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2023 DIGILAW 356 (KAR)

K. Krishnaswamy v. S. Rajendra

2023-03-02

M.G.UMA

body2023
JUDGMENT/ORDER 1. The plaintiff is before this Court being aggrieved by the judgment and decree dtd. 20/1/2020 passed in OS No.335 of 2012 on the file of the learned Principal Civil Judge and JMFC, Srirangapatna (hereinafter referred to as 'the Trial Court' for brevity), dismissing the suit filed by him for declaration and for permanent injunction, which was confirmed by the judgment and decree dtd. 29/9/2021 passed in RA No.9 of 2020 on the file of the learned Principal Senior Civil Judge and JMFC, Srirangapatna (hereinafter referred to as 'the First Appellate Court for brevity). 2. Being aggrieved by the observations made while answering issue Nos.1 to 3 by the Trial Court, defendant No.1 filed cross-objection before the First Appellate Court, which came to be dismissed and therefore, he has preferred RSA No.229 of 2022 against the plaintiff. 3. For the sake of convenience, parties are referred to as per their status and rank before the Trial Court. 4. Brief facts of the case are that, the plaintiff filed OS No.335 of 2012 before the Trial Court against defendant Nos.1 and 2 seeking correction of the survey number, which was wrongly mentioned as 372/1 instead of mentioning as 376/1P2, in the registered sale deed dtd. 13/10/1952, executed by defendant No.2 in favour of the father of the plaintiff; to declare that the plaintiff is the absolute owner in possession of the suit property; to grant perpetual injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the property; for grant of mandatory injunction to remove the barbed wire fence put to the schedule property and to remove the unauthorized construction put up by defendant No.1 by encroaching the schedule property in the portion identified as ABCD in the sketch appended to the plaint. The schedule appended to the plaint describes 39 guntas of land bearing Sy.No.376/1P2 of Belavadi Village, Srirangapatna Taluk, with boundaries mentioned therein. 5. It is contended by the plaintiff that the schedule property had fallen to the share of defendant No.2 under the registered partition deed dtd. 1/9/1950 and the same was sold in favour of the father of the plaintiff under the registered sale deed dtd. 13/10/1952, to meet his family necessities. The possession of the property was handed over to the purchaser and since then he was in peaceful possession and enjoyment of the property. 1/9/1950 and the same was sold in favour of the father of the plaintiff under the registered sale deed dtd. 13/10/1952, to meet his family necessities. The possession of the property was handed over to the purchaser and since then he was in peaceful possession and enjoyment of the property. On 20/2/1968, there was a partition between the father of the plaintiff and his children and the schedule property had fallen to the share of the father of the plaintiff. He died on 1/10/1981 and the mother of the plaintiff also died on 10/3/2001. 6. It is contended that after the death of his father, the plaintiff filed suit OS No.76 of 2010 seeking partition and separate possession of the schedule property and other properties and at that time, plaintiff came to know that a mistake had crept in, while describing the schedule property and in mentioning the survey number. In fact, defendant No.2 was owning 39 guntas of land in Sy.No.376/1 towards eastern side, which had fallen to his share in the partition dtd. 1/9/1950, but by mistake the same was described as Sy.No.372/1. It is contended that since the father of the plaintiff was an illiterate, he had not noticed the mistake during his lifetime. When the plaintiff came to know about this mistake after filing OS No.76 of 2010, he applied to the Tahsildar to set right the mistake. 7. It is stated that, a proceedings in case No.58 of 2005-06 was initiated by defendant No.1 after he purchasing the property from defendant No.2 and the brother of the plaintiff had contested the same. However, in the said proceedings, the order came to be passed on 21/12/2005, rejecting the claim of defendant No.1 to mutate his name to the schedule property. It is contended that in spite of the order passed by the Tahsildar, the revenue record was mutated in the name of defendant No.1 as per MR No.20/2006-07. At that time, the brother of the plaintiff was suffering from paralysis and therefore, the plaintiff filed an application to implead himself as a party in the proceedings that was pending before the Tahsildar. As per order dtd. 13/4/2011, the Tahsildar closed the proceedings on the ground that the dispute between the parties is of civil nature. At that time, the brother of the plaintiff was suffering from paralysis and therefore, the plaintiff filed an application to implead himself as a party in the proceedings that was pending before the Tahsildar. As per order dtd. 13/4/2011, the Tahsildar closed the proceedings on the ground that the dispute between the parties is of civil nature. The plaintiff challenged the said order before the Assistant Commissioner in R.Misc.No.6 of 2011-12, which came to be dismissed directing the plaintiff to approach the Civil Court. 