Karnataka High Court
Shivakumar H B vs Sri L C Hanumanthappa on 5 March, 2015
Equivalent citations: AIR 2015 KARNATAKA 83, 2015 (2) AIR KANT HCR 354, (2015) 3 ICC 406, (2015) 2 KCCR 1714
Author: Anand Byrareddy
Bench: Anand Byrareddy
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®
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 05TH DAY OF MARCH 2015
BEFORE:
THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY
REGULAR FIRST APPEAL No.796 OF 2009
BETWEEN:
H.B. Shivakumar,
Son of H.C.Basavaraju,
Aged about 52 years,
Vijaya Building Materials,
No.41/1, Bull Temple Road,
Bangalore - 560 004.
... APPELLANT
(By Shri. Aditya Sondhi, Senior Advocate for
Shri. K. Suryanarayana Rao, Advocate)
AND:
Sri.L.C.Hanumanthappa,
Since deceased by his
Legal Representatives
1. Smt. Laxmidevamma,
Wife of Late L.C.Hanumanthappa,
Aged about 70 years,
2. Sri. Srinivas,
2
Son of Late L.C.Hanumanthappa,
Aged about 35 years,
Both are residing at
Achammanahalli,
Y.N.Hoskote Hobli,
Pavgada Taluk,
Tumkur District 561 202.
...RESPONDENTS
(By Shri. Vivek Reddy, Senior Advocate for Shri. Y. Hariprasad,
Advocate for Respondent Nos.1 and 2)
*****
This Regular First Appeal filed under Section 96 of the Code
of Civil Procedure, 1908, against the judgment and decree dated
16.4.2009 passed in O.S.No.1386/1990 on the file of the XV
Additional City Civil Judge, Bangalore City, decreeing the suit for
declaration and permanent injunction.
This Regular First Appeal having been heard and reserved on
04.02.2015 and coming on for pronouncement of Judgment this day,
the Court delivered the following:-
JUDGMENT
Heard Shri Aditya B Sondhi, learned Senior Advocate appearing for the Counsel for the appellant and Shri Vivek Reddy, learned Senior Advocate appearing for the Counsel for the respondents.
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2. This is an appeal by the defendant.
3. The parties are referred to by their rank before the trial court for the sake of convenience.
4. It was the case of the plaintiffs that the original plaintiff was the absolute owner of the suit schedule property, a building on site bearing No.12/2, Old Site No.13, formed in land bearing Survey No.73, New Guddadahalli, Kempapura Agrahara, now called as Kuvempunagara, I Main Road, B Street, Corporation Division No.33, Bangalore, measuring east to west 30 feet and South to north 60 feet. The plaintiff is said to have purchased the same under a registered sale deed dated 5.5.1956 from one Shri N.Anjanee Rao Sindhe. It was claimed that at the time of purchase of the suit schedule property, the western boundary was a house site bearing No.14, but however, subsequently, the same had been converted into a road and was being used as such since several years. The property bearing Site No.12, which belonged to one H.Venkataramanappa was on the eastern side of the suit schedule property, which was sold to one Ahamadulla Khan and Ahamadulla 4 Khan had constructed a building on the said site. Beyond the road on the western side of the suit schedule property, there was property bearing No.15, which belonged to one Navarathanmal . On the northern side of the suit schedule property, there was a main road and towards south, there was a conservancy lane. The plaintiff claimed that he was the absolute owner of the suit schedule property and that he was paying taxes to the Bruhat Bengaluru Mahanagara Palike (BBMP).
It is further claimed by the plaintiff that the defendant had no right or interest over any portion of the suit schedule property and since the defendant had sought to interfere with the property, the present suit was filed.
