Case Note & Summary
The dispute between the plaintiff and the defendants concerned a small temple (deuli) and surrounding land admeasuring about 500 sq.m. belonging to the defendants. The defendants had previously filed Civil Suit No. 46/67 against the plaintiff, which was decreed on 31.7.1970, and in December 1971 the defendants obtained possession of the property in execution. The decree was affirmed by the Judicial Commissioner on 25.2.1976. Subsequently, the defendants filed another suit (Civil Suit No. 137/81/A) due to alleged interference by the plaintiff, which was settled by consent terms. The plaintiff then filed Civil Suit No. 239/85/C seeking a declaration that the decree dated 31.7.1970 in Civil Suit No. 46/67 was null and void as having been obtained by fraud, and also prayed for recovery of possession of the disputed property. The trial court dismissed the suit, holding that the plaintiff was not in possession, that the suit was barred by limitation (filed after 12 years from dispossession in 1970), and that the plaintiff had neither pleaded particulars of fraud nor proved the same. The plaintiff appealed to the District Court, which dismissed the appeal on 5.6.1999. The plaintiff then filed the present Second Appeal. The High Court, after hearing counsel, held that the conclusions of the courts below were correct. The suit for declaration that the decree was obtained by fraud had to be filed within three years under Article 59 of the Limitation Act, 1963, but was filed in 1985, well beyond that period. The suit for possession was also barred by limitation under Article 65, as the plaintiff was dispossessed in 1970 and the suit was filed after 12 years. Additionally, the plaintiff failed to plead and prove fraud as required by Order 6 Rule 4 CPC. The High Court dismissed the Second Appeal, finding no substantial question of law.
Headnote
A) Limitation Act, 1963 - Article 59 - Suit to set aside decree on ground of fraud - Limitation period of three years - The plaintiff filed suit in 1985 to declare decree dated 31.7.1970 as null and void on ground of fraud, but the suit was filed beyond three years from the date of decree and was therefore barred by limitation (Paras 4-5). B) Limitation Act, 1963 - Article 65 - Suit for possession based on previous possession - Limitation period of 12 years - The plaintiff was dispossessed in 1970 and filed suit in 1985, after 12 years, and the suit was held barred by limitation (Paras 4-5). C) Code of Civil Procedure, 1908 - Order 6 Rule 4 - Pleading of fraud - Fraud must be specifically pleaded with particulars - The plaintiff failed to plead particulars of fraud and also failed to prove the same, and therefore the suit for declaration that the decree was obtained by fraud could not succeed (Para 5).
Issue of Consideration
Whether the suit for declaration that the earlier decree was obtained by fraud and for recovery of possession was barred by limitation and whether the plaintiff had pleaded and proved fraud.
Final Decision
Second Appeal dismissed. The judgment and decree of the trial court and the appellate court are confirmed. No order as to costs.
Law Points
- Limitation for suit to set aside decree on ground of fraud is three years
- Suit for possession must be filed within 12 years of dispossession
- Fraud must be specifically pleaded and proved
