Karnataka High Court
Gunawanthrao And Anr vs Baburao And Anr on 16 December, 2024
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
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RFA No. 200052 of 2019
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 16TH DAY OF DECEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE M.G.S.KAMAL
REGULAR FIRST APPEAL NO. 200052 OF 2019
(DEC/INJ)
BETWEEN:
1. GUNAWANTHRAO
S/O LATE ANNARAO DESHMUKH,
AGE: 68 YEARS, OCC: AGRICULTURE,
R/O. MALEGAON, AURAD-B, DIST. BIDAR.
2. UMAKANT S/O ANNARAO DESHMUKH,
AGE: 58 YEARS, OCC: AGRICULTURE,
R/O. MALEGAON, AURAD-B, DIST. BIDAR.
...APPELLANTS
Digitally signed (BY SRI SANKET APPAJI, ADVOCATE FOR
by SACHIN
SRI HARSHAVARDHAN R. MALIPATIL, ADVOCATE)
Location: HIGH
COURT OF AND:
KARNATAKA
1. BABURAO S/O LATE VITHALRAO PATIL,
AGE:71 YEARS, OCC: AGRICULTURE,
R/O. CHIMEGAON, AURAD-B,
DIST. BIDAR-585326.
2. DILIPKUMAR S/O LATE VITHALRAO PATIL,
AGE: 66 YEARS, OCC: AGRICULTURE,
R/O. CHIMEGAON, AURAD-B, DIST. BIDAR-585326.
...RESPONDENTS
(BY SRI. MANJUNATH GINNI, ADVOCATE)
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RFA No. 200052 of 2019
THIS RFA IS FILED UNDER SECTION 96 OF CPC, PRAYING
TO ALLOW THE APPEAL WITH COST AND SET ASIDE THE
JUDGMENT AND DECREE IN O.S.NO.23/2012 ON THE FILE OF
THE SENIOR CIVIL JUDGE AND JMFC AT AURAD-B DATED
28.11.2018, AND CONSEQUENTLY DISMISS THE SUIT OF THE
PLAINTIFFS.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 21.11.2024, COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT' THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE M.G.S.KAMAL
CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE M.G.S.KAMAL) This appeal is filed by the defendants aggrieved by the judgment and decree dated 28.11.2018 passed in O.S.No.23/2012 on the file of Senior Civil Judge and JMFC, Aurad-B (for brevity, hereinafter referred to as the 'trial Court') by which the suit of the plaintiffs was decreed declaring the plaintiffs to be the joint owners of suit property, consequently restrained the defendants by permanent injunction from interfering with the peaceful possession and enjoyment of the suit property by plaintiffs.
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2. The above suit is filed by the plaintiffs;
(a) claiming to be the absolute owners in possession of the land bearing Sy.No.119 measuring 07 acres situated at Chimegaon Village in Aurad-B Taluk, Bidar District (hereinafter referred to as suit schedule property), they having jointly purchased it from the defendants and their father Sri.Annarao Deshmukh in terms of registered deed of sale dated 21.05.1976. That at the time of execution of said deed of sale, defendant No.2 was a minor, represented by his father for himself as Karta and manager of the joint family. Defendant No.1 being the major, joined as one of the vendors. That the actual and physical possession of the suit property was delivered in favour of the plaintiffs.
(b) That though the deed of sale was registered, the concerned Sub-Registrar had not informed the revenue authorities regarding transfer of property for the purpose of mutation in the revenue records. Consequently, plaintiffs had made application for mutation of their names in the revenue records pursuant to which the mutation proceedings in case No.REV/APPL/CR-3/89-90 was initiated and notices were issued to the defendants. By which time, the father of defendants Annarao had passed away -4- NC: 2024:KHC-K:9710 RFA No. 200052 of 2019 leaving behind the defendants as his only heirs. Defendant No.1 filed objections on 24.01.1981 stating that he was not aware of the execution of deed of sale and he has not received any consideration amount. The Tahsildar, Aurad-B by his order dated 15.07.1982 had observed that since the Revenue Inspector, Dabka by order dated 10.09.1976 had refused to rectify the mutation, an appeal was required to be filed before the Assistant Commissioner and accordingly closed the proceedings. Consequently, plaintiff preferred an appeal under Section 136(2) of the Karnataka Land Revenue Act before the Assistant Commissioner, Bidar. That it is only on 15.07.1982 plaintiffs learnt about Revenue Inspector, Dabka rejecting their application for mutation. The Assistant Commissioner, Bidar allowed the appeal and set aside the order of the Revenue Inspector, Dabka Circle and also of the Tahsildar, Aurad-B, vide order dated 16.03.1990 passed in revenue appeal No.REV/APPL/CR-82/82-83 and remanded the matter to the Tahsildar for fresh enquiry and disposal.
(c) The Tahsildar, Aurad-B after conducting the enquiry passed the order dated 18.09.1991 in file No.RBA/RRT-CR-01/90-91 effecting the mutation of -5- NC: 2024:KHC-K:9710 RFA No. 200052 of 2019 revenue records in respect of the suit schedule property in the name of plaintiffs.
