Karnataka High Court
Smt. Rajamma vs Smt. Sakamma on 17 April, 2025
Author: K.Natarajan
Bench: K.Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF APRIL, 2025
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
REGULAR FIRST APPEAL NO. 279 OF 2014
BETWEEN:
1 . SMT. RAJAMMA
W/O YELLAPPA,
AGED ABOUT 54 YEARS,
2 . SRI. SRINIVAS
S/O YELLAPPA,
AGED ABOUT 38 YEARS,
3 . SRI. Y. RAVI
S/O YELLAPPA,
AGED ABOUT 30 YEARS,
4 . SRI. Y. RAMESH
S/O YELLAPPA,
AGED ABOUT 29 YEARS,
ALL ARE RESIDING AT NO.92,
CHIKKALAKSHMAIAH LAYOUT,
HOSUR MAIN ROAD,
BANGALORE - 560 029.
...APPELLANTS
(BY SRI. N. D. ONKARAPPA, ADVOCATE)
AND:
1 . SMT. SAKAMMA
W/O LATE NAGAPPA,
AGED ABOUT 73 YEARS,
2 . SMT. S. N. MAHADEVA
S/O LATE NAGAPPA,
AGED ABOUT 48 YEARS,
2
3 . SRI. MANJUNATHA
S/O LATE NAGAPPA,
AGED ABOUT 35 YEARS,
4 . SRI. GOPALAPPA
S/O LATE. GARE RAMAIAH,
AGED ABOUT 54 YEARS,
ALL ARE RESIDING AT
SINGASANDRA VILLAGE,
BEGUR HOBLI,
BANGALORE SOUTH TALUK,
BANGALORE DISTRICT.
5 . SRI. VISHNU HEGDE
S/O GANAPATHI HEGDE,
AGED ABOUT 47 YEARS,
RESIDING AT NO.410,
2ND MAIN, III BLOCK,
III STAGE,
BASAVESHWARANAGAR,
BANGALORE - 560 079.
...RESPONDENTS
(BY SRI. K.N. MOHAN, ADVOCATE FOR R1 & 3;
SRI. K.R.KRISHNAMURTHY, ADVCOATE FOR R2;
VIDE ORDER DATED:23/6/2017 NOTICE TO R5 DISPENSED
WITH)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96
OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 10.10.2013
PASSED IN O.S.5140/2006 ON THE FILE OF XLIII-ADDL. CITY CIVIL
AND SESSIONS JUDGE, CCH-44, BENGALURU, DISMISSING THE
SUIT FILED FOR DECLARATION AND INJUNCTION.
THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 22.01.2025 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
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CORAM: HON'BLE MR. JUSTICE K.NATARAJAN
RESERVED FOR ORDERS ON: 22.01.2025
PRONOUNCED ON : 17.04.2025
CAV JUDGMENT
This appeal is filed by the appellants-plaintiffs under Section 96 of CPC for setting aside the judgment and decree dated 10.10.2013 passed by the XLIII Additional City Civil and Sessions Judge, CCH 44, Bangalore, in O.S.No.5140/2006, for having dismissed the suit of the plaintiffs.
2. Heard the learned Counsel for the appellants and learned counsel for the respondents. The appellants are the plaintiffs and the respondents are the defendants before the Trial Court. The rank of the parties before the Trial Court is retained for the sake of convenience.
