- 1 - RSA No.172 of 2020 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE16H DAY OF MARCH, 2023 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH REGULAR SECOND APPEAL No.172 OF2020(DEC/INJ) BETWEEN: K.N.MUNIVENKATAPPA AGED ABOUT68YEARS, S/O. NARAYANAPPA, KUNDARASANAHALLI, BANGARPET TALUK, KOLAR DISTRICT-563 129. …APPELLANT (BY SRI. PUTTIGE R. RAMESH, SENIOR COUNSEL FOR SMT. LAKSHMI S. HOLLA, ADVOCATE) AND: KRISHNAPPA AGED ABOUT69YEARS, S/O. GULLAPPA, KUNDARASANAHALLI, BANGARPET TALUK, KOLAR DISTRICT-563 129. …RESPONDENT (BY SRI. G.A. SRIKANTE GOWDA, ADVOCATE) THIS RSA IS FILED UNDER SEC.100 OF CPC., 1908 AGAINST THE
JUDGMENTAND DECREE DATED0711.2019 PASSED IN RA NO.65/2018 ON THE FILE OF THE SENIOR CIVIL JUDGE AND PRL. JMFC., K.G.F., DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENTAND DECREE DATED0108.2018 PASSED IN O.S.NO.182/2010 ON THE FILE OF THE ADDL. CIVIL JUDGE AND JMFC AT BANGARPET. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING: - 2 - RSA No.172 of 2020
JUDGMENTThis matter is listed for admission along with T.C.Rs. and I have heard the learned counsel for the appellant and learned counsel for the respondent.
2. The factual matrix of the case of the plaintiff before the Trial Court while seeking the relief of declaration and permanent injunction is that the he is the absolute owner of the suit schedule property under the gift deed dated 29.01.1996 which was executed by Thimmappa, son of late Nyathappa and the said Thimmappa has delivered possession to the plaintiff on the same day. Hence, after receiving the delivery of possession on 29.01.1996, the plaintiff and Thimmappa has been in peaceful possession and enjoyment over the suit schedule property. The suit schedule property is a dry land situated at Kundarasanahalli Village, Kamasamudram Hobli, Bangarpet Taluk bearing Sy.No.10/1, measuring 2 acres and 3 guntas, including 6 guntas phut karab which is morefully described in the schedule. It is contended that, on the basis of the said registered gift deed, the plaintiff has been growing crops in the suit schedule property such as Ragi, Hurali etc. All the revenue records are standing in the name of plaintiff on the - 3 - RSA No.172 of 2020 basis of alleged gift deed. Hence, the plaintiff has been in peaceful possession and enjoyment of the suit schedule property and he has been paying tax to the Government and hence, the plaintiff is the absolute owner of the suit schedule property and he being an illiterate person, has filed the suit against the defendant in O.S.No.36/2004 before the Civil Judge (Junior Division), KGF for the relief of permanent injunction. After completion of full-fledged trial, suit is dismissed against the plaintiff and thereafter, the plaintiff has preferred an appeal before the Senior Civil Judge, KGF in R.A.No.3/2007. During the pendency of the appeal, the plaintiff has filed an application praying the Court to permit him to file a fresh suit on the same cause of action against the defendant due to technical point. To avoid the multiplicity of proceedings, the Senior Civil Judge, KGF has granted permission to the plaintiff to file a fresh suit against the defendant on 14.06.2010. It is contended that the defendant without having any manner of right, interfering with the plaintiff’s peaceful possession over the suit schedule property and the defendant by fabricating and forging the sale agreement, is claiming his title along with possession of suit schedule property, though there is no right and possession by - 4 - RSA No.172 of 2020 the defendant. Hence, filed the suit seeking the relief of declaration and possession.
