Karnataka High Court
Hayath Mohiddin vs Mohammad Murthaja @ Dadesaheb Since ... on 7 June, 2010
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IN THE HIGH COURT 0? KARNATAKA AT BANGALORE
DATED THIS THE 7% DAY OF JUNE, 2010
BEFORE :
THE HON'BLE MR. JUSTECE A.S. PAcHHAPUag*f=d*='
REGULAR SECOND APPEAL No 922 93 2004 (DEC; d_d
BETWEEN:
1. Hayath Mohiddin,
2. Pacha Mohiddin,
3. Ajamunnisa,
4. Nsima $aj;"df,7 ?_ g»? "- <f»-W» m APPELLANT/S
All are_dhildtgn of=late*-mV
Ghogse Mdhiddinésabkg Sabja Sab,
Agedgma3ors;2r/o¢TPete,"
Banavara, ddVVdu V *
Aras1kere»TalukL'.
{3y'M/s. A,fi}dHegde & sps Assocs., Advs.]
ddAflpfx_ ,'
l.*fiohamm&d}Mfi£thaja @ Dadesaheb,
Sihcéddédeased QX his L.Rs:
Vnai Adhlya Bee,
"D/0. late Md. Murthaja,
"W/o. Babha Sab,
Since deceased QX her
L.Rs. (b) E2 ( ):
b) Nabhl Jan,
S/o. late Md. Murthaja,
X"
_,'gi_ é
'. V,$;Q;elate_Md. Murthaja,
RSA,922fQ§
Since deceased gx his L.Rs:
i)
ii)
Rurshid Unnis, ,
W/0. flabhi Jan, k
53 years, 5?
Tasina,
D/0. Nabhi Jan, e"W'
33 years, V
iii) Mujamin,
c)
d)
e)
f)
S/0. Nabhi Jan,
30 years,
All are r/o..Banavafe'Eete,g
Arasikere TalukQ.,' 'V .' "
Ameer Ahmed, ,w~_ew =_g 1'
S/0. late Md, Murthe§a,'ae,u '
Bibijeh,H_?V.2 «e,_,_ e
D/0. iate Md.uMu;thajé,
W/ov-Riya2efihmefi,a
Nazeer.A$med,Q,"_A~
S/O- late_Md,,Mu§thaja,
Nissei=Ahmed, gV
';S7G, lafie_Md. Murthaja,
Nefaz'Ahmed,
"*Sl.'fiQef1(h),(c),(e) and (g) are
m_R[o;_Eanavara Pete, Arsikere Taluk.
Si, No.1{d) is r/o. Khasimpet Lane,
'*; Railway Station Road, Arsikere.
"S1. No.l(f) is R/0.
C/o. Mohd. Ghulam Hussain,
B H.Road, Near School, Kote, Birur,
Kadur Taluk.
2. Khader Mohiddin,
Since deceased gx L.Rs:
a) Julekabi,
W/o. late Khader Mohiddin,
Since deceased EX her
L.R. (b):
b) Rahaman Pasha,
S/o. late Khader Mohiddin,~__ ;V"RssaomnsNTsxr.
[By M/s. M.B.Nargund & Sofia VaKkund,tAd¢s{}nxVn
wwwpd
This RSA is filed ufSeciVlQUMCPC against the
Judgment & Decree dated' Us.2_'?Q»'7.200"-fix "passed in R.A.
No.32/1999 on the file er the CivilQJudge [Sr. Dn.]
and. Addl. C.J,Mp¢ Arsikere;x dismissing the appeal
and confirming; thej Judghent Wand decree dated
o3.o7.1999_§assed in 0.3, No{5/1991 on the file of
the Prl. Civil Judge fdr, Dn;]} Arsikere.
This RSAfl,haeingp*heen- heard and reserved for
Judgment, tthis'odayupPachhapure J., pronounced the
following: . . 'v*,'x >-x
JUDGEMENT
'v,This_~ is the plaintiffs second appeal challenging ' the dismissal of the suit for V declaration and injunction.
A:l2, The facts relevant for the purpose of this * appeal are as under:
I will be referring the parties as per their rank before the trial Court for the purpose of convenience. wfihy RSA 922fG4 The appellants herein are the plaintiffs, whereas the respondents are the defendantsLfi4"$he facts reveal that the plaintiffs are the ehildrenV§fe deceased Gouse Mohiddin, whereas the 3*d»e飧eeen;.isi their mother. Defendant Noit is ithe rhrothersyot deceased Gouse Mohiddin;
rhe suit property is a iWaore land in revision Sy. No 75/2 totally Keaasnrifig i3:Racres 27 guntas situated. at Agrahara ~villaoeéad The fdescription of the boundarieé ig nmntieaed in the schedule to the plaint. The total land in Sy §os75/2 was purchased by deceased "house? Mohiddini and it was his self» acquired p%aperty{@V The plaintiffs claim that they are in_ possession "of" the suit property as the "owners? yfihe parties belong to Muslim community and Vthe.;
°'§'defendant is a-Earde Nishin woman and also illiterate.ff_ it the time "of the death of Gouse Mohiddint,the children were minor and the 3"
dhddefendantN'had no worldly knowledge. They had _repoaed full confidence on the 2"" defendant, who was
-.'_4Ioo'k}ing after-the plaintiffs and the 3" defendant. Prior to_ institution of the suit, the 2""
plaintiff had gone to raise loan and after enquiry «>4.
