Second appeal arising from a suit for partition and separate possession of a 10/17th share in lands jointly purchased in 1957. The court held the 1965 sale deeds were genuine sales, that the suit was barred under Order XXIII Rule 1 CPC as the earlier suit was withdrawn without liberty, and was also barred by limitation. Appeal dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 10th DAY OF AUGUST, 2016
BEFORE
THE HON' BLE MRS JUSTICE B.V. NAGARATHNA
R.S.A.NO.1632/2010 (PAR) a/w MISC.CVL.No.9576/2010
BETWEEN:
2
AGED ABOUT 55 YEARS, RESIDENT OF CHIKKOBANAHALLI, MOLAKALMURU TALUK, CHITHRADURGA-577535.
3
ALL ARE RESIDENTS OF TUMKURALAHALLI VILLAGE MOLAKALMURU TALUK CHITHRADURGA DISTRICT-577535.
...APPELLANTS
(BY SRI M.S. VENUGOPAL, ADVOCATE FOR SRI A KRISHNA BHAT AND ASSTS,)
4
AND:
ALL ARE RESIDENTS OF TUMKURALAHALLI VILLAGE MOLAKALMURU TALUK CHITHRADURGA DISTRICT-577535.
5
6
RESPONDENT NO.3(c) TO 6(b)(1) ARE RESIDENTS OF TUMKURLAHALLI VILLAGE, MOLAKALMURU TALUK, CHITHRADURGA DISTRICT-577535.
ALL ARE RESIDENTS OF TUMKURALAHALLI VILLAGE, MOLAKALMURU TALUK, CHITHRADURGA DISTRICT-577535.
7
6(b)(3) TO 12 ARE RESIDING AT TUMKURALAHALLI VILLAGE, MOLAKALMURU TALUK, CHITHRADURGA DISTRICT-577535. ... RESPONDENTS
[BY SRI B. K.MANJUNATH, ADVOCATE FOR C/R-1(6), R-1(a), R-2, R-3(a, c to f), R-6(a), R-6(b1, b3,b4, b5 & b7), R-7 TO 9, R-11 & R-12, R-5 & 10 ARE SERVED AND UNREPRESENTED V/O DT: 20/10/2011, APPEAL DISMISSED AS AGAINST R-1(c), R-3(b), R-4, R-6b (2,6)]
RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGEMENT & DECREE DATED 25.2.2010 PASSED IN R.A.NO.45/2007 ON THE FILE OF THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, CHITRADURGA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DTD:9.8.2007 PASSED IN O.S.NO.187/2002 ON THE FILE OF THE CIVIL JUDGE (SR.DN.) CHALLAKERE.
8
MISC.CIVIL NO.9576/2010 IS FILED UNDER ORDER 39 RULES 1 & 2 R/W SECTION 151 OF CPC., PRAYING TO RESTRAIN THE RESPONDENTS FROM ALIENATING OR ENCUMBERING THE SUIT SCHEDULE PROPERTIES, SCHEDULE BEING REPEATED BELOW, PENDING DISPOSAL OF THIS APPEAL IN THE INTEREST OF JUSTICE AND EQUITY.
THIS RSA ALONG WITH MISC. CIVIL APPLICATION COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The plaintiffs in O.S.No.187/2002 have preferred this appeal, assailing judgment and decree passed by the Additional Sessions Judge, Chitradurga in
R.A.No.45/2007 dated 25.2.2010 by which, the appeal filed by the plaintiffs was dismissed and the Cross Objections filed by respondent Nos.1 to 3 was allowed and the findings recorded on issue Nos. 1 to 4 by the trial Court were set aside and those issues were answered in the affirmative.
9
their 10/17th share in the suit schedule properties. It is their case that the plaintiffs and defendants are related to each other. The suit schedule properties were purchased jointly by Korlumallaiah and 17 others on 22.7.1957 from Basanna, Doddaveeranna and
Sharanappa under registered sale deed for a valuable consideration. Thereafter, Korlumallaiah and 17 other persons were put in possession of the suit schedule properties. They have been in possession and enjoyment of the suit schedule properties by paying the revenue to the State. Except defendant No.1, who was a party to the sale deed of 1957, all other purchasers are dead. After the death of the remaining purchasers, theirs sons and grand sons have been in possession and enjoyment of the suit lands which have been purchased jointly under a sale deed dated 22.5.1957. Defendant No.1 and father of defendant Nos. 2 and 3 are wordlywise and they have been managing the affairs of the suit lands. The other purchasers reposed
10
confidence and trust in them in regard to the management of the suit schedule properties.
