customs by which defendant no.1 was debarred from executing the sale deed with respect to the property purchased by her husband. The fact remains that defendant no.1 was the wife of Mikhail Oraon, and Mikhail Oraon had purchased the property. Though the plaintiff claimed the suit property as ancestral property but the courts have recorded a finding that it was a self-acquired property of Mikhail Oraon and it was upon his death that his wife sold the property after due permission from the competent authority and the plaintiff, being the sister of Mikhail Oraon, was challenging the sale deed. It is important to note that the sanction letter of the Deputy Commissioner which was granted for sale of property by defendant no.1 to defendant no.2 was not exhibited before the court. 29. This Court finds that the learned 1st appellate court has dismissed the appeal not only on the point of limitation, but also on merit. The 1st appellate court interfered with the findings of the learned trial court on merits and held that the plaintiff having failed to plead and prove the custom, the trial court erred in holding that defendant no.1(wife of the original purchaser of the property) had no right to execute the impugned sale deed dated 10.10.2007 in favour of defendant no.2. Further, the learned 1st appellate court also recorded 2025:JHHC:38442 13 that defendant no.1 had expired and the learned trial court had given finding against dead person and so the judgement of the learned trial court was a nullity. 30. In the judgment passed by the Hon’ble Supreme Court reported in 2011 (1) AIR Jhar R 463 (supra), the Hon’ble Supreme Court had observed that there was no prayer for cancellation of sale-deeds, rather the prayer was for declaration that the sale-deeds do not bind the coparcenary and the suit was for joint possession and that the plaintiffs of the suit were not the executants of the sale-deeds and therefore the court fees was computable under Section 7(iv) (c) of the Court Fees Act, 1870 being a suit for declaration and consequential relief. The said judgment has no applicability to the facts of this case, inasmuch as, in the present case, the plaintiff is challenging the sale-deed executed by defendant no. 1 in favour of defendant no. 2 by asserting that defendant no. 1 had no right to sell the property of her husband after his death. This Court is of the view that merely because the plaintiff of the present case was not the executant of the deed, it cannot be said that Article 59 of the Limitation Act will have no applicability. The 1st appellate court has decided the case on merits as well as on limitation. 31. So far as the point of limitation as argued by the learned counsel for the appellant is concerned, this Court finds that though plaintiff had sought a declaration that the sale deed executed by defendant no.1 in favour of defendant no.2 was void, but the plaintiff had failed to prove that defendant no.1 had no right to sell the property. 32. In the judgement passed by Hon’ble Supreme Court in the case of Shanti Devi (Since Deceased) through Lrs. Goran -vs- Jagan Devi and Others [AIR 2025 SC 4342: 2025 SCC OnLine SC 1961] the sale involved in the said case was void on account of non-receipt of consideration amount by the plaintiff due to which the plaintiff could not be said to have executed the sale deed and hence it was held that the plaintiff was not required to seek cancellation of sale deed and therefore, Article 59 of the Limitation Act, 1963 was not applicable. It 2025:JHHC:38442 14 has been held that in such circumstances, the plaintiff could indeed have maintained an action to obtain possession of the property on the basis of title and filed the same within the period of 12 years from the date of knowledge that the possession of the defendant was adverse to that of the plaintiff and taking the date of execution of sale deed, it was held that the suit, having been almost 11 years later, the suit could be said to be well within limitation as stipulated under Article 65 of the Limitation Act. In the present case, the plaintiff is neither seeking confirmation of possession nor is seeking recovery of possession and the findings reveal that the plaintiff was not in possession of the suit property and the rent receipts “B series” were filed by the defendants and not by the plaintiff. 33. This Court is of the considered view that merely because the plaintiff was not the executant of the sale deed and had sought a declaration that the sale deed was void, the same itself is not sufficient to say that the suit would be governed by Article 65 and not by Article 59 of the Limitation Act. In this regard, a reference is required to be made to the judgement passed by Hon’ble Supreme Court in the case of Prem Singh and Ors. Vs. Birbal and Ors. reported in (2006) 5 SCC 353 paragraphs 15 to 18 and 27 wherein it has been held that when a document is valid, no question arises of its cancellation; when a document is void ab initio, a decree for setting aside the same would not be necessary as the same is nonest in the eye of the law, as it would be a nullity; however, it has also been held that once, a suit is filed by a plaintiff for cancellation of a transaction, it would be governed by Article 59 and even if Article 59 is not attracted, the residuary article would be; Article 59 would apply where a document is prima facie valid and it would not apply only to instruments which are presumptively invalid. It has been further held that a registered document, prima facie would be valid in law. Paragraphs 15 to 18 and 27 of the aforesaid judgement are quoted as under: 15. Section 31 of the Specific Relief Act, 1963 thus, refers to both void and voidable documents. It provides for a discretionary relief. 2025:JHHC:38442 15 16. When a document is valid, no question arises of its cancellation. When a document is void ab initio, a decree for setting aside the same would not be necessary as the same is nonest in the eye of the law, as it would be a nullity. 17. Once, however, a suit is filed by a plaintiff for cancellation of a transaction, it would be governed by Article 59. Even if Article 59 is not attracted, the residuary article would be. 18. Article 59 would be attracted when coercion, undue influence, misappropriation or fraud which the plaintiff asserts is required to be proved. Article 59 would apply to the case of such instruments. It would, therefore, apply where a document is prima facie valid. It would not apply only to instruments which are presumptively invalid. (See Unni v. Kunchi Amma and Sheo Shankar Gir v. Ram Shewak Chowdhri.) 27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent 1 has not been able to rebut the said presumption. 34. This Court is of the considered view that the present suit was certainly governed by Article 59 of the Limitation Act as the registered sale deed was challenged by the plaintiff on the ground that defendant no.1 had no right to execute sale deed with respect to her deceased husband’s property and it was alleged that such sale was contrary to customary law applicable to the parties. On the face of the case of respective parties, this Court finds that Article 65 of the Limitation Act has no applicability to the facts and circumstances of this case. This Court is of the view that the learned 1st appellate court has rightly held after appreciating the materials brought on record that the suit was barred by limitation. This is over and above the fact that the case has been decided by the 1st appellate court against the plaintiff on merits and also on limitation as discussed above. 35. At this stage of dictation of the order, the learned counsel submits that against the finding of the learned trial court, no separate appeal was preferred by the defendants and therefore the 1st appellate court could not have entered into the points which were decided in 2025:JHHC:38442 16 favour of the plaintiff. This Court is of the considered view that such arguments are also devoid of any merits. The 1st appellate court’s judgement reveals that the parties had advanced their arguments with respect to all the issues, which were raised before the learned trial court and the learned 1st appellate court being a court of fact as well as law has considered all the aspects of the matter and decided the 1st appeal. 36. Considering the aforesaid aspect of the matter, this Court finds that no question of law, much less, any substantial question of law is involved in this case. 37. I.A. No.6695 of 2024 has been filed seeking condonation of delay of 95 days in filing this Second appeal and the only ground which has been taken is that the appellant is a poor illiterate lady and due to poverty, she could not arrange the required money for filing the Second Appeal and undertook to keep care in future. The explanation is vague and without any foundational dates. This Court is not satisfied with the cause shown by the appellant seeking condonation of delay. Otherwise also, this Court in the aforesaid paragraphs has already considered the arguments of the learned counsel for the appellant on the merits of the case and has found that there is no substantial question of law involved in this case. 38. Accordingly, I.A. No.6695 of 2024 seeking condonation of delay and also Second appeal are dismissed. (Anubha Rawat Choudhary, J.) 20.12.2025 Saurav/ Uploaded on 03.01.2026