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2024 DIGILAW 287 (KAR)

Abhimannu v. Gayatri

2024-04-24

C M JOSHI

body2024
JUDGMENT : C M Joshi, J. The LRs of the defendant No. 1 in O.S.No.102/2001 are before this Court in second appeal challenging the divergent finding of the first appellate Court in R.A.No.4/2011 dated 24.01.2013 whereby the suit came to be decreed are before this Court. 2. The parties would be referred to as per their rank before the Trial Court for the sake of convenience. 3. The factual matrix of the case is as below: The Ratnabai wife of Hanmanth Rao had nine daughters. Plaintiff is daughter of the ninth daughter of Ratnabai. The defendant No.1/appellant is the son of Subhadrabai, who is fifth daughter of Ratnabai. Subhadrabai is defendant No.2 in the suit. The suit schedule property, which is the house bearing No.1-7-5 and 3 (old number), 1-7-4 (new number) situated at Purana Bazar Yadgir was standing in the name of Ratnabai. She executed a registered sale deed in favour of the grand father of the plaintiff, Bidarkar Ramachandra Rao on 15.11.1969 for a sum of Rs. 3,000/-. Plaintiff contend that Ramachandra Rao was in possession and enjoyment of the said property as absolute owner and his name was recorded in the municipal record and after his death, the name of the plaintiff is appearing in the municipal record and she is paying the tax. In the year 1991 the defendant started interference in enjoyment of the property and therefore she filed O.S.No.43/1991 for relief of injunction. After context the suit came to be dismissed, and appeal was filed in RA No.44/1995, which also came to be dismissed on 27.01.1999. Thereafter, the plaintiff was disposed from the suit schedule property illegally and when the plaintiff sought possession, the defendants refused and therefore the plaintiff filed the present suit i.e. O.S.No.102/2001 seeking the relief of declaration and possession of the suit schedule property. 4. The defendant No.1 resisted the suit contending that Hanmanth Rao S/o Siddoji Rao was the husband of Ratnabai and he was the owner of the suit schedule property. He died in the year 1960 living behind him Ratnabai and nine daughters. Therefore, Ratnabai and her nine daughters, including the defendant No.2 jointly inherited the suit property. They contended that the defendant No.1 and his mother defendant No.2 were looking after Ratnabai at Yadgir Town on 25.08.1989 and that she was of unsound mind. He died in the year 1960 living behind him Ratnabai and nine daughters. Therefore, Ratnabai and her nine daughters, including the defendant No.2 jointly inherited the suit property. They contended that the defendant No.1 and his mother defendant No.2 were looking after Ratnabai at Yadgir Town on 25.08.1989 and that she was of unsound mind. It was contended that defendant No.2 is in possession of suit property on her own right as the daughter of Hanumanth Rao and she is running a flour mill in the suit schedule property by obtaining necessary licence in the suit property now the defendant No.1 is doing carpentry work in the suit property. They also denied sale deed dated 26.12.1969 executed by Ratnabai in favour of Ramachandra Rao and contended that the suit is barred by limitation. 5. On the basis of the pleadings, the Trial Court framed necessary issues. The plaintiff was examined as PW1 and two witnesses were examined as PW2 and PW3 and Ex.P1 to Ex.P22 were marked. On behalf of the defendant No.1 was examined as DW1 and three witnesses examined as DW2 to DW4. Ex.D1 to Ex.D19 were marked in evidence. The Trial Court gave following findings on the issues framed and dismissed the suit. Issue No. Issue Finding 1. Whether the plaintiff proves that, her grand father purchased the suit property from Ratnabai through sale deed bearing No.940/1969-70, dt. 26.11.1969 and she became the owner of suit property by way of succession? In the negative 2. Whether the plaintiff further proves that, she came to the actual possession of suit property after the death of her father? In the negative 3. Whether the plaintiff further proves that the defendants or un-social elements of the town have dis-possessed the plaintiff from the suit property without having any right? In the negative 4. Whether the defendants prove that Ratnabai W/o Hanmanth Rao had no right to execute the sale deed and the defendants are having right over the suit property? In the affirmative 5. Whether the defendants prove that Ratnabai never executed the sale deed in respect of suit property in favour of Grand Father of plaintiff? In the affirmative 6. Whether the defendants further prove that the suit of the plaintiff is bad for non-joinder of necessary parties? In the affirmative 7. Whether the defendants prove that the Court Fee paid by the plaintiff is insufficient? In the affirmative 6. Whether the defendants further prove that the suit of the plaintiff is bad for non-joinder of necessary parties? In the affirmative 7. Whether the defendants prove that the Court Fee paid by the plaintiff is insufficient? In the affirmative 8. Whether the defendants further prove that the suit of the plaintiff is barred by Law of Limitation? In the affirmative 9. Whether the plaintiff is entitle for the relief as sought for? In the negative 10. What order or decree? As per final order. 