(d) Defendants preferred an appeal before the Assistant Commissioner, Bidar in REV/APPL/CR-35/91-92 which was allowed by order dated 02.01.1993 remanding the matter to Tahsildar for fresh enquiry and disposal. Tahsildar by order dated 15.04.1994 passed in RBA/RRT/DISP/CR-37/92-93 directing to enter the names of the defendants in the revenue records with an observation that the question of deed of sale being valid or not is to be decided by a competent Civil Court.
(e) Aggrieved by the same, plaintiffs preferred an appeal before the Assistant Commissioner in REV/APPL/CR- 28/94-95, which was dismissed by order dated 23.09.1995 confirming the order dated 15.04.1994/01.09.1994 passed by the Tahsildar.
(f) Based on the aforesaid order, the defendants have obtained an order from the Tahsildar, Aurad-B vide his letter dated 24.01.2012 directing the Circle Inspector of Police, Aurad-B to dispossess the plaintiffs from the suit lands and deliver the possession to the defendants. Plaintiffs have preferred an appeal under Section 49 of the -6- NC: 2024:KHC-K:9710 RFA No. 200052 of 2019 Karnataka Land Revenue Act before the Assistant Commissioner, Bidar which is pending disposal.
(g) That the defendants could not have challenged deed of sale executed by them and their father. Further defendant No.2 was aged 14 years at the time of execution of deed of sale, has not challenged the deed of sale even after attaining majority, within the time stipulated. Said deed of sale is binding on them. That the defendants instead of seeking relief for cancellation of deed of sale and seeking recovery of possession in accordance with law have filed an application dated 16.11.2011 before the Tahsildar, Aurad-B stating that some unauthorized persons are cultivating the suit land and have sought dispossession of the plaintiffs without disclosing the execution of deed of sale.
(h) In the circumstances plaintiffs constrained to file the above suit seeking relief of declaration declaring them to be joint owners of the suit schedule property and for permanent injunction restraining the defendants from interfering with their peaceful possession and enjoyment of the suit schedule property and an order to rectify the revenue records pertaining to suit schedule property in favour of the plaintiffs from the date of purchase. -7-
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3. Defendants filed written statement;
(a) denying the plaint averments and allegations. They have denied execution of deed of sale dated 21.05.1976 and delivery of actual physical possession of suit land in favour of plaintiffs thereunder. It is contended that the deed of sale dated 21.07.1976 is a bogus deed and neither the defendants nor their father had ever affixed their signature to the said deed of sale and that the said document was executed by impersonation. As regards the averments in the plaint regarding revenue proceedings before the Tahsildar and the Assistant Commissioner, it is submitted that the same are matters of record.
(b) It is further contended that the Tahsildar, Aurad-B by order dated 15.04.1994 had observed that the validity or otherwise of the deed of sale was to be decided by the competent Civil Court and had directed entering the names of defendant in the record of rights which order was confirmed by the Assistant Commissioner, Bidar who dismissed the appeal filed by the plaintiffs on 23.09.1995. Therefore plaintiffs ought to have filed the suit within period of limitation from the said dates. Since the plaintiffs have slept over the matter and approached -8- NC: 2024:KHC-K:9710 RFA No. 200052 of 2019 at a belated stage, the suit is not maintainable as it is barred by limitation.
(c) That there was a partition between the father of the defendants and the defendants on 15.06.1974 in terms of which land in Sy.No.118 measuring 26 acres 14 guntas along with land measuring 5 acres in Sy.No.119 was allotted to the share of defendant No.1. Similarly an extent of 31 acres 29 guntas in Sy.No.119 was allotted to the share of defendant No.2. An extent of 2 acres 24 guntas in Sy.No.47/C was allotted to the share of their father for his maintenance. After the partition, names of defendants were entered into revenue records and separate survey numbers were assigned as Sy.Nos.119/A and 119/B. As such, on the date of sale there was no existence of land by Sy.No.119. Further the father of the defendant No.2 could not have executed deed of sale as he had no right subsequent to the partition without permission to alienate the minor's property as required under Hindu Minority and Guardianship Act. Hence, sought for dismissal of the suit. -9-
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4. The trial Court based on the pleadings of the parties, framed following issues:
1. Whether the plaintiffs prove that they are the joint owners of suit land Sy.No.119 measuring 7 acres of Chimegaon Village ?
2. Whether the plaintiffs prove that the father of the defendant Nos.1 and 2 being his natural guardian has executed registered sale deed in their favour ?
3. Whether the plaintiffs prove that they are in possession and enjoyment of suit property ?
4. Whether the plaintiffs prove that defendants are interfering and obstructing in their peaceful possession and enjoyment of the suit property ?
5. Whether the defendants prove that the sale deed in favour of plaintiffs was not genuine and impersonating the father of defendants a false sale deed was created in collusion with the witnesses as allotted ?
6. Whether the plaintiffs are entitled to the reliefs sought for?
7. What order or decree ?
ADDL. ISSUE - 08.07.2014
1) Whether suit of the plaintiffs is barred by limitation ?
ADDL. ISSUE - 20.02.2018
1) Whether the defendants prove alleged partition took place in joint family on 15.06.1974 ?