it revealed that the suit land has been sold by the E" defendant in favour of the is" defendant under the registered Sale Deed dated 17.02f;ft;'9"7j'E..'._:'V':
obtained the certified copy and found ithat this "
transaction was entered into ee£i§g,e;see§en;e§e of the innocence of the 3"? defendant and Tthe =eieer, plaintiffs, Thereby the pigintiffs ciaid that thei Sale Deed is illegaliV fictitious,fi cefitrer§ to law and does not bind their interest and that of the 3"
defendant. They also state @§ae ghe Que defendant had no he-_:;1eeut.e !I3eed. Hence they ins$i£U£eduWtn%f{suitm for declaration and injunction} $he plaintiffs further state that they had to S"institute the suit only when they came to know about ithe sale transaction about 2 or 3 nmnths prior to institutionh of the suit and they arrayed their [mother as 3" defendant as she was not in a position :to attend the Court due to illwhealth and sought for . the relief of declaration that the Sale Deed dated gf17f02.1977 is null and void and for injunction [against the defendants. D5 Rs.2,500~O0. Further, he submits that he has been in continuous possession of the suit property openly to the knowledge of the plaintiffs for more 'than hi2, years and has acquired title by adverse possessioniqu It is the submission that the psuit ,is *barred, by time.
It is also contended that the deseased father of the plaintiffs exeoutedfla;Will authorizing the 2nd defendant to sell the suit property for maintenance of his familpffl i e,,% "derehdehewi No.3 and the plaintiffs and ;ae§ haueflno'authority to challenge the deed Meade ,b$§fithe*Qfatheri for the benefits of their familyl --od these orounds, he has sought for dismissal of the suit-'d h«_ The trial Court framed the following issues:
Whether the plaintiffs prove that the 3"? defendant and deceased z.qarinabhi succeeded to the suit properties as the legal heirs of deceased Gouse Mohiddin along with them?
2. Whether the plaintiffs prove that the Sale Deed dated 17.02.1977 executed by the 2" defendant in favour of the E5" defendant is void 3 document and not binding on them?
3. Where the 3Ft defendant proves that f the deceased Ghouse Mohiddin Sahkhadd executed will Deed in favour of the vi 2" defendant dated 12;i2;1afi4?,'-"
4. Whether the 1%" defendant V£e;ther«w' proves that the d"? defendantd has consented to the sale deed execeted by the Zmidefendant in his favour?
5. Whether 'the: plaintiffsg preve their lawfnl fiossession of the shit as on the date of shit? "7 6Q Whether the L? defendant proves that Apea has" perfected his title by adverse possession?
tft,gWhether 'the' 1" defendant further , proves_ that the suit is barred by lialimitation?
awhether the Court Fee paid is idcorrect?
\1;;)_ ,= '' Whether the plaintiffs are entitled for the relief sought?
Euring the trial, P.Ws.1 to 4 were examined and Exs.Pl to 12 were marked. The defendants examined 91/ D.Ws.l to 4 and Exs.Dl to 22 were marked. The trial Court after hearing the learned counsel qahdk on appreciation of the material on record held that thee Sale Deed dated 17.02.1977 isma void seeemene andgd the will is illegal. But; it fheld ltheeg lg; plaintiffs have failed rto prove tfieiri laeffilj possession and that the léfi defendant has perfected his title by adverse possession j*lt also held that the suit is barred lhyi tieel_JL"hgerieved by the Judgment and Deoreeg the defendants approached the lower appellate edourfi like h,hl _No.32/1999, whereas the 1"Q~respondeht_'ihr the -said appeal has filed crosswohjectionsfiand the loeer appellate Court after framing the points forfdetermination held that the V Sale peed dated 17.92.1977 is legal and valid and l, that the plaintiffs' suit is barred by time and that they are not in possession of the suit property. Ina 'l' the circumstances, the appeal of the plaintiffs was "*rdismissed" while crosswobjections were allowed W reversing the finding on issue Nos.l tr: 4 and 6. hha aggrieved by the Judgment and Decree of the Courts 4:below, this appeal has been preferred. [A 10 At the time of the admission, this Court has framed. the following substantial questions ,o£ wlaw for consideration:
1) Whether the triai~W"Court Jdnesi justified in non%suitingt,pwfiheid plaintiffs on the ground that the ié€ _ defendant has perfedted his title bfiims adverse possession_after recording 5 finding. th§§, defendant' §o.2 has failed to prove the aileged Wiil?
2) Whether; the _lower *appelléte Court was" fljustified,1\inu treyersing the 'finding 9n the issue éf validity of Jvwiil and that of aduerse possession Vhwithoutsfieetingtthe reasoning of the léarneddtrialeiudge?
x"Furtnermore, the "" " appellants have filed an .tapplioation:*under Order 41 Rule 27 CPC., seeking permission' to? produce additional documents and an 'applioation under Order 6 Rule 17 CPC for amendment iof the piaint.