6. Being aggrieved by the dismissal of the suit, the plaintiff approached the first appellate Court in R.A.No.4/2011. The first appellate Court admitted the appeal and permitted certain additional evidence let in on behalf of the appellant. Ex.Al and Ex.A2 were marked after examining the plaintiff further. The respondent also adduced further evidence and Ex.Rl to Ex.R4 were marked. After hearing the arguments, the first appellate Court formed point for consideration and answered the same as below and decreed the suit holding that the plaintiff is absolute owner of the suit property and the defendant are liable to be hand over the possession of suit property to the plaintiff. SI.No. Points Finding 1. Whether the trial court is justified in holding that, the plaintiff has failed to prove that, she is the owner of suit property? In the negative 2. Whether the trial court is justified in holding that, Ratnabai had no right to execute the sale deed in favour of Bidarkar Ramchander Rao? In the negative 3. Whether the trial court is justified in holding that, Ratnabai has not executed the sale deed in favour of grand father of plaintiff? In the negative 4. Whether the trial court is justified in holding that, suit is bad for non-joinder of necessary parties? In the negative 5. Whether the trial court is justified in holding that, suit is not properly valued and court fee paid is not correct? In the negative 6. Whether the trial court is justified in holding that, suit is barred by limitation? In the negative 7. Whether the trial court is justified in holding that, plaintiff is not entitled for the reliefs sought for in the suit? In the negative 8. Whether the judgment and decree passed by the trial court are liable to be set aside? In the affirmative 9. What order? As per final order. 7. In the negative 7. Whether the trial court is justified in holding that, plaintiff is not entitled for the reliefs sought for in the suit? In the negative 8. Whether the judgment and decree passed by the trial court are liable to be set aside? In the affirmative 9. What order? As per final order. 7. Being aggrieved by the reversal of the finding of the Trial Court, the LRs of the defendant No.1 approached this Court in second appeal. This Court while admitting the appeal framed the following substantial question of law. 1. Whether the first appellate court has committed any legal error in coming to the conclusion that the plaintiff has establish title over the property in the absence of any title documents during the life time of her father? 2. Whether the first appellate Court has committed any serious legal error in giving finding that the suit filed by the plaintiff was in time? 8. The learned counsel appearing for the appellants submits that there is no evidence to show that Ratnabai had acquired the suit schedule property independently, out of her own income. He submits that the Ex.A1 is unregistered sale deed executed by Ramgopal and Ramkishan in favour of Boggaji Rao S/o Siddoji Rao in the year 1356 fasli. It is contended that the said unregistered sale deed is not of any help to the plaintiff, since it is unregistered and boundaries are different. He contends that when there is no evidence on record to show that Ratnabai did not have absolute title, she had no right to alienate the property in favour of Ramachandra Rao, the grand father of the plaintiff in the year 1969. It is contended that name of Ratnabai was entered as heir of Hanumanthrao and taking advantage of the same, a sale deed was created in the name of Ramachandra. It is contended that the Ex.A2, which is marked in the appeal show that the municipal council had intimated the entry of the name of Ratnabai to her in the year 1951. Evidently, the Ex.P22, which is endorsement given by the municipal council Yadgir show that the council came into existence only in the year 1952, therefore Ex.A2 is not of any help to the plaintiff. Evidently, the Ex.P22, which is endorsement given by the municipal council Yadgir show that the council came into existence only in the year 1952, therefore Ex.A2 is not of any help to the plaintiff. It is contended that there is no absolutely no material on record to show that the property had vested with the father of the plaintiff by way of inheritance from Ramchandra Rao and therefore the plaintiff cannot be the absolute title holder of the property. 