Andhra Pradesh High Court - Amravati
Veluru Prabhavathi vs Sirigireddy Arjun Reddy on 9 July, 2024
Author: U.Durga Prasad Rao
Bench: U. Durga Prasad Rao
HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
A.SNo.220 of 2024
Between:
VELURU PRABHAVATHI, W/O. VELUM GOVARDHANA REDDY,
AGED ABOUT 58 YEARS, R/O. PULIVENDULA TOWN AND
MANDAL, YSR KADAPA DISTRICT, PRESENTLY RESIDING AT
D.NO. 12-7-134/258, ANJANEYA NAGAR, MOOSAPET, K.V. RANGA
REDDY DISTRICT, TELANGANA STATE
...APPELLANT
And
SIRIGIREDDY ARJUN REDDY, S/O. SARVOTHAMA REDDY, AGED
ABOUT 30 YEARS, R/O. D.NO.4-3-256, PAMAPALLE ROAD,
PULIVENDULA TOWN AND MANDAL, YSR KADAPA DISTRICT AND
ANOTHER
.. RESPONDENTS
DATE OF JUDGMENT PRONOUNCED: 09.07.2024
SUBMITTED FOR APPROVAL:
HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
HON'BLE SMT. JUSTICE SUMATHI JAGADAM
1. Whether Reporters of Local newspapers Yes/No
may be allowed to see the Judgments?
2. Whether the copies of judgment may be Yes/No
marked to Law Reporters/Journals?
3. Whether Their Ladyship/Lordship wish to Yes/No
see the fair copy of the Judgment?
________________________
U. DURGA PRASAD RAO, J
____________________
SUMATHI JAGADAM, J
::2::
*HON'BLE SRI JUSTICE U.DURGA PRASAD RAO
AND
HON'BLE SMT. JUSTICE SUMATHI JAGADAM
+A.S No.220 of 2024
%09.07.2024
# VELURU PRABHAVATHI, W/O. VELUM GOVARDHANA REDDY,
AGED ABOUT 58 YEARS, R/O. PULIVENDULA TOWN AND
MANDAL, YSR KADAPA DISTRICT, PRESENTLY RESIDING AT
D.NO. 12-7-134/258, ANJANEYA NAGAR, MOOSAPET, K.V. RANGA
REDDY DISTRICT, TELANGANA STATE
...APPELLANT
Vs.
$ SIRIGIREDDY ARJUN REDDY, S/O. SARVOTHAMA REDDY, AGED
ABOUT 30 YEARS, R/O. D.NO.4-3-256, PAMAPALLE ROAD,
PULIVENDULA TOWN AND MANDAL, YSR KADAPA DISTRICT AND
ANOTHER
.. RESPONDENTS
<GIST:
>HEAD NOTE:
! Counsel for appellant: Ms. Sodum Anvesha
Counsel for respondents : Sri O. Manohar Reddy, learned Senior
Counsel representing Sri Lakshmikanth
Reddy Desai
? CASES REFERRED:
1. (2021) 17 SCC 100
2. (2018) 6 SCC 422
3. 2023 SCC OnLine SC 521
4. 2022 SCC OnLine SC 1330
5. (2015) 8 SCC 331
6. 1997 (1) BLJ 972 = MANU/BH/0859/1997
::3::
APHC010166192024
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3479]
(Special Original Jurisdiction)
TUESDAY, THE NINTH DAY OF JULY
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE U.DURGA PRASAD RAO
THE HONOURABLE SMT JUSTICE SUMATHI JAGADAM
FIRST APPEAL NO: 220/2024
Between:
1. VELURU PRABHAVATHI, W/O. VELUM GOVARDHANA
REDDY, AGED ABOUT 58 YEARS, R/O. PULIVENDULA
TOWN AND MANDAL, YSR KADAPA DISTRICT,
PRESENTLY RESIDING AT D.NO. 12 12-7-134/258,
134/258, ANJANEYA
NAGAR, MOOSAPET, K.V. RANGA REDDY DISTRICT,
TELANGANA STATE
...APPELLANT
AND
1. SIRIGIREDDY ARJUN REDDY, S/O. SARVOTHAMA REDDY,
AGED ABOUT 30 YEARS, R/O. D.NO.4 D.NO.4-3-256,
256, PAMAPALLE
ROAD, PULIVENDULA TOWN AND MANDAL, YSR KADAPA
DISTRICT
2. DEVIDREDDY VIJAYANANDA REDDY, S/O. VENKATARAMI
REDDY, AGED ABOUT 76 YEARS, R/O. FLAT NO.302, NO.30
LAKSHMI ENCLAVE, SANTOSH NAGAR COLONY,
MEHDIPATNAM, HYDERABAD, TELANGANA STATE
...RESPONDENT(S):
Begs to present this Memorandum of Appeal Suit aggrieved by
the Order, dt.5.3.2024 in I.A.No. 10/2024 in O.S.No.87/2023 on the
file of the Court of the
e VI Additional District Judge, Kadapa.
