Karnataka High Court
Perumalappa S/O Bajjappa vs Sri Seenappa on 9 August, 2012
Author: Subhash B.Adi
Bench: Subhash B Adi
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 9th DAY OF AUGUST 2012
BEFORE
THE HON'BLE MR.JUSTICE SUBHASH B ADI
REGULAR SECOND APPEAL NO.2848 OF 2006
BETWEEN:
1. PERUMALAPPA S/O BAJJAPPA
SINCE DECEASED BY LRS
1(a) SMT.CHANNAMMA
W/O LATE PERUMALAPPA
AGE: 50 YEARS OCC : AGRICULTURE
R/O PATALAMMA BADAVANE,
KOLAR DIST.
1(b) MANJUNATH
S/O LATE PERUMALAPPA
AGE : 26 YEARS OCC : AGRICULTURE
R/O PATALAMMA BADAVANE
KOLAR DIST
2. SEENAPPA
S/O BAJJAPPA
AGED ABOUT 54 YEARS
R/O PATALAMMA EXTENSION
MALUR TOWN
MALUR KOLAR DISTRICT 562 111 ... APPELLANTS
(BY SRI. VIGHNESHWAR S SHASTRI, ADV.)
AND:
1. SRI SEENAPPA
S/O CHANDRAPULLAPPA
AGED ABOUT 49 YEARS
R/O RAILWAY STATION ROAD
MALUR TOWN
KOLAR DISTRICT 562 111
2
2. CHANNAPPA
S/O CHANDRAPULLAPPA
AGED ABOUT 44 YEARS
R/O CHIKKAMARAMMA TEMPLE STREET
MALUR TOWN
KOLAR DISTRICT 562 111
3. PERUMALAPPA
S/O CHANDRAPULLAPPA
AGED ABOUT 59 YEARS
R/O CHIKKAMARAMMA TEMPLE STREET
MALUR TOWN
KOLAR DISTRICT 562 111
4. K RAMAIAH
S/O VELLAPPA, MAJOR
R/O KODUR VILLAGE,
KASABA HOBLI
MALUR TALUK
KOLAR DISTRICT 562 111
5. VENKATESH
S/O BUCHAPPA, MAJOR
R/O CHIKKAMARAMMA TEMPLE STREET
MALUR TOWN
KOLAR DISTRICT 562 111
6. MUNISWAMY
S/O VENKATAPPA, MAJOR
R/O CHIKKAMARAMMA TEMPLE STREET
MALUR TOWN
KOLAR DISTRICT 562 111
7. NARAYANAPPA
S/O BAJJAPPA, MAJOR
R/O PATALAMMA EXTENSION
MALUR TOWN
KOLAR DISTRICT 562 111 ...RESPONDENTS
(SRI. S M PREMKUMAR, ADV. FOR R1 & R2 (ABSENT)
R4 AND R6 - SERVED
NOTICE TO R3, R5 AND R7 IS D/W V/O DT. 24.1.11)
---
This RSA is filed under Section 100 of CPC against the
judgment and decree dated 2.9.2006 passed in RA
3
No.139/2002 on the file of the II Addl. Civil Judge (Sr. Dn.),
Kolar allowing the appeal and setting aside the judgment and
decree dated 29.6.2002 passed in O.S.No.125/93 on the file
of the Addl. Civil Judge (Jr. Dn.), Malur.
This appeal coming on for Hearing this day, the Court
made the following:-
JUDGMENT
This appeal is filed by the plaintiffs against the judgment and decree in RA No.139/2002 dated 2.9.2006 on the file of the II Addl. Civil Judge (Sr. Dn.), Kolar reversing the judgment and decree in O.S.No.125/1993 dated 29.6.2002 on the file of the Addl. Civil Judge (Jr. Dn.), Malur.