3. The case of the plaintiffs before the Trial Court is that the plaintiffs filed a suit for declaration and injunction to declare that they are the absolute joint owners in possession and enjoyment of suit schedule property bearing Sy.No.19, village panchayath khata No.126 and assessment No.109/207, House list No.19, formed in Sy.No.109, situated at 4 Singasandra Gramatana, Begur hobli, Bangalore south taluk, measuring east to west 50 feet, north to south 100 feet, now comes under the jurisdiction of Ward No.7, Bommanahalli City Municipal Council, Bangalore (hereinafter referred to as 'suit schedule property'), which was acquired through registered sale deed dated 22.12.1994 executed by one Vishnu Hegde, son of Ganapathy Hegde, who is the 5th defendant herein. By virtue of the registered sale deed, an encumbrance was created in the name of plaintiffs in respect of suit schedule property to show that up to date, encumbrance stands in the name of plaintiffs. It is further contended that, originally, the 2nd and 3rd plaintiffs were the minors at the time of purchase of the suit schedule property. 1st plaintiff represented as natural guardian on behalf of 2nd and 3rd plaintiffs. Now both the plaintiffs have attained the age of majority. The plaintiffs are not in possession of original sale deed and they obtained the certified copy of the same from the Sub-registrar, Bangalore South Taluk. The suit schedule property comes under the jurisdiction of Ward No.7, Bommanahalli City Municipal Council, by virtue of the said sale deed and the plaintiffs got assessed the property under the provisions of 5 Karnataka Municipality Act, 1964 and its Rules and paid tax to the Bommanahalli CMC, for the years 2002 to 2006.
4. It is further contended that originally, the land to an extent of 7 acres 37 guntas in Sy.No.109 and 1 acre 2 guntas in Sy.No.2 and 35 guntas in Sy.No.95 situated at Singasandra village, Begur hobli, Bangalore South Taluk were belonged to Karagamma Devaru Inam and Devadaya inam land endowed to said deity. The Archakas of the Temple were in personal cultivation of the land in token of their service and sevas to the said devotees. Since the said lands were vested with Government under the Mysore (Religious and Charitable) Inam Abolition Act, 1955, the Archakas of the Karagamma Temple were entitled to file an application for occupancy right under the said Act. One Nagappa S/o. Gare Ramaiah, Archaka of the Temple, who is none other than the husband of 1st defendant and father of 2nd and 3rd defendants and brother of 4th defendant, filed application under the Act to claim occupancy rights for the said lands before the Land Tribunal, Bangalore South - II. On the counter, Thoresalappa s/o Muniramappa, S.P. Jayarama Reddy, Chikkeramma w/o Muninanjappa, Sampanna s/o. Chikkadevaiah, Chokkappa s/o Agadurappa, M.Pillappa s/o Gare Muniswamappa, Kenchappa s/o 6 Muniyappa, have filed application before the Land Tribunal, Bangalore South-II claiming tenancy rights over the land in respect of Sy.No.2, 95 and 109 of Singasandra village. The Tribunal registered the case in No.LRF/INA/46,479,481/1979- 80 and 1771 and 1768/1980-8 and 1709, 2338 and 2330/1981-82 and finally, the Tribunal, on 30.04.1982, confirmed the occupancy rights in favour of Nagappa s/o Gare Ramaiah to an extent of 8 guntas in Sy.No.2, 7 acres 37 guntas in Sy.No.109 and 35 guntas in Sy.No.95 and 6 guntas in Sy.No.2 to M.Pillappa.