3. In pursuance of the suit summons, the defendant appeared and filed the written statement denying the very execution of gift deed by Thimmappa in favour of the plaintiff and all the entries in revenue records are concocted and fabricated by the plaintiff without any manner of right over the suit schedule property, the plaintiff is interfering with the peaceful possession of the defendant. The defendant has taken specific contention that the suit schedule property bearing Sy.No.10/1 originally belongs to Muniyamma and said Muniyamma got the suit property from one Bathyappa under a registered sale deed dated 11.06.1993. Therefore, the revenue records are standing in the name of Muniyamma. It is contended that Venkatappa, Son of Nyathappa was in physical possession and enjoyment of the suit property and that the said person had been in peaceful possession of other properties and said Venkatappa for his legal necessity to look into the aspect of the family, he alienated the suit schedule property in favour of the defendant under sale agreement dated 11.12.1991 for a valuable consideration of Rs.15,000/-. After - 5 - RSA No.172 of 2020 receiving the entire amount, he has executed the sale agreement in favour of defendant on 11.12.1991 and delivered the possession over the suit schedule property to the defendant and on the basis of the said sale agreement, the defendant has been in peaceful possession and enjoyment of the suit schedule property. It is also his contention that, he has given an application to change revenue records in favour of defendant and after conducting mahazar by the revenue authorities, the suit schedule property came into the name of defendant and also in the said observation, the revenue authorities have drawn mahazar regarding the possession over the suit schedule property on the basis of possession and also on the basis of sale agreement, the defendant has been in peaceful possession over the suit schedule property as a owner of the suit property. The defendant has also taken a specific contention that the suit is barred by limitation and earlier suit filed by the plaintiff against the defendant in O.S.No.36/2004 is dismissed after completion of full-fledged trial and thereafter, he has preferred an appeal before Senior Civil Judge, KGF and in the said appeal, an application was also filed to withdraw the suit and permission was given to file a fresh suit, since he did not seek any relief of declaration in the earlier suit. Hence, it is - 6 - RSA No.172 of 2020 contended that the suit is barred by limitation and very title of the plaintiff was denied in the earlier suit itself in O.S.No.36/2004.
4. Based on the pleadings of the parties, the Trial Court framed the issues with regard to whether the plaintiff proves his title, ownership and possession to the suit schedule property by virtue of gift deed, whether the plaintiff proves the alleged interference of the defendant, whether the defendant proves his title, ownership and possession to the suit schedule property by virtue of sale agreement dated 11.12.1991, whether the suit is barred by limitation and whether the plaintiff is entitled for the relief as sought.
5. The Trial Court given opportunity to both the plaintiff and the defendant to substantiate their claim. The plaintiff, in order to prove his case, examined himself as P.W.1 and also examined two witnesses as P.Ws.2 and 3 and got marked the documents as Exs.P1 to P32. On the other hand, the defendant examined himself as D.W.1 and also examined two witnesses as D.Ws.2 and 3 and got marked the documents as Exs.D1 to D18.-. 7 - RSA No.172 of 2020 6. The Trial Court, after considering both oral and documentary evidence placed on record, answered issue No.1 as ‘partly affirmative’, in coming to the conclusion that the plaintiff has proved the first issue in part and the issue with regard to interference is answered as ‘negative, issue No.3 regarding possession is concerned is answered as ‘partly affirmative’ and regarding the issue of limitation, answered the same as ‘negative’, in coming to the conclusion that the suit is in time and also granted the relief of declaration and possession declaring that the plaintiff is the absolute owner of the suit schedule property and further directed the defendant to handover possession of the suit schedule property to the plaintiff within 60 days from the date of the order and the relief sought for grant of permanent injunction is rejected.
7. Being aggrieved by the judgment and decree of the Trial Court, the defendant has filed an appeal before the First Appellate Court in R.A.No.65/2018, wherein it is contended that the Trial Court committed an error in granting the relief of declaration and also granting the relief of possession and contend that the Trial Court failed to take note of the fact that the defendant is in possession and enjoyment of the suit - 8 - RSA No.172 of 2020 schedule property as on the date of filing of the suit and failed to consider the fact that suit is barred by limitation and the finding given by the Trial Court is only on the basis of assumption and presumption.
8. The First Appellate Court, having considered the grounds urged in the appeal, formulated the point whether the judgment and decree passed by the Trial Court is against law, facts, evidence and probabilities of the case and whether it warrants an interference of the First Appellate Court. The First Appellate Court, on considering the grounds urged in the appeal as well as both question of fact and question of law and also extracting the answers elicited from the mouth of D.W.1, dismissed the appeal and confirmed the judgment and decree of the Trial Court. Hence, the present second appeal is filed by the defendant before this Court.
