Art.58,65 of Indian Limitation Act - Declaration of title and possession as title was denied - sale deed executed by father alone but not by son - except notice , no suit was filed by the son challenging the sale deed - RCC case filed by plaintiff for eviction and rent was dismissed as the defendant challenged the title - from the date of counter - the present suit for declaration of title and possession was filed after more than 3 years , below 12 years - Art.65 applies - the limitation is 12 years - for declaration of title and possession - in a suit for possession basing on title - the burden lies on defendant to prove that he perfected his title by adverse possession = B.Pullaiah, S/o.B.Seshanna... Appellant/Appellant/Defendant J.Mala Pullamma, W/o.Pullanna And others... Respondents/Respondents/Plaintiffs = published in / cited in / reported in judis.nic.in/judis_andhra/filename=10596
Art.58,65 of Indian Limitation Act - Declaration of title and possession as title was denied - sale deed executed by father alone but not by son - except notice , no suit was filed by the son challenging the sale deed - RCC case filed by plaintiff for eviction and rent was dismissed as the defendant challenged the title - from the date of counter - the present suit for declaration of title and possession was filed after more than 3 years , below 12 years - Art.65 applies - the limitation is 12 years - for declaration of title and possession - in a suit for possession basing on title - the burden lies on defendant to prove that he perfected his title by adverse possession =
Whether article 58 apply or article 65 apply in a suit for declaration of title and possession from the date of denial of title ?
I have no hesitation to hold that the subject matter of the suit
is governed by Article 65 of Limitation Act. The period of limitation in this
case is 12 years from the date when the right to sue first accrued. As observed
in para 14, in this case limitation starts with effect from 29.9.1994. As born
out from trial court record, the present suit was filed on 07.2.2000. The
plaintiffs filed the suit within 5 years 4 months and 8 days from the date when
the right to sue first accrued.
"... ... The present suit is for possession and has been based on title
and the plaintiffs' title has been found. In my opinion, therefore, Article 65
of the Limitation Act, which governs the instant case, is applicable to the
present case. Under Article 65, the burden is upon the defendants to prove that
the suit is barred by adverse possession."
There is no dispute between the parties about the execution of Ex.A1 sale
deed by the father of defendant in favour of the first plaintiff, who is mother
of plaintiffs 2 to 5. As per the averments in the written statement and the
testimony of D.W.1, father of defendant is not competent to execute sale deed
because he is an unsound-mind person.
The father of the defendant was examined
as P.W.2 in the trial court. As seen from the testimony of P.W.2, he executed
sale deed in favour of his sister i.e., the first plaintiff. In the cross-
examination, P.W.2 categorically deposed that he was terminated from service
subsequent to execution of Ex.A1 sale deed.
If really P.W.2 is an unsound-mind
person, what prevented defendant to elicit the same. For the reasons best
known, the defendant did not choose to elicit intellectual fatigue of P.W.2 at
the time of execution of sale deed.
The defendant did not file even a single
scrap of paper to establish that P.W.2 was unsound-mind person as on the date of
execution of Ex.A1 sale deed.
Being Kartha of joint family, he is
entitled to sell even the ancestral property for his family necessities. At the
time of recording of evidence, defendant was aged about 36 years, as per his own
admission. The defendant was aged about 14 years as on the date of execution of
Ex.A1 sale deed dated 03.7.1978. Even assuming, but not admitting, the
defendant came to know about the execution Ex.A1 sale deed, after filing of
R.C.C. by the first plaintiff in the year 1994, from then till date, he did not
file a suit for declaration that Ex.A1 sale deed executed by his father is void
and not binding on him. Viewed from factual or legal aspects, I am unable to
accede to the contention of learned counsel for the appellant that Ex.A1 sale
deed is non-est in the eye of law.
It is a settled
principle of law that this court cannot lightly interfere with the concurrent
findings of the courts below, while deciding second appeal, in view of Section
100 of Code of Civil Procedure.
The second appeal is, therefore, dismissed, confirming the decree and
judgment dated 20.12.2004 in A.S.No.109 of 2002 on the file of I Additional
District Judge Court, Kurnool. The appellant/defendant shall vacate suit 'B'
schedule property and deliver the same to respondents/plaintiffs within a period
of three months from today.
HONOURABLE SRI JUSTICE T.SUNIL CHOWDARY
SECOND APPEAL No.49 of 2005
03-12-2013
B.Pullaiah, S/o.B.Seshanna... Appellant/Appellant/Defendant
J.Mala Pullamma, W/o.Pullanna And others... Respondents/Respondents/Plaintiffs
Counsel for the appellant:Sri P. Kamalakar
Counsel for the respondents: Sri Murali Lincoln
<GIST:
>HEAD NOTE:
?CASES REFERRED:
1. AIR 1960 SC 335
2. AIR 1961 SC 808
3. (2013) 3 SCC 182
4. (2011) 9 SCC 126
5. AIR 1975 Gau 12
6. AIR1991 Kar 273
7. 2007 (2) ALD 313
8. 2006 (1) ALD 116
9. AIR 2000 SC 1099
10. 2003 (5) ALT 560
11. 2002 (3) ALT 778
12. 1999 (5)ALT 494
THE HON'BLE SRI JUSTICE T.SUNIL CHOWDARY
SECOND APPEAL No.49 of 2005
December 03, 2013
JUDGMENT:
This second appeal is preferred by the defendant challenging the decree
and judgment dated 20.12.2004 in A.S.No.109 of 2002 on the file of I Additional
District Judge Court, Kurnool, confirming in appeal the decree and judgment
dated 28.11.2002 in O.S.No.105 of 2000 on the file of Principal Junior Civil
Judge Court, Kurnool. The parties are hereinafter referred to as they arrayed
in the suit. During the pendency of the suit, original plaintiff died and
plaintiffs 2 to 5 came on record as her legal representatives.
2. The case of the plaintiffs is that first plaintiff purchased plaint
schedule property from father of the defendant on 03.7.1978 under a registered
sale deed.