The defendant, on his appearance, had filed written statement denying the claim of the plaintiff. It was contended that the address of the plaintiff mentioned in the cause title of the suit was not correct and that the plaintiff was a permanent resident of Achamanahalli, Y.N.Hosakote Hobli, Pavagada Taluk, Tumkur District. The defendant had admitted the execution of the sale 5 deed dated 5.5.1956 in favour of the plaintiff by one N.Anjanee Rao Sindhe in respect of a site bearing No.13. The boundaries in respect of site no.13 were alleged to be incorrect and misleading. The defendant had further denied that at the time of purchase of the property, the western boundary was a site bearing no.14 and subsequently a portion of the said site was converted into a road and was being used as such over the years. The claim that on the eastern side of the suit schedule property, there was site bearing no.12, which belonged to one H.Venkataramanappa, and the same was sold to one Ahmadulla Khan and that he had constructed a building thereon, was denied.
It was further contended that the plaintiff and his brother had attempted to trespass into site no.15 of New Guddadahalli, which was in the possession of the plaintiff prior to the filing of the suit and therefore, the defendant had filed a suit in O.S.No.1650/1990 against the plaintiff and his brother one N.C.Ramaiah and there was an order of temporary injunction in favour of the defendant. It was the case of the defendant that the plaintiff had obtained an order of 6 status-quo in the said suit by furnishing false boundaries in respect of the suit property therein, and hence the present suit for permanent injunction was not maintainable.
The trial court based on the pleadings of the parties, has framed the following issues:-
"1. Does the plaintiff prove lawful possession of the suit property?
2. Does the plaintiff prove interference by the defendant?
3. Whether the plaintiff is entitled for the permanent injunction?
Additional Issues:
1. Whether plaintiff proves he is entitled for declaration that he is owner of suit schedule property?
2. Whether defendant proves that suit is barred by limitation?"
5. A common judgment was rendered in both the suits. The trial court while decreeing the suit in O.S.No.1650/1990 for permanent injunction, had dismissed the suit in O.S.No.1386/1990. 7 Being aggrieved by the judgment in O.S.No.1650/1990, the plaintiff had filed an appeal before this court in RFA 415/1999 against the dismissal of the suit and had also filed an appeal in RFA 456/1999 as against the decree in favour of the defendant. This court, by a common judgment, had allowed the appeal and set aside the judgment and decree passed in O.S.No.1386/1990 and remanded the matter for a fresh consideration as the appellant's application for amendment, seeking the additional relief of declaration of title was allowed by this Court. It was observed that the judgment and decree passed in O.S.1650/1990, which was the subject matter of the appeal in RFA 456/1999, was confirmed since it was only a suit for bare injunction, it was hence observed that the judgment and decree passed in O.S.1650/1990 would be subject to the result of the judgment in O.S.1386/1990.
After the remand, the plaint was said to have been amended and the plaintiff is said to have examined two witnesses and had got marked 13 additional exhibits.
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The defendant, who was the plaintiff in O.S.No.1650/1990 did not choose to lead any further evidence.
The trial court, on hearing the counsel for the parties, had decreed the suit in O.S.No.1386/1990 with costs. It was declared that the deceased plaintiff Hanumantappa and his legal representatives were the owners of the suit schedule property and the defendant was restrained from interfering with the suit schedule property. Hence the present appeal.
6. It is contended by Shri Sondhi, that the suit of the plaintiff ought to fail on the ground of limitation alone. It is pointed out that the suit in OS 1386/1990 was instituted on 9.3.1990. The present appellant -defendant had filed written statement denying the title and claim of the plaintiff, on 16.5.1990. Hence the period of limitation for the plaintiff to seek the relief of a declaration of title would have expired on 15.5.1993. This court having allowed an application for amendment of the plaint seeking the relief of declaration as on 28.3.2002, the plaintiff is said to have filed an amended plaint as on 24.7.2002. It is hence contended that the trial 9 court had erred in coming to a conclusion that such relief of declaration of title was not barred by limitation. It is pointed out that this court had, while allowing the amendment of the plaint to seek such additional relief of declaration of title, had specifically reserved liberty to the present appellant to raise the defence of limitation, which was said to have been urged and an additional issue was framed in this regard which has been wrongly decided.
