Karnataka High Court
Jayamma Venkatram vs Ashraf Jahan Begum on 21 May, 2020
Equivalent citations: AIRONLINE 2020 KAR 1398, 2021 (1) AKR 253
1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF MAY 2020
BEFORE
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
REGULAR FIRST APPEAL No.170 OF 2005
C/W
REGULAR FIRST APPEAL No.171 OF 2005
In RFA No.170/2005
BETWEEN
1. Smt. Jayamma Venkatram
Aged about 66 years
W/o. Late M.C.Venkatram
2. Sri. C.V.Rajashekar
Aged about 48 years,
S/o Late M.C.Venkatram,
Both R/at No.693/39/1
Sajjan Rao Road,
Vishweshwarapuram,
Bengaluru-560004.
...Appellants
(By Sri.Vivek Holla, Advocate)
AND
1. Smt. Ashraf Jahan Begum
Major, W/o. Syed Basheer Ahmed Mallik,
R/a No.136/1, Infantry Road,
Bengaluru-560001.
2
2. G.N.Sreeramu
(Since dead) by LRs
a) Smt. Nagamma,
Major, W/o. Late G.N.Sreeramu
b) Sudarshan @ Sudhi,
c) Suresh @ Bun Suresh,
d) Srinivas @ Seena,
(b) to (d) are Majors & sons of
Late G.N.Sreeramu,
All R/a. No.693/13-A,
Sajjan Rao Circle,
V.V.Puram, Bengaluru-560004.
...Respondents
[By Sri. Nishanth A.V., Advocate, for R2(a) to (d);
R1 served]
This RFA is filed under Section 96 of CPC against the
judgment and decree dated 02.12.2004 passed in
O.S.No.1281/89 on the file of the I Additional City Civil &
Sessions Judge, Bengaluru, CCH No.2, decreeing the suit for
permanent injunction.
In RFA No.171/2005
BETWEEN
1. Smt. Jayamma Venkatram
Aged about 66 years
W/o. Late M.C.Venkataram
2. Sri. C.V.Rajashekar
Aged about 48 years,
S/o Late M.C.Venkatram,
3
Both R/at No.693/39/1
Sajjan Rao Road,
Vishweshwarapuram,
Bengaluru-560004.
...Appellants
(By Sri.Vivek Holla, Advocate)
AND
1. Smt. Zahirunnissa Begum @ Rafia Begum
Major, W/o. Mohammed Sharief
R/at No.4622, Link Road,
N.R.Mohall, Mysore-566701.
2. Smt. Nayemunnissa @ Gohartaj,
Major, W/o. Abdul Gaffoor Sheriff
R/at at No.515, Upstairs, 33rd 'A' Cross,
9th Main, 4th Block, Bengaluru-560011.
3. Mohammed Salman Sheriff
Major, S/o. Abdul Gafoor Sheriff
R/at No.515, Upstairs, 33rd 'A' Cross,
9th Main, 4th Block
Bengaluru-560011.
4. Smt. Ashraf Jahan Begum
Major, W/o. Syed Basheer Ahmed Mallik,
R/a No.136/1, Infantry Road,
Bengaluru-560001.
5 G.N.Sreeramu (Since dead) by LRs
a) Smt. Nagamma,
Major, W/o. Late G.N.Sreeramu
b) Sudarshan @ Sudhi,
c) Suresh @ Bun Suresh,
d) Srinivas @ Seena,
4
(b) to (d) are Majors & Sons of
Late G.N.Sreeramu,
All R/a. No.693/13-A,
Sajjan Rao Circle,
V.V.Puram, Bengaluru-560004.
...Respondents
[By Sri.Nishanth A.V., Advocate, for R5(a) to (d);
R4 served; R1 to R3 service held sufficient vide order
dated 15.2.2011)]
This RFA is filed under Section 96 of CPC against the
judgment and decree dated 02.12.2004 passed in
O.S.No.271/88 on the file of the I Additional City Civil &
Sessions Judge, Bengaluru, CCH No.2, decreeing the suit for
permanent injunction.