She erected a hut in one portion of the site and divided the
remaining site into three portions. She let out two portions, marked as 'B'
schedule property, to the defendant and his father on oral lease at monthly rent
of Rs.100/-.
The defendant paid rent for some time and thereafter committed
default in payment of rent. The first plaintiff demanded defendant to pay the
rent or to vacate 'B' schedule property. The defendant did not heed to the
demand. Then first plaintiff filed R.C.C. No.8 of 1994 before the Rent
Controller, Kurool seeking eviction of defendant and the same was dismissed on
30.6.1998 with an observation that R.C.C. was not maintainable in view of denial
of title of first plaintiff by the defendant.
The father of defendant sold the
property to first plaintiff for his family necessities and this fact is known to
defendant.
Therefore the defendant is estopped to deny the title of the first
plaintiff.
The first plaintiff is also entitled for rents from the defendant
at Rs.100/- per month with effect from February, 1997, as the claim for arrears
of rent from January, 1993 to January, 1997 is barred by limitation.
Even other
wise, first plaintiff perfected her title by adverse possession. Hence the suit
for declaration of title over 'A' schedule property, recovery of 'B' schedule
property and arrears of rent from defendant.
3. The defendant filed written statement inter alia contending that the
registered sale deed dated 03.7.1978 is a concocted document and was brought
into existence with ulterior motive by the plaintiffs. The sale deed is void
and does not convey valid title in favour of the first plaintiff.
The plaint
schedule property is the ancestral property of the defendant and his father and
the defendant constructed hut in the open site adjacent to his father's house.
The plea taken by the first plaintiff that she acquired title by adverse
possession is baseless.
The suit is barred by time and there is no cause of
action to file the suit.
4. In the trial court, on behalf of plaintiffs, P.Ws.1 and 2 were examined
and Exs.A1 to A4 were marked. On behalf of the defendant, D.W.1 was examined
and Ex.B1 was marked.
5. After having thoughtful consideration to the oral, documentary evidence
and other material available on record, the trial court arrived at conclusion
that the plaintiff is entitled for the relief of declaration, recovery of
possession of 'B' schedule property and recovery of arrears of rent with
interest.
The defendant being aggrieved by the decree and judgment of the trial
court filed A.S.No.109 of 2012.
The first appellate court, while hearing the
appeal, came to the conclusion that the material available on record is not
sufficient to decide whether the suit is filed within the period of limitation.
Therefore, the first appellate court remitted the matter to the trial court to
give a finding on point of limitation, after giving opportunity to both parties
to adduce evidence on that aspect.
The trial court recorded a finding that the
suit is barred by limitation, in view of Article 58 of Limitation Act.
On
reappraising the entire material available on record, the first appellate court
dismissed the appeal while confirming the decree and judgment of the trial
court, except on issue No.5 with regard to point of limitation.
6. The substantial question of law raised in this appeal is:
"Whether the suit for declaration of the present nature is attracted by Article
65 of Limitation Act or Article 58 of Limitation Act?"
7. Heard Sri P.Kamalakar, learned counsel for appellant/ defendant and Sri
Murali Lincoln, learned counsel for the respondents/plaintiffs.
8. The contention of learned counsel for appellant is three fold:
(1) in this
case, the period of limitation starts from 17.2.1994 when defendant got issued a
notice (Ex.B1) to first plaintiff denying her title;
(2) in a suit for
declaration and recovery of possession, period of limitation is 3 years in view
of Article 58 of Limitation Act; and
(3) the plaintiffs are not entitled to seek
relief of declaration basing on the sale deed dated 03.7.1978 (Ex.A1), which is
non-est in the eye of law.
Per contra, learned counsel for
respondents/plaintiffs submitted that in this suit period of limitation
commenced from 30.6.1998 i.e., the date on which R.C.C., filed by the first
plaintiff, was dismissed.
He further contended that in a suit for declaration
and recovery of possession, period of limitation is 12 years in view of Article
65 of Limitation Act.
9. The admitted facts emerge from the pleadings and evidence available on
record are as follows.
The defendant got issued legal notice dated 17.2.1994
(Ex.B1) stating that the father of defendant has no right whatsoever to sell the
suit schedule property which is ancestral property.
The first plaintiff filed
R.C.C. No.8 of 1994 on the file of Principal Junior Civil Judge Court, Kurnool
for eviction of defendant herein and the same was dismissed on 30.6.1998.
The
defendant filed counter dated 29.9.1994 in the R.C.C (Ex.A4).
The present suit
is filed on 07.2.2000. The first plaintiff purchased the suit schedule property
from father of the defendant under registered sale deed dated 03.7.1978 (Ex.A1).
Point No.1:
10. When maintainability of suit itself is challenged on the ground of
limitation, the court has to satisfy itself that the suit is filed within the
period of limitation, before considering other aspects of the case.
It is
needless to say the period of limitation is a mixed question of fact and law in
certain cases.
11. The crucial question that falls for consideration, in this case, is what
is the starting point of limitation?
As per the contention of learned counsel
for the respondents/plaintiffs the starting point of limitation is 30.6.1998
i.e., the date on which R.C.C. was dismissed. As per the contention of learned
counsel for the appellant/defendant, the starting point of limitation is
17.2.1994, when the defendant got issued legal notice (Ex.B1) to the plaintiff
denying his title. To substantiate the argument, learned counsel for
respondents/ plaintiffs has drawn my attention to the decisions in Rukhmabai v
Lala Laxminarayan1 and C.Mohammad Yunus v Syed Unnissa2, wherein the principle
enunciated is that 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.
12. Let me consider the factual aspects of this case, in the light of the
above principle.
The relevant portion of the legal notice dated 17.2.1994
(Ex.B1) is extracted hereunder.
"... ... you have agreed to purchase of my client ancestral property from
his father. If your purchase that agreement or registered may be void because
of his unsound mind and he has no right to dispose of my client half share.
My client several times demanded for partition of his ancestral property. But
his father did not care because of mad.
I, therefore, call upon you on behalf of my client you don't purchase of my
client ancestral property. If you purchase you will be loss and my client have
right to get his legal share through court."