2. The parties are referred as per their rankings in the Trial Court.
3. The plaintiffs sought for a decree of declaration declaring that they are the owners of the suit schedule property; declaring that the sale transactions dated 6.4.1968, 19.11.1968, 23.8.1974 and the mortgage transaction dated 6.5.1968 as null and void and not binding on the plaintiffs and also for consequential decree of permanent injunction restraining the defendants, their agents and family members from interfering with the 4 peaceful possession and enjoyment of the suit schedule property.
4. The case of the plaintiffs was that, the land bearing Sy.No.245/1 measuring 1 acre 29 guntas situated at Malur village was belonging to Venkataramanappa, their grandfather. The said Venkataramanappa had three sons namely Bajjappa - father of plaintiffs and defendant No.7, Chandrapullappa - father of defendant Nos.1 to 3 and Venkatappa - father of defendant No.6. The said land was partitioned under a registered partition deed dated 17.2.1962. Each of the branches namely Bajjappa, Chandrapullappa and Venkatappa got 23 guntas under the said partition deed. The eastern portion was given to Venkatappa, western portion was given to Bajjappa and the middle portion was given to the Chandrapullappa. Since then, the plaintiffs and defendants have been cultivating and enjoying the said properties exclusively against each other.
5. However, on 18.5.1993, defendant Nos.2 and 3 tried to trespass into the suit schedule property to dig a borewell. The plaintiffs and defendant No.7 managed to defend the 5 defendant Nos.2 and 3 from interfering with the possession of the suit schedule property by them. Upto this point, the plaintiffs and defendant No.7 were unaware of any transaction by Chandrapullappa or Venkatappa. However, they came to know about the documents such as the sale deeds dated 6.4.1968, 19.11.1968 and 23.8.1974 and alleged that these documents are fictitious, erroneous and not binding on the plaintiffs. In view of the same, they got the cause of action and accordingly, they filed the suit.
6. Defendant Nos.2 and 3 filed written statement inter- alia admitting the registered partition deed dated 17.2.1962 dividing 1 acre 29 guntas into three portions and also admitting that each branch got 23 guntas. However, it is alleged that the father of the plaintiffs and defendant No.7 viz. Bajjappa and father of defendant Nos.1 to 3 and 6 had an oral understanding and got exchanged their share and the share of plaintiffs and defendant No.7 was given to the father of defendant Nos.1 to 3 and defendant Nos.1 to 3 are in possession of 23 guntas plus 23 guntas, totally 1 acre 6 guntas of land. Towards the east of the share of defendant Nos.1 to 3, plaintiffs and defendant No.7 were in possession 6 and enjoyment of the said survey number. Defendant No.6 has got 32 guntas in Sy.No.268/3. In Sy.No.268/3, the share of plaintiffs and defendant No.7 as per partition is in possession and defendant No.6 who is in possession of 32 guntas plus 32 guntas i.e. his father's share and middle 23 guntas belonging to the share of the father of defendant Nos.1 to 3. With the said arrangement, father of plaintiffs and defendant No.7 and father of defendant Nos.1 to 3 and defendant No.6 were enjoying the suit schedule properties. Defendant No.6, plaintiffs and defendant No.7 have raised eucalyptus trees in Sy.No.268/3 and alleged that defendant Nos.2 and 3 have invested the money and have dug borewell, constructed pump house and also planted coconut plants and they are in possession of 23 guntas plus 23 guntas.
7. Defendant No.6 filed a separate written statement denying the plaint averments and alleging that 6th defendant is entitled to 23 guntas in Sy.No.245/1. Sy.No.268/3 is in the joint family property measuring 2 acres 16 guntas and the same has been allotted to the father of plaintiffs and defendant No.7. Defendant Nos.1 to 3 and 7 defendant No.6 have got 23 guntas each and the plaintiffs and defendant Nos.6 and 7 have raised eucalyptus trees in the suit schedule property. He alleged that the plaintiffs, defendant Nos.1 to 3 and 7 have no right or interest over the 23 guntas which is allotted in the partition deed dated 17.2.1962.
8. The Trial Court, on the basis of these pleadings, framed the following issues:
(1) "Whether plaintiffs prove their title over the suit schedule property?
