Karnataka High Court
Ramesh L vs Paul Raj on 14 August, 2012
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 14th DAY OF AUGUST, 2012
BEFORE
HON'BLE MR. JUSTICE RAM MOHAN REDDY
R.F.A.NO.173/2005(DEC & INJ)
BETWEEN:
1. RAMESH L
S/O.LAKSHMINARAYANAPPA
AGED ABOUT 34 YEARS
2. SMT LALITHAMMA
W/O.LAKSHMINARAYANAPPA
AGED ABOUT 52 YEARS
3. RADHA
D/O.LAKSHMINARAYANAPPA
AGED ABOUT 32 YEARS
4. RENUKA
D/O.LAKSHMINARAYANAPPA
AGED ABOUT 30 YEARS
ALL ARE RESIDING AT
NO.69, 2ND WEST CROSS,
L N COLONY, YESHWANTHPUR,
BANGALORE-22.
... APPELLANTS
(BY SRI S.SIDDAPPA, ADV.,)
AND
1. PAUL RAJ
S/O MR.SUBRAMANIAN
AGED ABOUT 62 YEARS
RESIDENT OF CLAURENCE
HIGH SCHOOL, ROTARY ROAD,
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RICHARDS TOWN,
BANGALORE-560005.
2. LAKSHMINARAYANAPPA
S/O.MAESTRI MUNISWAMAPPA
AGED ABOUT 71 YEARS
RESIDING AT NO.69,
II WEST CROSS, L N COLONY
YESHWANTHAPURA,
BANGALORE-560022.
... RESPONDENTS
(BY SRI KANAGARAJAN, ADV., FOR C/R1)
THIS RFA FILED U/O 41 RULE 1 OF CPC AGAINST THE
JUDGMENT AND DECREE DT. 28.10.04 PASSED IN
O.S.NO.8275/97 ON THE FILE OF THE XIV ADDL. CITY CIVIL
JUDGE, BANGALORE, CCH NO.28, DISMISSING THE SUIT FOR
DECLARATION, POSSESSION & PERMANENT INJUNCTION AND
ETC.,
THIS RFA COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellants, perused the pleadings, the evidence, both oral and documentary and examined the judgment and decree dated 28.10.2004 in O.S.No.8275/1997 of the XIV Additional City Civil Judge, Bangalore, (CCH.NO.28).
2. There is no dispute that the 2nd appellant herein none other than 1st plaintiff in O.S.8275/1997 is the legally wedded wife of the 2nd respondent herein
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arraigned as the 2nd defendant and from out of that wedlock, appellants 1, 3 & 4 herein i.e. plaintiffs 2 to 4 were born. It is also not in dispute that O.S.No.4545/1993 was instituted for declaration, partition and separate possession of coparcenary property as between the siblings of the 2nd defendant and compromise petition-Ex.P.1 filed, as recorded in the order sheet-Ex.P.5 in O.S.No.4545/1993 disclosing that 21 sites formed in Sy.No.40/2, being ancestral property, fell to the share of 2nd defendant (the husband of 1st plaintiff and father of plaintiffs 2 to 4 herein). Yet a fact not in dispute is that the 2nd defendant conveyed Site No.78, (one of the 21 sites that fell to his share in the compromise), carved out of Sy.No.40/2 in favour of the 1st defendant under a deed of sale executed on 8.4.1992-Ex.D.1. Another fact not in dispute is that O.S.No.8275/1997 was instituted on 13.11.1997 5 years and 7 months after 8.4.1992 the date of execution of Ex.D.1-sale deed, to declare the said sale deed as not
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binding on the plaintiffs' share of the ancestral immovable properties.
3. The trial Court in the premise of pleadings of parties, framed the following issues:
1. Whether the plaintiffs prove that the sale deed executed by the 2nd defendant in favour of the first defendant in respect of the suit schedule site is illegal and not binding on the plaintiffs?
2. Whether the plaintiffs prove that the mutation effected in pursuance of the sale deed is illegal?
3. Whether the plaintiffs are entitled to the relief of permanent injunction as prayed for?
4. Whether the defendant NO.1 proves that the suit is filed by the plaintiffs in collusion with defendant No.2?
5. Whether the defendant No.1 proves that the suit is bad for mis-joinder and non-joinder of parties?
6. Whether the defendant No.1 proves that the suit is barred by time?
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7. Whether the defendant No.1 proves that the valuation of the suit property and the Court Fee paid is not proper?
8. What decree or order?
4. Parties having entered trial, 2nd plaintiff was examined as P.W.1 and marked 10 documents as Exs.P.1 to P.10, while 1st defendant was examined as D.W.1 and Exs.D.1 to D.4 marked.