3. I have heard the learned counsel for the @appellants and also the respondents. sit ll
4. In addition to the substantial questions of law raised, the following questions also arise for my consideration?
1) Whether .in Misc. Civil "
No.:1958/2009 filed under p*¢hsf provisions of Order 41 Rule 27:CPC *2' deserve to be allowed?
2) Whether Misc. N6.i1v9.59'/2"e.§j'9=~V and 22651/2009 filed lu.nder..'Q.r_der is Rule 17 cpca-s_se;;-'veshi allowed?
5. The learned '¢osnséi _fs:, the appellants submits that 'the additional *document was secured recently --whichx is'_aK certificate dated 17.12.2007 issued by the $ecratary of the Grampanchayat and it reveals that the suit property was converted to non-- h. residential use is in possession of the appellants 1andy"thevf,have, also produced. 4 photographs of the suit _property including' the land revenue receipt, 2'2 the Order dated 28.01.1983 and the copy of the Sale "'£$Vec2da"dated 12.08.1985. It is his submission that xwhrthese documents are necessary to enable this Court hpto pronounce the Judgment. It is further submitted that an amendment to the plaint is essential, in view of the defence of adverse possession and also 54 12 r"~ .:- ': *7 w 5 with regard to the validity of the will by incorporating para 5 i.e., 5(a) to (d) in the plaint. The learned counsel also submits that the :-
hz e_ a will appointing the 2" defendant as a Trustee under the provisions of Indian Succession Actflispihfialidi and contrary to the provisions of Mohammedfihniayh The execution of the Sale Deed on the hasis of this Will is also illegal and.*t'h__at £ne'":>.'V"' no authority to execute thehtale heedl; lt is his further submission that the suit instituted is well in time and. the findinop arrived] at aby the Courts below is erroneeus and illegalirufieisubmits that the suit instituted yfias *after' the plaintiff had the knowledge regarding the execution of the Sale Deed V and hence the period of limitation is 12 years from to the date of knowledge. Further he contends that the deceased EouseWMohiddin was an innocent man as also his'1 wiferr i e., defendant No.3 and taking u'K_disadvantage of their position, the documents were V got_ executed by misrepresentation. The learned 2*a counsel has also relied upon many decisions, which . gill be referred hereafter. t%<:~ 13 Per contra, the learned counsel the respondents submits that there are concurrent findings by the Courts below and that th,e"'----.ppsuit instituted is not in time and further. executed is legal and valid and that defendant had the authorityVuto-.uexeleuitefl'thVev'--'_fF3a'J.&euV Deed. Alternatively she submits have acquired ownership the ibyii adverse possession as were i' evontinuous possession of the from the date of sale transar:*.._tionV.A.~-w-e:.S:s:V> far' execution is concerned, it :1_;s~' her' sj_L1bmi_ss_ionV"'t'hat there are no bona fides' application and that an amendment"-rcanno"t .'abe~'vs'eu'ght after 20 years of the insztigtution o':€r,_suit'and that the permission sought t'o«.Ap"rodu?ce_'"t_he documents cannot be granted as no igerour;7eseiga.«;pe :"made out under Order 41 Rule 27 cec. She '~..als_0" relied upon the decisions which will be it ' referre-dV_' thereafter.
So far as the relationship between the '4.jpa'rties i.e., the plaintiffs and defendants 2 and 3 it is not in dispute. The suit property is 1 acre land and out of revision Sy. No.75/2 measuring 3 r>L 14 acres 27 guntas and the boundaries have been mentioned in the schedule to the plaint. The original Sale Deed of the suit property has 7heen produced at Ex.Pl. it reveals that the 2dwa¢r§£aag; sold the suit property to the 1?: detendanthforE%hw consideration of Rs.1,500-00 registered. The perusal Vof i£nelra§cuega¢Si?ffi%teér_ reveal that the purpose ofqthe sale was to perfore' the marriage of the daughter 6; de£endant.Nd.3 i.e., one of the plaintiffs -for: which Lthe amount was necessary and "in :these dcircumstances, the 2"
