Ramakrishna, J.
1. This is a defendants' appeal against the Judgment and decree dated 13-6-1988 passed by the 14th Additional City Civil Judge, Bangalore City in O.S.No. 2536 of 1983.
2. in this appeal, we will refer to the parties by the ranks assigned to them in the trial Court.
3. The plaintiff filed the above suit against defendants 1 to 6 seeking for declaration that he is the owner of the plaint schedule property and the settlement deed dated 7-10-1976 executed by defendant-1 in favour of defendants 2 and 3 is not binding on the plaintiff, for mandatory injunction to direct defendants 1 and 2 to effect registration of the document dated 18-7-1975 executed by defendants 1 and 2 in favour of the plaintiff in the Office of the Sub-Registrar, Basavanagudi, Bangalore-4 and, on their failure to do so, to direct the said document to be registered by the Court, for permanent Injunction restraining defendants 1 to 3 from collecting rents from defendants 4 to 6 or in the alternative to restrain them from leasing or otherwise dealing with the schedule property, for recovery of possession of the schedule property and for mesne profits.
4. According to the allegations found in the plaint, the plaintiff is the brother of defendant-1 and K. Aswathanarayana Setty (elder brother). The plaintiff, defendant-1, K, Aswathanarayana Setty and their father Abbayya Setty were in the joint family. On the death of Abbayya Setty, the three brothers continued to be in the joint family. The premises bearing No. 3 (New No. 12) situate on Reservoir Streets Basavanagudi, Bangalore-4 was the joint family property acquired by the plaintiff and defendant-1 in the year 1962 in the name of defendant-1 when their father Abbayya Setty was alive. It continued to be so even after the death of their father. Thereafter, the plaintiff and defandant-1 attempted to make some adjustments to divide the family properties and ultimately after several negotiations and discussions including a reference to an Arbitrator, a partition deed came into existence on 18-7-1975. The said deed provided that the entire property bearing No. 12 belonged to the joint family to be shared by the plaintiff and defendant-1, while the other brother K. Aswathanarayana Setty had no share in it. The plaintiff and defendant-1 accepted and acted upon the said partition deed dated 18-7-1975 and It was agreed between the two that defendant-1 should execute a deed whereby his half share in the suit schedule property was to be conveyed to the plaintiff in consideration of Rs. 30,000/- and accordingly a partition deed was drafted on a stamp paper on 18-7-1975 by the defendants, signed and executed by the parties thereto and the other brother K. Aswathanarayana Setty attested it. The document was deposited with the plaintiff for being presented to the Sub-Registrar and to have it registered on the next date. Further, defen-dant-1 and the plaintiff besides their brother K. Aswathanarayana Setty also submitted themselves to the arbitration by an Advocate of Bangalore and accordingly another agreement to that effect was also drafted by defendant-1 and signed by all the parties. Thereafter, by a letter of notice of attornment, defendant-1, who was collecting rents from the tenants viz,, defendants 4 to 6 occupying three shops in the premises in question, intimated them that the premises in their occupation having fallen to the share of the plaintiff, they should recognise the plaintiff as the owner thereof and pay rents to him directly. This fact was intimated to them by defendant-1 by his letter dated 25-7-1975. Thereafter, three legal notices dated 12-8-1976 were issued to defendants 4 to 6 demanding payment of arrears of rent.