These Regular First Appeals coming on for hearing
this day, the court delivered the following:
JUDGMENT
These two appeals arise from a common judgment dated 2.12.2004 in the original suits 271/1988 and 1281/1989, on the file of first Additional City Civil and Sessions Judge, Bengaluru City.
2. The appellants in both the appeals are the legal representatives of plaintiff No. 2 in O.S.271/1988 and defendant No. 3 in O.S.1281/1989. In O.S.271/1988, originally there were three plaintiffs. After the death of 5 the first plaintiff, Krishna Murthy, the plaintiffs 2 and 3 continued the suit.
3. Briefly stated, the pleadings in O.S. 271/1988 are as follows : -
The suit property is a bit of land measuring 55 ½ + 55 ft/2 x 50 + 42/2 feet situate in 20 guntas of land in Sy. No. 6/1 of Mavalli Village, Bengaluru North Taluk, with boundaries as mentioned in plaint schedule. The plaintiffs claim to be its absolute owners. The total measurement of land was 3.06 acres. After acquisition of lands on three occasions for formation of Krumbigal Road, extension of Lalbagh and formation of the link roads, ultimately there remained 20 guntas of land. The entire land earlier belonged to plaintiffs' father and after his demise, their mother held the katha till her death in the year 1947. She let out 1/3 portion of the land in favour of father of third plaintiff. The plaintiffs 2 and 3 succeeded to the property after their 6 mother's death and they leased the entire property to the third plaintiff. The plaintiffs pleaded that the defendants asserted their right over the suit property and tried to interfere with their possession on 25.6.1987 and 9.1.1988. Therefore they brought the suit against the defendants claiming declaration of their title and permanent injunction to restrain the defendants from interfering with their possession.
4. Defendants 1 to 3 did not appear, they were placed ex-parte. Fourth defendant was deleted from the suit. The fifth defendant contested the suit. She denied the very existence of land in S.No.6/1 of Mavalli Village and also the identity of the suit property. Besides the pleas with regard to limitation and suit being bad for non-joinder of necessary parties and misjoinder, she stated that she is the absolute owner of suit property having purchased it from defendants 1 and 2. The third defendant being the power of attorney holder of the first and the second defendants executed the sale deed in 7 her favour. Tracing the title, she stated that the original owner was Ahmed Hussain Sahib. On 23.7.1943, he sold the suit property to a partnership firm called M/s C.M.Jaffer Khan and Brothers. On 1.6.1947, the said firm was dissolved, and thereafter the suit property was allotted to C.M.Jaffar Khan. He settled the property in favour of his daughters, i.e., defendants 1 and 2 by executing a settlement deed on 13.12.1952. She denied to have interfered with plaintiffs possession as she was actually in possession of suit property.
5. The plaint and the written statement in O.S.1281/1989 are replica of the written statement and the plaint respectively in O.S.271/1988, but in this suit, only relief claimed was permanent injunction.
6. There is no need to extract all the issues here, the suit O.S.271/1988 being one for declaration of title, necessarily, the plaintiffs in the suit have to establish their title apart from holding possession. The trial 8 court, after examining the oral and documentary evidence, dismissed the suit O.S.271/1988 and decreed O.S.1281/1989. Hence, these two appeals.
7. I have heard the arguments of learned counsel for the appellants and the respondents in both the appeals. The points that the counsel argued will be contextually referred to in the course of discussion, however their arguments give rise to following main points for discussion :-
(i) Whether the trial court has correctly held that the title of the plaintiffs 1 and 2 in O.S.271/1988 is not established?
(ii) Whether the conclusion of the trial court that possession of the suit property is with the plaintiffs in O.S.1281/1989, is correct?
(iii) Are there grounds to interfere with judgment of the trial court?9
Point No. (i)
8. For the sake of convenience, the parties are referred to with respect to their rank in O.S.271/1988.
9. Obviously, the plaintiffs have to establish their title, they cannot depend on weakness of the defendants. Before examining whether the trial court's findings on the issue relating to title over the suit property is correct or not, it is necessary to examine its findings on identity of the suit property, i.e., on issue No.2 in O.S.271/1988.
