Karnataka High Court
Smt Ningamma W/O Late Gopalaraju Since ... vs Devanga Sangha on 4 October, 2012
Equivalent citations: 2013 (4) AKR 13
Author: A.S.Bopanna
Bench: A S Bopanna
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 4TH DAY OF OCTOBER 2012
BEFORE
THE HON'BLE MR. JUSTICE A S BOPANNA
R.F.A. NO.682/2011
Between :
1. Smt. Ningamma
W/o late Gopalaraju
Since deceased by her LRs.
1(a) Rathnamma
D/o late Gopalaraju
Aged 55 years
1(b) Chowdamma
D/o late Gopalaraju
Aged 49 years
1(c) Ranganayaki @ Choodamani
D/o late Gopalaraju
Aged 45 years
All residing at No.6, 8th Cross
S.R. Nagar, Bangalore-560 027
2. Bettegowda
S/o Siddegowda
Aged about 45 years
R/a. No.1/1/1, 1st Main Road
Byatarayanapura
Bangalore-560 026 ... Appellants
(By Sri H.M. Mariappa, Adv.)
And :
Devanga Sangha
Devanga Sangha Road
2
Sampangi Ram Nagar
Bangalore-560 027
Rep. by its Secretary
Shri Y.V. Srinivasa Murthy .. Respondents
(By Sri D.R. Basavarajappa, Adv. for C/R)
This R.F.A. is filed under Section 96 of CPC, against
the judgment and decree dated 13.01.2011 passed in
O.S.No.4683/1994 on the file of the XIV-Addl. City Civil
Judge, Bangalore City, partly declaration Mandatory
injunction and possession.
This appeal having been reserved for judgment,
coming on for pronouncement this day, the Court
pronounced the following :
JUDGMENT
The defendants in O.S.No.4683/1994 are the appellants herein. The suit filed by the plaintiffs for declaration and consequential reliefs has been decreed by the Court below. The defendants therefore claim to be aggrieved by the same.
2. The parties would be referred to in the same rank as assigned to them before the Court below for the purpose of convenience and clarity.
3. The plaintiff-Sangha claims to be the owner of the property bearing No.6, 8th Cross, 10th Main, Devanga Sangha Road, Sampangiramanagar, 3 Bangalore. The said property is claimed to have been donated by one late Yajaman Venkatappa under a registered Gift Deed dated 08.11.1943. The plaintiff is said to be in possession of the property. The City Corporation formed a road in the said area in between Survey No. 1 and the said property got divided into two halves. It is stated that the City Survey Department after survey has given Survey No. 99. The City Corporation has thereafter issued khatha in favour of the plaintiff and given No. 6, 10th Main Road, Sampangiramanagar. The plaintiff claims to be paying the tax regularly. The City Survey Department is also stated to have surveyed the area of Eastern portion of Survey No. 1 where there are two tombs and has been given separate City Survey No. 100. The plaintiff celebrates annual ceremony at the area of the tombs and daily pooja is being done. The building which is dilapidated with asbestos sheet is in City Survey No. 99.
4. The plaintiff avers that one Sri. Gopalaraju of Devanga Community requested the plaintiff on 4 29.11.1975 to accommodate him in a portion of the old building stating that he would worship both the tombs daily. Due to compassion, the then Secretary of the plaintiff-Sangha permitted for temporary accommodation. He was therefore carrying on daily pooja to the two tombs and was not getting any payments from the plaintiff. But the said Gopalraju gradually occupied the suit schedule property and in the year 1982, he got three rooms sublet to his henchmen un-authorisedly. When it came to the notice of the plaintiff, they called him and he was warned and directed to vacate the building. Though he sought for some time, he continued for months stating that he is in search of alternate accommodation. However, he filed a Miscellaneous Petition in P. Mis. No. 282/1985 against the plaintiff herein and prayed for permanent injunction. During the pendency of said proceedings, Gopalraju died on 11.06.1988 and as such the same abated as the legal representatives did not come on record. Thereafter, in the year 1989 Smt. Ningamma, i.e., the wife of late Gopalaraju was called upon by the 5 plaintiff and was asked to vacate along with sub tenants as they had continued in occupation after the death of Gopalaraju. The defendant and the tenants did not care to vacate. Hence, a legal notice dated 08.04.1994 was issued calling upon to vacate. The service of the notice under the registered post was evaded by the defendant, but the same was also dispatched under Certificate of Posting which was served.