Counsel for the Appellant:
1. SODUM ANVESHA
Counsel for the Respondent(S):
1. LAKSHMIKANTH REDDY DESAI
::4::
The Court made the following:
JUDGMENT:(Per Hon'ble Sri Justice U.Durga Prasad Rao) Aggrieved by the order dt: 05.03.2024 in I.A.No.10/2024 in O.S No.87/2023 passed by learned VI Additional District Judge, Kadapa allowing the petition filed by the petitioner/defendant No.1 under order VII rule 11 C.P.C seeking to reject the plaint, the instant appeal is filed by the appellant/plaintiff.
2. The matrix of the case is thus:
(a) The plaintiff filed O.S No. 87/2023 for declaration of her title and for delivery of vacant possession of the suit schedule property and also for a declaration that the registered sale deed dated 30.10.1998 alleged to have been executed by the plaintiff and her mother-in-law in favour of 2nd defendant is null and void and not binding on the plaintiff and also for a mandatory injunction for removal of the structures thereon.
(b) The plaintiff's case briefly is that the suit schedule property situated in Pulivendula Mandal was belonged to Veluru Papi Reddy, who purchased the same under a registered sale deed dt:
18.05.1961 and he sold the same to the plaintiff under a registered sale deed dt: 13.05.1996 and ever since purchase, the plaintiff has been enjoying the same.
(c) While so, the plaintiff left for Telangana State along with her husband and settled there. Taking the absence of plaintiff as an undue advantage, the 2nd defendant got created a fraudulent document styling as a registered sale deed dt: 30.10.1998 vide document No.4666 /1998 allegedly executed by the plaintiff and her mother-in-law late Eswaramma and highhandedly occupied the suit schedule property. The sale deed is rank forgery and the plaintiff is ::5::
no way concerned with the said document. Basing on the said forged document, the 2nd defendant along with two others executed a registered mortgage deed dt: 18.03.2000 vide document No.249/2000, in favour of Boggudupalli Primary Agricultural Cooperative Society and obtained a loan of Rs.1,00,000/- from the said society. Subsequently, the 2nd defendant redeemed the mortgage loan to the said society vide document No.150/2006 and subsequently the 2nd defendant executed a registered sale deed dt:
26.12.2005 vide document No.3600/2005 in favour of one Sirigireddy Gangi Reddy and delivered possession of suit schedule property. The said purchaser executed a registered gift settlement deed dt: 25.01.2012 vide document No.253/2012 in favour of 1st defendant and delivered possession of suit schedule property.
(d) The plaintiff's further case is that in the month of October, 2023 when the plaintiff visited suit schedule vicinity to clear the cheeky bushes, to her surprise and dismay the 1st defendant obstructed her claiming himself as owner of the suit schedule property and thereafter the petitioner made enquiries with the SRO Office, Pulivendula and came to know about all the sham and invalid transactions referred supra. Immediately, in the 1 st week of November, 2023 the plaintiff went to the defendants and demanded them to handover the suit schedule property and cooperate with her for cancellation of the bogus documents. However, the defendants bluntly refused to comply with her demand and threatened her with dire consequences. Hence the suit.
(e) 1st defendant filed the written statement and the defendants are contesting the suit.
3. While so, the 1st defendant filed I.A.No.10/2024 under order VII ::6::
Rule 11 CPC seeking to reject the plaint on the ground that the plaintiff has, in plaint averments admitted the execution of sale deeds and gift deed and also admitted the possession of the 1st defendant over the suit schedule property and filed the suit after a lapse of 25 years of execution of registered sale deed dt: 30.10.1998 in favour of the 2nd defendant and therefore the suit is barred by limitation and hence the plaint is liable to be rejected.