5. Aggrieved by the same, Thoresalappa, Chokkappa, Chikkeeramma, Kenchappa and Mariyappa, legal heirs of Marappa, Puttamma, legal heirs of Sampanne filed the Writ Petition before this Court in W.P.No.20803/1993. The High Court on 09.12.1998, set aside the order of Tribunal and remitted the matter back to the Special Deputy Commissioner, Bangalore Urban District, to conduct the fresh proceedings on the occupancy rights. The Special Deputy Commissioner, initiated proceedings under the Act, in case No.INACR.3/1999- 2000 and finally, on 05.09.2005 confirmed the occupancy rights in favour of 1st, 2nd and 3rd defendants in respect of Sy.No.109, situated at Singasandra village, Bangalore South 7 Taluk to an extent of 7 acres 37 guntas. The 4th defendant herein questioned revenue entries before the Assistant Commissioner U/s.136(2) of the Act. The Assistant Commissioner remanded the matter to Tahasildar. The Tahasildar, Bangalore South Taluk, conducted the proceedings and finally, by order dated 28.06.2000 rejected the claim of 4th defendant herein to workout his remedy in the civil Court. The 4th defendant also filed a Revision Petition U/s.136 of the Karnataka Land Revenue Act, before the Special Deputy Commissioner, Bangalore, in Revision No.248/1997-98. The Special Deputy Commissioner allowed the Revision of the 4th defendant and directed the Tahasildar to mutate the name of the 4th defendant. The said order was challenged by the 1st and 2nd defendants before the High Court in Writ Petition in W.P.No.35397/2001. The High Court on 26.07.2002 allowed the Writ Petition and set aside the order of the Deputy Commissioner. In view of the Deputy Commissioner's order in Revision Petition No.248/1997-1998, the 4th defendant tried to interfere with peaceful possession. The 4th defendant also filed a suit for bare injunction before the Additional City Civil Judge, Bangalore in O.S.No.16715/2001 and the City Civil Court granted status-quo order. The 4th defendant brought all the site owners on record including 1st, 2nd and 3rd defendants. 8 Meanwhile, the 4th defendant has also filed the application before the Special Deputy Commissioner to get implead himself as party in case No.INA.CR.3/1999-2000. On 04.02.2004, the Deputy Commissioner rejected his application and directed him to workout his remedy in the civil Court. The 4th defendant withdrew the said suit in O.S.No.16715/2001 on 29.10.2005 reserving his liberty to file a fresh suit.
6. It is further contended that Nagappa, the applicant under the Karnataka Religious and Charitable Inam Abolition Act, 1955 died on 28.03.1986. The legal heirs of Nagappa, 1st and 2nd defendants along with the 4th defendant formed the sites in the granted land i.e., Sy.No.2, 95 and 109 measuring 1 acre 2 guntas, 35 guntas and 7 acres 37 guntas respectively, situated at Singasandra village, Begur hobli, Bangalore South Taluk and sold the sites in the said land to various parties through the registered sale deed as Gramatana sites on receiving sale consideration. The suit schedule property was sold by defendants 1, 2 and 4 to the 5th defendant through the registered sale deed dated 22.12.1993 and the same was registered in the office of the Sub-Registrar, Bangalore South Taluk. The 5th defendant also executed a registered General Power of Attorney in favour of the 2nd defendant, which was 9 also registered as document before the Sub-Registrar on 13.04.1994.
7. It is further contended that 1st defendant is the wife of late Nagappa, 2nd and 3rd defendants are the children of late Nagappa and 4th defendant is none other than the brother of late Nagappa. 5th defendant is the predecessor in title of the plaintiffs to the suit schedule property and also the 5th defendant is the first purchaser of the suit schedule property from 1st and 2nd along with 4th defendants. Therefore plaintiffs purchased the suit schedule property as bonafide purchasers on full payment of sale consideration and paid the stamp duty and registration thereon and they have constructed compound wall for entire suit schedule property and constructed 2 square asbestos sheet roofed building in the suit schedule property. The plaintiffs have invested their hard earned money to purchase the suit schedule property and to develop the same.
8. As per the indemnity clause of the said sale deed, in case of any defect arises, to cure the defect of the title including the statutory obligation under the Act and Rules concern, in respect of the suit schedule property, as a statutory duty, they have to co-operate and do the things as 10 required and demanded by the 1st and subsequent purchasers. The defendants 1, 2 and 4 are binding on the conditions incorporated in the sale deed executed by them in favour of purchasers of the suit schedule property. Further defendants 1, 2 and 4 executed sale deed in favour of 5th defendant on receipt of sale consideration. When the matter stood, the Special Deputy Commissioner as per the order of this Court in W.P.No.20803/1993 initiated the proceedings and passed the final order and confirmed the occupancy rights in favour of defendants 1, 2 and 3 and the occupancy rights granted by the Land Tribunal to Nagappa s/o Gare Ramaiah in the year 1982. The plaintiffs approached the defendants No.1 to 3 and demanded the rectification of the sale deed, but they have not responded properly.