and respective fathers of defendant Nos. 2 and 3 executed a nominal registered sale deed on 5.8.1965 in favour of Channaveerappa of B.G. Kere village as if to sell the suit lands for Rs.25,000/-. That sale deed was executed by only 11 members, who had purchased the suit schedule properties under the sale deed dated 22.5.1957. Thereafter on 13.9.1965, the 1st defendant
and respective fathers of defendant Nos. 2 and 3 executed another sale deed intending to sell other properties to the same Channaveerappa for Rs.500/-. That sale deed was executed by only five members out of 18 persons, who had purchased the suit schedule properties on 22.5.1957. Plaintiffs’ ancestors had not signed the sale deed nor had they received any consideration. Out of 18 members, only 16 members
11
had signed the two sale deeds. One Thayamma and Palaiah did not execute the two sale deeds in the year 1965. Also the said sale deed are not binding on the plaintiffs or their ancestors. Even after execution of the said sale deeds, plaintiffs and their ancestors have been in possession of the suit lands as possession was never delivered to Channaveerappa. Defendant No.1 and respective fathers of defendant Nos. 2 and 3 were in cordial terms with Channaveerappa.
12
the sale deed dated 22.5.1957. The plaintiffs believed their words but there had been no re-conveyance in their favour. Plaintiffs demanded their separate shares in their suit lands but defendants refused to give them any share. On the contrary, defendants tried to dispose plaintiffs’ share of the suit lands on the basis of the fraudulent sale deed obtained by them on 7.8.1972. Therefore, plaintiffs filed the suit seeking declaration of their 10/17th share in the suit schedule properties and also for partition.
13
having different shares. All the owners of the suit properties executed a registered mortgage deed in favour of Bisineerumuddappa and Bisineerubasanna for a sum of Rs.5,000/- on 2.5.1930. Later on, a sale deed
was executed by the owners of these properties in favour of Bisineerumuddappa and Bisineerubasanna and Doddaveeranna for a sum of Rs.7,950 on 22.1.1935. The purchasers were put in possession of the properties. Later on Bisineerubasanna and Bisineerudoddaveeranna and Sannaveeranna sold the suit lands, except Sy.No.3, in favour of 18 persons under a registered sale deed dated 22.5.1957. The same are the subject matter of instruments dated 5.8.1965 and 13.9.1965 executed in favour of Channaveerappa. These instruments are the sale deeds which have been executed by 17 persons. Channaveerappa becoming the owner of the said properties, later on, executed an agreement in favour of four persons out of the 17 persons viz., Korlamallaiah,
14
Giddamallaiah, Erripalaiah and Ajjaiah on 12.7.1966 and delivered possession of the properties in their favour. Since the date of agreement, these four persons have been enjoying the suit schedule properties.
15
possession of the said property on 22.6.1994. Thereafter they sold item No.6 i.e., land bearing Sy.No.14/2 to an extent of 8.16 acres in favour of Suraiah and Basaiah under a registered sale deed. These two persons are necessary parties to the suit but they have not been arrayed as parties to the suit. Therefore according to these defendants, the suit is bad for non-joinder of necessary parties.
4 and 6 to 10 and brother of plaintiff No.5 was
16
dismissed. That order of dismissal was challenged by them in LRA No.28/1986 before the Appellate Authority.
The appeal was also dismissed. Thereafter, a Civil Revision Petition was filed which was also dismissed. Thereafter the present suit has been filed which is not maintainable. One of the purchasers viz., Giddamallaiah is no more. His wife - Sannaboramma succeeded to 1/4th share in the properties purchased by her husband. They had no issues. Late Sannaboramma executed a will bequeathing her 1/4th share in the suit lands in favour of defendant Nos. 1 to
that prior to the filing of the suit, father of plaintiff Nos.
1 to 4, 6, 9 and 10 and plaintiff Nos. 7 and 8 had filed a suit in O.S.No. 280/1972 seeking a declaration of their share in the suit lands and to also declare that the sale
17
deeds dated 5.8.1965 and 13.9.1965 were not binding on their shares and to allot 11/18th share in the suit
schedule properties by partition and separate possession. The said suit was withdrawn on 13.12.1977 by filing an application under Order XXIII Rule 1 of the Code of Civil Procedure, 1908 (CPC). After withdrawal of the suit, a fresh suit was not filed in time. Therefore, the suit of the plaintiffs now filed is barred by time. Plaintiffs are also estopped from filing the suit. Therefore, defendant Nos. 1 to 7 sought dismissal of the suit.