5. The plaintiff contends that the occupation of the premises by the defendant is illegal and the defendant started obstructing the daily pooja to the tombs of late Pathiyappa and Pillamma. It is in that context, the plaintiffs have filed the suit for mandatory injunction to remove them from the suit schedule property which was later on amended and the relief for declaration and possession was also sought. The original defendant Ningamma died and her legal representatives were brought on record.
6. The original defendant-Smt. Ningamma, initially appeared and filed the written statement. It is 6 her case that the suit schedule property has no connection to the property which was gifted to the plaintiff. The assignment of survey numbers and the existence of two tombs of late Pathiyappa and Pillamma with vacant land is not disputed, but it is explained that Venkatappa was also known as Pathiyappa and it is his and his wife's tombs. The annual ceremony performed by the plaintiffs as claimed is denied. The request made by Gopalraju as stated by the plaintiffs is denied. The said Gopalraju having performed the Pooja is admitted, but the allegation of the unauthorised sub-letting and he being asked to vacate etc., are denied.
7. The case of the defendant is that the said late Venkatappa is the uncle as also the brother-in-law of late Gopalraju - the husband of Ningamma. He owned several lands and among them donated 1 acre 36 guntas to the plaintiff-Sangha in 1943 as he belonged to that community which has been utilised by the plaintiffs. However, the said late Venkatappa had retained an extent of 40 X 120 feet wherein there was a 7 dwelling house. He had intended to donate the said extent to Parappaswamy Gaddige after the death of defendant's husband. Hence, this extent is claimed to be different from 1 acre 36 guntas. After the death of Venkatappa on 07.07.1964, the defendant and family members including late Pillamma, the wife of Venkatappa continued to live therein. Pillamma also died on 11.08.1970. Late Venkatappa had also executed a WILL which refers to the gift of 1 acre 36 guntas to plaintiff and the extent of 40 X 120 feet for Parappaswamy Gaddige. The defendant also contends about keeping the ashes of Venkatappa and Pillamma and carrying on pooja. The defendant also refers to the police complaints when the plaintiffs sought to interfere with the defendant's possession. One Ranganatha an employee of the plaintiff-Sangha having trespassed to the property and he being removed is also stated. It is in that context, P. Mis. No. 282/1985 was filed but was not within the plaintiff's land is the contention. It is contended that khatha was obtained illegally by the plaintiffs and the matter has been referred to Vigilance 8 (Lokayukta). The defendant therefore contends that she and her daughters are in possession and plaintiffs who have no manner of right are seeking the relief after they failed to illegally dispossess the defendant.
8. It is to be noticed that the suit was dismissed at the first instance by the judgment dated 08.08.2005 and the plaintiffs were before this Court in R.F.A. No. 1805/2005. During the pendency of the appeal, the second defendant came on record. Since the documents required reconsideration, the judgment dated 08.08.2005 was set aside and the matter was remanded for reconsideration. The second defendant, i.e., the purchaser has filed written statement and additional written statement. The said defendant has however sought to contend that the property belonged to the father of late Venkatappa and having inherited, he had no authority to execute the gift deed to the plaintiff- Sangha and as such, the plaintiffs have not derived any title. The city survey was conducted behind the back of the defendant. The property bearing 9 Survey No. 103, Sampigehalli belonged to late Chikkavenkatappa, who died intestate and late Venkatappa was thereafter in possession of the property. He had constructed his own house in an area of 40 X 120 feet. Since he did not have issues he was dependant on late Gopalraju who was also residing with his family. Similar contention regarding performance of pooja etc., has been urged. After dismissal of the suit, at the first instance, the legal representatives of the first defendant secured the khatha and had also paid taxes. The second defendant thereafter purchased the property under a sale deed dated 03.12.2005 to the extent of 63 X 32 feet. The second defendant after improving the property is running a hotel. The defendants thereafter filed appeal against the khatha change made to the vendors of the second defendant. The second defendant has called it in question in W.P. No.16917/2007. The said defendant therefore claiming right in such manner has sought for dismissal of the suit.