10. The trial court's conclusion is that identity of suit property is not established. It is held by the trial court that the plaintiffs describe the suit property to be a revenue land in S.No.6 or 6/1, that they do not claim the suit property to be a left out bit after acquisition, that the evidence of PW1 shows that the land in S.No.6 of Mavalli was not converted for non-agricultural purposes, that they do not claim the property to be 10 situated within corporation limits in the form of a site and that no document is produced to show that there exists 8 guntas of land.
11. Commenting on these findings, it is argued by the appellants/plaintiffs counsel that the trial court has discussed identity issue without considering the acquisition notification. Applying for conversion did not arise because of extension of Corporation Limits to include Mavalli Village. He refers to Ex.P30 and Ex.P37 to argue that the suit property exists. Per contra, the respondents counsel argued that no property as described by the plaintiffs exists. There is no survey No.6 at all and therefore identity of suit property is not established at all.
12. It is not possible to accept that identity of suit property is not established. It may be that the plaintiffs have described the suit property as a revenue land in Sy No.6/1 of Mavalli Village. What they have 11 stated is that after acquisition of the land in Sy. No.6 on three occasions, there remained 20 guntas of land, and the suit property is a part of it. They might have given survey numbers, but PW1 who adduced evidence on behalf of plaintiffs admits in the cross-examination that on the date of suit, the property had come under corporation limits. In the plaint, the property number assigned by the corporation ought to have been mentioned, but, that itself cannot be a reason for disputing the identity of the suit property. Ex.P29 is a special note issued by the Corporation of City of Bengaluru under section 145 of the Corporation Act, 1949 accepting the katha in the name of deceased first plaintiff, M.Krishnamurthy in respect of vacant bits of land left over in S.No.6 of Mavalli Village after acquisition. Suit property is a part of this land. The note as per Ex.P29 was issued after spot inspection by the Engineer and the Revenue Officer of the Corporation as evidenced by Ex.P28. PW1 has stated in his 12 examination in chief that the Corporation of the City of Bengaluru, at the time of enquiry on the application made by the plaintiffs 1 and 2 for change of katha, gave five numbers A, B, C, D and E to the five sites existing in the remaining land in S. No. 6 and a portion of a site marked 'B' was assigned the number 23 which is the suit property. He has given its measurement which is as given in the plaint schedule. The evidence of PW1 to this effect has not been assailed in the cross examination. The contesting defendants claim the very same property giving another number, enquiry into correctness of which is altogether on a different footing. But, my conclusion is that the trial court's finding that identity of the suit property is not established, is not correct.
13. The next question is about title, the entire burden of proving it is on the plaintiffs. The main documents that PW1 has produced are Ex.P2 to P15, P17, P17A and Ex.P18. Exs. P2 to P4 are the certified 13 copies of the judgments in a suit and an appeal, and they will be considered little later. Ex.P5 is the certified extract of 'Khetwar Patrike' of S.No.6/1 a revenue document of the year 1919-1920 which stands in the names of Narayanappa and Nagamma. Ex.P6 is the 'Patta Book' which stands in the name of M..Krishnappa @ M.Krishnamurthy. In page No.3 of this document, it is clearly mentioned that there remained 20 guntas of land after acquisition. In the same document there are entries showing payment of land revenue by the second plaintiff. Ex.P7 indicates that Kyalanoor Muniswamappa and his wife, Muniyamma @ Tayamma and then M.Krishnappa @ M.Krishnamurthy were the Hakkudars, and also the acquisition of some extent of land. M.Krishnappa @ M.Krishnamurthy is none other than the deceased first plaintiff. Ex.P8 is the certified extract of Record of Rights which shows the name of Kyalanoor Muniswamappa, i.e., the father of plaintiffs 1 and 2 as Hakkudar. There is also an endorsement that 14 Kyalanoor Muniswamappa obtained possession of the land on the basis of a decree of the court and had held possession for 10-15 years, and after his death, his wife Muniyamma took over possession. Then Ex.P17 and Ex.P17A are the documents pertaining to acquisition of lands of Mavalli Village including Sy. No. 6. These two documents show the name of Kyalanoor Muniswamappa as the owner. Exs. P9 to P16 appear to be the receipts issued for the land revenue being paid by Kyalanoor Muniswamappa, his wife and the plaintiffs 1 and 2. If these documents are considered, the prima facie impression emerging is that the land in S.No.6 belongs to the plaintiffs 1 and 2.