1 to 3 and widow of Giddamallaiah viz., Smt. Sannaboramma for a valuable consideration of Rs.46,000/-. Defendant No.9 is in possession and
18
enjoyment of 3 acres 20 guntas in Sy.No.4/2 of Doddathammenahalli village by virtue of the registered sale dated 24.6.1994 executed by defendant Nos. 1 to 3 and widow of Giddamallaiah for Rs.20,000/-. They have been in possession of the said lands and they are not even aware of any right, title and interest of the plaintiffs in those lands. They are bonafide purchasers and they have contended that the plaintiffs have no right, title or interest in the said lands and their rights, if any, extinguished by lapse of time. They also sought dismissal of the suit of the plaintiffs.
statement supporting the case of the plaintiffs and they also claimed 10/17th share in the suit schedule lands. So also defendant No.12.
19
20
Additional Issues:
21
examined 4 witnesses and produced 16 documents which were marked as Exs.P.1 to 16. On behalf of the defendants, two witnesses were examined. They produced 71 documents which were marked as Exs.D.1 to 71.
22
Counsel for the respective parties, framed the following points for its consideration:
point No.2 in the affirmative and dismissed the appeal filed by the plaintiffs while allowing the CrossObjections filed by respondent Nos. 1 to 3 herein. It set aside the finding recorded by the trial Court on issue Nos. 1 and 4 by answering the said issues in the affirmative by its judgment and decree dated 25.2.2010.
23
of the First Appellate Court, the plaintiffs have preferred this Second Appeal.
24
were executed by 17 persons in favour of Channaveerappa were only nominal sale deeds. They were not acted upon despite the said documents being styled as sale deeds. They were documents which were executed by way of security for the purpose of a loan obtained by them from Channaveerappa. Despite registration of those documents as sale deeds, possession of the suit schedule properties continued with the plaintiffs and defendant Nos. 1 to 4. The plaintiffs were under a bonafide belief that they continued to be the owners in possession of the suit schedule properties. They were not even aware that Channaveerappa, in whose favour the documents dated 5.8.1965 and 13.9.1965 were executed, had in turn entered into an agreement to sell the suit schedule properties in favour of defendant Nos. 1 to 4 on 12.7.1966. Thereafter, the legal heirs of deceased Channaveerappa executed a sale deed on 7.8.1972 in favour of four persons and that sale is nothing but a re-
25
conveyance deed. Though re-conveyance was in the name of four persons viz., Korlamallaiah, Giddamallaiah, Erripalaiah and Ajjaiah, the right, title and interest of the plaintiffs in the suit schedule properties continued. Therefore, the plaintiffs were justified in seeking partition and separate possession of their share in the suit schedule properties. He submitted that the trial Court was not right in answering issue No.1 partly in the affirmative and partly in the negative. He contended that the said issue ought to have been answered fully in favour of the appellants/plaintiffs by holding that the documents namely sale deeds dated 5.8.1965 and 13.9.1965 were nominal sale deeds and therefore, the same were not binding on the plaintiffs and consequently, their right, title and interest in the suit schedule properties continued and therefore, they were entitled to the said relief.
26
could not have held that the plaintiffs had no locus standi to challenge the sale deeds of the year 1965 which were made in favour of Channaveerappa. Learned Counsel for the appellants further submitted that the trial Court was not right in holding that suit was not maintainable in view of the earlier suit being withdrawn by the plaintiffs. He contended that the said suit was for a declaration that the sale deeds were nominal and not binding on them, but the present suit is for partition and separate possession of their share in the suit schedule properties. The withdrawal of the said suit even without seeking liberty to file another suit did not imply that the suit seeking for partition and separate possession was not maintainable. He contended that any number of suits seeking partition and separate possession is maintainable and despite the earlier suit i.e., O.S.No.280/1972 being withdrawn in the year 1977, the present suit was not maintainable.