9. Regarding limitation he submits that the earlier suit i.e. O.S.No.43/1991 was filed on 04.04.1991, written statement was filed on 25.02.1992 wherein the title and possession came to be denied and therefore in view of Article 58 to the Limitation Act, right to sue had first accrued in 1992. Therefore, the suit is barred by time. In this regard, relied on the judgment in the case Khatri Hotels Private Limited and another v. Union of India and another 2011(9) SCC 126 . He also relied on the judgment of this Court in Seshumull M.Shah v. Sayed Abdul Rashid and others AIR 1991 Karanataka 273, and also Union of India and others v. Vasavi Cooperative Housing Society Limited and others 2014 (2) SCC 269 . Per contra, the learned counsel for the respondent/plaintiff contended that even prior to the sale deed executed by Ratnabai as per Ex.Pl, the name of Ratnabai was appearing in the municipal records and therefore it has to be held that Ratnabai was the absolute owner of the same. He contends that at no point of time, the property was owned by Hanumanth Rao. Therefore, it was exclusive property of Ratnabai. A person disputing the absolute ownership of Ratnabai and the person who is contending that it was joint family property of her Ratnabai and her daughter has to be establish the same. Therefore, when the defendants have failed to prove that any point of time the property was owned and possessed by Hanumanth Rao, it has to be held that it was owned by Ratnabai alone. Therefore he contends that no fault can be found with finding of the first appellate Court. Therefore, when the defendants have failed to prove that any point of time the property was owned and possessed by Hanumanth Rao, it has to be held that it was owned by Ratnabai alone. Therefore he contends that no fault can be found with finding of the first appellate Court. He submits that though the defendant had disputed the title in his written statement in OS No.43/1991, the plaintiff has contended that she was dispossessed after dismissal of the regular appeal and therefore, when she has sought for possession, the limitation is 12 years as per Article 68 of Limitation Act. Hence, he contends that the suit is in time. 10. From the above submission, it is evident that the municipal records of Yadgir Town show that the name of Ratnabai was appearing in the records as owner. The contention of the appellant herein is that she was not absolute owner but her nine daughters had also inherited the same from Hanumanth Rao. Admittedly Hanumanth Rao was died in the year 1960. The Ex.P1, sale deed is executed by Ratnabai on 15.11.1969, it bears the LTM of Ratnabai along with the sketch of the property. Under the sale deed, the property is described as H.No.1-7-5 bounded by godown of Aspalli on East, House of Shantabai on West, Purana Bazar Road on North, Shop of Vishwanath on South. The said property was sold to B.Ramachandra Rao. Ex.P2 is the order of Town Municipality of Yadgir dated 19.12.1985, thereby the name of B.Ramachandra was deleted and the name of plaintiff was entered as a owner. The Ex.P3 to Ex.P5 are the tax assessment register extract of the Town Municipal Council, which show that initially property was in the name of Ramasingh S/o Mallappa and later, it was entered in the name of Ratnabai W/o Hanumanthrao. Thereafter, the name of Bidarkar Ramachandra Rao was entered. The dates on which such entries were made are shown to be 18.03.1968, 14.01.1971 and 24.02.1972. It is pertinent to note that nowhere the name of Hanumanth Rao is finding place in the records. The Ex.P5 appears to be the latest extract and the dates of the mutation are not appearing in it. 11. Ex.P6 to Ex.P20 are the tax payment receipts standing in the name of the plaintiff for the year 1991 onwards. None of these documents pertains to the year prior to 1991. The Ex.P5 appears to be the latest extract and the dates of the mutation are not appearing in it. 11. Ex.P6 to Ex.P20 are the tax payment receipts standing in the name of the plaintiff for the year 1991 onwards. None of these documents pertains to the year prior to 1991. Ex.P22 is the endorsement by the Town Municipal Council stating that the town Municipal Council that is Purasabe was established in the year 1952-53 and the information prior to 1951 may be available at Tahasildar office. 12. Ex.A1 is an unregistered sale deed of the Municipal No.1114 of Yadgir bounded by House of Bandi Ram on East, House of Champaji Rao on West, Government way on North and Shop of Haji Jaj Mohammad Mohter on South. It was sold in favour of Boggaji Rao for a sum of Rs. 2,000/- in the year 1356 falsi. It is pertinent to note that this document is no way, can be presumed to be the suit property. Except the mentioning of the fact that there is a road on North, the remaining boundaries do not tally unless the subsequent transactions are also brought on record by the plaintiff. So also, it is not known who is Boggaji Rao. It cannot be presumed that Boggaji Rao was the brother of Hanumanthrao. Ex.A2 is a intimation written in Urdu, bearing a round seal which is not a decipherable. The English translation states that it was addressed to Ratnabai and in pursuance to her application dated 27.08.1951, her name is entered in the place of Ramasingh Mallappa Arod in the tax register and the letter is dated 06.11.1951. It is not on the official stationary of the municipal council. 