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2020 DIGILAW 814 (KAR)

Prasanna Kumar v. Shanthamma And Others

2020-04-16

NATARAJ RANGASWAMY

body2020
JUDGMENT 1. This Regular Second Appeal is filed by the defendant in the suit challenging the Judgment and Decree dated 18.11.2011 passed by the First Appellate Court (Principal Senior Civil Judge at Shivamogga) in R.A No.165/2008, by which the First Appellate Court reversed the Judgment and Decree of the Trial Court (Civil Judge (Jr. Dn.,) and JMFC at Thirthahalli dated 28.07.2008 in O.S No.53/1997. 2. For the sake of convenience, the parties in this Judgment are henceforth referred to by their rank before the Trial Court. The appellant was the defendant while the respondents were plaintiff Nos.1 to 4 before the Trial Court. 3. The plaintiff Smt. Shanthamma filed O.S No.53/1997 for a declaration that the settlement deed dated 12.11.1992 executed by the plaintiff in favour of the defendant was void. The suit schedule property was 1 Acre 24 guntas of land in Sy.No.37 and 16 guntas of land in Sy.No.36 of Hosur Village, Agumbe Hobli, Thirthahalli Taluk, Shivamogga District. 4. It was the case of the plaintiff that she was in possession, cultivation of the suit properties, having succeeded to it from her husband who died in the year 1941. She had two daughters who were married. The plaintiff was harvesting areca crop in the land and she was carrying on the work with the assistance of her grandson. It is stated that the plaintiff is illiterate and she had no knowledge of daily transactions. She came in contact with the defendant who used to harvest areca on contract. The plaintiff believing the words of the defendant entered into a contract for the purpose of permitting the defendant to harvest areca in the suit property. The defendant misrepresented that it was an agreement permitting him to harvest the areca, but had managed to obtain a family settlement in respect of the suit property in his favour. She was taken to the Sub-Registrar, where she was made to put her thumb impression on some papers. The plaintiff without knowing the contents of the document believed the defendant and executed the document thinking it to be a document concerning sale of areca crop. The defendant committed fraud and got a settlement deed on 12.11.1992. She stated that she had not delivered the possession of the suit property to the defendant. The plaintiff without knowing the contents of the document believed the defendant and executed the document thinking it to be a document concerning sale of areca crop. The defendant committed fraud and got a settlement deed on 12.11.1992. She stated that she had not delivered the possession of the suit property to the defendant. She came to know of the settlement deed only when the name of the defendant was entered in the revenue records in the month of October 1993. The plaintiff therefore executed a document cancelling the alleged settlement deed on 22.10.1993.In the meanwhile, the defendant had obtained his name in the revenue records as per MR No.21/1992-93 for the year 1993-94. After the cancellation of the settlement deed, entries were restored back to the name of the plaintiff in the year 1994-95 as per the orders of the Tahasildar in M.R. No.7/1993-94. The defendant filed an appeal against the order of the Tahasildar before the Assistant Commissioner, Shivamogga in PDA No.32/1994- 95. The Assistant Commissioner by his order dated 14.02.1997, set aside the order of the Tahsildar passed in M.R. No.7/1993-94 and directed that the settlement deed could not be cancelled unilaterally and thus, directed the plaintiff to obtain a decree from the Civil Court. Hence, the plaintiff filed a civil suit for cancellation of the settlement deed. 5. The defendant filed his written statement contending that the plaintiff had a close relative by name Sri.Nagappaiah, whose daughter was given in marriage to the son of the brother of the defendant. He stated that the plaintiff was not looking after the land in question and therefore, the defendant had attended to the agricultural operations in the suit property from the year 1992. He stated that the plaintiff had represented that she would execute the settlement deed in consideration of the defendant looking after the plaintiff and the suit property. He contended that the settlement deed was voluntarily executed by the plaintiff in favour of the defendant and she knew the contents of the same. He contended that the plaintiff apprehended that her grandsons would forcibly take the possession of the suit schedule property. He also stated that from the year 1992 he had been attending to the agricultural operations in the suit property and had been in possession of the same and looked after the plaintiff till her death. He contended that the plaintiff apprehended that her grandsons would forcibly take the possession of the suit schedule property. He also stated that from the year 1992 he had been attending to the agricultural operations in the suit property and had been in possession of the same and looked after the plaintiff till her death. He contended that the settlement deed was not obtained fraudulently as contended by the plaintiff and therefore, sought for dismissal of the suit. 6. Based on the above pleadings of the parties, the Trial Court framed the following issues: '1. Whether plaintiffs prove that the defendant got executed a registered settlement deed in respect of suit schedule property from the plaintiff on 12-11-1992 by playing fraud and misrepresentation ? 