8. It is contended that defendant No.2 by taking advantage of wrong mentioning of survey number in the sale deed dtd. 13/10/1952 sold the schedule property in favour of defendant No.1 by executing the registered sale deed 12/9/2005 and therefore, the same is not a valid sale deed. Defendant No.2 had no manner of right, title or interest over the schedule property after executing the sale deed dtd. 13/10/1952. It is contended that since the temporary injunction granted in OS No.76 of 2010 and since at the same time, the brother of the plaintiff was bed ridden and the plaintiff was busy in looking after him, defendant No.1 encroached over the schedule property and put up a barbed wire fence in the portion mentioned as ABCD in the sketch. Therefore, the plaintiff filed the suit against defendant Nos.1 and 2 for the above said relief's. 9. Defendant No.1 has appeared before the Trial Court and filed written statement denying the contentions taken by the plaintiff. It is admitted that the schedule property was acquired by defendant No.2 under the partition. It is also admitted that defendant No.2 sold the same in favour of defendant No.1 under the registered sale deed on 12/9/2005 and contended that, since then, he is in peaceful possession and enjoyment of the schedule property. The property was mutated in his name and he converted it for non-agricultural purposes. He constructed a building and running a school since June - 2008. It is further contended that the barbed wire fence was put up by defendant No.1 about 5 years back to protect his building and demark the play ground. Defendant No.1 contended that he has invested crores of rupees over the schedule property for its development and the plaintiff has no right over the same. It is further contended that the barbed wire fence was put up by defendant No.1 about 5 years back to protect his building and demark the play ground. Defendant No.1 contended that he has invested crores of rupees over the schedule property for its development and the plaintiff has no right over the same. It is also contended that the plaintiff has approached the Court with false allegations seeking claim over the schedule property. It is contended that all the legal representatives of late Krishnappa i.e., father of the plaintiff are not made as parties in the suit. The suit is barred by limitation. Hence, he prays for dismissal of the suit. 10. On the basis of these pleadings, the following issues came to be framed by the Trial Court: 1. Whether the plaintiff proves that, nd the 2 defendant has sold the suit schedule property in favour of his father under the registered sale deed dtd. 13/10/1952 and his father was in possession and enjoyment of the same? 2. Whether the plaintiff further proves that, he is the absolute owner and in possession of the suit schedule property after the suit schedule property after the death of his father? 3. Whether the plaintiff further proves that due to mistake of the scribe, the Sy. No. of the suit schedule property in sale deed was wrongly mentioned as 372/1 instead of 376/1? 4. Whether the plaintiff further proves that the alleged encroachment by the 1st defendant? 5. Whether the plaintiff further proves that the alleged interference by the defendants? 6. Whether the suit is bad for non- joinder of necessary parties as contended in written statement of the 1st defendants? 7. Whether this court has pecuniary jurisdiction to try this suit? 8. Whether the plaintiff is entitle for relief as sought for in the plaint? 9. What Order or Decree.?" 11. Plaintiff examined himself as PW1 and got marked Exs.P1 to 18 in support of his contention. Defendant No.1 examined himself as defendant No.1 and got marked Exs.D1 to 58 in support of his defence. The Trial Court after taking into consideration all these materials on record, answered issue No.1 partly in the affirmative, issue Nos.2, 4, 5, 7 and 8 in the Negative and Nos.3 and 6 in the Affirmative. Accordingly, dismissed the suit of the plaintiff with cost. 12. The Trial Court after taking into consideration all these materials on record, answered issue No.1 partly in the affirmative, issue Nos.2, 4, 5, 7 and 8 in the Negative and Nos.3 and 6 in the Affirmative. Accordingly, dismissed the suit of the plaintiff with cost. 12. Being aggrieved by the same, the plaintiff has preferred RA No.9 of 2020 before the First Appellate Court. In the meantime, defendant No.1 being aggrieved by the observations made by the Trial Court while answering issue Nos.1 to 3 filed cross objection. The First Appellate Court on re-appreciation of the materials on record, dismissed the appeal and also the cross objection, confirming the judgment and decree passed by the Trial Court. Being aggrieved by the same, the plaintiff has preferred RSA No.1210 of 2021 and defendant No.1 has preferred RSA No.229 of 2022. 13. Heard Sri Sampat Anand Shetty, learned counsel for the appellant and Sri D C Srinivasa, learned counsel for respondent No.1 and vice-versa. Perused the materials including the Trial Court records and the written submissions submitted by the learned counsel for the appellant. 14. Learned counsel for the appellant contended that the father of the plaintiff was an illiterate and he could not notice the mistake crept in, while describing the schedule property in the sale deed as Sy.No.372/1 instead of Sy.No.376/1P2. After his death, when the plaintiff filed the suit OS No.76 of 2010 for partition of the properties including the schedule property, he came to know about the mistake and immediately thereafter, filed the suit OS No.335 of 2012, therefore, the suit was within time. Moreover, the Trial Court has not framed specific issue to consider bar of limitation in filing the suit. Defendant No.2 has not contested the suit as he had executed the sale deed in respect of the schedule property and not in respect of Sy.No.372/1 which was not at all owned by him at any point of time. However, taking advantage of the mistake committed in describing the schedule property as bearing Sy No.372/1, sold the schedule property in favour of defendant No.1 on 12/9/2005. When