JUDGMENT : (PER: HON'BLE MR JUSTICE V SRISHANANDA) Heard Sri Sumantha S., learned counsel representing Sri P.B. Appaiah, counsel for the appellants. None represents the respondents. 2. Unsuccessful plaintiffs are the appellants before this Court challenging the validity of judgment and decree passed by the Principal Civil Judge (Sr.Dn), Hassan in O.S.No.183/2001, dated 26.02.2007. 3. Parties are referred to as plaintiffs and defendants for the sake of convenience as per their original ranking before the trial Court. 4. Facts in the nutshell which are utmost necessary for disposal of the present regular first appeal are as under: 4.1. A suit for declaration came to be filed by the plaintiffs in respect of the following properties (hereinafter referred to as ‘suit properties’) and also holding that redemption of mortgage in favour of defendant No.2 in respect of suit property will not bind the plaintiffs. Further, declare that the sale deed dated 10.02.1976 in favour of defendant No.1 by defendant No.2 does bind the plaintiffs and also for possession. 4.2. Suit properties are the agricultural land situated at Siddapura village, Halebeedu Hobli, Beluru Taluk, which belonged to the plaintiffs. 4.3. It is the contention of the plaintiffs that Veerabhadregowda - grandfather of the plaintiffs has got three sons by name Puppegowda, Channegowda and Mallegowda. First son Puppegowda died without marriage. Second son Channegowda is the father of defendant No.2 and third son Mallegowda has got two children namely, Shivarudregowda, who is plaintiff No.1 and Veerabhadregowda. Said Veerabhadregowda died as a bachelor. 5. Plaintiffs further contended that suit properties and three other items of properties had fallen to the share of father of plaintiff No.1 and Puppegowda in the year 1940-41. After death of Puppegowda, father of plaintiff No.1 and other plaintiffs and his brother Veerabhadregowda were jointly enjoying the suit properties. 6. Plaintiff No.1 and his brother Veerabhadregowda for their family necessity, executed a sale deed in favour of Mallegowda @ Kullegowda on 28.07.1952. According to plaintiffs, said sale deed was a nominal sale deed and it was executed for security for the loan amount borrowed by plaintiff No.1 and his brother Veerabhadregowda. Brother of plaintiff No.1 Veerabhadregowda was looking after the suit properties and three other properties. Veerabhadregowda again purchased the suit properties on 28.06.1954 from Mallegowda and he mortgaged the said property to one Sannamallegowda in a sum of Rs.200/-. Brother of plaintiff No.1 Veerabhadregowda was looking after the suit properties and three other properties. Veerabhadregowda again purchased the suit properties on 28.06.1954 from Mallegowda and he mortgaged the said property to one Sannamallegowda in a sum of Rs.200/-. Subsequently plaintiff No.1 and his brother discharged the loan and they are in possession and enjoyment of the said property. 7. Plaint averments further reveal that despite sufficient difficulty to discharge the loan, plaintiff No.1 for earning the money, left Bhandarikatte Village in young age and settled in Davanagere City and he worked in Oil Mill belonging to Basappa. Veerabhadre Gowda died subsequently intestate. 8. Plaint averments further reveal that defendant No.2 who is an elderly member of their family used to look after the properties left by Veerabhadregowda as plaintiff No.1 along with his family were residing at Davangere. Defendant No.2 used to give some money out of the crops grown in the suit properties to the plaintiffs and it was contented that plaintiff No.1 paid sum of Rs.200/- to defendant No.2 to discharge the mortgage money borrowed from Sannamallegowda. But, defendant No. 2 clandestinely got released the suit properties in his favour after paying the mortgage money to Sannamallegowda on 03.03.1972 and subsequently without the knowledge of plaintiff No.1, defendant No.2 sold the said property on 10.02.1976 in favour of defendant No.1, which is an illegal sale. 9. When plaintiff No.4 visited Bandarikatte village about six months earlier to the filing of the suit to participate in a marriage function, he came to know about the said sale transaction and thereafter plaintiff No.1 verified the documents and came to know that defendant No.2 clandestinely got the said mortgage deed released in his favour and based on the said document, defendant No.2 sold the property in favour of defendant No.1 on 10.02.1976. Therefore, plaintiffs sought for decree the suit. 10. Defendant No.1 has filed written statement contending that suit is not maintainable either in law or on facts by denying the contents of plaint in toto. 11. Further defendant No.1 contended that plaintiffs have no right, title or interest over the suit property and when he purchased the suit property, he had verified the title in respect to the suit property. 12. 11. Further defendant No.1 contended that plaintiffs have no right, title or interest over the suit property and when he purchased the suit property, he had verified the title in respect to the suit property. 12. He also contended that in order to grow the coconut trees he has improved the land and dug five borewells and spent money of Rs.5,00,000/- for installing pump sets. After noting the development in the land, the plaintiffs have filed false suit out of avariciousness. 