9. The main contention of the learned counsel appearing for the appellant-defendant before this Court is that both the Courts have committed an error and failed to take note of the pleadings of the parties. The counsel would vehemently contend that the plaintiff earlier had filed the suit in O.S.No.46/1999 and the same is re-numbered as - 9 - RSA No.172 of 2020 O.S.No.36/2004. The counsel would vehemently contend that, when the suit is filed for the relief of permanent injunction, in the written statement filed on 27.10.1999, took the specific defence that the vendor, who conveyed the suit schedule property to the plaintiff has no right to the said property and the said suit was dismissed on 30.11.2006 and appeal was filed and the same was numbered as R.A.No.3/2007. In the said appeal, an application was also filed seeking liberty to file a fresh suit and permission was granted on 14.06.2010. The counsel would vehemently contend that, this is a second round of litigation and only based on the strength of the order dated 14.06.2010, on 03.09.2010, suit was filed seeking the relief of declaration of his title and injunction and in the written statement filed, took the specific defence that suit is barred by limitation.
10. It is the contention of the learned counsel appearing for the appellant-defendant that the Trial Court granted the decree answering the issue of limitation as ‘negative’ but, comes to the conclusion that the defendant is not in possession of the suit schedule property. Hence, the Trial Court directed the defendant to handover possession of - 10 - RSA No.172 of 2020 the suit schedule property to the plaintiff and the plaintiff has not challenged the said judgment and only defendant has challenged the said finding and the First Appellate Court also failed to consider the grounds urged with regard to the limitation and erroneously committed an error in confirming the judgment of the Trial Court. The counsel also brought to notice of this Court that the property originally belongs to Muniyamma and Nyathappa which was purchased by them vide sale deed dated 11.06.1943 and Muniyamma and Nyathappa had two sons i.e., Venkatappa and Thimmappa. The first son- Venkatappa agreed to sell the property in favour of the defendant vide agreement dated 11.12.1991 and gift deed which the plaintiff is relying upon is dated 29.01.1996 i.e., subsequent to the death of Venkatappa. Both the Courts failed to take note of the fact that they have committed an error in not taking cognizance of the fact that opportunity was given to file a fresh suit to overcome the law of limitation in respect of fresh prayer made in the said suit.
11. The learned counsel for the appellant-defendant, in support of his argument, relied upon the judgment in H.B. SHIVAKUMAR VS. SRI L.C. HANUMANTHAPPA, SINCE - 11 - RSA No.172 of 2020 DECEASED BY HIS LEGAL REPRESENTATIVES reported in 2015 SCC ONLINE KAR3860and brought to notice of this Court the discussion made in the said judgment, particularly with regard to the point for consideration regarding the aspect of limitation and brought to notice of this Court Para No.53 of the judgment wherein, this Court made an observation that, after amendment and including the prayer of declaration by the LRs of deceased Hanumanthappa, they have led their side evidence and contended that the suit for declaration is within the period of limitation. However, defendant-Shivakumar has not led any evidence in support of his contentions raised in the additional written statement. The counsel also brought to notice of this Court the discussions made in the said judgment that the admission of title in favour of plaintiff Hanumanthappa has been specifically admitted by defendant Shivakumar ana only in the subsequent written statement dated 01.08.2002, defendant Shivakumar had denied the title. It is the established principles of law that, cause of action for the relief of declaration will arise when the title is denied by the other side.-. 12 - RSA No.172 of 2020 12. The counsel also brought to notice of this Court the principles laid down in Para No.54 of the said judgment and would vehemently contend that, when the title was denied in the earlier suit itself in O.S.No.46/1999, the suit ought to have been filed within three years and Article 58 applies and not Article 65 and both the Courts failed to consider the law of limitation. Hence, counsel would vehemently contend that both the Courts committed an error in not considering Article 58 and instead, misapplied Article 65.
