Karnataka High Court
Shankargouda S/O Shivanagoud Patil vs Basawwa W/O Basavanagoud Patil on 11 July, 2022
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RSA No. 5695 of 2010
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 11TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 5695 OF 2010 (DEC/INJ)
BETWEEN:
1. SHANKARGOUDA
S/O SHIVANAGOUD PATIL
AGE: 40 YEARS, OCC: AGRIL,
R/O BASAVANAGUDI NAGAR,
RANEBENNUR, DIST.HAVERI 581 115.
2. SMT.NAGAMMA
D/O FAKKIRAGOUDA PATIL
AGE: 50 YEARS, OCC: HOUSEHOLD,
R/O. BASAVANAGOUDI NAGAR
RANEBENNUR, DIST.TQ HAVERI
...APPELLANTS
(BY SRI. DINESH M KULKARNI, ADVOCATE)
AND:
1. BASAWWA
W/O. BASAVANAGOUD PATIL
(SINCE DECEASED LEAVING BEHIND
RESPONDENT NO.8A & 9 AS PER LRs
THEY ARE ALREADY ON RECORD)
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RSA No. 5695 of 2010
2. KAREGOUDAR
S/O. BASAVANAGOUDA PATIL
AGE: 52 YEARS, OCC: AGRIL,
R/O. MASUTI NAGAR, RANEBENNUR
DIST: HAVERI 581 115.
3. SHIVAKUMAR
S/O. KAREGOUDA GURULINGAPPAGOUDAR
AGE: 17 YEARS, OCC: STUDENT,
R/O. MASUTI NAGAR, RANEBENNUR
DIST: HAVERI 581 115.
4. RAVIKUMAR
S/O. KAREGOUDA GURULINGAPPAGOUDAR
AGE: 15 YEARS, OCC: STUDENT,
R/O. MASUTI NAGAR, RANEBENNUR
DIST: HAVERI 581 115.
5. FAKKIRGOUDA
S/O GANGAPPAGOUDA PATIL
AGE:71 YEARS, OCC: NIL
SHIVAKUMAR
R/O. RANEBENNUR
DIST: HAVERI 581 115.
6. SMT.KAREBASAVVA
W/O MALLANAGOUDA HUDED
AGE: 51 YEARS, OCC: HOUSEHOLD,
R/O NESVI, TQ.RANEBENNUR
DIST: HAVERI 581 115.
7. SRI. BASAVARAJ
S/O. MAHADEVGOUDA PATIL
AGE: 32 YEARS, OCC: AGRIL,
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RSA No. 5695 of 2010
R/O. KANCHAGAR ONI, BASAVANGUDI NAGAR
RANEBENNUR, DIST: HAVERI 581 115.
8. KUMARI GEETA
D/O. BASAVANAGOUDA PATIL
(SINCE DECEASED BY HER LRS)
8(A) NAVEEN, A/S OF GEETA PATIL
AGE: 26 YEARS, OCC: AGRIL,
R/O. SUNAGAR ONI
RANEBENNUR, DIST: HAVERI 581 115.
9. SMT. GADIGEVVA @ SHANKUNTALA
W/O. KARABASAPPA BADLEKAR @ BADALLEAR
AGE: 51 YEARS, OCC: HOUSEHOLD
R/O.BEHIND GURUBHAVAN
HIREKERUR, DIST: HAVERI 581 115.
10. SMT. PREMA
W/O. UJJANAGOUDA GOUDAR
AGE: 40 YEARS, OCC: HOUSEHOLD
R/O. CHALAGERI, TQ: RANEBENNUR
DIST: HAVERI 581 115.
...RESPONDENTS
(BY SRI. AVINASH BANAKAR, ADVOCATE)
THIS RSA IS FILED U/SEC.100 OF CPC AGAINST THE
JUDGEMENT & DECREE DTD:15-06-2010 PASSED IN
R.A.NO:96/2003 ON THE FILE OF THE PRL. CIVIL
JUDGE(SR.DN) RANEBENNUR, ALLOWING THE APPEAL, FILED
AGAINST THE JUDGEMENT AND DECREE DTD:17-11-2003
PASSED IN O.S.NO:144/2000 ON THE FILE OF THE PRL. CIVIL
JUDGE(JR.DN) & I-ADDL. JMFC., RANEBENNUR, DECREEING
THE SUIT FILED FOR DECLARATION, POSSESSION AND
PERMANENT INJUNCTION.
