Sri Gundappa vs Mr Puttaswamaiah on 11 December, 2009

[Cites 7, Cited by 0]

Karnataka High Court

Sri Gundappa vs Mr Puttaswamaiah on 11 December, 2009

Bench: A.N.Venugopala Gowda

IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 11"' DAY OF DECEMBER, 

BEFORE

THE HON'BLE MR.3usT1CE A.NEVENUGQ'PA'L}{'_GO"WVD.A  '*V 'V

REGULAR SECOND Ai5'PEAL Rio.'6,9'92:iooé}~R,,,_, 
BETWEEN: ' i i V

Sri. Gundappa,

S/o. Honraegowda,  .

Hindu, Major, Residing"-at' _ 

Ravagodiu viiiage, T

Uttarahaiii Hobli,  -_ v_ «V

Bangalore Sout"n_TaiuI<:_ -~ 560 0.70v._jf,_ 
_.   . . N     ....APPELLANT

    A    

ANOJ'-.__ _-- 

1. Mr. Puttaswamai'ah,w__'..'i'
S/-0. HOnn_eg'owda,- Hindu,
Vwﬁﬁajor, Resi"cii~n_q___at.
""Ra%/"iagOd,Iu Viilage,

A  _Utt,a'rahaE'i*i Hobli,
 B'a..n'g.a,I"ore._S_}outh Taluk ~ 560 070.

  Eramma,
W./On, Kodappa @ Kodaiah,
Hindu, Major, Residing at

 AA 'i*~.E~"{avagodiu Viliage,
 Uttarahalii Hobii,

Bangalore South Taluk ~ 560 070.

V'  Sri. Gundappa,

S/o. Kodappa @ Kodaian,



Major, Residing at

Ravagodlu village,

Uttarahalli Hobli,

Bangalore South Taluk ~«-- 560 070.

4. Smt. Kempamma,
D/o. Nage Gowda, Hindu,
Major, Residing at
Gopasandra Village,
Kanakapura Dakhale,
Kasaba tfobii,   
Bangalore Sourth Taluk «.560 070.; '

5. Sri. Shivalingaiah, 113.,'
S/o. Mardale Gowdta." _ f  ,
Hindu, Major, Residing atf" 
Ravagodlu vi_liage,_-~---_"- - 'V
Uttarahall.i«i+E,,oE3li, ;.

Ba_ngal_0__re_ se;u't,::. i.*a.iu.L:   0'70,

 """     ..RESPONDEl\iTS

T_his._RSA is."filed_, Bu-~n,d,.er Section 100 of CPC against
the Judgment "and.'De"cree dated 3.12.2007 passed in
R.A.No.I69«,f200.6'-Orr-.the"file of the Presiding Officer, Fast
Trac;l<"Cj0urt'II, Bangalore Rural District, Bangalore,
dis'h¥..iss_ing..,_ the "at;-deal filed against the Judgment and

 Decree fciateci 28.10.2006 passed in O.S.l\io.155/1999 on
 ' t.he--v.fii'e_of"isthe. Prl.Civii Judge (Sr.Dn), Bangalore Rural
 Di«;s__tr,ict, fB..ang'a!ore.

T__his-.appeal coming on for admission this day, the

 Courtdelivered the following:--

JUDGMENT

This is plaintiffs second appeal. He had filed a suit against the respondents/ defendants, to effect partition of X /' suit schedule properties and allot 1/3"" share each among plaintiff and defendants 1 to 3, by cancelling;

ii) Settlement deed dated 28.16.78_e*x--ecVu..t_ed§_:Vby late Kodappa; and Sale deed dated Kodappa in favour of tih-e_ 4"' defe7nd.a'nt a'nd"'i'0r', permanent inijiinicltiopn V'Kres't'rain:i:,ng the defendant§'~2 tO:d'4V_:Afro.rn"aiienatinlgﬂvthe plaint Schedule pro_p'e.rtie'sV'-on '»s_tr§1ngth of the said deedsfanclpdeiclaire"th:at."the_..property involved in is the ancestral ' prdpe-rtéy was thrown into common stock or tihexjoa"nt:}family properties and to grant permanent injunction restraining the 5"'

--.:d'ef_endant, his agents, servants etc. from V"'a"_'i_~._Jnlteyrfering into the suit schedule properties . "and to declare that the 4"' defendant is not the legally wedded wife of late Kodappa @ Kodaiah.