(2) Whether plaintiffs prove that they are in lawful possession and enjoyment of the suit schedule property?
(3) Whether plaintiffs prove the alleged interference by the defendants 1 to 3 over the suit schedule property?
(4) Whether plaintiffs prove that sale deed dated 6.4.68, 19.11.68, 23.8.74 and mortgage deed dated 6.5.68 are fictitious transactions and not binding upon them?
(5) Whether defendants 2 and 3 prove that under oral understandings the share holders got changed their shares and accordingly they took the possession of the suit schedule property as contended in para 10 of the written statement? 8 (6) Whether defendants 2 and 3 prove that they have perfected their title over the suit schedule property by way of adverse possession?
(7) Whether the suit is properly valued for the purpose of court fee and jurisdiction?
(8) Whether the suit is barred by law of limitation? (9) Whether the plaintiffs prove that they are entitled for the reliefs claimed?
(10) What order or decree?"
9. Before the Trial Court, plaintiff No.2 got himself examined as PW-1. He examined three other witnesses as PWs-2 to 4 and got marked Exs.P1 to P15. Defendant No.3 got himself examined as DW-1, examined four witnesses as DWs-2 to 5 and got marked Exs.D1 to D46.
10. On appreciation of the evidence, the Trial Court held that the plaintiffs have proved the title and possession of the suit schedule property. The plaintiffs have also proved the interference by defendant Nos.1 to 3 and further, proved that the sale deeds dated 6.4.1968, 19.11.1968 and 23.8.1974 and the mortgage deed dated 6.5.1968 are null and void and not binding on the plaintiffs and defendant No.7. Defendant Nos.2 and 3 have failed to prove the oral understanding and 9 exchange of land and also failed to prove that they perfected the title by adverse possession. The Trial Court also held that the suit is not barred by limitation and accordingly, decreed the suit.
11. Defendant Nos.2 and 3, aggrieved by the judgment and decree of the Trial Court, filed an appeal in RA No.139/2002. The Appellate Court, on the basis of the rival contentions framed three points for determination as under:
(1) "Whether the judgment and decree of the Trial Court is in conformity with the evidence? (2) Whether the judgment and decree of the Trial Court calls for interference? and (3) What order?"
12. The Appellate Court holds that there was a registered partition between Bajjappa, Chandrapullappa and Venkatappa in respect of Sy.No.245/1 measuring 1 acre 29 guntas and each branch got 23 guntas and that defendant Nos.2 and 3 have failed to prove the oral exchange of land, but, however, holds that the suit is barred by limitation on the ground that in the year 1988-89 itself the names of defendant Nos.2 and 3 have been entered in the revenue 10 records and as such, the plaintiffs had the knowledge of the entry of the names of defendant Nos.2 and 3 in the revenue records and the suit is filed in the year 1993 i.e. beyond a period of three years as contemplated under Article 58 of the Limitation Act. It is against the said judgment and decree, the plaintiff Nos.1 and 2 are in this appeal.
13. This Court, by order dated 24.6.2010 admitted this appeal for the following substantial question of law:
"Whether the judgment and decree of the first Appellate Court is perverse in misleading the evidence on record and dismissing the suit in absence of adequate pleadings?"
14. From the pleadings, evidence and the judgment of the Appellate Court, the material substantial question of law that arises for consideration in this appeal is:
"Whether the entry in the revenue records by itself creates a cause of action for the plaintiff to sue for declaration as contemplated under Article 58 of the Limitation Act?"
15. Heard Sri.Vigneshwar Shastry, learned counsel for the plaintiffs. Though this matter was listed yesterday and 11 today, none appeared for the respondents.