THIS APPEAL COMING ON FOR DICTATING OF
JUDGMENT, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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RSA No. 5695 of 2010
JUDGMENT
This Regular Second Appeal is filed by the plaintiffs 1 and 3, challenging the judgment and decree dated 15th June, 2010 passed in Regular Appeal No.96 of 2003 on the file of the Principal Civil Judge (Sr.Dn.), Ranebennur (hereinafter referred to as 'the First Appellate Court', for brevity), setting aside the judgment and decree dated 17th November, 2003 passed in Original Suit No.144 of 2000 on the file of the Principal Civil Judge (Jr.Dn.), Ranebennur, (hereinafter referred to as 'the trial Court', for brevity), decreeing the suit of plaintiffs.
2. For the sake of convenience, the parties to this appeal shall be referred to in terms of their status and ranking before the trial Court.
3. It is the case of the plaintiffs that, the original propositus-Siddalingappagouda had a son by name Gangangouda, who had three children, viz. Fakkirgouda (defendant No.2), Basangouda (deceased represented by his wife Basawwa defendant No.1); and Shivangouda who died leaving behind his son Shankargouda (plaintiff No.1). Plaintiffs 2 and 3 are the children of Fakkirgouda (defendant No.2). It is -5- RSA No. 5695 of 2010 further averred in the plaint that, the original propositus- Siddalingappagouda died on 31st October, 1953 leaving behind his son-Gangangouda. It is further stated in the plaint that, the joint family property was partitioned between Gangangouda and his children on 01st January, 1965 and the suit schedule property had fallen to the share of the said Gangangouda. Gangangouda executed registered Will dated 19th October, 1971, bequeathing the property in question in favour of plaintiffs and defendant No.3 and as such, after the demise of Gangangouda, plaintiffs and defendant No.3 became owners in possession of the suit schedule property. It is further averred in the plaint that, by virtue of the registered Will dated 19th October, 1971, out of 6 acre 08 guntas of land, 3 acre 08 guntas was bequeathed to plaintiffs 2, 3 and defendant No.3, and remaining 3 acres of land was bequeathed to plaintiff No.1. It is further stated in the plaint that plaintiffs and defendant No.3 were minors at the time of execution of the registered Will and therefore, defendant No.2-Fakkirgouda gave varadi to revenue authorities for change of khata. It is further narrated that on 04th September, 1974 mutation was made in terms of the registered Will dated 19th October, 1971 and to the shock of -6- RSA No. 5695 of 2010 plaintiffs, mutation was changed by the authorities, without the knowledge of plaintiffs, at the instance of defendant No.2. It is the specific case of plaintiffs that, defendant No.2, colluding with the husband of defendant No.1 and his brothers, got entered their name in the varadi and based on the said varadi, suit schedule property was sold on 16th April, 1975 in favour of defendant No.1. It is the contention of plaintiffs that, defendant No.1 has no right title or interest insofar as suit schedule property is concerned and as such, plaintiffs have filed Original Suit No.144 of 2000 before the trial Court seeking relief of declaration, possession and permanent injunction against the defendants.