14. The fifth defendant contends that she purchased the property from defendants 1 to 3, who are the daughters of C.M.Jaffer Khan. They assert that the plaintiffs are laying claim on their property which bears the number 9/B. DW1 is the sixth defendant who claims to be a purchaser from fifth defendant. Exs. D1 15 to D10 are the documents that he has produced to prove his title. Exs.D1 and D2 are the sale deeds executed by defendants 1 to 3 in favour of the fifth defendant. It is stated in the written statement that C.M.Jaffer Khan settled the property that he got to his share after dissolution of the partnership firm, in favour of his daughters i.e., defendants 1 to 3 by executing a settlement deed on 13.12.1952. It is also pleaded in the written statement that one Ahmed Hussain Sahib sold the property to the firm M/s C.M.Jaffer Khan on 23.7.1943. DW1 has deposed so in the examination in chief.
15. It is to be seen whether the documentary evidence produced by DW1 displaces title of the plaintiffs or not. But before that, if the findings of the trial court are seen, it has held as below : -
Exs. P2, P3, P4 and Exs.P9 to P15 do not help establish existence of plaint schedule property as also 16 title of second plaintiff over suit property. As to when and how the katha from the name of the first plaintiff was changed to the name of second plaintiff is not forthcoming. PW1 has stated in the cross-examination that suit property was brought under corporation limits and that it was given property No.23. This admission shows that no revenue land exists. Merely because the eastern boundary of the suit property is shown as 'Krumbigal road', it is not a conclusive evidence to hold that suit property is a revenue land. The judgments and decrees in O.S.438/1975 and RFA 68/1980 do not come to the aid of the plaintiffs and that other documents Exs. P27 to P29 and Exs. P32 to P34 do not help them. The plaintiffs have tried to prove their title circumstantially by relying upon previous litigations and old revenue documents prior to acquisition. It has also assigned some other reasons, but ultimate conclusion is that title of plaintiffs is not established. 17
16. The learned counsel for appellants assails these findings by arguing that the trial court has lost sight of importance of revenue documents that show suit property being owned by plaintiffs 1 and 2, and earlier to them by their father. He argued that if the documents produced by the plaintiffs are assessed in juxtaposition with documents relied upon by defendants 5 and 6, it can be inferred firstly that defendants 5 and 6 are claiming plaintiffs' suit property and secondly that they have not established their title. The defendants trace their title through a exchange deed said to have been executed by the corporation in favour of one Y.H.Venkataramanappa, but the judgment in O.S.438/1975 clearly holds that the corporation had no title over the property that it gave to Y.H.Venkataramanappa, therefore, any subsequent sale made by Y.H.Venkataramanappa did not confer good title on his buyer and thus C.M.Jaffer Khan also did not derive any right, title or interest. The trial court's 18 finding that the judgment in O.S.438/1975 does not bind the fifth defendant is wrong.
17. On the other hand, the learned counsel for the respondents argued that the trial court has correctly appreciated the evidence, its conclusion that the judgment in O.S.438/1975 does not bind the fifth defendant is correct, as she was a party to that suit. Nobody challenged the exchange deed executed by the corporation. The exchange deed has not been cancelled, the finding in O.S.438/1975 did not affect the right, title and interest of the fifth defendant. He argued that the plaintiffs have tried to prove their title based on revenue documents, and it is settled law that the revenue records do not confer title.
18. On a re-assessment of evidence it is possible to draw certain inferences. It is true that the plaintiffs have not produced any document like a sale deed or a gift deed, or a exchange deed, etc., which establishes 19 transfer intervivos. They have only relied upon revenue documents and acquisition notifications, reference to which has already been made. The documents very much denote the land in S.No. 6/1 of Mavalli being in the lineage of plaintiffs family, and nobody questioned the mutation of revenue records in succession up to second plaintiff. If the Government issued acquisition notifications showing the name of Kyalanoor Muniswamappa as the owner of land in Sy. No. 6/1, he should be the owner of the land. Issuance of notification for acquisition of land under the Land Acquisition Act is an official act which gives added weightage to the presumption available as regards correctness of the revenue entries.