5. Plaintiff No.2 examined himself as PW-1 and four additional witnesses as PW-2 to 5 and exhibited 63 documents marked Ex.P1 to P63. Defendant No.1
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NC: 2024:KHC-K:9710 RFA No. 200052 of 2019 examined himself as DW-1 and three witnesses as DW-2 to DW-4 and exhibited six documents marked as Ex.D-1 to D6. On appreciation of evidence, the trial Court answered Issue Nos.1 to 4 and 6 in the affirmative and Issue No.5, Additional issues framed on 08.07.2014 and 20.02.2018 in the negative and consequently decreed the suit declaring the plaintiffs as the joint owners of the property and consequently restrained the defendants from interfering with the possession and enjoyment of the suit property by the plaintiffs by way of permanent injunction. Aggrieved by the same, defendants are before this Court in this appeal.
6. The points that arise for consideration are:
(1) Whether the trial Court is justified in holding that the plaintiffs have proved execution of deed of sale dated 21.05.1976 and that the plaintiffs are in possession and enjoyment of the suit property?
(2) Whether the trial Court is justified in holding that defendants failed to prove the sale deed in favour of plaintiffs was created by impersonation in collusion with the witnesses ?
(3) Whether the trial Court is justified in holding that the defendants failed to prove the partition which according to
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NC: 2024:KHC-K:9710 RFA No. 200052 of 2019 them had taken place on 15.06.1974 as such their father could not have executed the deed of sale as he did not have title as on the date of the deed of sale ? (4) Whether the trial Court is justified in holding that the suit is not barred by limitation ?
7. Learned counsel for the appellants submitted;
(a) that Ex.D-1 is the partition deed dated 15.06.1974 that was entered into between the father of the defendants and defendant Nos.1 and 2, in terms of which, 5 acres of land in Sy.No.119 was allotted to the share of defendant No.1 and 31 acres 29 guntas of land was allotted in the name of defendant No.2 and that the said deed of partition at Ex.D1 had been acted upon as seen in the revenue records at Exs.D2, D3, D4, D5. Thus, he submitted that since the partition had taken place and same having been acted upon question of conveying 7 acres of land in Sy.No.119 in favour of the plaintiffs would not arise.
(b) That admittedly the Tahsildar by order dated 15.04.1994 had held the validity of deed of sale was required to be ascertained before the competent Court of law and thus for all practical purposes, suit ought to have been filed within three years from the date of the said order.
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NC: 2024:KHC-K:9710 RFA No. 200052 of 2019 That the defendants had filed their objections in the mutation proceedings even as in the year 1980 denying the execution of deed of sale. The order of the Tahsildar was taken up by the plaintiff before the Assistant Commissioner who had dismissed the said appeal by order dated 23.09.1995 which was again taken up by the plaintiffs in the writ petition and writ appeal. Thus, the plaintiffs being aware of the denial of the execution of deed of sale and did not take any action in initiating the proceedings within the prescribed period.
(c) That the plaintiffs have not examined any attesting witness to the deed of sale. They have also not examined the scribe to the deed of sale.
(d) He relies upon the judgment of the Apex Court in the case of Thiruvengada Pillai vs Damani Thammal and another1 to submit that in view of denial of execution to the deed of sale, the burden of proof was on the plaintiff. Thus, he submitted the trial Court has not adverted to these aspects of the matter while decreeing the suit.
(e) As regards the possession is concerned he submits that the plaintiffs themselves at paragraphs 19 and 20 of the plaint have spoken about the order of the 1 (2008) 3 SCR 23
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NC: 2024:KHC-K:9710 RFA No. 200052 of 2019 Tahsildar directing delivery of possession to the defendants. Thus, he contended that the defendants have been in possession of the property.
8. Per contra, learned counsel for the plaintiffs submitted;
(a) that the document under which the plaintiffs purchased the property is the registered deed of sale. That under the said document possession of the suit property was delivered to the plaintiffs. The names of the plaintiffs were mutated in the revenue records. However, in view of the order passed by the Assistant Commissioner the names of the plaintiffs were deleted constraining them to approach the Court.
(b) That cause of action for the suit arose when the letter dated 26.11.2011 at Ex.P-15 was addressed by the defendants to the Tahsildar alleging plaintiffs cultivating the suit land illegally and requesting Tahsildar to evict the plaintiffs and deliver the suit land to the defendants.
(c) He referred to the deposition of DW-1 at pages, 16, 18, 19 and 20 and submitted that the DW-1 has categorically admitted about the plaintiffs being in possession of the suit properties.
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(d) As regards the limitation is concerned he submits that the denial of the possession of the plaintiff was made by the defendants in the year 2011 and when a panchanama at Ex.P16 was drawn at the instance of the defendants alleging plaintiffs being in alleged illegal possession of the land.
(e) That since the deed of sale has been executed in favour of the plaintiffs and the possession has been with the plaintiffs. If at all aggrieved, it was defendants who had to approach the Court seeking relief of declaration. Hence, sought for dismissal of the appeal.