2. Briefly stated, the case of the plaintiff----_is as folEows:~ Father of the plaintiff Sri Honnego:.t\idaV~.h:ad"i wives, namely Basamma and»'Ct:-ii<ékaifm"T?Va;'i./I..A1fh-mutt;-.h3 Basamma, Honnegowda goth son' -.i3vy_ "

Munihonnegowda, who mau*r:iy4ed_M Nahnjarnnjaja'i§d""bo'th of' them are dead. Secondi--~----w:i'i'eVoif Honn-eg.oVwda i.e., Chikkamma, got threeésons,' l5léi.i:hriitiff,.VEate Kodappa @ Kodaiah, 13% 4_:defenr:ia'nt' if-deapohter by name Parvathanjrn'a.iy__ in the name of the same were not partitiione.d', of Munihonnegowda, some propertie's,_'_'were' " name of his wife Smt. Naniamiina fonr"h.er_ maintenance i.e., property bearing Sy. .3 ~mea_suring 1 acre 36 guntas and said Nanjamma solder«th'e"AV"s'a_\id*i;;.property in favour of plaintiff and Kodappa under aviyregistered sale deed dated 02.11.78. There is no ita"'.,:di»xti_.sion"' of said property by plaintiff and Kodappa. ﬁefendant No. 2 is the wife and defendant No.3 is the son "of said Kodappa. Defendants 2 and 3 filed maintenance petition under 8.125 Cr.P.C. against Kodappa and payment of maintenance was ordered. Kodappa was unable to pay the maintenance amount and at the intervention'.',_of.well wlshers, a settlement was effected, by ailotting'_,'eo__m?e_rof the properties belonging to joint defendants 2 and 3, who staijtedf_to«;!'ive'7_i'n._.:

Village. There is no division among fané1iime§'hb'ers'~.g regarding joint family prop'ert'ies, w"nich'-Varelﬂiancestral properties. 4"' defe..~i:ci~a,_nt Fsnlllnottrelivated tovlkoldappa and she is not the wife of Ko-dA,apl'pal.f: Sec'o.ij'id._'defendant is the legally wedcl~e'c'1"~.w*ife izof:Kvo:da'pApa~:."---.T,l?iere is no division between iplaji-ntgiffl:"'----and*ffvi{.oda.pi§',;i,*'before execution of 5ett|e:'me,:,i_--- 23.10.78 in favour of the defendants 2 igodéappa. Said Kodappa executed a saleildeed dat'e'd..V:(vﬁv2.1_'i.78 in favour of 4"' defendant, who c'i«ai:riiedith--a:t"she is wife of Kodappa. Kodappa has no right to':.--..,.e>§Veci';t--e"gsale deed in favour of 4"' defendant. Delfenci-.;;§'nts"'V'2 and 3 are enjoying the property mentioned inrthe registered settlement deed, which property has been ldelivjered to them for their maintenance during their "lifetime only. 5"' defendant is not a member of joint family, but, he is ciaimiiig that there is a 3': deed in his L/"C (3 favour from 4"' defendant, who is not the wife_.o__f late Kodappa and sale deed dated 62.11.78 does not"'b.ifrid"'t,he plaintiff. Properties mentioned in the said":'-sale"'d"eied"V/Y settlement deed, are liable for partition. had filed 05.344/88 against plaintiffiniﬁrespectpofnpppproperties mentioned in the sale deed'fi_n*her favour t:h'e'V~s»uit was'? decreed in respect of__Sy. No,.._1vvEV}A'/'.1'1,._vwhichiimaschallenged by plaintiff in R.A.9V/84:"unsucicesfsfuilv,-against which he preferred RSA 3275/95.,i"rw~h{¢h'v.aas._di'§.mj',sis'e'd with liberty to question 1d_,ate__d' in favour _of__ H defendant. of proceedings, 4*"

defenadan-t' deed in favour of the 5"' defendanton hence, the same is not binding on, péiavintiff.

ifrvévdiffjdefendant / 1" respondent, filed written admitted relationship stated in the genealogy tree filed by plaintiff. However, he stated that, "«."suit"properties are not joint family properties of plaintiff and defendants 1 to 3 and that there is no joint possession and enjoyment of the same. He aiso denied the ciaim of R...

