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2002 DIGILAW 59 (KAR)

CHIKKATHAYAMMA v. SIDDAIAH ALIAS SIDDEGOWDA

2002-01-22

V.GOPALA GOWDA

body2002
V. GOPALA GOWDA, J. ( 1 ) THE appellant was the first defendant, respondents 2 and 3 were defendants 2 and 3 and the first respondent was plaintiff in the Trial court. For the sake of convenience, the rank of the parties are referred to as in the Trial Court. ( 2 ) PLAINTIFF/first respondent filed the suit in O. S. No. 40 of 1986 for a declaration that the sale deed dated 13-1-1976 executed by defendants 2 and 3 in favour of the first defendant/appellant was not binding on him and for possession of the suit schedule property. The case of the plaintiff is that the suit schedule property is ancestral property; that after the death of his parents he went to his village to earn the livelihood; that the 2nd defendant, claiming to be the guardian of the plaintiff, along with defendant 3, sold the property in favour of the first defendant under a registered sale deed dated 13-1-1976. The plaintiff asserts that the 2nd defendant was neither his guardian nor was he lawfully appointed as such under the Guardians and Wards Act and hence the suit was filed to declare that the sale deed executed by defendants 2 and 3 in favour of the first defendant is not binding on him. The defendants resisted the suit by filing written statements. Defendants 2 and 3 contended that the plaintiff was brought up by defendant 2 and performed his marriage. It is asserted that the plaintiff has no right over the suit schedule property. The 2nd defendant being the only relative of the plaintiff, had every right to act as his guardian. It is further pleaded that the name of the plaintiff has been nominally mentioned in the sale dleed even though he has no right over the suit schedule property. In the written statement filed by the first defendant, similar stand is taken. On the basis of the pleadings, the Trial Court framed issues. Parties led evidence and produced documents in support of their respective case. After assessing the material placed on record, the Trial Court decreed the suit as prayed for by its judgment dated 19-12-1991. The appeal preferred by the first defendant/appellant in R. A. No. 4 of 1992 against the said judgment was dismissed by the first Appellate Court by its judgment dated 10-7-1998. After assessing the material placed on record, the Trial Court decreed the suit as prayed for by its judgment dated 19-12-1991. The appeal preferred by the first defendant/appellant in R. A. No. 4 of 1992 against the said judgment was dismissed by the first Appellate Court by its judgment dated 10-7-1998. Aggrieved by the same, the first defendant has filed this second appeal. ( 3 ) THIS appeal was admitted to consider the following substantial question of law. Are the Courts below justified in holding that the suit is not barred by limitation when admittedly the suit was not filed within three years after attaining the age of the authority by the plaintiff/first respondent? ( 4 ) HEARD the learned Counsels for the parties and perused the judgments and decrees of the Courts below. ( 5 ) THE only substantial question of law required to be considered in this appeal relates to limitation in filing the suit. Issue No. 7 was framed by the Trial Court in this regard. The Trial Court considered thesame and answered that the suit was filed within the period of limitation. The defendants contended that the plaintiff filed the suit in the year 1986 and the same was not within three years from the date of his attaining the majority. The Trial Court held that the 2nd defendant was not the guardian of the plaintiff, despite that she executed the sale deed along with defendant 3 in favour of the first defendant. The plaintiff pleaded that when he approached one Nanjunde Gowda for loan from whom his father had borrowed loan, he came to know about the sale deed executed by defendants 2 and 3 in favour of the first defendant. Within three years from the date of knowledge, the suit was filed. The trial Court observed that the defendants have admitted this fact. Hence, the Trial Court was right in holding that the suit was filed within the period of limitation and Article 60 of the Limitation Act is not applicable to the instant case. The first Appellate Court also concurred with the same. From the judgment of the first Appellate Court it is clear that at the instance of P. W. 3-Nanjunde Gowda the plaintiff has filed the suit after he came to know about the sale of the suit schedule property. The first Appellate Court also concurred with the same. From the judgment of the first Appellate Court it is clear that at the instance of P. W. 3-Nanjunde Gowda the plaintiff has filed the suit after he came to know about the sale of the suit schedule property. The findings of the Courts below are based on facts and there is no scope for interference with the concurrent findings. ( 6 ) I. A. Nos. I and II have been filed by the appellant/first defendant for amendment of written statement and to lead additional evidence. I have perused I. A. No. I filed for amendment of written statement. The amendment sought to be made has already been pleaded in the written statement and there is nothing new to be pleaded. The plea sought to be raised had already been answered by the Courts below against the appellant/first defendant. Hence, I. A. No. I is wholly unnecessary and the same is hereby rejected. ( 7 ) I. A. No. II is filed seeking permission to lead additional evidence by virtue of the amendment sought for in I. A. No. I. Since I. A. No. I is rejected, question of leading additional evidence does not arise. Consequently, LA. No. II also stands rejected. ( 8 ) 8. The appeal is dismissed. --- *** --- .