defendant No.2 had no right whatsoever after execution of the sale deed in favour of the father of the plaintiff, he could not have sold the schedule property in favour of defendant No.1. Defendant No.1 will not get any right, title or interest over the schedule property. When defendant No.2 had no right whatsoever after execution of the sale deed in favour of the father of the plaintiff, he could not have sold the schedule property in favour of defendant No.1. Defendant No.1 will not get any right, title or interest over the schedule property. When defendant No.1 sought for change of revenue entry in his favour on the basis of the registered sale deed, a dispute was raised before the Tahsildar who finally held that the dispute is of civil nature. This finding was affirmed by the Assistant Commissioner and directed both the parties to approach the Civil Court. In the meantime, defendant No.1 encroached a portion of the schedule property and put up the barbed wire fence. Therefore, the plaintiff filed the present suit against defendant Nos.1 and 2 to get the sale deed rectified and for other consequential relief's. 15. Learned counsel further submitted that the Trial Court and the First Appellate Court committed an error in appreciating the materials on record in proper perspective. Even though the Trial Court held issue No.1 partly in the affirmative and issue No.3 in the affirmative holding that defendant No.2 sold the schedule property by showing its boundary, but wrongly mentioning the survey number as 372/1 instead of 376/1P2, committed an error in answering issue No.2 in the Negative. The Trial Court has also not properly appreciated the decision in Tibba Boyi @ Kariya and Others Vs K Venkatappa, (1987) 2 Kant LJ 379. wherein, it is categorically held that the suit falling under Sec. 27 of the Specific Relief Act, could be filed within three years from the date of knowledge of fraud or mutual mistake. The Trial Court even though categorically held that defendant No.2 has not produced any document to show that he was owning Sy.No.372/1 to execute the sale deed in respect of the said property and therefore, the plaintiff proved that a mistake has crept in while describing the schedule property in the sale deed, failed to grant the relief in favour of the plaintiff. The finding of the Trial Court that since all the legal representatives of the deceased - Krishnappa are not made as parties in the suit, the suit should fail is erroneous, perverse and is liable to be set aside. 16. The finding of the Trial Court that since all the legal representatives of the deceased - Krishnappa are not made as parties in the suit, the suit should fail is erroneous, perverse and is liable to be set aside. 16. Learned counsel further submitted that defendant No.2 had issued legal notice as per Ex.P5 during Januray- 2004 to the brother of the plaintiff alleging interference. A reply was issued as per Ex.P6 on 3/2/2004 by the brother of the plaintiff asserting the right over the schedule property. Immediately thereafter, defendant No.2 sold it in favour of defendant No.1 under the registered sale deed. That shows the conduct of defendant No.2. Defendant No.1 is not a bonafide purchaser for value without notice as he had not made any enquiry before purchase of the property. 17. Learned counsel further submitted that the Trial Court held issue No.1 partly in the Affirmative and thereby the contention of the plaintiff that defendant No.2 sold the suit schedule property in favour of the father of the plaintiff under the registered sale deed dtd. 13/10/1952 was accepted. The claim of the plaintiff that his father was in possession and enjoyment of the same was disputed by the Trial Court and thus issue No.1 was answered partly in the Affirmative. Similarly, issue No.3 with regard to the contention of the plaintiff that due to mistake of the scribe, the survey number of the schedule property in the sale deed was wrongly mentioned as Sy.No.372/1 instead of Sy.No.376/1P2 is held in the Affirmative. The First Appellate Court formulated point Nos.1 and 2 regarding the claim of the plaintiff that due to mistake, wrong survey number has been recited in the sale deed dtd. 13/10/1952 and answered it in the Affirmative. Similarly, point No.2 was formulated about the father of the plaintiff acquiring title over the schedule property through the registered sale deed dtd. 13/10/1952, putting in possession of the same and answered it in the Affirmative. Similarly, while answering point No.4 with regard to the contention taken by defendant No.1, that he derived title over the schedule property under the valid registered sale deed dtd. 12/9/2005, it has been held in the Negative thereby rejected the claim of defendant No.1. Thus, both the Trial Court and the First Appellate Court concurrently recorded the findings that the sale deed dtd. 12/9/2005, it has been held in the Negative thereby rejected the claim of defendant No.1. Thus, both the Trial Court and the First Appellate Court concurrently recorded the findings that the sale deed dtd. 13/10/1952 i.e., Ex.P2 executed by defendant No.2 in favour of the father of the plaintiff was in respect of the schedule property and a mistake had crept in while referring to the survey number in the sale deed. It is also held that the contention of defendant No.1 that he derived title over the schedule property was also rejected. Under such circumstances, the Trial Court and the First Appellate Court should have decreed the suit of the plaintiff with regard to his title. 