/ '-J plaintiff that there was no partition. He is not aware of the sale deed by Nanjamma in favour of plaintiff ai'r:.idi.iate Kodappa. He stated that, on 28.10.78, Kodap'pa.'_pe>t_ecii.teid a registered settlement deed by mentioned in the deed in favot,ir§.'of wife':

are defendants 2 and 3. Acc_ordlngA_to-- him:..v~airl..three'; of Honnegowda had dividedlfhe joint._fa'miiyllkproperties under an oral partiti.o::r1~._,,,. A_«";§é_lQipaVtty.iVlA'dated i2"8V.At}6.91 was made to evidence the are enjoying properties as partition:"w"r"iic_h.:has already tai_<en_ _ place. 1" properties, which are in his po'sse*ssionV"Van'd:L:ehjo-yrfi-ent'. He furnished details of the survey nurénlbers' haélridc' extent of land aliotted to his ghagiell in paF"ti.t._5'0f,'f"'_AAlPlaintiff was allotted his share in . differevnti.s--urve_y ntrmbers, the detaiis of which have been sta--ted:"'a"_"_'»!i?iayi.nti§f is in possession and enjoyment of pro"pert---lesallotted to his share' Properties allotted to the shrazie of Kodappa, was settied by Kodappa in favour of his °wi'fe'l:and son. The joint family properties were partitioned "and there is no joint family in existence. The prayer in the suit was opposed accordingly. K . /K;

--v

4. Defendants 2 and 3 / respondents 2 ;and 3, fiied their written statement and stated as l°OllOWS.':f;

Plaintiff has not included in the suit,'__cer,ta'ini-sit:rvey if numbers, which have been givenzvto s"haii"'e--o:f'--_Vp_l:ainVt_iff in partition. They admitted that, p'l'aint.iff is yth.e:'s'on of'l"ate'=.y Honnegowda. They denied th'e:ciaim of ._oiaiin.tiff.°;j'haVt there was no partition and They axdrnit that, after death of Miinihonnegowfdaf,ifysomevAi.p_~ro';.;erties were ieft to the maint-en'ayin;c'e of hgis-ﬁwifeA.'Smt.._...Nfanjamma and she

-sold -the land iii;ysy}:~i.oi;'1:i;,!i' iiami r of -plaintiff and -late Kodap'ip'a'Vfu'i'ider a«::3:s4aie':'d.eed dated 02.11.78. They denied that there -was between Plaintiff, l<odaPDa and 1" defenda"nt,_V' Aci:or'din'g"Vto them, properties were equaliy long i)"ac"i<""between the said three persons. i<o'_daip:pa:lneglected to maintain defendants 2 and 3 and henfce, vh,e'tse*t;tled properties which had fallen to his share, in favon':r of his wife and son, by executing a registered sett'l'_ament deed, upon the execution of which, they are in possession and enjoyment of the properties. Plaintiff and 15' defendant are signatories to the settiement deed, as is r defendant has executed a sale deed in favour of him on 08.11.99 and handed over possession of the lan:.c'f".oalso. Prior to execution of saie deed, 5"' defendanto...w_'a_s.:'i_oo'!§ii;.g after the land in question as a foliower of iii"-.5'. d:ef~endari*t._V Suit is barred by iimitation;rlSuit accordingly.

7. Learned Trial 'f;farn.ed'«.:t_he_e§foiiowing a'ssues:»~ it

i) Whether plainhtiiff p-ro:vesf.'thatl[.ihe suit schedule D;r_O. i es ta re; .-the :3 ro per-t-i-es ?-

ii) "Vi}'"i_:.eti'iw'eVi,__ proves that there is

-- the famiiy and Saie Deed *execsuftejdt"l'n.:""'fa'vour of the 4"' defendant on 02.11.1978 is not for legal nec'essi__tvand not binding on his share? Whether plaintiff further proves late Kodappa ~ve;;e"geted settlement deed date 28.10.1978 in if f7ffa..'§7oLJr of defendant Nos. 2 and 3 as such said . "ikodaiah had no right to execute Saie Deed in favour of 4"' defendant and said alienation made by Kodaiah without their consent are not binding on them"?

iv) Whether plaintiff further proves that the 5"' defendant had no right to execq sale deed in /9

vi)

vii) favour of ciefehdarrt No.4 for the rc:*_as0hs stated in para 9 of the piairit?

