Research › Search › Judgment

Karnataka High Court · body

2023 DIGILAW 382 (KAR)

Laxmibai v. Raghavendra

2023-03-06

H.T.NARENDRA PRASAD, T.G.SHIVASHANKARE GOWDA

body2023
JUDGMENT H.T. NARENDRA PRASAD, J. This appeal is filed under Sec. 96 of the Code of Civil Procedure by the plaintiff - appellant challenging the judgment and decree dtd. 5/2/2018 passed by the Senior Civil Judge and JMFC, Kundgol in O.S. No.26/2014, whereby the suit filed by the plaintiff is dismissed. 2. For the convenience, the parties are referred to their ranking as per the Trial Court. 3. Plaintiff has filed suit for declaration declaring that sale deed dtd. 9/5/2003 and 1/1/2014 in faovur of defendant Nos.1 to 3 in respect of suit schedule properties are illegal and not binding on the plaintiff nor in the interest of the plaintiff over the suit schedule property in any manner whatsoever and alternatively, if the Court comes to the conclusion that the plaintiff is not in possession of the suit property, then the Court to pass an order directing the plaintiff Nos.1 to 3 to hand over the vacant and actual possession of the suit property. 4. Brief facts of the case are that the suit schedule properties bearing CTS No.2187, TMC No.2940/A consisting of house and backyard situated at Kundagol as mentioned in the suit schedule, originally belongs to Basappa S/o. Banappa Annigeri, who was the grandfather of the plaintiff. Further case of the plaintiff that Basappa Annigeri has executed registered Will on 7/7/1964 in respect of the suit schedule property in favour of his wife Somavva. The said Basappa Annigeri died on 15/7/1964. After his death, Iravva enjoyed the said properties as per the conditions put by Basappa Annigeri and further Basappa Annigeri made clear that his wife and daughter-in-law having right to enjoy the suit property in their life time and further also mentioned in the Will that his properties shall go to his granddaughter Laxmavva, who is the plaintiff and further also mentioned that Laxmavva shall become the owner. The said Iravva expired in the year 1968 and Somavva expired on 21/11/2011. After the death of Iravva and Somavva, plaintiff became absolute owner and in actual possession and enjoyment of the suit property in view of the Will executed by Basappa Annigeri. 5. The further case of the plaintiff that the defendant No.3 taking an undue advantage of entry made in his name, executed a sale deed in favour of defendant No.1. Defendant No.1 in turn, portion of the property has been sold in faovur of defendant No.2. 5. The further case of the plaintiff that the defendant No.3 taking an undue advantage of entry made in his name, executed a sale deed in favour of defendant No.1. Defendant No.1 in turn, portion of the property has been sold in faovur of defendant No.2. Since the plaintiff has absolute right and title over the property, she has filed a suit for declaration. On service of summons, the defendant Nos.1 and 2 appeared through their counsel. Defendant No.1 has taken a contention that as per the family settlement, the plaintiff has relinquished her right in favour of defendant No.3 on 21/4/1998. Since the defendant No.3 is the absolute owner of the property, he has rightly executed a sale deed in favour of defendant No.1. They have also taken a specific contention that the suit is barred by limitation. On the basis of the pleadings of the parties, the Trial Court framed the following issues 1 o 6. 1. Whether the plaintiff proves that the sale deeds dtd. 9/5/2003 and 1/1/2014 executed in favour of defendants No.1 and 3 in respect of suit schedule property is illegal, null, void and not binding on her? 2. Whether the defendant No.1 proves that the plaintiff has relinquished her right over the suit schedule property by way of 'Kutumba Vevasta Smaranarta Tippani' dtd. 21/4/1998? 3. Whether the defendant No.1 further proves that he is in possession of suit schedule property by virtue of sale deed dtd. 9/5/2003 and in respect of suit schedule property? 4. Whether the plaintiff is entitled/relief of declaration and permanent injunction as prayed for? 5. Whether the plaintiff is entitled the alternative relief of possession of suit schedule property? 6. What order or decree? 6. To prove the case, the plaintiff examined herself as PW1 and marked Exs.P1 to P8. Defendant No.1 is examined as D.W.1 and defendant No.2 is examined as D.W.2. They have produced Exs.D1 to D24. On the basis of the oral and documentary evidence of the parties, the Trial Court has answered issue Nos.1, 4 and 5 negative and issue Nos.2 and 3 as affirmative. As per the final order, the suit is dismissed. 7. Being aggrieved by the same, the defendant is before this Court. 