defendant.r' .$o?Hfar4"asV the authority of the 2"d defendant is concerned} it is on the basis of the V Will_§eedwEx.b2y" The deceased Gouse Mohiddin i.e., ufl the hushand of the 3m defendant and father of the @flaintiffsi2and5'elder brother of the 2m: defendant executed£'theA WillwEx.D2. Under this document, he R'E authorized the 2"" defendant to look after his wife g and children and also an authority to sell the suit u*a property. At the first instance so far as the will pat Ex.D2 is concerned, the learned counsel has submitted that the Will is invalid and that the deceased had no authority to execute the Will and mi, 1 5 . Z. " " .7" ,_-'3 that the property has not been bequeathed. by the deceased in favour of the 2"" defendant. So tar as the authority of execution is concerned: theuicany bequeath his interest in the property to an extentu of 1/3 and that bequeath has to be with the¥¢onsent of his children. But the_do¢¢m§nt 33.92 does hots reveal anything to show 'that theWldeceasedm Gouse Mohiddin executed a fiiii bedueething any interest in the property in favour of the_é%t§éf$ndant. What authority he idaye tot the tgfit defendant was the maintenance of his high ahd children, if necessary 9V9" bY"*$é3étXQf_"thettproperty. So, in the circumstances the Qocunent at Ex.D2 cannot be called as a will as there;is no bequest of any interest in V the property in favour of the 2" defendant. The 2"
'Q defendant ea; appointed as an executor of the will eithtthetresbonsibility to look--after his wife and dd childrenj' ihfhough an authority has been given to u"t sell the; suit property for maintenance of the '- children, this authority comes to an end by the R*c#deéth of Gouse Mohiddin and such an authority cannot tybe bequeathed in law. 4 Ci 3.5 1 ; ,«-, 1' '2 Ir' .-
.'"\....> 5"'. 3" 4. K2 3 4&1 I\.D ?. Even assuming for the time being that the will was executed, there is no ratification or consent of the natural heir of the testatoryyand thereby the said will is illegal. On this asfiecticry the matter, the learned senior counssy figs re;iQfix upon (1) The decision of the Honfbledflighx§oar;Vof Madras reported in 1925 =5/,<aa;:asV"'-9&5'; V Sahib and others Vs. Uthumunsa Rowther and others}, wherein the Hon'ble sigh-conrtkhasrheld that under the Sunni Lawy a testamenta;y7 disposition by a Musalman is §infialiqfi_in tso "tar near it purports to dispose ofi moredVthan°:¢ne~thirdf of the testator's estate iorr to. benefit ;any7 of his heirs unless the heirs whose rights are affected by such disposition _ consent to it after his death expressly or impliedly l; of by fiassiye acquiescence. (2) AIR 1933 Allahabad 934V{Matlub hasan and others Vs. Mt. Malawati and \" otherS}r"where it was held by the Hon'ble High Court u'" that in respect of the will or bequest in favour of V heirs the consent of the other heirs is a necessary d"ryreduisite. In AIR (29) 1942 Bombay 828(2) [Bayabai yVs. Bayabai and another} it was held by the Hon'ble High Court that in view of Sunni Mahomedan law, there is a twowfold restriction on the testamentary oi.
17 capacity of a testator. He cannot dispose more than onemthird of his property, and even with regard to that onewthird he cannot bequeath it to his heirs. But the bequest to an heir can be validated by the' consent of all the heirs after the_ death :of £fi3x\w testator.
8. So, when once the deceased Gonse»Mohiddin' did not execute the Will there is no qnestion of the 2" defendant acquirind any interest*in the immovable property and merely Pefifiuse that tnevdocumentmEx.D2 is named as a fiillp the éodtedte do not reveal the transfer iiii Hof"=§flyalinterest_ by" way of a bequest in favour of the 235 defendant. Thereby the finding of the trial étett gorges as the validity of will is J"conderned is just and proper and the lower appellate >Court*_¢Qmmitted an error in reversing the said £ihdi5q."7"
p 9:2 The 2"" defendant sold the suit property to '-ytte._#" defendant under the registered Sale Deed "*«yExfn1 dated 17.02.1977. This deed was executed by ythe 2"' defendant and it is signed by the 3"
defendant as well. Her signature is at Ex.D1(b). She is an attesting witness to this document, The tie 18 execution of this document has been satisfactorily proved from: the evidence of the defendants gfifld that is not in question before this Court}{dThe_. question is with regard to the the.
Sale Deed. Though under E3 D? an afithoritv yes §iven to the 2" defendant Hto. selI_ the hsuitv property for maintenance eg the wife*andhchildrenV of deceased Ghouser'.;v1ohi.dd'in_:'; tigeughi the 2""
defendant sold the suit land ea the 17: defendant under the Sa%di3§th?gi£$i #héh?%dIdefendant had no valid title and he authority over the suit land as on the day whengthe Sale need was executed. When the Sfii aefefia§e§.is_ not the executor of the document and when thefl2m defendant do not acquire V any title to the suit land, the execution of Ex.Dl h; on the hasis of Ex.D2 is improper and thereby the Z#'defendant cannot acquire ady title to the suit property under Ex.Dl.
n'<lO. Under these circumstances, now it is , necessary to consider' the acquisition of title by g the 1"'defendant by adverse possession. There is no [dispute that the 2" defendant executed a Sale Deed at the time when he was looking after the suit 4 _19 ea?
