1 / 13 2025:CGHC:52062 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA No. 8 of 2012 • Ashutosh Tripathi S/o S.N. Tripathi Aged About 43 Years Through Attorney S.N. Tripathi Age 69 Years S/o Late R.R. Tripathi Aged 83 Years Aashish Nagar Indore (MP) --- Appellant/Plaintiff versus 1. Hanumaan Griha Nirmaan Sahakaari Samiti Hanumaan Nagar Byron Bazaar Gauli Paara At - Tehsil District - Raipur (Defendants) 2. Ajay Hotwani Through Dinesh Pappu Hotwani Hanumaan Girha Nirmaan Sahakaari Samiti At Tehsil District – Raipur 3. Panjiyak Sahakaari Samiti ( Registrar Co- Opt Societies ) Old RTO Office At Teshil District – Raipur 4. Hanuman Girha Nirman Sahakari Samiti Through Liquidator In The Office Of Deputy Registrar Vivekanand Complex Pension Bada Raipur Tah. District - Raipur (C.G.) Registration No. 51. ---Respondents/Defendants ____________________________________________________________ For Appellant : Mr. Manoj Kumar Sinha, Advocate For Respondent No. 2 :Mr. Varun Sharma, Advocate & Mr. Sanjay Agrawal, Advocate For Respondent-State : Mr. Ajay Kumrani, Panel Lawyer Hon'ble Shri Justice Parth Prateem Sahu Judgment on Board 17.10.2025 1. This first appeal under Section 96 CPC has been filed assailing the judgment and decree dated 22.07.2011 passed by learned Third Additional District Judge, Raipur, District Raipur (CG) in Civil Suit No. 8-A/2011, by which the PAWAN KUMAR JHA Digitally signed by PAWAN KUMAR JHA 2 / 13 trial Court has dismissed the suit filed by the plaintiff by impugned judgment and decree. 2. For the sake of convenience, the parties shall be referred to in terms of their status shown in Civil Suit No. 8-A/2011 before the trial court. 3. Brief facts of the case as projected by the plaintiff before the Trial Court are as under: (i) Plaintiff is a member of defendant No. 1 – Hanuman Nagar Housing Cooperative Society, Raipur. Defendant No. 1 executed a registered sale deed dated 26.02.1993 in favour of the plaintiff, thereby transferring ownership and possession of Plot No. 58 admeasuring 1500 sq. ft. situated within the said society. It is pleaded that though the sale deed contains a clause requiring completion of construction within three years, non- compliance of which does not render the deed void but only voidable, in such a situation such decree can be passed only by the Civil Court under Section 30 of the Specific Relief Act. After execution and registration, the holder of the property would have no further rights over the property. The Municipal Corporation, Raipur, however, did not approve the construction map due to objections raised by defendant No. 1 and the lapse of layout approval by the Director of Town and Country Planning. Consequently, construction could not be undertaken. Despite having delivered possession to the plaintiff, defendant No. 1 neither demanded its return nor issued any notice to that effect. Subsequently, defendant No. 1 issued a notice dated 19.06.2001, calling upon the plaintiff to appear before its committee within a week, failing which the matter would be decided ex parte. Plaintiff, through his counsel, responded to the notice on 11.01.2007. (ii) It is further pleaded that he had preferred an application under Section 64 of the Chhattisgarh Cooperative Societies Act, 1960 (henceforth “Act of 1960”) before the Sub-Registrar, Raipur, pleading illegal interference of defendant No. 1. His restoration application was allowed, and the matter was 3 / 13 remanded for reconsideration. Upon reconsideration, the Sub-Registrar dismissed the complaint on 07.12.2005, observing possession in favour of defendant No. 2. The plaintiff asserted that possession of defendant No. 2 is illegal and that the sale of the disputed plot by defendant No. 1 to defendant No. 2 is void and not binding upon him, as he was not a party to the subsequent transaction. On getting knowledge of the illegal occupation on 07.12.2005, the plaintiff served a statutory notice dated 30.12.2005 under Section 94 of the Cooperative Societies Act upon all defendants, duly received on 02.01.2006. However, possession was not restored. Cause of action thus arose on 07.12.2005. Accordingly, the plaintiff filed the suit seeking declaration of his title and possession over Plot No. 58, cancellation of the sale deed executed in favour of defendant No. 2, and consequential reliefs pleaded therein. 4. Defendant No. 1, in its written statement, admitted allotment of the plot in favour of plaintiff but denied the claim of plaintiff of absolute ownership, pleading therein that the sale deed was a conditional sale executed subject to compliance with Clause 3 of the deed and By-law No. 43 of the Society. It was pleaded that the plaintiff failed to got building map approved from competent authority or commenced construction within the stipulated period of three years, which is breach of conditions of sale deed. The Society lawfully cancelled the sale deed after obtaining permission from the Deputy Registrar of Cooperative Societies and re-allotted the plot to another member ie., Shri Ajay Hotwani. Cancellation was valid and binding, leaving no cause of action in favour of the plaintiff. 