The plaintiff thereafter presented the partition deed in the Office of the Sub-Registrar, BasavanagudI for getting It registered. The Sub-Registrar instead of treating it as a partition deed, treated the same as a deed of conveyance as it intended to convey half share of defendant-1 in the suit schedule property and therefore insisted upon payment of additional stamp duty of Rs. 1,144/- which the plaintiff indeed remitted to the Government Treasury on 7-11-1975. The Sub-Registrar thereafter issued notices to defendants 1 and 2 to appear before him for registration of the document and to admit the registration thereof. However, defendants 1 and 2 deliberately abstained from appearing before the Sub-Registrar and to have the document registered inspite of service of several notices on them. This ultimately resulted in the Sub-Registrar refusing to register the document and accordingly he passed an order on 18-3-1976 and the plaintiff was informed with an endorsement to that effect on 19-3-1976. Thereafter the plaintiff filed an appeal before the District Registrar Bangalore, in R.A.No. 1 of 1976-77, on 19-4-1976 for compulsory registration of the document and for seeking other reliefs. In the said appeal, two witnesses were examined on behalf of the plaintiff. The case was posted to 15-7-1983 for the evidence of the plaintiff. On that day, however, the Presiding Officer did not sit and the plaintiff was informed by the Bench Clerk that another date of hearing would be notified as was the practice on such occasions. However, the said case appears to have been adjourned to 16-7-1983 which the plaintiff was not aware of. On 16-7-1983 the District Registrar dismissed the appeal. Though the plaintiff later made an application for restoration of the said appeal, that application also came to be dismissed in limine even without hearing. The fact that both the appeal and the application for restoration of the appeal were dismissed was Intimated to the plaintiff's Advocate by a separate endorsement dated 4-8-1983 which the plaintiff's Advocate received on 10-8-1983. Since the appeal before the District Registrar concluded finally in this fashion, the plaintiff had no other remedy than to file the present suit.
However, in utter disregard of the obligations, acts and representations culminating in their estoppel, defendant-1 appears to have created a registered document dated 7-10-1976 in favour of defendants 2 and 3 in respect of a part of the suit schedule property, indeed, the remaining portion of the suit schedule property is in the possession of the plaintiff from the beginning and the plaintiff and defendants are thus in joint possession of the entire property actually and instructively. The Deed of Settlement dated 7-10-1976, according to the plaintiff, is not binding on him. The rents of the premises from defendants 4 to 6 are being recovered by defendants 1 and 2 inspite of an attornment letter issued to defendants 4 to 6 by the plaintiff. Thus there is disclaimer of legal notice in respect of recovery of rents and thus they are liable to be ejected from the premises on that ground forthwith.
5. Defendants 1 to 3 filed their written statement, inter alia, taking the defence as follows:-
It was admitted that there was joint family consisting of Abbayya Setty, Kartha (father), plaintiff, defen-dant-1 and K. Aswathanarayana Setty. They constituted a coparcenary. But it was denied that the property described in the plaint schedule was a joint family property. According to them, the plaint schedule property was personal and absolute property of defendant-1 having been acquired as his personal acquisition under a registered deed of 1962. The khata of the said property also stands in the name of defendant-1. The allegation that defendant-1 acquired the property from the funds of the joint family was denied.
No doubt, it was admitted that a registered Partition Deed came into existence on 18-7-1975 between defendant-1 and the plaintiff and their elder brother K. Aswathanarayana Setty. But according to them, the subject matter of Partition Deed of 18-7-1975 is situate in Lakkur village, Malur Taluk, Kolar District and when this registered Partition Deed in respect of the joint family properties of the said village came into existence, a lot of pressure was brought to bear from various quarters including the Counsel advising the parties to make a reference to the plaint schedule property as a joint family property of the plaintiff and defendant-1 inspite of the fact that defendant-1 objected to do so. However, the Partition Deed dated 18-7-1975 was no doubt registered for which defendant-1 had a lot of reservations as the distribution of the properties, was not in terms of either the discussions or the arbitration of the parties concerned and their Counsel. Hence, any reference made in the Partition Deed dated 18-7-1975 regarding the character of the plaint schedule property was not binding on these defendants.
It is alleged that on account of the interference of the Advocate appearing for the plaintiff in the arbitration, defendant-1 had to yield to the Deed of Partition dated 13-7-1975 showing the plaint schedule property as the joint family property of the plaintiff and defendant-1 and the said recital was agreed to be given up subsequently according to the discussions and deliberations that took place between the plaintiff, defen-dant-1 and their brother K. Aswathanarayana Setty.