16. Sri.Vigneshwar Shastri, learned counsel for the plaintiffs contended that defendant Nos.2, 3 and 6 who have filed written statement, have not denied the registered partition deed dated 17.2.1962 as per Ex.P1. They have also not denied that each branch viz. Bajjappa - father of plaintiffs and defendant No.7, Chandrapullappa - father of defendant Nos.2 and 3 and Venkatappa - father of defendant No.6 each got 23 guntas in Sy.No.245/1. It is also not disputed that all were put in separate possession. The eastern portion went to the branch of Venkatappa i.e. defendant No.6, western portion went to the branch of Bajjappa i.e. plaintiffs and defendant No.7 and the middle portion went to the branch of Chandrapullappa i.e. defendant Nos.2 and 3. When the registered partition deed is not in dispute, the division of property is not in dispute, neither Venkatappa or his son defendant No.6 nor Chandrapullappa or his sons defendant Nos.2 and 3 had any right, title or interest to execute the sale deeds or the mortgage deed. Defendant Nos.2 and 3 claim that there was an oral understanding of exchange of land, however, both the Trial 12 Court as well as the Appellate Court have concurrently held that defendant Nos.2 and 3 have failed to prove the oral understanding of exchange of land. Apart from this, there is no law which provides a Hindu to create an oral exchange. As far as the limitation is concerned, learned counsel submits that mere entry of name in the revenue records does not create any right, title or interest in the person nor it creates any threat of dispossession or creates any cause of action as long as the plaintiffs are in possession and enjoyment of the suit schedule property.
17. The Appellate Court was not justified in holding that the entry in the revenue record itself is a cause of action. To support his contention, he also relied on the judgment of the Division Bench of this Court reported in ILR 1991 KAR 1500 in the matter of 'STATE OF KARNATAKA v. MOHAMMAD KUNHI' and submitted that each and every entry in the record of rights does not give any cause of action, adverse entry in the revenue record in respect of the property in possession of the plaintiffs cannot be taken as a threat to the right of the plaintiffs to the property in possession. Relying on this judgment, he submitted that the plaintiffs and defendant 13 No.7 are in possession of the suit schedule property. Plaintiffs have not sought for a decree for possession and inturn though it is not on record, defendant Nos.2 and 3 have filed an application under Section 144 of CPC for restoration of possession in the very same proceedings after disposal of the RA before the Lower Appellate Court. This pre-supposes that the plaintiffs and defendant No.7 are in possession and it also shows that mere entry in the revenue record does not create any right, title or interest in the suit schedule property and as such, the Lower Appellate Court, without any just reason, has erroneously dismissed the suit.
18. In so far as the partition of Sy.No.245/1 amongst the branches of Bajjappa, Chandrapullappa and Venkatappa on 17.2.1962 is concerned, there is no dispute and in the evidence, DW-1 has admitted that in pursuance of the registered partition deed, all the three branches got 23 guntas each and they were respectively cultivating their lands. This evidence proves that neither the father of defendant Nos.2 and 3 nor the father of defendant No.6 had any right, title or interest to create any transfer and such a transfer in law becomes void. As such, as far as the transfers 14 at Exs.P8, P9, P10 and P11 are concerned, the same are void as the vendors having no title, could not have transferred the property.
19. However, the Lower Appellate Court, to reverse the judgment and decree of the Trial Court, had relied on Article 58 of the Limitation Act. Article 58 of the Limitation Act reads as under:
"58. To obtain any other declaration - three years - when the right to sue first acrues."
20. In case of a suit for declaration, the limitation prescribed being three years, when the right to sue first accrues, the limitation starts running if the plaintiffs and defendant No.7 gets the right to sue at the first instance. In this case also, in the written statement of defendant Nos.2 and 3 nor in the written statement of defendant No.6 or in the evidence of DW-1, it is established that the plaintiffs have been dispossessed though it is alleged that defendant Nos.2, 3 and 6 are in possession. But, it is not disputed by the defendant Nos.2, 3 and 6 that the plaintiffs and defendant No.7, by virtue of registered partition deed, were put in possession.