4. On service of notice, defendants entered appearance. It is the specific defence of defendant No.1 that, after the death of Siddalingappagouda, who is the grandfather of the husband of defendant No.1, the schedule property was succeeded by his son Gangangouda and he died on 31st July, 1972. Gangangouda was residing in the house of defendant No.1 and after his death, defendant No.1 and her husband performed the last rites of Gangangouda. Defendant No.1 denied the fact that the said Gangangouda had executed -7- RSA No. 5695 of 2010 registered Will on 19th October, 1971. Accordingly, defendant No.1 contended that the sale deed dated 16th April, 1975, registered in favour of defendant No.1 is correct and cannot be questioned by plaintiffs and as such, sought for dismissal of the suit. Defendant No.1 further filed additional written statement contending that the sons and the daughters of deceased Basanagouda and the second son of deceased Shivanagouda are the necessary parties and therefore, suit is liable to be dismissed on the ground of non-joinder of necessary parties. Hence, defendant No.1 sought for dismissal of the suit. Defendant No.2 filed written statement supporting the contentions of plaintiffs. Defendant No.3 has filed written statement, denying the averments made in the plaint and supported the contention of defendant No.1.
5. The trial Court, based on the pleadings on record, formulated issues for its consideration. In order to prove their case, plaintiffs have examined three witnesses as PWs1 to 3 and produced 17 documents and same were marked as Exhibits P1 to P17. Defendants have examined 4 witnesses as DWs.1 to 4 and produced 9 documents and same were marked as Exhibits D1 to D9. The trial Court, after considering the -8- RSA No. 5695 of 2010 material on record, by its judgment and decree dated 17th November, 2003, decreed the suit, holding that the plaintiffs are the absolute owners of the suit schedule property. Feeling aggrieved by the same, defendant No.1 has preferred Regular Appeal No.96 of 2003 before the First Appellate Court and the suit was contested by the plaintiffs. The First Appellate Court, after considering the material on record, by its judgment and decree dated 15th June, 2010, allowed the appeal, consequently, set aside the judgment and decree dated 17th November, 2003 passed in Original Suit No.144 of 2000. Feeling aggrieved by the same, plaintiffs 1 and 3 have preferred this Regular Second Appeal.
6. This Court by order dated 28th September, 2010 formulated the following substantial question of law:
"Whether the Appellate Court was justified in holding that the suit was barred by limitation though according to the appellant the suit was within the limitation as per Articles 58,59 and 65 of the Limitation Act?-9- RSA No. 5695 of 2010
7. Heard Sri. Dinesh M. Kulkarni, learned counsel appearing for appellants and Sri. Avinash Banakar, learned counsel appearing for respondents.
8. Sri. Dinesh M. Kulkarni, learned counsel appearing for appellants contended that, the finding recorded by the First Appellate Court, holding that the suit was barred by limitation is required to be interfered with in this appeal. He further contended that, the First Appellate Court has not properly appreciated the registered Will dated 19th October, 1971. He claimed that, plaintiffs 1 to 3 and defendant No.3, who are the beneficiaries of the Will were minors and the natural father of plaintiffs 2 and 3 was the guardian and therefore, the suit is filed well within time as per Article 59 and 65 of the Limitation Act, 1963 (hereinafter referred to as 'the Act' for brevity) and the said aspect has not been considered by the First Appellate Court. He further contended that, the mutation entry was made without the knowledge of plaintiffs or their guardians and the interest of minors have not been safeguarded by the Revenue Authorities and therefore, he contended that the impugned judgment and decree passed by the First Appellate Court requires to be interfered with in this appeal. In order to
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RSA No. 5695 of 2010 buttress his arguments that the suit is maintainable as the plaintiffs sought for relief of declaration of title, he relied upon the judgment of this Court in the case of H.K. DASAPPA SETTY AND OTHERS v. K.N. TAMMANNA GOWDA AND ANOTHER, reported in AIR 1984 KAR. 153 and argued that, the suit is well within the time seeking declaration of their shares in the suit schedule property. Emphasizing on these aspects, Sri. Dinesh M. Kulkarni, learned counsel appearing for the appellants invited the attention of the Court to the judgment of this Court in the case of SIDDANAGOUDA AND OTHERS. v. SMT. KASHIBAI @ KANTAMMA AND ANOTHER, reported in HCR 2019 Kant. 204 and also in the case of INDIRA v. ARUMUGAM AND ANOTHER reported in ILR 1998 KAR 1422 and argued that, once the title is established, then the plaintiff cannot be non- suited by the defendant and therefore, he canvassed that, as the suit is filed within twelve years from the date of declaration of their title by the plaintiffs, the finding recorded by the First Appellate Court ignoring the aforementioned judgments, needs to be set aside in this appeal. Sri. Dinesh M. Kulkarni, further invited attention of the Court to Section 17 of the Act and argued that the fraud committed by the defendant came to
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RSA No. 5695 of 2010 light only at the time of bringing the property for sale by the contesting defendants and accordingly, he submitted that the plaintiffs filed the suit well within the time and hence, he submitted that the finding recorded by the First Appellate Court calls for interference in this appeal.