(a) The plaintiff filed the counter and opposed the petition contending that the facts that the 2nd defendant created a forged sale deed dt: 30.10.1998 and later alienated the same in favour of the grand-father of the 1st defendant and his executing gift deed in favour of 1st defendant etc., came to the knowledge of the plaintiff only in the month of October, 2023 when she went to the suit schedule vicinity and the 1st defendant obstructed her and having come to know all these facts, she filed the suit immediately and therefore the suit is well within the period of limitation. She thus prayed to dismiss the petition.
(b) The trial Court on the premise that as per plaint pleadings, the plaintiff lost possession over the suit schedule property in the year 1998 itself and but questioned the sale deed dt: 30.10.1998 in the year 2023 by which time the suit is barred by limitation, allowed the petition and rejected the plaint.
Hence the appeal.
4. Heard arguments of Ms. Sodum Anvesha, learned counsel for the appellant and Sri O. Manohar Reddy, learned Senior Counsel representing Sri Lakshmikanth Reddy, learned counsel for respondents.
5. Severely fulminating the order, learned counsel for the ::7::
petitioner Ms. Sodum Anvesha argued that the trial Court grossly erred in rejecting the plaint on the wrong premise that even as per the plaint pleadings, the plaintiff lost possession of the suit property in the year 1998 itself by virtue of the sale deed dt: 30.10.1998 which is now belatedly questioned and hence suit is clearly barred by limitation. Referring to plaint averments learned counsel argued that unfortunately, trial Court perused only paragraphs 4 and 5 and came to conclusion as if the plaintiff got the knowledge of sale deed dated 30.10.1998 in the year 1998 itself and she also got the knowledge then itself about his occupying the suit schedule property. The trial Court also presumed that the plaintiff had knowledge about the subsequent transactions relating to the suit properties and wrongly opined that having such knowledge in the year 1998 itself, she belatedly filed the suit in the year 2023. Learned counsel vehemently argued that the trial Court has not referred the crucial averments in para-6 of the plaint and not appreciated those averments in a proper manner. In expatiation, learned counsel submitted that in paragraphs 4 and 5 the plaintiff only mentioned the fraudulent transactions that were taken place in respect of the plaint schedule property from time to time. That does not mean that she admitted her knowledge about those transactions, particularly sale deed dated 30.10.1998 allegedly executed by her in favour of the 2 nd defendant. It was only a narration of different transactions that were taken place behind her back.
Referring to para-6 of the plaint, learned counsel submitted that in the said paragraph, the plaintiff clearly mentioned that in the month of October, 2023 when the plaintiff visited the suit schedule vicinity to clear the cheeky bushes, to her surprise and dismay the 1st defendant obstructed her from attending her work claiming that he was the owner of the suit schedule property. On such interaction with him and subsequent enquiries with SRO Office, Pulivendula she ::8::
came to know about the fraudulent sale deed created by the 2 nd defendant and also the subsequent transactions that were taken place in respect of the suit schedule property. Therefore, she filed the suit immediately. Learned counsel argued that if the averments in paragraphs 4 to 6 are conjunctively studied, they will clearly manifest that the plaintiff got the knowledge about the fraudulent sale deed dt:
30.10.1998 and subsequent transactions for the first time in October, 2023 but not before. In the entire gamut of events, the plaintiff was a victim of the fraud perpetrated by the 2 nd defendant. Since the sale deed dated 30.10.1998 was tainted with fraud, the plaintiff has right to seek a declaration that the said sale deed is null and void and not binding on the plaintiff and her mother-in-law. Similarly, since her property was highhandedly occupied by the defendants, the plaintiff got the right to seek for declaration of her right and for recovery of possession. Learned counsel further argued that since her declaratory reliefs are associated with recovery of possession, the limitation for filing the suit will be covered by Article 65 of the Limitation Act. According to said Article, suit for recovery of possession basing on the title shall be filed within twelve years from the date when the possession of defendant becomes adverse to the plaintiff. Learned counsel argued that in this case the 2 nd defendant created a fraudulent sale deed on 30.10.1998 and taking advantage of plaintiff's absence in the suit vicinity, trespassed into the property.