15
21. Now, the only ground on which the plaintiffs and defendant No.7 are non-suited is the entry in the revenue records. It is also not in dispute that upto 1988-89 the names of plaintiffs and defendant No.7 were entered in the revenue records in respect of their share of the property. However, from 1988-89, the names of defendant Nos.2, 3 and 6 were entered in respect of the said property. It is only on this ground, the Lower Appellate Court holds that the suit is barred by limitation.
22. It is well settled law that mere entry in the revenue records does not create any right, title or interest on a person and particularly, as against a registered document. Mere entry in the revenue records also cannot create a cause of action and every entry is not a threat of dispossession. If that entry does not by itself create any cause of action, the title acquired under the registered partition deed by virtue of which the plaintiffs and defendant No.7 have got their share, has not been legally cancelled or annulled and there being no other transfer effected by the father of plaintiffs and defendant No.7, the father of defendant Nos.1 to 3 or father 16 of the defendant No.6 do not get any right for transfer of the land given to the plaintiffs.
23. The Division Bench of this Court in the judgment of 'MOHAMMAD KUNHI' referred to above at paragraph 18 has observed thus:
"18. Unlike the Limitation Act, 1908, Limitation Act, 1963 contains only three Articles in respect of suits relating to declarations i.e., Articles 56, 57 and 58, Undoubtedly, the relief of declaration sought for in the suit does not fall either under Article 56 or under Article 57. Therefore, it has to necessarily fall under Article 58 which is a residuary article in sofar as the suits relating to declarations are concerned. Article 58 of the Limitation Act, 1963 is equivalent to Article 120 of the Limitation Act, 1908 with a difference that the limitation beings to run in the case of Article 58 when the right to sue first accrues whereas in the case of Article 120 of the Limitation Act, 1908 the limitation begins when the right to sue accrued. Therefore the word "first"
contained in Column No. 3 of Article 58 after the words 'right to sue' is not found in Article 120 of the Limitation Act, 1908. The contention of learned Government Advocate is that the right to sue first accrued to the plaintiffs when the entries in the revenue records were changed from redeemed to 17 unredeemed in the year 1918 and continued till the date of filing of the suit; that the plaintiffs were also aware of this fact of changing the description of the land from redeemed to unredeemed when they purchased the suit property on 21st June 1965 as per Exs.P-1 to P-3. There is no doubt that P.W.1 has stated in the cross examination that when they purchased the suit property the revenue record described the suit property as unredeemed estate. The learned Government Advocate also brought to our notice the averments made in the plaint as to how the cause of action arose. In para-12 of the plaint the plaintiff has stated thus:
"12. The cause of action for this suit accrued to the plaintiffs against the Defendant on and from 17-8-1966, 18-8-1966, 30-11-1966, 9-10-1967, 9-9-1969, 14-1-1971, 18-1-1971, 2-6-1973 and subsequently at Kundacherry Village, Bhagamandala Nadu, Mercara Taluk, Coorg District and at Mercara, Coorg District, within the jurisdiction of this Honourable Court."
It is not each and every entry in the Record of Rights that would give rise to cause of action. As to when a cause of action would accrue to the plaintiffs has been the subject of interpretation in several decisions. In MT. BOLO v. MT. KOKLAN AND ORS., AIR 1930 PC 270 their Lordships considered the meaning and effect of right to sue in Column No. 3 of Article 120 of the Limitation Act, 1908 and 18 held thus:
"There can be no "right to sue" until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted."