13. A careful scanning of Ex.B1 legal notice clearly manifests that its
contents do not fall within the ambit of unequivocal threat to infringe the
right of the plaintiff in respect of suit schedule property. Viewed from any
angle, this cannot be treated as the starting point of limitation. It is not
out of place to extract paragraph 3 of Ex.A4 counter in R.C.C. No.8 of 1994.
"This respondent humbly submits that the allegations in para 3, 4, 5, 6, 7
of the petition are all false. This respondent further submits petitioner is
not the absolute owner of the disputed hut, this respondent's father having
ancestral property which includes a house and open site. From the childhood to
till the marriage this respondent lived along with his parents in the same house
and after the marriage (i.e. since 11 years back) this respondent is living
separately in the present disputed hut adjacent to his father's house by
constructing a hut with his money in the open site of the house which is the
ancestral property of this respondent. Hence respondent is the absolute owner
of the disputed hut."
14. A perusal of the above portion clearly reveals that the defendant in
unequivocally declared himself as absolute owner of plaint schedule property.
Undoubtedly, it amounts to denial of title of the first plaintiff over the suit
schedule property.
Such denial eventually gives right to the plaintiff to
resort for necessary redressal. Having regard to the facts and circumstances of
the case and also the principle enunciated in the cases cited supra, I am of the
considered view that the starting point of limitation in this case is 29.9.1994
i.e., the date of Ex.A4 counter in the R.C.C. Hence, point No.1 is accordingly
answered.
Point No.2:
15. Whether the subject matter of the suit is governed by Article 58 or
Article 65 of the Limitation Act?
The predominant contention of learned counsel
for the appellant/ defendant is that the period of limitation in this case is 3
years as per Article 58 of the Limitation Act. The contention of learned
counsel for the respondents/plaintiffs is that the period of limitation in this
case is 12 years in view of Article 65 of Limitation Act.
16. To substantiate the argument, learned counsel for the appellant has drawn
my attention to the decision in Board of Trustees of Port of Kandla v Hargovind
Jasraj3. As per the principle enunciated therein, a suit for declaration, the
period of limitation is 3 years. In that case, plaintiff filed the suit for
declaration and consequential relief of injunction. But that is not a suit for
declaration and recovery of possession, like the present suit.
17. Learned counsel for the appellant, relying upon the highlighted portion in
para 13 of the decision in Khatri Hotels (P) Ltd. v Union of India4, contended
that the said decision arose out of suit for declaration and recovery of
possession. For better appreciation of the contention, para-13 is extracted
hereunder.
13. During the pendency of the aforementioned two suits, Appellant 1 which is
said to have been incorporated under the Companies Act, 1956 in 1994-1995 with
Harbir Singh Khatri, another son of Lal Chand as its Managing Director and
Appellant 2 Lal Chand filed third suit being Suit No. 313 of 2000 (renumbered as
Suit No. 473 of 2004) for grant of a declaration that the entries made in the
revenue records in respect of land comprised in Khasra Nos. 2728/1674/2 and
2728/1674/3 situated in the revenue estate of Mehrauli, Village Mehrauli,
Kishangarh, Tehsil Mehrauli are wrong and illegal. The appellants further prayed
for grant of a decree of mandatory injunction directing the respondents to
correct the revenue record and enter their names in the columns of ownership and
possession. Another prayer made by the appellants was for restraining the
respondents, their servants and agents from demolishing the superstructures and
sealing or interfering with their possession of the suit property or running of
the restaurant.
18. A careful scanning of the above para clearly indicates that the plaintiff
therein filed the suit for declaration that the entries made in the revenue
records are wrong and illegal and for 'mandatory injunction to enter their names
in the columns of ownership and possession'. The above suit was filed for
declaration and mandatory injunction. The above referred suit was not filed for
declaration and recovery of possession, as contended by the learned counsel for
the appellant. The principle enunciated in the cases cited supra is not
applicable to the facts of the case on hand.
19. In support of the argument, learned counsel for the respondents/plaintiffs
has drawn my attention to the following decisions. In Angomjambam Tomba Singh v
R.K. Maipaksana Singh5, dealing with a suit for declaration and recovery of
possession, in para 10, Gauhati High Court opined as follows.
"... ... The present suit is for possession and has been based on title
and the plaintiffs' title has been found. In my opinion, therefore, Article 65
of the Limitation Act, which governs the instant case, is applicable to the
present case. Under Article 65, the burden is upon the defendants to prove that
the suit is barred by adverse possession."
In Seshumull M. Shah v Sayed Abdul Rashid6, Karnataka High Court observed in
para - 7, that a suit where possession is claimed as a consequence of the
declaration would be governed by Article 65 and not Article 58 of the Limitation
Act.
In Ashok Kumar v Gangadhar7, a learned Single Judge of this Court while dealing
with a suit for declaration of title and recovery possession, it was held as
follows.
" ... ... If the contention of the defendants that Article 58 applies to the
suit for possession based on title where declaration of title is also sought, is
accepted, it would amount to ignoring the relief for recovery of possession and
application of Article 65 to a suit for possession and taking away the right of
the plaintiff to prove that the suit is within 12 years from the date when the
possession of the defendant becomes adverse to the plaintiff. If such a suit
were to be decided with reference to Article 58 on the ground that the
declaration is sought for, application of Article 65 to the suit for possession
would be rendered otiose. Such a construction would be opposed to all
principles of interpretation of statutes. Therefore different Articles of the
Limitation Act will have to be interpreted harmoniously. When such an
interpretation is given to Articles 58 and 65 and when the suit is filed for
declaration of title to the suit property with consequential relief of
possession in my humble view Article 65 of the Limitation Act would apply and
not Article 58 of the Limitation Act. ... ...".
20. Learned counsel for both the parties have drawn my attention to the
decision in Mechineni Chokka Rao v Sattu Sattamma8. Relevant portions in paras
10 and 13 are extracted hereunder.