It was also mentioned that the agricultural lands situate in Lakkur village were given to their mother Smt. Venkatalakshmamma during her life time and on her death, it should become the absolute property of the plaintiff. Smt. Venkatalakshmamma died in the year 1978 and thereafter the plaintiff himself was enjoying exclusively that item of property referred to above without parting with either the produce or the income thereof and after the demise of Smt. Venkatalakshmamma the plaintiff sold the said property to his advantage for Rs. 40,000/- by executing a sale deed in favour of one Hanumanthappa. In fact, the plaintiff received Rs. 65,000/- from Hanumanthappa on 21-5-1984. The claim put forward by defendant-1 and K. Aswathanarayana Setty to this item of property after the death of their mother, was negatived and it was in that context the Partition Deed dated 18-7-1975 came to be modified on the basis of the subsequent oral agreement among the plaintiff, defendant-1 and K. Aswathanarayana Setty to the effect that the plaint schedule property belongs to defendant-1, it being his self-acquired property, and the plaintiff has absolutely no right, title or Interest in respect of the suit schedule property and in this connection a lot of discussions and deliberations took place in the Office of the Advocate appearing for the plaintiff and the Advocate also attested the earlier Partition Deed dated 18-7-1975.
Thereafter, according to the defendants, an agreement came to be entered into among the plaintiff, defendant-1 and K. Aswathanarayana Setty by which the plaintiff has to pay Rs. 43,000/- to defendant-1 being the difference of the value, of the share of defendant-1 in the plaint schedule property within four months from the date of agreement i.e., on 22-11-1974. This factum, according to the defendants, has been suppressed by the plaintiff. It is stated that in these days, the value of the properties in Bangalore has gone up and the present value of the suit schedule property is about four lakhs. The plaintiff wielded pressure from his Advocate who managed to obtain a document in the nature of Partition Deed dated 18-7-1975 giving a go-by to what was agreed upon by them on 22-11-1974, According to the defendants, since the plaintiff failed to pay the consideration of Rs. 43,000/- as agreed upon being the difference of value of defendant-1's share in the suit schedule property, he lost his right, title and interest in the suit schedule property and this was the reason why the defendants did not appear before the Sub-Registrar for execution of the document and to obtain registration. It is stated that the document dated 18-7-1975 cannot be said to be a Partition Deed but it was a deed of conveyance in favour of the plaintiff and therefore the Sub-Registrar did not register the document and it is not known whether the additional duty payable was paid by the plaintiff or not. The valuation of the suit was not proper and the appeal before the District Registrar was rightly rejected.
The suit as brought is not maintainable as it is barred by time since the document dated 18-7-1975 giving cause of action was not acted upon within the time and therefore taking into account that cause of action, the suit is barred by time.
6. Defendants 4 to 6 also filed their written statement in support of the defence taken by defendants 1 to 3.
7. On the basis of the above pleadings, the trial Court framed the following issues;-
(1) Does the plaintiff prove that he became entitled to get the document of 18-7-1975 registered by defendants in his favour?
(2) Does plaintiff prove that he was put in constructive possession of the suit schedule property immediately after the execution of the said deed?
(3) Does defendant-1 prove that he has acquired the suit schedule property as his self-acquisition and that plaintiff has no right in it?
(4) Does defendant-1 prove that he could convey absolute title on defendants 2 and 3 under the registered settlement deed dated 7-10-1976?
(5) Do defendants 1 to 3 prove that the two documents dated 18-7-1975 executed by defendant No. 1 as regards suit subject matter are not binding on them and confer no right on plaintiff?
(6) Does defendant No. 1 prove the agreement of 22-11-1974, if the said agreement in force and binding on parties to it?
(7) Do defendants prove that plaintiff is debarred from asking for any reliefs because of his failure to carry out the terms of the agreement dated 22-11-1974?
(8) Do defendants 1 to 3 prove that plaintiff has lost his right to seek registration of the document of 18-7-1975 executed in his favour by defendant No. 1 by virtue of proceedings before the District Registrar, Bangalore.
(9) Do defendants prove that plaintiff is estopped from seeking the reliefs in this Court?
(10) Do defendants prove that the partition deed of 18-7-1975 between plaintiff and first defendant was not executed by defendant No. 1 and is vitiated by undue influence and (fraud) and can be avoided to him?
(11) is the suit property valued?
(12) To what reliefs?
Two additional issues were framed by the trial Court on 2-4-1986, as follows:-
'10(a) Does defendant No. 1 prove that there was an oral agreement subsequent to 18-7-1975 between him, plaintiff and Aswathanarayana Setty not to enforce the right of the plaintiff acquired under the said partition deed dated 18-7-1975?
10(b) Whether the plaintiff's suit is barred by time?