9. The plaintiffs came to know that defendants No.1, 2 and 4 have executed deed of confirmation in favour of some third parties by confirming the sale deeds in favour of various persons. Further, the confirmation deeds were executed and registered in the office of the Sub-Registrar, Bangalore South Taluk. It is further contended that the plaintiffs came to know that defendants No.1 to 3 are trying to alienate the suit 11 schedule property to the 3rd parties by suppressing the title of the plaintiffs. Plaintiffs approached the defendants for several times and requested them to execute the confirmation deed, but in one or the other was defendants No.1 to 3 avoided the plaintiffs to meet them and they have not acted in terms of the promise made by them. Hence, the plaintiffs got issued legal notice dated 21.09.2005 to the Sub-Registrar, Bangalore and public notice was issued through their Advocate, in the daily newspaper on 21.09.2005, both in Kannada and English languages viz., Vijaya Karnataka and Hindu news paper.
10. Taking advantage of the order of Special Deputy Commissioner, defendants 1 to 3 are making hectic efforts to resell the suit schedule property and to dispossess the plaintiffs from the suit schedule property taking law into their hand forgoing legal and contractual obligation. In fact, defendants No.1, 2 and 4 halve already transferred their subsisting rights, title and interest over the property as against the receipt of the full consideration amount. After transferring the title and interest over the property nothing remains with defendants 1, 2 and 4. Hence, the plaintiffs were constrained to file the suit.
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11. In spite of service of summons, defendants 1, 3 and 4 did not appear before the court and they have been placed ex-parte.
12. Defendant No.2 appeared through his counsel and filed his written statement denying the averments made in paras-3, 4, 5 and he has admitted the averments made in paras 6 to 8 as correct and denied the averments made in para-9 to 19 and he has contended that the plaintiffs have not valued this suit and Court Fee paid on the plaint is not sufficient and suit is liable to be dismissed and prayed for dismissal of the suit.
13. Based upon the pleadings, the Trial Court framed the following issues :
1. Whether the plaintiffs prove that they are in peaceful possession and enjoyment of suit property as an absolute joint owners under registered sale deed dated 22/12/1994?
2. Whether plaintiffs prove that defendants No.1 to 4 are illegally causing obstruction to their peaceful possession and enjoyment of suit property?
3. Whether defendant No.2 prove that the sale deed dated 22/12/1994 alleged to be executed in favour of plaintiffs is not binding on the defendants?13
4. Whether plaintiffs are entitled for the reliefs sought for?
5. What order or decree?
14. In order to prove the case of the plaintiffs, 2nd plaintiff got himself examined as P.W.1 and got marked Ex.P.1 to Ex.P.25 documents. The 2nd defendant got himself examined as D.W.1 and got marked Ex.D.1 to Ex.D.11 documents.
15. After hearing the arguments, the Trial Court answered issue Nos.1, 2 and 4 in the negative and issue No.3 in the affirmative and finally dismissed the suit of the plaintiffs. Being aggrieved by the said judgment, the plaintiffs are before this Court in this appeal.
16. The learned counsel for the appellants has contended that the Trial Court committed an error in dismissing the suit of the plaintiffs, as the plaintiffs have purchased the suit property from defendant No.5. The said defendant No.5 purchased the suit property from the defendants No.1 to 3, who are the legal heirs of the original grantee. The Ex.P.1 is the sale deed dated 22.12.1994. Previously the husband of the defendant No.1 was Archaka of 14 the Temple, who was cultivating the land. Thereafter, he has filed an application for grant of land, which was granted in the year 1982. Subsequently, there was some litigation between the husband of the defendant No.1 and 3rd parties in the Revenue Court, which was settled. Subsequently, the re-grant was made in favour of the defendants No.1 to 3, by that time, they have already sold the property. Therefore, the sale deed executed by them has been confirmed and the right of property which was also transferred in the name of the plaintiffs. The documents of the property of the plaintiffs was not properly appreciated by the Trial Court.
