Karnataka High Court
Shekharappa S/O Late Hanumangouda vs Smt. Soogamma W/O Mallikarjunappa & Ors on 27 March, 2017
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 27TH DAY OF MARCH 2017
BEFORE
THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA
REGULAR SECOND APPEAL No.7370/2013
BETWEEN:
Shekharappa S/o Late Hanumangouda
Age 64 years, Occ. Agriculture,
R/o Malladagudda Village, Tq : Manvi
Dist : Raichur.
...Appellant
(By Sri.S.G.Math, Advocate)
AND:
1. Smt.Soogamma W/o Mallikarjunappa,
Age 76 years, Occ. Agriculture,
R/o Hirekotnekal Village,
Tq: Manvi, Dist : Raichur - 584 101
2. Smt.Hampamma W/o Late Hanumanthray
Age 67 years, Occ. Agriculture & Household,
3. Prabhurai S/o Late Hanumanagouda
Age 57 years, Occ. Agriculture
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4. Ramangouda S/o Late Hanamnagouda
Age 54 years, Occ. Agriculture
5. Reddeppa S/o Late Hanamanagouda
Age 51 years, Occ Agriculture
6. Sadananda S/o Late Hanamanagouda
Age 47 years, Occ. Agriculture
The respondents No.2 to 6 are
R/o Malladagudda Village,
Tq : Manvi, Dist : Raichur - 584 101.
...Respondents
This Regular Second Appeal is filed under
Section 100 of CPC against the judgment and decree
dated 02.03.2010 passed in R.A.No.16/2009 on the file
of Additional District Judge at Raichur, dismissing the
appeal and confirming the judgment and decree dated
10.12.2008 passed in O.S.No.264/2004 on the file of
Principal Civil Judge (Sr.Dn) at Raichur.
This appeal coming on for orders this day, Court
delivered the following:
JUDGMENT
Though there is a delay of 1200 days in filing the appeal, I nevertheless, heard learned counsel appearing for appellant on the merits of the matter. 3
2. This second appeal is filed by plaintiff No.2 in O.S.No.264/2004, assailing judgment and decree passed by Additional District Judge at Raichur dated 02.03.2010 in R.A.No.16/2009 by which, the judgment and decree passed by Principal Civil Judge (Sr.Dn.) at Raichur dated 10.12.2008 in O.S.No.264/2004 has been confirmed. At this stage, it could be noted that though there were six plaintiffs who filed the regular appeal, this second appeal has been filed by only the second plaintiff.
3. For the sake of convenience the parties shall be referred to, in terms of their status before the trial court.
4. The plaintiffs filed the suit seeking the relief of declaration that they are the owners in possession of land bearing Sy.No.302/A measuring 14 acres 20 guntas of Hire-Kotnekal Village, Manvi Taluk, Raichur District and for observation that the registered 4 sale-deed bearing document No.918/81-82 dated 10.06.1981 is null and void and not binding on the plaintiffs. According to the plaintiffs, aforesaid suit property previously belonged to one Hanamanagouda S/o Gundappa and he had six sons, one of whom was the husband of plaintiff No.1 namely Hanumantharaya. That Hanamanagouda died leaving behind his six sons as his heirs and after his death the suit schedule property was mutated nominally in the name of husband of plaintiff No.1 namely Hanumantharaya as he was eldest member of the joint family vide Mutation No.212 dated 10.02.1981. It is stated that Hanumantharaya's name appeared in the record of rights from the year 1988-89 upto the year 2002-2003. That husband of plaintiff No.1 and other plaintiffs were in joint possession and enjoyment of the suit schedule property. That husband of plaintiff No.1 died on 23.01.2004. Plaintiffs made an application before Tahasildar, Manvi Taluk for entering their names jointly 5 in the records of rights. The defendant filed objection to the said application stating that she has purchased the property from the deceased Hanumantharaya, husband of plaintiff No.1 and father of other plaintiffs under registered sale-deed dated 10.06.1981 and that the mutation proceedings were held up. According to the plaintiffs there was no necessity for Hanumantharaya to sell the suit land to the defendant. That he had not disclosed that he had sold the said land to defendant during his lifetime. That plaintiffs only were in possession of the said land. That only on 30.11.2004 when defendant came near the suit land and denied plaintiffs title over the land by contending that she has purchased the same from Hanumantharaya, the plaintiffs became aware of the said fact. Hence, plaintiffs filed the suit seeking the aforesaid reliefs.