13. The learned counsel for the appellant relied upon the judgment of the Apex Court in the case of MURUGAN AND OTHERS v. KESAVA GOUNDER (DEAD) THROUGH LEGAL REPRESENTATIVES AND OTHERS reported in (2019) 20 SCC633and brought to the notice of this Court paragraph No.2.2 of the judgment, wherein it is mentioned with regard to the prayer made in the said suit i.e., declare that the plaintiffs are entitled to the suit properties and also second prayer to direct the defendants to deliver possession of the suit property failing which order delivery of possession through process of Court.-. 13 - RSA No.172 of 2020 14. The learned counsel also brought to the notice of this Court paragraph No.2.5, wherein discussed with regard to the issues framed in the said suit and the finding given with regard to application of Article 65 period of limitation is 12 years. The learned counsel also brought to the notice of this Court paragraph No.11 of the judgment wherein discussed with regard to the discussion made in respect of Article 65 wherein held that the said period of limitation is available when suit is filed for possession of immovable property and the interest therein based on title. It is also observed that the present is a case where by registered sale deeds the property was conveyed by the father of the minor was a nominee. Thus, when sale deed was executed by Balaraman he purported to convey the right of the minor also. The sale deeds being voidable and not void, the plaintiffs cannot rely on Article 65. The First Appellate Court and the High Court has rightly held that limitation for suit was governed by Article 60 and the suit was clearly barred by time.
15. The learned counsel also relied upon the judgment of the Apex Court in the case of NAZIR MOHAMED v. J.
KAMALA AND OTHERS reported in (2020) 19 SCC57and - 14 - RSA No.172 of 2020 brought to the notice of this Court Head Notes ‘E’ and ‘F’, wherein discussed with regard to the burden of proof in a case of permissive possession where plaintiff wants to establish that the defendants original possession was permissive. It is for the plaintiff to prove this allegation and if he fails to do so, it may be presumed that possession was adverse, unless there is evidence to the contrary and also with regard to the recovery of possession discussed with regard to Articles 64 and 65 held that must be within limitation, otherwise, the Court is obliged to dismiss a suit filed after expiry of the period of limitation, even though the plea of limitation may not have been taken in defence. It is observed that in the absence of any whisper in the plaint as to the date on which the appellant-defendant and/or his predecessor-in-interest took possession of the suit property and in the absence of any whisper to show that the relief of decree for possession was within limitation, the High Court could not have reversed the finding of the First Appellate Court, and allowed the respondent-plaintiff the relief of recovery of possession, more so when the appellant-defendant had pleaded that he had been in complete possession of the suit premises, as owner, with absolute rights.-. 15 - RSA No.172 of 2020 16. Per contra, learned counsel for the respondent- plaintiff in his argument would vehemently contend that there is no dispute with regard to the relationship between the parties. The counsel would contend that said Venkatappa was not having any right to execute the sale agreement as contended by the appellant-defendant and admittedly, the mother was no more and she left two sons i.e., Venkatappa and Thimmappa. The counsel also would vehemently contend that the defendant is claiming right based on the sale agreement of the year 1991 and not in respect of the sale agreement, wherein he has not enforced his right by filing a suit for the relief of specific performance. The counsel also brought to notice of this Court the admission given by defendant in the cross-examination wherein, he categorically admits that, as on the date of the agreement, the property was standing in the name of Thimmappa and not in the name of Venkatappa and also brought to notice of this Court the admission given by D.W.1 in the cross-examination, where he categorically admitted that gift deed was executed by Thimmappa in favour of the plaintiff in the year 1996. D.W.1 categorically admitted the title of said Thimmappa and also execution of the gift deed in favour of the plaintiff and though - 16 - RSA No.172 of 2020 he denied the title of the said Thimmappa, as on the date of execution of the alleged sale agreement, none of the documents were standing in the name of Venkatappa. When such being the case, the defendant has not pleaded adverse possession and the same is only pleaded during the course of argument. When no such pleading adverse to the title of the plaintiff, the Trial Court, in detail discussed Article 64 as well as Article 65 and rightly comes to the conclusion that Article 65 applies and suit is not barred by limitation.
