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2025 DIGILAW 29 (KAR)

S. Raju S/o Late Siddappa v. Venkatesh S/o Kaveri Gowda

2025-05-02

K.V.ARAVIND

body2025
JUDGMENT : K. V. ARAVIND, J. This appeal is filed by plaintiff Nos.2, 3 and 4 being aggrieved by the judgment and decree dated 19.10.2010 in O.S. No.275/2001 passed by the Court of the Small Causes and Senior Civil Judge, Mysore, as well as the order dated 04.01.2012 passed by the III Additional District Judge, Mysore, in R.A. No. 6/2011. 2. The parties are referred to by their ranks as assigned in the original suit, for the sake of convenience. 3. The brief facts, as gathered from the pleadings, are that the plaintiffs instituted the suit against the defendant seeking a declaration that they are the absolute owners of the suit schedule property and for a permanent injunction restraining the defendant from putting up any construction on the suit schedule property. The suit schedule property comprises of premises bearing Municipal D. No.46, New No. M-34/1, K.T. Street, Mandi Mohalla, Mysore City, measuring East to West 34 feet and North to South 18 feet. 3.1 It is pleaded that the entire property bearing Municipal D. No.46 originally belonged to one N.H. Sangappa, the father of plaintiff No.1 and grandfather of plaintiff No.2. After the demise of N.H. Sangappa, plaintiff No.1's brother, M.S. Nanjappa, instituted a suit in O.S. No.566/1964 on the file of the I Additional Munsiff, Mysore, seeking a declaration, which ended in a compromise. As per the compromise, plaintiff No.1 was allotted an area measuring 33 feet x 18 feet from out of the entire extent of the property bearing D. No.46 and the remaining portion was retained by M.S. Nanjappa. Subsequently, the wife of M.S. Nanjappa, namely, Smt. Bharamakka, mortgaged the suit property in favour of one H.N. Doddabasappa. Plaintiff No.1 purchased the equity of redemption under the said mortgage, and the defendant’s father late Kaverigowda, was inducted as a tenant in the year 1968. The tenancy in respect of the suit schedule premises was attorned in favour of plaintiff No.1, pursuant to her purchase of the equity of redemption under the deed of mortgage dated 29.08.1969. 3.2 Plaintiff No.1 filed a suit against Kaverigowda, the father of the defendant, in S.C. No.129/1970 for recovery of arrears of rent, which came to be decreed. Late Kaverigowda preferred an appeal before this Court, and the said judgment and decree were set aside and remanded. After the remand, plaintiff No.1 withdrew the suit with liberty to file a fresh suit. Late Kaverigowda preferred an appeal before this Court, and the said judgment and decree were set aside and remanded. After the remand, plaintiff No.1 withdrew the suit with liberty to file a fresh suit. It is stated that during the pendency of the said suit, the vendor of the defendant, represented by his natural guardian and mother Smt. Bharamakka, along with her son Shivaswamy, sold the property in favour of plaintiff No.1 under a registered sale deed dated 10.04.1971. It is further stated that possession of the property continued with the tenant late Kaverigowda, the father of the defendant. 3.3. Subsequently, plaintiff No.1 filed a suit against late Kaverigowda in O.S. No.109/1979, which was later renumbered as O.S. No.117/1983, on the file of the II Munsiff, Mysore, seeking a mandatory injunction. However, the said suit came to be dismissed for non-prosecution. 3.4 Late Kaverigowda filed O.S. No.315/1974 on the file of the I Additional Munsiff, Mysore, against plaintiff No.1 seeking the relief of permanent injunction. Further, in the written statement filed by Kaverigowda in O.S. No.117/1983, it was specifically contended that S.N. Raja, son of Smt. Bharamakka, had sold the suit schedule property in his favour under a registered sale deed dated 29.08.1977. 3.5 The plaintiffs have asserted their right, title, and interest over the suit schedule property based on the registered sale deed dated 10.04.1971. The defendant has denied the plaintiffs' right, title, and interest, relying on the registered sale deed dated 29.08.1977 executed by S.N. Raja in his favour. The Trial Court, on consideration of the pleadings, framed the following issues for determination. One of the issues framed pertained to the question of limitation. The issues framed by the Trial Court are as under, "1. Whether the plaintiffs prove their title to the plain schedule property as alleged? 2. Do they further prove that the defendant is the tenant under them in respect of the suit schedule property? 3. Do they further prove that the defendant has caused damages to the structure of the suit schedule property as alleged? 4. Whether the Court fee paid is sufficient? 5. Whether the plaintiffs are entitled for the relief's as sought ? 6. What order or decree? Addl. 1. Whether the suit is barred by limitation?" 4. 3. Do they further prove that the defendant has caused damages to the structure of the suit schedule property as alleged? 4. Whether the Court fee paid is sufficient? 5. Whether the plaintiffs are entitled for the relief's as sought ? 6. What order or decree? Addl. 1. Whether the suit is barred by limitation?" 4. The Trial Court, after considering the evidence and pleadings of the parties in the present suit as well as in the prior proceedings, held that the assertion regarding the execution of the sale deed dated 10.04.1971, namely, that S.N. Raja was minor and was represented by his mother Smt. Bharamakka was incorrect. It was held that as on the date of the sale deed dated 10.04.1971, S.N. Raja had attained majority and the said sale deed was not valid. The Trial Court further held that the sale deed dated 29.08.1977 executed by S.N. Raja in favour of the defendant’s father was subsequent to S.N. Raja attaining majority. It also observed that the original sale deed dated 10.04.1971, said to have been executed by Smt. Bharamakka and Shivaswamy, was not produced before the Court. Additionally, the Trial Court found that the defendant had categorically denied the plaintiffs’ ownership of the suit property in the earlier suit instituted in O.S. No.109/1979, and that the dismissal of the said suit had attained finality. Accordingly, the Trial Court held that the present suit, seeking the same relief and filed beyond the period of three years, was barred by limitation, and dismissed the suit. 5. The plaintiffs preferred appeal under Order XLI Rule 1 of CPC read with Section 96 of CPC. The First Appellate Court formulated the following points for its determination, "1. Whether the defendant has proved that the suit is barred by limitation? 