Though such fraudulent acts might have been committed by the defendants in the year 1998, the plaintiff came to know about them only in October, 2023. Learned counsel would strenuously argue that when a suit is filed questioning the fraudulent activities, the limitation which is prescribed for such suit shall not begin to run until plaintiff has discovered such fraud as per Section 17 of Limitation Act. As such the suit is well within the period of limitation. However, the trial ::9::
Court on an erroneous finding regarding application of limitation, rejected the plaint. Learned counsel taking serious objection to the observation of trial Court that generally no owner of the property would remain silent without visiting his property for about 25 years, argued that the plaintiff has clearly mentioned in the plaint that she migrated to Telangana State along with her husband and settled over there for her livelihood and taking her absence as advantage, the defendants trespassed into the property by creating fraudulent sale deed. She further pleaded in the plaint that when she came to the suit schedule property in October, 2023 she could know about the incidents that transpired during her absence. Learned counsel thus vehemently argued that whether she knew about the fraudulent sale deed in the year 1998 itself or only in October, 2023 is purely a question of fact which has to be decided after trial in the suit but not at the threshold by presumptions and assumptions. She placed reliance on Salim D. Agboatwala v. Shamalji Oddhavji Thakkar1 to contend that in order to determine the knowledge of a party for computing the period of limitation, the Court cannot pick and choose few sentences here and there from plaint. She also relied upon Chhotanben v. Kirtbhai Jalkrushnabhai Thakkar2 to argue that when a document is questioned on the ground of fraud and forgery, the limitation touching the suit shall be decided after trial but not at the stage of order VII Rule 11(d) CPC.
She thus prayed to allow the appeal and further argued that in the event the appeal is allowed, the court fee paid in the appeal may be ordered to be refunded to the appellant in terms of Section 64 of A.P Court Fee and Suits Valuation Act, 1956.1
(2021) 17 SCC 100 2 (2018) 6 SCC 422 ::10::
6. Per contra, learned senior Counsel Sri O. Manohar Reddy while supporting the order argued that admittedly the sale deed was executed in the year 1998 and possession was also parted immediately. Since the impugned sale deed dated 30.10.1998 is a registered document, the plaintiff must be deemed to have constructive notice of the said document as per Section-3 of Transfer of Property Act from the date of its registration. As such, the plaintiff, if considered it as a forged document and lost possession thereunder illegally, must have filed the suit within twelve years from the date of sale deed under Article 65 of the Registration Act for declaration of title and recovery of possession. The plaintiff cannot naively contend that she came to know about the sale deed and occupation of the property by the defendants only in October, 2023. Learned Senior Counsel vehemently argued that by clever drafting of the plaint, one cannot save limitation. Learned counsel relied upon Ramisetty Venkatanna v. Nasyam Jamal Saheb3 and C.S. Ramaswamy v. V.K. Senthi4. Learned counsel further argued that Section 17 of Limitation Act has no application in the instant case because no fraud was committed by the defendants against the plaintiff, inasmuch as, the plaintiff herself admitted about the execution of sale deed dt.30.10.1998. He thus prayed to dismiss the appeal.
7. The points for consideration in this appeal are:
(i) Whether the pleadings in the plaint prima facie manifest that the plaintiff and her mother-in-law themselves have executed sale deed dt.30.10.1998 in favour of 2nd defendant and delivered possession of suit property and thereby they were well aware of the said transaction in the 3 2023 SCC OnLine SC 521 4 2022 SCC OnLine SC 1330 ::11::
year 1998 itself?
(ii) If point No.(i) is held negatively, when the plaintiff got the knowledge of sale deed dt.30.10.1998 and subsequent transactions and if plaint averments are accepted as true on their face value, whether the suit claims are within the period of limitation or not?
(iii) Whether the trial court's order in rejecting the plaint is factually and legally sustainable?
8. Point No.1: It is a trite law that for adjudicating a petition under Order VII Rule 11 CPC to reject a plaint at the threshold, the pleadings and averments in the plaint alone are to be looked into and considered. A slew of decisions have reiterated so. In P.V.Guru Raj Reddy and Others v. P.Neeradha Reddy and Others5 the Apex Court observed thus:
"5. Rejection of the plaint Under Order VII Rule 11 of the Code of Civil Procedure is a drastic power conferred in the court to terminate a civil action at the threshold. The conditions precedent to the exercise of power Under Order VII Rule 11, therefore, are stringent and have been consistently held to be so by the Court. It is the averments in the plaint that has to be read as a whole to find out whether it discloses a cause of action or whether the suit is barred under any law. At the stage of exercise of power Under Order VII Rule 11, the stand of the Defendants in the written statement or in the application for rejection of the plaint is wholly immaterial. It is only if the averments in the plaint ex facie do not disclose a cause of action or on a reading thereof the suit appears to be barred under any law the plaint can be rejected. In all other situations, the claims will have to be adjudicated in the course of the trial."