13. Per contra, defendants have produced documents to show that to run a flour mill, permission was granted to Subhadrabai on 18.10.1966 in the premises of Ratnabai i.e. H.No.1-7-5. The plan, permission, receipts etc. are produced by the defendants at Ex.D1 to Ex.D14. Ex.D18 is the khata extract of the house property issued by Municipality Yadgir pertaining to the year 1951. Curiously the translated copy of this document is mentioned the name of Ramasingh S/o Mallahar Rao and the name of Hanumanthrao S/o Siddaji Rao. It is suppressing to note that the name of two persons is entered for the house No.5, situated at Ward No.1 Block No.7. Curiously the translated copy of this document is mentioned the name of Ramasingh S/o Mallahar Rao and the name of Hanumanthrao S/o Siddaji Rao. It is suppressing to note that the name of two persons is entered for the house No.5, situated at Ward No.1 Block No.7. If at all the contention of the appellant that in the year 1951, there was no such municipal council is to be accepted, then Ex.D18 is also not believable. Ex.R1 to Ex.R.4, which were marked in the first appeal are the plaint, the written statement, judgment and decree in OS No.43/1991. 14. The Trial Court in its judgment, from para 10 to 17 analysis the evidence on record and ultimately it came to the conclusion that after Hanumanthrao, Ratnabai acquired the suit property along with her nine daughters based on the contention that the defendants are in possession of the property and also that Ratnabai was the grandmother of defendant No.1 as well as the plaintiff. It is relevant to note that Ramachandra Rao Bidarkar, who purchase the property from Ratnabai was the father-in-law of the mother of the plaintiff. The Trial Court do not mentioned anything as to why Ratnabai is not the absolute owner of the property. It only says that the plaintiff has not produced any believable evidence to prove her contention. While considering the issue No.4 to 6 in para 18 and 19 it observed that Hanumanth Rao died in the year 1960, Ratnabai succeeded to the property. It is relevant to note that nowhere the Trial Court consider as to how and were Hanumanth Rao is shown to be the owner of the suit schedule property. It also holds that since beginning the defendants are in possession of the property and the suit is filed in the year 2001 and therefore the suit is barred by limitation. Evidently the finding of the Trial Court is not on application of the mind to the facts of the case and the law of limitation. It nowhere makes an effort to trace the title to the suit schedule property when obviously the suit is for declaration of the title and possession. 15. The first appellate Court in its judgment, notes that Ex.P1 dated 15.11.1969 was tendered in evidence after 30 years of its execution and therefore, a presumption has to be drawn Under section 90 of the Evidence Act. 15. The first appellate Court in its judgment, notes that Ex.P1 dated 15.11.1969 was tendered in evidence after 30 years of its execution and therefore, a presumption has to be drawn Under section 90 of the Evidence Act. Therefore, it holds that the further proof of Ex.P1 was not necessary as it is a registered sale deed executed by Ratnabai in accordance with law. It also note that Ratnabai and her daughter had not challenged the sale deed at any point of time. Even though the name of the plaintiff was entered in the municipal records in the year 1985, the defendants have not challenged the same. It also notices that prior to 1985, the name of grandfather of the plaintiff Ramachandra was appearing in the record. Therefore it holds that they have got presumptive value in the eye of law. It also noticed that defendants have not proved that Hanumanth Rao was the owner of the property and it discarded Ex.D18 and believed Ex.A2. It also noticed that the suggestion of PW1 to PW3 by the defendant that Hanumanth Rao was purchased the property could not be considered since no such contention was taken by the defendants in the written statement. Therefore, the totality of the circumstances, it was held that plaintiff had proved the title over the property and as such decreed the suit. 16. The evidence on record would show that though the defendants contended that Hanumanth Rao was the owner of the suit schedule property and after his demise, it devolved upon Ratnabai and her nine daughters. There is no material on record to show that the property was owned by Hanumanth Rao at any point of time. The documents produced by the plaintiff show that the name of Ratnabai was appearing in the municipal records much prior to 1969. The documents produced by the defendants show that the property was owned by Ratnabai and Subhgadrabai who is daughter of Ratnabai was permitted to run a flour mill in the property. Subhadrabai had paid the licence fee from time to time as per produced by the defendants. Though a feable attempt is made by the defendants to contend that the property was owned by Hanumanth Rao, there is no absolute material to show that either the property devolved upon him from his father Siddaji Rao or brother Boggaji Rao. Subhadrabai had paid the licence fee from time to time as per produced by the defendants. Though a feable attempt is made by the defendants to contend that the property was owned by Hanumanth Rao, there is no absolute material to show that either the property devolved upon him from his father Siddaji Rao or brother Boggaji Rao. Therefore, Ex.A1 is not of any relevance either to plaintiff or the defendants. 