9. Heard and perused the records.
Regarding point Nos.1 and 2 :
10. Since the suit is for declaration of title filed by the plaintiffs that the burden of proving the title and possession is on the plaintiffs.
11. The case of the plaintiffs is that they purchased the suit schedule property from the defendants and their father late Sri Annarao Deshmukh, in terms of deed of sale dated 21.05.1976. That since defendant No.2 was a minor,
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NC: 2024:KHC-K:9710 RFA No. 200052 of 2019 his father represented him as natural guardian and karta of the joint family.
12. In the written statement, the defendants have taken up a plea of deed of sale having been fabricated by the plaintiffs by impersonating them and their father.
13. In order to prove their case, plaintiff No.2 has examined himself as PW1 and has produced the certified copy of the sale deed at Ex.P1. The plaintiffs have pleaded and PW.1 deposed that the original sale deed has been misplaced by his Advocate Sri.Ganapath Rao. To prove the same, the said Sri.Ganapath Rao has been examined as PW5, who in his affidavit of evidence has deposed that the original sale deed is misplaced in his office and is not traceable. The said document has been marked as Ex.P.1 unopposed. PW1 in cross examination has stated that Ex.P1 was witnessed by (1) Vaijinath Siddappa Ghale, (2) Shanker Rao Vithal Rao Patil (3) Hawgirao Vallure and (4) Balwanth Rao Patil. That out of agreed sale consideration of `6,000/-, `2,100/- was paid
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NC: 2024:KHC-K:9710 RFA No. 200052 of 2019 on completion of sale talks and on the date of execution of Ex.P1 balance `3,900/- was paid to the father of defendants. That Hawgirao Vallure and Balwanth Rao Patil were present on behalf of father of the defendants.
14. DW.1 in the cross examination recorded on 13.03.2018 has admitted that Vaijinath S/o Siddappa Ghale, Shanker Rao S/o Vithal Rao Patil, Hawgirao S/o Shivappa Vallure are known to him. He has further deposed that said three persons are not alive. He has also stated that Balwanth Rao S/o Viswanath Rao is also no more. He has admitted that said Balwanth Rao was his relative and was married to daughter of his uncle. As such he is his brother-in-law.
15. The aforesaid deposition of PW.1 and admission of DW.1 with regard to he being acquainted with the witnesses to the aforesaid document at Ex.P1 and one of them being his relative and their presence at the time of execution of Ex.P1 not having been denied or disputed by the defendants even during the cross examination of PW1
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NC: 2024:KHC-K:9710 RFA No. 200052 of 2019 would lead to a conclusion that the said persons being present and having witnessed the sale transaction between the plaintiffs and father of the defendants and defendant No.1 himself.
16. Another important witness produced by the plaintiffs to prove the execution of deed of sale at Ex.D1 is PW-4, the Sub-Registrar of Aurad (B) who was summoned to produce relevant register pertaining to deed of sale dated 21.05.1976. He has produced Ex.P.48 the certified copy of deed of sale deed 21.05.1976, along with other documents, such as permission letter issued by the District Registrar to destroy the old records as per Ex.P49, Ex.P50 and Ex.P51. He has produced thumb impression register at Ex.P57 pertaining to the year 1976-77 wherein the thumb impression of Annarao Deshmukh, the father of defendants has been marked and identified as Ex.P57(a). Below the same is the thumb impression of Gunavantrao, the defendant No.1.
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17. From this, it can be said that the plaintiffs have discharged their burden of proving the execution of sale deed dated 21.05.1976 sufficiently. Under the circumstances, since defendants have alleged that the plaintiffs in collusion with the witnesses have created the sale deed at Ex.P1 by impersonating their father Annarao Deshmukh and defendant No.1 himself, the onus of proving the same would shift on to the defendants.
18. Perusal of the cross-examination of PW4 by the defendants reveal that except suggesting that there are no other records to show that the thumb impressions found at Ex.P.57(a) belongs to Annarao Deshmukh, and that the thumb impressions found therein do not belonged to Annarao Deshmukh or Gunavantrao or Dilip, the defendants 1 and 2, nothing is suggested.
19. When such a serious allegation of impersonation and fabrication of sale deed is made there is not even a suggestion made to the said witness in that regard. Pertinent to note that the very object of cross-
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NC: 2024:KHC-K:9710 RFA No. 200052 of 2019 examination is to test the veracity of deposition of a witness. Matter of cross-examination is not a mere empty formality, but one is required to put his own case in cross- examination otherwise the deposition of the witness has to be taken as unchallenged. - [Sirmal v. Annapurna Devi2].
20. Apart from the above witnesses, plaintiffs have also examined PW-2 one Kashiram who is stated to be the owner in possession of the land bearing Sy.No.108 situated on the northern side of the suit property. The said witness has deposed that the plaintiffs purchased the suit property from the defendants and their father about 35-38 years back and eversince then plaintiffs have been in possession of the said land. The said witness has reiterated this version in the cross-examination and nothing has been elicited from the said witness to discredit his version.
2 AIR 1963 SC 1906
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21. PW-3 is another witness who claims to have worked as a coolie in the land of the plaintiffs. Even the said witness has reiterated the plaintiffs have been in possession of the suit property.