8. In order to prove his case, the plaintiff examined three witnesses Including himself as P.W.3 and got marked Exs.P-1 to P-41. Defendants 1 and 2 examined themselves as D.Ws.1 and 2 respectively and got marked Exs.D-1 to D-114.
9. The trial Court on considering the evidence on record - both oral and documentary - answered issue Nos. 1 and 2 in the affirmative and issue Nos. 3 to 10(b) in the negative. As regards issue No. 11, the Court held that the plaintiff paid additional Court fee subsequently. Thus, the suit of the plaintiff came to be decreed as prayed for. Hence, this appeal.
10. Sri L.S. Venkatakrishna, learned Counsel appearing for the appellants-defendants 1 to 3, urged that the suit was barred by time as it was not filed within 30 days from the date of refusal of the registration by the Sub-Registrar and therefore the suit was not maintainable and that the relief of declaration that certain Deed of Settlement which came Into existence in favour of defendant-3 subsequent to 18-7-1975 was not binding on the plaintiff, was a relief which was barred by time as the suit was filed more than three years after the coming into existence of the Deed of Settlement. The learned Counsel, in support of his contention relies upon the decision of a Division Bench of the Andhra Pradesh High Court in the case of FIRM OF SIVDUTT RAI GULAB RAI v. UNION OF INDIA to canvass the proposition that pursuit of a remedy by way of appeal cannot be a ground for condonation of delay if it was the wrong remedy which he pursued. He further urged that since the suit for specific performance was not brought within three years, Article 54 of the Limitation Act, 1963 is attracted. He next contended that the document, Ex.P-3 was a Partition Deed and therefore the trial Court could not have decreed the suit for specific performance. He lastly urged that the consenting witness to the document in question having not been examined, having regard to Rule 71(d) of the Karnataka Registration Rules, 1965 (the Rules for short), the question of registering the document would not arise.
11. We will first refer to the Decision relied upon by the learned Counsel for the appellants as to the first contention that the suit is barred by time as it was not filed within 30 days from the date of refusal of the registration by the Sub-Registrar. A Division Bench of the Andhra Pradesh High Court dealing with Section 14 of the Limitation Act, 1908 held as follows:-
'There cannot be a general rule that if a party pursued a wrong remedy on the wrong advice of Counsel that would afford a ground for the party claiming exemption from limitation of the period spent in pursuing a wrong remedy. There can be no general doctrine that a party could claim exemption from limitation seeking shelter under the wrong advice of a Vakil.'
The facts and circumstances arising out of the Judgment referred to above are entirely different from the facts and circumstances in the case on hand. Therefore, the decision in Firm Sivdutt Rai's case is of no assistance to the appellants. In order to understand the correctness of the contention on this point, It is necessary to extract Section 14 of the Limitation Act, 1963 which reads:
'14. Exclusion of time of proceeding bona fide in Court without jurisdiction - (1) in computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.'
12. Firstly, having regard to the provisions of Sections 71, 72 and 73 of the Registration Act, 1908 (the Act for short), it is clear that on refusal of registration of a document by the Sub-Registrar, any aggrieved person may file an appeal before the Registrar within a period of 30 days from the date of the order refusing to register the document. In the instant case, the plaintiff filed R.A.No. 1 of 1976-77 before the Registrar within a period of 30 days from the date of refusal of registration of the document by the Sub-Registrar, as already noticed in the above paragraphs. Unfortunately, the Registrar dismissed the appeal on the ground that the appellant was absent on the date of hearing. Though an application for recalling such an order was made, the Registrar dismissed the said application in limine without hearing. Therefore, the question is whether the petitioner was pursuing the remedy which could be referred to Section 14 of the Limitation Act. Having regard to the scheme of the Act and the Rules, there was no other remedy for the plaintiff except to file an appeal before the Registrar and the appeal having been dismissed as stated above for non-prosecution, the suit was filed within a period of 30 days from the date of dismissal of the appeal. There is no dispute of this fact. In view of Section 14 of the Limitation Act extracted above, it cannot be said that the plaintiff was pursuing a wrong remedy. On the other hand, as we have already pointed out, he was pursuing a remedy as provided under the Act. As there was no other remedy open to him, immediately after the dismissal of the appeal, he filed the present suit within a period of 30 days. Therefore, having regard to the language employed in Section 14 of the Limitation Act, we must hold that the plaintiff was prosecuting with due diligence the appeal before the Registrar and therefore that period must be excluded in computing the period of limitation. If that period is excluded, then the suit was filed well within time. The trial Court was right in recording a finding in favour of the plaintiff on this point.