This was again reaffirmed in ANNAMALAI CHETTIAR AND ORS. v. A.M.K.C.T. MUTHUKARUPPAN CHETTIAR AND ANR., AIR 1930 PC 9 The Supreme Court in MST. RUKHMABAI v. LALA LAXMINARAYAN AND ORS., AIR 1960 PC 270 after referring to the decisions of the Privy Council in A.I.R. 1930 P.C. 270 and A.I.R. 1931 P.C. 9 has held that if there are successive invasions or denials of a right, then it can be held that a person's right has been clearly and unequivocally threatened so as to compel him to institute a suit to establish that right. The Supreme Court has also further held thus:
"The legal position may be briefly stated thus: The right to sue under Article 120 of the Limitation Act accrues when the defendant has clearly and unequivocally threatened to infringe the right asserted by the plaintiff in the suit. Every threat by a party to such a right, however ineffective and innocuous it may be, cannot be considered to be a clear and unequivocal threat so as to compel him to file a suit. Whether a particular threat gives rise to a compulsory cause of action depends upon the question whether that threat effectively invades or jeopardizes the said right."19
It may be relevant to notice the facts of Rukmabai's case as stated in para-34 of the very Judgment which are as follows:
"The facts relevant to the question of limitation in the present case may be briefly restated: The trust deed was executed in 1916. The suit house was constructed in 1920. If, as we have hold, the trust deed as well as the construction of the building were for the benefit of the family, its execution could not constitute any invasion of the plaintiff's right. Till 1926, the plaintiff's father, Ratanlal was residing in that house. In 1928 when Daga challenged the trust deed, the family compromised the matter and salvaged the house. From 1936 onwards the plaintiff has been residing in the suit house. It is conceded that he had knowledge of the litigation between Rukmabai and Chandanlal claiming the property under the trust deed; but, for that suit he was not a party and the decision in that litigation did not in any way bind him or affect his possession of the house. But in execution of the decree, the Commissioner appointed by the Court came to the premises on February 13, 1937, to take measurements of the house for affecting partition of the property, when the plaintiff raised objection, and thereafter in 1940 filed the suit. From the aforesaid facts, it is manifest that the plaintiff's right to the property was not effectively threatened by the appellant till the Commissioner came to divide the property. It was only then there was an effectual threat to his right to the suit property and the suit was filed within six years thereafter. We, therefore, hold that the suit was within time."20
From the aforesaid facts it is clear that the mere adverse entry in the Record of Rights in respect of the property in possession of the plaintiff cannot be taken as real threat to the right of the plaintiff to the property in his possession. Rukhamabai was not a party to the proceeding. Her right to the property came to be threatened only when the order was tried to be executed and she was tried to be dispossessed. Their Lordships further held that even if it was considered that Laxminarayan had the knowledge of the litigation between Rukhmabai and Chandanlal claiming the property under the trust deed; but, for that suit he was not a party and the decision in that litigation did not in any way bind him or affect his possession. In the instant case, it may be relevant to notice that the entries on which the reliance was placed changing the suit land from redeemed to unredeemed to form a basis for a starting point of limitation, even if it were in the knowledge of the plaintiffs the same could not affect the right of the plaintiffs adversely because those entries were not made in accordance with law, after due notice to the plaintiffs. As such as held by the Supreme Court in Khader's case they were void and non est. Therefore, they cannot be of any value as it cannot be held that the same affected the right of the plaintiffs in any manner. In C. MOHAMMAD YUNUS v. SYED UNNISSA AND ORS. 21 (AIR 1961 SC 808), it has been further reiterated that there could be no right to sue until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right'. There is no such clear and unequivocal infringement of the right of the plaintiffs or real threat to the right of the plaintiffs by the entries which have no legal effect in the eye of law. Further the very order dated 17th August 1966 - Ex.P-9 itself shows that the Government was not sure whether the suit schedule property was redeemed sagu or unredeemed sagu. They also did not assert in the Government Order dated 17th August 1966 that the suit schedule property was redeemed sagu only. This conduct on the part of the Government would also show that the entries made from the year 1918 till the date relied upon by the learned Government Advocate to non-suit, the plaintiffs were not treated even by the State Government as final and conclusive and affecting the right of the plaintiffs. We may also refer to two more decisions of the Supreme Court having a bearing on the point. In GANNON DUNKERLEY AND CO. LTD. v. THE UNION OF INDIA (AIR 1970 SC 1433), it has been held thus:
"In our Judgment, there is no right to sue until there is an accrual of the right asserted in the suit, and its infringement, or at least a clear and unequivocal threat to infringe that 22 right by the defendant against whom the suit is instituted."