9. Per contra, Sri. Avinash Banakar, learned counsel appearing for the respondents sought to justify the impugned judgment and decree. It is the submission of Sri. Avinash that Article 60 of the Act is applicable to the case on hand and as the suit was not filed by the plaintiffs within three years from the date of attaining majority, the trial Court ought to have dismissed the suit on the ground of limitation. However, the said aspect has been rightly considered by the First Appellate Court and a clear finding has been given by the First Appellate Court at paragraph 35 of the Judgment and Decree. To buttress his arguments, Sri. Avinash relied upon the judgment of the Hon'ble Apex Court in the case of VISHWAMBAR AND OTHERS v. LAXMINARAYANA (DEAD) THROUGH LRS AND ANOTHER reported in AIR 2001 SC 2607. Referring to paragraphs 9 and 10 of the above judgment, he argued that the plaintiff ought to have filed suit within three years from the
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RSA No. 5695 of 2010 date of attaining majority. He also places reliance on the judgment of this Court in the case of BASAWANAPPA v. NANA RAO PRAKASH AND OTHERS reported in 2004(2) KCCR 705 (Regular Second Appeal No.514 of 1997 dated 13th August, 2003) and argued that in the event if the minor is out of possession and the said minor wants to challenge the alienation made by the third parties against his interest, Article 60 of the Limitation Act is made applicable and the minor must seek the relief of cancellation of sale deed also. Applying the aforementioned principle to the case on hand, Sri. Avinash argued that plaintiffs have not sought for cancellation of the sale deed in the suit and therefore, the suit itself is not maintainable. He also referred to the cross-examination of PW1 and PW2 and submitted that the said witnesses/plaintiffs were well aware about the sale deed dated 16th April, 1975 and same was admitted in the evidence and therefore, he argued in support of the impugned Judgment and Decree passed by the First Appellate Court.
10. In order to understand the relationship between the parties, it is relevant to extract the pedigree of the plaintiffs and the defendants. The same is extracted below:
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Shiddalingappagouda (propositus) (Died on 31.10.1953) Gangangouda (Died on 31.07.1972) Fakkirgouda Basangouda(Died) Shivangouda(Died) (2nd defendant) Basavva (Wife) Shankargouda (1st defendant) (1st plaintiff) Karabasavva Nagavva Shankaravva (2nd plaintiff) (3rd plaintiff) (3rd defendant)
11. Perusal of the genealogical tree would indicate that, original propositus-Siddalingappagouda died on 31st October, 1953 leaving behind his son-Gangangouda. Gangangouda had 3 children, viz. Fakkirgouda (defendant No.2), Basangouda (husband of the defendant No.1) and Shivangouda (father of plaintiff No.1). Fakkirgouda had three children, namely, Karabasawwa (plaintiff No.2), Nagavva (plaintiff No.3) and Shankaravva (defendant No.3). The suit schedule property originally belonged to Siddalingappagouda and on his demise,
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RSA No. 5695 of 2010 his son Gangangouda succeeded to the estate. It is also not in dispute that there was partition between the said Gangangouda and his three children and in the said partition, suit schedule property was allotted to the share of Gangangouda, as per the partition deed dated 01st January, 1965 (Ex.P3). The said Gangangouda executed the registered Will dated 19th October, 1971 (as per Ex.P17), bequeathing his property to the plaintiffs and defendant No.3. The total extent of the schedule property is 6 acre 08 guntas and Gangangouda bequeathed 03 acres of land to plaintiff No.1 and remaining 3 acres 08 guntas of land in favour of plaintiffs 2 and 3 and defendant No.3. It is also not in dispute that, at the time of the execution of the Will dated 19th October, 1971, plaintiffs and defendant No.3 were minors and were looking after by Fakkirgouda-defendant No.2. The trial Court has affirmed issues 1 to 4 in favour of the plaintiffs and as such, it is concluded that the plaintiffs have proved that, plaintiffs along with defendant No.3, are the absolute owners in possession of the suit schedule property as per the registered Will executed by the deceased Gangangouda. This aspect has not been countered by the learned counsel for the respondent except making submission of Limitation point. The trial Court
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RSA No. 5695 of 2010 holds that, the Sale Deed dated 16th April, 1975 (Ex.D1), was illegally executed by defendant No.2 in favour of defendant No.1. The core question to be determined in this appeal is with regard to the fact that whether the suit is filed within the stipulated period or not, as argued by the learned counsel for the respondent.