18. Learned counsel further submitted that the Trial Court recorded a finding that defendant No.1 is in possession and enjoyment of the schedule property. The First Appellate Court on re-appreciation of the materials on record rightly came to the conclusion that defendant No.1 is a trespasser and he is in wrongful possession of the property. Under such circumstances, the prayer for mandatory injunction as sought by the plaintiff should have been granted. 19. Learned counsel further contended that the plaintiff is not pressing his prayer for rectification of the sale deed Ex.P2 and he will be satisfied with the declaration of his title and mandatory injunction in respect of the schedule property. Learned counsel placed reliance on the decision of this Court in Tibba Boyi @ Kariya (supra) and contended that the relief of declaration of title and rectification of the instrument are two different prayers and one would not depend on the other. A decree for declaration of title can be granted even without rectification of the mistake in the document on the basis of which the title is sought, if the title is proved in spite of such mistake, by the evidence that is adduced. When the plaintiff has proved his title over the schedule property, denial of the relief of rectification of the mistake in the document will have no consequence. Therefore, he prays for declaring the title of the plaintiff and granting mandatory injunction for possession of the schedule property. Therefore, the impugned judgment and decree passed by the Trial Court, which was confirmed by the First Appellate Court are liable to be set aside and the suit of the plaintiff is to be decreed as prayed for. Therefore, he prays for declaring the title of the plaintiff and granting mandatory injunction for possession of the schedule property. Therefore, the impugned judgment and decree passed by the Trial Court, which was confirmed by the First Appellate Court are liable to be set aside and the suit of the plaintiff is to be decreed as prayed for. Hence, he prays for allowing the appeals. 20. Per contra, learned counsel for respondent No.1 in RSA No.1210 of 2021 who is the appellant in RSA No.229 of 2022 submitted that even though the suit of the plaintiff was dismissed, the Trial Court made certain observations which affects the right of defendant No.1. Therefore, cross objection was filed before the First Appellate Court. The same was not properly appreciated by the First Appellate Court and the cross objection came to be dismissed. Being aggrieved by the same, defendant No.1 preferred RSA No.229 of 2022. 21. Learned counsel further submitted that the suit of the plaintiff is hopelessly barred by limitation. Defendant No.2 issued the legal notice dtd. 16/1/2004 as per Ex.P5. The brother of the plaintiff issued reply as per Ex.P6 dtd. 3/2/2004. The contents of Ex.P6 discloses that the so- called mistake which the plaintiff is alleging was within the knowledge of the plaintiff and his brother atleast on that date. In spite of that, no suit was filed to get the mistake corrected. The present suit was filed only on 29/8/2012 i.e., after lapse of more than 7 years. Under such circumstances, the suit should have been dismissed in limine, as barred by limitation. Even though the Trial Court refused to grant any relief to the plaintiff, held issue No.1 partly in the affirmative and issue No.3 in the affirmative, which is against the materials that are placed before the Court and conclusion that are arrived by the Trial Court. Exs.P15 and 16 are the record of rights which were obtained by the brother of the plaintiff during September 2001 who issued Ex.P6. As per these documents, Sy.No.372/1 stands in the name of one Manchakuruvankara @ Channakka Cheluva and not in the name of either the father of the plaintiff or in the name of defendant No.2. Therefore, the plaintiff and his brother were having knowledge of the so-called mistake, even in 2001. 22. As per these documents, Sy.No.372/1 stands in the name of one Manchakuruvankara @ Channakka Cheluva and not in the name of either the father of the plaintiff or in the name of defendant No.2. Therefore, the plaintiff and his brother were having knowledge of the so-called mistake, even in 2001. 22. Learned counsel further submitted that admittedly there were RRT proceedings held before the Tahsildar and the Assistant Commissioner during 2005-06 i.e., after purchase of the schedule property by defendant No.1 under the registered sale deed. Even then, the plaintiff and his brother have not chosen to approach the Court for necessary reliefs. Hence, learned counsel while supporting the conclusion arrived at by the Trial Court and the First Appellate Court, contended that the findings recorded on issue Nos.1 and 3 is required to be set aside. 23. Learned counsel further submitted that the plaintiff has approached the Court with a specific prayer for rectification of the sale deed - Ex.P2. Sec. 26 of the Specific Relief Act deals with rectification of the instrument. The Court must have regard to Sec. 26(2) of the Act which mandates not to cause prejudice to the rights acquired by the third person, in good faith and for value. The materials on record disclose that defendant No.1 is a bonafide purchaser for value, without notice of title of the father of the plaintiff. Under such circumstances, the interest of defendant No.1 is to be safeguarded. Therefore, the plaintiff is not entitled for any relief. 