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9. Thereafter the second defendant filed an additional written statement and contended that the first defendant filed the written statement in the year 1986 and denied plaintiffs' title but the plaintiffs have sought for declaration after the lapse of 12 years. As such, the suit is barred by limitation. It was further contended that though the WILL was executed by Gopalraju, defendants have not questioned the same. Based on such WILL, the sale deed was executed in favour of the second defendant and the hotel business is being conducted therein, but no proper relief is sought. The payment of proper Court fee was also contended.
10. The Court below on taking note of the rival contentions had initially framed five issues and thereafter framed two additional issues. The issues read as hereunder:
ISSUES
1. Does the plaintiff prove that the suit property is a part of the property gifted by late Venkatappa to it under the Gift deed dated 8/11/1943?11
2. Does the plaintiff prove that the Gopalaraju the husband of the defendant was in permissive possession of the suit property since November 1975?
3. Does the defendant prove that the schedule property bears relevance to the property gifted to the plaintiff Sangha by late Venkatappa?
4. Whether the plaintiff is entitled to declaration of title and possession of the schedule property?
5. What order or decree?
ADDITIONAL ISSUES
1. Whether the market value determined by the plaintiff is correct and Court fee paid is sufficient?
2. Whether the suit is filed in time?
11. The plaintiffs in order to discharge their burden have examined the erstwhile and the subsequent Hon. Secretary as P.W.1 and P.W.3 and a member of the plaintiffs-Sangha was examined as P.W.2. The documents at Exhs.P.1 to P.56 were relied upon. Defendant No.1(a) was examined as D.W.1 and the second defendant was examined as D.W.2. The documents at Exhs.D.1 to D.27 were relied upon. The Commissioner who had been appointed was examined 12 as C.W.1. The Court below on analysing the evidence has decreed the suit.
12. Heard Sri. H.M. Mariyappa, learned counsel for the defendants and Sri. D.R. Basavarajappa, learned counsel for the plaintiffs and perused the papers.
13. In the background of the rival contentions, the following points arise for consideration:
i. Whether the defendants have established that the area measuring 40 ft X 120 ft is beyond the extent of the property gifted under deed dated 08.11.1943?
ii. Whether the plaintiffs have established that the suit schedule property also being an extent of the gifted property had been permitted to be used by late Gopalraju?
iii. Even if the plaintiffs establish right over the property whether the relief should be barred by limitation as contended by the defendants?13
14. The plaintiff Sangha while claiming right in respect of the suit schedule property has placed reliance on the gift stated to have been made by late Yajman Venkatappa @ Pathiappa who belonged to the same community. The Sangha being in existence for the benefit of the members belonging to the community is also holding the properties including the gifted property for the benefit of its members and for public good. The Honorary Secretary of the plaintiff is examined as PW.1 who has stated with regard to the suit schedule property being a part of the property which was gifted to the plaintiff Sangha under the gift deed dated 08.11.1943 which was registered in the office of the Sub-Registrar on 15.11.1943 and the plaintiff Sangha is in possession of the property. The area was initially called as Sampagehalli which is presently known as Sampangiramanagar and it was located in Sy.No.103 thereafter numbered as Sy.No.1/1 of the earlier village. The gift deed is produced and marked as Ex.P1. Pursuant thereto the khatha has also been transferred to the name of the Sangha and the present certificate is 14 marked as Ex.P2 and tax paid receipt at Ex.P3. The location of the property is demonstrated by Ex.P4.
