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2023 DIGILAW 945 (KAR)

M. S. Susheelamma v. Adiratnamma

2023-08-01

V.SRISHANANDA

body2023
JUDGMENT 1. Heard Sri learned counsel B.S.Manjunath for appellant and Sri Shankar Reddy for respondents. 2. Appeal filed by the unsuccessful plaintiff challenging the order dtd. 29/6/2007 on issue No.2 passed in O.S.No.7560/2005 and holding issue No.2 in negative and consequently dismissing the suit of the plaintiff as barred by limitation. 3. Brief facts of the case are as under: Plaintiffs filed a suit for declaration and injunction with the following prayer: "Wherefore, the plaintiff respectfully prays that this Hon'ble Court may please to pass a judgment and decree; (i) Declaring that plaintiffs have perfected their title to the suit schedule property by adverse possession, (ii) For permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit schedule property by the plaintiff. (iii) To award costs and grant such other reliefs as this Hon'ble Court may deem fit in the facts and circumstances of the case in the interest of justice and equity." 4. Earlier to filing of the suit the plaintiffs had filed O.S.No.3518/2002 which came to be dismissed for non- payment of the requisite Court fee on 1/8/2005. A Miscellaneous petition was filed in Miscellaneous No.565/2005 seeking for restoration of the said O.S.No.3518/2002 which also came to be dismissed as not maintainable in view of Order 7 Rule 13 of CPC. Later on, suit O.S.No.7560/2005 is filed with the aforesaid prayer. 5. It is contended that the defendants are daughter and son-in-law of the plaintiffs. Property bearing Site No.11, Assessment No.32, Khata No.306, situated at Bhoopsandra Village, Kasaba Hobli, Bengaluru North Taluk, measuring East to west 21 ft x 6 ft and North to South 43 ft, in all 928.8 sq ft with a residential building (16 squares) is the subject matter of the suit. 6. According to the plaintiffs, based on the power of attorney executed in favour of Sri Venkatesh by original owner Chikkavenkatappa, Venkatesh sold the suit property in favour of the defendant No.2 who is the son-in-law of plaintiffs. It is further contended that defendant No.2 in turn executed a power of attorney and wanted to sell the portion of property which is suit property for a valuable consideration of Rs.1, 00, 000.00 executed a power of attorney and an affidavit. Dispute arose between the parties with regard to the power of attorney. It is further contended that defendant No.2 in turn executed a power of attorney and wanted to sell the portion of property which is suit property for a valuable consideration of Rs.1, 00, 000.00 executed a power of attorney and an affidavit. Dispute arose between the parties with regard to the power of attorney. It is contended by the plaintiff that in the year 1999 there was a cancellation of the power of attorney and affidavit by the defendants in favour of the plaintiffs resulting in plaintiffs approaching the Court of law first in the year 2002 and subsequently in the year 2005. It is also contended on behalf of the plaintiffs that at the time of execution of the power of attorney and the affidavit defendant No.2 had taken sum of Rs.1, 00, 000.00, a sale deed is also executed but it was not registered and plaintiffs were put into the possession of the property. 7. After dismissal of O.S.No.3518/2002 and the Miscellaneous No.565/2005, a comprehensive suit in O.S.No.7560/2005 came to filed by the plaintiffs seeking the aforesaid prayer. 8. Suit was contested by filing the detailed written statement inter alia taking a plea that the suit is barred by time in view of Sec. 58 of the Limitation Act. 9. After pleadings were complete, trial Court raised necessary issues and issue No.2 reads as under: "whether the suit is barred by time in view of Sec. 58 of the Limitation Act?" 10. Parties were heard with regard to the question of limitation and after detailed argument, by the impugned order dtd. 29/10/2007, the learned trial Judge dismissed the suit by holding issue No.2 in affirmative. 11. The learned trial Judge also referred to para No.19 of the plaint which is culled out in the impugned order. For the sake of certainty and clarity said paragraph is extracted hereunder: "19. The defendants attempted to illegally dispossess the plaintiffs and grab the suit schedule property to make unjust gain. The plaintiffs filed a suit O.S.No.3518/2002. In the said suit the defendants appeared and have filed their written statements. The defendants have admitted that the plaintiffs are in possession of the suit schedule property. The plaint in O.S.No.3518/2002 was rejected on 1/8/2005 under Order VII Rule 11 CPC for non-payment of Court fees. There afterwards the plaintiffs filed Misc.565/2005 for recalling the order of 1/8/2005. However, by an order dtd. The defendants have admitted that the plaintiffs are in possession of the suit schedule property. The plaint in O.S.No.3518/2002 was rejected on 1/8/2005 under Order VII Rule 11 CPC for non-payment of Court fees. There afterwards the plaintiffs filed Misc.565/2005 for recalling the order of 1/8/2005. However, by an order dtd. 26/9/2005 in Misc.565/2005 it was observed that the Rule 13 of Order 7 CPC enable the plaintiff to file the plaint with requisite Court fee." 12. On perusal of the aforesaid paragraph and in the light of in Miscellaneous No. 565/2005 came to be dismissed and in the light of the fact that there is an averment in the plaint that in the year 1999 photocopy of the cancelled power of attorney and affidavit is supplied to the plaintiffs and plaintiffs contention that they were put into possession of the property in the year 1987, the suit would not have been dismissed only on the question of law as issue No.2 was to be decided along with the main as it required leading of evidence in view of the disputed facts. It is settled principles of law and requires no emphasis that question of limitation where there are serious disputed facts, is a mixed question of law and facts and adducing evidence by the parties is utmost necessary to arrive at a finding that suit is barred by limitation or not. 13. Sri Shankar Reddy, learned counsel for respondents however tried to support the impugned order by contending that on the face of it if the suit is barred by limitation, there is no necessity for the trial Court to ponder over other issues and to know the judgment on all issues. 14. Such a proposition of law is no doubt true but in the case on hand, since the plaintiffs have categorically contended that there was a power of attorney executed by defendant No.2 in their favour and they were put in possession of property from the year 1987 and the same is evident by canceling the power of attorney by sending the photocopies of the cancelled power of attorney and the affidavit in the year 1999, this Court is of the considered opinion that recording of evidence of parties is utmost necessary for trashing out the real dispute among the parties. Accordingly, this Court is of the considered opinion that appeal needs to be allowed and matter be remitted for disposal in accordance with law. Hence, following: ORDER (i) Appeal is allowed. (ii) Impugned order dtd. 29/6/2007 passed by the V Additional City Civil Judge (CCH-13) at Bangalore City, is hereby set aside. (iii) Matter is remitted to the trial Court for expedite disposal in accordance with law. It is made clear that parties are at liberty to lead evidence on all issues and issue of limitation including the issue of limitation uninfluenced by the order passed by the learned trial Judge dtd. 29/6/2007 and the observations made by this Court during the course of this order and dispose of the suit in accordance with law. (iv) Having regard to the fact that the suit is of the year 2007, the trial Court shall expedite the disposal of the suit and suit shall be disposed of on or before 31/3/2024. (v) Needless to emphasize the parties shall cooperate for the same. (vi) Parties shall appear before the trial Court positively on 22/8/2023 without further notice.