property and was also maintaining the plaintiffs and the 3'd defendant and this has been admitted by the witnesses for the "plaintiffs, includin§'f§Wwgig After execution of the Sale Deed dated i7[GQ;19j7pVu the name of the 1" defendant ggag enteredi5i#M,?fié records under M.R. 11/82j83 and the nade of the 1€v_ defendant was entered in the revenfiériecords. The' Jft defendant has alse prodnced the rashidi patte- Ex.Dl5 which reveals ~thatiethe_*s¥%t. land is in possession of the 1"{eef¢§dsfit and he has been shown as owner ig"§§s§eggiéfi3§f.;fie§§ame. He has produced Ex.D17~ggrve§J nag; »§¢ea£cat:n§ the suit property from the'-renaining, portion of the revision Sy. No.75/2 and this Gas done on the basis of the Sale V Deed at Ex.Dl?~_on the basis of the survey held, the he namei of i;5e_ 1" defendant was entered into the revenue~fiecords'and this fact is endorsed by Exs.D18 and L9. 'E$fh22 is the record of rights of the suit u'" property and the name of the 1" defendant has been '= entered into the owner's column and also in the a"a:cuItivator's column to an extent of 1 acre for the iwperiod from 1981-82 to 1985-86. ::
2 O K" c;j_ ? 1); 't: '> 1';
11. Subsequently, the 1" defendant sought for conversion of the land to the non--agricultutal use and to prove the same, he has produced_the"h@tiCe?s Ex.D9 issued by the Tahsildar, the receipts $xs.QlOyu to 12 issued by the ?anchayatipfficestonardslpavfient of the tax and the endorsementeEntB13 issned hf thei survey authorities having"Dheld lthgdsnrvev and demarcating the suit'gpropertvg inn additioh to the documents referred to above} Ek,ni§ is the sketch in respect of the lay--out forming nunher of plots over the suit pg§§e$t§_ and "spa ;perusal of all these documents~ reveal fitfl%tr the «suit land has been converted =intolrfiOfi"é§ricultural use and a laywout has been formed containing number of sites.
'di2ag ».It His "no»doubt true that there is V'-de§e'c'tiveg"title and the 2'" defendant had no authority itof execute the Sale Deed, but these fdocuments clearly raise ea presumption 111 law that :the'l% defendant is in possession of the said lands. « Likewise, in the remaining portion of the revision gdsyf No.75/2, the 3"" defendant has also sought the xconversion of the land for non~agricultural use and formed a lay~out containing the sites. Ex.D5 is the t><..» 21 V03 document produced which reveals that the 3'd defendant has sold a site. So, the perusal of the evidence of D.Ws.1 to 4 and the documents prdduced clearly establishu"that the Ift defendant has heen; in possession of the suit land since frefi the aafé* of sale transaction till the date st institution of the suit. Though the plaintifts have exaained thep witnesses, their oral version cannot ouerscome the proved possession of the i& defendant. Though it is contended that' the ,S?ie_lfis%d?E#§fi1 dis not acted upon, the material" p1aced* on* record by way of mutation en£;¥JxtheKrecord»of rights, the rashidi patta, aland. revenue ,receipts and the tax paid receipts ciearl§.estahlishi'the fact that the 1" 3
V defendant is in possession of the suit property. In ls that vies of the matter, it cannot be said that the Sale ,Deed§E§;D1 was not acted upon. In the circumstances, the decision relied upon by the u"t learnedg counsel for the appellants reported in l'."fgCQ?f6 Supreme Court Cases 401 [M.Venkatramana *cs:nehbar [Dead} by L.Rs. Vs. M-Rajagopal Hebbar and pothers], do not apply to the facts on hand. Hence, the ultimate question that arises is with regard to the acquisition of title by adverse possession. Vélw
22 §4:4
13. So, the 1" defendant is in possession of the property on the basis of the defective Sale Deed Ex.D1, executed by the 2"d defendant in his7fayour and this possession of the 37" defendant Lis continuous, unobstructed and peaceful till the date "
of institution of the suit. dhmifi'i;si his: specific defence that he has acquired an absolfité citl§ to; the suit property by adverse poseesgififigimm in ad catena of decision, the Hon*ble ape; Court and other Courts have held that the person in possession of the property on the basis cf a defective title for a period exceeding £2_years, acquire absolute title by adverse possession Z "The learned counsel has also relied on the decision reported in 2003(8) Supreme Vcourt bases 673,fSushil Kumar Vs. Rakesh Kumar] and Z5 contends that there is no specific defence put~forth 'regarding *_the-" adverse possession and in the circumstances, he submits that there is a defence "'xfaputmforth by the 15' defendant cannot be accepted. i'=The*l5% defendant in his written statement has taken .R~ up a contention that the suit is barred by time and d'-_;when he claims to be in possession of the suit property on the basis of the Sale DeedmEx.D1 since from 17.02.1977 and when it is held by the Courts «Z, 4 23 rfifl below that the 1" defendant is in possession of the suit property on the basis of a defective title, the principle of adverse possession do apply to7 the facts. Further more in para 9, the 1" defendant has taken a specific contention that he is in possession a of the property by adverse possession and_he has established. the title and possession ito"»theadsgitu land by adverse possessiongvp In that ylé§"b£ the' matter, the decision referred to supra do not apply to the facts.}
14. So, 'under fthese: circumstance, it is now necessary Atog, consider that whether the suit instituted.*is'within limitation or' otherwise. On this aspect of the flatter the learned counsel has h*relied ppon the decision of the Hon'ble Apex Court vEreportedpin*hIR 1991 Supreme Court 1600 EAjudh Raj and others Vs. Moti3 in this case the facts reveal fthat the suit instituted was dismissed and it was phéldathat Article 100 of the Limitation Act will be o}attracted and if no other particular Article of the "i Limitation Act [hereinafter referred to as "the Act"
for short] is applicable the suit must be governed by the residuary Article 113, prescribing limitation kill 24 922,/"Cw;
of three years. Therefore, in a suit for title to an immoveable property which has been the subject"
matter of E1 proceeding under" a Special Act "if an adverse order comes in the way of the success of the plaintiff, he must get it cleared before proceeding7 further. On the other hahd if the order has beenl passed without jurisdiction, the same can'heJ§§hored as nullity, that is,'nonteristent~in.the eye of lawd and it is not necessary to set it asi§§€Héfid such a suit will be covereq_fi§ Articlekgs of the Limitation Act. In the decision....reported'liiinvihyiil 1984 Gujarat 32 [Patel Msfihjimfiayel {deceased by LRs) and others Vs. Patel'J1vrafixEra§ji and others}, wherein it is held that _in_ a_ suit _by minor for possession on _ attaihing majority,, when the minor's exact birth A<.date is not proved, the suit cannot be held barred as not filed within 3 years of attaining majority. if _In another decision, reported in AIR 1992 Delhi 118 d" Esanjayfi Kaushish Vs. S.C.Kaushish and others}, "' wherein it is held. that in. a suit for' partition, i"u where a plea that earlier partition decree was void, Dsham and fictitious, the declaration for avoiding earlier decree is not necessary and Article 113 of (>6.
