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Karnataka High Court · body

2010 DIGILAW 741 (KAR)

H. D. Hanumanthappa v. Mohammed Sab

2010-06-22

A.N.VENUGOPALA GOWDA

body2010
Judgment The plaintiff – appellant, filed suit against the defendants – respondents, for relief of declaring him as the absolute owner of plaint schedule property, permanent injunction restraining the defendants from interfering with his possession and enjoyment of suit property and for a direction to the defendants by way of a mandatory injunction to make necessary applications to the revenue officials and get the katha of the schedule property restored in his name and for consequential reliefs. 2. In a nutshell, the case of the plaintiffs is follows: The plaint schedule property i.e., 11 acres and 24 guntas of land in Sy.No.11/2 of Hosanayakanahalli village, Davanagere Taluk, belonged to Thimmanna S/o Vaddara Dasanna, his grand father, who died prior to 1936. The katha of the suit property was mutated to the name of the plaintiff, when he was a minor. Because of famine and non availability of job in the village, the plaintiff moved out and settled at Davanagere. Even then, he was visiting the village and was looking after the cultivation of the suit property. Recently, when he wanted to raise loan for agricultural operations against the security of the suit property, he applied for copies of the records and came to know that, a sale deed dated 19.06.1940 has been executed by his grandmother and uncle Akkamma and Giriyappa, in favour of Aziz Sab and Fakruddin Sab. Defendants 1 to 4 have made applications to the revenue officials stating that, they are the owners of the suit property, having derived title from their vendors i.e., Aziz Sab and Fakruddin Sab. It is alleged that, in collusion with the revenue officials, the defendants have got the katha of the suit property mutated in their respective names. He approached the revenue officials seeking rectification and he was issued an endorsement on 21.8.94, to approach the Civil Court. Plaintiff claims that neither Akkamma nor Giriyappa, had any sort of right, title or interest over the suit property and even if they have executed a document in favour of Aziz Sab and Fakruddin Sab, the same will not bind him, since the said persons had no title to the suit property. Consequently, neither Aziz Sab and Fakruddin Sab nor the defendants have derived any right, title or interest in the suit property. The defendants were approached to seek rectification of the mistake committed by the revenue officials. Consequently, neither Aziz Sab and Fakruddin Sab nor the defendants have derived any right, title or interest in the suit property. The defendants were approached to seek rectification of the mistake committed by the revenue officials. They refused and also threatened the plaintiff of dire consequences, if he comes near the suit property and interferes with their alleged possession. 3. Defendant No.3 filed written statement, which was adopted by the other defendants. The defendants have traversed all the material averments made in the plaint. In addition, it is stated that, defendant No.2 is the wife of defendant No.3 and defendant No.1 is the younger brother of defendant No.2. It has been stated that, the propositus of the family of the plaintiff was one Sagarada Dasanna, who had a son by name Thimmanna. He had a wife by name Akkamma. Said Thimmanna had two sons by name Dasanna and Giriyappa. Plaintiff and one Thimmanna were the sons of Dasanna. The suit property belonged to said Sagarada Thimmanna. Prior to 1935, the said Dasanna and his son Thimmanna, incurred debts with Sheshappa and Dafedar Hanuma Nayaka. With a view to discharge the said debts, Dasanna and his son Thimmanna and the father and uncle of plaintiff, namely, Dasanna and Giriyappa, mortgaged an extent of 10 acres 24 guntas of land in Sy. No.11 and an extent of 29 acres 5 guntas in Sy. No.82, in favour of one Venkappa, by means of a simple mortgage. The plaintiff and his brother Thimmanna along with their uncle Giriyappa, sold an extent of 1 acre 26 guntas in resurvey No.11/2 in favour of Aziz sab and his brother Fakruddin Sab for consideration of Rs.800/-. The plaintiff and his brother Thimmanna were minors and hence their paternal grandmother Akkamma acted as guardian for them and executed the conveyance deed. The executants sold the said land with a view to discharge the debt owed to Ujjain Venkappa and others who had obtained decrees in O.S.Nos.375/38-39 and 579/38-39. The purchasers, namely, Aziz Sab and Fakruddin Sab, were put in actual possession of 11 acres and 28 guntas of land and they were in peaceful possession and enjoyment of the property. Aziz Sab and Fakruddin Sab got divided their land including Sy.No.11 and that, Aziz Sab got 5 acres 34 guntas and Fakruddin Sab got 5 acres 34 guntas. The purchasers, namely, Aziz Sab and Fakruddin Sab, were put in actual possession of 11 acres and 28 guntas of land and they were in peaceful possession and enjoyment of the property. Aziz Sab and Fakruddin Sab got divided their land including Sy.No.11 and that, Aziz Sab got 5 acres 34 guntas and Fakruddin Sab got 5 acres 34 guntas. Defendant No.3 along with his sons Basha Sab, Abdul Hamid Sab and Nazeer Sab, purchased 5 acres 34 guntas from Aziz Sab and others for consideration of Rs.2,000/- and he was put in actual possession of the land, the katha of which was mutated in his name and that, he is in peaceful possession and enjoyment of the said property. Defendant 2 purchased an extent of 20 guntas of land in Sy.No.11/2 under a sale deed dated 11.5.1979, executed by defendant 1 and his brother Rahamat Ali, for a consideration of Rs.2,000/-. The first two sons of Fakruddin Sab got to their share, the land in Sy.No.10/2 and the last two sons namely, defendant No.1 and Rahamat Ali got to their share, the land bearing Sy.No.11. 20 guntas of land in Sy.No.11 purchased by defendant No.2, belongs to defendant No.1 and his brother Rahamat Ali. The mutation in respect of the said item of the property is entered in the revenue registers and defendant No.2 is peacefully cultivating the said property. Defendant No.4 purchased an extent of 1 acre 20 guntas of land in Sy.No.11 under a sale deed dated 04.10.1980 executed by Rahamat Ali for consideration of Rs.10,000/-and the katha has been transferred in his name and he has been enjoying the said property as the owner thereof. The lands purchased by defendant No.2 and retained by defendant No.1, are contiguous. Neither the plaintiff nor his predecessors had entered the suit lands, on and after the execution of the sale deed dated 19.6.1940. They have improved the property, which is now valuable and an irrigated land, on account of which, the plaintiff has instituted the suit, which is frivolous. They raised bar of limitation and also objections with regard to sufficiency of Court fee. Alternatively, it was claimed that, they have perfected their title to the suit property, having continuously enjoyed the same for more than 12 years, without any obstruction by anybody including the plaintiff. 4. They raised bar of limitation and also objections with regard to sufficiency of Court fee. Alternatively, it was claimed that, they have perfected their title to the suit property, having continuously enjoyed the same for more than 12 years, without any obstruction by anybody including the plaintiff. 4. Based on the pleadings, the Trial Court raised the following issues: i) Whether the plaintiff proves his title to the suit schedule property? ii) Whether he further proves his lawful possession over the suit schedule property on the date of the suit? iii) Whether he further proves interference or obstruction by the defendant as alleged? iv) Whether he is entitled for declaration and injunction sought for? v) Whether he is entitled for mandatory injunction to the revenue officials for restoring his name in the revenue records as claimed? vi) To what reliefs the parties are entitled? 5. During trial, plaintiff deposed as PW-1. Exs.P1 to P7 were marked. 3rd defendant deposed as DW-1. 4th defendant deposed as DW-2. Exs.D1 to D7 were marked. After appreciation of the evidence, learned Trial Judge has held that, the plaintiff has failed to prove his title and his possession and enjoyment of the suit property and hence, answered issues 1 to 5 in the negative and has dismissed the suit. The said judgment and decree has been questioned in this appeal. 6. Sri B.S. Shashi Bhushan, learned advocate appearing for the appellant, reiterating the case put forth in the Trial Court, vehemently contended that, the learned Trial Judge has not appreciated the case of the plaintiff in the correct perspective and that, the suit has been dismissed, on wholly erroneous view of the matter and hence, interference is called for. 7. Sri T.B. Kiran Kumar, learned counsel for the respondents, on the other hand, contended that, the Trial Court has omitted to frame an issue relating to bar of limitation, though there is specific plea raised in the written statement. He submitted that, the parties have understood each other’s case and have placed the evidence on record of the Trial Court, which is sufficient to enable this Court to pronounce the judgment, by resettling the issue and the omission to frame the said issue, appears to be only on account of inadvertence. He submitted that, the parties have understood each other’s case and have placed the evidence on record of the Trial Court, which is sufficient to enable this Court to pronounce the judgment, by resettling the issue and the omission to frame the said issue, appears to be only on account of inadvertence. Learned counsel submitted that, in exercise of power under R 24 of O 41 CPC, issue relating to limitation may be raised and the case be determined finally. Learned counsel referred to the evidence of PWs 1 and 2, Ex.P1 which shows the entry relating to execution of the sale deed dated 19.06.1940 by the guardians of the plaintiff i.e., the sale deed at Ex.D2, which has remained unchallenged. It was contended that, the plaintiff has failed to produce any material in proof of his claim that, he is in possession and enjoyment of the suit property, which is agricultural land. If the plaintiff were to be in possession of the suit property, he could have produced the RTC or examined witnesses. It is contended that, the plaintiff cannot depend upon the alleged weakness of the defence, but has to establish his case, independently of the case of the defendants. According to the learned counsel, the plaintiff has failed to prove his case and hence, the Trial Court is justified in dismissing the suit. 8. I have perused the record. The following points arise for determination: (i) Whether the suit is barred by limitation? (ii) Whether the evidence placed on record has been correctly appreciated by the Trial Court? (iii) Whether any interference with the impugned judgment and decree is called for? Re: Point (i):- 9. Sri B.S. Shashi Bhushan, firstly, contended that, though limitation was raised as a plea in the written statement, the same was not pressed by the defendants and hence, the Trial Court did not frame specific issue regarding the bar of limitation. Secondly, in the absence of proper pleading relating to limitation, particularly when the question of limitation is a mixed question of law and fact, it cannot be said that the suit is barred by limitation. Secondly, in the absence of proper pleading relating to limitation, particularly when the question of limitation is a mixed question of law and fact, it cannot be said that the suit is barred by limitation. Lastly, the bar of limitation cannot be decided for the first time in appeal, since the issue regarding limitation having not been raised, the plaintiff did not had the opportunity to lead evidence and if the issue relating to bar of limitation is required to be considered, the impugned judgment and decree may be set aside and the suit remanded to the Trial Court, to raise and try the issue relating to the bar of limitation, if any, to the suit. 10. There is no merit in the above contentions. The defendants in their written statement have specifically contended that, the suit is barred by time. It has also been averred that, the claim of the plaintiff cannot be allowed in law as he slept over the matter for over 5 decades. It was averred that, the plaintiff nor his predecessors have ever set their feet in the suit land, since the date of sale deed dated 19.6.1940. 10.1 The learned Trial Judge has not taken notice of S.3(1) of the Limitation Act, 1963 (for short ‘the Act’), which reads as follows: “S.3 Bar of limitation:- (1) Subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence”. 10.2 It is well settled that, S.3(1) of the Act, casts a duty upon the Court, to dismiss the suit or appeal or an application, if made after the prescribed period, although, limitation, is not set up as a defence. 11. In the instant case, as already noticed, such a defence has been set up in the written statement. It is no doubt true that, no distinct issue was framed in that regard by the Trial Court. In view of the specific defence taken, it was the duty of the learned Trial Judge to have raised a distinct issue with regard to bar of limitation. Issue relating to limitation is a jurisdictional issue and goes to the root of the matter. In view of the specific defence taken, it was the duty of the learned Trial Judge to have raised a distinct issue with regard to bar of limitation. Issue relating to limitation is a jurisdictional issue and goes to the root of the matter. The mandate of S.3 of the Act is that, it is the duty of the court to dismiss any suit instituted after the prescribed period of limitation irrespective of the fact that, limitation has not been set up as a defence. If a suit is ex-facie barred by law of limitation, a Court has no choice but to dismiss the same even if the defendant has not raised the plea of limitation. In the case of Manindra Land and Building Corporation Ltd. vs. Bhutnath Banerjee – AIR 1964 SC 1336 , it has been held that; “S.3 of the limitation enjoins a Court to dismiss any suit instituted, appeal preferred and application made, after the period of limitation prescribed therefore by Schedule I, irrespective of the fact whether the opponent had set up the plea of limitation or not. It is the duty of the Court not to proceed with the application if it is made beyond the period of limitation prescribed. The Court had no choice and if in construing the necessary provisions of the limitation Act or in determining which provisions of the limitation Act applies, the subordinate Court comes to an erroneous decision, it is open to the Court in revision to interfere with that conclusion as that conclusion led the Court to assume or not to assume the jurisdiction to proceed with the determination of that matter”. 12. Plaintiff admits the execution of the sale deed dated 19.6.1940 by Akkamma and Giriyappa in favour of Aziz Sab and Fakruddin Sab. PW-1 has admitted that the katha of the suit property is in the name of the defendants. He has stated that, he came to know of the fact of sale of the suit property in favour of the defendants, when he was of the age of 10 to 12 years. According to him, at that time, he had no knowledge of the fact that, a suit is required to be filed. He has deposed that, upon coming to know that he has the right in the property, he filed the suit. According to him, at that time, he had no knowledge of the fact that, a suit is required to be filed. He has deposed that, upon coming to know that he has the right in the property, he filed the suit. On the date plaintiff – PW-1 deposed i.e., 31.10.1998, he has stated that, his age is 71 years. That means, the plaintiff must have attained age of majority around about 1948. The suit has been filed on 7.11.1994 i.e., after about 40 years of the removal of the legal disability. 13. Suits relating to declaration fall within Part III of the Schedule to the Act, which has within it, Articles 56 to 58. The period of limitation prescribed with regard to the suits relating to decrees and instruments is put under Par IV of the Schedule to the Act, which has within it, Articles 59 and 60. Article 60 is with regard to the setting aside a transfer of property made by the guardian of a ward and the period of limitation is 3 years, commencing from the time when the ward attains majority. 14. In the case of Prem Singh and Others vs. Birbal and Others – AIR 2006 SC 3608 , it was held that, there is a presumption that a registered document is validly executed and therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. It has been further held that, limitation is a Statute of repose. It ordinarily bars a remedy, but does not extinguish a right. The only exception to the said rule is to be found in S.27 of the Act, which provides that at the determination of the period prescribed thereby, limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. It has been further held therein as follows: “29. If a deed was executed by the plaintiff when he was a minor and it was void, he had two options to file a suit to get the property purportedly conveyed thereunder. He could either file the suit within 12 years of the deed or within 3 years of attaining majority. Here, the plaintiff did not either sue within 12 years of the deed or within 3 years of attaining majority. He could either file the suit within 12 years of the deed or within 3 years of attaining majority. Here, the plaintiff did not either sue within 12 years of the deed or within 3 years of attaining majority. Therefore, the suit was rightly held to be barred by limitation by the Trial Court. (Emphasis supplied) 15. It is a well settled principle of law that a void document is not required to be avoided, whereas, a voidable document must be. S.16 of the Contract Act provides that, any transaction which is an outcome of any undue misrepresentation, coercion or fraud, shall be voidable. If, however, a document is prima facie valid, a presumption arises in regard to its genuineness. 16. In the plaint, it has been averred that a sale deed dated 19.06.1940 is said to have been executed in favour of Aziz Sab and Fakruddin Sab, sons of Basha Sab by Akkamma and Giriyappa. It has been further averred that the execution of document by the said persons will not bind the plaintiff. Ex.P1 is the index of land which shows the sale of the suit property in favour of the Aziz Sab and Fakruddin Sab. Ex.D2 is the certified copy of the sale deed which has been executed on behalf of the plaintiff and his brother Thammanna, being minors, by their guardians – grandmother Akkamma and uncle Giriyappa. From the said documents and the averments in the plaint, it is clear that the sale of suit property belonging to the plaintiff and his brother has taken place during their minority, by their guardians. From the averments in the plaint, it is evident that the plaintiff, for all intent and purport, prayed for setting aside the deed of sale – Ex.D2. There is absolutely no record showing the possession and enjoyment of the suit property – an agricultural land by the plaintiff. If the plaintiff had been in possession of the suit property and had cultivated the same, there would have been entries in the revenue records. The plaintiff could have also produced kandayam payment receipts. He has not chosen to produce even revenue records in support of his possession or enjoyment of the suit property. If the plaintiff had been in possession of the suit property and had cultivated the same, there would have been entries in the revenue records. The plaintiff could have also produced kandayam payment receipts. He has not chosen to produce even revenue records in support of his possession or enjoyment of the suit property. The admission of the plaintiff / PW-1 that, he came to know of the sale of the suit property when