Thus in Gannon's case the decision of the Privy Council in A.I.R. 1930 P.C. 270 was again restated. In RAGHUBIR JHA v. STATE OF BIHAR AND ORS. (AIR 1986 SC 508), the Supreme Court held that the limitation would begin to commence only on the communication of the termination of the proceedings and not on the date the order was passed by the first authority. In the instant case, there is no evidence adduced by the defendant nor there is any material brought on record in the cross examination of P.W.1 that right to sue accrued much earlier to the date of the suit. As in the instant case the entries in the record of rights, being non-est cannot be held to affect the right, title and interest of the plaintiffs and their predecessors-in-title in possession of the suit property. Such entries cannot also be held to be a threat to the title of the plaintiffs who are in possession of the suit property so as to give rise to the cause of action sufficient for commencement of the period of limitation. However, learned Government Advocate has placed reliance on a decision of this Court in DADA JINNAPPA KHOT v. SHIVALINGAPPA GANAPATI BELLANIKI (ILR 1989 KAR 993). That was a case in which learned single Judge of this Court recorded a specific finding that in the light of the application filed by the defendant 23 before the Tahsildar in the year 1967 denying the title of the plaintiff there was a real threat to the plaintiff's right and therefore on that date the right to sue accrued because the plaintiff was also a party to that application. Thus, it is clear that the Decision in D.J. Khot's case is confined to the facts of that case. Therefore, the contention of the learned Government Advocate that the change of entries from redeemed to unredeemed in the year 1918 and continuation of the same in the subsequent years was a real threat to the right of the plaintiffs cannot be accepted; because those entries are held to be void and non est. Therefore, the contention based on the change of entries from redeemed to unredeemed is rejected....."
24. The Division Bench of this Court relied on the decision of the Privy Council reported in AIR 1930 PC 270 and AIR 1931 PC 9 wherein, the Privy Council, on interpretation of Article 58 of the Limitation Act before the amendment, has held that there has to be successive invasion or denial of right and it is only then it could be held that a person's right has been clearly and equivocally threatened so as to compel him to institute a suit to establish that right.
25. Whether a particular threat gives rise to a 24 compulsory cause of action also depends upon the question if that threat effectively invades or jeopardizes the said right. The entries on which the reliance was placed by the Appellate Court to form the basis of starting point of limitation, even if it were to be in the knowledge of the plaintiffs and defendant No.7, the same could not affect the rights of the plaintiffs adversely because those entries were not made in accordance with law. Further, when the entries being defective and based on void transaction, the entries by themselves do not confer any such right nor the transfer deeds Exs.P8, P9, P10 and P11 will have an effect on the rights of the plaintiffs. Precisely for this reason, defendant Nos.2 and 3 hesitantly plead the adverse possession. However, both the Courts have concurrently negatived the claim of defendant Nos.2 and 3 for adverse possession. Apart from this, the pleadings and evidence are insufficient even to consider the issue as regard to the adverse possession.
26. Since the Appellate Court, wrongly placing reliance on the entries in the revenue records, without even referring to the plea of the plaintiffs in the plaint as regard to the 25 cause of action as stated at paragraph 4 which is not specifically denied by defendant Nos.2, 3 and 6, the Appellate Court was not justified to reverse the judgment and decree of the Trial Court on the ground of limitation.
27. Considering these circumstances, the substantial question of law now framed is required to be answered in favour of the plaintiffs holding that the suit is not barred by limitation. The other substantial question of law is also answered in favour of the plaintiffs. On all other respects, there is also a concurrent finding in favour of the plaintiffs and the same is not disturbed.
28. Hence, appeal is allowed. Judgment and decree in RA No.139/2002 dated 2.9.2006 on the file of the II Addl. Civil Judge (Sr. Dn.), Kolar is hereby set aside. The suit in O.S.No.125/1993 as prayed for the by the plaintiffs stands decreed. However, no orders as to the costs in this appeal.
Sd/-
JUDGE RV