Karnataka High Court
Sri K T Devaraj vs Kushalnagar Works on 28 October, 2022
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MRS. JUSTICE M G UMA
REGULAR SECOND APPEAL NO. 1232 OF 2013 (DEC/INJ)
BETWEEN:
1. SRI. K.T. DEVARAJ
AGED 60 YEARS
2. SRI. K.T. ARUN KUMAR
AGED 57 YEARS
BOTH ARE SONS OF LATE V. THIMMAPPA
RESIDENT OF KUDUMANGALORE VILLAGE
KUDIGE POST, KUSHALNAGAR
SOMWARPET TALUK, 571 234
KODAGU DISTRICT.
... APPELLANTS
(BY SRI: VENKATESH R. BHAGAT, ADVOCATE)
AND:
KUSHALNAGAR WORKS
(KUDIGE KUSHALNAGAR
SOMWARPET TALUK
KODAGU DISTRICT)
A CONSTITUENT OF THE TATA COFFEE LTD
A COMPANY REGISTERED UNDER THE
INDIAN COMPANIES ACT, 1956
HAVING ITS REGISTERED OFFICE AT
POLLIBETTA, KODAGU DISTRICT
REPRESENTED BY ITS GENERAL MANAGER
(INDUSTRIAL RELATIONS) SRI. VIJAY KARNAD
SON OF K. SHASHIDHAR RAO
AGED 47 YEARS
RESIDENT OF POLLIBETTA, VIRAJPET TALUK
KODAGU DISTRICT. 571 234
... RESPONDENT
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(BY SRIYUTHS: MANU KULKARNI, ABHINAG S AND
N.S. SRIRAJ GOWDA, ADVOCATES)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 20.3.2013 PASSED IN
R.A.NO.7/2010 ON THE FILE OF DISTRICT AND SESSIONS JUDGE,
KODAGU, MADIKERI, ALLOWING THE APPEAL AND SETTING ASIDE
THE JUDGMENT AND DECREE DATED 07.01.2010 PASSED IN
OS.NO.121/2005 ON THE FILE OF CIVIL JUDGE (SR.DN.),
MADIKERI.
THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 28.09.2022 COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The defendants have preferred this appeal being aggrieved by the judgment and decree dated 20.03.2013 passed in RA No.7 of 2010 on the file of the learned District Judge, Kodagu, Madikeri (hereinafter referred to as 'the First Appellate Court' for brevity), whereunder the judgment and decree dated 07.01.2010 passed in OS No.121 of 2005 on the file of the learned Civil Judge (Sr.Dn.) at Madikeri (hereinafter referred to as 'the Trial Court' for brevity), was set aside, by allowing the appeal and decreeing the suit of the plaintiff as prayed for.
2. For the sake of convenience, parties are referred to as per their status and rank before the Trial Court. 3
3. Brief facts of the case are that, the plaintiff filed the suit against defendant Nos.1 and 2 seeking declaration that it is the absolute owner of the schedule property and consequently for mandatory injunction directing defendant No.1 or through defendant No.2 to execute a rectification deed to correct the word 'Kudumangalore' as 'Basavanthoor' in the sale deed dated 22.12.1986, registered in the Sub- Registrar's office, Somwarpet Taluk, Kodagu District. It is contended by the plaintiff that it has purchased the schedule property under the registered sale deed dated 22.12.1986 executed by defendant No.1 through defendant No.2, as Power of Attorney holder. The schedule property was delivered to the possession of plaintiff and thus the plaintiff is in peaceful possession and enjoyment of the same. It is stated that Sy.No.23/1 lying to the east of the schedule property belongs to defendant No.2 and he sold it in favour of plaintiff under the sale deed dated 13.07.1992 and the plaintiff is in peaceful possession and enjoyment of the said land as well.