Whether piaintiif further proves deed date 28.10.1978 is not bih_d_ih.g h.4'irT11fO{_V8 the reasons stated ingpaiia. 3880f tﬁé..,{jiaVintié~ 8' Whether plaintiff rr.r:'_tiz.er Sy.No.16/11 1; acre guntas '_gai_vJ'ott_ri2d " ind. favour of Nahjam"m:a"itowards_rrrai-htehance and it is a Sthree Dhah--a:..p:r--o'p'ertv? 2 whether 8 "«p.i.iai_ntAi_ff proves he and Kodaiah and it is a joir=t._Vf':amiiy p_roperti'e's--."'a.h_.d:fhe is ehtitie in this iitemriiitherr19:09?Wt . . .. . ..

-i.W':iw-ether fdrther proves the 4*"

the wife of Fate Kodappa as 8' _ such the member of joint famiiy and V"i.._sa,ie8Vdeed_executed in her favour dated 2.11.78 " ix").

by fate Kovndaiah is not binding on his share? Whethveriiipiaintiff entitle 1/3"} share in the suit fsciheduie property?

piaintiff ehtitie for reiief cancelfatioh ' Nor safe deed dated 28.10.78 executed by late Kodaiah in favour of the 4"' defendant?

Whether piaintiff proves that alienation the properties which are subject matter of sale deed dated 2.11.78 the properties? k 4/' are ancestral xil) Whether plaintiff is entitle for relief of declaration that the 4"' defendant is not'-lelgxally wedded wife of Kodappa?

xiii) Whether plaintiff is entitle foﬂrlthefirelléiefi'V' permanent lnjunCtl0n?""' .

xiv) What order or decree'?

8. Plaintiff deposed-_V:vLasV_%PW¥'1.__andVand 3*' were examined. Exs.P1 Vyit-ow'fE'1S-».._.weref'marléed. 13' defendant deposed deposed as ow»: and st" 4d:ereea.=;_e't'i;1e§o§:e«ci'}raysllvrattél-"l3i E><s.D1 to 945 were marked __ofWevidence_ on record with refe.rence"tt;.;:§he learned Trial Judge answered. 7, 9 to 11 and 13 in the negative}eﬂlssueVV"No4VsV.:6' V12 in the affirmative. On issue No, 'Vitiwas held:t_hat,, 4"' defendant ls not the wife of late deed executed in her favour by Kodappa l"'t1élteti binds the plaintiff. Asa result of the finld"ings:,A.su".it was decreed in part only to the effect that, 4'l'r..4_deVfendant is not the legally wedded wife of late '":<:o'd'appa @ Kodalah and in respect of all other reliefs, suit ""was dismissed. _ ¥ /'

9. Aggrieved, plaintiff filed first appealV_--before lower appellate Court, contending that, Trial €fou.rt--.rlias erred in not considering the case of plaintiff-in perspective and in not appreciatingtritheg evulideynce. re'co'ii.d in accordance with law and that reco__r'd«e,d..a'iil;§j«._t'h'e_V conclusion is wholly erronea_;i's..v_and""i|.l_egaVl,'-.1 VFiVndi'iigs of"

Trial Court, both on,questgio-ns'~of*~..fact and. law, were questioned. Learned Appellatef't'Jiidg'eV,;_ rai's.ed the following points for consider_atiori"f?" *

(i) _ trial Eudge has __e_rr_ed in __ _ V the oral and llll H evidence on record in the light _ _ ' of of law and

(ii) * Vwhether' interference by this Court in ..r;je""irnVi)ugned judgment and decree is A. neciessa ry?

examining the record and on re-

appieciationiol' evidence, learned Appellate Judge arrived the .s'a_n*ie findings as was arrived at by the learned Trial g."J,,u'dg_A."and as a result, appeal was dismissed. This second _,appeal is directed against said judgments / decrees. X «(T