15. Since the gift was as far back as in the year 1943 and subsequently since the property has come within the heart of Bangalore city, the original identity of the property is not available and in that regard, the change of the property number subsequently in relation to the records of the City Survey Department has also been referred to with reference to the documents marked as Exhs.P23 to P27 and P33 to P35. Thus contending that the suit schedule property also forms part of the said property which has been gifted, it is stated by PW.1 that the defendant's husband late R.Gopalraju, who also belong to the same community requested the plaintiff Sangha in writing on 29.11.1975 to accommodate him in a portion of the old building so that he would worship the tomb of late Venkatappa @ Pathiyappa i.e., the donor and of late Pillamma the wife of Venkatappa @ Pathiyappa. Though such temporary accommodation was permitted, he gradually occupied 15 the suit schedule property by about 1982 and got three premises sublet to his own henchmen. Though the plaintiff directed him to vacate, he failed to do so by seeking for further time but, ultimately filed a miscellaneous petition No.282/1985 against the plaintiff Sangha seeking for injunction. During the pendency of the same, the said Gopalraju died on 11.06.1988 and the petition abated. Reference is also made to the eviction petition filed by the plaintiff Sangha in HRC No.3119/1980 against the other occupants of the building and having secured possession through execution Petition No.1525/1983. The defendants herein however continue to occupy the other portion illegally and as such the instant suit is filed.
16. The said witness has been cross examined at length and the suggestions put forth to the said witnesses that the donor had retained an extent of 40 ft X 120 ft which is in line with the defence has however been denied by the witness. No doubt the said witness 16 has admitted that the donor late Venkatappa @ Pathiappa and his wife were living in the suit property until Venkatappa @ Pathiappa died in the year 1964 and his wife died in the year 1970. Strangely some of the suggestions put forth is contrary to the case put forth in the written statement inasmuch as an attempt has been made to dispute the identity of the property while suggesting that Venkatappa @ Pathiappa had given Sy.No.199 and not Sy.No.103. The suggestions have no doubt been denied. Through PW.2 who has been subsequently examined, the representations made by late Gopalraju seeking permission to occupy the premises has been relied upon and the said witness has also been cross examined in similar lines to suggest that the donor Venkatappa @ Pathiappa was residing therein and Gopalraju being the brother of his wife Pillamma has continued to occupy the premises having succeeded to the same. One other witness who was examined is the Honorary Secretary of the Sangha at that point in year 2010. In his examination as PW.3 he has produced the documents relating to registration of 17 the Sangha in the office of the Registrar of Societies and the compliances made therein.
17. As against the said evidence on behalf of the plaintiff, the LR of the original defendant i.e., her daughter Smt.Rathnamma was examined as DW.1. She has stated that she and her predecessor have been in possession of the extent of 40 ft X 120 ft and her father late Gopalraju was living with the donor late Venkatappa @ Pathiappa. Reference is also made to the suit which was filed against their father. She claims that since they have been in possession for more than 50 years, they have become the owners in respect of the property. The said witness has been cross examined at length and the suggestions put forth on behalf of the plaintiff are in line with the contentions which have been taken by the plaintiff Sangha in respect of the property. The second defendant who is the subsequent purchaser of the portion of the property is examined as DW.2. He has sought to justify the right claimed by the original defendant with regard to the extent of the 18 property and the earlier proceedings relating to the khatha. The said witness has also been cross examined at length. The documents which had been referred to in their evidence have been marked at Exhs.D1 to D27 which also includes the document under which the LRs are claiming right under the WILL said to have been executed by late Gopalraju. Such right under the WILL in any event will depend on the right of late Gopalaraju himself being established at the first instance.