12. I have given my anxious consideration to the finding recorded by the trial Court on issue No.5, wherein the trial Court holds that the suit is filed within twelve years from the date of knowledge of the plaintiffs. In this regard, Article 65 of the Act provides limitation period of twelve years for seeking possession of the property. Article 59 of the Act provides for cancellation or setting aside the instrument/document and the period stipulated is three years from the date of knowledge of the person who question the said instrument/document.
13. In the present case, admittedly, plaintiffs and defendant No.3 were minors at the time of registration of the Will and in this connection, it is apt to cite the law declared by
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RSA No. 5695 of 2010 this Court in the case of H. K. DASAPPA (supra). Paragraph 18 of the said judgment reads as under:
"18. Therefore, it is clear that the plaintiff is not expected to rush to the Court at every innocuous denial; but when he feels that title is jeopardized, he is to go to Court and his subsisting title at that time should not have been lost. Considered in that perspective, it cannot be said that the present suit is barred by time."
14. It is also relevant to cite the law enunciated by this Court in the case of SIDDANAGOUDA AND OTHERS (supra), wherein at paragraph 12 of the said judgment, it is observed thus:
"12. The trial Court decreed the suit declaring that the plaintiff is the owner of the suit schedule properties and is entitled for the possession of the suit properties from the defendants. The defendants were directed to deliver the possession of the suit properties to the plaintiff within six months from the date of the judgment."
It is also relevant to deduce paragraphs 35, 38, 40 and 44 of the said judgment, which read as under:
"35. The arguments of the learned counsel for the appellant that Article 58 of the Limitation Act, 1963 is applicable to the facts of the present case cannot be countenanced for the reason that the plaintiff has not
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merely claimed a declaration that she is the owner of the suit properties, but also the relief for possession of the suit properties from the defendant No. 2. It is obvious that such a suit where the possession is claimed as a consequence of declaration would be governed by Article 65 and not by Article 58 of the Limitation Act, 1963. Section 58 of the Limitation Act contemplates three years as the period of limitation to obtain any other declaration when the right to sue first accrues whereas Article 65 of the Limitation Act postulates 12 years as the period of Limitation for possession of immovable property or any interest therein based on the title from the time when the possession of the defendant becomes adverse to the plaintiff."
36 and 37. xxx xxx xxx
38. In the light of aforesaid, this Court is of the considered opinion that in the suit filed claiming declaration of title to the immovable property with consequential relief of possession, Article 65 of the Limitation Act would apply Article 58 being in the nature of residuary provision among the declaration suits applies only to a case where declaration simplicitor is sought in any further relief.
39. xxx xxx xxx
40. It is thus clear that 'Varadi' is not a document evidencing the transfer of immovable property, it is trite to be legal must be in accordance with the Provisions of Transfer of Property Act, 1982. In the absence of registered document of transfer of immovable property,
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RSA No. 5695 of 2010 varadi per se cannot be construed as transfer of immovable property, the nature of the varadi, the identity of the persons who gave the report and recorded are relevant material particulars and in the absence of the same, no credential value can be given to such entries.