13. Defendant No.2 also filed separate written statement denying the plaint averments in para 2 to 10 in toto. He has also contended that suit is barred by limitation and on that score itself, the suit is to be dismissed. 14. He denied the cause of action as is mentioned in paragraph 11 of the plaint and only with an intention to grab the suit land, a false suit has been filed by the plaintiff and sought for dismissal of the suit. 15. Based on the rival contention of the parties, learned trial judge raised following issues and recasted issues. “1. Whether the plaintiff proves that the suit schedule properties are the ancestral and joint family properties of the plaintiffs and defendants? 2. Whether the plaintiffs prove that the second defendant has illegally redeemed the mortgage and it is not binding on the plaintiffs? 3. Whether the plaintiffs prove that the sale by the second defendant in favour of the first defendant dated 10.2.76 is null and void and not binding on the plaintiffs? 4. Whether the plaintiffs are entitled for the relief of possession? 5. Whether the defendant No.2 proves that the suit is barred by law of limitation? 6. Whether first defendant proves that he was a bonafide purchaser for value without notice of any earlier transaction in respect of the said land? 7. Whether the plaintiff is entitled for the relief sought for? 8. What order or decree? Recasted Issue No.1 and 2 1. Whether the plaintiff proves that suit schedule properties are ancestral and joint family properties of plaintiffs and deceased Veerabhadregowda? 2. Whether the plaintiff proves that second defendant has illegally got redeemed the mortgage of suit properties in his favour and it is not binding on the plaintiffs?” 16. In order to prove the case of the plaintiffs, plaintiff No.1 got examined himself as P.W.1. 2. Whether the plaintiff proves that second defendant has illegally got redeemed the mortgage of suit properties in his favour and it is not binding on the plaintiffs?” 16. In order to prove the case of the plaintiffs, plaintiff No.1 got examined himself as P.W.1. Plaintiff No.4 got examined himself as P.W.2 and two more witnesses namely, Shivarudrappa and Malleshappa got examined themselves as P.W.3 and P.W.4. 17. On behalf of plaintiffs, twenty seven documentary evidence were placed on record which were exhibited and marked as Exs.P1 to P27 comprising of inheritance extract issued by the revenue authorities, record of rights in respect of suit properties, sale deeds dated 28.07.1952, 28.06.1954 and 10.02.1976, encumbrance certificate, mortgage deed, RTC extracts, Index of land, copy of legal notice, postal acknowledgement, unserved postal cover, RTC extracts, mutation extract, cover with marriage invitation, tax assessment extract, tax paid receipt, encumbrance certificate. 18. In order to prove the case of the defendants, Mallappa got examined himself as DW1. On behalf of the defendants, got examined one witness by name Sri Shanthaveerappoa @ Smany as DW2. 19. On behalf of defendants, seven documentary evidence were placed on record which were exhibited and marked as Exs.D1 to D7 comprising of copy of mortgage deed dated 01.03.1972 and RTC extracts. 20. In the affidavit filed in lieu of examination-in-chief, plaintiff No.1 has reiterated the plaint averments in verbatim. 21. In his further examination chief he has placed on record 14 documents which were exhibited as Ex.P1 to Ex.P14. 22. In his cross-examination on behalf of the defendant No.1, he admits that his father and Kalluveeregowda divided the property about 40 to 50 years earlier. He has answered that the revenue entries were mutated in the year 1944. He further answered that in the year 1962 he was residing at Davanagere and his father possessed several other items of the immovable properties. 23. He denies that himself, his elder brother joined together and sold the properties that has fallen to their share in the year 1950 to Nanjundegowda. 24. He admits that land in Siddapura village was sold to Mallegowda which was standing in his name and his brother has joined hands in execution of the said sale deed. However, he maintained that it was only a nominal sale deed. He admits that defendant No.3 purchased the property through Veerabhadregowda under a registered sale deed. 24. He admits that land in Siddapura village was sold to Mallegowda which was standing in his name and his brother has joined hands in execution of the said sale deed. However, he maintained that it was only a nominal sale deed. He admits that defendant No.3 purchased the property through Veerabhadregowda under a registered sale deed. He admits that he is not aware of the exact date and place of the death of Veerabhadregowda and further admits that his elder brother Veerabadregowda was residing with defendant No.3 and defendant No.3 was taking care of his elder brother. He admits that his elder brother died in the house of defendant No.2 and he has performed his last rites. 