18. From the evidence tendered by the parties, the fact that the property as indicated in the gift deed dated 08.11.1943 under Ex.P1 has been gifted by the donor late Venkatappa @ Pathiappa to the plaintiff Sangha cannot be in dispute, more particularly in a situation where the contention put forth on behalf of the defendant who was originally impleaded and her legal representatives that though such gift has been made, a portion measuring 40 ft X 120 ft out of that property was retained by the donor late Venkatappa @ Pathiappa for his residence. Though the learned counsel for the 19 defendants referred in detail to the report of the Commissioner and the sketch produced and further contended that the identity of the property has not been clearly established inasmuch as the suit schedule property is a different property and has been separately indicated, the contention in that regard does not fortify that aspect of the matter inasmuch as the perusal of the sketch and the report of the Commissioner would indicate the change that has taken place over a period of time. In the instant case, the gift made by late Venkatappa @ Pathiappa is in the year 1943 and from the documents noticed above and from the contentions of the defendants when the gift in itself has not been disputed, the primary burden on the plaintiff that a property as indicated in the gift deed belongs to the Sangha will stand discharged.
19. In that context, when the defendant had contended that late Gopalraju being the brother of Pillamma was residing with them and that the donor late Venkatappa @ Pathiappa and Pillamma had 20 continued to remain in possession of an extent of 40 ft X 120 ft, the burden shifts on the defendants to establish that aspect of the matter. If that aspect is kept in view, the contention put forth by the learned counsel for the defendants with regard to the instant property being a different item and not the one covered under the gift deed cannot be accepted on its face value unless cogent evidence is produced. Though references were made to Sy.No.103 and the bifurcations thereto so as to imply that the instant property is not the one belonging to the plaintiff, the very right claimed by the LRs of the original defendant under the WILL dated 14.11.1985 (Ex.D20) would disclose that the reference made therein is to the property bearing Sy.No.103 which belong to late Venkatappa @ Pathiappa. The further description in the said WILL dated 14.11.1985 would disclose that late Gopalraju has also accepted the fact that the land in Sy.No.103 has been gifted to the plaintiff Sangha under the gift deed dated 08.11.1943 but, would state that a portion measuring 40 ft X 120 ft was retained by him for his own use and occupation 21 and that it was the intention of the brother in law that Gopalraju should look after the Parappaswamy Gaddige. It is in that context, by staking claim to the property the bequeath of the property has been made to his daughters i.e., the defendants by referring to the property indicating the very same number which has been described in the suit schedule property. The document at Ex.P21 also refers to the property with the same number as shown in the suit schedule property and in respect of the portions therein the rental agreements have been relied on. This in fact would indicate that there can be no dispute with regard to the identity of the property regarding which the plaintiff and defendants are claiming and that it was also a part of Sy.No.103 which was gifted but, the defendants can succeed only if it is shown that the portion in their possession is beyond the extent which had been gifted. Further, since it is contended by the defendants that though the property was gifted, the donor late Venkatappa @ Pathiappa and his wife continued to occupy a portion so as to retain the ownership of the 22 same, it would be the burden to be established by the defendant once the initial burden of the gift was discharged by the plaintiff.