17. The counsel also would vehemently contend that the First Appellate Court also, while considering the law of limitation and also the factual aspects with regard to the admission given by D.W.1, discussed the same and extracted the admission given by D.W.1 in the cross-examination with regard to the title of the plaintiff and also admitted the execution of gift deed by Thimmappa in favour of the plaintiff and also extracted with regard to not enforcing the sale agreement which has been relied upon by the defendant and definite finding is given with regard to both question of fact and question of law. The First Appellate Court also, in Para Nos.42, 43, 44 and so also in Para Nos.50, 52 and 55, taken note of - 17 - RSA No.172 of 2020 both oral and documentary evidence placed on record and given anxious consideration to both question of fact and question of law. Hence, the Trial Court as well as the First Appellate Court has not committed any error and hence, no substantial questions of law arises before this Court when the concurrent finding is given by the Trial Court as well as the First Appellate Court and also no perversity in the judgment of the Trial Court and First Appellate Court. Hence, prayed this Court to dismiss the appeal.
18. The learned counsel for the respondent relied upon the judgment of the Apex Court in the case of STATE OF MAHARASHTRA v. PRAVIN JETHALAL KAMDAR (DEAD) BY LRS. reported in MANU/SC/0157/2000 and brought to the notice of this Court paragraph No.5, wherein discussed with regard to Article 58 of the Limitation Act, 1963, which prescribes the limitation of three years from the date when the right, to sue first accrues to obtain a declaration. Under Article 65, the period of limitation prescribed for filing a suit for possession 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. It is further held - 18 - RSA No.172 of 2020 that the suit for possession would be governed by Article 65 of the Limitation Act, 1963.
19. The learned counsel also relied upon the judgment of the Delhi High Court in the case of VIDUR IMPEX AND TRADERS PVT. LTD. AND OTHERS v. PRADEEP KUMAR KHANNA AND OTHERS reported in MANU/DE/1799/2017, and brought to the notice of this Court paragraph Nos.117, 118 and 119, wherein discussed the judgment of the Apex Court in the case of C. NATRAJAN v. ASHIM BAI AND OTHERS reported in MANU/SC/8018/2007 with regard to the pleadings whether Article 58 or Article 65 of the Limitation Act applies. It is observed in paragraph No.118 that if Article 58 is to apply, the period of limitation shall be three years from the date on which the right to sue first accrues; but if Article 65 applies, the period would be substantially longer, i.e., 12 years from when the possession became adverse.
20. In paragraph No.119 discussed the judgment of the Apex Court in the case of C. Natrajan (supra), wherein it is held that the suit which has been filed for possession, as a consequence of declaration of the plaintiff’s title, Article 58 will have no application and extracted paragraph No.16 of the said - 19 - RSA No.172 of 2020 judgment, wherein it is held that merely because a plaintiff in such a suit also specifically claims the relief of declaration of title, cannot be a ground to treat him differently and reduce the period of limitation available to him from that provided of twelve years, to three years.
21. The learned counsel brought to the notice of this Court paragraph No.122, wherein it is observed that under Article 65 it is settled law that the period of limitation starts from when there is a clear and unequivocal threat to the right claimed by the plaintiff. An ineffective or innocuous threat may not be sufficient to start the period of limitation; the threat gives rise to a compulsory cause of action if it “effectively invades or jeopardizes” the right claimed by the plaintiff. Prior to the suit being held to be barred by Article 65, it is necessary that the possession of the defendant must be shown to be adverse to the plaintiff. Merely because the defendant is in possession is not sufficient, such possession must be hostile to the plaintiff.
22. The learned counsel also brought to the notice of this Court the judgment of the Apex Court in the case of C. Natrajan (supra), wherein it is held that limitation will not - 20 - RSA No.172 of 2020 commence unless there has been a clear and unequivocal threat to right claimed by person.
23. Having heard the respective learned counsel and on perusal of the material available on record and also considering the principles laid down in the judgments referred supra by both the learned counsel and also the grounds urged in the second appeal, the following substantial questions of law arise for the consideration of this Court: (i) Whether both the Courts have committed an error in invoking Article 65 of the Limitation Act instead of Article 58 of the Limitation Act?. (ii) Whether both the Courts have committed an error in granting the relief of declaration and possession against the material on record ignoring both oral and documentary evidence placed on record and such finding amounts to perversity?.