2. Whether plaintiffs further prove that the settlement deed executed in favour of the defendant dated 12-11- 1992 is void document and is liable to be cancelled? 3. Whether plaintiffs prove that they are in lawful possession of suit schedule property ? 4. Whether defendant proves that the suit of the plaintiff is bad for non-joinder of necessary party ? 5. Whether plaintiffs are entitled for the relief of declaration as prayed for? 6. What order or decree ?' Additional Issues framed on 17-4-2008: 1. Whether the plaintiffs prove that this suit is filed with in the period of limitation ? 2. Whether the plaintiffs proves that Smt. Shanthamma has lawfully cancelled the Settlement Deed dt.12-11-1992 by executing a document of cancellation dt:22-10- 10\993?' 7. After the written statement was filed by the defendant, the plaintiff died leaving behind her grandsons, who were impleaded as legal representatives of the plaintiff in the suit. 8. On behalf of the plaintiffs, PWs.1 to 6 were examined and they marked Exs.P1 to P74. The defendant was examined as DW1 and he marked Exs.D1 to D7. 9. The Trial Court based on the aforesaid pleadings and evidence on record, held that the settlement deed dated 12.11.1992 was obtained fraudulently by the defendant from the deceased plaintiff. However, the Trial Court held that the suit was filed belatedly and therefore, dismissed the suit in terms of its impugned Judgment and Decree. 10. The plaintiffs therefore, filed Regular Appeal No.165/2008. 11. However, the Trial Court held that the suit was filed belatedly and therefore, dismissed the suit in terms of its impugned Judgment and Decree. 10. The plaintiffs therefore, filed Regular Appeal No.165/2008. 11. The First Appellate Court summoned the records, perused the pleadings and the evidence on record and held that the plaintiff was pursuing the revenue proceeding before the revenue Courts and therefore, the plaintiff was entitled to exclusion of time consumed before the revenue Courts and held that the suit was filed well within the limitation and thus, decreed the suit by reversing the Judgment and Decree of the Trial Court in so far as the finding that the suit was barred by limitation is concerned. 12. Feeling aggrieved by the aforesaid Judgment and Decree of the First Appellate Court, the defendant has filed this Regular Second Appeal. 13. This Regular Second Appeal was admitted by this Court on 03.07.2012 to consider the following substantial question of law: 'When the respondent had the knowledge of the settlement deed as on 22.10.1993 and when the suit came to be instituted beyond three years, whether the First Appellate Court was justified in granting a decree in favour of the respondent (plaintiff) on the ground that the time is spent by the respondent in the revenue proceedings is to be excluded for the purpose of computing the period of limitation to institute a suit?' 14. Heard the learned counsel for the appellant and the learned counsel for respondent No.2. Respondent Nos.1, 3 and 4 are served and have remained unrepresented. Perused the records of the Trial Court and the First Appellate Court and the grounds urged in the appeal memo. 15. It is relevant to note that the defendant had not challenged the findings of fact recorded by the Trial Court holding that the settlement deed was obtained fraudulently by the defendant from the plaintiffs. The only question that needs to be considered is whether the suit was filed within the limitation or not. In order to answer this question, the following facts may be relevant. 16. Ex.P10 is the settlement deed dated 12.11.1992. Ex.P1 is the revocation of the settlement deed in terms of a cancellation deed dated 22.10.1993. The name of the plaintiff was restored in the revenue records for the year 1994-95 and continued upto 1996-97 as per Exs.P2 and 3. In order to answer this question, the following facts may be relevant. 16. Ex.P10 is the settlement deed dated 12.11.1992. Ex.P1 is the revocation of the settlement deed in terms of a cancellation deed dated 22.10.1993. The name of the plaintiff was restored in the revenue records for the year 1994-95 and continued upto 1996-97 as per Exs.P2 and 3. The name of the defendant was entered in the revenue records as per Ex.P48 which is the extract of mutation register indicating that the khata was restored in the name of the original plaintiff pursuant to cancellation of settlement deed. Ex.P49 is the extract of mutation register M.R. No.4/1997-98 indicating that khata has been transferred to the defendant. 17. It is found that the order dated 14.02.1997 of the Assistant Commissioner was challenged before the Deputy Commissioner who dismissed the Revision Petition in terms of the Order dated 30.11.1998 which were later challenged before this Court in WP No.40855/2001. The said writ petition was allowed by this Court by order dated 04.10.2002 setting aside the orders of the Assistant Commissioner as well as Deputy Commissioner and the parties were directed to work out their remedy in O.S. No.53/1997 before the Trial Court. It was only upon the order passed by this Court that the plaintiff gave up the challenge to the revenue proceedings based on the cancellation deed. The suit is filed by the plaintiff on 17.03.1997. The Trial Court held that the plaintiff was aware of the fraudulent settlement deed dated 12.11.1992 and therefore, she had revoked the same on 22.10.1993. The Trial Court therefore