Elaborating further, attention is drawn to Article 58 in Part III of the Schedule to the Limitation Act, 1963 (Hereinafter called the '1963 Act', for brevity) which reads as follows :
Description of Suit Period of Limitation Time from which period begins to run
58. To obtain any Three years When the right to other declaration sue first accrues It is pointed out that the Supreme Court in the case of Khatri Hotels Pvt. Ltd. v. Union of India, (2011) 9 SCC 126, had occasion to examine the marked difference between the corresponding provisions of the 1963 Act and the Indian Limitation 10 Act, 1908 (Hereinafter called the '1908 Act ', for brevity) and has held thus:
"27. While enacting Article 58 of the 1963 Act, the legislature has designedly made a departure from the language of Article 120 of the 1908 Act. The word 'first; has been used between the words 'sue' and 'accrued'. This would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. To put it differently, successive violation of the right will not give rise to fresh cause and the suit will be liable to be dismissed if it is beyond the period of limitation counted from the day when the right to sue first accrued."
(emphasis supplied).
The Supreme Court in the said judgment referred to Sections 3 -24 of the Limitation Act and observed that the Act prescribes time limit for all conceivable suits, appeals etc. Section 2 of that Act defines the expression "period of limitation" to mean the period of 11 limitation prescribed in the Schedule for a suit, appeal or application. Section 3 lays down that every suit instituted, appeal preferred or application made after the prescribed period shall, subject to the provisions of Sections 4 to 24 be dismissed even though limitation may not have been set up as a defence. If a suit is not covered by any specific article, then it would fall within the residuary article. In other words, the residuary article is applicable to every kind of suit not otherwise provided for in the Schedule.
The Supreme Court had also held that the cause of action to sue for declaration first accrued when the written statement was filed in the said dispute. Paragraph-31 reads as follows:
"31. In the light of the above, it is to be seen as to when the right to sue first accrued to the appellants. They have not controverted the fact that in the written statement filed on behalf of the DDA in Suit No.2576 of 1990 - Lal Chand vs. MCD and another, it was clearly averred that the suit land belonged to Gaon Sabha and with the urbanization of the rural areas of village Kishangarh vide notification 12 dated 28.5.1966 issued under Section 507 of the DMC Act, the same automatically vested in the Central Government and that vide notification dated 20.8.1974 issued under Section 22 of the DD Act, the Central Government transferred the suit land to the DDA for development and maintaining as green. This shows that the right, if any, of the appellants over the suit land stood violated with the issue of notification under Section 507 of the DMC Act and, in any case, with the issue of notification under Section 22 of the DD Act. Even if the appellants were to plead ignorance about the two notifications, it is impossible to believe that they did not know about the violation of their so-called right over the suit land despite the receipt of copy of the written statement filed on behalf of the DDA in December, 1990. Therefore, the cause of action will be deemed to have accrued to the appellants in December 1990, and the suit filed on 14.2.2000 was clearly barred by time."13
The right to sue for declaration in the present case first accrued on 16.5.1990, when the appellant herein denied the title of the respondent in the written statement filed. The amendment seeking declaration was made only in 2002, nearly 10 years after the right to sue first accrued.
It is hence contended that the trial court failed to consider that the suit was barred by limitation, and that the amendment did not give rise to a fresh cause of action especially when the question was expressly kept open by this court vide order dated 28.3.2002 in RFA 415/1999.
Without prejudice to the above preliminary objection, it is further contended that the mis-description of the suit schedule property which is a deliberate and calculated attempt on the part of the respondent - plaintiff, to lay claim to the defendant's property as being evident from the following circumstances:
The respondent had instituted a suit in O.S.No.1386/1990 for injunction, claiming to be owner of Old site No.13, Corporation No.12/2, situated at 1st Main Road, B Street, New Guddadahalli, 14 Mysore Road, Bangalore, and claiming to have purchased the same under a registered sale deed dated 5.5.1956.