2. Whether the Judgment and Decree passed by the Trail Court needs to be set aside or modified? " 6. The First Appellate Court, while upholding the findings of the Trial Court that the suit was barred by limitation, dismissed the appeal. The judgments and decrees passed in the original suit and the first appeal are brought under challenge in the present second appeal by raising the following substantial questions of law: "1. " 6. The First Appellate Court, while upholding the findings of the Trial Court that the suit was barred by limitation, dismissed the appeal. The judgments and decrees passed in the original suit and the first appeal are brought under challenge in the present second appeal by raising the following substantial questions of law: "1. Whether the trial court and first appellate court are right in dismissing the suit without looking at the earliest sale deed dated 10.04.1971 executed by Smt. Bharamakka, her son and on behalf of a minor son S.N. Raju in favour of 1 st plaintiff as against a subsequent sale deed executed by S.N.Raja (Smt. Bharamakka's one son) in favour of Kaveri Gowda on 29-08-1977 who had no manner of right title and interest at that point of time without challenging the earlier Sale Deed. 2. Whether the trial court and 1 st appellate courts are justified in dismissing the suit and the appeal without appreciating the legal fact that the defendant's father Kaveri Gowda was a tenant under 1 st plaintiff's vendor and as such the defendant continued to be the tenant in respect of the suit schedule property. 3. Whether the lower courts and lower appellate court are justified in coming to the conclusion that the title to the suit schedule property was not passed on in favour of the 1 st plaintiff without there being any challenge from any of the executants." 7. Learned counsel appearing for the appellants submits that the Courts below failed to consider that the registered sale deed dated 10.04.1971 executed in favour of plaintiff No.1 was prior in point of time to the sale deed dated 29.08.1977 relied upon by the defendant. It was contended that much before the sale deed executed in favour of Kaverigowda, a valid sale deed had been executed in favour of plaintiff No.1, who was also in possession of the suit schedule property. It was further submitted that since the sale deed dated 10.04.1971 is a document anterior in time to the sale deed dated 29.08.1977, and the same having not been challenged by the defendant, the Courts below erred in ignoring its evidentiary value and in failing to record appropriate findings with respect to the sale deed dated 10.04.1971. 8. It was further submitted that since the sale deed dated 10.04.1971 is a document anterior in time to the sale deed dated 29.08.1977, and the same having not been challenged by the defendant, the Courts below erred in ignoring its evidentiary value and in failing to record appropriate findings with respect to the sale deed dated 10.04.1971. 8. It is submitted that the father of the defendant was merely a tenant under plaintiff No.1, and therefore, the period of limitation, as recorded by the Courts below, is not applicable in this case. 8.1 Learned counsel further submits that the Courts below have erroneously applied the principle of limitation and committed a grave error in dismissing both the suit and the appeal on the grounds of limitation. 9. Having heard learned counsel for the appellants and considered the submissions, it is observed from the pleadings that the plaintiffs have claimed rights, title, and interest in the suit schedule property under the registered sale deed dated 10.04.1971. It is further contended that Kaverigowda, the father of the defendant, was a tenant and that he has no right, title, or interest in the property. 10. Per contra, the defendant has claimed rights, title, and interest in the suit schedule property under the registered sale deed dated 29.08.1977. The parties have instituted multiple suits against each other, seeking various reliefs. As evident from the order passed by the Court below in O.S. No.109/1971, which was re-numbered as O.S. No.117/1983, instituted by the plaintiff, the father of the defendant has disputed the plaintiff’s title to the property. The said suit was dismissed as the plaintiff had failed to take any action or institute any proceedings for more than twelve years. In that suit, the relief sought was to declare plaintiff No.1 as the owner of the suit schedule property. In the present suit, a similar prayer has been made. The title of plaintiffs over the suit schedule property was disputed 12 years prior to institution of the present suit. The present suit in question is completely barred by limitation. 11. The findings recorded by the Trial Court, which were affirmed by the Appellate Court, are well-reasoned and based on a thorough evaluation of the facts and evidence. Both Courts have properly considered the claims and legal aspects, and their decisions are logically sound. The present suit in question is completely barred by limitation. 11. The findings recorded by the Trial Court, which were affirmed by the Appellate Court, are well-reasoned and based on a thorough evaluation of the facts and evidence. Both Courts have properly considered the claims and legal aspects, and their decisions are logically sound. There is no infirmity or perversity in the orders that would warrant interference by this Court. The judgments passed by the Courts below are in accordance with the law, and no substantial question of law arises for consideration. 12. The appeal is meritless. Accordingly, dismissed. In view of dismissal of main appeal, pending interlocutory application, if any, stands disposed of as not surviving.