17. In a suit for declaration of title, it is necessary to trace the flow of title to the parties to the lis. In the case on hand, there are no such title deeds, it show that Ratnabai had acquired the title under a deed. However, the municipal records show that her name was appearing much prior to the 1966. Though Ex.A2, has certain suspicious circumstances to place reliance, it cannot be brush aside. It is supported by the Ex.P3, the tax assessment extract of the municipal counsel, which show the name of Ramasingh, Ratnabai and Ramachandra Rao. If at all the property was held by Hanumanth Rao, definitely his name might have been entered in the records. So also, after death of Ramachandra Rao, the name of the father of the plaintiff was not entered in the record. A transfer of title through mutation entries is despised by the Courts as an improper conveyance of title, the practice was enforce and in continue with defiance. 18. The title to a immovable property will transfer only by the four modes available and recognized under law. Sale, gift, Will and inheritance are the only known modes of transfer under the Transfer of Property Act. In the absence of any title deed, the Courts have to consider the title based on continuous use, occupation and enjoyment uninterruptedly for long time. The laws presumed that if such uninterruptedly possession claiming to be the owner was for more than 12 years, than a plea of adverse possession can be taken seeking the title to the property. Evidently, the document which show an uninterrupted possession enjoyment and assertion would become the documents of title. It is not necessary that each and every documents should have a title deed. A property which is inherited from generations would have a title in the person who had inherited it. 19. Evidently, the document which show an uninterrupted possession enjoyment and assertion would become the documents of title. It is not necessary that each and every documents should have a title deed. A property which is inherited from generations would have a title in the person who had inherited it. 19. The law recognizes the mutation entries and the municipal records as a source of title since they are kept in due course of business by the local body or the Government for the purpose of collection of the land revenue or the tax. Since the records are kept in due course of business and only a person who possess the title would be made liable for the taxes and revenues, such records, if proved to be long standing and uninterrupted, would attain the status of a proof of title. Such documents showing the title are rebuttable by the party who disputes the title. 20. When we examined the facts in the present case, it is evident that the suit property was standing in the name of Ratnabai much prior to 1966, may be since 1951, and it continued to be so until 1969 when Ex.P1 is executed. None of the nine daughters of Ratnabai had objected to it from 1960 till 1969. No such objections were raised from 1969 till the year 1991. Obviously Ratnabai has sold the property in the year 1969. Name of Ramchandra Rao was appearing in the municipal records since 1971. After death of Ramachandra Rao, the name of the father of the plaintiff was not entered. It is not known when the father of the plaintiff died and whether he predeceased Ramachandra Rao. Therefore in the year 1985 name of the plaintiff was entered in the municipal records. There is nothing on record, except Ex.D18 to show that the name of Hanumanth Rao was appearing in the municipal records till the year 1960 when he died. Therefore, the reasoning given by the first appellate Court that the plaintiff has established the title deserves to be upheld. It is not necessary that plaintiff should have placed on record that her father had inherited the property from her grandfather Ramachandra Rao. There is no evidence as to why the name of father of the plaintiff was not entered in the municipal records. It is not necessary that plaintiff should have placed on record that her father had inherited the property from her grandfather Ramachandra Rao. There is no evidence as to why the name of father of the plaintiff was not entered in the municipal records. The cross examination of the PW1 show that she denied that the suit property was purchased by Hanumanth Rao but she says that it was held by the father of Ratnabai, in which case it become Stridhana property of Ratnabai. 21. Be that as it may, even if we hold that there is no document to show that the suit property was held by Ramachandra Rao and after his death, it has devolved upon the father of the plaintiff Baburao, obviously the plaintiff being the daughter of Baburao is entitled to put forth her claim. Nowhere in the cross examination of PW1, it is elicited that father of the plaintiff is either alive or not. It is not the case of the defendants that father of the plaintiff is also a necessary party. Hence, this Court do not find that the first appellate Court erred in holding that the plaintiff has established title over the property in the absence of documents in favour of the father of the plaintiff Baburao. 