5. The trial Court returned findings thus:
Issue No.1 : Negative;
Issue No.2 : Does not arise for consideration; Issue No.3 : Negative Issue No.4 : Affirmative;
Issue No.5 : Affirmative;
Issue No.6 : Affirmative;
Issue No.7 : Negative;
Issue No.8 : As per final order
6. There is force in the submission of learned counsel for the appellants that the trial Court was not justified in recording a finding in the affirmative over Issue No.6 holding that the suit was time barred in view
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of Article 58 of the schedule to the Limitation Act, 1963, for short the "Act". Article 58 under Chapter III of the schedule to the Act provides for limitation for 3 years from the date the right to sue first accrues, to obtain any other declaration. However, Article 109 in chapter IX of the schedule to the Act, under the nomenclature "suit relating to miscellaneous matters", provides for a limitation of 12 years when the alienee takes possession of the property, for a Hindu, governed by Mitakshara law to set aside his father's alienation of ancestral properties.
7. Regard being had to the admitted facts that
(i) the suit schedule property being one among the 21 sites that fell to the share of 2nd defendant in a partition by way of a compromise in O.S.NO.4545/1993 and
(ii) the 1st plaintiff none other than the wife and plaintiffs 2 to 4 the children of the 2nd defendant, being Hindus, governed by Mitakshara Law were entitled to institute O.S. 8275/1997 on 13.11.1997 to declare the sale deed-Ex.D.1 executed on 8.4.1992 by the 2nd
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defendant in favour of the 1st defendant conveying Site No.78 one of the sites that fell to his share, as void and not binding on the plaintiffs share. The suit instituted 5 years and 7 months after the execution of Ex.D.1 fell squarely within the limitation of 12 years under Article 109 and therefore, the finding in the affirmative on Issue No.6 holding that the suit was barred by limitation is contrary to law and is unjustified. That issue is accordingly answered in the negative.
8. The finding in the affirmative over Issue No.5 that the suit is bad for mis-joinder and non-joinder of necessary parties, in the circumstances, cannot, but be said to be perverse. Admittedly, the relief in the suit was not one for declaration, partition and separate possession of the ancestral properties, but to declare the sale deed Ex.-D1 conveying site No. 78 one among the 21 sites carved out of Sy.No.40/2, which fell to the share of 2nd defendant, the father of plaintiffs 2 to 4 and the husband of 1st plaintiff, as not binding on their share of the ancestral properties and therefore, there
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was no necessity to implead all the purchasers of 21 sites as party defendants I the suit, hence, that issue ought to be answered in the negative.
9. The trial court held that in the light of the findings in the affirmative over Issue Nos.5 and 6, it was unnecessary to answer Issue Nos. 1 and 4, nevertheless, observed that for "limited purpose of appreciating the facts and to avoid complications in future", answered the issues in the 'negative' and 'affirmative', respectively, on the premise that the plaintiff did not institute the suit for declaration, partition and separate possession of the joint family property that fell to the share of 2nd defendant in a partition. It is needless to state that the suit being one to declare as void and not binding on the plaintiffs share, the sale deed - Ex.D.1 executed by the 2nd defendant in favour of 1st defendant conveying site No.78 one of the sites belonging to the joint family, the findings are but perverse. The sale of site No.78 by the 2nd defendant in favour of the 1st defendant would bind
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the 2nd defendant in so far as his share in the joint family properties and not the shares of the plaintiffs, in the absence of relevant material to establish that the sale was for a family necessity. It must be noticed that the 2nd defendant remained absent though served with suit summons and did not offer resistance. Issue No.1 is therefore answered in the affirmative while Issue No.4 in the negative.
10. Sequentially, the finding over Issue No.2 that it 'does not arise for consideration' too is perverse in the light of the finding on Issue No.1 that the sale deed- Ex.D.1 is not binding on the shares of the plaintiffs, sequentially the entry in the mutation register recorded by the Revenue Authorities in respect of the suit schedule site No.78, cannot, but be held to be illegal and Issue No.2 is answered in the affirmative. It is brought to the notice of the Court that O.S.No.4033/2006 is instituted for declaration, partition and separate possession of ancestral properties and therefore the revenue authorities must -10- await the decision in the suit regarding the revenue entry.
11. The answer in the negative over Issue No.3 holding that the plaintiffs are disentitled to the relief of permanent injunction, in view of the findings returned over other issues does not call for interference. Admittedly, plaintiff is not in possession of Site No.78 and that it is the 1st defendant who is put in possession of the said site by the 2nd defendant under the conveyance deed-Ex.D.1, if that is so, plaintiffs are disentitled to the relief of permanent injunction. Since the plaintiffs have instituted O.S.No.4033/2006 for declaration, partition and separate possession of the joint family properties, it is for the parties to seek equitable relief in respect of Site No.78 in the final decree proceeding, if the plaintiffs are successful in obtaining a preliminary decree, since equities are necessarily to be considered keeping in view that defendant No.2 too has a share in the joint family properties.
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12. Since, the 1st defendant failed to prove the valuation of the property and the allegation that the court fee paid was not proper, the answer in the negative on Issue No.7 does not call for interference.
13. In the result, this appeal is allowed. The judgment and decree insofar as it relates to findings on Issue Nos.1 to 6 are set aside and the suit is accordingly decreed in part.
Sd/-
JUDGE PB