17. It is submitted that subsequent to the judgment, the KIADB acquired the portion of the suit schedule property for Metro Rail Project and compensation has been granted. The plaintiffs have filed the suit in O.S.No.4794/2017 and the plaintiffs were obtained an injunction against the KIADB not to disburse the compensation. In the said suit, there was settlement between the plaintiffs and the defendants and compromise was held. In the said compromise the defendants No.1 to 3 agreed to pay Rs.2.25 crores to the plaintiffs. The plaintiffs agreed to terms of compromise and they have to 15 withdraw the present appeal. This fact clearly goes to show that the plaintiffs were the owners of the property. But the cheque issued by the defendants has been dishonoured. An amount of Rs.75 lakhs received and Rs.1.5 crores not paid by the defendants. Hence, a execution petition is also filed, which is pending. It is also agreed by the parties that the compensation amount shall be received by the defendants and in turn they should paid to the plaintiffs, if failure of the terms of the compromise, the defendants No.3 to 5 re-deposit the compensation to the KIADB. Therefore, it is contended that in view of the subsequent to the suit, the appeal deserves to be allowed.
18. The learned counsel has filed I.A. under Order VII Rule 3 of CPC for production of additional documents. The appellants' counsel also produced order sheet in O.S.No.4794/2017, the copy of the compromise application under Order XXIII Rule 3 of CPC, the copy of the plaint in the said suit, copy of the amended plaint in the said suit and copy of the injunction application in the said suit.
19. Per contra, the learned counsel respondents has supported the judgment and findings given by the Trial Court 16 and contended that the plaintiffs have purchased the property from defendant No.5. He was not been examined before the Court to support the case of the plaintiffs. There was revenue proceedings between defendants father and one Muniswamappa. The property stood in the name of the father of the defendant No.2. Subsequently, the Special Deputy Commissioner passed an order for setting aside the same. In the writ petition, the High Court has passed the order restoring the order of the defendants' father. The revenue proceedings were continued for long time and concluded. It is further contended that the defendant No.2 said to be sold the property to the defendant No.5, but the very defendant No.5, executed GPA in favour of the defendants No.1 to 3. Such being the case, the question of transferring the right over the property to the plaintiffs does not arises. The counsel for the respondents has also contended the plaintiffs had claimed right over the property as per Section 43 of the Transfer of Property Act, but there is no such pleadings and there is no evidence. There is inordinate delay in filing the suit for seeking declaration as the defendant No.4 denied the right of the property in the year 2001 itself, but the suit was filed in the year 2006, after 05 years. Therefore, the suit is barred by 17 limitation. Though, no issues has been framed by the Trial Court, but the question of law can be consider by the Appellate Court even without any pleadings. Therefore, it is seriously contended that the suit is barred by limitation.
20. The learned counsel further filed an objection to I.A. contending that the property mentioned in the documents produced by the appellants is altogether different from the documents produced by the defendants. The appellants have already filed execution petition before the Civil Court which is pending. Therefore, the compromise was not materialized and acted upon. Therefore, the compromise decree obtained by the plaintiffs cannot be considered in this appeal. Hence, prayed for dismissing the I.A.No.1/2025 and the appeal.
21. Having heard the arguments, perused the records, the points that arises for my consideration are:-
1. Whether the appellants prove that they are in actual possession of the suit schedule property as per sale deed dated
22.12.1994.?
2. Whether the said sale deed is binding on the defendant No.2.?
3. Whether the appellants made out sufficient cause for production of additional 18 documents, which can be relied upon in this appeal.?