The schedule to the sale deed dated 5.5.1956 is as follows :
"All that piece and parcel of property bearing Site No.13 situated in Survey No.73, Guddadahalli, Kempapura Agrahara, Kasaba Hobli, Bangalore North, and bounded by:
East by: H.Venkataramanappa's site West by : R.Venkataramanappa's site North by: 25 feet road South by: Conservancy Road"
The suit schedule in O.S.No.1386/1990 is, however, as follows:
"All that piece and parcel of property being building site bearing Corporation No.12/2, earlier site No.13, of survey No.73, New Guddadahalli, Kempapura Agrahara, now called Kuvempunagara, I Main Road 'B' Street, Corporation Division No.33 Bangalore city and the land measuring East to West 30 feet and North to South 60 feet and bounded on the :15
East by: Building of Ahamadulla Khan bearing No.12 and earlier belonging to H.Venkataramanappa West by: Road and thereafter property/building bearing site no.15 of Sri Navarathnmal North by : 24 feet Road South by: Conservancy Road "
The explanation offered for the discrepancy in the eastern boundary is stated in Paragraph 2 of the plaint, that the site was sold by Mr.H.Venkataramanappa to Mr.Ahmedullah Khan. However, no sale deed is produced in this regard.
The appellant had filed his written statement on 16.5.1990 denying the title of the respondent and further stated that the boundaries of the suit schedule property were false and contrary to the sale deed.
It is contended that the property of the plaintiff and the property of the defendant being distinct and different is further demonstrated from the following circumstances. 16
That the appellant-defendant had instituted O.S.No.1650/1990 for injunction, against the respondents seeking injunction restraining the respondents from interfering with the peaceful possession of the suit schedule property therein. The appellant is the absolute owner of the schedule property having purchased it under a registered sale deed dated 26.11.1987.
The respondent has not sought for cancellation of the appellant's sale deed dated 26.11.1987 at any point of time.
The Suit Schedule in O.S.No.1650/1990 is as follows:
"All that piece and parcel of land together with foundation bearing Corporation Site No.15, 1st Main, A Street, Hosaguddadahalli, Mysore Road, now in division No.33, Bangalore City Corporation, formerly site No.3 in survey No.73 of Guddadahalli, Kempapura Agrahara, Bangalore North Taluk, measuring east to west 30' and north to south 60' and bounded on the, East by : Property marked as CTS No.1158 standing in the name of Rahamuthunisa wife of Budansab on the survey records West by: A Main Road (1st Main A Street) North by : Road South by: Conservancy Land "17
The Schedule in sale deed dated 26.11.1987 is as follows:
"All that piece and parcel of land together with foundation bearing Site No.15, 1st Main, A Street, Hosaguddadahalli, Mysore Road, now in division No.33, Bangalore City Corporation, formerly site No.3 in survey No.73 of Guddadahally, Kempapura Agrahara, Bangalore North Taluk, bounded by East by : Private property West by: Road North by : Road South by : Conservancy Land 10' wide left by the vendor Measuring East to West: 30 feet or 9.45 metres North to south: 60 feet or 24.69 metres Total area : 233.32 square metres."
It is further contended that the Commissioner - a First Division Surveyor of the office of the Deputy Director of Land Records, Bangalore Division has identified two distinct sites - site no.3 belonging to the appellant and site no.13 belonging to the respondent.
As per the report, the boundaries of the suit schedule property of the appellant are as follows:
"East: As ascertained by the local enquiry and with reference to the city survey records formerly the 18 property belongs to Smt.Ramathunissa wife of Buden Ahamadulla Khan. Corporation Khata No.12 which is part of the site No.3 and City Survey No. is 1158.