22. The Trial Court taking note of the evidence of the aforesaid witnesses and the documents produced by them has come to the conclusion that the deed of sale at Ex.P1 being the registered document of more than 30 years, execution of which is corroborated by production of thumb impression register at Ex.P57 has come to the conclusion that the plaintiffs have proved the execution of deed of sale at Ex.P1 as required under law. This Court is in agreement with the said findings and conclusion arrived at by the trial Court, in that plaintiffs by examining witnesses more particularly, PW-4 the Sub-Registrar, who apart from producing the thumb impression register at Ex.P57 has deposed in confirmation with execution of the said document.
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23. Conversely, defendants who alleged fabrication and concoction of deed of sale at Ex.P1 have not taken any steps to discharge their burden casted on them in terms of Issue No.6. They have not even sought for reference of Ex.P57 for verification. It is settled law that burden of proof lies on the party, who asserts in the affirmative existence of a fact. In other words since the defendants specifically contended that the sale deed at Ex.P1 was not genuine and the same was created by the plaintiffs impersonating their father and themselves, they ought to have discharged the said burden in the manner known to law. No attempt is made by the defendants seeking verification of signature/thumb impression either of deceased Annarao Deshmukh or of defendant No.1 which was found in Ex.P.57.
24. For the aforesaid reasons, this Court is of the view that the trial Court is justified in holding that the plaintiffs have proved the execution of deed of sale at
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NC: 2024:KHC-K:9710 RFA No. 200052 of 2019 Ex.P1 and the defendants have failed to prove that the said document having been created by the plaintiffs.
25. As regards the possession of the land is concerned, necessary to advert to the revenue proceedings right from the year 1976 till the date of filing of the suit.
26. After execution of sale deed- Ex.P1, plaintiffs have apparently made application for mutation of their names. Ex.P4 is the objections dated 24.01.1981 filed by the defendants to the said application of the plaintiffs before the Tahsildar. In the said objection statement defendants have stated that they had received the notice from the office of Tahsildar informing that they along with their father had sold the property to the plaintiffs. It is further stated that they were not aware of the said sale and they have also not received any money. That their father passed away about two years ago and he had not informed them about the same. That if the Tahsildar is mutating the names of Baburao and Dilipkumar, sons of
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NC: 2024:KHC-K:9710 RFA No. 200052 of 2019 Vittalrao into the revenue records, the same can be done by paying them the full value of the land.
27. Thus, from the above reply given by the defendants on 24.01.1981 as per Ex.P.4 it is clear that they had no objection in mutating the names of plaintiffs subject to they being paid the full value of the suit property.
28. Ex.P5 is the mutation register extract which refers to an application having been made by the plaintiffs seeking mutation of their names in the revenue records pursuant to the deed of sale dated 21.05.1976. Endorsement dated 10.09.1976 made in the said document would indicate that request for mutation was rejected as the land area in Sy.No.119 comes under the Prevention of Fragmentation Act, 1966.
29. The Tahsildar, Aurad (B) by his order dated 16.07.1982 produced at Ex.P2 referring to the aforesaid endorsement/order dated 10.09.1976 passed by the Revenue Inspector rejecting their application had advised
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NC: 2024:KHC-K:9710 RFA No. 200052 of 2019 the plaintiffs to prefer an appeal before the Assistant Commissioner. Accordingly, plaintiffs have preferred an appeal before the Assistant Commissioner, Bidar who by order dated 16.03.1990 as per Ex.P.32 partly allowed the said appeal and had remanded the matter to Tahsildar for fresh enquiry and disposal.
30. As seen at Ex.P.7 the order dated 18.09.1991, upon the remand so made, the Tahsildar had considered the objections of the defendants about their father not having authority to sell the property and they not having knowledge about the same and after consideration of the objections and on merits of the case had held that plaintiffs herein were entitled for mutation of their names in to the revenue records as they were in actual possession and cultivation of the land pursuant to the deed of sale 21.05.1976. As against the said order, the defendants have preferred appeal before the Assistant Commissioner.
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31. The Assistant Commissioner by order dated 02.01.1993 produced at Ex.P.31 allowed the said appeal and remanded the matter to the Tahasildar for fresh disposal by giving opportunity to the parties by assigning the reasons as seen at paragraph 5 of the said order, which is extracted hereinunder :-
"5. - On perusal of record it can be seen that though sale deed executed in the year 1976 by the father of the appellant it is not know or explained why the mutation was not effected immediately. Even with regard to possession also the records are not clear in favour of any one as to who is in actual possession of the land in question. Both sides have not produced any cogent evidence with regard to the possession and even with regard to action taken on execution of sale deed executed in the year 1976. Hence, the order is not specific order and needs to be set aside."
32. The Tahsildar on such remand, by order dated 15.04.1994/01.09.1994 as per Ex.P33 opined that the validity or otherwise of the sale deed is required to be adjudicated by the Civil Court and accordingly, directed the names of defendant Nos.1 and 2 to be restored in respect of suit property. Aggrieved by the same, plaintiffs preferred an appeal before the Assistant Commissioner.