20. As repeatedly noticed, the gift is of the year 1943. From the document which is at Ex.P1 and the typed copy of the same at Ex.P1(a), the contention that a portion had been retained by late Venkatappa @ Pathiappa is not indicated inasmuch as there is no such description or indication. Even if the witnesses on behalf of the plaintiff have admitted that late Venkatappa @ Pathiappa and his wife had continued to live in a portion of the property that can only be the gifted property and that in itself cannot create a right in favour of the defendant unless there was interest created by way of document by donor late Venkatappa @ Pathiappa himself more particularly in a circumstance where the donor late Venkatappa @ Pathiappa did not have issues and he had donated all his property for a public cause. It is in that context, the case put forth by the plaintiff that late Gopalraju had 23 sought for permission to occupy the premises and indulgence was shown by the President of the plaintiff Sangha and his conduct thereafter becomes relevant. Though the learned counsel for the defendants would contend that no such request had been made and that the plaintiffs themselves are blowing hot and cold by contending in one breath that such permission had been granted and in another breath that the defendants are in unlawful possession, the letter said to have been addressed by Gopalraju to the plaintiff Sangha dated 29.11.1975 is at Ex.P5. Since the admitted signature of Gopalraju is available on the documents at Exh.20 and the rental agreements, it could be seen that the signature on the said document at Ex.P5 is that of Gopalraju. Similar letters dated 30.11.1978, 16.11.1978 and 14.12.1978 are also produced at Exhs.P30 to 32 which will only show that repeated requests were made. Though learned counsel for the defendants contends that there was no need for repeated letters even if it was true and since occupation would admittedly be illegal and unauthorised from that 24 date itself, the position is that though such request was made, there was a note to place it before the President. However, there is no rejection of the request and earlier permission granted would make it permissive and would continue to be so till it was terminated by notice. The said request made by Sri Gopalraju in fact would give a go by to the contention which is presently sought to be put up in the suit wherein it is contended that they are staying as a matter of right in a portion which had been retained by the donor late Venkatappa @ Pathiappa and late Gopalraju had continued to occupy the premises after the death of donor late Venkatappa @ Pathiappa and his wife Pillamma.
21. Apart from the above aspects being relevant to indicate that there cannot be any dispute with regard to the identity of the property, as already noticed, the ADLR was appointed as the Court Commissioner who was the competent person to submit a report in this regard. Such report is based on the spot inspection. Though the learned counsel for the defendants made 25 much about a wrong exhibit being referred in his report, the same cannot make any difference when the report is based on factual finding. As noticed earlier, the perusal of the report would disclose that the original Sy.No.103 had lost its character which is understandable since the same is due to the development of the city. The evolution would indicate that the property which belonged to late Venkatappa @ Pathiappa was assigned Sy.No.1/1 and it is in that context, the neighbouring properties have been assigned Sy.Nos.½, 1/3 and ¼. When these aspects of the matter are clear, it will show that the property was in the ownership of the Sangha after the gift deed in the year 1943 and occupation of a portion by late Gopalaraju was permissive until hostile claim was made. If ownership right was to be claimed to a portion of that property, in the background of the contention urged that the extent of 40' X 120' had been retained, there should have been appropriate material on record. No doubt certain efforts were made regarding revenue entries, but when the basic position is not established, it will not be of avail. 26
22. From the above aspects, when it is clear that the initial burden had been discharged by the plaintiff and it had been shifted on the defendant to show right over 40' X 120' as already indicated above, the decision in the case of T.K.Mohammed Abubucker vs. P.S.M.Ahamed Abdul Khader and ors (2009 AIR SCW 4739) relied on by learned counsel for the defendant does not apply to the present facts though there can be no dispute with regard to the shifting of burden under Section 101 of the Evidence Act as held therein. Therefore, insofar as the ownership claimed by the plaintiff and the defence put forth, on reappreciation of the evidence available on record and in that light, a perusal of the judgment of the Court below, the same would indicate that the Court below has appreciated the evidence in its correct perspective. In that view, the decision in the case of John Sylem vs. Chanthanamuthu (died) Pillai by LR (AIR 2003 Madras 374) relied on by the learned counsel for the defendant will also not be of assistance. 27
23. Having arrived at the above conclusion, the next aspect is as to whether the relief should be denied to the plaintiff as barred by limitation though the case has been made out on merits. The learned counsel for the defendants would contend that the plaintiff has putforth both permissive possession and unauthorised possession. In either case, the suit herein is filed beyond the statutory period of 12 years even if cause of action for the suit had arisen is his case. In that regard, it is contended that as per the case of the plaintiff late Gopalraju had been given permission on 29.11.1975 (Ex.P-5) and even the last letter relied is dated 14.12.1978 (Ex.P-32) and the notice (Ex.P-6) was issued on 08.04.1994 and the suit was filed in 1994 which is about 16 years and is therefore beyond the period of limitation. Even in the earlier suit in OS No.2715/1985 (Ex.D-1), it was the case of the plaintiff Sangha that the defendant was in illegal occupation.
