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2006 DIGILAW 697 (KAR)

O. LEELAVATHI v. M. NEELAKANTA NAIDU

2006-08-28

K.L.MANJUNATH

body2006
JUDGMENT These four appeals are arising out of a common orders passed on issues 7 to 9 and on maintainability of the suit. The appellants in these appeals were plaintiffs in O.S. Nos. 2045 to 2048 of 1997. Since the averments in the plaints in the four suits and the contentions in the written statements are similar, these appeals are heard together by consent of the learned Counsel appearing for both the parties. 2. Four suits were filed by the plaintiffs against different defendants and out of them defendants 1, 3, 4 and 5 are common in all suits and only the defendant 2 in the suits are different. They are, Doraiswamy Naidu in O.S. No. 2045 of 1997, T.N. Venkatesh in O.S. No. 2046 of 1997, E. Govinda Naidu in O.S. No. 2047 of 1997 and T. Krishnama Naidu in O.S. No. 2048 of 1997. 3. Four suits were filed by the plaintiff for the following reliefs: To cancel the sale deed dated 13-9-1993 executed by the 1st defendant in favour of the 2nd defendant in all the suits and to cancel the sale deed dated 15-9-1994 executed by the 2nd defendant in favour of defendants 3 to 5 and to direct the defendants 1 to 5 to vacate and put the plaintiffs in possession of plaint Schedule B property and to award future mesne profits at the rate of Rs. 50,000/- per month from the date of suit till the date of realisation. 4. The subject-matter of the suits is in regard to old Sy. No.4, Resurvey No. 4/2 of Jaraabande Kaval, Yelahanka Hobli, Bangalore North Taluk, measuring 4 acres 14 guntas and 44 sq. yards corresponding to present BDA site Nos. 22/1, 22/2, 22/3 and 22/4. 5. The defendants contested the suit. In the written statement it was contended that the suits filed by the plaintiffs were not maintainable as the same are bad for misjoinder and non-joinder of necessary parties and that the suits filed by the plaintiffs is barred by limitation, since the suits are filed by the plaintiffs beyond the period of 3 years from the - date of transactions and the Court fee paid by the plaintiffs is insufficient and that the suits filed by the plaintiffs are not maintainable as the plaintiffs have no right title or interest over the property. In addition to the above four grounds, they also raised several grounds in their written statement. 6. To dispose of these appeals, this Court is of the opinion that there is no necessity to refer to the entire plaint averments and the averments made in the written statements, as these appeals can be disposed of on a simple question. 7. The Trial Court considering the pleadings of the parties framed the following issues in all the suits: 1. Whether late D. Omprakash (the father of plaintiffs 2 to 6 and husband of 1st plaintiff) was the owner of the entire 'A' schedule property? 2. Whether the plaintiffs prove that the General Power of Attorney executed by them in favour of 1st defendant was not a legally valid document? 3. Whether they had the right to revoke/cancel the General Power of Attorney? 4. Whether the G.P.A. had been duly cancelled even prior to the execution of sale deed by 1st defendant in favour of 2nd defendant? 5. Whether the plaintiffs prove that they are not bound by the sale by 1st defendant in favour of the 2nd defendant and the sale by the 2nd defendant in favour of defendants 3 to 5 in respect of "B" Schedule property? 6. Whether defendants 3 to 5 prove to be the bona fide purchasers of B schedule property from the 2nd defendant for valuable consideration and have further perfected their title by virtue of the sale deed executed by the BDA? 7. Whether the suit is barred by limitation? 8. Whether the valuation of the "B" Schedule property for the reliefs sought and the Court fee paid are not sufficient? 9. Whether the suit is bad for non-joinder of necessary parties? 10. Whether the sale deed dated 13-9-1993 by 1st defendant in favour of 2nd defendant and dated 15-9-1994 by the 2nd defendant in favour of defendants 3 to 5 are null and void? 11. Are the plaintiffs entitled to possession of "B" Schedule property and mesne profits as sought? 12 What decree/order? 8. The Trial Court treated issues 7 to 9 as preliminary issues. The Trial Court heard the learned Counsel appearing for both the parties on issues 7, 8 and 9 and thereafter an order has been passed by way of common order on issues 7 to 9 and also in regard to the maintainability of the suits. 9. 8. The Trial Court treated issues 7 to 9 as preliminary issues. The Trial Court heard the learned Counsel appearing for both the parties on issues 7, 8 and 9 and thereafter an order has been passed by way of common order on issues 7 to 9 and also in regard to the maintainability of the suits. 