Therefore, in this case also the pleadings alone are to be scrutinized and ex facie, if such pleadings reveal that the suit claim is barred by any law, then the plaint has to be rejected in terms of Order VII Rule 11(d) CPC.
5(2015) 8 SCC 331 ::12::
9. In this context, when plaint averments are perused, in paras 4 & 5 the plaintiff has narrated about the sequence of transactions that have been taken place in respect of the plaint schedule property right from beginning of the sale deed dt.30.10.1998. The said sale deed was allegedly executed by the plaintiff and her mother-in-law in favour of the 2nd defendant. There were other transactions narrated in these paragraphs. Then a perusal of the pleadings in para 4 & 6 of the plaint would show, according to plaintiff, she migrated to Telangana State along with her husband and settled there for her livelihood and as she visited the suit schedule vicinity in the month of October, 2023 to clear the cheeky bushes. At that time, 1 st defendant obstructed her and claimed to be the owner of the plaint schedule property. Then, on her further enquiry she came to know about all the fraudulent transactions that have taken place behind her back and the trespass made by the defendants. The plaintiff's claim is that she was not aware of these facts and she came to know only when she visited the suit property in October, 2023 and therefore, she filed the suit immediately for different reliefs.
(a) A conjunctive study of plaint pleadings as a whole, particularly paragraphs 4 to 6 will prima facie explicate that the plaintiff and her mother in law did not execute the sale deed dt.30.10.1998 in favour of 2nd defendant on their own accord and deliver possession. Similarly, the other transactions are concerned, the pleadings prima facie would show that they had no knowledge. On the other hand, the pleadings would explicate that the plaintiff came to know about the alleged fraudulent transactions and the trespass made by the defendants only in October, 2023. Unfortunately, the trial court has not considered the pleadings in paras 4 to 6 conjunctively to know the real import of the averments in ::13::
the plaint. The trial court made an observation that generally the owner of a property would not remain silent without visiting his property for about 25 years. Such is the view of the trial court but without any factual back up. Whether the plaintiff in fact executed the sale deed in favour of the 2nd defendant and also visited the suit property within those 25 years and thus had knowledge about the occupation by the defendants is a question of fact which should be decided at the end of the trial but not at the inceptional stage. However, a plain reading of the plaint averments will not prima facie show that the plaintiff and her mother in law themselves have executed the sale deed dt.30.10.1998 in favour of 2 nd defendant and delivered possession of the suit property. Similarly, the pleadings will not show that they had knowledge about the aforesaid transactions in the year 1998 itself.
10. In Salim D. Agboatwala's case (Supra 1) cited by the appellant, the facts are that in Suit No.2343/1987, the plaintiffs in City Civil Court at Bombay inter alia challenged certain proceedings taken up by the Agricultural Land Tribunal (ALT) in 1963. The defendants filed petition under order VII rule 11 CPC seeking rejection of plaint on the main ground that the plaintiffs filed the suit in 1987 challenging the actions carried out in 1963 and hence the suit was hopelessly barred by limitation as the plaintiffs had knowledge of the proceedings of ALT. The trial Court rejected the plaint and confirmed by the High Court. In the appeal on leave filed by plaintiffs therein, a Division Bench of Apex Court speaking through Hon'ble Sri Justice V. Ramasubramanian made the following observations as to how to tackle the plea of limitation in a petition under order VII Rule 11 CPC:
"8. Insofar as the rejection of plaint on the ground of limitation is concerned, it is needless to emphasis that limitation is a mixed question of fact and law. It is the case of the Appellants/Plaintiffs ::14::
that only after making inspection of the records in connection with the suit land available in the office of Defendant No. 3 (Court Receiver) that they came across the correspondence and documents relating to the transactions and that the proceedings before the ALT were collusive, fraudulent and null and void. The Appellants/Plaintiffs have even questioned the authority of the Court Receiver to represent them in the tenancy proceedings.
9.xxxxx.
10.xxxxx.