25. He also admits that in respect of suit property, Sannamallegowda was paying taxes from the year 1952. He admits that defendant No.2 possesses house property and landed property at Undiganalu village. He admits that defendant No.2 sold the lands belonging to him to defendant No.1 in the year 1971-72. He admits that suit property is in the possession of Mallappa from the date of sale. 26. However, he denied digging of five borewells and coconut plantation in the suit property, but admitted mentioning of fact that himself and his elder brother having discharged the mortgage amount is incorrect. He stated that he alone has discharged the mortgage amount to Mallegowda. 27. He admits that suit property is in the possession of Mallappa from the date of sale. 28. Further he denied digging of five borewells and coconut plantation in the suit property. He admits mentioning of fact that himself and his elder brother having discharged the mortgage amount is incorrect. He stated that he alone has discharged the mortgage amount to Mallegowda. 29. He admits that he has not placed on record any revenue documents to show that the khatha was standing in his name. He denied that the sale deed was a nominal sale deed. He admits that himself and his brother after having sold the properties in the year 1952, he went and resided in Davanagere. He admits that he has not possessing any document to show that sum of Rs.200/- was given by him for discharge of the mortgage. He admits that he cannot say when his elder brother Veerabhadregowda died. He admits that himself and his brother after having sold the properties in the year 1952, he went and resided in Davanagere. He admits that he has not possessing any document to show that sum of Rs.200/- was given by him for discharge of the mortgage. He admits that he cannot say when his elder brother Veerabhadregowda died. He admits that after he went to Davanagere there was no communication of any sort between him and his elder brother. He admits that defendant No.2 was taking care of well being of his elder brother. 30. Sri Mahesha S/o Shivarudregowda is examined as P.W.2 who has filed affidavit in lieu of his examination-in-chief. He deposed in line with P.W.1 and he is the plaintiff No.4 in the suit. 31. In his cross examination, he admits that he is acquainted with defendant No.2 who has got two wives. He has answered that the suit land was standing in the name of his father and Veerabhadregrowda. He admits that the suit property was sold to Siddapura Mallegowda in the year 1951 by his father and Veerabhadregowda. But it was a nominal sale deed. He admits that he does not know the contents of the said sale deed. He admits that he does not know the date of death of Veerabhadregowda so also who conducted his last rites. He admits that he has no personal knowledge with regard to the suit property twenty years earlier to the date of cross-examination. He pleads ignorance about the nature of the property mentioned in Ex.P.25. He also admits that he cannot furnish the survey numbers of the lands mentioned in Ex.P27 and he has not filed any suit in respect of Ex.P27. 32. Sri Shivarudrappa S/o Mallegowda is examined as P.W.3. He has stated that he has filed an affidavit in lieu of his examination-in-chief wherein he has stated that he is acquainted with plaintiff and defendants. He has got knowledge about the suit dispute. He has answered that suit properties are situated in Siddhapura Village and he has stated that it is the ancestral properties of plaintiffs. 33. He has stated that he has filed an affidavit in lieu of his examination-in-chief wherein he has stated that he is acquainted with plaintiff and defendants. He has got knowledge about the suit dispute. He has answered that suit properties are situated in Siddhapura Village and he has stated that it is the ancestral properties of plaintiffs. 33. He further stated that first plaintiff and his brother have cleared the entire amount covered under the nominal sale deed and only three items of the suit properties were re-conveyed to the plaintiff and his elder brother and to raise the money for repayment, there was a shortage of money. Therefore, on the same day, suit properties were mortgaged to Sannamallegowda of Bhandarikatte Village. Subsequently, the elder brother of plaintiff No.1 namely Veerabhadregowda died and since plaintiff No.1 was unable to maintain the suit properties as he was resident of Davanagere, he had appointed defendant No.2 to look after the lands as caretaker and defendant No.1 was taking the proceeds from the said land. 34. In his cross examination, he admits that he cannot furnish the survey number of the suit lands, so also the boundaries. He admits that when the suit land was sold nominally, he was aged 80 years. 35. He denied that suit land was re-conveyed only in the name of Veerabhadregowda. He pleads ignorance that who executed the mortgage therein in favour of Sannamallegowda so also the date and time of execution of mortgage deed. He admits that defendant No.2, Kalluveeregowda was in possession after the discharge of the mortgage. He denies that Mallappa got the suit property in his name in the year 1972. 36. Malleshappa S/o Halagegowda is examined as P.W.4. He has filed affidavit in lieu of his examination-in- chief contending that he is acquainted with parties to the suit and about the suit property. 