9. After hearing the learned Counsel for the parties on issues 7 to 9, the Trial Court held that the suits are not maintainable and that the suits are barred by limitation and that the suits are bad for non-joinder of necessary party, namely, BDA. In regard to issue 8, the Trial Court held that the said issue has to be considered after recording the evidence and ultimately the suits were dismissed by the Trial Court on 21st March, 2001. 10. Bring aggrieved by the dismissal of the suits, the plaintiffs have filed these appeals. 11. I have heard Sri Vijayashankar, learned Senior Counsel for the appellant and Sri Shantharaju, learned Senior Counsel appearing for the respondents 3 to 5. 12. According to the learned Senior Counsel appearing for the appellants, the Trial Court has committed a serious error in dismissing the suit, as not maintainable without framing an issue and giving an opportunity for the plaintiffs to address their arguments in regard to the maintainability of the suit. He further contends that the findings on the question of limitation is also bad in law. According to him, whether the suit is barred by limitation or not is a mixed question of facts and law and without recording the evidence, the Trial Court should not have dismissed the suits as barred by limitation. He lastly contends that even if the Trial Court was of the opinion that the BDA was a necessary and proper party to adjudicate the matter in controversy, in view of Order 1, Rule 10(2) of the Civil Procedure Code, the Trial Court should not have dismissed the suit and should have given an opportunity for the plaintiffs to implead the BDA as a party. Therefore, he requests this Court to set aside the order passed in all the four suits by the Trial Court. 13. Therefore, he requests this Court to set aside the order passed in all the four suits by the Trial Court. 13. Per contra, the learned Senior Counsel Sri Shantharaju, contends that though an issue has not been framed by the Trial Court in regard to the maintainability of the suits, the Trial Court based on the pleadings of the parties has properly held that the suits filed by the plaintiffs were not maintainable. According to him, the property in question was acquired by the then City Improvement Trust Board, either the plaintiffs or the predecessors-in-title had no right over the suit lands due to the acquisition of the property and therefore the plaintiffs could not have filed the suit for the reliefs sought by them without impleading the BDA as a party. According to him, the suit was also barred by limitation taking into consideration the date of registration of the sale deeds executed by the 1st defendant in favour of the defendant 2 in all the suits. Relying upon Article 59 of the Limitation Act, 1963, he contends that the time has to be reckoned from the date of registration of the sale deeds and therefore the Trial Court is justified in dismissing the suits and that there was no necessity for the Trial Court to record the evidence in order to give its findings on the issue of limitation. Therefore, he requests this Court to dismiss these appeals. 14. Having heard the Counsel for the parties, the following points would emerge for consideration of this Court in these appeals are: (1) Whether the Trial Court was justified in dismissing the suits as not maintainable without framing any issue? (2) Whether the evidence was required to be recorded in order to give its finding on the question of limitation? (3) Whether the Trial Court was justified in dismissing the suits having come to the conclusion that the BDA was a necessary party, without giving an opportunity for the plaintiffs to try BDA as an additional defendant? 15. The learned Counsel appearing for both the parties fairly submit that the defendants in their written statement had raised the question of maintainability of the suits and they further admit that the Trial Court had not framed an issue in regard to the maintainability of the suits. 16. 15. The learned Counsel appearing for both the parties fairly submit that the defendants in their written statement had raised the question of maintainability of the suits and they further admit that the Trial Court had not framed an issue in regard to the maintainability of the suits. 16. When an issue has not been framed by the Court based on the pleadings of the parties, this Court is of the opinion that the Trial Court has committed a serious error in giving its finding on the question of maintainability without framing any issue and giving an opportunity for both the parties to address their arguments on the question of maintainability. Therefore, the first point has to be held in favour of the appellants. 