"10. ... ... ... It is obvious that Article 58 is in the nature of residuary
provision among the declaratory suits. Indubitably the relief of declaration can
be sought for in respect of an immovable property or movable property, or in
respect of an instrument, or in respect of a decree, or in respect of an
adoption. Thus, various types of declaratory reliefs can be sought for
pertaining to those categories. Therefore, the relief of declaration alone
appears to be not the criterion for prescribing the period of limitation but the
subject-matter of the suit in respect of which the declaration is sought for,
appears to be germane for consideration."
"13. The problem can be viewed in a different dimension. The right over an
immovable property will get extinguished as can be seen from Section 27 of the
Act only after the expiry of the period prescribed for filing the suit for
possession as per Articles 64 and 65 of the Act. Therefore, if the period falls
short of the requisite period of 12 years the right over an immovable property
will not get extinguished. When the person has a right over an immovable
property which right is not extinguished as yet, he can lay the suit in respect
of an immovable property even praying for the relief of declaration at any time
within the period of 12 years at the end of which, his right would get
extinguished. When we consider this clear mandate contained in Section 27 of the
Act, it becomes manifest that a declaratory relief in respect of an immovable
property can be sought for at any time within the period of 12 years after which
the right will get automatically extinguished, notwithstanding the fact that
Article 58, the residuary Article for filing declaratory suits, prescribes a
period of three years limitation. ... ...."
In State of Maharashtra v Pravin Jethalal Kamdar (dead) by LRs9, dealing
with a case where possession has been taken under void documents, the Supreme
Court held as follows.
"6. ... ... ... When possession has been taken by the appellants pursuant
to void documents, Article 65 of the Limitation Act will apply and the
limitation to file the suit would be 12 years. ... ... ...".
21. Article 58 of Limitation Act deals with relief of declaration whereas
Article 65 of Limitation Act deals with recovery of possession of immovable
property or interest therein, based on title. In the instant case, plaintiffs
filed the suit for declaration in respect of suit 'A' schedule property and
recovery of possession of suit 'B' schedule property. Having regard to the
facts and circumstances of this case and the ratio laid down in the cases
referred supra, I have no hesitation to hold that the subject matter of the suit
is governed by Article 65 of Limitation Act. The period of limitation in this
case is 12 years from the date when the right to sue first accrued. As observed
in para 14, in this case limitation starts with effect from 29.9.1994. As born
out from trial court record, the present suit was filed on 07.2.2000. The
plaintiffs filed the suit within 5 years 4 months and 8 days from the date when
the right to sue first accrued.
22. In the light of the foregoing discussion, I am unable to countenance the
submission of learned counsel for the appellant that the suit is barred by
limitation. The finding of the trial court that the subject matter of the suit
is governed by Article 58 of Limitation Act is not based on sound principles of
law. I am agreeing with the findings of the first appellate court that the
subject matter of the suit is governed by Article 65 of Limitation Act.
Point No.3:
23. The predominant contention of learned counsel for the appellant is that
Ex.A1 sale deed is not binding on the defendant. The contention of learned
counsel for the respondents/plaintiffs is that the defendant is not entitled to
challenge the validity of Ex.A1 sale deed.
24. There is no dispute between the parties about the execution of Ex.A1 sale
deed by the father of defendant in favour of the first plaintiff, who is mother
of plaintiffs 2 to 5. As per the averments in the written statement and the
testimony of D.W.1, father of defendant is not competent to execute sale deed
because he is an unsound-mind person.
The father of the defendant was examined
as P.W.2 in the trial court. As seen from the testimony of P.W.2, he executed
sale deed in favour of his sister i.e., the first plaintiff. In the cross-
examination, P.W.2 categorically deposed that he was terminated from service
subsequent to execution of Ex.A1 sale deed.
If really P.W.2 is an unsound-mind
person, what prevented defendant to elicit the same. For the reasons best
known, the defendant did not choose to elicit intellectual fatigue of P.W.2 at
the time of execution of sale deed.
The defendant did not file even a single
scrap of paper to establish that P.W.2 was unsound-mind person as on the date of
execution of Ex.A1 sale deed.
25. The trial court did not make any observation with regard to unsound-mind
of P.W.2. If really P.W.2's behaviour is abnormal, at the time of recording his
evidence, the trial court might have observed the same in his deposition. In
the absence of cogent and convincing evidence, it is unfair on the part of the
court to treat an individual as an unsound-mind person. The burden of proof
lies on the defendant having taken a specific plea in the written statement that
his father is an unsound-mind person. The defendant miserably failed to
establish that his father is an unsound-mind person as on the date of execution
of Ex.A1 sale deed. Viewed from any angle, the stand of the defendant that his
father is an unsound-mind person is not legally sustainable.
26. Learned counsel for the respondents/plaintiffs has drawn my attention to
the following decisions in Sannidhi Ratnavathi v Arava Narasimha Murthy10,
Dasari Anasuyamma v B.Hanumanthappa11 and Agasti Karuna v Cherukuri
Krishnaiah12. The principle enunciated in the cases cited supra is that a minor
can challenge the validity of a document executed by his natural guardian within
3 years from the date of attaining the age of majority. As per the recitals of
Ex.A1 sale deed, father of the defendant sold suit schedule property to the
first plaintiff for his family necessities.
Being Kartha of joint family, he is
entitled to sell even the ancestral property for his family necessities. At the
time of recording of evidence, defendant was aged about 36 years, as per his own
admission. The defendant was aged about 14 years as on the date of execution of
Ex.A1 sale deed dated 03.7.1978. Even assuming, but not admitting, the
defendant came to know about the execution Ex.A1 sale deed, after filing of
R.C.C. by the first plaintiff in the year 1994, from then till date, he did not
file a suit for declaration that Ex.A1 sale deed executed by his father is void
and not binding on him. Viewed from factual or legal aspects, I am unable to
accede to the contention of learned counsel for the appellant that Ex.A1 sale
deed is non-est in the eye of law.
27. The courts below concurrently held that the plaintiff is entitled for the
relief of declaration in respect of plaint 'A' schedule property, recovery of
possession of suit 'B' schedule property and consequential relief. The courts
below have assigned cogent and valid reasons to its findings. It is a settled
principle of law that this court cannot lightly interfere with the concurrent
findings of the courts below, while deciding second appeal, in view of Section
100 of Code of Civil Procedure. There is no question of law much less
substantial question of law in this appeal, which warrants interference of this
court.