41 to 43. xxx xxx xxx
44. In the case of Kale (supra), the Hon'ble Apex Court while considering the compromise between the parties and mutation effected on the ground of compromise dealt with the scope of family arrangement and held that the High Court erred in entertaining the appeal when the matter is already settled in accordance with the family arrangement. However, in the present set of facts, no such family arrangement/compromise between the parties is pleaded nor adjudicated. The entire case of the defendant No. 2 rests on the relinquishment said to have been made by Nanagouda in his favour, but the same not having proved, the said judgment would not come to the assistance of the defendants."
15. The dictum of the aforementioned judgment was fortified by the judgment of the Hon'ble Apex Court in the case of INDIRA (supra), wherein the Hon'ble Apex Court at paragraph 4 of the judgment, held as under:
"4. The aforesaid reasoning of the learned Judge, with respect, cannot be sustained as it proceeds on the assumption as if old Article 142 of the earlier Limitation Act was in force wherein the plaintiff who based his case
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on title had to prove not only title but also possession within 12 years of the date of the suit. The said provision of law has undergone a metamorphic sea change as we find under the Limitation Act, 1963, Article 65 which reads as under:
Time from Period of Description of suit which Period Limitation beings to run 65 For possession of Twelve years When the immovable property possession of or any interest the therein based on title defendant becomes adverse to the plaintiff
16. In the light of the submission made by Sri. Avniash, it is relevant to extract Article 60 of the Act, which provides for challenging the transfer made by the guardian of a ward, which reads as under:
Time from which Period of Description of Suit period Limitation begins to run
60. To set aside a transfer of property made by the guardian of a ward-
(a) by the ward Three years When the
who has ward
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RSA No. 5695 of 2010
attained attains
majority; majority
(b) by the ward's
legal
representative-
(i) when the Three years When the
ward dies ward
within three attains
years from majority.
the date of
attaining
majority;
(ii) when the Three years When the
ward dies ward dies.
before
attaining
majority.
17. At this stage, I have carefully examined the prayer made in the plaint. The prayer No.1 is with regard to the declaration that the plaintiffs are the absolute owner of the property in terms of the registered Will dated 19th October, 1971 (Exhibit P17) executed by the grandfather of the plaintiffs. As per the partition dated 01st January, 1965 (Exhibit P3), the schedule property fallen to the share of the grandfather of plaintiffs. The careful examination of Exhibit P6-
Mutation Register, reflects that in terms of the Registered Will dated 19th October, 1971, mutation was made in favour of the
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RSA No. 5695 of 2010 plaintiffs, subsequently, the mutation was changed/transferred into the name of the contesting defendant without any basis nor obtaining the permission/consent of plaintiffs or their ward and based on the mutation register (Exhibit P7), sale deed was executed on 16th April, 1975 (Exhibit D1) by the defendants alienating the property in question. Though I find force in the argument advanced by the learned counsel appearing for the respondent referring to the evidence of PW1 and PW2 about their knowledge on the execution of the Registered Sale Deed dated 16th April, 1975, however, the basis for execution of the Sale Deed was on account of the change of entry made in Exhibits P7 to P10, wherein the name of the legatees of the Will (plaintiffs) was removed from the mutation extracts, at the instance of the defendants behind the back of the plaintiffs and thereafter, sale deed was executed on 16th April, 1975 and the said act of the defendant sans knowledge of plaintiffs, the trial Court has rightly answered the issue No.5 in favour of plaintiffs, since fraud vitiates all solemn things. It is also forthcoming from the evidence and as rightly argued by the learned counsel for the appellants, the plaintiffs, after coming to know about the alleged sale deed, immediately took steps to file suit and