West : I A Main Road North : B Cross Road South: Conservancy "
The boundaries of the property of the respondent, site No.13 and CTS No.1174 are as follows:
"East: Site No.14 City Survey No.1175, the Khata stands in the name of Smt.Sarojamma, wife of D.H.Babu as per City Survey Records The present owner of this property is not ascertained.
West: Site No.12 and as per City Survey Records City Survey No.is 1173, the katha stands in the name of Smt.Malavamma wife of Hunchaiah. The present owner of this property is not ascertained.
North : B Cross Road South : Conservancy"
The fact that Mr.Buden Saheb was the eastern neighbour of the appellant is clearly established from the sale deed dated 25.1.1965 in favour of Mr.Samiuddin Sheriff, the vendor of the appellant.
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Further, the survey sketch is also produced showing different CTS numbers and Mr.Ahmedullah as the eastern neighbour having CTS 1158.
By the impugned order, the learned Trial Judge has decreed O.S.No.1386/1990 on the ground that the appellant has not denied the sale deed dated 5.5.1956 in the Written Statement. The learned Trial Judge has failed to appreciate that the appellant had repeatedly denied the title of the respondent and has expressly stated that the suit schedule property and its boundaries are false, and not in existence in the subsequent paragraphs of the written statement. It is settled law that to gather the true spirit behind any plea, it should be read as a whole and not in isolation. Further, any purported admission must be unequivocal and unconditional. (Jeevan Diesels and Electricals Limited vs. Jasbir Singh Chadha and another , (2010)6 SCC 601; Syed Dastagir vs. T.R.Gopalakirshna Setty, IAR 1999 SC 3029) It is contended that the learned Trial Judge has also disregarded the Commissioner's Report without assigning any 20 reasons. [Parappa and others vs. Bhimappa and another, ILR 2008 Kar.1840] It is also contended that the plaintiff had sought to establish his case by seeking to tender evidence through a power of attorney holder and hence the learned Trial Judge has failed to consider that a power of attorney holder cannot depose in place of the principal. Sustenance is drawn from a decision of the apex court in S. Kesari Hanuman Goud vs. Anjum Jehan and others, (2013)12 SCC 64.
"The provisions of Order 3, Rules 1 and 2 of the Code of Civil Procedure empower the holder of the power of attorney to "act" on behalf of the principal. The word "acts" employed therein is confined only to 'acts" done by the power of attorney holder, in exercise of the power granted to him by virtue of the instrument. The term "acts" would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has preferred any :acts: in pursuance of the power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for acts done by the principal, and not by him. Similarly, 21 he cannot depose for the principal in respect of a matter, as regards which, only the principal can have personal knowledge and in respect of which, the principal is entitled (sic liable) to be cross-examined."
It is hence contended that the appeal be allowed and the suit be dismissed.
7. On the other hand, the learned Senior Advocate, Shri Vivek Reddy, appearing for the counsel for the respondent - plaintiff seeks to contend as follows :
As regards the contention, as to the suit being barred by limitation, it is urged that the suit is of the year 1990 and the amendment application has been filed in the year 2000. The decision in Kathri Hotels, supra, relied on by the defendant, has not considered Section 22 of Limitation Act which redeems the limitation in respect of continuous wrongs and gives rise to fresh limitation. Therefore, the judgment of the Supreme Court in Kathri Hotels is not an authority or precedent on the applicability of Section 22 of the Limitation Act on Article 58. Therefore, it is contended that the said decision is rendered sub silentio on Section 22, as 22 application of Section 22 was never present to the mind of the Court.
It is contended that a three Judge Bench decision of the Supreme Court reported in Balakrishna S.P. Waghmare vs. Shree Dhyaneshwar Maharaj Sansthan, AIR 1959 SC 798, has considered the applicability of continuous wrongs under Section 22, old Section 23 of the Limitation Act, 1908. And that both the Sections, namely, Section 22 of the 1963 Act and Section 23 of the 1908 Act are in pari materiae. It is pointed out that at para 31, the apex court has considered the scope of Section 23, referring to continuing wrongs and has stated in conclusion at para 31, it is held that 'where wrongful act amounts to ouster resulting injury to the right is complete at the date of ouster', and, there would be no scope for application of Section 23 in such a case.