4. It is contended that the revenue records in respect of the schedule property was not mutated in the name 4 of the plaintiff in spite of mandatory provisions under Section 128 of the Karnataka Land Revenue Act. During July 1995, the plaintiff found that the revenue records were not mutated in his name. On enquiry, it is found that the name of the village mentioned in the sale deed is 'Kudumangalore' instead of 'Basavanthoor'. Therefore, the plaintiff approached the Sub-Registrar concerned seeking necessary corrections. The Sub-Registrar directed the plaintiff to approach the defendants. The plaintiff accordingly requested the defendants to execute a rectification deed. The defendants were dodging the plaintiff assigning one or the other reasons. Therefore, the plaintiff issued legal notice on 02.07.1996 calling upon the defendants to execute the rectification deed.
5. It is stated that the defendants assured to execute the rectification deed, but started making vexatious claim that the manager of the plaintiff had assured to permit them to remove the standing timber on the schedule property free of cost and insisted for the same. There was no such covenant in the sale deed to enable the defendants to take the standing timber free of cost and it was not assured at any time. When this was informed to the defendants they started avoiding 5 execution of the rectification deed. In the meantime, Consolidated Coffee Limited of which the plaintiff is a constituent was taken over by Tata Coffee Limited and the matter was unnoticed for sometime. When a week earlier to filing of the suit, the plaintiff approached the revenue authorities and came to know that necessary changes are not effected and defendants are not co-operating to fulfill their obligations. The plaintiff thought it fit to file the suit. Therefore, it is stated that cause of action for the suit arose during July 1995. When the plaintiff found that the mistake that had crept in the sale deed dated 22.12.1986, subsequently, on 02.07.1996 when the notice was issued to the defendants and an evasive reply was received by the defendants. Therefore, the plaintiff prayed for declaration and consequential mandatory injunction against the defendants.
6. The schedule appended to the plaint describes the property measuring 6.59 acres of sagu khushki land in Sy.No.23/2, khata No.3 of Basavanthoor village, Kushalnagar Hobli, Somwarpwet Taluk, kodagu District, with the boundaries mentioned therein.
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7. Defendant Nos.1 and 2 have filed written statement denying the contentions taken by the plaintiff. It is contended that the plaintiff is not an agriculturist and therefore, it could not have purchased the agricultural property. No prior permission was obtained to get the sale deed registered. It is stated that it was a fraudulent transaction got executed with money and man power. The defendants admitted that the plaintiff is a constituent of Consolidated Coffee Limited which was taken over by Tata Coffee Limited. It is stated that defendant No.2 was the power of attorney for the limited purpose and therefore, the suit is bad for mis-joinder of defendant No.2.
8. It is contended that the defendants have not executed any sale deed dated 22.12.1986 in favour of the plaintiff. In fact, the defendants have given only a temporary licence to run the coffee curing activities in the schedule property for a period of 20 years. The plaintiff made misrepresentation and got executed the sale deed only with an intention to grab the property. The defendants were illiterates and they were not knowing the recitals of the sale deed till filing of the suit. The defendants were under the 7 impression that they executed only the licence deed as they do not know English and the plaintiff has played fraud on them.
9. It is also contended that the plaintiff is not a competent person to file the suit, since it is already taken over by Tata Company. It is stated that the defendants are ready to repay the licence fees paid by the plaintiff with interest as the defendants have never transferred the right, title or interest over the schedule property in favour of the plaintiff. The plaintiff has never paid tax. The revenue records stand in the name of defendant No.1. It is also contended that the Court fee paid is insufficient and the suit is barred by limitation. Therefore, it is prayed that the suit is liable to be dismissed.
10. On the basis of these pleadings, the Trial Court framed the following issues:
"1. Whether the plaintiff proves that, on 22-12-1986 defendant had executed a registered Sale deed in respect of suit property in his favour?8
2. Whether the defendants prove that they executed only a licence deed and not Sale deed as alleged in para-12 of written statement?