24. Having considered the first substantial question of law framed by this Court, this Court has to consider the pleadings of the parties. The plaintiff in the suit has contended that the plaintiff has acquired the suit schedule landed property under registered gift deed dated 29.01.1996 executed by one - 21 - RSA No.172 of 2020 Thimmappa S/o late Nyathappa and delivered the possession of the suit land on the same day. The plaintiff relied upon the gift deed and seeks the relief of declaration to declare that the plaintiff is the owner of the suit schedule property and the defendant is interfering with the possession and also directing the defendant to pay the cost as well as to direct the defendant to deliver the possession of the suit schedule property, if for any reasons the Hon’ble Court holds that the defendant is in possession of the suit schedule property. The defendant in the written statement took the specific defence that the possession has been delivered in his favour in terms of the sale agreement dated 11.12.1991 and he has been in possession of the suit schedule property. The same is pleaded in the earlier suit in O.S.No.36/2004 and the said suit was dismissed and thereafter an appeal was filed and in the said appeal also took the permission to file a suit and accordingly suit is filed for the relief of declaration and injunction and if the Court comes to a conclusion that the plaintiff is not in possession, order for delivery of possession.
25. Having considered the pleadings of the parties, it is not in dispute that the property originally belongs to - 22 - RSA No.172 of 2020 Muniyamma W/o Nyathappa and she had purchased the same vide sale deed dated 11.06.1943. There is no dispute that the property belongs to Muniyamma and she passed away leaving behind two sons i.e., Venkatappa and Thimmappa. The plaintiff seeks the relief of declaration and possession based on the gift deed dated 29.01.1996 executed by Thimmappa. The defendant is claiming right in respect of the suit schedule properties based on the sale agreement dated 11.12.1991, which was executed by the first son of Muniyamma i.e., Venkatappa. It is also not in dispute that earlier the plaintiff had filed a suit in O.S.No.46/1999 which is re-numbered as O.S.No.36/2004, wherein he has claimed the relief of permanent injunction and the same was dismissed and no relief of possession was claimed in the earlier suit. It is also not in dispute that permission was sought to file a fresh suit in R.A. and permission was granted to file a fresh suit and accordingly within four months of the permission, suit is filed for the relief of declaration and possession. Both the Courts have given the finding that Article 65 applies and not Article 58, as contended by the learned counsel for the appellant.-. 23 - RSA No.172 of 2020 26. The learned counsel for the appellant would vehemently contend that when the suit is filed in the year 1999 itself and when the specific defence was taken in the earlier suit filed for the relief of bare injunction that he has been in possession based on the sale agreement dated 11.12.1991 and cause of action accrues, ought to have filed the suit within three years invoking Article 58 of the Limitation Act. It is not in dispute that in the earlier suit in O.S.No.36/2004, the Court has given the finding that the plaintiff has not proved the possession and hence the suit was dismissed. Hence, comprehensive suit is filed for the relief of declaration and possession.
27. The learned counsel for the appellant mainly relies upon the judgment of the Apex Court in the case of L.C. HANUMANTHAPPA (SINCE DEAD) REPRESENTED BY HIS LEGAL REPRESENTATIVES v. H.B. SHIVAKUMAR reported in (2016) 1 SCC332 wherein the Apex Court in paragraph No.29 held that in the original written statement itself dated 16.05.1990, the defendant had clearly put the plaintiff on notice that it had denied the plaintiff’s title to the suit property. A reading of an isolated paragraph in the written statement, - 24 - RSA No.172 of 2020 namely, para 2 by the trial court on the facts of this case has been correctly commented upon adversely by the High Court in the judgment under appeal. The written statement indicates that the defendant had not accepted the plaintiff’s title and also amendment was sought and amended and hence right to sue for declaration of title first arose on the facts of the present case on 16.05.1990 when the original written statement clearly denied the plaintiff’s title and hence comes to the conclusion that declaration of title would have been become time barred. In this case only suit is filed for declaration and not possession.