It is urged that the Supreme Court has also referred to some of the judgments of the Privy Council, a decision of the Patna High Court in Md. Fahimal v. Jagat Ballav, AIR 1923 Patna 475 and a Full Bench decision of the Punjab High Court in Khair Mohd. Khan v. Mt. 23 Jannat, AIR 1940 Lahore 359, as illustrations of acts amounting to ouster.
Further, it is contended that the apex Court has held that it is necessary to draw a line of distinction between an injury caused by a wrongful act and the resultant effect of the said injury. The relation or the bearing, that a continuous wrong has on the issue of ouster, is the true significance of the parameters within which Section 22 operates and this concept is elaborated and approved by the Supreme Court. It is contended that the decision in Khatri Hotels Case, supra, does not consider Section 22 and how non-ouster and a continuing wrong within the meaning of Section 22 would give rise to a fresh lease of limitation.
In the present case, it is urged, the suit was one for injunction and declaration. The defendant had not, at any point of time, by his illegal claim ousted the plaintiff. The defendant's claim is with respect to a different property in a different street and his effort to make a claim over the plaintiff's property, in an unjust manner, is a continuing wrong to the right of the plaintiff. The same is a threat 24 and constitutes a continuous tort within the meaning of Section 22 of the 1963 Act.
It is further contended that under Section 22, the Limitation begins to run every moment during which the breach, or tort as the case may be, continues. Therefore, there is a fresh period of limitation that arises as long as the threat looms large or persists.
That there is ample authority to support the view that there has been no ouster in respect of attempted trespass in consequence of which injunction is sought. Thus, if the said act has not resulted in ouster, it is a continuing wrong. The view of the Punjab High Court to this effect in Garib Das vs. Municipal Corporation, (2000)1 Punj.LR 84, in interpreting Section 22 of the 1963 Act, is sought to be relied upon. It is elaborated that the existence of a wrongful act and that it is a state of affairs wherever the wrong continues, of which a new tort, for which a fresh action is maintainable. Therefore, the Court had held that every day there will be a fresh cause of action to the plaintiff because of the threatened act and therefore, the limitation in such cases continuously arises at every 25 moment. In the present case, it is contended, that the plaintiff's case was that there was a continuous threat to his possession by the defendant. The plaintiff having successfully made out his title and possession over the suit schedule property, there is an act of the defendant, which becomes a continuous threat and a continuing wrong, which gives the cause of action to the plaintiff to sue at any moment and such continuous cause of action continues and subsists as per Section 22 of the Act which states that a "fresh period of limitation begins to run every moment of the time during which breach or tort as the case may be continuous."
It is further contended that when Article 58 is read in consonance with Section 22 of the Act, the words 'first accrues' loses relevance in case of application of Section 22 of the 1963 Act, because as per Section 22, a fresh period of limitation begins to run every moment of time during which a breach, or the tort as the case may be, continues. It is contended that this state of affairs makes it amply clear that the plaintiff, who is in possession of his property, defends every moment the continuing wrong of the defendant, 26 through necessary reliefs before this Court and as per Section 22 of the Act, continuing wrongs gives rise to a fresh period of limitation every time the tort continues. The plaintiff's cause of action and limitation is sustained under Section 22 of the Limitation Act and it overrides "the first accrues" principle under Article 58. It is contended that the applicability of Section 22 to the present case gives rise to fresh period of limitation every moment of time and therefore, seeking declaration is in pursuance of the fresh period of limitation to the continuing wrong of the defendant. The decisions of the Punjab High Court, the three-Judge bench decision of the Supreme Court and the Privy Council are unanimous that so long as there is no ouster, then the wrong or threat posed to a man in possession, is a continuous wrong. To that effect, Article 58 must yield to Section 22 of the 1963 Act, as by Section 23 of the Limitation Act, 1963, the applicability of the Articles is subject to Sections 4 to 24 of the Limitation Act, 1963. Therefore, Article 58 will yield when Section 22 applies.