3. Whether the suit is barred by law of limitation?
4. Whether the defendants prove that suit is barred by the Karnataka Land Reforms Act?
5. Whether the suit is valued properly and court fee paid thereon is correct?
6. Whether the plaintiff is entitled for declaration and mandatory injunction as prayed for?
7. What decree or order?"
11. The plaintiff got examined his power of attorney holder as PW1 and got marked Exs.P1 to 13 in support of its contention. The defendants have not examined any witnesses nor led any evidence in support of their defence. The Trial Court after taking into consideration all these materials on record, answered issue Nos.1, 3 and 5 in Affirmative and issue Nos.2 and 6 in Negative and dismissed the suit of the plaintiff with costs. It is held that issue No.4 does not arise for consideration in view of the order dated 12.10.2009 on 9 IA.6 filed under Order VII Rule 11 of CPC. Accordingly, the suit of the plaintiff was dismissed.
12. As per order dated 12.10.2009, the application filed by the defendants to reject the plaint was dismissed with costs. It is further held that the Civil Court cannot record a finding under Sections 79 and 80 of the Karnataka Land Reforms Act and further the question as to whether the suit is barred by limitation or not is a mixed question of law and fact and therefore, IA.6 filed by the defendants is not maintainable.
13. Being aggrieved by the dismissal of suit, plaintiff preferred RA No.7 of 2010 and the First Appellate Court on re- appreciation of the materials on record, came to the conclusion that the plaintiff is entitled for the relief and accordingly decreed the suit of the plaintiff by allowing the appeal and setting aside the impugned judgment and decree passed by the Trial Court. Being aggrieved by the same, the defendants are before this Court in this second appeal.
14. Heard Sri Venkatesh R Bhagat, learned counsel for the appellants and Sriyuths Manu Kulkarni, Abhinag S and N S 10 Sriraj Gowda, learned counsel for the respondent. Perused the materials including the Trial Court records.
15. Learned counsel for the appellants submits that the suit of the plaintiff is barred by limitation and the Trial Court rightly held so. The sale deed is dated 22.12.1986. The legal notice was issued as per Ex.P5 on 02.07.1996. The defendants issued the reply on 17.07.1996, but the suit came to be filed on 19.08.2005. About 19 years after execution of the sale deed, the plaintiff has approached the Court and therefore, the suit is liable to be dismissed.
16. Learned counsel submitted that the First Appellate Court erroneously held that Article 113 of the Limitation Act is applicable to the facts of the case. But in fact Article 58 of the Limitation Act which is applicable, since the plaintiff has sought for declaration. Learned counsel further submitted that the authority of the plaintiff to file the suit is not stated in the plaint. PW1 could not have represented the plaintiff nor he could have deposed on its behalf. The power of attorney deed relied on by the plaintiff was not in existence as on the date when PW1 deposed before the Court. It is specifically 11 contended that PW1 ceased to be the employee of the Company with effect from 12.07.2008. He was examined before the Trial Court on 21.07.2008. As per the recitals found in the general power of attorney deed - Ex.P1, the same would ceased to exist on retirement of the employee. It is further contended that the plaintiff is neither a Company nor a firm as admitted by PW1 during cross examination. It has no legal existence. Therefore, it could not have instituted and maintained the suit. The Trial Court on proper appreciation of the materials on record had dismissed the suit of the plaintiff. The First Appellate Court committed an error in allowing the appeal and decreeing the suit. Therefore, he prays for allowing the second appeal and to dismiss the suit of the plaintiff.
17. Per contra, learned counsel for the respondent opposing the appeal contended that even though it was a suit for declaration and mandatory injunction, it is basically a suit under Section 26 of the Specific Relief Act seeking rectification of the sale deed. No period of limitation is provided for seeking such rectification of an instrument when a mistake has crept in executing the same. The proviso appended to 12 Section 26 of the Act makes the position clear that at any stage of the proceedings, the amendment of the pleading seeking rectification of the instrument could be asked, meaning thereby, no period of limitation would restrict the right of the plaintiff to seek rectification of the instrument.