11. Sri.B.C. Rajeeva, learned advocate appearing for the appellant, firstly, contended that, Courts below have erred in relying upon Ex.D41 - an unrejgis.t"ere.d palupatti, which was not admissible in evidencée---in,:\}ie'w'l S.17 of the Indian Registration _Act.._ "Co:u_rts.,, it below are not justified in holding that there of joint family properties in"it_h'e..V_abse"ncewof»-,a 'registered " V document. Thirdly, Courts A_h.eVlAow"i.a_re n'ot.._justlfied in placing reliance on revenue.r'eco,--rcTs,"wliaeri». the same were effected on the basis of"'Ex'_ij4V:i',._'w_hich inadmissible document. ,oug'ht.Vto have been rejected withou«ti.._goi.ng on the ground of non--jolnder of necessary flpvarty 'ar,'e;',.,':'_'$mt.Parvathamma, daughter of HOnF3§éQ'VOV&'da. Lastly, findings and conclusions of Courts below a_revco.ntr.a__ry to the record of case and hence, second appeal r'i'se'S'*--Sujg'stantial questions of law. 1"2,.V__A'3~ I have perused the impugned judgments and "a_is.o»_"tA'i.ie judgment / decree passed in RSA 325/95 dated

--..'j3l,iO7.98, between appeilant and 4"' respondent. E» X

13. Indisputediy, 4"' defendant - Smt. Kernparnma, had fiied 0.8.344/98 against the piaintiff. Suit was decreed on 12.01.1994. R.A.9/94 fiied the said judgment was dismissed on was questioned in RSA 325/95...iiiiﬁecondh"'§"p.F§jVea'i"

dismissed on 31.07.1998. Howe'i(er7,3_A3i"i'it)ert§.r_:"s..oudrit:",tfd7-.. attack the safe in a process knoi/iin» in la'w_wasf'p,ro'vi'ded for.

14. Appeilant ﬁifedt on 06.03.99 and stated the cause of action . . . . . . .. . .. . .. . . $'T.h.e..CaU§3e..'Qfy:..aC.ti:Qﬂ when.d.ema.nd......... . .. .. . . for eqguat_~pa:'rtiti_o'n«..a.;fi?i"engéiail the properties by the piaintiffAipfrbm._»i'diefen:da.nts-3 1 to 3 by canceiiing the settie-_ment ,_dee°d 28.10.78 and Saie deed Ve>_f<ecut'ed"'py_'i--.ate_ i{ddappa @ Kodaiah on 02.11.78 thie-ik.Vn_Qi.m|edge of piaintiff, iater the iiberty 3 hass.A.t)e4en._Vgranted in RSA 325/95 to question the sale 3 ~ deéd._dat".e,d}~31.0798 and on an subsequent events/ ",'datesH{p' tEx.P22 is a settiernent deed executed by 5_'Kodfa'p_Da in favour of defendants 2 and 3. Said deed has 3' been attested by plaintiff and defendant No.1. In terms of the covanants contained in the said deed, properties 3 3/ J

-- -s-ep-a-rarely _:Vceji4ti';vat'i"rig 'WSaid l() settied by Kodappa in favour of the defendants 2""and 3 f4am'i;ly had fallen to the share of deceased Kodappa partition and he settled the same in favour V' son. Plaintiff has admitted the:-'sai'd«.dA_o'cumeAnt}__ Courts below have drawn an inference. tha't',_»_,thereivwia;=;,'a'--.., partition ofjoint family propVe'rtie~si

16. Plaintiff adn9ii't--teCl.""t,hat, he has been separately cultivating lan.d'_whi'c_hi.fel"lf"t.oV'hi.s "share and that, 1" defendantfar'i';j_ii¥;od:aAppa"Jizvhloiris brothers are also establishes "i'ritihat was partition and separate enjoyment offarniiyvplroperties. Parvatharnma ~ PW3 is the sister of pn-'laintiff.f*. Considering the evidence of DW1 and othe'r"'"docurnentary evidence on record, it _has:pe,e'i'i._held.,tiri;at, joint family properties were partitioned bychildren'vofriirlonnegowda through Chikkamma and they 'vjzvere in separate possession and enjoyment and hence, A partition is not tenable.