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It is further stated that after this court had remanded the matter keeping open the point of limitation, the defendant had filed additional written statement, raising the plea of limitation. But no evidence was led by the defendant to dispute the limitation or to show that the suit was barred by limitation. The defendant has also been unable to lead evidence to show that he is in any manner in possession of the suit schedule property or has sought to accomplish ouster of the plaintiff. In these circumstances, the act of the defendant in attempting to interfere with the plaintiff's property is a continuing wrong.
In the light of the above, it would be necessary to address the question of limitation. For if the suit should fail on the ground of limitation, the need to examine other areas of controversy will not arise.
8. As seen from the record, this court had, while permitting the respondent herein in the earlier round, when he had preferred an appeal, against the dismissal of his suit O.S.No.1386/1990 for 28 permanent injunction, in RFA 415/1999 connected with RFA 456/1999, (the connected appeal filed against the judgment and decree in favour of the appellant in a suit in OS 1650/1990, which was decided by a common judgment) by its judgment dated 28.3.2002, had formed an opinion that the identity of the property being in serious dispute, required the plaintiff in OS 1386/1990 (the respondent herein) to seek the relief of declaration and to establish his case by adducing additional evidence. And had allowed an application in that regard. When the appellant herein had raised the objection that such a relief would be barred by limitation , this court had opined that the question would be kept open to be decided by the trial court, on remand.
On such remand, the present appellant had filed an additional written statement to the amended plaint specifically contending that the suit was barred by limitation, and the trial court had framed an issue as, additional issue no.2, in that regard.
The trial court has held as follows on the said Additional Issue no.2 :
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"26. ADDITIONAL ISSUE NO..2:-
After remand, the Lrs. Of deceased plaintiff Hanumanthappa in O.S.No.1386/1990 have claimed the relief of declaration of their ownership over the schedule property. On the other hand, defendant Shivakumar has filed additional written statement, denying the title of plaintiff and further contending that the suit is barred by limitation. After amendment and including the prayer of declaration by the LRs of deceased Hanumanthappa, they have led their side evidence and contended that the suit for declaration is within the period of limitation. However, defendant Shivakumar has not led any evidence in support of his contentions raised in the additional written statement.
27. The counsel for the defendant Shivakumar has strongly argued that the suit O.S.1386/1990 has been filed by the deceased plaintiff Hanumanthappa in the year 1990 and declaratory relief has been included in the year 2005 and so, the relief of declaration as prayed for by the plaintiff is barred by limitation.
On the other hand, the counsel for the LRs of deceased plaintiff Hanumanthappa has argued that, in the earlier written statement filed 30 by defendant Shivakumar dated 16.5.1990, he has admitted the right and title of deceased plaintiff, including the execution of sale deed in respect of the schedule property dated 5.5.1956 and later he denied the title of plaintiff in the additional written statement filed on 1.8.2002 and therefore, the declaratory relief claimed by him by amending the plaint dated 21.11.2005 is within the period of limitation, since the application for amendment to include the relief of declaration has been filed much earlier to that and at that time, the defendant Shivakumar had admitted the right and title of deceased plaintiff Hanumanthappa.
Therefore, the suit for the relief of declaration is within the period of limitation.
28. On hearing the rival contentions of both the sides and perusal of the case papers, it is true that, in the earlier written statement filed by defendant Shivakumar, he has specifically admitted the ownership of plaintiff. The relevant portion of para No.2 of written statement filed by Shivakumar reads as,-
"2. It is true that the a sale deed dated 5.5.1956 registered as No.864/56-57 from one N. Anjanee Rao Sindhe in favour of plaintiff in respect of site No.Old 13 in 31 Sy.No.73 of Guddadahalli is in existence with boundaries..."