19. Now if the proof made available by the defendants is seen, they seek to rebut the plaintiffs' title by relying upon sale made in favour of a firm, M/s C.M.Jaffar Khan and Brothers, a settlement deed executed by C.M.Jaffer Khan and sale deeds executed 20 by defendants 1 to 3 in favour of fifth defendant. In this context Exs. P2 to P4 assume importance.
20. Ex.P2 is the certified copy of the judgment in O.S.438/1975, a suit filed by Smt. Zahirunnissa Rafia Begum, against Sri Raju and Others for declaration of her title over and possession of property No. 9/B of Krumbigal Road, Bengaluru City. This Zahirunnisa @ Rafia Begum is the first defendant in O.S.271/1988. In her suit she stated that her father C.M.Jaffer Khan executed a settlement deed on 15.12.1952 in her favour and her sister's favour. She traced the title of the property No. 9/B to one Y.H.Venkataramanappa and Y.H.Kempanna. Her plea was that the City Corporation exchanged its property i.e., 9/B with Y.H.Venkataramanappa and thus he became its absolute owner. The court held that the corporation had no right over property No.9/B in order to exchange it with Y.H.Venkataramanappa and therefore all subsequent transactions were bad. In para 13 of Ex.P2, 21 there is a clear finding that property which was towards the West of Krumbigal Road was part of S. No. 6/1 of Mavalli Village belonging to predecessor in title of defendants 1 to 3, who are plaintiffs 1 and 2 in O.S.271/1988. Since the suit O.S.438/1975 was dismissed, Zahirunnissa @ Rafia Begum appealed to this court in RFA 68/1980. This court by order dated 19.11.1991, framed an additional issue and directed the trial court to record evidence on the additional issue and give its finding. The suit O.S.438/1975 was renumbered as O.S.7367/1991 after its transfer to the City Civil Court, and the Principal City Civil Judge, who gave his findings on the additional issue as per Ex.P3 held that the City Corporation had no right over the property that it gave in exchange to Y.H.Venkataramanappa. As Ex.P4 shows, this court, in RFA 68/1980, accepted the finding on the additional issue and further found that after dissolution of the firm M/s Jaffer Khan and Brothers, the property 9/B was 22 actually allotted to C.M.Abdul Gaffer Khan, and not C.M.Jaffer Khan. There is a clear observation in para 25 of Ex.P4 that the counsel for the appellant in RFA 68/1980 very fairly conceded that the plaintiffs (appellants in RFA 68/1980) had failed to establish their title. Ultimately this court dismissed the said appeal. This judgment has become final.
21. The trial court has held that the judgment in O.S.438/1975 and RFA 68/1980 do not bind the defendants 5 and 6 as they were not parties to those proceedings. This finding is incorrect. For, the defendant No.5 is a purchaser from the plaintiff in O.S.438/1975. One of the defendants in this suit, M.Raju, is a purchaser of a site formed in 8 guntas of land in S.No.6/1 from the second plaintiff in the case on hand. Therefore, the fifth defendant, being the successor in interest of Zahirunnisa @ Rafia Begum is bound by the judgment in O.S.438/1975 and RFA 68/1980. Thus P2 and P4 assume relevancy according 23 to section 40 of the Indian Evidence Act which is akin to section 11 of the Civil Procedure Code. Therefore what ultimately transpires is that the fifth defendant derived no title over a property which according to her bears No. 9/B, and consequently the sixth defendant who happens to be a purchaser pendente lite, derives no right. In fact, the sixth defendant adduced evidence as DW1 and one answer given by him in the cross examination shows that after he came to know about pendency of litigation, he asked his vendor to return sale consideration money to him. From this answer an inference is possible to be drawn that he might have entertained doubt with regard to title of his vendor. Actually his evidence is of no use. The conclusion is that the defendants have failed to rebut the evidence placed by the plaintiffs in proof of their title.