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33. Necessary to note that apparently, it is for the first time the defendants have brought in the issue of partition dated 15.06.1974 purportedly taken place between their father and themselves in which an extent of 05 acres out of 36 acres 29 guntas in Sy.No.119 was allotted to share of defendant No.1 and remaining 31 acres 29 guntas was allotted to the share of defendant No.2 and as such the father of the defendants could not have alienated the property of defendant No.2 who was then a minor. The Assistant Commissioner in view of the said contentions raised by the parties, by order dated 23.09.1995 produced at Ex.P34 confirmed the order of the Tahsildar directing the parties to have the matter resolve through civil Court. As against the said order, plaintiffs preferred a writ petition in W.P.No.41819/1995 which was rejected on 08.12.1995 as against which a writ appeal was filed in W.A.No.884/1996 which was also rejected as the revenue authorities had directed the parties to workout their remedies in a civil Court.
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34. Thereafter there appears to be no further proceedings or actions initiated by either of the parties uptill 2011. When things stood thus, the defendants initiated the proceedings before the Tahsildar alleging unauthorized occupation of their land and as seen at Ex.P15 dated 26.11.2011 by which the defendants have requested the Tahsildar to remove/vacate unauthorized occupation of the land measuring 07 acres forming part of Sy.No.119 and to hand over the possession to them. Pursuant to the said letter a mahazar has been drawn by the Village Accountant on 04.01.2012 in the presence of the witnesses named therein who have stated that though names of defendants are found in the revenue records, the said land is in possession and being cultivated by one Suryakanth S/o Vittalrao, Dilipkumar S/o Vittalrao and Baburao S/o Vittalrao who are the plaintiffs in the suit. The Tahsildar by his letter dated 24.01.2012 produced at Ex.P.11 pursuant to the mahazar drawn as above has requested the Circle Inspector, Aurad (B), to vacate/remove the plaintiffs and said Suryakanth from the
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NC: 2024:KHC-K:9710 RFA No. 200052 of 2019 said property and to hand over the possession to the defendants. A response in this regard has been issued by the jurisdictional police by communication dated 02.02.2012 wherein the police have informed the Tahsildar that the process of removal of encroachment would be undertaken in the presence of Tahsildar and under his direction and on the date, time fixed by him and necessary protection in this regard would be provided by them.
35. A memo dated 08.02.2012 as per Ex.P13 has been issued by the office of Tahsildar directing the Taluk Surveyor to contact the concerned police on 15.12.2012 and to remove the encroachment and hand over the same to defendants and to submit a report in this regard. The aforesaid correspondence ensued from the office of Tahsildar at the instance of defendants would indicate that admittedly plaintiffs have been in possession of the suit property and the defendants had made all efforts to have them vacated through the office of Tahsildar.
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36. Thus, the Trial Court is justified in holding that the plaintiffs being in possession of the suit property having been purchased by them in terms of deed of sale dated 21.05.1976 and the defendants have failed to prove that the said deed of sale was a created document. Point Nos.1 and 2 are answered accordingly. Regarding Point No.3 :
37. The defendants have contended that their father could not have executed the deed of sale as per Ex.P1 on behalf of defendant No.2 inasmuch as on the date of deed of sale i.e., 21.05.1976 he had no right over the suit properties since there was already a partition between their father and the defendants on 15.06.1974 as per Ex.D1 in terms of which 05 acres of land in Sy.No.199 was allotted to the share of defendant No.1 and 31 acres 29 guntas of land was allotted in the name of defendant No.2.
38. Perusal of Ex.D1 indicates that the father of defendant representing himself to be the absolute owner
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NC: 2024:KHC-K:9710 RFA No. 200052 of 2019 of the properties mentioned therein, which included land in Sy.No.199 has purportedly allotted 5 acres to defendant No.1 and 31 acres 29 guntas to defendant No.2. The said document however does not refer to the age of defendant No.2. In the deed of sale dated 21.05.1976 at Ex.P1 the age of the defendant No.2 is shown as 14 years. Therefore, as on the date of execution of Ex.D1 his age must have been 12 years. No explanation as to why defendant No.2 a minor without any guardian or next friend representing him was given an extent of 31 acres 29 guntas of agricultural land while defendant No.1 his elder brother who was a major, was given only 5 acres of land. No doubt as seen from the revenue records more particularly Ex.P5 -Mutation Register extract there is a reference with regard to 05 acres of land standing in the name of defendant No.1 and 31 acres of land standing in the name of defendant No.2, whether in the fact and circumstances the entries in the said document can be taken to hold that there was a partition between the parties ?. Ex.D1 though refers to allotment of shares as
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NC: 2024:KHC-K:9710 RFA No. 200052 of 2019 noted above, in favour of defendant Nos.1, 2 and their father, it is not clear whether there has been division of properties by metes and bounds.