4. Whether the judgment of the Trial Court call for any interference.?
22. On perusal of the records, the plaintiffs case is that they have purchased the suit property from the defendant No.5 under the sale deed dated 22.12.1994, whereas the said defendant No.5 has purchased the said property from the defendants No.1 to 3. It is also contended that the suit schedule property in Sy.No.109 which is Inam Land granted in favour of the father of the defendant No.2 and husband of defendant No.1. It is contended that the land was under
cultivation of one Nagappa, where an occupancy right has been granted, which was attained finality. After death of the Nagappa, his legal heirs sold the property to the defendant No.5. It is also contended that there was various disputes between Nagappa and one Thoresalappa and others claming the tenancy right and later it was confirmed in favour of the defendants No.1 to 3 as per the revenue proceedings.
23. To support the case, the plaintiff No.2 examined as PW.1 and got marked 25 documents as per Ex.P.1 to Ex.P.25. 19 On behalf of defendants the defendant No.2 examined as DW.1 and got marked 11 documents as per Ex.D.1 to Ex.D.11.
24. The defendants contention is that they have not sold the property to the plaintiffs. The plaintiffs claims property through defendant No.5, whereas the defendant No.5 said to have given GPA to defendants No.1 to 3 and at the time of executing the sale deed in favour of the defendant No.5. The defendants are not owners of the property and no title transferred from defendants No.1 to 3 to defendants No.5, in order to transfer the same to the plaintiffs. In support of his case, the DW.1 has given evidence and got marked various documents. It is also contended that there was revenue proceedings between the father of defendant No.2 and one Thoresalappa. The name of the Thoresalappa has been entered in Sy.No.109, who said to be claimed as tenancy right.
25. The Ex.D.3 is the order passed by the Special Deputy Commissioner dated 04.02.2004 wherein the Thoresalappa filed an application for seeking registration occupancy right in respect of Sy.No.109 and other lands, where the father of defendant No.2 - Gopalappa was the defendant No.2. The order refers as per the direction of the 20 High Court W.P.No.20803/1993 dated 09.12.1998, the application was taken up. The High Court allowed the petition filed by the Thoresalappa to consider the application filed by the Thoresalappa regarding granting of occupancy right. Another batch of petition was filed in W.P.No.35397/2001 dated 26.07.2002. The Coordinate Bench of this Court quashed the order passed by the Special Deputy Commissioner. The said documents are Ex.D.1 and Ex.D.2. The Ex.D.3 is the order passed by the Special Deputy Commissioner, dismissing the application filed by the said Thoresalappa.
26. The Ex.D.4 is the appeal filed before the KAT by the father of the defendant No.2 - Gopalappa in Appeal No.466/2004, which has been dismissed on 11.04.2005. The Ex.D.4 is the order passed by the Assistant Commissioner which reveals that as on 11.04.2005, the name of the defendant No.2's father was not mutated in respect of Sy.No.109.
27. The said order has been challenged before the High Court in W.P.No.15360/2005 vide order dated 05.07.2005, the writ petition was dismissed as per Ex.D.5.
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28. The Ex.D.6 is the application filed by the Thoresalappa in INACR.No.1999-2000 for impleading application which came to be dismissed.
29. The Ex.D.7 is an order for impleading application in the proceedings before the Special Deputy Commissioner in respect of Sy.No.109. The said application came to be rejected.
30. The Ex.D.8 is another applications filed by other persons for impleading in the proceedings before the Deputy Commissioner, which was finalized by the Special Deputy Commissioner on 05.09.2005, by granting 1/3rd share to the Gopalappa.
31. The Ex.D.9 is the order in MFA.No.7983/2008 c/w MFA.No.7982/2008 dated 08.09.2009 filed by one Smt. Veeramma Gudivada against the defendants No.1 to 3 and various site owners. As per this document there are various owners for the respective sites formed in the layout and an injunction has been denied in O.S.No.740/2007 in respect of the said land.
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32. The Exs.D.10 and 11 are the RTC standing in the name of defendant for the year 2010-2011.