5. Defendant No. 2, the subsequent allottee, also denied the plaintiff’s claim, pleading therein that cancellation deed dated 09.07.2002 was validly executed and registered after due compliance with the Society’s by-laws and after affording opportunity of hearing to the plaintiff. It was further pleaded that the plaintiff was aware of such cancellation prior to 30.08.2002 but failed 4 / 13 to challenge it before the competent authority within limitation. Defendant No. 2 pleaded that he had been put in lawful possession of the plot. He has raised construction of boundary walls on the plot. 6. On the basis of pleadings of the parties and evidence, learned Trial Court has framed as many as six issues for consideration and upon appreciation of the documentary and oral evidence brought on record by the respective parties, dismissed the suit filed by plaintiff by impugned judgment and decree. Hence, this first appeal. 7. Learned counsel for the plaintiff would submit that the Trial Court erred in dismissing the suit filed by plaintiff without appreciating the facts and evidence available in record. He contended that the plaintiff being Member of defendant No. 1-Society was allotted one plot bearing Plot No. 58 measuring 1500 sq. ft. of land. After completing the formalities, sale deed was executed on 26.02.1993. Defendant No. 1 unilaterally cancelled the sale deed executed in his favour. Defendant No. 1 is not having any authority under law to get the registered sale deed cancelled executed in favour of plaintiff. Defendant No. 1 was premeditated to cancel the land allotted to plaintiff and therefore in a very haste manner the plot allotted to plaintiff and registered in his name was sold out to defendant No.2 and registered sale deed was executed. He would submit that Trial Court further erred in dismissing the suit on the ground of limitation also overlooking the fact that the plaintiff has sought relief of possession based on the title and therefore the limitation for which, under Article 64 of the Limitation Act, would be 12 years. From the date of cancellation of sale deed or the registration of sale deed in favour of Defendant No. 2, plaintiff has filed the suit within a period of 12 years. Referring to Section 34 of the Specific Relief Act, he contended that as the plaintiff along with a relief of declaration of title has also sought relief of possession and therefore the period of limitation would be 12 years. 5 / 13 8. Learned counsel for defendants would oppose the submission of learned counsel for plaintiff and would submit that the plaintiff had not started construction as per the conditions mentioned in the sale deed. According to one of the conditions, plaintiff had to get the map approved from the competent authority within a period of 6 months from the date of execution of registered sale deed in his favour and further construction had to be started within three years thereafter. When the plaintiff has not complied with the conditions as mentioned in the sale deed, he was served with a notice/ letter for invoking the clause of cancellation of deed as mentioned in one of the conditions in the registered sale deed and only thereafter the sale deed registered in favour of plaintiff was applied for cancellation before the competent authority ie., Sub-Registrar, Raipur. There is a dispute of allotment of land, therefore plaintiff has rightly filed an application under Section 64 of the Act of 1960 raising the dispute. However, in midst of the proceedings pending before the Deputy Registrar, Co-operative Societies, Raipur, Civil Suit was filed. Parallel proceedings is not permissible and further when there is a dispute between the Society and one of its Member, the competent authority would be Deputy Registrar to decide the dispute under Section 64 of the Act of 1960. He contended that the submission of learned counsel for plaintiff that the registered sale deed executed in his favour cannot be cancelled is not correct From the face of the contents of sale deed, it is apparent that the sale deed executed in favour of plaintiff was a conditional sale deed. Plaintiff failed to comply with the conditions as mentioned therein and therefore the steps for cancellation of sale deed was taken which is one of the consequence as mentioned in the sale deed in not complying the conditions as mentioned therein. In support of his contention, he referred to provisions of Section 31 and 32 and the Transfer of Property Act, 1882. 9. So far as the arguments raised on the limitation by the counsel for plaintiff, learned counsel for defendants would submit that the plaintiff has admitted 6 / 13 that a show-cause notice was issued to him on 11.07.2001, based on which the dispute under Section 64 of the Act of 1960 was filed. Plaintiff has not submitted reply or appeared before the office of President of Society within a period specified and therefore the proceedings of cancellation of registered sale deed was initiated, and it was cancelled on 09.07.2002 and thereafter 10.07.2002 the plot earlier allotted to plaintiff bearing Plot No. 58 measuring 1500 sq.ft. was sold and allotted to defendant No. 2. Plaintiff was well aware with regard to allotment and registration of sale deed in favour of defendant No.2, however, no relief of declaring the sale deed executed in favour of defendant No.2 to be null and void is sought for, nor any relief is claimed with respect to order passed by Sub-Registrar cancelling the sale deed declaring it to be bad in law. He also pointed out that in the proceedings filed before the Dy. Registrar under Section 64 of the Act of 1960, there is mention that defendant No. 2 has raised construction over the subject land (Plot No. 58) and prayed for the relief that possession be delivered to plaintiff after removing the construction. However, no valuation has been done for expenses of demolition of superstructure/ construction over the disputed plot. In support of his contention he placed reliance upon the decision in case of Laxminarayan vs. Shivnarayan, reported in 1965 SCC OnLine MP 75. 