13. In VENKAPPA K.T. v. KRISHNARAJAPURAM GROUP VILLAGE PANCHAYAT, Sabhahit, J., as he then was, held as follows:-
'In the absence of averment in the plaint that the previous proceeding (before the revenue authorities) failed for want of Jurisdiction, Section 14 of the Act could not be applied,'
14. In the instant case, the defendants have not specifically taken the contention that the plaintiff was pursuing a wrong remedy by filing an appeal before the Registrar and therefore time spent in the disposal of the appeal must not be excluded. In other words, in the absence of such averment, there was no reason why the trial Court should record a finding on this point. It is in this context, the plaintiff relied upon the above Judgment of this Court- Even applying the decision of this Court in Venkatappa's case, the contention of the learned Counsel for the defendants must fall to the ground.
15. As we have noticed in the earlier paragraphs, the plaintiff filed the suit not only for a declaration that he is the owner of the suit schedule property but also for a relief of specific performance accrued to him under the document, Ex.P-3, besides for a declaration that the Settlement Deed dated 7-10-1976 which 2. 1987(1) KLJ 570 came into existence subsequently is not binding on him. If we take into account the reliefs sought for by the plaintiff in the suit and the remedy he pursued both, before the Sub-Registrar and the Registrar, the Appellate Authority, then, no doubt, having regard to Section 54 of the Limitation Act, dealing with the specific performance of contract, three years period must be computed not from the date on which the Sub-Registrar refused to register the document, Ex.P-3 but from the date on which the appeal came to be terminated by the Registrar. Therefore, if we take into account the date on which the appeal came to be dismissed by the Registrar, then within a period of 30 days from the date of dismissal of the appeal, the suit was filed. Therefore, we must hold that even applying Article 54 of the Limitation Act, the suit is well within time, inasmuch as the suit is filed for specific performance within three years from the date on which the appeal came to be dismissed by the Registrar. In view of what is discussed above, the first contention of the learned Counsel for the defendants has to be rejected.
16. Dealing with the next contention that Ex.P-3 is a Partition Deed and therefore the trial Court could not have decreed the suit for specific performance, having regard to the conduct of the parties particularly the defendants having not acted upon the Partition Deed, Ex.P-3 in that they failed to execute the document before the Sub-Registrar as agreed to by them, the plaintiff had to seek relief of specific performance by way of abundant caution. Therefore, there is nothing wrong in the trial Court granting the said relief sought for by the plaintiff. There is one more aspect of the matter that is on issue No. 10 referred to the undue influence and fraud as pleaded by the defendants, at page 74 of the Judgment, the trial Court discussed it at length and held the said issue in favour of the plaintiff. Therefore, the conclusion reached by the trial Court in favour of the plaintiff must be held to be correct. Since the defendants went back on the Deed of Partition, Ex.P-3, there was no alternative for the plaintiff but to seek the relief of specific performance. Therefore, we find no substance in this contention also.
17. Dealing with the last contention that since the consenting witness has not been examined, having regard to Rule 71(d) of the Rules, the trial Court ought not to have decreed the suit, this must be noticed only for rejecting the same, inasmuch as Rule 71(d) is only directory and not mandatory. It is nobody's case that the contents of Ex.P-3 were not proved. On the other hand, it is the case of the plaintiff that the defendants refused to act upon the document, Ex.P-3. Therefore, even if the consenting witness had not been examined by the trial Court, it would not result in injustice to the defendants. We do not see any substance in this contention also.
18. In the result, the appeal fails and is dismissed.
ORDER ON THE ORAL APPLICATION MADE
SEEKING LEAVE TO APPEAL TO THE
SUPREME COURT
After the Judgment was pronounced in the above appeal, Sri L.S. Venkatakrishna, learned Counsel for the appellants, made an oral application for certificate of fitness to appeal to the Supreme Court. We do not think the question decided by us has any general importance calling for a decision by the Supreme Court., We have only followed the settled law on the subject in the light of the decisions of this Court.
We, therefore, refuse the Certificate.