18. Learned counsel for the respondent placed reliance on the decision in Amrik Singh Vs Jasvir Singh and Others1 of Punjab and Haryana High Court in support of his contention that rectification of an instrument is governed by Section 26 of the Specific Relief Act to which no limitation has been provided.
19. Learned counsel submitted that as per Section 22 of the Contract Act, any contract will not become void merely because one of the party commits breach. The defendants have admitted the execution of sale deed, but put up a claim over the standing timber without any basis. The defendants never disputed execution of the sale deed nor disputed the contention of the plaintiff that by mistake the name of the village is mentioned wrongly. As per recitals found in the sale deed at condition No.2, it is obligatory on the part of the 1 RSA No.5379/2016 DD 12.09.2017 13 defendants to perform their duties as and when called for and it is a continuing obligation which the defendants have not performed. When there is continuing breach of contract and tort, fresh period of limitation begins to run at every moment of the time during which the breach or the tort as the case may be continues as per Section 22 of the Limitation Act. Therefore, it cannot be contended that the suit of the plaintiff is barred by limitation. Learned counsel placed reliance on the decision in Parvataneni Venkataramayya and Others Vs Lanka Ramabrahmam and Another2, in support of his contention.
20. Learned counsel further submitted that the defendants have categorically admitted the status of the plaintiff as the constituent of Tata Coffee Limited. Even while filing the written statement, the authority of the plaintiff to file and maintain the suit is not disputed. The plaintiff was represented by its power of attorney holder, he being the General Manager of the Tata Coffee Limited, of which the plaintiff is a constituent company. Even though he was already retired when he was examined as PW1 before the 2 1918 Law weekly 142 14 Trial Court, that will not disqualify him from deposing before the Court about the facts which were in his knowledge. The competence of PW1 was never disputed by the defendants. When there is no specific denial in the written statement about the facts pleaded in the plaint, it has to be taken as the defendants have accepted the competence and the contentions of the plaintiff.
21. Learned counsel placed reliance on the decision in Muddasani Venkata Narasaiah (Dead) Through Legal Representatives Vs Muddasani Sarojana3. He also placed reliance on the decision in United Bank of India Vs Naresh Kumar and Others4, to contend that the Company may be expressive or by necessary implication rectifies the act of its authorized agent and there is no necessity of any formal power of attorney deed to enable PW1 to depose before the Trial Court.
22. Learned counsel also submitted that the appellants are not the aggrieved parties to invoke Section 100 of CPC and to prefer the appeal. They have not lost any right 3 (2016) 12 SCC 288 4 (1996) 6 SCC 660 15 nor an obligation is created by decreeing the suit of the plaintiff. On that count also, the appeal is liable to be dismissed. He placed reliance on the decision in Banarsi and Others Vs Ram Phal5 in support of his contention.
23. Learned counsel further submitted that the defendants cannot question the authority of the plaintiff to seek rectification of the sale deed, since execution of the same is never disputed nor it was challenged in accordance with law. It is for the first time before this Court the competency of the plaintiff and PW1 is raised and it is the contention that the plaintiff is a non-existing entity. When there is no pleadings nor proof, the defendants cannot be permitted to raise such irrelevant contentions. Learned counsel also submitted that the defendants have never stepped into the witness box to deny the contention of the plaintiff, adverse inference will have to be drawn against them. The First Appellate Court on re-appreciation of the materials on record arrived at a right conclusion and the impugned judgment and decree do not call for interference. Hence, he prays for dismissal of the appeal. 5 (2003) 9 SCC 606 16
24. The appeal was admitted vide order dated 23.06.2016 to consider the following substantial questions of law:
"1. Whether the lower appellate Court is justified in reversing the judgment and decree of the trial Court decreeing the suit filed by the plaintiff, when the suit is barred by limitation in view of the Articles 58 and 113 of the Limitation Act?
2. Whether the lower appellate Court is justified in reversing the judgment and decree of the trial Court allowing the appeal, when there is a prohibition to purchase agricultural lands by the company under Section 109 read with Section 79A and B and 80 of Karnataka Land Reforms Act, 1961?