27
He further contended that the trial Court was not right in holding that the plaintiffs were estopped from filing the suit merely because they had filed Form No.7 before the Land Tribunal after withdrawing O.S.No.280/1972. He submitted that principle of estoppel would not apply and that the plaintiffs had every right to seek partition and separate possession of their 10/17th share in the suit schedule properties even though they had filed Form No.7. He contended that when Form No.7 was filed by the plaintiffs before the Land Tribunal under the provisions of the Karnataka Land Reforms Act, 1961 as amended in the year 1974, but the owner of the suit schedule properties was not mentioned therein. By that, it did not imply that the plaintiffs were the tenants. He contended that the trial Court was not right in holding that filing of Form No.7 by the plaintiffs before the Land Tribunal estopped them from filing suit for partition. He further contended that the trial Court was not right in dismissing the suit by invoking Article
28
58 of the Limitation Act, 1963 and by holding that the limitation period for seeking a declaration is three years from the date the cause of action arises. That in the instant case, plaintiffs were not seeking relief of declaration but they were seeking relief of partition and that for the same, there is no limitation period as such, as the plaintiffs were seeking partition as co-owners of the suit schedule properties.
29
Further the Cross-Objections filed by respondent Nos. 1 to 3 herein could not have been allowed and thereby modifying the judgment of the trial Court to that extent. He contended that having regard to the issues which arise in the case in appeal, substantial questions of law would arise and therefore, the appeal may be admitted for a detailed hearing.
30
Court ought to have dismissed the suit on that short ground alone without recording any evidence in the matter.
31
suit when O.S.No.280/1972 was withdrawn in the year 1977.
respondents further contended that the trial Court was
not right in answering issue No.1 partly in the affirmative, partly in the negative and also issue No.4 in the negative. Therefore, the respondents had preferred Cross Objections before the First Appellate Court, which has rightly allowed the Cross-Objections by giving a finding on issue Nos. 1 and 4 in favour of the defendants/respondents herein. He contended that the sale deeds dated 5.8.1965 and 13.9.1965 were not nominal sale deeds and they were acted upon. There was no clause in those sale deeds for re-conveyance of the suit schedule properties to the original owners.
Thereafter, Channaveerappa had entered into an agreement to sell only to four persons on 12.7.1966 and on that basis, the legal heirs of Channaveerappa had
32
executed a sale deed dated 7.8.1972 in favour of the four persons, who are defendant Nos. 1 to 4 in the suit, respondents herein. Therefore, the plaintiffs cannot seek partition and separate possession in the suit schedule properties, as if the suit schedule properties are coparcenery properties. The plaintiffs cannot treat the properties to be in joint tenancy or claim to be tenants-in-common, once they had sold the suit schedule properties in favour of Channeveerappa in the year 1965, is the submission.
33
interest in the suit schedule properties did not reemanate. He contended that no substantial question of law would arise in the appeal and therefore, the appeal may be dismissed.
and on perusal of the material on record, it is noticed at the outset that the plaintiffs and defendants (in whose favour the suit schedule properties were conveyed by the heirs of late Channverrappa) do not claim to belong to Hindu Undivided Family. The pleadings of the plaintiffs are not to that effect. Therefore, in substance, the relief for partition and separate possession of their 10/17th share in the suit schedule properties is not akin
to the right of coparceners of a joint family i.e., Hindu Undivided Family seeking partition and separate possession. The relief claimed by the plaintiffs is on the basis that they or their ancestors were the purchasers of the suit schedule properties along with defendant
34
Nos. 1 to 4 under a registered sale deed dated 22.7.1957 along with others. There is no dispute that on 22.7.1957 Korlamallaiah and 17 others purchased the suit schedule properties from Basanna, Doddaveeranna and Sharanappa under a registered sale deed for a valuable consideration. All the 18 purchasers had their right, title and interest and their respective shares in the suit schedule properties which was joint and not determined individually. In the year 1965 i.e., on 5.8.1965 to be precise, 11 members out of 18 owners sold a portion of the suit schedule properties to Channaveerappa under a registered instrument for a valuable consideration of Rs.25,000/-. Thereafter on 13.9.1965, five other original owners sold some of the suit schedule properties to Channaveerappa for a sum of Rs.500/-. It is also not in dispute that the legal representatives of Channaveerappa in turn executed a conveyance or a sale deed in favour of 4 persons viz., Korlamallaiah, Giddamallaiah, Erripalaiah and Ajjaiah,
35
on 7.8.1972. When the matter stood thus, plaintiffs preferred O.S.No.280/1972 before the trial Court seeking relief of declaration that they have right, title and interest in the suit schedule properties and for partition of their 10/17th share. For reasons best known to the plaintiffs, that suit was withdrawn on 14.12.1977 after nearly five years from the date of institution of the suit. Learned Counsel for the appellants has read out the order of withdrawal (Exs.9 & 10) of the said suit during the course of his submissions. It is noted that when the said suit was withdrawn, there was no liberty sought for filing a fresh suit and neither was any liberty granted by the trial Court. It is also not in dispute that O.S.No.280/1972 was withdrawn because the plaintiffs had preferred Form No.7 before the Land Tribunal seeking confirmation of occupancy rights in their names. The plaintiffs did not name any person as the owner or landlord of the suit schedule properties. The said Form
36
No.7 was rejected and the rejection has been confirmed by this Court in civil revision proceedings and the same has attained finality. Thereafter, the present suit i.e., O.S.No.187/2002 has been filed on 18.2.2002, seeking the relief of partition and separate possession of 10/17th share in the suit schedule properties.
