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1. : ® IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE26T H DAY OF JUNE, 2015 BEFORE THE HON’BLE MR.JUSTICE B.VEERAPPA WRIT PETITION No.101539 OF2014[GM-CPC]. BETWEEN:
1. ABDULLA SIDDIQ S/O. DR FAROOQ AHMED AGE:
49. YEARS, 2. MRS. ALIYAZAHARA W/O.MR ABDULLA SIDDIQ AGE:
34. YEARS, R/O. 1019, 25TH MAIN, 4TH T BLOCK, JANANAGAR, BANGALORE-560041. (By Sri. M.B.HIREMATH FOR SRI.SHANTESH AWAJI ADV.) AND: ... PETITIONERS U.F.M.UDAY S/O. SHIVA GAJINKAR AGE:
57. YEARS, RAMPUR, MAJALI VILLAGE, KARWAR DIST: KARWAR (By Sri. A S PATIL ADV.FOR C/R) ... RESPONDENT :
2. : THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER
DATED0201.2014 PASSED ON I.A.NO.1 FILED U/O.VII RULE11(D) R/W.SECTION151OF THE CODE OF CIVIL PROCEDURE (ANNEXURE-E) PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE, KARAWAR IN O.S.NO.17/2012. THIS WP COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING: ORDER
The petitioners/defendants are aggrieved by the order dated 02.01.2014 on IA No.1/2014 made in OS No.17/2012 on the file of the Prl. Civil Judge (Sr.Dn.), Karwar.
2. The respondent/plaintiff filed O.S. No.17/2012, against the present petitioners who are the defendants, for declaration and possession in respect of the suit schedule property, contending that he is the owner of the suit schedule property. The defendants filed written statement denied the entire plaint averments and sought for dismissal of the suit. :
3. :
3. When the matter was posted for evidence, the defendants filed an application under Order VII Rule 11(d) read with Section 151 of the Code of Civil Procedure 1908, for rejecting the plaint as the suit is barred by law of limitation. The said application was resisted by the plaintiff. After hearing both parties, learned Civil Judge, by the impugned order, dated 02.01.2014, dismissed the application holding that the suit is maintainable and the defendants have not made out any ground to dismiss the suit as barred by limitation. Against the said order, the present writ petition is filed.
4. I have heard the learned counsel for the parties to the lis.
5. Sri.M.B.Hiremath for Sri.Shantesh Awage, learned counsel for the petitioners, has contended that the impugned order passed by the trial court is contrary to the provisions of Article 58 of the Limitation Act, :
4. :
1963. when the suit was not filed within three years. Hence, the suit was not maintainable. Therefore, the trial court has passed the impugned order erroneously. The same is liable to be set aside. Accordingly, he sought to allow the writ petition.
6. Per contra, Sri.A.S.Patil, learned counsel for the respondent/caveator, sought to justify the impugned order.
7. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record.
8. The only point that arises for my consideration in this writ petition is: “Whether the suit filed by the plaintiff is barred by time?.” 9. The admitted facts are that the plaintiff filed suit for declaration and consequential relief of possession, mainly contending that he is the owner of :
5. : the suit schedule property on the basis of the registered Will, and also other contemporary documents. The defendants denied the title of the plaintiff by filing written statement and their specific case is that they are in possession on the basis of the alleged Will dated 19.04.2004.
10. Under Article 65 of the Limitation Act, the period of limitation prescribed for filing a suit for possession in respect of immovable property or any interest therein based on title is 12 years from the date when possession of the defendants becomes adverse to the plaintiff. Article 58 of the Limitation Act prescribes limitation of three years from the date when the right to sue first accrues to obtain a declaration.
11. By a reading of both provisions of Articles 58 and 65, makes it clear that the limitation, for possession of immovealbe property based on title, is 12 years, when the possession of defendants becomes adverse to :
6. : the plaintiff. To obtain any other declaration than the title, is three years, when the right to sue first accrues. Hence, in the facts and circumstances of the present case, only Article 65 applies and not Article 58 of the Limitation Act.
12. The trial court while passing the impugned order has specifically recorded a finding that the present suit filed by the plaintiff for declaration of title and consequential relief of possession would be governed by Article 65 and not Article 58 of the Limitation Act. Relying upon the dictum of this Court in the case of M/S. ELECTRONICS AND CONTROLS, BANGALORE BY LRs Vs. KIADB, reported in 2010 (4) KCCR2648so also, the decision of this Court in the case of G.P.LAKSHMI AND ANOTHER Vs. T.B.RAJAMMA AND OTHERS reported in 2000 (3) KCCR2223 held that the present suit filed by the plaintiff for declaration of title and consequential relief of possession Article 65 will apply :
7. : and the limitation will be 12 years and therefore, the suit is maintainable and accordingly, rejected the application filed by the defendant under Order VII Rule 11(d) of the Code of Civil Procedure.
13. While considering the provisions of Articles 65 and 58 of the Limitation Act, the Hon’ble Supreme Court in the case of STATE OF MAHARASHTRA Vs. PRAVIN JETHALAL KAMDAR [DEAD BY LRS]., reported in AIR2000SC1099 has held as under: “5. ………When possession has been taken by the appellants pursuant to void documents, Article 65 of the Limitation Act will apply and the limitation to file the suit would be 12 years. When these documents are null and void, ignoring them a suit for possession simpliciter could be filed and in the course of the suit it could be contended that these documents are nullity. In Ajudh Raj and Ors. v. Moti S/o Mussadi [(1991) 3 SCC136 this Court said 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 :
8. : not necessary to set it aside; and such a suit will be governed by Article 65 of the Limitation Act. The contention that the suit was time barred has no merit. The suit has been rightly held to have been filed within the period prescribed by the Limitation Act.” 14. On considering the entire provisions of Articles 58 and 65 of the Limitation Act and the law declared by this Court and the Supreme Court, stated supra, this Court is of the opinion that the provision of Article 65 is applicable to the facts and circumstances of the present case and not Article 58 as contended by the learned counsel for the petitioner. Accordingly, the point for consideration is answered in the negative holding that the suit filed is not barred by limitation.
15. In view of the aforesaid reasons, the impugned order passed by the trial court is in accordance with law. No ground is made out to interfere with the same, by this Court under Articles :
9. :
226. & 227 of Constitution of India. Accordingly, the writ petition is dismissed. RK/- Sd/- JUDGE