33. On perusal of these documents, the property in question the defendants / respondents No.1 to 4, as on the date of claiming the right over the property by the plaintiffs. Under the sale deed dated 22.12.1994, the defendants were not at all owner of the property and no right, title and interest derived from the vendors of the plaintiffs, wherein the defendant No.5 sold the suit schedule property under Ex.P.1. The remaining Exs.P.2 to 15 are the subsequent documents based upon the sale deeds. The Ex.P.16 is the revenue proceedings held between Thoresalappa and others. The order of the Land Tribunal dated 30.04.1982 granted in favour of Nagappa, the father of the defendant No.2. The Land Tribunal confirmed the occupancy right in favour Nagappa and his mother in respect of Sy.No.109 measuring 07 acres 21 guntas. The Ex.P.18 is the same documents produced by the defendants. The Ex.P.21 the GPA executed by the defendant No.5 in favour of the defendant No.2 in respect of site No.19 which is measuring east - west 100 feet and north - south 100 feet. According to the plaintiffs, the suit schedule property 23 has been purchased from the defendant No.5 under Ex.P.1, whereas the Ex.P.21 reveals that the very defendant No.5 executed GPA to the defendant No.2, which is a registered GPA. The Ex.P.22 which is copy of the legal notice issued to the Sub-Registrar not to Register any documents. The Ex.P.23, 24 and 25 are the paper publication in respect of 03 acres of land in Sy.No.109. The Ex.P.25 is the reply to the legal notice issued in respect of the various sites in the land Sy.No.109.
34. On perusal of these documents and evidence on record goes to show that it is the case of the plaintiffs that the plaintiffs derived title from defendant No.5 under Ex.P.1, whereas Ex.P.21 is contrary to the sale deed where as defendant No.5 has already executed GPA in favour of the defendant No.2 and the said GPA has not been cancelled by the defendant No.5. The defendant No.5 never entered into witness box and supported the case of the plaintiffs. The defendants' family already sold the property by forming sites to various persons and the he also sold the property to various persons and defendant No.4 also filed a suit for injunction and obtained the injunction order in respect of said property by 24 filing suit in O.S.No.16715/2001. According to the evidence, in the cross-examination of the DW.1 which reveals that the said property was already in dispute, where the defendant No.4 claims right over the property in the year 2001 itself.
35. Such being the case, the plaintiffs are having knowledge in respect of claiming right over the property by the defendants. The plaintiffs ought to have file the suit within 03 years as per Section 58 of the Limitation Act, but the suit was barred by limitation, as it was filed after 05 years after filing of suit by defendant No.4 who was claiming right over the property under the sale deed. The said deed was not challenged by the plaintiffs, within the limitation.
36. Though, there was no pleadings and issues in the Trial Court regarding limitation, but it is well settled principles by the Hon'ble Supreme Court that the limitation is a question of law and even if it is raised by the party, the Court required to consider the same and it can be raised in the appeal as per the judgment of the Hon'ble Supreme Court in the case of State of Gujarat vs. Kothari and associates reported in (2016) 14 SCC 761.
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37. In another case, the Coordinate Bench of this Court in the case of Dada Jinnappa Khot vs. Shivalingappa Ganapati Bellanki, reported in 1989 (1) KAR LJ 377, has held that the right to sue accrues for declaration of title is 03 years as per Article 58 of the Limitation Act.
38. Another judgment relied by respondent in the case Khatri Hotels Private Limited vs. Union of India and another, reported in (2011) 9 SCC 126, the Hon'ble Supreme Court has held that 03 years limitation prescribed for filing the suit from the date of right to sue accrues for first time.
39. Another judgment in the case of Padhiyar Prahladji Chenaji (Rep. by LR's) vs. Maniben Jagmalbhai (Rep. by LR's and Others, reported in (2022 ) 12 SCC 128, wherein the Hon'ble Supreme Court has held that no permanent injunction granted against true owner or title owner.