10. I have heard learned counsel for the parties and also perused the record. 11. Perusal of plaint would show that the plaintiff has prayed for relief of declaration of title, possession of suit land be granted to plaintiff after removing the construction at the cost of defendants, permanent injunction and cost of the suit. It is a case of plaintiff that defendant No. 1 has executed a sale deed in his favour on 26.02.1993 (registered sale deed). He also pleaded that defendant No. 1 has issued a letter on 19.06.2001 mentioning that he could appear and make submission before the President of the Society or else Society will conclude the proceedings of cancellation of 7 / 13 allotment and cancellation of registration of sale deed and to register the plot in name of other Member. In the plaint, though pleaded that the aforementioned letter was replied vide letter dated 11.07.2001, however, it has not been proved by placing the same, as evidence. In fact, the reply to the notice forwarded by plaintiff through his advocate is dated 30.12.2005 which is marked as Ext. P-2, perusal of the same would show that in this reply also they have mentioned that the letter dated 11.07.2001 was replied through advocate however as discussed above no document is placed on record in this regard. 12. Plaintiff has filed an application under Section 64 of the Act of 1960 on 30.08.2002 which is placed on record as Ext. D-1. In the said application under Section 64, plaintiff has pleaded about issuance of a letter by defendant No. 1 on 10.07.2001 mentioning that he has not complied with condition No. 3 of the registered sale deed and therefore proceedings is to be initiated against him of deed cancellation. Further, it is mentioned that though the notice was issued on 19.06.2001 which was registered/ posted on 05.07.2001 after 16 days and it received to plaintiff on 10.07.2001. The application for grant of interim relief, Ext. D-2, filed before the Registrar, would show that the plot allotted to plaintiff was cancelled and it was re- allotted and sold to defendant No. 2 and sought for cancellation of sale deed executed in favour of defendant No. 2 and possession. 13.From the aforementioned facts of the case, it is apparent that the plaintiff was aware about the proceedings of cancellation of allotment and cancellation of sale deed registered in his favour by the order of the Sub-Registrar on the date of filing of application under Section 64 of the Act of 1960 before the Dy. Registrar on 30.08.2002. For application of Limitation Act in seeking any relief by a person in the Court of law date of knowledge of adverse action or the order issued against him is a pre-condition. The knowledge of adverse action 8 / 13 taken against the plaintiff is not in dispute in view of the document Ext. D-1 filed by defendants and not disputed by plaintiff. Plaintiff was aware about cancellation of sale deed registered in his favour and further execution of sale deed in favour of defendant No. 2, however, he has not sought for any relief of declaration of the order of cancellation to be null and void of the Sub- Registrar dated 09.07.2002 and further the declaration of registered sale deed executed in favour or defendant No. 2 to be null and void and not binding upon him. In absence of seeking such a declaration in the relief clause by the plaintiff, he could not be granted other consequential reliefs as prayed for. On the date of filing of the suit, plaintiff was not having title and therefore he has sought a relief of declaration of title. 14.Article 58 of the Limitation Act provides limitation of three years to obtain any other declaration then as mentioned under Article 56 and 57. Plaintiff became aware of the order of cancellation of sale deed and execution of sale deed in favour of defendant No. 2 in August 2002, however, the suit is filed only on 08.03.2006, beyond the period of three years. 