5. In response to the suit summons and court notices the defendant appeared through counsel and filed her written statement denying the averments made 6 in the plaint and contending that the suit is not maintainable as it is barred by the law of limitation and the plaintiffs are not entitled for relief of injunction as the defendant is in possession of suit property. That plaintiffs have not sought for cancellation of sale-deed executed by husband of plaintiff No.1 infavour of defendant and they have only sought for declaration which is not maintainable. That while denying the other averments made in the plaint, defendant contended that Hanumantharay had sold the suit land in favour of the defendant under a registered sale-deed dated 10.06.1981 vide document No.918/81-82 for a valuable consideration and since then, she is in possession and enjoyment of the suit land as it is owned by her. That she is a bonafide purchaser and that the plaintiffs knew that suit land was sold by Hanumanthray in favour of plaintiffs. That the plaintiffs made an application to the Tahasildar, Manavi Taluk for entering their names in the records of rights. On the demise of Hanumantharay 7 the Tahasildar has rightly rejected the said application and mutated the name of defendant in the record of rights. That the defendant denied that Hanumantharay had no legal necessity to sell the property and it is contended that the plaintiffs had full knowledge about the sale of said property to defendant. That plaintiff No.2 - Shekharappa also known as Rajashekara has attested the sale-deed. That despite having knowledge about the sale made in favour of defendant, plaintiffs have filed a false suit without being there any cause of action. Therefore, defendant sought for dismissal of suit.
6. On the basis of the rival pleadings of the parties, the trial court framed the following issues ;
1. Whether the plaintiffs prove that, they are lawful owners of the suit schedule properties ?
2. Whether the plaintiffs prove that they are in joint possession of the suit properties ?
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3. Whether the plaintiffs prove that the sale-deed executed by the Hanumantharaya i.e., husband of plaintiff No.1 in favour of the defendant on 10.06.1981 is null and void and it is not binding on the plaintiffs and it was not for any family or legal necessity and it is false and baseless and concocted document ?
4. Whether the plaintiffs prove the alleged interference and obstruction by the defendant ?
5. Whether the plaintiffs are entitled to the relief of declaration and injunction?
6. What decree or order ?
Addl. Issue No.1
1. Whether the defendant proves that the suit of the plaintiff is barred by limitation ?
7. In support of their case plaintiffs examined three witnesses and produced 28 documents, which were marked as Ex.P.1 to Ex.P.28. While defendant examined two witnesses and produced nine documents which were marked as Ex.D1 to Ex.D9. On the basis of the said evidence, trial court answered all the issues in 9 the negative and Addl. Issue No.1 in the affirmative and dismissed the suit by judgment dated 10.12.2008.
8. Being aggrieved by the dismissal of suit, the plaintiffs preferred R.A.No.16/2009 before the first Appellate Court which, on hearing the learned counsel appearing for parties framed the following points for its consideration :
1. Whether the plaintiffs prove their title over the suit land as on the date of suit ?
2. Whether they further prove they joint owners and possessors of the suit land as pleaded ?
3. Whether the plaintiffs prove the sale-
deed dated 10.06.1981 is executed by Hanumanthraya - husband of plaintiff No.1 is void, baseless and concocted document ?
4. Whether the finding of the trial court requires interference ?
5. What order ?
The first appellate court answered points No.1 to 4 in the negative and dismissed the appeal. As already noted 10 being aggrieved by the dismissal of the appeal second plaintiff only has preferred this second appeal.