40. In view of the principles laid by the Hon'ble Supreme Court, if the suit is filed after 05 years after the right of sue accrues for the plaintiffs as per suit O.S.No.16715/2001, the suit filing in 2006 is utterly barred by limitation.
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41. As regards to the claiming right over the property, as on the date of executing sale deed Ex.P.1, the defendant No.5 do not get any right over the property as he himself was not the owner of the property and defendants No.1 to 3 also litigated the case before the revenue proceeding up to High Court and it was granted occupancy right only in the year 2002 and the litigation went up to 2005 as per Ex.D.8.
42. Such being the case, the question of getting any right over the property by the plaintiffs under Ex.P.1 does not arises. The contention of the plaintiffs is that as per Section 43 of Transfer of Property Act, the plaintiffs derived the title after that the defendants No.1 to 3 become the owner of the property is not acceptable as there is no pleadings in the suit and also no evidence in this regard. Therefore, it cannot be said that the plaintiffs is in lawful possession and owner of the property as on the date of filing of the suit.
43. As regards to I.A. filed by the appellants regarding the compromise held between the plaintiffs and the defendants No.1 to 3 in O.S.No.4794/2017 where the KIADB acquired the portion of the land for metro rail project and awarded compensation. Therefore, the plaintiffs have filed the suit against the KIADB and the defendants No.1 to 3, directing the 27 KIADB not to release the compensation. In the said suit, there was compromise entered between the party on 03.11.2017 wherein the defendants No.3 to 5 in the said suit and the plaintiffs were entered into agreement wherein the plaintiffs have no objection to receiving the compensation from the KIADB and in turn the defendants No.3 to 5 i.e., defendants No.1 to 3 herein to pay paid Rs.2.25 crores by way of 04 cheques for Rs.1 crore 50 lakhs and Rs.25 lakhs each for 03 cheques and after receiving the said amount the plaintiffs shall execute the sale deed in favour of the defendants No.3 to 5. Therefore, it is contended that the plaintiffs become owners of the property and the defendants accepted that the plaintiffs as the owners of the property.
44. But the said compromise decree was not acted upon where the defendant said to be not paid the consideration amount of Rs.2.25 crores and the plaintiffs have filed the execution case before the Civil Court for directing the defendants to re-deposit the compensation to the KIADB and the said execution case is still pending.
45. On perusal of these documents, there is no reference about the present suit schedule property, though it 28 is referred in the plaint about the pending of this appeal and withdrawing this appeal by the appellants, but the compromise was not acted upon and the appellants have not withdrawing this appeal and argued the matter. Such being the case, the additional documents produced by the appellants are not useful to the appellants' case and it will not confer any right over the property to the plaintiffs and the compromise was not attained the finality and the KIADB said to be acquired the property for Metro Rail Project, the name of the defendants is shown as Khatedars and compensation was awarded to the defendants where the plaintiffs filed the suit and obtained the directions.
46. Such being the case, it cannot be said that the plaintiffs are having right, title and possession of the property as on the date of filing of the suit. If the plaintiffs were the owners of the property, the KIADB could have the owners of the property. Therefore, this Court is of the opinion that the plaintiffs have failed to prove the lawful possession and enjoyment of the suit property by way of absolute ownership under Ex.P.1.
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47. On the other hand, the sale deed executed by the defendant No.5 under Ex.P.1 in favour of the plaintiffs dated 22.12.1994 is not binding on the defendants No.1 to 4. Therefore, the plaintiffs failed to establish their case. Even in the cross-examination nothing elicited form the mouth of the DW.1. By considering the evidence on record, the Trial Court rightly dismissed the suit of the plaintiffs, which do not call for interference by this Court. Accordingly, I pass the following;
ORDER IA under order VII Rule 3 of CPC, filed by the appellants is dismissed. Consequently the appeal filed by the appellants is hereby dismissed.
Sd/-
(K.NATARAJAN) JUDGE CS/KJJ CT:SI