So, the above said admission of title in favour of plaintiff Hanumanthappa has been specifically admitted by defendant. Shivakumar and only in the subsequent written statement dated 1.8.2002, defendant Shivakumar has denied the title. It is the established principles of law that, cause of action for the relief of declaration will arise when the title is denied by the other side. Therefore, the declaratory relief claimed by the LRs of the plaintiff Hanumanthappa is within the period of limitation. Further, on perusal of the written statement, no where the defendant has stated that, the suit schedule property is belonged to him and he has not specifically denied the title of plaintiff. Therefore, absolutely there is no substantial contention taken by the defendant Shivakumar. More than that, even after filing the amended plaint and carrying out the amendment including the relief of declaration, defendant Shivakumar has not led any evidence. So, there is no contra evidence on behalf of the defendant in support of his contentions. So, that is also one of the strong circumstances supporting the contentions of the plaintiff Hanumanthappa.
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Hence, I am of the considered opinion that the suit is within the period of limitation.
Accordingly, this additional issue No.2 is held as negative to defendant Shivakumar."
It is evident from the pleadings that the present appellant had disputed the identity of the suit property in the very first instance, as on 16.5.1990, in his written statement. The trial court had dismissed the suit filed by the respondent herein thereby confirming that the respondent had failed to prove that he was in possession of the property as claimed by him. When the identity of the property was disputed and when in order to overcome the same and in order to establish his title in accordance with law, the relief of declaration having been permitted to be urged, subject to the bar of limitation, if any, it was for the trial court to have examined as to when the right to sue first accrued in order to compute whether the suit was filed within the period of limitation in seeking a declaratory relief. In the said circumstance the above reasoning of the trial court is clearly erroneous, especially in its opinion that the appellant -defendant was required to lead evidence on the aspect of limitation. On a plain 33 perusal of the record, in the circumstances of the case, it is evident that the respondent plaintiff was obliged to seek such relief of declaration immediately upon the dispute being raised by the appellant-defendant. As the declaration sought was in respect of the suit property as it was originally described, which had been held against him. And such a relief would normally be sought as a matter of abundant caution , when the identity is disputed and especially when there was a cross suit by the appellant compounding the controversy. Therefore, it could be said that the right to sue for the relief of declaration as to title to the property as described in the suit schedule, arose when the same was denied and disputed by the appellant in the written statement. Such a relief ought to have been claimed with in a period of three years from 16.5.1990. This court having allowed the application for amendment of the plaint seeking the relief of declaration on 28.3.2002, and an amended plaint having been filed on 24.7.2002, the suit for such a relief was clearly barred under Article 58, Part III of the Schedule to the 1963 Act. 34
The rather involved argument of Shri Vivek Reddy, with reference to Section 22 of the 1963 Act, to contend that when there is a continuing wrong, a fresh cause of action accrues and hence the period of limitation to seek the relief is constantly updated, and that the constant threat of interference and when a plaintiff continues in possession - without being ousted, it provides the plaintiff with a right to sue on every such occasion when there is a threat - or when such threat looms large, cannot be accepted.
Section 22 of the 1963 of the Act, reads thus :
"22. Continuing breaches and torts - In the case of a continuing breach of contract or in the case of a continuing tort, a 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."
It is clear from the above provision that it refers not to a continuing right but to a continuing wrong. The respondent plaintiff - in seeking the relief of declaration was seeking his right, to the continued occupation of the suit property , as described in the Schedule to the suit, to be declared. He was not seeking a 35 declaration as to the wrong or the threat of illegal action on the part of the appellant defendant.
In the light of the above circumstance, the suit was barred by limitation and accordingly the appeal is allowed the judgment and decree of the trial court is set aside and the suit filed by the respondent is dismissed. No order as to costs.
Sd/-
JUDGE nv*