24. Learned counsel further contended that as per Article 58 of the Limitation Act, the plaintiff should have approached the Court within three years from the date of legal notice issued by defendant No.2. As per Ex.P5, the title of the father of the plaintiff was denied by defendant No.2 in the year 2004 itself. When defendant No.2 asserted his right over the schedule property, the cause of action for the plaintiff first arose. Therefore, within 3 years from the said date, the plaintiff should have approached this Court. The plaintiff filed the suit only during 2012 i.e., after lapse of about 8 years. The Trial Court and the First Appellate Court considered these aspects of the matter and concurrently held that the suit of the plaintiff is barred by limitation. Under such circumstances, the plaintiff is not entitled even for a decree of declaration or for mandatory injunction. The plaintiff filed the suit only during 2012 i.e., after lapse of about 8 years. The Trial Court and the First Appellate Court considered these aspects of the matter and concurrently held that the suit of the plaintiff is barred by limitation. Under such circumstances, the plaintiff is not entitled even for a decree of declaration or for mandatory injunction. Accordingly, he prays for dismissal of RSA No.1210 of 2021 and to allow RSA No.229 of 2022. 25. The appeals were admitted vide order dtd. 14/12/2022 to consider the following substantial questions of law: 1. Whether the impugned judgment and decree passed by the trial Court and confirmed by the First Appellate Court suffers from perversity, illegality and calls for interference by this Court? 2. Whether the findings on issue Nos.1 and 3 recorded by the trial Court, effect the rights of defendant No.1, to any extent and call for interference by this Court? 26. It is the specific contention of the plaintiff that his father purchased the schedule property under the sale deed dtd. 13/10/1952, which is produced as per Ex.P2. While describing the property, by mistake it is mentioned as Sy.No.372/1 instead of Sy.No.376/1P2. After the death of the purchaser i.e., father of the plaintiff, the plaintiff filed the suit OS No.76 of 2010 seeking partition and separate possession of the schedule property along with other properties and at that time he came to know about the mistake and within the period of limitation, filed the suit seeking necessary reliefs. In the meantime, defendant No.2 sold the schedule property in favour of defendant No.1 taking advantage of the mistake committed in describing the schedule property in Ex.P2. The suit came to be filed on 29/8/2012. The plaintiff who examined himself as PW1 categorically stated that the properties belonging to his father were partitioned during 1968. He admits that defendant No.1 put up the fence and the compound wall surrounding the schedule property and that defendant No.1 is the resident of Mysuru. 27. Ex.P5 is the legal notice dtd. 16/1/2004 got issued on behalf of defendant No.2 to K Srinivasiah - the brother of the plaintiff. In this notice, defendant No.2 asserted that Sy.No.376/1 measuring one acre belongs to him and he is in peaceful possession and enjoyment of the same. 27. Ex.P5 is the legal notice dtd. 16/1/2004 got issued on behalf of defendant No.2 to K Srinivasiah - the brother of the plaintiff. In this notice, defendant No.2 asserted that Sy.No.376/1 measuring one acre belongs to him and he is in peaceful possession and enjoyment of the same. He also states that the addressee is trying to encroach on the schedule property and therefore called upon to desist from highhanded acts. Ex.P6 is the copy of the reply notice dtd. 3/2/2004 issued by the brother of the plaintiff to defendant No.2 stating that he had executed the registered sale deed in favour of one Krishnappa on 13/10/1952 but while executing the sale deed instead of mentioning the survey number as 376/1 mentioned it as 372/1. Therefore, the revenue records could not be mutated in the name of said Krishnappa even though the boundaries are correctly mentioned in the sale deed. Therefore, the brother of the plaintiff called upon the defendant to execute the rectification deed rectifying the mistake in mentioning the survey number. 28. Ex.P15 is the copy of the index of properties issued by the Tahsildar, in respect of Sy No.372/1. As per this document, the property stood in the name of Sriyuths Manchakuruvankara, S.Boraiah and N.Ramachandraiah. This document was obtained on 28/9/2001 by K Srinivasaiah who is admittedly the brother of the plaintiff. Ex.P16 is the similar copy of record of rights in respect of Sy.No.372/1, wherein the names of the owners i.e., Manchakuruvankara and others were shown, which was also obtained by K Srinivasaiah on 28/9/2001. 29. These documents which are produced by the plaintiff himself support the contention of defendant No.1 that the plaintiff was aware of the mistake said to have been committed while execution of the sale deed as per Ex.P2 by defendant No.2 in favour of the father of the plaintiff, atleast during 2001 - 02. There were revenue proceedings in respect of this issue during 2005-06 before the Tahsildar, when defendant No.1 tried to mutate the revenue records in his name. Even defendant No.2 had issued the legal notice to the brother of the plaintiff asserting his right over the schedule property as per Ex.P5 on 16/1/2004. Admittedly, the brother of the plaintiff issued reply as per Ex.P6 dtd. Even defendant No.2 had issued the legal notice to the brother of the plaintiff asserting his right over the schedule property as per Ex.P5 on 16/1/2004. Admittedly, the brother of the plaintiff issued reply as per Ex.P6 dtd. 3/2/2004 asserting that there was a mistake in describing the schedule property while executing the sale deed and calling upon defendant No.2 to execute the rectification deed. Inspite of that, the plaintiff has not chosen to file the suit till 29/8/2012. The contention of the plaintiff that neither he nor his father or anybody else in the family were knowing about the mistake crept in, in describing the property in the sale deed till he filed the suit OS No.76 of 2010 seeking partition and separate possession of the schedule property along with other properties, cannot be accepted. 