reckoned the limitation from 22.10.1993 and held that the suit filed on 17.03.1997 was barred by the law of limitation as the plaintiff was required to file the suit within three years from the date of knowledge. The First Appellate Court held that there were continued revenue proceedings on the question as to whether the settlement deed (Ex.P10) could be unilaterally cancelled or not and whether the revenue Courts can exercise the jurisdiction to consider the authenticity or the validity of the cancellation deed. It is therefore relevant to extract Section 14 of the Limitation Act, 1963 : '14. Exclusion of time of proceeding bona fide in court without jurisdiction. It is therefore relevant to extract Section 14 of the Limitation Act, 1963 : '14. Exclusion of time of proceeding bona fide in court without jurisdiction. (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule 1 of that Order where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature. Explanation. For the purposes of this section, (a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted; (b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding; (c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction.' 18. Undoubtedly, the plaintiff was required to file the suit within three years from the date of knowledge as mandated under Article 59 of the Limitation Act. Undoubtedly, the plaintiff was required to file the suit within three years from the date of knowledge as mandated under Article 59 of the Limitation Act. However, the cause of action for the suit as mentioned in the plaint is that the plaintiff was compelled to file the present suit after the Assistant Commissioner in terms of his Order dated 14/02/1997 directed the plaintiff to get her right agitated before the Civil Court. This proceeding was later escalated before this Court in a Writ Petition, where this Court directed the parties to work out their remedy in the present suit that was already filed by then. It is in this context, we have to examine whether the plaintiff was entitled to claim the benefit of the time lost in pursuing her remedy before the revenue Court. It is relevant to note that the plaintiff had cancelled the settlement deed by executing a deed of cancellation and was agitating before the revenue Court that the settlement deed was obtained fraudulently and that the plaintiff had rightly cancelled the settlement deed. At any rate, the question whether the settlement deed was validly executed or not and or whether the cancellation of the settlement deed was valid or not could not be decided by the Assistant Commissioner as it was beyond the scope /jurisdiction under Section 128, 129 of the Karnataka Land Revenue Act, 1964. It was under these circumstances that the Assistant Commissioner directed the plaintiff to approach the Civil Court, which invariably meant that the Assistant Commissioner did not have jurisdiction to deal with the dispute. Thus, the plaintiff was bona fide pursuing the remedy before the Revenue Court of the Assistant Commissioner. 19. The words used in Section 14 (1) and (2) of the Limitation Act is 'civil proceeding, whether in a court of first instance or of appeal or revision'. It cannot be gainsaid that proceeding before the revenue Court is in the nature of a civil proceeding which is between the same parties relating to the very same question involved in the suit. It cannot be gainsaid that proceeding before the revenue Court is in the nature of a civil proceeding which is between the same parties relating to the very same question involved in the suit. In the case of Consolidated Engineering Enterprises v. Principal Secretary, Irrigation Department and others reported in 2008 (7) SCC 169 , the Apex Court enumerated five conditions for the applicability of Section 14 of the Limitation Act and same are extracted below: i) Both the prior and subsequent proceedings are civil proceedings prosecuted by the same party; ii) The prior proceeding had been prosecuted with due diligence and in good faith; iii) The failure of the prior proceeding was due to defect of jurisdiction or other cause of like nature; iv) The earlier proceeding and the later proceeding must relate to the same matter in issue and; v) Both the proceedings are in a court.' The Apex Court further held as follows: 'While considering the provisions of Section 14 of the Limitation Act, proper approach will have to be adopted and the provisions will have to be interpreted so as to advance the cause of justice rather than abort the proceedings. It will be well to bear in mind that an element of mistake is inherent in the invocation of Section 14. In fact, the Section is intended to provide relief against the bar of limitation in cases of mistaken remedy or selection of a wrong forum. On reading Section 14 of the Act it becomes clear that the legislature has enacted the said section to exempt a certain period covered by a bona fide litigious activity'. 20. Therefore, the plaintiff is entitled to exclusion of the time consumed in the revenue proceedings as well as before this Court in W.P No.40855/2001. Thus, in that view of the matter, I do not find any perversity or illegality in the reasoning of the First Appellate Court. 21. Hence, the substantial question of law framed by this Court is answered in the affirmative that the plaintiff was entitled for seeking exclusion of time spent in the revenue proceedings and thus this Regular Second Appeal fails and the same is hereby dismissed.