11. As observed by this Court in P.V. Guru Raj Reddy v. P. Neeradha Reddy and Ors. MANU/SC/0132/2015 : (2015) 8 SCC 331, the rejection of plaint Under Order VII Rule 11 is a drastic power conferred on the Court to terminate a civil action at the threshold. Therefore, the conditions precedent to the exercise of the power are stringent and it is especially so when rejection of plaint is sought on the ground of limitation. When a Plaintiff claims that he gained knowledge of the essential facts giving rise to the cause of action only at a particular point of time, the same has to be accepted at the stage of considering the application Under Order VII Rule 11.
12. Again as pointed out by a three member bench of this Court in Chhotanben v. Kiritbhai Jalkrushnabhai Thakkar MANU /SC /0346 / 2018 : (2018) 6 SCC 422, the plea regarding the date on which the Plaintiffs gained knowledge of the essential facts, is crucial for deciding the question whether the suit is barred by limitation or not. It becomes a triable issue and hence the suit cannot be thrown out at the threshold."
Thus the Apex Court observed that limitation is a mixed question of fact and law and while deciding a petition Under order VII Rule 11 CPC in the context of limitation and when the concerned plaintiff claims knowledge of essential facts giving rise to the cause of action only at a particular point of time, the same has to be accepted at the stage of considering application Under Order VII Rule 11 CPC. Further, when really the plaintiff gained knowledge of essential facts is a triable issue and suit cannot be thrown at the threshold. It was also observed that few sentences here and there in plaint cannot be picked up to contend that the plaintiff had knowledge or constructive notice of the proceedings to claim the bar of limitation.
::15::
11. In Chhotanben's case (Supra 2) cited by appellant the Apex Court while carping the decision of the High Court in rejecting the plaint, held that the case of the plaintiffs therein was that until 2013 they had no knowledge about their brothers executing the sale deed dt: 18.10.1996 and immediately they raised dispute and filed the suit which according to them is within the period of limitation and the said aspect is a triable issue but the High Court considered the matter on the basis of conjunctures and surmises without analyzing the averments in the plaint.
12. The decisions cited by the respondents can be distinguished on facts.
(a)In Ramisetty Venkatanna's case (Supra 3) going by the facts, Supreme Court observed that the plaintiffs therein have cleverly drafted the plaint and intentionally omitted to seek the relief of the rectification of partition deed dt: 11.03.1953 in order to circumvent the law of limitation. The said decision has no application in this case.
(b) In C.S. Ramaswamy's case (Supra 4), the Apex Court criticized the pleadings of plaintiffs on the aspect of their knowledge to a certain fraudulent document, without specifically mentioning on which date and how the plaintiffs had come to know that the document was obtained by fraud/misrepresentation. In that case the plaintiffs only mentioned that the alleged fraudulent sale came to their knowledge only when plaintiffs visited the suit property. Nothing was mentioned when the plaintiffs visited the suit property. The Supreme Court observed that it was not understandable how on visiting the suit property the plaintiffs could have known the contents of the sale deed. In the instant case the plaintiff clearly mentioned in her ::16::
pleadings that when she visited the suit property in October, 2023 she was obstructed by 1st defendant and then she came to know the fraudulent transactions. Hence the said decision has no application.
13. Thus on a conspectus of the above jurisprudence and plaint pleadings, we hold that the plaint averments in this case prima facie would show that the plaintiff and her mother-in-law did not execute the sale deed dated 30.10.1998 in favour of 2nd defendant and deliver possession of suit property. These being the pleadings in the plaint, their veracity should be tested on the anvil of the trial. This point is accordingly answered in favour of the appellant and against the respondents.
14. POINT No.2: Since point No.1 is held negatively and going by the plaint pleadings it is accepted at the threshold that the plaintiff got the knowledge of the impugned sale deed dated 30.10.1998 and subsequent transactions only in October, 2023, it can be said that suit claim is within the period of limitation. As rightly argued by the learned counsel for appellant/plaintiff, the declaratory reliefs are associated with the relief of recovery of possession and therefore in terms of Article 65 of the Limitation Act, the suit has to be filed within 12 years from the period when the possession of the defendant become adverse to the plaintiff. As the plaintiff pleads that the sale deed dated 30.10.1998 relied upon by the 2nd defendant to claim title and possession is a forged document, plaintiff's suit pivotes on fraud allegedly committed by the 2nd defendant. In such a case, in terms of Section-17 of Limitation Act the period of 12 years prescribed under Article-65 shall begin to run as and when the plaintiff discovered such fraud. In this case as per plaint averments, the plaintiff discovered ::17::
the fraudulent transactions and trespass in October, 2023 as such the plaint can be said to be within the period of limitation.
