RATTAN SINGH & ORS. v. NIRMAL GILL & ORS. ETC.

A prescribed in Section 17 of the Limitation Act, 196315. The said provision reads as under: “17.– Effect of fraud or mistake.- (1) Where, in the case of any suit or application for which a period of limitation is prescribed by this Act,— B (a) the suit or application is based upon the fraud of the defendant or respondent or his agent; or (b) the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person as aforesaid; or C (c) the suit or application is for relief from the consequences of a mistake; or (d) where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him, D the period of limitation shall not begin to run until the plaintiff or applicant 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 or the applicant first had the means of producing the concealed document or compelling its production E .......” (emphasis supplied)

78Copy pinpoint78. Therefore, for invoking Section 17 of the 1963 Act, two ingredients have to be pleaded and duly proved. One is existence of a F fraud and the other is discovery of such fraud. In the present case, since the plaintiff failed to establish the existence of fraud, there is no occasion for its discovery. Thus, the plaintiff cannot be extended the benefit under the said provision.

79Copy pinpoint79. It must be noted that the trial Court was in error to hold that G the person who has disclosed the information was not examined by the plaintiff, when it had come on record through the testimony of Kultar Singh (DW2), that Rustam Singh expired before the suits came up for trial. If so, the finding of the High Court that the testimony of Rustam

15 H for short, “the 1963 Act”

RATTAN SINGH & ORS. v. NIRMAL GILL & ORS. 465 [A. M. KHANWILKAR, J.]

Singh strengthened the case of plaintiff is ex-facie erroneous and A manifestly wrong. In as much as, the said person was never examined before the Court in these proceedings. Further, the trial Court and the first appellate Court had erroneously assumed the date of function in December, 2001 in place of February, 2001. However, that will have no bearing on the finding on the factum of non-existence of fraud. The B concurring findings recorded by the trial Court and the first appellate Court - that the documents were executed by the plaintiff - belies and demolishes the case of the plaintiff, as to having acquired knowledge of alleged fraud in 2001. Therefore, the High Court committed manifest error in reversing the concurrent findings of the trial Court and the first appellate Court in that regard. C CONCLUSION

80Copy pinpoint80. It is settled that the standard of proof required in a civil dispute is preponderance of probabilities and not beyond reasonable doubt. In the present cases, though the discrepancies in the 1990 GPA are bound to create some doubt, however, in absence of any tangible evidence D produced by the plaintiff to support the plea of fraud, it does not take the matter further. Rather, in this case the testimony of the attesting witness, scribe and other independent witnesses plainly support the case of the defendants. That evidence dispels the doubt if any; and tilt the balance in favour of the defendants. E

81Copy pinpoint81. Suffice it to observe that since the plaintiff could not establish the existence of fraud, it must follow that the suits are ex-facie barred by limitation.

82Copy pinpoint82. As to the title of the subsequent purchasers, since the 1990 GPA had been proved, there is no reason to doubt their bonafides. F

83Copy pinpoint83. In view of the foregoing discussion, we hold that the trial Court and the first appellate Court had appreciated the evidence properly and that view being a possible view, the High Court ought not to have disturbed the same in the second appeal and that too on surmises and conjectures. G In the result, the present appeals are allowed and the impugned judgment and decree passed by the High Court is set aside. The judgment and decree passed by the first appellate Court is hereby restored. No order as to costs. Pending applications, if any, are disposed of.

Kalpana K. Tripathy Appeals allowed. H