17. According to Sri Shantharaju, in view of the Article 59 of the Limitation Act, 1963, the suits filed by the plaintiffs was beyond the period of three years and therefore it was barred by limitation 'and that there was no necessity for the Trial Court to record the evidence in order to give its finding on this issue. Article 59 reads as hereunder: “Description of suit Period of Time from which period begins to run limitation 59. To cancel or set Three years When the facts entitled the plaintiff aside an instrument or to have the instrument or decree decree or for the cancelled or set aside or the contract rescission of a contract rescinded first become known to him” From the reading of Article 59, the limitation starts from the date of knowledge to the plaintiffs and it does not run from the date of execution of the instrument. 18. According to the plaintiffs, the plaintiffs were not aware of the execution of the sale deed by the 1st defendant in favour of the 2nd defendant. But they came to know of the same, only when the defendants filed their written statement in O.S. No. 7284 of 1994 and in O.S. No. 6538 of 1994. Until the written statement was filed in those suits, the plaintiffs were not aware of the execution of the sale deeds by the 1st defendant in favour of the other defendants. It is no doubt true that if a document is registered before the Sub-Registrar, such document has to be treated as a public document. According to Mr. Until the written statement was filed in those suits, the plaintiffs were not aware of the execution of the sale deeds by the 1st defendant in favour of the other defendants. It is no doubt true that if a document is registered before the Sub-Registrar, such document has to be treated as a public document. According to Mr. Shantharaju, the moment the sale deed is registered, it has to be presumed that registration of such document is known to the general public and that the limitation to file a suit would commences from the date of registration and the limitation has to be reckoned from the date of registration of the document. But the contention of the learned Counsel for the respondents cannot be appreciated by this Court, because if any document is registered behind the back of the true owner in a clandestine manner, owner of a property is not expected to go before the Sub-Registrar's Office and verify whether any third party has executed a document in respect of his property to a third party. In other words, owner of the property cannot keep a watch or stand before the Sub-Registrar like a watchdog to verify whether any person has executed any document conveying his property to a third party. From reading of Article 59, the Court has to hold that the limitation run from the date of the knowledge. Therefore, in order to find out the actual date of knowledge, the evidence is required to be recorded by the Trial Court as it is a mixed question of fact and law. The date of knowledge is a question of fact and without there being an evidence, the Trial Court was not justified in dismissing the suit as barred by limitation. Accordingly, the said point is also held against the respondents. 19. The last point to be considered by this Court in regard to the dismissal of the suits due to non-joinder of BDA. The Trial Court while dismissing the suit as not maintainable has mainly considered that the BDA was necessary party. If the Trial Court was of the opinion that BDA was a necessary party, at any point of time, under Order 1, Rule 10(2) of the Civil Procedure Code can direct the party to add or strike a party from the suit. If the Trial Court was of the opinion that BDA was a necessary party, at any point of time, under Order 1, Rule 10(2) of the Civil Procedure Code can direct the party to add or strike a party from the suit. Therefore, the Trial Court should have given an opportunity for the plaintiffs-appellants to implead the BDA if it is of the opinion that the BDA is a necessary party. According to Mr. Vijayashankar, the BDA is not a necessary party considering the nature of prayer in the suits. 20. Whether BDA is a necessary party or not, at this stage this Court need not express its view, since the matter has to be remitted back to the Trial Court and the matter has to be reheard by the Trial Court since the Trial Court has not framed an issue in regard to the maintainability of the suit. 21. In the result, these appeals are allowed. The judgment and decree passed in O.S. Nos. 2045 to 2048 of 1997 are hereby set aside and the suits are remitted back to the Trial Court directing the Trial Court to frame an issue in regard to the maintainability of the suits and treat the same as a preliminary issue and after giving opportunity for both the parties, the Trial Court is directed to hear the preliminary issue in regard to the maintainability of the suit and if the Court is of the opinion that the suits filed by the plaintiffs-appellants are maintainable, then the question of limitation can be considered along with other issues as the same requires the recording of evidence. The parties are directed to bear their costs.