8. They have produced Exs.D1 to D24. On the basis of the oral and documentary evidence of the parties, the Trial Court has answered issue Nos.1, 4 and 5 negative and issue Nos.2 and 3 as affirmative. As per the final order, the suit is dismissed. 7. Being aggrieved by the same, the defendant is before this Court. 8. Sri.Mahesh Wodeyar, learned counsel appearing for the plaintiff has contended that even though Trial Court has framed five issues, no issue has been framed in respect of limitation or in respect of non-joinder of necessary parties and without giving any opportunity to the parties, the Trial Court has dismissed the suit on the ground that the suit is barred by limitation. In fact, the Trial Court has not framed any issue in respect of limitation. Therefore, the judgment and decree passed by the Trial Court is contrary to Order XIV of CPC. 9. Secondly, learned counsel for the appellant - plaintiff further contended that the plaintiff has filed a suit for declaration and not for any partition. Therefore, question of non-joinder of necessary parties would not arise. The Trial Court erred in holding that Iravva has not been made as a party in the suit, in fact Iravva has died in the year 1968 itself. Therefore, the judgment and decree passed by the Trial Court is error apparent on the face of the record. Hence, he sought for allowing the appeal. 10. Per contra, Sri.Zanza Joshi, learned counsel appearing for the defendant No.2 has contended that the plaintiff herself has executed a relinquish deed, relinquishing her right in favour of respondent No.3 by family settlement dtd. 21/4/1998. She has no right or title over the suit schedule property. Therefore, suit filed by the plaintiff itself is not maintainable. Secondly, learned counsel further contended that plaintiff is aware that the respondent No.3 has sold the suit schedule property in favour of defendant No.1 by a registered sale deed dtd. 9/5/2003. The suit is filed in the year 2014. There is a delay in filing the suit. The suit is hit by Article 58 of the Limitation Act, 1963. The Trial Court has rightly dismissed the suit. Hence, he sought for dismissal of the appeal. 11. Heard the learned counsel for the parties. Perused the judgment and decree and original records. 12. There is a delay in filing the suit. The suit is hit by Article 58 of the Limitation Act, 1963. The Trial Court has rightly dismissed the suit. Hence, he sought for dismissal of the appeal. 11. Heard the learned counsel for the parties. Perused the judgment and decree and original records. 12. The point for consideration before this Court is that, i) Whether judgment and decree passed by the Trial Court is perverse, error and it requires any interference by this Court? ii) Whether the Trial Court is justifying in dismissing the suit on the ground of limitation without framing any issues on the point of limitation? 13. It is not in dispute the suit schedule properties belongs to Basappa Annigeri, who is the grandfather of the plaintiff. It is also not in dispute that defendant No.3 is the son of the plaintiff. It is also not in dispute that Basappa Annigeri has executed a Will dtd. 7/7/1964 in favour of Somavva with a right of enjoying in favour of Iravva. After the death of Basappa Annigeri, Iravva and Somavva, the property will come given in the hands of the plaintiff. Only contention which is raised that, the plaintiff has executed a relinquish deed in favour of defendant No.3 on 21/4/1998 and she has lost her rights over the property. On the basis of the pleadings of the parties, the Trial Court has framed issue on that point also. The Trial Court has not given any finding in respect of issue Nos.1 and 6. The suit has been dismissed on the basis that the suit is hit by Article 58 of the Limitation Act. In fact, the Trial Court has not framed any issue in respect of limitation and has not given any finding in respect of issue Nos.1 and 6. On the other hand, the Trial Court has dismissed the suit on the basis of limitation that the suit is barred by limitation in view of Article 58 of the Limitation Act. Since there was no issue on that limitation and parties have not been given any opportunity to adduce the evidence, we are of the opinion that the matter requires to be remitted back to the Trial Court for fresh consideration after framing additional issues. Accordingly, we proceed to pass the following: ORDER The appeal is allowed. The judgment and decree dtd. Accordingly, we proceed to pass the following: ORDER The appeal is allowed. The judgment and decree dtd. 5/2/2018 passed by the Senior Civil Judge and JMFC, Kundgol in O.S. No.26/2014 is set aside. The matter is remitted back to the Trial Court with a direction to frame additional issue in respect of limitation and parties may be permitted to adduce the evidence and reconsider the matter afresh in accordance with law.