17. Plaintiff has tindisputedly attested the "settlement deed dated 28.10.78 (Ex.D22). He has sought «... A cancellation of the same by filing suit on 06.03.99. Article that governs canceiiation of instruments is Articie°=.S9 of Schedule to Limitation Act, 1963 which pro..v_i_ﬁde's.':t;hre.e years D§ri0d, from the time the fact entiVt_ling--;: piainytitff have the instrument cancelled"0Vrl"set3.aslde_.V'--waVs'°firs«t became known to him. Being a sig_na'tory to'_th':e"s'aid=; in the form of a consenting 'witi'aless, he._hartlf'.=i<n'o;wVledge of' the said instrument the""'d'a.teﬁbf._'its e>'<'ec"ution i.e., 28.10.78. The suit fiiedlon .ig.:v.Vbe.yond the period of ilmitatlon._, it 0 V plaintiff that, property involved in the-_///aie deed"A:date'dy:"0.3".11.78 was thrown in to the common stock of.join"t family properties. Certified copy of thei..saiij.i.,sa'i--eA deeVdV'i's"EVx.P1. it is a deed executed in favour

---- Kempamma, by Kodappa under which, olutpof guntas of iand in Sy. No.16/11, northern lyhaif portion measuring 035 gtintas was soid. Said "'l:"_d~o_cti'i_nent has been signed by plaintiff as a witness. it is also shown in the said deed that, southern boundary of the property sold, is the remaining extent of 0.35 giintas of B l Ex' the property which fell to the Share of plaintiff, Thus, partition of the land in E*';iy.J\l<}.1E-5,-"fls.1. and t|2er'eafter,'e'.s"al.e by Kodappa is established. Piaintiff being e said deed, has imowlerige of the said...in_:s'truon:erit 0241.78. 4*" defendaet 9 ;<e;ri;§am§'aj;,ri':.eé'._o.._s.».'sgiéit/198 against plaintiff. In the said _proce'ecc_:lin_q alsokfythéel herein had the knowledge ofV"i't..%§e saicilllsalleidjeedi. He did not question the saivrl:"diseed;h. registered deed. Suit was decreed and appl-e;_3Is',"'fiI.;f;=d n.§_m_ were dismissed. Liberty granteci"i;s;Z'to es=tta;:l<~7tl1e~ ;_>roce_s_s__l_<_n_ow_n_ to law. Hentzie, c.ﬁ'a>Vll'er"§'ge 4t'o7.'js,e§ie.i:'nade":mder {he said deed or cancellgtioii ofv's'3:'%'d.p4Vdeeicl.,.__}é'a.s to be in the process know to law, whic'l3.._4i*near:s, 'r{\_/i"tli;.i".i"i the period allowed under law. Art,i<i:§e'v S9 beirig-.avp_p_liyr;able, the period prescribed being 3 years, 's,ui'--t filed on 86.63.99 for relief in respect of the 'Hse:i'd._'de'ed."_j-i._sViiblerred by limitation. Subsequent sale by Defeodavntexé in favour of Defendant ~ 5, that too during "stilespendency of suit, has not given rise to any cause of .' to the plaintiff. k /"

/' l')

19. In the case of DADU DAYALU MAHA-SABHA, JAIPUR (TRUST) Vs. MAHANT RAM N11/i/AS ,4/vt:1".2i'ivti?*t}%iEi=2 (AIR 2008 sc 2187), the plaintiff had feted permanent injunction on basis of"'his«.leg'_al _entrtl_em'ent succeed to gaddi. The suit wa»s_dism(isse'd_--,','by, thVeT'"'Frial.,V Court and First appellate rmasng' t.hla_t ij~t;fali'h't:tr was' not in possession of suit propie't't§/g_:on"'t,he date"of*s4uit. High Court reversed the co4nCu'i'renvt1w'iVfandlgirtrgs. '--..On appeal, the Supreme Court'r_evefsVed"~the: of High Court Upholding ,tl*I<-f'firi:l7tlltr?9S fI¢.ClCrr,d~:-'*1, ,t_ii,al,and_ first _a_.DDe.ll.ate , Courts,,._The..,_rel'i1e:f ..of--_pe_rma'rr--en.t'°injunction was refused. Obsei'u?atlCi:': vita:'fhow.e've:r,"~-made that, plaintiff may file a suit for po-sgsessioh so advised. The plaintiff filed a suitﬁfor p.osses'sio.nvwhAi,=:h was dismissed. The question was vresf}'u,d_icata would apply to such suits in view of llthelhgpex:f;'o_urt"observation in the earlier suit. Apex Court in the seeorrdll round of litigation has held as follows:--