25 ?CE the Limitation Act applies and not Article 59 dealing with relief of cancellation of decree.
15. On this aspect of the matter, the learned counsel for the respondents relied on the decision:
reported. in .AIR 1999 Supreme_ Court J9$§tl[$aiiochanu Karan Vs- Basant Kumari Naik and anotherl,inhefein the Hon'ble Apex Court held that the plaintiff Qasf in possession of the proper%&Lfpr lg Y%%#S Ey virtue of Sale Deed in his favonrnltheflshit filed against the alleged illegitimate son of erstwhile owner for trespass, the drightfi of" son 'foxmsfiling suit for recovefy of hpossessiofi_ got expired before filing said suit "by 'plaintiff,' in the circumstances the plaintiff could be said to have perfected title by vdvirtue of Section 27 of the Limitation Act. fpl6fdfs don, so far as the plaintiffs are _concerned, as per the cause title, the 1" plaintiff 9" fies: aged" 20 years, the 2"i plaintiff was aged 19 f_§ears and the 3" and the 4" plaintiffs are said to d"> be aged 18 years respectively. Now as could be seen . from the evidence, the 1" plaintiff has been examined as P.W.l and he states his age as 25 years on the date when his evidence was recorded on DA 26 04.02.1999. In the chiefwexamination he states that he came to know about the Sale Deed 3 months prior to institution of the suit. But, in the, cross-
examination, he clearly admits that _ifimediateiyy after 2 or 3 months of attaining the maflority,ntheyr9 came to know about the Sale beed%bxgpg7?flofithat he has instituted the suit within Zror 3 yagag of hisu attaining the age of majority} So fares the proof of the age is concernedyhetheg plaintiffs have produced. Ex.P4wtransfere:certificate_ of P.W.l i e., 1" plaintiff,.iEx,P5}transfera certificate of P.W 2 i.e., 2"*~piaintfiff"vand they; reveal that the 1"
plaintiff 'wa 'Vborn he _"2¢jo7.19e3, whereas the 2"d plaintiff was_born1onpi2.07.1965. To mean, the 1"
__ plaintiff had *attained. the age of majority as on 9r 21}Q7.19€1,y9whereas the Zmi plaintiff had attained the age at majority as on 13.07.1983. So far as the V remaining aplaintiffs are concerned, no documents hiuhave been produced by them to prove their date of 9_birth or age as on the date of institution of the i"*usuit. Admittedly, this suit came to be instituted Lion 02 01 1991. The difference of age between the 1"
and the 2"d plaintiffs is 2 years and for others it is less than one year and if this difference is s(/ 27 .i mfi%;fi R53 yrrzté considered in respect of plaintiffs 3 to 5, it could be presumed that they were born much before 3 years of the institution of the suit.
17. The provisions of Section 3 foff the Limitation Act, deal with bar of 1imitationgafso,~ under this provision, even though a defehce is not"
taken, it is duty of the Court to dismiss'th§Msoit if it is filed after the prescribed perigg and ash; could be seen from the pro§isionsdot:Section 6 of the Act whenever there is a iegal.disability like minority, insanity andi idioetp. {he ipgriod within which $hch diéibilififi énists has to be excluded for the purpose 'of plimitation. Section 8 of the Limitation hot deals_§ith the special exceptions and "=¢t pitviaes that"nothing in Section 6 or Section 7 ';o£» the" hinitation Act applies to suit to enforce rights of pretemption or shall be deemed to extend, hfor imore Vthan 3 years from the cessation of :disability or death of the person affected thereby, bithelihperiod of limitation for any suit or ~r application. So, considering the provisions of "sections 6 and 53 of the Act, the suit has to be instituted by the plaintiff within 3 years of their D<..