28. The second appeal is, therefore, dismissed, confirming the decree and
judgment dated 20.12.2004 in A.S.No.109 of 2002 on the file of I Additional
District Judge Court, Kurnool. The appellant/defendant shall vacate suit 'B'
schedule property and deliver the same to respondents/plaintiffs within a period
of three months from today. There shall be no order as to costs in this appeal.
29. The miscellaneous petitions, if any, pending in this appeal shall stand
closed.
__________________________
(T.SUNIL CHOWDARY, J)
03rd December, 2013.
Whether article 58 apply or article 65 apply in a suit for declaration of title and possession from the date of denial of title ?
I have no hesitation to hold that the subject matter of the suit
is governed by Article 65 of Limitation Act. The period of limitation in this
case is 12 years from the date when the right to sue first accrued. As observed
in para 14, in this case limitation starts with effect from 29.9.1994. As born
out from trial court record, the present suit was filed on 07.2.2000. The
plaintiffs filed the suit within 5 years 4 months and 8 days from the date when
the right to sue first accrued.
"... ... The present suit is for possession and has been based on title
and the plaintiffs' title has been found. In my opinion, therefore, Article 65
of the Limitation Act, which governs the instant case, is applicable to the
present case. Under Article 65, the burden is upon the defendants to prove that
the suit is barred by adverse possession."
There is no dispute between the parties about the execution of Ex.A1 sale
deed by the father of defendant in favour of the first plaintiff, who is mother
of plaintiffs 2 to 5. As per the averments in the written statement and the
testimony of D.W.1, father of defendant is not competent to execute sale deed
because he is an unsound-mind person.
The father of the defendant was examined
as P.W.2 in the trial court. As seen from the testimony of P.W.2, he executed
sale deed in favour of his sister i.e., the first plaintiff. In the cross-
examination, P.W.2 categorically deposed that he was terminated from service
subsequent to execution of Ex.A1 sale deed.
If really P.W.2 is an unsound-mind
person, what prevented defendant to elicit the same. For the reasons best
known, the defendant did not choose to elicit intellectual fatigue of P.W.2 at
the time of execution of sale deed.
The defendant did not file even a single
scrap of paper to establish that P.W.2 was unsound-mind person as on the date of
execution of Ex.A1 sale deed.
entitled to sell even the ancestral property for his family necessities. At the
time of recording of evidence, defendant was aged about 36 years, as per his own
admission. The defendant was aged about 14 years as on the date of execution of
Ex.A1 sale deed dated 03.7.1978. Even assuming, but not admitting, the
defendant came to know about the execution Ex.A1 sale deed, after filing of
R.C.C. by the first plaintiff in the year 1994, from then till date, he did not
file a suit for declaration that Ex.A1 sale deed executed by his father is void
and not binding on him. Viewed from factual or legal aspects, I am unable to
accede to the contention of learned counsel for the appellant that Ex.A1 sale
deed is non-est in the eye of law.
It is a settled
principle of law that this court cannot lightly interfere with the concurrent
findings of the courts below, while deciding second appeal, in view of Section
100 of Code of Civil Procedure.
The second appeal is, therefore, dismissed, confirming the decree and
judgment dated 20.12.2004 in A.S.No.109 of 2002 on the file of I Additional
District Judge Court, Kurnool. The appellant/defendant shall vacate suit 'B'
schedule property and deliver the same to respondents/plaintiffs within a period
of three months from today.
HONOURABLE SRI JUSTICE T.SUNIL CHOWDARY
SECOND APPEAL No.49 of 2005
03-12-2013
B.Pullaiah, S/o.B.Seshanna... Appellant/Appellant/Defendant
J.Mala Pullamma, W/o.Pullanna And others... Respondents/Respondents/Plaintiffs
Counsel for the appellant:Sri P. Kamalakar
Counsel for the respondents: Sri Murali Lincoln
<GIST:
>HEAD NOTE:
?CASES REFERRED:
1. AIR 1960 SC 335
2. AIR 1961 SC 808
3. (2013) 3 SCC 182
4. (2011) 9 SCC 126
5. AIR 1975 Gau 12
6. AIR1991 Kar 273
7. 2007 (2) ALD 313
8. 2006 (1) ALD 116
9. AIR 2000 SC 1099
10. 2003 (5) ALT 560
11. 2002 (3) ALT 778
12. 1999 (5)ALT 494
THE HON'BLE SRI JUSTICE T.SUNIL CHOWDARY
SECOND APPEAL No.49 of 2005
December 03, 2013
JUDGMENT:
This second appeal is preferred by the defendant challenging the decree
and judgment dated 20.12.2004 in A.S.No.109 of 2002 on the file of I Additional
District Judge Court, Kurnool, confirming in appeal the decree and judgment
dated 28.11.2002 in O.S.No.105 of 2000 on the file of Principal Junior Civil
Judge Court, Kurnool. The parties are hereinafter referred to as they arrayed
in the suit. During the pendency of the suit, original plaintiff died and
plaintiffs 2 to 5 came on record as her legal representatives.
2. The case of the plaintiffs is that first plaintiff purchased plaint
schedule property from father of the defendant on 03.7.1978 under a registered
sale deed.
She erected a hut in one portion of the site and divided the
remaining site into three portions. She let out two portions, marked as 'B'
schedule property, to the defendant and his father on oral lease at monthly rent
of Rs.100/-.
The defendant paid rent for some time and thereafter committed
default in payment of rent. The first plaintiff demanded defendant to pay the
rent or to vacate 'B' schedule property. The defendant did not heed to the
demand. Then first plaintiff filed R.C.C. No.8 of 1994 before the Rent
Controller, Kurool seeking eviction of defendant and the same was dismissed on
30.6.1998 with an observation that R.C.C. was not maintainable in view of denial
of title of first plaintiff by the defendant.
The father of defendant sold the
property to first plaintiff for his family necessities and this fact is known to
defendant.