tr ":1,VV9". The judgment of a Court, it is trite, should not ..i::e interpreted as a statute. The meaning of the words used in a judgment must be found out on the backdrop of the fact of each case. The Court while passrng a tudoment cannot take away the rioht of t /I _,..

30 the successful partv indirectlv which it cannot do directly. An observation made bv a suneriorftiouirt is not bindino. What wouid be bindinq is the decision. Such a decision must aji'ir.iﬁ/'ediiva4t upon entering into the merit ofthe ijssue"s=..ijnv.oE\r_e'd 'in it the case."

.4 (Ein-phhlasis supfpE'.iedA' by':

It was aiso held that, cEuaim"on:l_b:asis of legal entitiement having be_eTn_ rAS3e;Ct.ed-.._'earlier, the issue of entitiement stood determi.n:ed'and Vsarrwe would operate as res--judic_ata. _. .

lfagctsi'-d'i's.ci'ose 'fi"i'E':'t,ﬂ: the Triai Court and the lower taken notice of 33(1) of the Limitat-ion-AVct~,_ The said provision casts a duty the xCourt"to_..__d'ismiss the suit or an appeai or an ' aVp"p.l.ica.tiVonv;~.itmade, after the prescribed period, aithough, limlitlationeisfnot set up as a defence. In the case of Gijrw'-J/\?i,4¢;\ij' ANASUY/ii AND OTHERS vs. FARE/'ATINI A' 2lM;«--*i..REiV'DRA CHOWDHARY AND OTHERS (.2007 (10) scc A296') considering 8.3 of the Limitation Act, it has been held mthat, it is for the Court to determine the question as to \, J thereon whether the suit is barred by iimitation or not irresgective of the fact that, as to whether such a piea hasWb"e:e'iiﬂra.i'sred by the parties. Such a jurisdictionai fact "ti".uus,k"

be pleaded. In the instant case,'»~-E35 ' written statement, defence with"'reg--aird to"!.irn3ta«tion*vtra's_ putforth. Though there is id/it_h'regard:VV4to"'bar ot' iimitation, no issue was and no finding was recorded,"Viiiiiihtotiiéijv beiow have decided the 4i_ssi4es/fooitntgsi; prtatintiff and have dismissed 's'i§"i's.c __ We. . . .ﬁ.FidiD.9S not be gone into, since barred under Articie 59 of the Limtaition"'A_ct,:'1»--9é;2.' In me 'caséor LACHHMI SEWAK SAHU vs. RAM fA.iER":;944 PC 24), it has been heid that a point ofi?i'rt*2itati.oiii.V_is:;prima facie admissible even in the Court of ﬂniast aithough it had not been taken in the tower A Cf{To£;trtrs.

22. Since the question of iimitation goes to the root V of the matter, as noticed supra, the suit having been fiied \/, W1 on 63.1999 chaiienging the Safe deeci dated 2.1.1,,_1978 and settiement deed 28,lO.1978g is barred by view of the appiicabiiity of Articie 59 under Sti'i:1:'edL:t::V§_="a:{t§ Limitation Act. Since, the suit wVasi*'apipar«:nt_i§}fi:i.n:é' barred in view of the facts, circumstance": a'nd"'the"'re'c~o.rd. fir§'ti.c'e't:E_ stigra, is liable to be dismisvse.;:i""o_n thhat.Co:.iVVet'»:it§~--ei'f';'" !49ience"

it is unnecessary to ex-amE.nev.an~,i"ctiieir grot.i'nd.. In the resuit, shaii stand rejected.

sac%*»L

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Karnataka High Court