37. He has stated that plaintiff was native of Bandarikatte Village and they are now residing in Davanagere. He also deposed about the suit property being the property of Veerabhadregowda and on account of his ill health he was living with defendant No.2 in Undiganala Village. He has stated that defendant No.2 - Kallveeregowda was only managing the suit property and not the owner of the suit property. 38. He also deposed about the suit property being the property of Veerabhadregowda and on account of his ill health he was living with defendant No.2 in Undiganala Village. He has stated that defendant No.2 - Kallveeregowda was only managing the suit property and not the owner of the suit property. 38. In his cross examination, he admits that the plaintiffs have filed the suit on the basis that the suit properties are ancestral properties, but he does not know the survey number of the suit land. He pleaded ignorance about the sale deed. He also pleaded ignorance about the date of death of Kalluveeregowda and sale deed executed by Veerabhadregowda in favour of defendant No.2. 39. In the cross examination on behalf of defendant No.2, he admits that there was a senior uncle to defendant No. 1 by name Channegowda and defendant No.2 is the son of said Channegowda. He admits that Channegowda was resident of Undiganala village, wherein defendant No.2 possesses the landed properties as well. 40. On behalf of defendants, Mallappa - defendant No.1 is examined as D.W.1 and he has filed an affidavit in lieu of his examination-in-chief reiterating the contents of the written statement. 41. In his further examination-in-chief, he has marked the mortgage deed, mutation register extract, ROR extract as Exs.D.1 to D.7. 42. In the cross examination on behalf of defendant No.2, he admits that defendant No.2 is the resident of Bandarikatte village. 43. He admits that Veerabhadregowda was residing with defendant No.2 in his last days. He admits that he did not enquire as to who is the owner of the suit property earlier to the sale deed. He pleaded ignorance about the sale deed dated 28.07.1952. 44. In the cross examination on behalf of plaintiffs, he admits that the distance between Siddapura village and his village is about half a kilometre. He denies having a first wife by name Chandramma and he has not settled any property in favour of said Chandramma. He denies that suit property was mortgaged in favour of Sannamallegowda. 45. He denied that he has falsely stated that he has dug the borewells in the suit property. 46. Swami @ Shanthaveerappa, S/o Nanjegowda is examined by D.W.2. He deposed that he is acquainted with defendant No.1 who had purchased the land in the year 1976 from Kalluveeregowda and he is enjoying the property. 47. 45. He denied that he has falsely stated that he has dug the borewells in the suit property. 46. Swami @ Shanthaveerappa, S/o Nanjegowda is examined by D.W.2. He deposed that he is acquainted with defendant No.1 who had purchased the land in the year 1976 from Kalluveeregowda and he is enjoying the property. 47. In his cross examination, he stated that he does not remember his date of birth, but he is about 40 years old. He admits that he has filed the examination-in-chief as per the instructions of defendant No.1 - Mallappa. 48. He denied that he pleaded ignorance about the Puppegowda, Channegowda and Mallegowda, who are the alleged family members of the Veerabhadregowda. He denied that he is a signatory to the sale deed in the year 1976. He has answered that three items of the suit properties are there and he came to know from the villagers that defendant No.1 has purchased the same. He pleaded ignorance about the boundaries of the suit property. 49. Based on the above material evidence, Sri Sumantha S, learned Counsel representing the counsel for appellants Sri P.B. Appaiah placed on record the judgment of the Hon'ble Apex Court in the case of Singh Ram vs. Sheo Ram, reported in Manu/SC/0724/2014 , wherein in respect of limitation period governing the usufructuary mortgage is discussed and has held as under: “15. We, thus, hold that special right of usufructuary mortgagor under Section 62 of the T.P. Act to recover possession commences in the manner specified therein, i.e., when mortgage money is paid out of rents and profits or partly out of rents and profits and partly by payment or deposit by mortgagor. Until then, limitation does not start for purposes of Article 61 of the Schedule to the Limitation Act. A usufructuary mortgagee is not entitled to file a suit for declaration that he had become an owner merely on the expiry of 30 years from the date of the mortgage. We answer the question accordingly.” 50. The above evidence on record is sought to be appreciated by the counsel for appellants and sought for decreeing of the suit by setting aside the impugned judgment. 51. We answer the question accordingly.” 50. The above evidence on record is sought to be appreciated by the counsel for appellants and sought for decreeing of the suit by setting aside the impugned judgment. 51. In the light of the arguments put forward on behalf of the appellants, taking note that the respondents are served with notice of appeal and unrepresented, the points which are to be determined by this Court for disposal of the appeal are as under: 1) Whether the appellants/plaintiffs have made out a case that suit properties are the ancestral and joint family properties of plaintiffs and defendant No.2. 