28 RSA 922/0% attaining the age of majority and as could be seen from the birth certificate and transfer certificate produced at Exs.P4 and 5 respectively, plaintiff No.1 has attained the age of majority in the mnnth of July 1981, whereas the f" plaintiff attainedthe a age of majority in the month of July lddd and the suit having been instituted on Q2:ul.1§Sip it Q; fiat, within 3 years of the date at attaining tfié ape of' majority. So far as the ~plaintifrs '3, and 4 are concerned, a specific'defente fine Fagen by the 1% defendant in the written statement that the suit is barred by=timei ywhenait is duty of the Court to consider the question of limitation and it is for the plaintiff,s ":c$'.,es,1§'_ab1ish that the suit is in / _ time,; 'fit isa incumbent upon the plaintiffs to ix produce the birth extracts of the plaintiffs 3 and 4 or any other document to show their date of birth. _The'Vplaintiffs do not state as to whether any i",documents are available or not. If available, they "~pc9u1d} have produced them, if not the endorsement ud*_could have been produced. So that the Court could iihave considered the question of limitation so far as the plaintiffs 3 and 4 are concerned. In this context, if the decision of the High Court of ad, 29 wca ""?fflfi Gujarat referred to supra is looked into! the minor's exact birth date was not proved and it was held that the suit cannot be said to béybafredfhyp time as not filed within 3 years after attaining theg' majority. The facts of the :case_ reveal' that xthe plaintiffs 3 and 4 were minors and their eractfldataf of birth is not known. So rar as thé-§1aintiffs l and 2 in the Presen?=$ui€ ara concerned[ they are not minors and they conldhhavgugrcdqced the birth Certificates . QfiThey phayehhattained the age of majority and yin?"fihatHaaapacity,, the suit has been instituted, ylt appears that the plaintiffs 3 and 4 have sfippr¢sséaT§a§.§éi§v§n£ documents only to claim the benefitd of _Limitation. Hence, the principle _ laidgdown in the decision referred to supra do not h. apply to the facts on hand. Apart from the question of hlimitationf there was question of adverse V possession;* by co~parcener against another cow h"iparcenerdand it is in this context that the Hon'ble v yBigh_ Court held that the suit was not barred. by "-utime.
18. The-prayer claimed in the plaint reveals that the plaintiffs have sought for a declaration 30 a%fi Igjifiw that the Sale Deed dated 17.02.1977 is void and does not bind the interest of the plaintiffs in the said property: When the plaintiffs have pre§e§§flfofg:%g specific relief of declaration, 3"theE~pdecisionfl reported in AIR 1992 Delhi 113 does not apply as it was heid by the.High Court in the said suit that theh relief of declaration is Lnct fiéfessérpg Even otherwise, considering for the timegbeing that the relief of declaration is reagndgnrgani if this suit is to be treeted as a suit"for bore injunction, the plaintiffs hnfe te_pr§y§ ggéig lawful possession of the suit'Pré§prtffon the date of the suit. Even as regardewcancelietion as the document, the High Court of AndhraVv"e.E_?raVdeshV?in,:_t'he decision reported in AIR _ 2oo7_ifidnra firadeshg57 (rs) [Yanala Malleshwari vs. A*.Smt, Ananthula Sayamma} held that in case if there is "a .Wiil, fthe owner of the property can seek i _cancellation of the Deed by registering cancellation i"ufieed. In my opinion, as there was a transfer of an 4"_invalid title, the question of cancellation also i"H does not arise. It is the finding of the Courts ibelow that the plaintiffs are not in possession of the suit property and that it is the lat defendant who is in possession and in the circumstances, when 0/--
3i X ':2 (* ,7. -'" ' " /1 ,4-1.
['~..>:'i 7' 4/ be \ the suit is not for possession and when the plaintiffs have not proved their possessionymthere is no question of granting any decree eitheir for possession or for injunction. V
19. Though the learned hcounseli tor" the appellants submits that in a hsuitz fay yihjufi¢§x§fi,u the cause of action is recurring, it the plaintiffsi have failed to establish their possessioqgbver the suit property, the question_to grant the relief does not arise. as could he seefi frog éfié provisions of Section 8 of the Limitation"Hct in respect of those who suffered }theK legal _disability and after the cessation of disability; the suit has to be filed within 3 years from the date of attaining the age of Shzmjorityg afihe plaintiffs have not proved the date v5on*ehich they attained the age of majority. In the circumstances; the suit filed is not within 3 years hand the relief of declaration cannot be considered gas tthe claim is barred by limitation. It is
--freleyant to note that Section 65 of the Limitation "gifict provides the limitation of 12 years for possession of immovable property and the limitation would commence from the date when the possession of M» 32 if, the defendants becomes adverse to the plaintiffs. But, in View of Section 8 of the Limitation Acty¥the plaintiffs are not entitled to the period fot*1l2n years for institution of the "suit artery attainingfi the age of majority.
20. The right to the property ertinéuishes in case if the suity is ynotg instituted! on the determination of th§g:éeri§&y}linitedt to any' person' for possessionvor any"property;ipSof under Section 27 of the egty in case it tteipiaintiffs have sought for possession or the enit property, such suit ought to have been filed fiithin the period prescribed by law. So; in vienicr section 8 of the Act and under Articles 58 of the Cohstitution, the limitation on n"both the counts is": years on the date of attaining Hthe age er majority and the suit is not instituted within the said period. Hence, under Section 27 of hthe Actb the plaintiffs' right to the property is .ettinguished and they cannot institute a suit. In a such circumstances, even it is not necessary for the "g defendants to establish the title to the property by adverse possession.