30. Sec. 26 of the Specific Relief Act deals with rectification of the instrument and when it can be rectified. When through fraud or mutual mistake of the parties, a contract or other instrument in writing was executed which does not express their real intention, either party may institute a suit to have the instrument rectified. Since the plaintiff sought for a declaration that he is the absolute owner in possession of the property, Article 58 of the Limitation Act could be made applicable. Since the plaintiff is seeking rectification of the registered sale deed by mentioning the correct survey number while describing the property, Article 113 of the Limitation Act could be attracted. In both the case i.e., either under Article 58 or under Article 113 of the Limitation Act, the period of limitation prescribed is 3 years. But under Article 58, it begins to run when the right to sue first accrues. The date of knowledge of such mistake crept in the registered sale deed could be the date, when the right to sue first accrues in favour of the plaintiff. Ex.P2 executed by defendant No.2 in favour of the father of the plaintiff is dtd. 13/10/1952. Admittedly, the name of the purchaser was never mutated in the revenue records. Thereafter, the father of the plaintiff died in the year 1981. But even then the revenue records were never mutated in the name of the plaintiff or his brother. Ex.P2 executed by defendant No.2 in favour of the father of the plaintiff is dtd. 13/10/1952. Admittedly, the name of the purchaser was never mutated in the revenue records. Thereafter, the father of the plaintiff died in the year 1981. But even then the revenue records were never mutated in the name of the plaintiff or his brother. If the father of the plaintiff or atleast after his demise, his children were diligent, the so-called mistake crept in sale deed - Ex.P2 could have been noticed at the earliest point of time. Even according to the plaintiff, the mistake crept in Ex.P2 was within the knowledge of the brother of the plaintiff since 2001. 31. The discussions held above disclose that the plaintiff himself produced several documents, wherein, it is found that the plaintiff's brother was knowing that Sy.No.372/1 is not standing in the name of either his father who is the purchaser of the property or in the name of defendant No.2 who is the vendor. He was also knowing that a mistake had crept in, while describing the schedule property in the sale deed. Inspite of that he had not taken any action. Even though the sale deed Ex.P2 is dtd. 13/10/1952, admittedly the revenue records were not mutated in the name of the purchaser or his successors, including the plaintiff. But no steps whatsoever was taken to rectify the mistake and to get the revenue records mutated. Thereafter atleast in 2001, i.e., from the date of Exs.P15 and 16, no action was taken. It is only thereafter, defendant No.2 sold the schedule property in favour of defendant No.1 under the sale deed dtd. 12/9/2005. If the plaintiff and his brother were diligent, they could have avoided creation of third party right by defendant No.2 by selling the property. Proceedings before the Tahsildar had commenced during 2005-06. 32. Ex.P5 is the notice produced by the plaintiff which is dtd. 16/1/2004. Admittedly, it was issued by defendant No.2 to the brother of the plaintiff. Defendant No.2 asserts his ownership over 1 acre of land in Sy.No.376/1 of Belavadi village and also claims to be in possession of the same. It is also stated that the brother of the plaintiff has no manner of right, title or interest over the said property nor is in possession of the same. Defendant No.2 asserts his ownership over 1 acre of land in Sy.No.376/1 of Belavadi village and also claims to be in possession of the same. It is also stated that the brother of the plaintiff has no manner of right, title or interest over the said property nor is in possession of the same. Under such circumstances, it could be safely concluded that defendant No.2 cast cloud on the title of the plaintiff and his brother by asserting his ownership and possession over the schedule property. The contention of the learned counsel for the appellant that by issuing Ex.P5, defendant No.2 has not denied title of the plaintiff or his brother and that it had not given rise to the cause of action for filing the suit either for rectification of the sale deed or for seeking declaration of their title, cannot be accepted in view of the categorical assertion of right over the schedule property by defendant No.2. 33. There is absolutely no reason as to why no suit was filed seeking rectification of the instrument in time. Even according to the plaintiff he was having cordial relationship with his brother Srinivasiah and he was looking after the affairs of the family. The plaintiff is a doctor by profession running a nursing home of his own. He cannot take shelter by contending that his father was an illiterate. Under such circumstances, I am of the opinion that the suit of the plaintiff filed on 29/8/2012 is barred by limitation and therefore, the plaintiff cannot seek any remedy. 