2) If so, whether the plaintiffs establish that defendant No.2 has illegally redeemed the mortgage for his benefit and clandestinely sold the same to defendant No.1 on 10.02.1976 and thus the said sale deed is not binding on the plaintiffs? 3) Whether the plaintiffs are entitled to possession of the suit property? 4) Whether the defendants have properly establish that suit is barred by limitation? 5) Whether the impugned judgment is suffering from legal infirmity and perversity and thus calls for interference? 6) What order? 52. Regarding point Nos.1 to 4 : Since these points are interlinked with each other, they are taken up together for common discussion. 53. In the case on hand, it is admitted fact that one Veerabhadregowda has three sons namely Puppegowda, Channegowda and Mallegowda. Puppegowda was a bachelor and died. Defendant No.2 Kalluveeregowda is the son of Channegowda. Plaintiff No.1 and yet another Veerabhadregowda are the sons of Mallegowda. Mallegowda also died. Veerabhadregowda, who is the son of Mallegowda and cousin of the plaintiff No.1 also died as a bachelor. 54. Plaint averments itself would reveal that said Veerabhadregowda had sold the property in favour of Mallegowda @ Kullegowda on 28.07.1952. 55. P.W.1 in his cross-examination specifically admitted that himself and his elder brother left Bhandarikatte Village after the said sale and they started residing in Davanagere and thereafter they were not aware of the transactions that took place in respect of the suit property. 56. Said Veerabhadregowda had mortgaged the property in favour of one Sannamallegowda which was redeemed by defendant No.2 Kalluveeregowda after the death of Veerabhadregowda and he is in possession of the property. 57. The documents placed on record would not establish that suit properties are the joint family properties of plaintiffs and his cousin - Veerabhadregowda. 58. 56. Said Veerabhadregowda had mortgaged the property in favour of one Sannamallegowda which was redeemed by defendant No.2 Kalluveeregowda after the death of Veerabhadregowda and he is in possession of the property. 57. The documents placed on record would not establish that suit properties are the joint family properties of plaintiffs and his cousin - Veerabhadregowda. 58. Cross-examination of P.W.1 would make it clear that P.W.1 was not aware of the death of Veerabhadregowda and he also clearly admits that in the last days of Veerabhadregowda he was residing with defendant No.2 who used to look after the needs of Veerabhadregowda and he died in the house of defendant No.2. 59. He specifically admits that since defendant No.2 was not in a position to look after the suit properties properly, had sold the same to defendant No. 1 in the year 1971-72. 60. As such, after redemption, when the property was sold in favour of defendant No.1 in 1971-72, suit filed in the year 2001 is held to be time barred. 61. The principles of law enunciated in the decision referred to supra in the case of Singh Ram vs. Sheo Ram , supra would not be applicable to the case on hand as it is not the redemption of usufructuary mortgage that is the issue. It is the sale made by Kalluveeregowda, who sold the property in favour of defendant No.1, which is an issue. 62. As discussed supra, when the plaintiffs who are residents of Davangere, who left the village in the year 1952 were not having any information about the suit property, trying to lay claim on the suit property on the ground that Veerabhadregowda died intestate. Therefore, plaintiffs being the only class-I heirs, are entitled to claim the suit properties on the ground that the suit properties are the joint family properties is rightly dismissed by the trial Court. 63. Answers elicited in the cross examination of P.W.1 as referred to supra, would make it clear that the plaintiffs failed to prove that the suit properties are joint family properties nor the sale made in favour of defendant No.1 by Kalluveeregowda who is the cousin of the plaintiff No.1 in the year 1976, the suit for partition filed in the year 2001 is not only barred by limitation but without any cause of action as the plaintiffs could not lay claim on the suit properties. 64. 64. The material evidence placed on record would depict that plaintiffs have no right whatsoever to claim the suit properties and inter se dispute between defendant Nos.1 and 2 with regard to the possession would not enure to the benefit in the light of the cross examination conducted by counsel for defendant No.2. 65. Therefore, viewed from any angle this Court is of the opinion that the plaintiffs have failed to make out their rights in respect to the suit properties and challenging the sale deed executed by Kalluveeregowda in favour of defendant No.1 in year 1976 by filing a suit in the year 2001 is thus barred by time. 66. In view of the foregoing discussion, point Nos.1 and 4 are answered in the affirmative and point Nos.2, 3 and 5 in the negative. 67. Regarding point No.5 :- In view of the findings of this Court on point Nos.1 to 4 above, following order is passed: ORDER (i) Appeal is meritless and is hereby dismissed. (ii) No order as to costs.