22. The municipal records permit the title to be traced at least till the year 1966 and with certain reservation till the year 1951 as per Ex.A2. Though Ex.A2 and Ex.D18 are hit by the Ex.P22 the endorsement issued by the Municipal Council Yadgir that the council came in to the existence in the year 1952-53, none of these documents show that the property was standing in the name of Hanumanth Rao. If at all the contention of the defendants that the property was owned by the Hanumanth Rao is to be accepted, the contention of the plaintiff that it was Stridhana property of Ratnabai can also be possible. When a property vest in a Hindu woman by whatever means, it becomes her exclusive property, the burden is on the person who contents that the woman had acquired the property by way of inheritance. It is settled principle of law that the source of acquisition of property by woman cannot be permitted to be probed. Therefore, I am unable to accept the contention of the learned counsel appearing for the appellant. 23. It is settled principle of law that the source of acquisition of property by woman cannot be permitted to be probed. Therefore, I am unable to accept the contention of the learned counsel appearing for the appellant. 23. The judgment in the case of Union of India and others v. Vasavi Cooperative Housing Society, lays down that the entries in the revenue records do not confer any title. Obviously the plaintiff in the case on hand is basing her claim on the sale deed executed by Ratnabai in favour of Ramachandra Rao. There is iota of evidence to show that Ratnabai was not the owner of the property. Revenue entry showed her name to be the owner. In the absence of any material by the defendants to show that husband of Ratnabai was the original owner, the decision of Vasavi Cooperative Housing Society cannot be of any help to the appellants. 24. Coming to the second point of limitation, it is evident that the suit in OS No.43/1991 was for bear injunction. The written statement of the appellants from which is at Ex.R2. No doubt the defendant had raised the contention that the plaintiff do not have the title to the property, it was in a suit for injunction. After dismissal of the appeal, which confirmed the rejection of the claim of the plaintiff in OS No.43/1991, the plaintiff ha filed the present suit contending that she was dispossessed from the suit schedule property. Thus, she has claimed not only declaration, but also possession of the property. Obviously the possession of the property can be filed within 12 years from the date of dispossession. Even if we hold that 12 years is the limitation from the date of filing of written statement as per Ex.R2 in the year 1992, the present suit is in time. 25. The judgment in the case of Seshumull M.Shah referred supra in para 7 states as below: "So far as the first submission is concerned, it proceeds on the assumption that the suit was merely a suit for declaration pf title and nothing else. It is not possible to accept this submission. In the plaint, the plaintiff has stated the manner in which she acquired title to the suit lands. She then stated the facts about the necessity to appoint her son-in-law defendant No. 2 as her manager to look after her properties. It is not possible to accept this submission. In the plaint, the plaintiff has stated the manner in which she acquired title to the suit lands. She then stated the facts about the necessity to appoint her son-in-law defendant No. 2 as her manager to look after her properties. She has then stated about the manner in which defendant No. 2 dealt with her properties and ultimately her knowledge about the fact that defendant No. 2 had got a patta made in his own name in respect of the suit lands and his selling the suit lands to defendant No. 1. On such pleadings, the plaintiff claimed not merely a declaration that she was the owner of the property and that the sale deed executed by the 2nd defendant in favour of the first defendant was void, but also a relief for possession of the suit lands and damages amounting to Rs. 1,500/- from defendant No. 1, who, it was alleged, had cut a standing Tamarind tree on the land in question. To me it is obvious that such a suit where possession is claimed as a consequence of the declaration would be governed by Art. 65 and not Art. 58 of the Limitation Act. The first submission must therefore be rejected." 26. The judgment of the Apex Court in the case of Khatri Hotels Private Limited and another v. Union of India and another, is pertaining to a suit for declaration and injunction. There is no dispute that a suit for declaration and injunction has to be filed within three years from the date of denial of the title, when the right to sue accrues. Article 58 of the Limitation Act is applicable. In the case on hand, it is a suit for declaration and possession therefore it is Article 68 which has to be applied. Consequently, the first appellate Court has rightly given a finding that the suit filed by the plaintiff is in time. It also relied on the judgment in the case of Indira v. Arumugam And Another, rendered by the Apex Court, reported in ILR 1998 Kar. 1422 (SC). Therefore, the second question of law is answered in the negative. 27. In the light of above discussion, the second appeal is bereft of any merits. Hence the following: ORDER The appeal is dismissed with costs.