15. The argument of learned Senior Counsel for respondents that the plaintiff had constructive notice of the sale deed dated 30.10.1998, for, it was a registered document is unacceptable. The main contention of respondents is that the plaintiff and her mother-in-
law themselves have executed the sale deed and hence they have personal knowledge of the said sale deed. In the light of observations in Point No.1 supra, the personal knowledge till at least October, 2023 is not acceptable. Then constructive notice by virtue of the disputed document being a registered one in the light of explanation-I to the definition of Notice given in Section-3 of the Transfer of Property Act is concerned, it must be said that such constructive notice also cannot be attributed to the appellant/plaintiff. It is trite law that registration of a document operating as constructive notice U/s 3 of Transfer of Property Act applies to the persons intending to purchase the property subsequent to the said registration but not to the prior owner of the property covered by the said document. In Suthara v. Bibi Samsunisha6 the Patna High Court observed thus:
"13. The learned Appellate Court further observed in paragraph-26 of the judgment that when there was registration on 23.12.1957 of the sale-deed in favour of the respondents, it will amount to notice of the sale-deed to the plaintiff because registration amounts to notice and the plaintiff-appellants should have filed this suit within 12 years from the date of execution of the sale deed, on 23.12.57, in favour of the respondents. On this ground the learned Appellate Court held that the suit was barred by the law of limitation. On this point also the learned Appellate Court seems to have committed error in law. The appellants had claimed to have purchased the land in suit under the sale deed, which had been executed on 23.8.57. Relevant provision regarding registration that may amount to notice is contained in Explanation 1 of the Transfer of Property Act, 1882, which reads as follows:
61997 (1) BLJ 972 = MANU/BH/0859/1997 ::18::
Where any transaction relating to immoveable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration....
It would appear from this that registration of a document transferring interest in immoveable property amounts to notice only for such person, who acquire such property later than the date of the registration of the document. Registration of document subsequently could not be a notice for a person, who had previously purchased the land. Obviously, this is based on the simple principle that if any person in tends to acquire any property, he may make inquiry from the registration office and obtain no encumbrance certificate from the registration office; but after acquisition of any property he cannot be expected to watchful in future as to whether or not any other document is going to be registered with regard to the same property. On this point also the view taken by the learned first Appellate Court is legally untenable."
Thus going by the plaint averments the suit claim is within the period of limitation. We must however be hastened to say, since the aspect of limitation is a mixed question of fact and law, the veracity of the pleadings of both parties in that context has to be decided only at the end of the trial but not at this stage. This point is accordingly answered in favour of the appellant.
16. POINT No.3: In view of findings in Point Nos.1 and 2 supra, the order of the trial Court rejecting the plaint is factually and legally unsustainable and liable to be set aside. So far as the prayer of learned counsel for the appellant for refund of court fees is concerned, Section 64 of the Andhra Pradesh Court-Fees and Suits Valuation Act, 1956 lays down that where a plaint or memorandum of appeal rejected by the lower Court is ordered to be received or where a suit is remanded in appeal for fresh decision by the lower Court, the court making the order or remanding the appeal may direct the refund to the appellant to the full amount of fee paid on the memorandum of appeal and if the remand is on second appeal, also on the ::19::
memorandum of appeal in the first appellate Court and if the remand is in letters patent appeal, also on the memorandum of second appeal and memorandum of appeal in the first appellate Court. Since the order of the trial Court is set aside in this appeal, the appellant's request can be considered.
(1) Accordingly, this appeal is allowed and order dated 05.03.2024 in IA 10/2024 in OS No.87/2023 passed by learned VI Additional District Judge, Kadapa is set aside and the suit is restored to file with a direction to the trial Court to dispose of the suit on merits without being influenced by the observations made by this Court.
(2) The Registry is directed to refund the Court fee paid by the appellant in this appeal as per the procedure. No costs.
As a sequel, interlocutory applications pending if any, shall stand closed.
_______________________ U.DURGA PRASAD RAO, J ____________________ SUMATHI JAGADAM, J 09.07.2024 Krk/nnn ::20::
THE HONOURABLE SRI JUSTICE U.DURGA PRASAD RAO THE HONOURABLE SMT JUSTICE SUMATHI JAGADAM A.S.No.220 of 2024 09.07.2024 KRK/NNN