- (1.) THE facts giving rise to this appeal are briefly as follows: Respondent No. 1 Smt. Maika and her two sons Dhika and Bhairon, respondents Nos. 2 and 3. filed a suit for cancellation of a certain sale deed in respect of the disput ed land which was executed by DcbJ Prasad, appellant-defendant No. 1, on 12-9- 1963 in favour of appellants Nos. 2 and 3 on the ground that the disputed land was purchased under a sale-deed by the husband of Smt. Maika and that ever since the purchase she along with her two sons Bhika and Bhairon had been in possession of the property and had plant ed trees over it. In this way the res pondents claimed title not only to the land but also to the trees standing there on and denied the title or possession of Debi Prasad to and over this property at any stage. Debi Prasad appellant had contested the suit along_ with his vendees. Debi Prasad claimed title, inter alia, on the ground of long adverse possession and one of the pleas raised by his ven dees appellants Nos. 2 and 3 was that they were vendees-purchasers of the pro perty from him for value. The trial Court held that the plaintiffs- respondents had failed to establish that the disputed land was purchased by Chhotey Lal, deceased husband of Smt. Maika. and came to the conclusion that the plaintiffs had failed to establish their title to the land. It was found at the same time that appellant Debi Prasad also had been un able to prove that he had been in ad verse uossession over the property. There was a further finding that respondents Nos. 2 and 3 were not vendees-purchasers, but still the trial Court awarded a decree for cancellation of the sale- deed in favour of the respondents on the sole basis that they were found to possess, what was described by the trial Court as. possessory title. The present appellants appealed and the first appellate Court also con curred in the finding of the trial court that neither the plaintiffs-respondents nor the appellant Debi Prasad had title to the property, the latter having failed to establish the plea of adverse possession, but relying on a decision of the Calcutta High Court in the case of Badri Narain Singh v. Kodo Sah, AIR 1915 Cal 423 held the plaintiffs-respondents entitled to a decree for cancellation of the sale- deed for having succeeded in showing them selves to be in possession of the pro-pe_rty. The appeal was in the result dis missed with costs and. therefore, Debi Prasad and his two vendees have come to this Court in Second Appeal.
(2.) THE learned counsel for the defendant-appellants made only one sub mission in the appeal. It was urged that the lower appellate Court misapplied the case of AIR 1915 Cal 423 and that under Section 31 of the Specific Relief Act, which was equivalent to Section 39 of the unamended Act. a decree for cancel lation of an instrument could not be pas sed in favour of the respondents on the basis of possession, their title not having been established. I have heard the learned coun sel for the parties. The submission of the learned counsel for the respondents is that a party is entitled to a decree for cancellation of an instrument even on the basis of possession no matter whether he has failed to establish his ownership to the disputed property. The learned coun sel places reliance on the aforesaid Calcutta decision referred to by the lower appellate court.
(3.) SECTION 31 (1) of the Specific Belief Act is in these terms:- "31 (1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, niay sue to nave it adjudged void or voidable; and (the court may, in its discretion, so ad-Sudge it and order it to be delivered up and cancelled". It is clear from a reading of Section 31 (1) that a suit for cancellation of a written document can lie only at the instance of a person against whom the instrument is void or voidable and secondly who has a reasonable apprehension that such in strument, if left outstanding, will cause him serious injury. I am of opinion that this is not a case in which it can be said that the sale-deed impugned by the res pondents was void or voidable against them. The question whether an instru ment can be said to be void or voidable against a person claiming relief under the aforesaid provision came to be con sidered by a Full Bench of the Madras High Court in the case of Muppudathi Pillai v. Krishnaswami Pillai. AIR 1960 Mad 1 (FB). At p. 4 it was observed: "............It stands to reason that the executant of the document should be either the plaintiff or a person who can in Certain circumstances bind him. It is only then it could be said that the instrument Is voidable by or void against him. The second aspect of the matter emphasises that principle. For there can be no ap prehension if a mere third party, assert ing a hostile title creates a document. Thus relief under Section 39 would be granted only in respect of an instrument likely to affect the title of the plaintiff and not of an instrument executed by a stranger to that title". Proceeding with the discussion their Lordships pointed out the example of a (trespasser purporting to convey the pro perty in his own right and not in the right of the owner. In such a case, to my mind. agreeing with respect with their Lordships of the Madras High Court, remedy of cancellation of such an instrument cannot be granted because such a relief would not remove the cloud upon his title by the instrument and the proper remedy to seek is a declaration of his own title or a declaration that the sale- deed is not binding or valid against him. It is only in the case of instru ments which are either executed by a party or which purport to have been executed by a party or by a person who can bind him that the relief under Sec tion 31 can be claimed in law because in such cases only can it be said, as observ ed by the Madras High Court also in the said case, "that there is a cloud on his title and an apprehension that if the in strument is left outstanding it may be a source of danger". They went on further to illustrate the point by observing that such cases may arise in the following circumstances: "A party executing the document, or a principal in respect of a document executed by his agent, or a minor in respect of a document executed by his guardian de jure or de facto, a re-versioner in respect of a document ex ecuted by the holder of a limited estate, in respect of a document executed by the benamidar etc." Courts have also recognised in this respect the right to challenge and to pray for cancellation of a forged document which is purported to have been executed on his behalf. In all these cases there is no question of a document by a stranger to the title as in the present case and it can further be found that in all such cases a reasonable apprehension can be entertained that if such an instrument is left outstanding the same may cause the plaintiff serious injury. In the present case it cannot be successfully maintained that a reasonable apprehension can be entertained by the plaintiffs that if the sale-deed is left outstanding it may cast a cloud upon their title or cause them serious injury because the cloud upon their title will not be removed merely by a decree for cancellation of the instru ment. The cloud will continue to hang over the plaintiffs by the hostitle asser tion of title by the executant of the sale-deed and those who claim a title to it. Therefore, the proper relief for the plain tiffs to seek in a case of this kind is a declaration of their own title or a dec laration that the executant of the sale-deed in dispute has no title to the pro perty.;