22. The next question is, whether based on revenue documents, title of the plaintiffs can be declared? It is no doubt a settled position that revenue 24 documents do not confer any title. But here is a case where the plaintiffs can produce no document other than revenue records to prove their title. As has been observed already, the Government issued acquisition notification showing Kyalanoor Muniswamappa as the owner of S. No. 6/1 which adds weightage to the presumptive value attachable to revenue entries. Therefore, I am of the opinion that whenever a person has been in possession of an immovable property, especially ancestral in character, for quite a long time, and revenue entries stand in the lineage of his family continuously without any challenge to it, or if challenged, the same being overruled or rejected; and being not in a position to produce any document conferring title other than revenue records, there is no impediment to declare title based on possession which is otherwise called possessory title. If this kind of interpretation is not given, the title over a property will remain in vacuum, which should not be allowed to 25 happen. Thus looked, the possessory title of plaintiffs 1 and 2 can be declared. The trial court's findings are not at all acceptable; its approach appears to be perverse; it has just proceeded on identity of the property without evaluating the intricacies. Therefore, point (i) is answered in the negative.
Point No. (ii)
23. The trial court has held that possession is not with the plaintiffs. As plaintiff No.3 who is said to be tenant of plaintiffs 1 and 2 is not examined as a witness, possession of suit property cannot be inferred to be with them. Another finding is that according to plaintiffs 1 and 2, there is a cow shed, but the suit property is vacant land. There is no document evidencing suit property being leased to plaintiff No.3.
24. Again it is a wrong finding. It may be that the plaintiffs 1 and 2 pleaded that they had leased the suit property to plaintiff No.3. Non-examination of plaintiff 26 No.3 as a witness has no consequence as what is important, when title is sought to be declared, in the background of circumstances made out, is dejure possession. Exs.P76 and P78 are the rent agreements which the trial court has ignored to consider. Perusal of these two documents show that the third plaintiff was allowed to have a shed in a portion of suit land, and he was also entrusted with the responsibility of supervising the remaining vacant land. PW1 asserts in his cross- examination that suit property is vacant. The photographs marked Exs.P50 to P52 with their negatives show that there is temporary shed like structure where cows are tethered and the remaining land being vacant. Therefore, possession was with the plaintiffs 1 and 2 when suit was filed. PW1 has spoken about interference by the defendants. In fact the tenor of defence put forward by defendants No. 5 and 6 indicates their intention to interfere with plaintiffs' possession. Therefore, the trial court ought to have 27 held that the possession of suit property was with plaintiffs and that there was interference with their possession. Point No. (ii) is answered in negative.
25. Having answered points (i) and (ii), I find that section 110 of the Indian Evidence Act may be referred to here to give ultimate conclusion as regards title over the suit property. Section 110 reads : -
"110. Burden of proof as to ownership.--When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner".
26. The possession of the suit property is found to be with the plaintiffs. The question is as regards their ownership. Though I began the discussion on point No.
(i) holding that the initial burden was on the plaintiffs to prove their title, ultimately the possession was found to be with the plaintiffs and therefore the actual burden, if 28 Section 110 of the Evidence Act is applied, was on the defendants to prove that the plaintiffs are not the owners of the suit property. The foregoing discussion shows on one hand that they have failed to prove it, and on the other hand to establish their title also. Hence as between the plaintiffs and the defendants, the former's title would get established, but it is not so as against a person who may be having better title than the plaintiffs. In this context reference to a judgment of the Supreme Court in the case of Somanath Burman vs Dr.S.P.Raju and Another [(1969) 3 SCC 129] may be made. It is held : -
"9. .... Possessory title is a good title as against everybody other than the lawful owner. In Ismail Arriff v. Mahomed Ghouse [ILR 20 IA 99], the Judicial Committee came to the conclusion that a person having possessary title can get a declaration that he was the owner of the land in suit and an injunction restraining the defendant from interfering with his possession. Therein it 29 was observed that the possession of the plaintiff was a sufficient evidence of title as owner against the defendant."
27. Following what the Supreme Court has held, it can be said that there is no impediment for declaring the title of the plaintiffs in the facts and circumstances.