Therefore the defendant is estopped to deny the title of the first
plaintiff.
The first plaintiff is also entitled for rents from the defendant
at Rs.100/- per month with effect from February, 1997, as the claim for arrears
of rent from January, 1993 to January, 1997 is barred by limitation.
Even other
wise, first plaintiff perfected her title by adverse possession. Hence the suit
for declaration of title over 'A' schedule property, recovery of 'B' schedule
property and arrears of rent from defendant.
3. The defendant filed written statement inter alia contending that the
registered sale deed dated 03.7.1978 is a concocted document and was brought
into existence with ulterior motive by the plaintiffs. The sale deed is void
and does not convey valid title in favour of the first plaintiff.
The plaint
schedule property is the ancestral property of the defendant and his father and
the defendant constructed hut in the open site adjacent to his father's house.
The plea taken by the first plaintiff that she acquired title by adverse
possession is baseless.
The suit is barred by time and there is no cause of
action to file the suit.
4. In the trial court, on behalf of plaintiffs, P.Ws.1 and 2 were examined
and Exs.A1 to A4 were marked. On behalf of the defendant, D.W.1 was examined
and Ex.B1 was marked.
5. After having thoughtful consideration to the oral, documentary evidence
and other material available on record, the trial court arrived at conclusion
that the plaintiff is entitled for the relief of declaration, recovery of
possession of 'B' schedule property and recovery of arrears of rent with
interest.
The defendant being aggrieved by the decree and judgment of the trial
court filed A.S.No.109 of 2012.
The first appellate court, while hearing the
appeal, came to the conclusion that the material available on record is not
sufficient to decide whether the suit is filed within the period of limitation.
Therefore, the first appellate court remitted the matter to the trial court to
give a finding on point of limitation, after giving opportunity to both parties
to adduce evidence on that aspect.
The trial court recorded a finding that the
suit is barred by limitation, in view of Article 58 of Limitation Act.
On
reappraising the entire material available on record, the first appellate court
dismissed the appeal while confirming the decree and judgment of the trial
court, except on issue No.5 with regard to point of limitation.
6. The substantial question of law raised in this appeal is:
"Whether the suit for declaration of the present nature is attracted by Article
65 of Limitation Act or Article 58 of Limitation Act?"
7. Heard Sri P.Kamalakar, learned counsel for appellant/ defendant and Sri
Murali Lincoln, learned counsel for the respondents/plaintiffs.
8. The contention of learned counsel for appellant is three fold:
(1) in this
case, the period of limitation starts from 17.2.1994 when defendant got issued a
notice (Ex.B1) to first plaintiff denying her title;
(2) in a suit for
declaration and recovery of possession, period of limitation is 3 years in view
of Article 58 of Limitation Act; and
(3) the plaintiffs are not entitled to seek
relief of declaration basing on the sale deed dated 03.7.1978 (Ex.A1), which is
non-est in the eye of law.
Per contra, learned counsel for
respondents/plaintiffs submitted that in this suit period of limitation
commenced from 30.6.1998 i.e., the date on which R.C.C., filed by the first
plaintiff, was dismissed.
He further contended that in a suit for declaration
and recovery of possession, period of limitation is 12 years in view of Article
65 of Limitation Act.
9. The admitted facts emerge from the pleadings and evidence available on
record are as follows.
The defendant got issued legal notice dated 17.2.1994
(Ex.B1) stating that the father of defendant has no right whatsoever to sell the
suit schedule property which is ancestral property.
The first plaintiff filed
R.C.C. No.8 of 1994 on the file of Principal Junior Civil Judge Court, Kurnool
for eviction of defendant herein and the same was dismissed on 30.6.1998.
The
defendant filed counter dated 29.9.1994 in the R.C.C (Ex.A4).
The present suit
is filed on 07.2.2000. The first plaintiff purchased the suit schedule property
from father of the defendant under registered sale deed dated 03.7.1978 (Ex.A1).
Point No.1:
10. When maintainability of suit itself is challenged on the ground of
limitation, the court has to satisfy itself that the suit is filed within the
period of limitation, before considering other aspects of the case.
It is
needless to say the period of limitation is a mixed question of fact and law in
certain cases.
11. The crucial question that falls for consideration, in this case, is what
is the starting point of limitation?
As per the contention of learned counsel
for the respondents/plaintiffs the starting point of limitation is 30.6.1998
i.e., the date on which R.C.C. was dismissed. As per the contention of learned
counsel for the appellant/defendant, the starting point of limitation is
17.2.1994, when the defendant got issued legal notice (Ex.B1) to the plaintiff
denying his title. To substantiate the argument, learned counsel for
respondents/ plaintiffs has drawn my attention to the decisions in Rukhmabai v
Lala Laxminarayan1 and C.Mohammad Yunus v Syed Unnissa2, wherein the principle
enunciated is that 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.
12. Let me consider the factual aspects of this case, in the light of the
above principle.
The relevant portion of the legal notice dated 17.2.1994
(Ex.B1) is extracted hereunder.
"... ... you have agreed to purchase of my client ancestral property from
his father. If your purchase that agreement or registered may be void because
of his unsound mind and he has no right to dispose of my client half share.
My client several times demanded for partition of his ancestral property. But
his father did not care because of mad.
I, therefore, call upon you on behalf of my client you don't purchase of my
client ancestral property. If you purchase you will be loss and my client have
right to get his legal share through court."
13. A careful scanning of Ex.B1 legal notice clearly manifests that its
contents do not fall within the ambit of unequivocal threat to infringe the
right of the plaintiff in respect of suit schedule property. Viewed from any
angle, this cannot be treated as the starting point of limitation. It is not
out of place to extract paragraph 3 of Ex.A4 counter in R.C.C. No.8 of 1994.
"This respondent humbly submits that the allegations in para 3, 4, 5, 6, 7
of the petition are all false. This respondent further submits petitioner is
not the absolute owner of the disputed hut, this respondent's father having
ancestral property which includes a house and open site. From the childhood to
till the marriage this respondent lived along with his parents in the same house
and after the marriage (i.e. since 11 years back) this respondent is living
separately in the present disputed hut adjacent to his father's house by
constructing a hut with his money in the open site of the house which is the
ancestral property of this respondent. Hence respondent is the absolute owner
of the disputed hut."