34. Admittedly, Ex.P2 was not in respect of the schedule property. On the other hand, Ex.D2 is the registered sale deed executed by defendant No.2 dtd. 12/9/2005 in favour of defendant No.1 in respect of the schedule property and therefore, the title passes on to defendant No.1. Ex.D12 is the order passed by the Deputy Commissioner, Mandya dtd. 28/8/2008 converting the schedule property to commercial (education institution) purpose. This order also discloses that Sy.No.413, 376/1P1 and 376/1P2 measuring 1.13, 0.33 and 1.00 acres respectively and totally measuring 3.06 acres were combined together as they were adjacent to one another. Ex.D4 is the survey sketch which shows the larger extent of the land comprising in these three survey numbers, which are owned by defendant No.1. 35. This order also discloses that Sy.No.413, 376/1P1 and 376/1P2 measuring 1.13, 0.33 and 1.00 acres respectively and totally measuring 3.06 acres were combined together as they were adjacent to one another. Ex.D4 is the survey sketch which shows the larger extent of the land comprising in these three survey numbers, which are owned by defendant No.1. 35. It is the specific contention of the defendants that after getting the land converted, he constructed a building and running an educational institution. Exs.D29 and 30 are the building licences dtd. 15/10/2008 and 29/12/2011. Construction of the building and running the educational institution by defendant No.1 is not in serious dispute. The description of the schedule property as found in the plaint schedule relates to an agricultural property bearing Sy.No.376/1P2 measuring 0.39 acres, bounded by the other agricultural lands. Definitely the schedule property has lost its identity in view of the subsequent developments. 36. The plaintiff refers to the plaint sketch to identify the schedule property and seeks permanent injunction against the defendants. He also refers to the portion of the land mentioned with the letters ABCD, which is said to have been encroached by defendant No.1 while constructing the building in respect of which the relief of mandatory injunction to remove the portion of the said building and to hand over the possession to the plaintiff is sought. As observed above, the said sketch was never marked as an exhibit. Interestingly, the said sketch is not found in the Trial Court records. Admittedly, no Commissioner was appointed to identify the land in question. Under such circumstances, identifying the schedule property as an agricultural land and identifying the portion of the land which was encroached by defendant No.1 by constructing the building, is definitely impossible. 37. In view of the above, passing of a decree for declaration, permanent injunction and mandatory injunction as sought by the plaintiff would be non-executable. The contention of the learned counsel for the appellant that it is for the decree holder to identify the schedule property at the time of executing the decree cannot be accepted, as it is the duty of the Court to first identify the schedule property and thereafter to pass the decree and not vice-versa. The contention of the learned counsel for the appellant that it is for the decree holder to identify the schedule property at the time of executing the decree cannot be accepted, as it is the duty of the Court to first identify the schedule property and thereafter to pass the decree and not vice-versa. Passing the decree and thereafter asking the parties to identify the schedule property at the time of execution would be putting the cart before the horse, which is impermissible in law. 38. Even though Sec. 26 of the Specific Relief Act enables rectification of the instrument which does not express the real intention of the parties executed either through fraud or through mutual mistake, sub Sec. (2) specifies that granting of such relief of rectification of an instrument can be done without prejudice to the rights acquired by the third person in good faith and for value. Admittedly, the defendant is the resident of Mysuru. From the materials that are placed before the Court including the cross examination of defendant No.1, it cannot be concluded that he had the knowledge of sale deed Ex.P2 executed by defendant No.2 in favour of the father of the plaintiff and that it relates to schedule property. Even if defendant No.1 was aware of Ex.P2, it cannot be concluded that the said deed was in respect of the schedule property for the simple reason that the schedule property was never the subject matter of Ex.P2. Therefore, the burden is on the plaintiff to prove that defendant No.1 is not a bonafide purchaser for value, without notice. When there is no registered deed in respect of the schedule property and when the revenue records still stand in the name of defendant No.2, it cannot be reasonably presumed that defendant No.1 would have known about transfer of right, if any, in respect of the schedule property by defendant No.2. Therefore, even if the plaintiff proves that he is entitled for the relief of rectification of the instrument and for other relief's, granting of such relief, would definitely prejudice the rights acquired by defendant No.1 under Ex.D2. 39. Therefore, even if the plaintiff proves that he is entitled for the relief of rectification of the instrument and for other relief's, granting of such relief, would definitely prejudice the rights acquired by defendant No.1 under Ex.D2. 39. The contention of the learned counsel for the appellant that Ex.D2 is null and void as defendant No.2 was not having right, title or interest over the schedule property after the same having been sold under Ex.P2, also cannot be accepted for the simple reason that Ex.P2 was not in respect of the schedule property, but it is in respect of a different survey number. The onus is on the plaintiff to prove his contention that defendant No.2 in fact executed Ex.P2 in respect of the schedule property and there was a mistake crept in, while describing the property. Even though the plaintiff had sought for the relief of rectification of the sale deed, during the course of addressing the argument, learned counsel for the appellant contends that the appellant gives up such prayer for rectification of the sale deed in view of the decision in Tibba Boyi @ Kariya (supra). 