BL 33 RS£ 922x04
21. So, the scrutiny of the evidence reveals that the 15' defendant is in possession of the suit property since from the date mentioned: in dfirrDi}r Though the lower appellate Court held that ts¢_s§iéxV Deed and the Will Exs.Dl and ,3t_respectivelyl'sre legal and valid, in vieweof above, I am of the opinion that the iawei gppellate Court committed an error in reversing the finding so far as the validity Sale Deed are concerned; gfiut; anv hos, the trial Court and the 1owen""§p§éii§fiétI;9§§g@ have come to the conclusion that the 1% defendant is in possession of the suit 'Qrooertv: tron hthe date of execution of Ex.D1 and gthereby ?the;"finding of the trial Court _ that }the~ 1"i defendant has acquired the title by '; adverse fiossession has to be accepted. So far as the possession _ is". concerned, there are concurrent ll' findings of the Courts below that it is with the 1"
'l;defendant: Hence, as the suit is barred by time and °_tne.1$> defendant has acquired the title by adverse .f",possession, the plaintiffs are not entitled to the ,relief sought for. , O<:;Mp* 34
22. In Misc. Civil No.ll958/2009 filed under Order 41 Ruie 27 CPC., the appellants have sought for permission to produce the documents i e£i§the certificate issued by the $ec:eta;pfl"ra§i- Grampanchayath to prove that "lfliacreiagppfgand converted to nonmagricultural use is in possessionp of the appellants. fhis*icerti£icate fliéw dated 17.12.2007. The,' othe-rim"L:-.dE:.cuments--.. the photographs, wherein some pé;§$fig here standing in front of the house lappellants have produced the tan paid receiptyand serox copy of the Sale Deed said to have been executed by defendant No.3. 1; Thev appellants _could have obtained the certificate rrom_the Secretary, the photographs and _ the copy of the Sale Deed prior to institution of Ax theg suit, ,2uThe affidavit does not disclose any reasons for not producing these documents with the H' suit}. The ingredients of Order 41 Rule 27 CPC are l"_notp complied. Apart from this, there is ample " material on record to prove that it is the 1"
ad*_defendant who is in possession of the suit property. pin the circumstances, even to pronounce the Judgment these documents are not necessary. The suit was instituted in the year 1991 and the application is (>4 35 BSA 922!G4 filed by the appellants on 02.07.2009 i.e., after about 18 years. There is inordinate delay} there are no bona fides on the part of the ap§eiie5rgj;n_ filing the application and in Vsuch:"circuestances;' the principles laidwdown by the $on;blei§pe%§0our in the decision reported in ATRdl965 Supreeetfiourtp 1008 [The Municipal Corporation of*n¢reater Bombay Vs. Lala Pancham and otherslg do notapplpej
23. The <appel1ants "haté" fgiee Misc. Civil Nos.11959/2000 and 22651k2009 under Order 6 Rule 17 CPC seeking aeendnent Ed the plaint, incorporating para Sia) and 5(bi respectively to the plaint. The said filed on 02.07.2009 and
26.l1;2009'respeeti§el§ and it is relevant to note a"thatt then provisionsi of Order 6 Rule 17 CPC were No.46 of 1999 with effect from
01.§0j";2002"V'e?ena the proviso to Order 6 Rule 17 cpc hprovidese;no application for amendment shall be .allowed after the trial has commenced, unless the v Court comes to the conclusion that in spite of due 1 diligence, the party could not have raised the 'matter before the commencement of the trial. Though this amendment came into force on 01.07.2002, since 04,_ 36 from the date of amendment till today, for ahout 7 years, the appellants did not take any steps to file any application. Even otherwise, as ccald ha §e;a_ from the proposed amendment, it is only hy gay offi rejoinder to the defence putffortlg Qilh agegagdx to the adverse possession.
24. So far as the incorporation of para S(b) is concerned, the question: is "sith; regard. to the validity of the will and this sill has been held to be invalid and %fié othérxcdrtefiéions raised in para 5(c) and (d; are also cf ad releyance as it pertains to the legality of thé will and the claim that the relief of ingunction is based on recurring cause of action, When once the trial Court has come to the xdflonclusionwthat the l" defendant is in possession of v*the hsuitylproperty, the suit for declaration and injunction dis not maintainable in law and the famendment sought for after about 18 years cannot be :said*to be bona fide. It appears that the intention . oft the appellants is not to end the litigation. gdfiothing is stated in the affidavit filed to explain sthe reasons as to the delay and negligence on their part. In that view of the matter, the applications .4.
37 922/OLE for amendment cannot be granted at this stage. Hence I answer the substantial questions of law in negative and affirmative respectively. Misc 'Civil Nos.3.1959/2009 and 22651/2009 filed for the plaint are also rejected. Hence I pxscéefi-£5"
pass the following:
The appeal and Mise: fiivilg fioSQl1Q53/O9,v 11959/O9 and 22651/09 are dismissed. 'No costs.