14. A perusal of the above portion clearly reveals that the defendant in
unequivocally declared himself as absolute owner of plaint schedule property.
Undoubtedly, it amounts to denial of title of the first plaintiff over the suit
schedule property.
Such denial eventually gives right to the plaintiff to
resort for necessary redressal. Having regard to the facts and circumstances of
the case and also the principle enunciated in the cases cited supra, I am of the
considered view that the starting point of limitation in this case is 29.9.1994
i.e., the date of Ex.A4 counter in the R.C.C. Hence, point No.1 is accordingly
answered.
Point No.2:
15. Whether the subject matter of the suit is governed by Article 58 or
Article 65 of the Limitation Act?
The predominant contention of learned counsel
for the appellant/ defendant is that the period of limitation in this case is 3
years as per Article 58 of the Limitation Act. The contention of learned
counsel for the respondents/plaintiffs is that the period of limitation in this
case is 12 years in view of Article 65 of Limitation Act.
16. To substantiate the argument, learned counsel for the appellant has drawn
my attention to the decision in Board of Trustees of Port of Kandla v Hargovind
Jasraj3. As per the principle enunciated therein, a suit for declaration, the
period of limitation is 3 years. In that case, plaintiff filed the suit for
declaration and consequential relief of injunction. But that is not a suit for
declaration and recovery of possession, like the present suit.
17. Learned counsel for the appellant, relying upon the highlighted portion in
para 13 of the decision in Khatri Hotels (P) Ltd. v Union of India4, contended
that the said decision arose out of suit for declaration and recovery of
possession. For better appreciation of the contention, para-13 is extracted
hereunder.
13. During the pendency of the aforementioned two suits, Appellant 1 which is
said to have been incorporated under the Companies Act, 1956 in 1994-1995 with
Harbir Singh Khatri, another son of Lal Chand as its Managing Director and
Appellant 2 Lal Chand filed third suit being Suit No. 313 of 2000 (renumbered as
Suit No. 473 of 2004) for grant of a declaration that the entries made in the
revenue records in respect of land comprised in Khasra Nos. 2728/1674/2 and
2728/1674/3 situated in the revenue estate of Mehrauli, Village Mehrauli,
Kishangarh, Tehsil Mehrauli are wrong and illegal. The appellants further prayed
for grant of a decree of mandatory injunction directing the respondents to
correct the revenue record and enter their names in the columns of ownership and
possession. Another prayer made by the appellants was for restraining the
respondents, their servants and agents from demolishing the superstructures and
sealing or interfering with their possession of the suit property or running of
the restaurant.
18. A careful scanning of the above para clearly indicates that the plaintiff
therein filed the suit for declaration that the entries made in the revenue
records are wrong and illegal and for 'mandatory injunction to enter their names
in the columns of ownership and possession'. The above suit was filed for
declaration and mandatory injunction. The above referred suit was not filed for
declaration and recovery of possession, as contended by the learned counsel for
the appellant. The principle enunciated in the cases cited supra is not
applicable to the facts of the case on hand.
19. In support of the argument, learned counsel for the respondents/plaintiffs
has drawn my attention to the following decisions. In Angomjambam Tomba Singh v
R.K. Maipaksana Singh5, dealing with a suit for declaration and recovery of
possession, in para 10, Gauhati High Court opined as follows.
"... ... The present suit is for possession and has been based on title
and the plaintiffs' title has been found. In my opinion, therefore, Article 65
of the Limitation Act, which governs the instant case, is applicable to the
present case. Under Article 65, the burden is upon the defendants to prove that
the suit is barred by adverse possession."
In Seshumull M. Shah v Sayed Abdul Rashid6, Karnataka High Court observed in
para - 7, that a suit where possession is claimed as a consequence of the
declaration would be governed by Article 65 and not Article 58 of the Limitation
Act.
In Ashok Kumar v Gangadhar7, a learned Single Judge of this Court while dealing
with a suit for declaration of title and recovery possession, it was held as
follows.
" ... ... If the contention of the defendants that Article 58 applies to the
suit for possession based on title where declaration of title is also sought, is
accepted, it would amount to ignoring the relief for recovery of possession and
application of Article 65 to a suit for possession and taking away the right of
the plaintiff to prove that the suit is within 12 years from the date when the
possession of the defendant becomes adverse to the plaintiff. If such a suit
were to be decided with reference to Article 58 on the ground that the
declaration is sought for, application of Article 65 to the suit for possession
would be rendered otiose. Such a construction would be opposed to all
principles of interpretation of statutes. Therefore different Articles of the
Limitation Act will have to be interpreted harmoniously. When such an
interpretation is given to Articles 58 and 65 and when the suit is filed for
declaration of title to the suit property with consequential relief of
possession in my humble view Article 65 of the Limitation Act would apply and
not Article 58 of the Limitation Act. ... ...".
20. Learned counsel for both the parties have drawn my attention to the
decision in Mechineni Chokka Rao v Sattu Sattamma8. Relevant portions in paras
10 and 13 are extracted hereunder.
"10. ... ... ... It is obvious that Article 58 is in the nature of residuary
provision among the declaratory suits. Indubitably the relief of declaration can
be sought for in respect of an immovable property or movable property, or in
respect of an instrument, or in respect of a decree, or in respect of an
adoption. Thus, various types of declaratory reliefs can be sought for
pertaining to those categories. Therefore, the relief of declaration alone
appears to be not the criterion for prescribing the period of limitation but the
subject-matter of the suit in respect of which the declaration is sought for,
appears to be germane for consideration."