28. There are three more points to be adverted to. The trial court has observed that after the death of plaintiff No.1, his legal representatives were not brought on record and that plaintiff No.2 alone could not have prosecuted the suit. PW1 while deposing stated that the plaintiff had executed a family arrangement deed on 1.11.1973 confirming entire management of suit property on second plaintiff. But he stated in the cross- examination that the said family arrangement had no bearing on the suit. This is the reason for the trial court holding that the legal representatives of the first plaintiff should have been brought on record. This reason appears to be not correct, for whether or not 30 there was any family arrangement, if one of the plaintiffs dies and his legal representatives do not come on record, the surviving plaintiff can prosecute according to Order XXII Rule 3 of CPC. If the first plaintiff died leaving behind him legal representatives, they would have made an application to come on record in the suit. But nobody made any application. This reason alone cannot jeopardize the right of other plaintiffs. In this case PW1 speaks about family arrangement dated 1.11.1973, and if it is in force, the legal representatives of the first plaintiff may not get any right; if not, they can still assert their right. Therefore, death of first plaintiff has no effect of abating the entire suit.
29. Learned counsel for the respondents argued that the suit was time barred. He referred to Ex.P62 dated 2.3.1964 which indicates that the applicant, i.e., the first plaintiff might seek redress in a court of law for registration of katha in respect of two plots. The 31 appellants' counsel argued that the suit was within time, the suit for declaration has to be filed within three years from the date when the right to sue first accrues. He has relied upon a judgment of Division Bench of this court in the case of State of Karnataka vs Mohammed Kunhi [ILR 1991 KAR 1500].
30. In O.S.271/1988, there is no issue with regard to limitation, however it is urged for the first time at the appellate stage. It is true that Ex.P62 shows such an observation as referred to above. In the plaint, the cause of action is stated to have arisen on 18.10.1985, 25.6.1987 and 8.1.1988. What is stated in the plaint is that the defendants 1 to 3 attempted to enter upon the schedule property in the year 1985 and there were similar attempts on 25.6.1987 and 8.1.1988. Ex.P62 does not indicate whether any objection had been raised by defendants 1 to 3 for entering katha in the name of plaintiffs, and if any objection had been taken by them, as argued by counsel for respondents, it 32 can be said that the cause of action arose on the date of Ex.P62. Since nothing is forthcoming, the cause of action can be taken to have arisen first on 18.10.1985. The possession has been with the plaintiffs; suit for declaration may be filed when there is real threat to plaintiffs right. In the case of Mohammed Kunhi (supra), the Division Bench has extracted what the Supreme Court has held in the case of Mst. Rukhmabai vs Lala Laxminarayan and Others [AIR 1960 SC 335].
"The legal position may be briefly stated thus : The right to sue under Article 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 33 depends upon the question whether the threat effectively invades or jeopardizes the said right".
31. Here in this case, the plaintiffs state that cause of action arose when the defendants 1 to 3 invaded on the rights of plaintiffs. The suit was filed within three years from that date.
32. The plaintiffs appear to have not valued the suit correctly. They valued the suit property applying section 7 of the Karnataka Court Fee and Suits Valuation Act treating it as an agricultural land. But by the time suit was filed, the suit property was no more an agricultural land and it had been brought under corporation limits. Therefore, court fee should have been paid on actual market value. The appellants counsel also submitted that the plaintiffs are ready to pay the court fee. For this reason, the plaintiffs may be directed to value the suit as also these appeals properly and make good the deficit court fee.
34Point No. (iii)
33. From the foregoing discussion, I hold that the trial court's findings are unacceptable. Its approach appears to be perfunctory; there is no proper appreciation of evidence and application of mind to the facts and circumstances. Therefore, the judgments in both the suits are to be set aside. Hence, the following order:-
(i) RFA 170/2005 is allowed, the judgment and decree in O.S.1281/1989 is set aside, the suit is dismissed.
(ii) RFA 171/2005 is allowed, the judgment and decree in O.S.271/1988 is set aside. The suit is decreed in terms of the first and second reliefs claimed in the plaint.
(iii) The appellants are directed to make good the deficit court fee within four weeks from today by valuing the suit O.S.271/1988 on the actual market value of 35 the suit property as on the date of filing of the suit. The subject matter of the appeal, RFA 171/2005 shall also be revalued and the deficit court fee shall be paid within four weeks from today. Decree shall be drawn only after payment of deficit court fee.
(iv) The appellants are entitled to costs throughout.
Sd/-
JUDGE ckl