9. I have heard learned counsel appearing for appellant and perused the material on record.
10. Learned counsel for the appellant contended that the courts below were not right in dismissing the suit as being barred by law. Though the alleged sale-
deed is of the year 1981, it is only when Hanumantharaya, who is alleged to have executed the sale-deed died in the year 2004 i.e., 23.01.2004, to be precise, that the plaintiffs became aware of the sale in favour of defendant when the plaintiffs sought entry of their names in the revenue records. Immediately, thereafter, the plaintiffs have preferred the suit in the year 2004. The suit is filed in time when the cause of action arose to the plaintiffs' i.e., when they came to know about the sale made by Hanumantharaya in favour of defendant. He contended that the trial court 11 ought to have answered Additional Issue No.1 in the negative and decreed the suit by answering the other issues in the affirmative. He submitted that the suit schedule property was the joint family property and that Hanumantharaya could not have unilaterally sold the suit schedule property in favour of defendant. Plaintiff therefore sought appropriate reliefs and hence the courts below ought to have decreed the suit.
11. Learned counsel further contended that although first appellate court raised certain points for consideration it answered those points in the negative without appreciating the evidence on record. That the first appellate court was not right in dismissing the appeal.
12. Learned counsel further submitted that this second appeal give rise to substantial questions of law and therefore same be admitted for a detailed hearing. 12
13. Having heard the learned counsel appearing for appellant and on perusal of material on record it is noted that the appellant and other plaintiffs have filed the suit seeking the relief of declaration that they are the owners in possession of suit schedule property and for declaration that the sale-deed is null and void. At this juncture it could be noted that the plaintiffs have not sought for cancellation of the sale-deed standing in the name of defendant. The main question which arises in this appeal is as to whether the courts below were right in holding that the suit filed by plaintiffs was barred in law and therefore no relief could be granted to the plaintiffs having regard to the belated suit filed by them. It is already noted that the sale-deed is dated 10.06.1981 and was executed by Hanumantharaya in favour of defendant. The defendant has produced certified copy of sale-deed Ex.D1. The plaintiffs have also produced said document at Ex.P.17. When the sale was made in the year 1981 any action to be taken on 13 the basis of the said sale-deed ought to have been taken three years from the date of registration of the sale, which would have been three years from 10.06.1981, having regard to Article 58 of the Limitation Act, 1963. The limitation period prescribed is three years to obtain any declaration and the said three years would commence when the right to sue first accrues. In the instant case, the plaintiffs being aggrieved by the sale made by Hanumantharaya in favour of defendant on 10.06.1981 which is a registered instrument, ought to have sued within three years from that date. Registration of a transaction which is sale in the instant case is notice to the entire world. Therefore, the plaintiffs had constructive notice of the said sale even in the year 1981. As far as the appellant herein is concerned it is come in the judgment and decree of the trial court that he was one of the attesting witness of the sale-deed in favour of defendant. Therefore, he had actual notice of the sale and therefore he was well aware 14 and had knowledge about the transaction made by his father in favour of defendant. Merely because the father died in the year 2004 the cause of action did not accrue to the plaintiffs after his death. In fact they had no right to get their names entered in the revenue records after the death of Hanumantharaya when he had way back in the year 1981 sold the suit schedule property in favour of defendant. The husband of plaintiff no.1 and father of plaintiffs No.2 to 6 had lost their right, title and interest in the suit schedule property, in the year 1981 itself when the sale was made by Hanumantharaya in favour of defendant. In fact if at all the plaintiffs had any right, title and interest in the suit schedule property the same also was extinguished on account of sale made in favour of defendant in the year 1981. In order to assail that sale the plaintiffs ought to have filed the suit in time, the same not having been done the suit filed in the year 2004 was highly belated. The courts below were therefore justified in dismissing the suit as barred by 15 limitation by answering Additional Issue No.1 in favour of defendant. In view of the same, the other issues would pale into insignificance. In the circumstances, I do not find any infirmity in the judgments of the courts below. There is no substantial question of law, which would arise in this appeal. Hence, appeal is dismissed.
In view of dismissal of appeal, I.A.No.1/2013 filed for condonation of 1200 days in filing the appeal also stands dismissed.
Sd/-
JUDGE sn