"13. The problem can be viewed in a different dimension. The right over an
immovable property will get extinguished as can be seen from Section 27 of the
Act only after the expiry of the period prescribed for filing the suit for
possession as per Articles 64 and 65 of the Act. Therefore, if the period falls
short of the requisite period of 12 years the right over an immovable property
will not get extinguished. When the person has a right over an immovable
property which right is not extinguished as yet, he can lay the suit in respect
of an immovable property even praying for the relief of declaration at any time
within the period of 12 years at the end of which, his right would get
extinguished. When we consider this clear mandate contained in Section 27 of the
Act, it becomes manifest that a declaratory relief in respect of an immovable
property can be sought for at any time within the period of 12 years after which
the right will get automatically extinguished, notwithstanding the fact that
Article 58, the residuary Article for filing declaratory suits, prescribes a
period of three years limitation. ... ...."
In State of Maharashtra v Pravin Jethalal Kamdar (dead) by LRs9, dealing
with a case where possession has been taken under void documents, the Supreme
Court held as follows.
"6. ... ... ... When possession has been taken by the appellants pursuant
to void documents, Article 65 of the Limitation Act will apply and the
limitation to file the suit would be 12 years. ... ... ...".
21. Article 58 of Limitation Act deals with relief of declaration whereas
Article 65 of Limitation Act deals with recovery of possession of immovable
property or interest therein, based on title. In the instant case, plaintiffs
filed the suit for declaration in respect of suit 'A' schedule property and
recovery of possession of suit 'B' schedule property. Having regard to the
facts and circumstances of this case and the ratio laid down in the cases
referred supra, I have no hesitation to hold that the subject matter of the suit
is governed by Article 65 of Limitation Act. The period of limitation in this
case is 12 years from the date when the right to sue first accrued. As observed
in para 14, in this case limitation starts with effect from 29.9.1994. As born
out from trial court record, the present suit was filed on 07.2.2000. The
plaintiffs filed the suit within 5 years 4 months and 8 days from the date when
the right to sue first accrued.
22. In the light of the foregoing discussion, I am unable to countenance the
submission of learned counsel for the appellant that the suit is barred by
limitation. The finding of the trial court that the subject matter of the suit
is governed by Article 58 of Limitation Act is not based on sound principles of
law. I am agreeing with the findings of the first appellate court that the
subject matter of the suit is governed by Article 65 of Limitation Act.
Point No.3:
23. The predominant contention of learned counsel for the appellant is that
Ex.A1 sale deed is not binding on the defendant. The contention of learned
counsel for the respondents/plaintiffs is that the defendant is not entitled to
challenge the validity of Ex.A1 sale deed.
24. There is no dispute between the parties about the execution of Ex.A1 sale
deed by the father of defendant in favour of the first plaintiff, who is mother
of plaintiffs 2 to 5. As per the averments in the written statement and the
testimony of D.W.1, father of defendant is not competent to execute sale deed
because he is an unsound-mind person.
The father of the defendant was examined
as P.W.2 in the trial court. As seen from the testimony of P.W.2, he executed
sale deed in favour of his sister i.e., the first plaintiff. In the cross-
examination, P.W.2 categorically deposed that he was terminated from service
subsequent to execution of Ex.A1 sale deed.
If really P.W.2 is an unsound-mind
person, what prevented defendant to elicit the same. For the reasons best
known, the defendant did not choose to elicit intellectual fatigue of P.W.2 at
the time of execution of sale deed.
The defendant did not file even a single
scrap of paper to establish that P.W.2 was unsound-mind person as on the date of
execution of Ex.A1 sale deed.
25. The trial court did not make any observation with regard to unsound-mind
of P.W.2. If really P.W.2's behaviour is abnormal, at the time of recording his
evidence, the trial court might have observed the same in his deposition. In
the absence of cogent and convincing evidence, it is unfair on the part of the
court to treat an individual as an unsound-mind person. The burden of proof
lies on the defendant having taken a specific plea in the written statement that
his father is an unsound-mind person. The defendant miserably failed to
establish that his father is an unsound-mind person as on the date of execution
of Ex.A1 sale deed. Viewed from any angle, the stand of the defendant that his
father is an unsound-mind person is not legally sustainable.
26. Learned counsel for the respondents/plaintiffs has drawn my attention to
the following decisions in Sannidhi Ratnavathi v Arava Narasimha Murthy10,
Dasari Anasuyamma v B.Hanumanthappa11 and Agasti Karuna v Cherukuri
Krishnaiah12. The principle enunciated in the cases cited supra is that a minor
can challenge the validity of a document executed by his natural guardian within
3 years from the date of attaining the age of majority. As per the recitals of
Ex.A1 sale deed, father of the defendant sold suit schedule property to the
first plaintiff for his family necessities.
Being Kartha of joint family, he is
entitled to sell even the ancestral property for his family necessities. At the
time of recording of evidence, defendant was aged about 36 years, as per his own
admission. The defendant was aged about 14 years as on the date of execution of
Ex.A1 sale deed dated 03.7.1978. Even assuming, but not admitting, the
defendant came to know about the execution Ex.A1 sale deed, after filing of
R.C.C. by the first plaintiff in the year 1994, from then till date, he did not
file a suit for declaration that Ex.A1 sale deed executed by his father is void
and not binding on him. Viewed from factual or legal aspects, I am unable to
accede to the contention of learned counsel for the appellant that Ex.A1 sale
deed is non-est in the eye of law.
27. The courts below concurrently held that the plaintiff is entitled for the
relief of declaration in respect of plaint 'A' schedule property, recovery of
possession of suit 'B' schedule property and consequential relief. The courts
below have assigned cogent and valid reasons to its findings. It is a settled
principle of law that this court cannot lightly interfere with the concurrent
findings of the courts below, while deciding second appeal, in view of Section
100 of Code of Civil Procedure. There is no question of law much less
substantial question of law in this appeal, which warrants interference of this
court.
28. The second appeal is, therefore, dismissed, confirming the decree and
judgment dated 20.12.2004 in A.S.No.109 of 2002 on the file of I Additional
District Judge Court, Kurnool. The appellant/defendant shall vacate suit 'B'
schedule property and deliver the same to respondents/plaintiffs within a period
of three months from today. There shall be no order as to costs in this appeal.
29. The miscellaneous petitions, if any, pending in this appeal shall stand
closed.
__________________________
(T.SUNIL CHOWDARY, J)
03rd December, 2013.
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