39. Necessary at this juncture to refer to the judgment of the Apex Court in the case of Kalyani vs. Narayanan and others3 wherein dealing with the essentials of partition, at paragraph 10 the Apex Court has been held as under :-
"10. .......Partition is a word of technical import in Hindu law. Partition in one sense is a severance of joint status and coparcener of a coparcenary is entitled to claim it as a matter of his individual volition. In this narrow sense all that is necessary to constitute partition is a definite and unequivocal indication of his intention by a member of a joint family to separate himself from the family and enjoy his share in severally. Such an unequivocal intention to separate brings about a disruption of joint family status, at any rate, in respect of separating member or members and thereby puts an end to the coparcenary with right of survivorship and such separated member holds from the time of disruption of joint family as tenant-in-common. Such partition has an impact on devolution of shares of such member. It goes to his heirs displacing survivorship. Such partition irrespective of whether it is accompanied or followed by division of properties by metes and bounds covers both a division of right and division of property. A disruption of joint family status by a definite and unequivocal indication to separate implies separation in interest and in right, although not immediately followed by a de facto actual division of the subject-matter. This may at any time, be claimed by virtue of the separate right. A physical and actual division of property by 3 AIR 1980 SC 1173
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NC: 2024:KHC-K:9710 RFA No. 200052 of 2019 metes and bounds follows from disruption of status and would be termed partition in a broader sense."
40. In the light of the aforesaid observation of the Apex Court whether there has been disruption of the family status and the joint family property and division thereof in terms of Ex.D1 as claimed by the defendants needs to be adverted to. In this regard, necessary to refer to the cross examination of PW1 who has admitted to the averments made by him in the appeal filed by them before the Assistant Commissioner as per Ex.P.6. A portion of which is marked as Ex.P.6(a), where in it is stated that -
"they are the joint owners and possessors of the land under the sale described as disputed land under this appeal ......... the sale deed executed by the incompetent person is not valid document .......... In fact the appellants No.1 and 2 are the joint owners and possessors of the land under dispute and they have not at all made the agreement or sale in favour of anybody in respect of the said land."
41. Even in the application given by the defendants to the Tahsildar at Ex.P15 they have claimed that they are in joint possession of the 07 acres of land in Sy.No.119. It is not the case of the defendants that after the partition as
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NC: 2024:KHC-K:9710 RFA No. 200052 of 2019 per Ex.D1 there was any reunion. The plea of the partition has been raised apparently for the first time during the year 1991 in the proceedings before the Tahsildar, Aurad- B as seen at Ex.P.7 wherein at paragraph 2 of page 3 there is a reference to the alleged partition.
42. From the above proceedings, it is clear that originally the application for mutation was rejected by the revenue inspector as the area of the remaining land had fallen under the Prevention of Fragmentation Act, 1969. Thereafter, defendants had pleaded ignorance about execution of deed of sale and however expressed their inclination to register the name of the plaintiffs if full value of the property was given to them. It is only subsequently the defendants came up with the theory of prior partition dated 15.06.1974. There has been no other evidence produced by the defendant regarding the partition having been taken place between the defendants and their father. Therefore, the trial Court is justified in holding that the
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NC: 2024:KHC-K:9710 RFA No. 200052 of 2019 defendants have failed to prove partition of the suit property in terms of Ex.D1.
43. In any case necessary to note that sale deed at Ex.P1 has been executed by Annarao Deshmukh for himself and as natural guardian to defendant No.2 and by defendant No.1 himself. Even if the contention of defendants with regard to partition is accepted, defendant No.1 who claims to have been allotted 5 acres of land cannot dispute his right to alienate atleast the said extent of 5 acres of land in favour of the plaintiffs and as discussed below, defendant No.2 not having taken any step to challenge alienation of his share made by his father. Point No.3 is answered accordingly. Regarding Point No.4 :
44. The next question that would arise as to who was required to approach the civil Court establishing their rights inasmuch as neither the Tahsildar nor the Assistant Commissioner nor even the Division Bench of this Court in its order passed in W.A.No.884/1996 had specifically
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NC: 2024:KHC-K:9710 RFA No. 200052 of 2019 directed the plaintiffs to approach the civil court. However, emphatic submission is made by the learned counsel for the appellants/defendants that since Tahsildar by its order dated 15.04.1994/01.09.1994 had held that the validity of the sale deed is required to be adjudicated by a civil Court, it was for the plaintiffs to have approach the court within the period of limitation and plaintiffs having not done so, the suit is barred by limitation.
45. Apex Court in the case of MST Rukhmabai vs. Lala Laxminarayan and others4 while dealing with Article 120 of the erstwhile Limitation Act at paragraphs 33 and 34 has held as under :
"33. The legal position may be briefly stated thus:
The right to sue under Art.120 of the Limitation Act accrues when the defendant has clearly and unequivocally threatened to infringe the right asserted by the plaintiff in the suit. Every threat by a party to such a right, however ineffective and innocuous it may be, cannot be considered to be a clear and unequivocal threat so as to compel him to file a suit. Whether a particular threat gives rise to a compulsory cause of action depends upon the question whether that threat effectively invades or jeopardizes the said right."4
(1960) 2 SCR 253
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NC: 2024:KHC-K:9710 RFA No. 200052 of 2019
46. The High Court of Panjab and Harayan in the case of Balwantsing vs. Kushal Sing and others5 dealing with Article 58 of the Limitation Act 1963 at paragraphs 8 and 9 has held as under :-
"8. Present suit is governed by Article 58 of the Schedule to the Limitation Act and limitation starts running from the date when right to sue first accrues. Mere entry in record of rights in the name of defendant is not enough to furnish cause of action and time will begin to run from the date there is some threat from the defendant for denial of his title.