3. Whether the lower appellate Court is justified in reversing the judgment and decree of the trial Court in the facts and circumstances of the case?"
25. Even though substantial question of law No.2 is raised with regard to the bar under Sections 79A and B and 80 of the Karnataka Land Reforms Act, no argument is 17 addressed by either of the parties. Even otherwise, the Trial Court vide order dated 12.10.2009 recorded a finding that the application IA.6 filed under Order VII Rule 11 of CPC seeking to reject the plaint on the ground that the plaintiff is a Company and therefore, it could not have purchased the schedule property in violation of Sections 79 and 80 of the Karnataka Land Reforms Act. The said finding of fact recorded by the Trial Court was never challenged by the defendants. Therefore, this substantial question of law is to be answered against the appellants and in favour of the respondent.
26. On going through the pleadings of the parties, it is clear that the defendants have not denied specifically the competence of the plaintiff to file and maintain the suit. In para 7 of the written statement, the defendants denied the contention taken by the plaintiff in para 5 of the plaint except the averments that the Consolidated Coffee Limited of which the plaintiff as a constituent was taken over by Tata Coffee Limited. Therefore, there is a clear admission on the part of the defendants about the constituent of the plaintiff. The 18 defendants cannot now deny the existence of the plaintiff and contend that it is a non existent entity.
27. Ex.P5 is the legal notice got issued by the plaintiff and addressed to defendant Nos.1 and 2 informing them about the mistake that had crept in mentioning the name of the village while executing the sale deed and calling upon them to execute the rectification deed. Ex.P10 is the reply notice got issued by defendant Nos.1 and 2 wherein para 1 of legal notice - Ex.P5 is admitted as true. In para 1 of Ex.P5, the plaintiff stated regarding execution of the registered sale deed dated 22.12.1986 in respect of the schedule property by defendant No.1 through defendant No.2 under the power of attorney deed 15.07.1985.
28. Ex.P10 is an admitted document. When there is a categorical admission regarding execution of the sale deed as per Ex.P3, it will not lie in the mouth of the defendants to raise contention that they have never executed the sale deed and taking advantage of their illiteracy and innocence, the document was fabricated, even though it was informed that they are executing the licence deed. Therefore, I am of the 19 opinion that these contentions now raised by the learned counsel for the appellants does not hold this Court for considerable time in light of the categorical admissions referred to above.
29. The only substantial question of law that remains to be considered is with regard to the question of limitation as it is contended that the suit of the plaintiff is barred by limitation.
30. It is admitted fact that the sale deed as per Ex.P3 was executed and registered on 22.12.1986. The plaintiff got issued the legal notice for the first time to the defendants as per Ex.P5 on 02.07.1996 calling upon them to rectify the mistake that has crept in the sale deed. Ex.P10 dated 17.07.1996 is the reply notice issued by the defendants admitting the execution of the sale deed as stated in para 1 of the notice. The suit was filed before the Trial Court by the plaintiff on 19.08.2005. With these dates and events, let me consider as to whether the suit of the plaintiff is barred by limitation.
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31. It is the specific contention of the plaintiff that the suit is one for rectification of the sale deed, therefore, governed by Section 26 of the Specific Relief Act, to which no period of limitation has been provided. He placed reliance on the decision in Amrik Singh (supra), wherein the Punjab and Haryana High Court considered a matter where similar contentions were raised with regard to the limitation in a suit filed for rectification of an instrument. It was found that while executing the sale deed, the name of the father was recorded wrongly and therefore, the plaintiff sought for rectification of the sale deed. The High Court held that rectification is governed by Section 26 of the Specific Relief Act and no period of limitation is provided. The contention of the appellant therein that Article 113 of the Limitation Act applies to the facts was rejected.