15. So far as the submission of learned counsel for plaintiff that the period of limitation in the facts of the case would be 12 years and not 03 years as the plaintiff along with relief of seeking declaration of title has also prayed for relief of possession is not acceptable. For the purpose of computing the limitation, the limitation which is applicable to the primary relief based upon which, other relief is followed is to be considered. In the case at hand, unless and until the plaintiff’s relief of seeking declaration of title and declaration of cancellation of sale deed and execution of sale deed in favour of defendant No. 2 to be null and void is allowed, the second relief of possession cannot be granted to him and therefore for the purpose of computing the limitation to consider the suit is filed within limitation, the limitation as provided for declaration is to be taken into consideration. Hon’ble Supreme Court in case of Rajpal Singh vs. Saroj (deceased) through Lrs. reported in (2022) 15 9 / 13 SCC 260, while dealing with the issue of computation of limitation, the period of substantive relief of declaration, has observed thus: “14. The submission on behalf of the original plaintiff (now represented through her heirs) that the prayer in the suit was also for recovery of the possession and therefore the said suit was filed within the period of twelve years and therefore the suit has been filed within the period of limitation, cannot be accepted. Relief for possession is a consequential prayer and the substantive prayer was of cancellation of the sale deed dated 19-4- 1996 and therefore, the limitation period is required to be considered with respect to the substantive relief claimed and not the consequential relief. When a composite suit is filed for cancellation of the sale deed as well as for recovery of the possession, the limitation period is required to be considered with respect to the substantive relief of cancellation of the sale deed, which would be three years from the date of the knowledge of the sale deed sought to be cancelled. Therefore, the suit, which was filed by the original plaintiff for cancellation of the sale deed, can be said to be substantive therefore the same was clearly barred by limitation. Hence, the learned trial court ought to have dismissed the suit on the ground that the suit was barred by limitation. As such the learned first appellate court was justified and right in setting aside the judgment and decree passed by the learned trial court and consequently dismissing the suit. The High Court has committed a grave error in quashing and setting aside a well-reasoned and a detailed judgment and order passed by the first appellate court dismissing the suit and consequently restoring the judgment and decree passed by the trial court.” 16.Recently in case of Rajeev Gupta and others vs. Prashant Garg and others reported in 2025 SCC OnLine SC 889 reiterating the principles laid down in case of Rajpal Singh (supra) has observed thus: “23. Further, in Rajpal Singh v. Saroj, this Court held that where a composite suit had been filed for cancellation of the sale deed and of possession, the limitation period would have to be adjudged from the primary relief of cancellation which is 3 (three) years, and not the ancillary relief of possession which is 12 (twelve) years. In holding so, this Court held that: “14. x x x x 10 / 13 30. Insertion by the Parliament of the word “first” under the column ‘Time from which period begins to run’ in Article 58 is not without a purpose. Such word, which was not there in the Limitation Act, 1908, has been designedly used in Article 58 to signify that a suit to obtain declaration (other than those referred to in Articles 56 and 57) has to be instituted within three years of ‘when the right to sue first accrues’. In simpler terms, if cause of action to sue means accrual of the right for an actionable claim, it is the moment from which such right first accrues that the clock of limitation would start ticking. Thus, even though cause of action for instituting a suit might arise on varied occasions and/or at different times, what is material and assumes relevance for computing the period of limitation under Article 58 is the date when the right to sue first accrues to the aggrieved suitor. Though dominus litus , a suitor cannot pick and choose a time for approaching court. The period of limitation in terms of Article 58 being 3 (three) years, the prescribed period has to be counted from that date of the right to sue first accruing and the suit, if not instituted within 3 (three) years therefrom, would become barred by time. 17.In the facts of the case and the decision of Hon’ble Supreme Court as discussed above and considering that the plaintiff has prayed for the relief of declaration of title, however, the suit was not filed within three years from the date of cause of action arose, in the opinion of this Court, learned Trial Court has not committed any error in dismissing the suit considering one of the grounds of limitation also. 18.So far as the other ground raised by learned counsel for plaintiff that the sale deed executed in his favour cannot be canceled unilaterally is concerned, it is not in dispute that the sale deed executed in favour of plaintiff was a conditional sale deed. He being a Member of the Cooperative Housing Society was allotted the plot with certain conditions that the colony to be developed by the Society to be habitated by the Members of the Society as soon as the plots are allotted to them. Condition No. 3 of the sale deed specifically prescribes that within a period of six months from 24.02.1993 the purchaser has to get the approval of map from the competent authority for 11 / 13 construction of the residential house and it to be completed within a further period of three years. The sale deed in favour of plaintiff was executed in the year 1993. The notice/ letter was issued on 11.01.2007 by the Cooperative Society that the condition of the sale deed has not been complied with as plaintiff has not submitted sanctioned map approved by the competent authority. Though there is a mention in the letter written in the year 2005 to defendant No. 1 that the letter dated 19.06.2001 replied on 11.07.2001, however, the copy of said letter is not forming part of record and nor placed before the Trial court and marked exhibit. 