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2015 (1) TMI 1495 - HC - Indian LawsPrayer for a decree of possession of land and cancellation of the sale deed - plaintiff can be non-suited on the ground of limitation in a suit for possession or not - dismissal of earlier suit filed by Ranjit Singh son of Sohan Singh (respondent in the instant appeal) through his wife Satwinder Kaur will operate as res judicata? - HELD THAT:- Both the Courts below had given a categorical finding that the sale deed was a result of impersonation and the plaintiff had not sold the land. The defendant chose not to file any appeal. The order against him had become final. The sale deed had been held to be invalid. So far as the share of the plaintiff was concerned it was necessary to seek a declaration that the sale deed was invalid. The fact that the plaintiff has sought a declaration with respect to the sale deed is of no consequence. The possession of the property has been taken by the defendant pursuant to a void document and he had no title and has no right to remain in possession. Since the possession has been taken on the basis of void document Article 65 of the Limitation Act would apply and the limitation to file a suit would be 12 years. In AJUDH RAJ AND ORS. VERSUS MOTI S/O MUSSADI [1991 (5) TMI 258 - SUPREME COURT], it was held that if the order has been passed without jurisdiction, the same can be ignored as nullity, that is, non-existent in the eyes of law and is not necessary to set it aside, and such a suit will be governed by Article 65 of the Limitation Act. The plaintiff is claiming possession of the property on the basis that he was a co-owner. By way of a registered sale deed, the property had been sold to the defendant by the brother of the plaintiff by impersonation. The possession of the defendant is not authorized. The plaintiff as owner is seeking to recover possession from the defendant. The defendant had relied upon the sale deed as it purported to create some right in him. The document has been held to be void and non-est in the eyes of law. The defendant had raised a plea of adverse possession and an issue was framed but at the time of arguments the plea was not pressed but a finding was recorded against the defendant. The suit had been filed within 12 years and it is in time, therefore, the finding recorded by the Courts below on the point of limitation is set aside. Appeal allowed.
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