28. The judgment of the Apex Court in the case of Murugan (supra), which has been relied upon by the learned counsel for the appellant that is also a case of sale made by the guardian of the property belonging to the minor and the Court comes to the conclusion that limitation starts immediately after attaining the majority of the minor i.e., within three years. Even in the case of death of a minor and attaining majority within three years comes to the conclusion that Article 60 applies and suit has to be filed within three years when right accrues questioning sale deed.-. 25 - RSA No.172 of 2020 29. The judgment of the Apex Court in the case of Nazir Mohamed (supra) is also with regard to limitation with regard to permissive possession and also suit for recovery of possession of immovable property and there must be pleading with regard to the limitation, otherwise the Court is obliged to dismiss the suit filed after expiry of period of limitation even though the plea of limitation may not have been taken in the defence.
30. On the other hand, the learned counsel for the respondent relied upon the judgment of the Delhi High Court in the case of Vidur Impex and Traders Pvt. Ltd. (supra) and also judgment of the Apex Court in the case of C. Natrajan (supra), wherein also discussed with regard to whether Article 58 applies or Article 60 applies.
31. This Court would like to refer to Article 58 of the Limitation Act i.e., suits relating to declarations Part III. To obtain any other declaration time is mentioned as three years when the right to sue first accrues. Article 65 with regard to Part V for possession of immovable property or any interest therein based on title, the period of limitation is 12 years when - 26 - RSA No.172 of 2020 the possession of the defendant becomes adverse to the plaintiff.
32. Having considered the material available on record, the defendant claims the possession based on the sale agreement dated 11.12.1991, and when the suit is filed by the plaintiff for bare injunction in the earlier suit in the year 1999, he comes up with a plea that he has been in possession consequent upon the sale agreement executed by the brother of the executant of the gift deed.
33. The defendant claims the possession based on the sale agreement dated 11.12.1991 and when the suit was filed by the plaintiff for the relief of bare injunction, in the earlier suit in the year 1999, he come up with the plea that he has been in possession consequent upon the sale agreement executed by the brother of the executant of the gift deed and written statement was filed on 27.10.1999 and based on the material available on record, the Court has given the finding that the plaintiff has not been in possession of the suit schedule property and hence, he has sought for the relief of declaration and consequential relief of possession in alternative after obtaining the permission from the Appellate Court in regular - 27 - RSA No.172 of 2020 appeal. However, it is clear that in the earlier suit itself the Court comes to the conclusion that he has not been in possession hence, it is clear that the suit is filed for the relief of declaration and possession. It is important to note that when the plaintiff stated that gift deed was executed by the son of Muniaymma who is the absolute owner of the property and claims that he became the absolute owner of the property based on the said gift deed.
34. The defendant claims that he has been in possession of the suit schedule property consequent upon the sale agreement dated 11.12.1991 and the same is also pleaded in the earlier suit as well as in the subsequent suit. But suit is for the relief of declaration and possession. If the suit is for the simplicitor for the relief of declaration, the very contention of the counsel for the appellant that limitation is for a period of three years can be accepted. When the suit is for the relief of declaration and possession and when the interest of the plaintiff is adverse consequent upon the sale agreement which the defendant relies upon, Article 65 applies and not Article 58 as contended by the counsel for the appellant.-. 28 - RSA No.172 of 2020 35. The Apex Court in the case of PRAVIN JETHALAL KAMDAR referred supra held that 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. Under Article 65, the period of limitation prescribed for filing of a suit for possession of immovable property or any interest therein based on the title is 12 years from the date when possession of the defendant becomes adverse to the plaintiff.