32. In Parvataneni (supra), the High Court of Judicature at Calcutta considered a situation where the defendants sold the property in favour of the plaintiff, but the physical possession of the property could not actually be delivered in favour of the plaintiff as it was in possession of the tenant who asserted right over the property. A suit for 21 ejectment was filed against the tenant and a decree was obtained. The decree was set aside by the First Appellate Court and the same was confirmed by the High Court. Thereafter, a suit was filed by the plaintiff seeking cancellation of the same and for damages in the alternative. The said suit was also dismissed on the ground of limitation. When the matter came up before the High Court, reliance was placed upon a clause in the sale deed where the seller undertook to clear all dispute of any kind touching the land in question at his own cost and assured that the plaintiff would be allowed ownership over the property uninterruptedly. This clause in the sale deed was held to be a continuing covenant as the duty is cast upon the seller to keep the property free from any such encumbrances. It is further held that even though the cause of action might have arisen as soon as there was a breach, the injured party is not bound to sue once for all and prospective damages for breach of the covenant. Therefore, it is held that the suit filed after long lapse of 6 years is not barred by limitation.
33. As per Section 22 of the Limitation Act, where there is continuing breach of contract or where there is 22 continuing tort, a fresh period of limitation begins to run at every moment at the time during which the breach or the tort as the case may be continues. In the sale deed Ex.P3, which is an admitted document, at page 5 clause (2) reads as under:
"The vendors undertake to take all steps and do all deeds and things to have the record of rights of the said properties changed to the name of the purchaser, including rendering necessary co-operation when called for by revenue authorities and they have executed separate application by themselves and by their father Sri V Thimappa in whose name the record of rights stands toady to change the said record of rights to be filed before the Tahsildar, Somwarpet or Revenue Inspector, Kushalnagar as the case may be, for transfer of patta of the properties conveyed hereunder, to the name of the above purchaser."
34. A bare reading of the above clause found in the sale deed, the execution of which is categorically admitted by the defendants in the reply notice Ex.P10, speaks about the obligation that was imposed on the vendors. By admitting the contents of para 1 of the legal notice - Ex.P5, while replying 23 as per Ex.P10, now it cannot be disputed that there is an unambiguous undertaking by the vendors to do all necessary acts and deeds to see that the record of rights and the patta changes in the name of the purchaser i.e., the plaintiff. When there is breach of this contract, it will be a continuing breach as referred under Section 22 of Limitation Act and therefore, fresh period of limitation begins to run at every moment of the time during which such breach continues.
35. In view of the above, I do not find any merits in the contention raised by the learned counsel for the appellants. The conduct of the defendants in admitting execution of sale deed at the earliest point of time while issuing the reply as per Ex.P10 and taking untenable contentions while filing the written statement is to be taken into consideration. It is also to be noted that defendants have never chosen to step into the witness box to speak about those defence. Moreover, even though it is contended that taking advantage of the illiteracy and ignorance of the defendants, the plaintiff got the document as sale deed even though it was purported to be a temporary licence for a period of 20 years, the defendants have not taken any steps to 24 challenge the registered sale deed or to recover the possession of the schedule property till date. Admittedly, the plaintiff continues to be in possession of the schedule property without any interference. Therefore, I am of the opinion that substantial question of law No.1 regarding limitation is to be answered by holding that the case of the plaintiff is governed by Section 22 of the Limitation Act and therefore, no period of limitation is prescribed to hold that the suit is barred by limitation. It is answered accordingly.
36. In view of the discussions held above, I proceed to pass the following:
ORDER
(i) The appeal is dismissed with costs throughout.
(ii) The judgment and decree dated 20.03.2013 passed in RA No.7 of 2010 on the file of the learned District Judge, Kodagu, Madakeri, is hereby confirmed.
(iii) Consequently, the judgment and decree dated 07.01.2010 passed in OS No.121 of 2005 on the file of the learned Civil Judge (Sr.Dn.) at Madikeri, is set aside and the suit of the plaintiff is decreed as prayed for.25
Registry to send back the Trial Court records along with copy of the judgment.
Sd/-
JUDGE *bgn/-