24. The learned counsel for the defendant has in that regard relied on the decision in the case of 28 Lingamma - Vs - Putte Gowda and another (AIR 1963 Mysore 1 FB) wherein it is held that when the allegation of permissive possession is not established, it amounts to admission of discontinuance of plaintiff's possession and as such should establish possession within 12 years; in the case of Basanna -Vs- Appa Rao and another (AIR 1959 Mysore 227) it is held that when the suit is based on title and not on possession or discontinuance of possession and the cause of action is based upon an order of the Court holding that the plaintiff is not in possession, Article 142 does not apply which is against the argument; in the case of Venkataramana @ Venkappa Annayya Hegde (since deceased by LR) -Vs- Ganapathi and others (AIR 2004 Karnataka 433) it is held that when the plaintiff has miserably failed to prove permissive possession and the evidence discloses continued possession of the house since 1940 and the title of plaintiff is not proved, the contention of adverse possession would be upheld and the suit for possession will fail; and in the case of Ramaiah -Vs- N.Narayana 29 Reddy (Dead) by LRs (AIR 2004 SC 4261) it is held that the limitation has to be decided with reference to the pleadings and when there is an admission in the earlier proceedings regarding ouster of possession, the subsequent suit for possession should be within 12 years as otherwise, the same would be time barred. The learned counsel for the plaintiff has on the other hand relied on the decision in the case of M/s Electronics and Controls -Vs- KIADB and another (2010 (4) KCCR 2648) wherein with reference to the decision of the Hon'ble Supreme Court, it is held that when possession is claimed in a suit as a resultant consequence of declaration, it would be governed by Article 65 and not Article 58 of the Limitation Act.
25. In the background of the above, the instant facts need to be referred. In the plaint though it is referred to in that manner to the effect that, the plaintiff permitted late Gopalaraju to occupy the premises and subsequently when he misused the premises, he was asked to vacate and he had taken some time to vacate 30 but filed P.Mis.282/85 seeking injunction, it is seen that during the same year, the plaintiff had also filed the suit in OS No.2715/1985 on 17.08.1985 against Gopalaraju for injunction. In the said suit, the written statement was filed on 28.02.1986 denying title of the plaintiff. The said Gopalaraju thereafter died on 11.06.1988. Both the said proceedings for injunction did not survive for consideration on his death. Thereafter the plaintiff has filed the instant suit against the LRs of Gopalaraju seeking for possession and has thereafter amended the suit seeking for the relief of declaration. The suit in any event was to be filed within 12 years from the date of cause of action. Even if the denial of title is taken as the first date for cause of action, the date as seen from the document available on record i.e., the written statement in O.S.No.2715/1985 at Ex.D-2, it would be 28.02.1986. However, considering late that Gopalaraju himself had filed P.Mis.No.282/85 for injunction and if that conduct in itself is taken as a first challenge to the title of the plaintiff and if 1985 is taken as the year from which the 31 period of 12 years was to be computed, it would extend upto the year 1997. However, it is seen that the instant suit is filed on 11.08.1994 which is well within the period prescribed. Hence, the relief prayed cannot be denied on the ground of limitation when the ownership was established by the plaintiff and the adverse interest claimed by the defendant was not established.
26. In that view of the matter the points raised above for consideration are all answered against the defendants.
The appeal is accordingly dismissed. The parties shall however bear their own costs.
Sd/-
JUDGE Akc/bms