9. In Ibrahim v. Smt. Sharifan, A.I.R. 1980 P&H 25, a Division Bench of this Court observed;
"It may be observed at the outset that the word 'first' occurring in Article 58 of the Act is of no significance at all for deciding the issue of limitation so far as the facts of the case in hand are concerned as the main point which requires determination is whether mere entry of a mutation in the name of the defendant would furnish a cause of action to the plaintiff to file a suit for declaration or not."
It was further held that where no cloud is cast on the title of plaintiff, from mere entry of mutation in the name of the defendant, in absence of any other act of the defendant, cause of action does not accrue to the plaintiff for purposes of Article 58 of the Schedule to the Limitation Act."
47. Thus the consistent view of the judicial precedents have been that the limitation would not 5 AIR 2004 P&H 63
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NC: 2024:KHC-K:9710 RFA No. 200052 of 2019 commence unless there has been a clear and unequivocal threat to infringe the right claimed by the plaintiff.
48. Necessary at this juncture to refer to Article 58 of the Limitation Act which reads as under :-
58. To obtain any Three years When the right to other declaration sue first accrues.
49. The conduct of the defendants from their statement of objection initially filed as seen at Ex.P4 would indicate that they had pleaded ignorance about the execution of deed of sale by their father and had further stated that they had no objection in registering the names of the plaintiffs in the revenue record, if they were paid the sale consideration. The defendants continued to resist and oppose the order that was passed by the Tahsildar directing to register the name of the plaintiffs in the revenue records. The revenue proceedings have been going up and down upto the year 1994 and finally culminating by order dated 06.06.1996 passed by the
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NC: 2024:KHC-K:9710 RFA No. 200052 of 2019 Division Bench of this Court in W.A.No.884/1996 relegating the parties to the Civil Court.
50. At Ex.P.7 the order passed by the Tahsildar on 18.09.1991, it is specifically noted that the defendants in their objection statement had stated that-
"They are not aware of any sale deed executed by their father Annarao and that they have not received any consideration amount from the petitioners, they have therefore objected for any mutation in favour of the petitioners. They have further stated in their objection petition that the mutation may be sanctioned if the petitioners pay then the full price of the land."
The aforesaid aspect of the matter is admitted by the defendants. The denial by the defendants was ineffective and innocuous. Plaintiffs' rights were never threatened or infringed by any clear or unequivocal infringement.
51. It is thereafter in the year 2012 the defendants appears to have woken up to file an application before the Tahsildar as per Ex.P.15 seeking removal/vacating of the unauthorized occupation which led to conducting of mahazar as per Ex.P.16 wherein it was found that the
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NC: 2024:KHC-K:9710 RFA No. 200052 of 2019 plaintiffs were in possession and cultivation of the suit land and further resulting in Tahsildar issuing requisition to the concerned jurisdictional police and to the Taluk Surveyor as per Ex.P11 and Ex.P.13 respectively. These documentary evidence would only establish that the plaintiffs have been in actual possession and enjoyment of the property and that since the Tahsildar had passed the order as per Ex.P.13 directing the Taluk Surveyor to have the land vacated and the actual possession of the property to be handed over to the defendants, the plaintiffs have filed the suit for declaration and injunction.
52. In the light of the law down by the Hon'ble Apex Court and consistently followed in various subsequent judicial pronouncements, the overt act threatening to infringe the right of the plaintiffs giving rise to cause of action for the first time, as rightly contended by the plaintiffs is traceable to the order/memo dated 08.02.2012 issued by the Tahsildar directing removal of the plaintiffs from the suit property at the instance of the
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NC: 2024:KHC-K:9710 RFA No. 200052 of 2019 defendants. The plaintiffs have filed the suit immediately thereafter i.e., on 17.02.2012.
53. Thus, the aforesaid admitted facts read in the light of the aforesaid settled principles of law pertaining to accrual of the cause of action for the purpose of filing the suit for declaration, it can be said that the cause of action for the suit arose only when the defendants obtain the order by the Tahsildar to have the plaintiffs vacated from the suit property as per Ex.P.11 and Ex.P.12 dated 24.01.2012 and 02.02.2012 and the memo dated 08.02.2012 produced at Ex.P.13. As such, the suit of the plaintiffs cannot be found to be barred by limitation.
54. For the aforesaid reasons and analysis, this Court is of the considered view that the Trial Court is justified in decreeing the suit as prayed for and no infirmity or illegality can be found with the same. Accordingly, the following :
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NC: 2024:KHC-K:9710 RFA No. 200052 of 2019 ORDER Appeal is dismissed. Judgment and decree dated 28.11.2018 passed in O.S.No.23/2012 by the file Senior Civil Judge and JMFC, Aurad-B is confirmed.
Sd/-
(M.G.S.KAMAL) JUDGE sn List No.: 1 Sl No.: 2