37
binding on them. But for reasons best known to the plaintiffs, the said suit was withdrawn as by then the plaintiffs had filed Form No.7 before the Land Tribunal. Possibly the plaintiffs had thought that if they could be granted occupancy rights in respect of the suit properties, then it would not be necessary to pursue their suit – O.S.No.280/1972 wherein they had sought declaratory and other reliefs including partition and separate possession of their share in the suit schedule properties. In the first instance, it is noted that when O.S.No.280/1972 was withdrawn, the plaintiffs did not seek permission to file a fresh suit as is contemplated under Order XXIII Rule 1 of CPC. Therefore, in those circumstances, it is held that the suit – O.S.No.187/2002 filed by the plaintiffs, is in substance for the very same reliefs as had been sought in O.S.No.280/1972 was not maintainable in the absence of there being any leave being granted to file a fresh suit. In this context, reference could be made to a
38
decision of the Apex Court in the case of Sarguja Transport Service –vs- S T A Tribunal, Gwalior reported in AIR 1987 SC 88. In that case it has been observed as under:
“6. It may be noted that while in sub-rule (1) of the former Rule 1 of Order XXIII of the Code the words 'withdraw his suit' had been used, in sub-rule (1) of the new Rule 1 of Order XXIII of the Code, the words 'abandon his suit' are used. The new sub-rule (1) is applicable to a case where the Court does not accord permission to withdraw from a suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. In the new subrule (3) which corresponds to the former sub-rule (2) practically no change is made and under that sub-rule the Court is empowered to grant subject to the conditions mentioned therein permission to withdraw from a suit with liberty to institute a fresh suit in respect of the
39
rsubject-matter of such suit. Sub-rule (4) of the new Rule 1 of Order XXIII of the Code provides that where the plaintiff abandons any suit or part of claim under sub-rule (1) or withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he would be liable for such costs as the Court might award and would also be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim.
40
principle underlying Rule 1 of Order XXIII of the Code is that when a plaintiff once institutes a suit in a Court and thereby avails of a remedy given to him under law, he cannot be permitted to institute a fresh suit in respect of the same subject-matter again after abandoning the earlier suit or by withdrawing it without the permission of the Court to file fresh suit. Invito benificium non datur. The law confers upon a man no rights or benefits which he does not desire. Whoever waives, abandons or disclaims a right will loose it. In order to prevent a litigant from abusing the process of the Court by instituting suits again and again on the same cause of action without any good reason the Code insists that he should obtain the permission of the Court to file a fresh suit after establishing either of the two grounds mentioned in sub-rule (3) of Rule 1 of Order XXIII. The principle underlying the above rule is founded on public policy, but it is not the same as
41
the rule of res judicata contained in Section 11 of the Code which provides that no court shall try any suit or issue in which the matter directly or substantially in issue has been directly or substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. The rule of res judicata applies to a case where the suit or an issue has already been heard and finally decided by a Court. In the case of abandonment or withdrawal of a suit without the permission of the Court to file a fresh suit, there is no prior adjudication of a suit. or an issue is involved, yet the Code provides, as stated earlier, that a second suit will not lie in sub-rule (4) of Rule 1 of Order XXIII of the Code when the first suit is
42
withdrawn without the permission referred to in sub-rule (3) in order to prevent the abuse of the process of the Court.”
reliance on the decision of the Apex Court in the case of Krishna Pillai Rajasekharan Nair –vs- