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2015 DIGILAW 1138 (KAR)

Leharchand v. Gulabchand

2015-09-30

ANAND BYRAREDDY, S.SUJATHA

body2015
JUDGMENT ANAND BYRAREDDY, J. 1. These appeals are heard and disposed of by this common judgment, as the appeals are all directed against the same judgment of the trial court. 2. The parties are referred to by their rank before the trial court, for the sake of convenience. 3. The appeal in R.F.A. No. 100016 of 2015 is filed by the legal representatives of the deceased defendant no. 2. The appeal in R.F.A. No. 100017 of 2015 is filed by the legal representatives of the deceased plaintiff no. 1. The appeal in R.F.A. No. 100018 of 2015 is filed by the legal representatives of the deceased defendant no. 1 and by defendants no. 3 and 4. The appeal in R.F.A. No. 100099 of 2015 is filed by Defendant no. 17. 4. The facts of the case are said to be as under:- The plaintiff, Gulabchand, aged about 58 as on the date of the suit, was said to be of unsound mind. The suit was brought on his behalf by his son, Nilesh. The plaintiff had died during the pendency of the suit. The plaintiff and defendants no. 1 to 4 were said to be the owners of property bearing CTS Nos. 361 and 366, Kusugal Road, Keshwapur, Hubli. The said properties measuring 3 acres 4 guntas and 1 acre 25 guntas, respectively, were said to be in the possession of the plaintiff and the said defendants to the extent of 5/8 share and M/s. Gadag Co-operative Cotton Sales Society, Defendant no. 17, was said to be in possession of the remaining 3/8share of the said properties. The boundaries to the said properties and other particulars were indicated in the Schedules to the plaint. The above said properties were said to be Watan properties, governed by the provisions of the Bombay Hereditary Offices Act, 1874 (Hereinafter referred to as the BHO Act, for brevity). The property bearing CTS No. 361 was said to have been obtained under a permanent lease dated 9.3.1920. And the property bearing CTS No. 366 was said to have been acquired under a lease deed dated 23.10.1915, for a term of 50 years, by the ancestors of Defendants no. 5 to 16, namely, Adiveppagouda, who is said to have held 50% share in the said properties, Basanagouda to the extent of 25% and Marigouda to the extent of 25%. 5 to 16, namely, Adiveppagouda, who is said to have held 50% share in the said properties, Basanagouda to the extent of 25% and Marigouda to the extent of 25%. The said lessees are said to have transferred the lease hold rights to others. It transpires that the property bearing no. 361 was at a point of time the subject matter of recovery proceedings and is said to have been brought to auction sale in terms of the decree. The father of the plaintiff, Shah Veljee Kanjee, is said to have purchased the same at the auction, held in the year 1941. The lease hold rights of the other property bearing no. 366, is also said to have been acquired by the father of the plaintiff from its erstwhile lessees, in the year 1943. The plaintiff's father is said to have expired on 2.12.1957. Immediately on his expiry one, K.H. Patil is said to have instituted arbitration proceedings against the family, for recovery of certain money. In lieu of the award amount the said Patil and another are alleged to have brought pressure on the family, to execute two sale deeds in favour of Gadag Cooperative Cotton Sales Society Limited, Gadag, and another society of Annigeri, as on 19.12.1957. The plaintiff and defendants no. 1 to 4 are said to have challenged the arbitration award in a civil suit in O.S. No. 9 of 1969. The same is said to have been decreed in their favour, as on 26.8.1977. In terms of the said decree, the plaintiff and his family members were declared owners of the lease hold rights to the extent of 5/8 share of the properties. The said judgment and decree is said to have been unsuccessfully challenged before this court and the Apex court, as well. In the above background, M/s. Eureka Developers, defendant no. 18, a partnership firm, said to be engaged in real estate business, allegedly with the active connivance of defendants no. 19 to 25, are said to have got instituted two civil suits in the Court of Civil Judge, (Senior Division), Hubli, in O.S. No. 364 of 2004 and O.S. No. 365 of 2004, as against the plaintiff and defendants no. 1 to 4 and defendant no. 17 seeking recovery of possession of the suit properties. 19 to 25, are said to have got instituted two civil suits in the Court of Civil Judge, (Senior Division), Hubli, in O.S. No. 364 of 2004 and O.S. No. 365 of 2004, as against the plaintiff and defendants no. 1 to 4 and defendant no. 17 seeking recovery of possession of the suit properties. It was claimed that the suit properties were entrusted to the plaintiffs therein, by defendants 5 to 16. This was vehemently denied by the said defendants, except defendant no. 7 and they had even complained to the court that they had made no such entrustment and even complained that they had not even authorised counsel representing them and that it was the handiwork of defendant no. 18, in making a false claim over the suit properties. The suits were however, dismissed as being barred by limitation, as on 29.1.2007. The same was said to have been challenged in appeals before this court in R.F.A. No 579 of 2007 and R.F.A. No. 580 of 2007, respectively, by defendant no. 7, claiming an extent of 25% in the suit properties. However, Defendants 5, 6 and 8 to 16 did not seek to appeal against the said judgment of the trial court. The said appeals have been subsequently dismissed as withdrawn, as on 2.2.2012. It was the plaintiff's assertion that defendants 5 to 16 had not disputed that the suit properties were Watan properties and any lease beyond the lifetime of the Wattandar was void, in terms of Section 5 of the BHO Act. And that the lease deeds of the year 1915 and 1920, in respect of the suit properties became void on the respective death of the lessors. Adiveppa gouda is said to have died on 8.2.1933, Mari gouda on 14.2.1947 and Basanna gouda on 17.8.2004. It is for this reason that their legal heirs never chose to recover possession of the properties from the subsequent transferees. And the same stood vested in favour of the plaintiff and defendants no. 1 to 4. Adiveppa gouda is said to have died on 8.2.1933, Mari gouda on 14.2.1947 and Basanna gouda on 17.8.2004. It is for this reason that their legal heirs never chose to recover possession of the properties from the subsequent transferees. And the same stood vested in favour of the plaintiff and defendants no. 1 to 4. It was also contended that though the said properties were said to have been re-granted to the family members of defendants 5 to 16, by virtue the BHO Act having been repealed with the coming into force of the Karnataka Village Offices Abolition Act, 1961 (Hereinafter referred to as the KVOA Act, for brevity), as per orders dated 31.3.1973 and 1.4.1973, the re-grantees were not in possession of the lands as on those dates. They were required to approach the competent civil court for recovery of possession, session within a period of 12 years from the date of order of re-grant. In the absence of any such suits, their rights stood extinguished. In the above circumstance, Defendant no. 18, Counsel aiming to have entered into an agreement dated 23.3.2001 with defendants no. 5 to 16, in respect of the properties is not tenable as they had no subsisting right to the properties as on that date. That the plaintiff, defendants no. 1 to 4 and defendant no. 17 had perfected their title to the property in terms of Section 27 of the Limitation Act, 1963. The plaintiff had also contended that a relinquishment deed said to have been executed by defendants no. 8 to 16 in favour of defendants no. 1 to 4, dated 8.3.2006 and 10.4.2006, were null and void, as the said defendants no. 8 to 16 had no subsisting right in the properties. And that the plaintiff was not even a party to the same. It was also contended that an agreement of sale dated 23.3.2001, set up to lay claim to the suit properties and an arbitration clause sought to be relied upon therein, was also not binding on the plaintiff. Apart from the fact that the same was blatantly fraudulent as the arbitrator named under the arbitration clause was the elder brother of the managing partner of defendant no. 18. And that the plaintiff was never a party to several proceedings in respect of the said agreement of sale and the arbitration proceedings. Apart from the fact that the same was blatantly fraudulent as the arbitrator named under the arbitration clause was the elder brother of the managing partner of defendant no. 18. And that the plaintiff was never a party to several proceedings in respect of the said agreement of sale and the arbitration proceedings. It was thus contended that the plaintiff being a co-owner of the suit properties to the extent of 1/5 share and since defendants no. 1 to 4 were seeking to alienate the same, the suit for partition and separate possession in respect of his share and for injunctory reliefs as against defendants 5 to 25, was filed. Defendants 1 to 4, (defendant no. 1 being represented by his legal representatives, as he died during the pendency of the suit) had filed written statement conceding the plaintiff's claim, had also sought partition of their respective shares and paid the necessary court fee in that regard. Defendants no. 5, 6, 8 and 10 to 16 had also conceded the claim of the plaintiff. Defendant no. 9, represented by his legal representatives, had adopted the written statement filed by defendants no. 5, 6, 8 and 10 to 16. Defendant no. 17 had also admitted the plaint averments, except for minor variations as to the manner of execution of sale deeds in its favour and as regards allegations made against one K.H. Patil. Defendants no. 18, 19 and 21 to 25 had filed their written statement to assert that the suit was barred by limitation and that the court fee paid was insufficient and that there was no adjudication to determine that the plaintiff was of unsound mind. It was contended that the suit being one for partition inter-se between the plaintiff and defendants no. 1 to 4 and defendant no. 27, the other defendants were not necessary parties to the suit. It was contended that the suit being one for partition inter-se between the plaintiff and defendants no. 1 to 4 and defendant no. 27, the other defendants were not necessary parties to the suit. It was asserted that there were a series of proceedings namely, three civil suits in O.S. No. 359 of 2006, O.S. No. 420 of 2006 and O.S. No. 52 of 2007 apart from an arbitration case in A.A. No. 3 of 2007, writ petitions in W.P. No. 1842 of 2007 and W.P. No. 66743 of 2009, appeals in M.F.A. No. 13599 of 2007 and M.F.A. No. 14061 of 2007, revision petitions in C.R.P. No. 494 of 2007 and 1106 of 2011, where the central issue that arbitration proceedings had validly commenced and the parties herein, except defendant no. 17, had been directed to resolve the dispute if any against defendants 18 to 25 ought to be resolved before the named arbitrator, namely, defendant no. 26, having been reaffirmed, the question of any adjudication in respect of the property which is the subject matter of the agreement of sale dated 23.3.2001, in this suit, would not arise. The grant of any relief against the defendants 18 to 25 also did not arise. It was urged that the suit was apparently a collusive one as between the plaintiff and defendants 1 to 17 and 27 and was intended to stall the arbitration proceedings. While denying the plaint averments, it was asserted that the family of defendants 5 to 16, had entered into an agreement of sale and had received the sale consideration reserved thereunder, by way of cheques. But had subsequently failed to complete the transaction. And in utter disregard of the agreement of sale, some of the owners had alienated their share of the suit properties in favour of the plaintiff and defendants no. 1 to 4 and 27. In view of the said dispute, the arbitration clause in the sale agreement has been invoked and the arbitration proceedings had commenced. It was further asserted that an assignee of the suit properties from Chandrashekar gouda Patil, Yellappa gouda Patil, Rajashekar gouda Patil and Prakash gouda Patil, is said to have filed the suit in O.S. No. 359 of 2006 as against defendants 18 to 25 on the same facts as canvassed by the plaintiff herein. It was further asserted that an assignee of the suit properties from Chandrashekar gouda Patil, Yellappa gouda Patil, Rajashekar gouda Patil and Prakash gouda Patil, is said to have filed the suit in O.S. No. 359 of 2006 as against defendants 18 to 25 on the same facts as canvassed by the plaintiff herein. An application under Section 8 of the Arbitration and Conciliation Act, 1996 (Hereinafter referred to as the AC Act, for brevity), having been filed by the said defendants, the same is said to have been allowed and the parties were relegated to the arbitration proceedings. The same having been question in a writ petition in W.P. No. 1842 of 2007, the same has been dismissed. It is stated that Yellappa gouda Patil sought to injunct the arbitration proceedings by filing a suit in O.S. No. 420 of 2006, the said suit also met the same fate as that of O.S. 359 of 2006, in the defendants having filed an application under Section 8 of the AC Act. Defendants 18 to 25 are said to have filed an application under Section 9 of the AC Act, in case no. A.A. No. 3 of 2007, which had been allowed by the District Court and confirmed in a common judgment rendered in the Civil Revision Petition C.R.P. No. 494 of 2007 decided along with the appeals in M.F.A. No. 13599 of 2007 and M.F.A. No. 14061 of 2007, by this court. It is hence asserted that the suit was filed only in order to scuttle the pending arbitration proceedings and was clearly contumacious and an abuse of process of court. It was also contended that after the property bearing no. 366 was regranted, Kyatanagouda Patil had initiated eviction proceedings against defendant no. 17 in respect of the said property, under the provisions of the Karnataka Rent Control Act, 1961. It is said that the present plaintiff and defendants no. 1 to 4 had got themselves impleaded and took up a defense that in terms of the judgment and decree in O.S. No. 9 of 1969, they had become owners of the suit property and other properties mentioned therein. Those proceedings had however, abated with the coming into force of the Karnataka Rent Act, 1999. 1 to 4 had got themselves impleaded and took up a defense that in terms of the judgment and decree in O.S. No. 9 of 1969, they had become owners of the suit property and other properties mentioned therein. Those proceedings had however, abated with the coming into force of the Karnataka Rent Act, 1999. Kyatanagouda Patil having died, his legal representatives are said to have then filed civil suits in O.S. No. 364 of 2004 and O.S. No. 365 of 2004, seeking recovery of possession. It is during the pendency of those proceedings, that some of the owners had executed relinquishment deeds in favour of defendants no. 1 to 4 and 27. And it is thereafter there was active collusion between the plaintiff and defendants 1 to 4 and 27. And it is also in the wake of the same that, defendants 5 to 16 even after having received the consideration under the agreement of sale dated 23.3.2001, had colluded with the plaintiff and defendants no. 1 to 4. It is also pointed out that the plaintiff and defendants 1 to 4 and 27 having lost their right over the properties in the year 1957 in favour of defendant no. 17, it is only in the year 2006 that they were able to recover possession of the same to the extent of 5/8share culled out by metes and bounds. They were thus not in possession of the land from 1957 to 2006. The attempt on the part of the said parties thereafter to have their names incorporated in the Mutation Register, has been negatived by the Joint Director of Land Records, on the ground that they are only lessees. That order has remained unchallenged. Hence the said defendants had sought for dismissal of the suit. In a rejoinder to the written statement of Defendants 18, 19 and 21 to 25, the plaintiffs have contended that the erstwhile owners of the suit properties, namely, defendants no. 5, 6, 8 to 16 having admitted the title of the plaintiffs in their written statement, the defendants 18, 19 and 21 to 25, who are claiming to be agreement holders in respect of the property have no say in the matter. 5, 6, 8 to 16 having admitted the title of the plaintiffs in their written statement, the defendants 18, 19 and 21 to 25, who are claiming to be agreement holders in respect of the property have no say in the matter. That the unsoundness of mind of the plaintiff was amply evidenced in other proceedings and that there was other material available on record in proof of that circumstance, the defendants could not join issue on the same. It was pointed out that the plaintiff and defendants 1 to 4 and 17 were not seeking partition of any lease hold rights, but were seeking partition as owners thereof. That the pleas raised as regards the arbitration proceedings was in fact, raised by way of an application in IA No. III before the Trial Court and it was held that the issues raised were beyond the scope of arbitration and could only be adjudicated in the suit and that order had been affirmed by this court. It is hence contended that the said pleas cannot be reagitated. It is pointed out that the defendant no. 18, company, have merely quoted the several paragraphs in the plaint and have merely denied the same, without any other qualification or a preamble. The denial of matters which are clearly matters of record that cannot be disputed, would indicate the dishonesty and irresponsible pleadings of the said defendants. On the basis of the above pleadings, the Trial Court had framed the following issues:- “1. Whether the plaintiff proves that he is a person of an unsound mind and disabled with sound disposing state of mind and therefore he is duly represented by his next friend? 2. Whether the plaintiff proves that the agreement of sale dated 23.3.2001 alleged to have been executed by defendant No. 5 to 16 in favour of defendant no. 18 is not only sham, bogus, fraudulent, but is also null and void, ab-initio, non-est and unenforceable in the eyes of law? 3. Whether the plaintiff proves that himself and defendant no. 1 to 4 and defendant no. 17 have perfected their title to the suit schedule properties by operation of law under section 27 of the Limitation Act? 4. Whether the plaintiff proves that the registered relinquishment deeds alleged to have been executed by defendant no. 8 to 16 in favour of defendant no. 1 to 4 and defendant no. 17 have perfected their title to the suit schedule properties by operation of law under section 27 of the Limitation Act? 4. Whether the plaintiff proves that the registered relinquishment deeds alleged to have been executed by defendant no. 8 to 16 in favour of defendant no. 1 to 4 dated 8.3.2006 and 10.4.2006 are also null and void ab initio and non-est in the eyes of law as he is not party to the said deeds? 5. Whether the plaintiff proves that the proceedings or any orders passed in previous litigations in A.A. No. 3 of 2007, A.A. No. 9 of 2007, O.S. No. 359 of 2006, M.F.A. No. 13599 of 2009, M.F.A. No. 14061 of 2007 and O.S. No. 52 of 2007 are not binding on him as he is not party to those proceedings? 6. Whether the plaintiff proves that he is entitled for perpetual injunction restraining the defendants No. 18 to 25 from enforcing the Sale Agreement dated 23.3.2001 alelged to have been executed by the defendant No. 5, 6, 7 and 16 in respect of the suit schedule properties? 7. Whether the plaintiff is entitled for partition and separate possession of his 1/5share in the suit schedule properties by metes and bounds? 8. Whether the plaintiff is entitled for the perpetual injunction restraining the defendant No. 5 to 25 from interfering with the suit schedule properties? Additional Issues dated 2.9.2014 1. Whether the suit is barred by limitation? 2. Whether the suit without seeking the declaration is not maintainable? 3. Whether the suit is bad for mis-joinder of parties? 4. Whether defendants No. 18, 19, 21 to 25 prove that this court has no jurisdiction to grant permanent injunction in view of the pendency of arbitral proceedings in respect of sale agreement dated 23.3.2001? Additional Issues dated 9.9.2014 5. Whether the defendant No. 1 proves that defendants No. 1(a) to (c) and defendant No. 2, 3 and 4 are having 1/5 share each in the schedule property? 6. Whether defendants No. 18, 19 and 21 to 25 prove that suit is to be restricted to the claim of plaintiff only and other defendants have no right to claim the share or other right in the schedule property? 7. 6. Whether defendants No. 18, 19 and 21 to 25 prove that suit is to be restricted to the claim of plaintiff only and other defendants have no right to claim the share or other right in the schedule property? 7. Whether defendants No. 1 to 4 prove that they are entitled for the share claimed in their written statement?” The trial court having answered Issue no. 1, 5 and additional issues no. 2, and 4 in the affirmative and having answered Issue no. 7 and additional issues no. 5 and no. 7, partly in the affirmative and having answered the remaining issues in the negative, has held that the plaintiff, through his class I heirs, was entitled to a 1/5 share in the leasehold rights to the plaint schedule properties. That defendants 1(a) to (c) and defendants 2 to 4 were entitled to 1/5 share, each, in the lease hold rights in respect of the suit properties and has dismissed the suit in respect of other reliefs sought for. It is that judgment which is under challenge in these appeals. 5. The learned counsel for the appellants would uniformly contend as follows:- That the only contesting party in the suit was defendant no. 18, represented by its partners, defendant nos. 19 to 25. The partnership firm was only an agreement holder of the suit properties under an agreement said to have been executed by the erstwhile owners, defendants No. 5 to 16, who have clearly admitted all the averments made in the plaint. There is no contest of the suit by the other defendants except defendant no. 18 and its partners. The plaintiffs had contended before the Trial Court that under Section 54 of the Transfer of Property Act, 1882, a mere agreement of sale did not create any interest in favour of defendant no. 18 and that it had no locus standi to contest the suit except the enforceability or otherwise of the sale agreement. The plaintiffs and defendants No. 1 to 4 had also claimed partition by metes and bounds. Defendant no. 18 had been made a formal party only for the purpose of consequential reliefs claimed by the plaintiffs restraining it from enforcing the said sale agreement on the ground that the same is ab initio, null and void as on the date of the agreement as the vendors had no subsisting title in the properties. Defendant no. 18 had been made a formal party only for the purpose of consequential reliefs claimed by the plaintiffs restraining it from enforcing the said sale agreement on the ground that the same is ab initio, null and void as on the date of the agreement as the vendors had no subsisting title in the properties. The Trial Court has ignored this point. No finding has been recorded on the locus standi of defendant no. 18, as contended by the plaintiff and defendant nos.1 to 4. Hence, the judgment and decree on issues No. 2 to 4 and also on issue no. 6 and 8 as well as the findings recorded on the other issues against the plaintiffs is vitiated in law and cannot be sustained on facts. Regarding the title of defendants 5 to 16, since the two suits in O.S. No. 364 and 365 of 2004 filed by them, seeking possession of the suit properties from the plaintiffs, defendant nos.1 to 4 and defendant no. 17 had been dismissed as barred by time and the said decree, having become final and binding between the parties, Section 27 of the Limitation Act, 1963 applied, thereby extinguishing their right in the suit properties. This position is clearly admitted by all the parties including defendants 5 to 16. Even Defendant no. 17, the Society, which was in joint possession of the suit properties along with plaintiffs and defendants No. 1 to 4 from 1957 till 2005 had clearly admitted the title of the plaintiffs and defendants No. 1 to 4 to the extent of 5/8 share, that is Schedule ‘B’ of the suit properties. In view of these clear admissions and the declared law, the Trial Court ought to have recorded a finding that the right of defendants 5 to 16 to the properties was extinguished long prior to the sale agreement in favour of defendant no. 18 and the said right vested statutorily and automatically in favour of the plaintiffs and defendants No. 1 to 4 and defendant no. 17. 18 and the said right vested statutorily and automatically in favour of the plaintiffs and defendants No. 1 to 4 and defendant no. 17. In view of the settled position in law that the period of 12 years for filing suits for possession expired immediately on the expiry of 12 years from the date of regrant of the suit properties in favour of defendants 5 to 16 under the KVOA Act in the year 1973 and 1982, the Trial Court ought to have recorded a finding regarding the limitation that in view of the settled proposition of law under the KVOA Act, that if the regrantees are not in possession of the suit properties as on the date of the regrant, their remedy was to file a suit for possession within 12 years based on title under Article 65 of the Limitation Act, 1963 from the date of regrant and that since the two suits were filed by them. In the year 2004, that is long after the expiry of 12 years from the date of regrant and the suits having been dismissed as barred by time, the court below erred in not applying Section 27 of the Limitation Act, 1963. The Trial Court had no power and jurisdiction to go into the question of the validity of the decree dated 29.1.2007, passed in O.S. No. 364 and 365 of 2004 nor the reasons assigned by the Trial Court while dismissing the said two suits on the ground of limitation, under Section 11 of the Code of Civil Procedure, 1908, on the doctrine of res judicata. Hence, the reasons assigned by the trial court for not applying Section 27 of the Limitation Act, 1963 cannot be sustained both in law and on facts. The Trial Court has recorded a finding, without any plea to that effect by any of the parties in their written statements, that there still existed a relationship of lessor and lessee between the defendants 5 to 16 on the one hand and the plaintiffs, defendant nos. 1 to 4 and the defendant no. 17 on the other hand. In O.S. No. 364 and 365 of 2004, the said leases of the years 1915 and 1920 in favour of the predecessors of the plaintiffs and others became void immediately on the death of the lessors who created the said leases. 1 to 4 and the defendant no. 17 on the other hand. In O.S. No. 364 and 365 of 2004, the said leases of the years 1915 and 1920 in favour of the predecessors of the plaintiffs and others became void immediately on the death of the lessors who created the said leases. The said leases beyond the life time of the lessors became void in law and the defendants in the said two suits were in unauthorised occupation of the land. The Trial Court completely misdirected itself in decreeing the suit for partition only in respect of the leasehold rights which leasehold rights have become void both under the BHO Act and KVOA Act. The suit lands got vested absolutely in the State Governments, as per the provisions of the KVOA Act, free from all encumbrances, thereby vitiating the leases as void and that the plaintiffs, defendants No. 1 to 4 and defendant no. 17 were unauthorised occupants of the suit properties. The suit properties vested in the State Government on 1.3.1963 till the lands were regranted. The erstwhile lessees cease to be the lessees with vesting of the land in the State Government. Hence, the finding of the court below that there existed a relationship of lessor and lessee cannot be sustained. The reasoning of the court below that the erstwhile lessees did not contend that they had become owners by virtue of Section 27 of the Limitation Act, 1963 in O.S. No. 9 of 1969 is, ex facie, without any basis and has been recorded without appreciating the fact that the said suit was filed long prior to the regrants. The reasoning of the court below that this contention was not taken up in O.S. No. 364 and 365 of 2004 and therefore, Section 27 does not apply is also unsustainable. The court has ignored the well established proposition of law that under Section 115 of the Evidence Act, 1872, there cannot be any estoppel against the law. The finding of the trial court was that the plaintiffs and defendants 1 to 4 should have sought declaration of title and since no declaration of title was sought in the suit, the suit is not tenable. Section 27 of the Limitation Act, 1963 clearly declared the extinguishment of title of defendants 5 to 16 and the title of the plaintiffs and defendants no. Section 27 of the Limitation Act, 1963 clearly declared the extinguishment of title of defendants 5 to 16 and the title of the plaintiffs and defendants no. 1 to 4 and defendant no. 17 to the suit properties. In view of this provision of law, which itself declared the legal status of the plaintiffs and the supporting defendants, no declaration could be prayed in the suit. The finding of the court below that section 27 is not applicable since the plaintiffs and other supporting defendants no. 1 to 4 were not in possession of the suit properties from 1957 till 2005 cannot be sustained, since defendant no. 17, which was admittedly in possession of the suit properties has clearly admitted the fact that the defendant no. 17 was in joint possession along with the plaintiffs and the supporting defendants. The court below has ignored the elementary principle of law that parties cannot take any plea contrary to law and they cannot contract against a statute. Under the KVOA Act, the lease having become void in law and also under the repealed act of 1957, any plea, even if taken by the erstwhile lessees, cannot prevail against the said law. Since plaintiff Gulabchand was not a party to any of the previous proceedings, any plea taken by the other erstwhile lessees in ignorance of law and contrary to the provisions of law, cannot bind the plaintiffs and their case does not stand affected by any such adverse plea, even if taken by the other parties. The court below has practically considered the validity and legality of the previous judgments and decree in O.S. No. 9 of 1969, which is affirmed by the High Court and the Supreme Court and the judgment and decree dismissing the two suits O.S. No. 364 and 365 of 2004, which also has attained finality, as if the Trial Court is sitting on the appellate jurisdiction over the said judgment and decrees, which judgment and decrees have clearly been admitted by the parties in the said proceedings. The following authorities are relied upon by the appellants:- (a) Bapu Mallu Khot vs. Deputy Commissioner, Belgaum and Others, 1975 (2) Karnataka L.J. 315 (b) V. Channanarasimhaiah vs. Additional Tahsildar, Bangalore and Others, 1997 (3) Karnataka L.J. 101 (c) G.V. Subba Rao vs. Tahsildar, Chikkaballapura Town, Kolar District and Others, 1998 (3) Karl. The following authorities are relied upon by the appellants:- (a) Bapu Mallu Khot vs. Deputy Commissioner, Belgaum and Others, 1975 (2) Karnataka L.J. 315 (b) V. Channanarasimhaiah vs. Additional Tahsildar, Bangalore and Others, 1997 (3) Karnataka L.J. 101 (c) G.V. Subba Rao vs. Tahsildar, Chikkaballapura Town, Kolar District and Others, 1998 (3) Karl. L.J. 413 (d) Janatha Dal Party, Bangalore vs. Indian National Congress, New Delhi and Others, 2014 (2) KLJ 265 (e) Yeshwantrao Laxman Rao Ghatge and Another vs. Baburao Bala, (1978) 1 SCC 669 (f) Rajender Singh and Others vs. Santa Singh and Others, (1973) 2 SCC 705 (g) Kalidas Dhanjibhat vs. State of Bombay, AIR 1955 SC 62 (h) Som Dev and Others vs. Rati Ram and Another, (2006) 10 SCC 788 (i) Eureka Builders vs. Gulabchand and Others, 2013 (1) KLJ 675 (j) N. Radhakrishnan vs. Maestro Engineers and Others, (2010) 1 SCC 72 (k) Sukanya Holdings Pvt. Ltd. vs. Jayesh Pandya and Another, (2003) 5 SCC 531 6. The learned counsel for defendants 18 to 25, on the other hand, would amplify on the very stand taken in the suit and would seek to justify the judgment of the trial court. 7. In the light of the above contentions and having regard to the facts and circumstances as emanating from the record and in addressing the judgment under challenge, the following points arise for our consideration:- (a) Whether the plaintiff could claim a partition of the suit property as owner thereof? Was the trial court right in its conclusion that he was at best a lessee and could claim partition only of lease hold rights? (b) Whether the plaintiff was not entitled to claim as a owner in the absence of a prayer for a declaration to that effect? Or whether it could be said that the plaintiff became a lawful owner by operation of law? (c) What is the effect of the Arbitration clause contained in the agreement of sale dated 23.3.2001 said to have been executed by defendants no. 6 to 15 in favour of Defendants 18 to 25? And whether the plaintiff was required to have his claim adjudicated in the arbitration proceedings only, since the suit property is subject matter of the said arbitration proceedings? (d) Whether defendant no. 18 and its partners had a right to contest the suit on merits? 6 to 15 in favour of Defendants 18 to 25? And whether the plaintiff was required to have his claim adjudicated in the arbitration proceedings only, since the suit property is subject matter of the said arbitration proceedings? (d) Whether defendant no. 18 and its partners had a right to contest the suit on merits? (e) Whether the plaintiff was entitled to the injunctory reliefs prayed for? POINT (a) – The following chronology of events is not in dispute. The property bearing no. 366, originally bearing RS no. 20 of Keshwapur, measuring 3.20 acres was granted on a term lease of 50 years in favour of one Chaturbhuj Ratansi, under a lease deed dated 23.10.1915, by a Watandar. The property bearing no. 361, originally bearing R.S. No. 20/1 and 20/2, of Keshwapur measuring 1.25 acres, was said to have been granted under a permanent lease in favour of one Kaanji Ghelabhai Shet alias Gujjar, under a deed dated 9.3.1920. The property bearing no. 361 was purchased by the father of the plaintiff, Shah Velji Kanji, at a Court auction in the year 1942. The lease hold rights pertaining to the property bearing no. 366 was said to have been purchased by the father of the plaintiff as on 14.5.1943. The father of the plaintiff is said to have died on 2.12.1957. A sale deed is said to have been executed in respect of the above properties by the widowed mother of the plaintiff, representing herself and her 2 major daughters, 4 minor sons and a minor daughter, in favour of Defendant no. 17, a Society, under a sale deed dated 19.12.1957. A civil suit in O.S. No. 9 of 1969 was filed by the plaintiff and four other children of Sha Velji Kanji, as on 13.6.1969, against Defendant no. 17, challenging the sale in its favour, by their mother and for partition. The suit was decreed in their favour, the sale of the suit properties was nullified and the suit for partition was decreed, by a preliminary decree, dated 26.8.1977. The same had been unsuccessfully challenged by Defendant no. 17, before this court as well as before the Apex Court. The same attained finality. The suit was decreed in their favour, the sale of the suit properties was nullified and the suit for partition was decreed, by a preliminary decree, dated 26.8.1977. The same had been unsuccessfully challenged by Defendant no. 17, before this court as well as before the Apex Court. The same attained finality. In the meanwhile, re-grant orders were made under the provisions of the KVOA Act, in favour of the erstwhile original holders of the land, by an order dated 31.3.1973, re-grant was ordered in respect of 32 guntas of land in property no. 361 and by an order dated 1.4.1973, re-grant was ordered in respect of land measuring 3.20 acres in property no. 366. A further order of re-grant in respect of an extent of 33 guntas in property bearing no. 361 was made on 24.2.1982. No proceedings were initiated, on such re-grant, to recover possession of the suit properties which was under the occupation of Defendant no. 17. An agreement of sale, dated 23.3.2001, is said to have been executed by some of the Defendants amongst Defendants 5 to 16, in favour of Defendant no. 18, represented by its partners, in respect of the suit properties. Defendants 5 to 16 instituted civil suits in O.S. No. 364 and O.S. No. 365 of 2004, seeking to recover possession of the suit properties from the plaintiff, defendants no. 1 to 4 and defendant no. 17. The same are dismissed, as being barred by limitation on 29.1.2007. Appeals filed against the said dismissal in appeals in R.F.A. No. 579 and R.F.A. No. 580 of 2007, before this court are dismissed as withdrawn on 2.2.2012. The present suit was filed by the plaintiff in February 2010, seeking partition and separate possession of his 1/5 share in the suit properties as a co-owner thereof and for injunctory reliefs against defendants 5 to 16 and 18 to 25. It is on record that the suit properties were Watan lands and were subject to the provisions of the BHO Act, 1874. It is seen that under Section 5 of the said Act, a lease granted beyond the life time of the Watandars, without leave of the State government was void. This legal position is also asserted by Defendants 5 to 16, in their suit in O.S. 364 of 2004, the copy of the plaint is marked as Exhibit D-3. It is seen that under Section 5 of the said Act, a lease granted beyond the life time of the Watandars, without leave of the State government was void. This legal position is also asserted by Defendants 5 to 16, in their suit in O.S. 364 of 2004, the copy of the plaint is marked as Exhibit D-3. In any event, with the coming into force of the KVOA Act, the BHO Act stood repealed, village offices were abolished and the land held by virtue of office, stood resumed by the State, this included the Watan lands, such as the suit properties. The lands were, however, re-granted to the original holders or their legal representatives, as in the case on hand, on the dates as indicated above. The legal position under the KVOA Act, is that if the re-grantee is not in possession on the date of re-grant, his remedy is to file a suit before the civil court for possession against a third party, who may be in possession and who would be deemed to be a trespasser. The re-grantee cannot even seek the assistance of the Deputy Commissioner to obtain such recovery. Bapu Mallu Khot vs. Deputy Commissioner, Belgaum and Others, 1975 (2) Karnataka L.J. 315; V. Channanarasimhaiah vs. Additional Tahsildar, Bangalore and Others, 1997 (3) Karnataka L.J. 101 and G.V. Subba Rao vs. Tahsildar, Chikkaballapura Town, Kolar District and Others, 1998 (3) Karl. L.J. 413. It is not in dispute that the re-grantees had not taken steps to recover possession of the suit properties, till the filing of the civil suits in O.S. No. 364 and 365 of 2004, as on 23.11.2004. The period of limitation to file a suit for recovery of possession from the date of the order of re-grant dated 31.3.1973 and 1.4.973 had expired on 1.4.1985 and 2.4.1985, respectively. As the period of limitation prescribed under Article 65 of the Schedule to the Limitation Act, 1963, is 12 years. The limitation in respect of the order of re-grant dated 24.2.1982, also expired on 24.2.1994. The plaintiff seeks to claim title to the property by operation of law. Attention is drawn to Section 27 of the Limitation Act, 1963. The said section reads as under:- “27. The limitation in respect of the order of re-grant dated 24.2.1982, also expired on 24.2.1994. The plaintiff seeks to claim title to the property by operation of law. Attention is drawn to Section 27 of the Limitation Act, 1963. The said section reads as under:- “27. Extinguishment of right to property – At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.” The principle underlying this section is that a person having a right to possession suffers his right to the property as barred by the law of limitation. It is an exception to the general principle that the law of limitation only bars the remedy, but does not extinguish the right itself. It is actually a provision of prescription rather than a provision prescribing limitation. In other words, this section is a substantive provision of law rather than one prescribing procedure. When there is conferment of title to the person out of possession, the extinguishment of title under this provision, of the rightful owner-gives the trespasser a good title as against the rightful owner and anyone claiming under him. However, it is to be noticed that the section only extinguishes the title of the rightful owner and does not specifically state as to the vesting of that right. Then again the title to the property cannot remain in a vacuum. Therefore, on the extinguishment of the title of the rightful owner, such title to the property shall follow possession and the person in possession as trespasser is to be treated to have acquired title to the property. Din Dayal vs. Rajaram, AIR 1970 SC 1019 ; Jawaharlal vs. Bhagchand, AIR 1987 Del 338; Ahmed Wani vs. Lassugen, AIR 1967 J & K 149; Ram Murthy vs. Puran Singh, AIR 1963 Punj 393; Ramanathan vs. Somasundaram, AIR 1964 Mad 327 ; Janatha Dal Party, Bangalore vs. Indian National Congress, New Delhi and Others, 2014 (2) KLJ 265; Yeshwantrao Laxman Rao Ghatge and Another vs. Baburao Bala, (1978) 1 SCC 669 ; Rajender Singh and Others vs. Santa Singh and Others, (1973) 2 SCC 705 , Kalidas Dhanjibhat vs. State of Bombay, AIR 1955 SC 62 . In view of the above legal position, by virtue of which, the plaintiff had perfected his title to the property, the Trial Court was not justified in holding that the plaintiff could claim only as a lessee and could seek partition of only the lease hold rights. Such a finding is without reference to the fact that the lease was void from inception and in any event, the properties stood vested in the State with the coming into force of the KVOA Act. The re-grantees having failed to recover possession, the plaintiff has perfected title by continued possession. POINT (b) – The sequence of events and the factual position is not disputed by any of the defendants, except defendant no. 18 through its partners. The said circumstances being borne out by material documents produced and marked in evidence, the reasoning of the Trial Court that it was incumbent on the plaintiff to seek a declaration of his title is an objection with reference to form and is not an infirmity of any substance. It may even be said that the plaintiff had perfected his title by operation of law. Hence, the court below could not have denied the title of the plaintiff to the suit properties as a co-owner. POINT (c) – This really does not arise for consideration as the Order dated 9.2.2012 in C.R.P. No. 1106 of 20011 passed by this court in the said revision petition filed by Defendant no. 18 and others, questioning the dismissal of an application under Section 8 of the AC Act, by the trial court, is a complete answer. The plaintiff has been held not bound by the arbitration clause contained in the agreement dated 23.3.2001. POINT (d) – Defendants 18 to 25 were made parties to the suit only because of the plaintiff's apprehension that the said defendants were seeking to enforce an agreement of sale in respect of the suit properties and that they were also seeking to interfere with their possession. In so far as the agreement of sale is concerned, it is already found while deciding I.A. no. 3 filed in the suit of the plaintiff, that he was not a party to the said agreement and that he was not bound by the arbitration clause contained therein. That view has been affirmed by this court in C.R.P. No. 1106 of 2011. 3 filed in the suit of the plaintiff, that he was not a party to the said agreement and that he was not bound by the arbitration clause contained therein. That view has been affirmed by this court in C.R.P. No. 1106 of 2011. The said defendants however, cannot be restrained from enforcing the agreement of sale under which they are claiming whether the same is a valid agreement of sale and whether it would be enforceable against the plaintiff and other defendants need not be answered in these proceedings , as there is said to be an arbitration proceeding pending in that regard. The plaintiff being in possession of the property cannot however, be dispossessed or disturbed by defendants 18 to 25, otherwise than under due process of law. Further, as holders of an agreement of sale, the said defendants would not be in a position to claim any interest or charge over the property and hence could not question the claim of the plaintiff. Their right if any, accrues only after a final result of the arbitration and any further proceedings thereto. Ironically, the Trial Court had adopted a reasoning, in dealing with several issues, when even the contesting defendants (18 to 25) had not pleaded any such facts, which formed the basis of the reasoning. POINT (e) – The plaintiff's title and possession having been affirmed, it would follow that the plaintiff is entitled to protection of such possession and therefore the order of the Trial Court would certainly require modification. In the result, the appeals are allowed. The suit of the plaintiff, now represented by his legal representatives and the counter claim of defendant no. 1, now represented by his legal representatives and defendant nos. 2 to 4, are decreed. The plaintiff and defendants no. 1 to 4 are each entitled to a 1/5 share in the suit schedule properties. A preliminary decree shall be drawn up in terms as above. Defendants no. 5 to 25 are restrained by a permanent injunction from interfering with the peaceful possession of the plaintiff and others, of the suit properties aforesaid, otherwise than under due process of law.