40. Even though the prayer for such relief is to be given up, to seek declaration of his right, the plaintiff is required to prove his contention that by mistake the survey number was wrongly mentioned in Ex.P2, but in fact, it refers to the schedule property. Even though the Trial Court and the First Appellate Court held this issue in favour of the plaintiff, the said findings are being challenged by the defendants. Therefore, the plaintiff is required to prove his contention that his father had acquired title over the schedule property under the registered sale deed Ex.P2. The co-ordinate Bench of this Court in Tibba Boyi @ Kariya (supra), made it clear that if without seeking the relief of rectification of mistake in the document, the plaintiff is able to prove his title to the schedule property, then only it is permissible in law to pass a decree declaring the title of the plaintiff as prayed, without granting the relief of rectification of the sale deed. The plaintiff has not thought it fit to examine defendant No.2 to prove the mistake that was committed while executing Ex.P2. The plaintiff has not thought it fit to examine defendant No.2 to prove the mistake that was committed while executing Ex.P2. Even though defendant No.2 has not contested the matter, the plaintiff could have summoned him to prove his contention that defendant No.2 was never owning the land described in Ex.P2. 41. The other contention taken by the learned counsel for the plaintiff that defendant No.1 has never pleaded acquisition of title over the schedule property by adverse possession will also of no help to the plaintiff, as it was never the contention of the defendant that he is claiming right over the property by adverse possession. Defendant No.1 is claiming right over the property under the registered sale deed Ex.D2 executed by defendant No.2. Therefore, Articles 64 and 65 of the Limitation Act are not applicable to the facts and circumstances of the case. 42. Learned counsel for the defendants placed reliance on the decision of the co-ordinate Bench of this Court in U Manjunath Rao Vs U Chandrashekar and another, 2021(1) KCCR 955 . to contend that the defence of the defendant that the suit of the plaintiff is barred by limitation which is supported by several documents that are placed before the Court, cannot be ignored to grant a decree of declaration or mandatory injunction. The Trial Court and the First Appellate Court concurrently held that the suit of the plaintiff is barred by limitation and dismissed the same. Merely because there is a finding regarding title of the plaintiff to the schedule property, he cannot take advantage of such finding when the suit itself is barred by limitation. 43. The discussions held above disclose that the suit of the plaintiff for the relief of rectification of the sale deed Ex.P2 and declaration of his title over the schedule property is hopelessly barred by limitation. Bar of limitation cannot be ignored for granting any of the reliefs in favour of the plaintiff. The concept of law of limitation and its consequences is that even if the plaintiff was having right over the property, by efflux of time, he will lose the remedy. Bar of limitation cannot be ignored for granting any of the reliefs in favour of the plaintiff. The concept of law of limitation and its consequences is that even if the plaintiff was having right over the property, by efflux of time, he will lose the remedy. Therefore, even if the findings of the Trial Court and the First Appellate Court that the plaintiff has proved that Ex.P2 was in respect of the schedule property and by mistake the survey number is wrongly shown as 372/1 instead of 376/1P2 is to be accepted, since the plaintiff slept over his right for such a long period and filed the suit after the period of limitation, disentitles him from getting any relief. The discussions held above do not justify the findings of the Trial Court and the First Appellate Court regarding proof of mistake crept while executing Ex.P2. Under such circumstances, the findings on issue Nos.1 and 3 are liable to be set aside as the same would affect the rights of defendant No.1. However, the conclusion arrived at by the Trial Court and the First Appellate Court that the plaintiff is not entitled for any relief is just and proper and the same is supported by reasons. Hence, I answer the substantial questions of law in favour of the defendants and against the plaintiff. 44. Accordingly, I proceed to pass the following: ORDER (i) RSA No.1210 of 2021 is dismissed. (ii) RSA No.229 of 2022 is allowed. (iii) The findings of the Trial Court on issue Nos.1 and 3 are set aside. The judgment and decree dtd. 20/1/2020 passed in OS No.335 of 2012 on the file of the learned Principal Civil Judge and JMFC, Srirangapatna, which was confirmed by the judgment and decree dtd. 29/9/2021 passed in RA No.9 of 2020 on the file of the learned Principal Senior Civil Judge and JMFC, Srirangapatna, in respect of findings on other issues are confirmed. Consequently, the suit of the plaintiff is dismissed. The parties are directed to bare their own cost under the peculiar facts and circumstances of the case. Registry is directed to send back the Trial Court records along with the copy of this judgment.