he was of the age of 10 to 12 years and he being a minor, could not take steps, shows that he had the knowledge of the sale transaction of the suit property under Ex.D2. Since he had legal disability to institute a suit at the time from which the prescribed period is reckoned, he could have instituted the suit within the period prescribed after the disability has ceased as would otherwise have been allowed from the time specified therefore in the third column of the Schedule to the Act. Art.60 in Schedule to the Act is applicable to the instant case since the plaintiff is virtually seeking the setting aside of transfer of property made under Ex.D2, by his guardians. The prescribed period being 3 years on the ward attaining majority, the plaintiff ought to have instituted the suit before the expiry of three years period. According to Sri Shashi Bhushan, the date of birth of the plaintiff is 23.05.1920. If that be so, he has attained majority on 23.05.1938. The suit has been filed on 07.11.1994 i.e., after more than four decades. The plaintiff has not either sued within 12 years of execution of Ex.D2 or within 3 years of attaining majority – removal of legal disability. Hence, the suit is hopelessly barred by time. Re: Point No.(ii): 17. Though it is unnecessary to record any finding on other issues in view of the finding recorded on point No.(i), having heard the learned counsel on both sides with regard to the merits of the matter, I deem it appropriate to record my finding with regard to the contention that there is error and illegality committed by the Trial Court in the matter of appreciation of evidence. 18. Ex.P1 is the index of the land in respect of the suit property. It shows the sale transaction relating to suit property having taken place on 28.02.1960, 08.11.1965, 29.06.1940 and 11.04.1973. 18. Ex.P1 is the index of the land in respect of the suit property. It shows the sale transaction relating to suit property having taken place on 28.02.1960, 08.11.1965, 29.06.1940 and 11.04.1973. Said document also shows that there was mortgage of the property in favour of one Venkappa, S/o Ujjain Somanna for a sum of Rs.500/-. Said document also shows that the katha of the suit property has been mutated in the name of the plaintiff and upon the sale under the deed dated 29.06.1940, the katha having been mutated in the name of others i.e., M.R. No.12 of 1969-70. Ex.D2 is the sale deed dated 19.06.1940 executed on behalf of the plaintiff and his brother by his guardians – grand mother Akkamma and uncle Giriyappa in favour of Aziz Sab and Fakruddin Sab. Ex.D2 when perused, indicates that the property was sold to pay the decree amount in O.S. Nos.579/38-39 and 375/38-39. Ex.D2 corroborates to the entry in the remarks column of Ex.P1. There is virtually no cross-examination with regard to Ex.D2 in favour of the vendors of the defendants. Thus, the due execution of sale of the suit property (Ex.D2) by the guardians of the plaintiff in favour of the vendors of the defendants has remained unchallenged. In view of the non challenge to the said alienation and the bar of limitation, the right of the plaintiff over the suit property has extinguished in view of the operation of S.27 of the Act. 19. As already noticed, there is absolutely no evidence in support of the plaintiff’s claim, except the interested testimony of the plaintiff, that he is in possession and enjoyment of the suit property. On the other hand, defendants have produced Exs.D3 and D4 – RTC of suit property and Ex.D6 - the receipt patta book and Ex.D7 – tax paid receipts to show that they are in possession and enjoyment of the suit property. Hence, the plaintiff’s suit for permanent injunction has rightly been negatived by the Trial Court. 20. On the other hand, defendants have produced Exs.D3 and D4 – RTC of suit property and Ex.D6 - the receipt patta book and Ex.D7 – tax paid receipts to show that they are in possession and enjoyment of the suit property. Hence, the plaintiff’s suit for permanent injunction has rightly been negatived by the Trial Court. 20. With regard to the prayer for mandatory injunction to direct the revenue officials to restore the katha of the suit property in favour of the plaintiff, in view of the sale of the suit property by the guardians of the plaintiff on 19.06.1940, in favour of the vendors of the defendants and the subsequent sale of the suit property in favour of the defendants, the prayer of the plaintiff is misconceived and has been rightly negatived by the Trial Court. 21. Even upon re-appreciation of the evidence on record, the one and the only conclusions that can follow is that the plaintiff has failed to establish his claim and his suit has to fail. The judgment of the Trial Court is neither perverse nor illegal and does not call for interference, since it is based on correct appreciation of the evidence on the record and proper application of law to the established facts. In the result, the appeal fails and shall stand dismissed.