19.In the above facts of the case, plaintiff could not able to prove that a letter was replied. Further it is not a case of plaintiff that he has got the map approved or sanctioned from the competent authority and was about to start the construction work. In absence of such specific plea, it is to be presumed that the conditions as mentioned in the sale deed could not be complied with by the plaintiff. 20.Provisions under Section 31 of the Transfer of Property Act, 1882 deals with condition that transfer shall cease to have effect in case specified uncertain event happens or does not happen, which is extracted below for ready reference. 31. Condition that transfer shall cease to have effect in case specified uncertain event happens or does not happen. Subject to the provisions of section 12, on a transfer of property an interest therein may be created with the condition superadded that it shall cease to exist in case a specified uncertain event shall happen, or in case a specified uncertain event shall not happen. 21. Section 32 deals with ‘such condition must not be invalid’- In order that a condition that an interest shall cease to exist may be valid, it is necessary that the event to which it relates be one which could legally constitute the condition of the creation of an interest. 12 / 13 22. Hon’ble Supreme Court in Indu Kakkar vs. Haryana State Industrial Development Corporation Ltd. and another reported in 1999 (2) SCC 37, deals with mandatory condition in a document creating interest in favour of appellant therein, has observed thus. “16. However, the allottee has contended before the trial court that clause 7 of the agreement is unenforceable in view of Section 11 of the TP Act. But that contention was repelled, according to us, rightly because the deed of conveyance had not created any absolute interest in favour of the allottee in respect of the plot conveyed. For a transferee to deal with interest in the property transferred “as if there were no such direction” regarding the particular manner of enjoyment of the property, the instrument of transfer should evidence that an absolute interest in favour of the transferee has been created. This is clearly discernible from Section 11 of the TP Act. The section rests on a principle that any condition which is repugnant to the interest created is void and when property is transferred absolutely, it must be done with all its legal incidents. That apart, Section 31 of the TP Act is enough to meet the aforesaid contention. The section provides that “on a transfer of property an interest therein may be created with the condition superadded that it shall cease to exist in case a specified uncertain event shall happen, or in case a specified uncertain event shall not happen”. Illustration (b) to the section makes the position clear, and it reads: “(b) A transfers a farm to B, provided that, if B shall not go to England within three years after the date of the transfer, his interest in the farm shall cease. B does not go to England within the term prescribed. His interest in the farm ceases.” 17. All that Section 32 of the Transfer of Property Act provides is that “in order that a condition that an interest shall cease to exist may be valid, it is necessary, that the event to which it relates be one which could legally constitute the condition of the creation of an interest”. If the condition is invalid, it cannot be set up as a condition precedent for crystallization of the interest created. The condition that the industrial unit shall be established within a specified period failing which the interest shall cease, is a valid condition. Clause 7 of the agreement between the parties is, therefore, valid and is binding on the parties thereto.” 13 / 13 23. For the foregoing discussion, facts of the case, decision of Hon’ble Supreme Court and law laid down in it, no relief as prayed for by the plaintiff could have been granted by the Trial Court in his favour in absence of relief of declaration of order of cancellation to be null and void and also the relief of declaration of sale deed executed in favour of defendant No. 2 to be null and void. Finding of learned Trial Court is upon proper apprecation of facts and evidence available on record. 24. Accordingly, I do not find any merit in this appeal. The Appeal under Section 96 of the Code of Civil Procedure filed by plaintiff is dismissed and the impugned judgment and decree dated 22.07.2011 passed by learned Third Additional District Judge, Raipur, District Raipur (CG) in Civil Suit No. 8-A/2011 dismissing the suit, are affirmed. 25. No order as to cost. 26. Decree be drawn up accordingly. Sd/- (Parth Prateem Sahu) Judge pwn