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RSA No. 5695 of 2010 same is within the stipulated period of three years as per Article 65 of the Act. Though, stray admission has been made by PW1 and PW2 about the knowledge of the sale deed, however, same cannot supplant the fraud committed by the defendants changing the entries behind the back of plaintiffs and therefore, Article 60 of the Act is not applicable to the case on hand since alienation of the property was not made by the guardian of the ward (plaintiffs) and in this regard, the finding recorded by the First Appellate Court at paragraph 35 of the judgment cannot be accepted, as there was no discussion on the change of entry made in the mutation register as per Exhibits P7 to P10. The judgments referred to by the learned counsel appearing for the respondent was with regard to Article 60 of the Act, however, in the actual facts of the present case, as I have arrived at the conclusion that Article 60 of the Act is not applicable to the case on hand since the guardian has not alienated the schedule property of the plaintiffs in his defacto capacity, and hence the judgments referred to by the learned counsel for the respondents cannot be made applicable to the facts of the present case. The First Appellate Court lost sight of the fact that the plaintiffs prayed for declaration with
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RSA No. 5695 of 2010 consequential relief that the sale deed dated 16th April, 1975 is not binding on them and in this regard, the judgment of the Hon'ble Apex Court in the case of SUHRID SINGH ALIAS SARDOOL SINGH v. RANDHIR SINGH AND OTHERS reported in (2010)12 SCC 112 is aptly applicable to the case on hand, wherein at paragraph 7 of the judgment, the Hon'ble Apex Court observed thus:
"7. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non-est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to `A' and `B' -- two brothers. `A' executes a sale deed in favour of `C'. Subsequently `A' wants to avoid the sale. `A' has to sue for cancellation of the deed. On the other hand, if `B', who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by 'A' is invalid/void and non-est/illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and court fee is also different. If 'A', the executant of the deed, seeks cancellation of the deed, he has to pay ad-valorem court fee on the consideration stated in the sale deed. If 'B', who is a non-executant, is
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in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs.19.50 under Article 17(iii) of Second Schedule of the Act. But if 'B', a non- executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad- valorem court fee as provided under Section 7(iv)(c) of the Act."
18. It is also well established principle in law that the High Court, while exercising jurisdiction under Section 100 of Code of Civil Procedure, cannot substitute its opinion arrived at by First Appellate Court and exception to the said principle is that, if the High Court found that the conclusions drawn by the Lower Appellate Court are erroneous being contrary to the mandatory provisions of law applicable, or its settled position on the basis of pronouncement made by the Hon'ble Apex Court, or was based on inadmissible evidence, or arrived at the conclusion without evidence, under such circumstances, the High Court can reverse the finding of the First Appellate Court.
19. Following the law declared by the Hon'ble Apex Court in the judgment referred to above, and the provisions contained under Article 65 of the Act, the First Appellate Court
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RSA No. 5695 of 2010 failed to re-appreciate the material in terms of the factual aspects on record and has ignored the vital documents namely, mutation entries (supra), and has reversed the finding of the trial Court based on the admission made by PWs.1 and 2, which is incorrect. Stray admission of the parties, making exception to the statutory provisions, cannot be accepted and therefore, I am of the view that the First Appellate Court failed to re- appreciate the matter in terms of scope and ambit of Order XLI Rule 31 of Code of Civil Procedure and on the contrary, the judgment and decree passed by the trial Court is just and proper. Therefore, the substantial question of law referred to above, favours the plaintiff/appellants herein. In this regard, I am supported by the judgment of the Hon'ble Apex Court in the case of INDIRA (supra), wherein the Hon'ble Apex Court has held that unless the title is established by the parties, they cannot be unsuited with regard to possessory rights. It is also well-established principle in law that where the suit is filed claiming consequential relief pursuant to declaratory relief, under such circumstances, as per Article 65 of the Act, twelve years as the period of limitation for possession of immovable
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RSA No. 5695 of 2010 property, is made applicable to such cases. In the result, I pass the following:
ORDER
1) Appeal is allowed;
2) Judgment and Decree dated 15th June, 2010 in Regular Appeal No.96 of 2003 on the file of the Principal Civil Judge (Sr. Dn.) Ranebennur is set aside.
3) Judgment and Decree dated 17th January, 2003 in Original Suit No.144 of 2000 on the file of the Principal Civil Judge (Jr.Dn.) and I Additional JMFC, Ranebennur, is confirmed.
Sd/-
JUDGE Gab/SVH/lnn