36. In the case on hand, the plaintiff is seeking the relief of declaration based on the gift deed executed by Thimmappa who is the son of Muniyamma. The defendant claims the right based on the agreement of sale. As on the date of execution of agreement of sale, the mother was not alive and it is not in dispute that the property belongs to Muniyamma since she has purchased the property in the year 1943 and she passed away leaving behind two sons that is Venkatappa and Thimmappa. On perusal of sale agreement, it discloses that an amount of Rs.12,000/- was received and balance was payable within a period of two years but the additional payment of Rs.3,000/- also paid in view of the endorsement found in the sale agreement. But the said sale - 29 - RSA No.172 of 2020 agreement was not enforced before the Court, thus, the sale agreement will not create any title in favour of the defendant. Admittedly, the defendant categorically admitted that he has not enforced the sale agreement. It is also emerged in the evidence that as on the date of entering into the sale agreement, the executant of the sale agreement is not the absolute owner of the suit property. Apart from that, the suit property was also standing in the name of his brother Thimmappa and all the revenue records are also standing in the name of Thimmappa, but Thimmappa is not a party to the said sale agreement and subsequent to the execution of the alleged sale agreement, the said Venkatappa also passed away. When such being the case and when the possession is with the defendant, the Trial Court also comes to the conclusion that possession is with the defendant and when the relief is sought for the declaration based on the title of gift deed and possession is also based on the title. Thus, both the Courts have not committed any error in invoking Article 65 hence, the very contention of the counsel for the appellant that both the Courts ought to have invoked Article 58 cannot be accepted and the same is not for only the simplicit of the declaration and it is for the relief of comprehensive relief of declaration and - 30 - RSA No.172 of 2020 possession. The judgments relied upon by the respondent’s counsel are applicable to the case on hand and not the judgments relied upon by the appellant since the suit is filed for the relief of declaration and possession. Hence, I do not find any force in the contention of the appellant counsel that Article 58 applies and not Article 65 and hence the first substantial question of law is answered accordingly.
37. The other contention of the counsel for the appellant is that both the Courts have committed an error when the defendant pleaded specifically that he has been in possession of the suit schedule property based on the sale agreement and ought not to have granted the relief of declaration as well as possession and the very approach of both the Courts is erroneous. No doubt, the defendant has pleaded that the possession is based on the agreement of sale and he has not enforced the said sale agreement and no title has been confirmed in favour of the defendant based on the said sale agreement and he also not enforced the same before the Court of law and also not established before the Court since the witness who has been examined before the Trial Court also says that he was not aware of the said transaction and in his - 31 - RSA No.172 of 2020 presence, the said transaction was not taken place. When such material is available before the Court and also in the cross- examination, DW1 categorically admitted with regard to the execution of the gift deed by the other brother of the vendor of the defendant that gift deed has been executed and this material is also taken note of by both the Courts. There is no dispute with regard to the fact that the suit property was originally belonged to Muniyamma and also categorically admitted that at no point of time, the revenue documents are standing in the name of the said Venkatappa and he categorically admits that all the documents are standing in the name of Muniyamma and her son Thimmappa after the death of the mother and also he is not aware of having paid the tax by the said Venkatappa and also admits that katha was transferred in the name of the plaintiff in the year 1996, but he also claims that he has questioned the same and the Deputy Commissioner directed him to approach the Civil Court. It is also elicited in the cross-examination that the said Thimmappa executed the gift deed in favour of Krishnappa, i.e., plaintiff and subsequently the plaintiff got transferred the katha in his favour. He also admits that when he made the payment of Rs.12,000/- and Rs.3,000/- the sale deed was not executed - 32 - RSA No.172 of 2020 since no documents were standing in the name of his vendor and also admits that he has not given any notice to his vendor and he has also not given any notice to the said Thimmappa after the death of his vendor to come and execute the sale deed and also he has not filed any suit. All these materials are considered by both the Courts and merely because he is having the sale agreement, same does not convey any title or any right in respect of the suit schedule property and the plaintiff has claimed the relief of declaration based on the gift deed and gift deed was executed by Thimmappa in the year 1996 and he was only the sole surviving son as on the date of the execution of the gift deed in favour of the plaintiff hence, I do not find any perversity in the findings of both the Courts and both the Courts have given anxious consideration to the material available on record and given concurrent finding. Unless perversity is found, the question of invoking Section 100 of CPC does not arise. Hence, I answer second substantial question of law in the negative.
38. In view of the discussions made above, I pass the following: - 33 - RSA No.172 of 2020
ORDERThe appeal is dismissed. Time of one month is given to the appellant/defendant to handover the possession in favour of plaintiff/respondent. If the appellant/defendant fails to deliver the possession within one month, the plaintiff/respondent is at liberty to enforce the decree in accordance with law. In view of dismissal of the appeal, I.A., if any does not survive for consideration, the same stands disposed of. Sd/- JUDGE ST, MD, SN List No.:
1. Sl No.:
3.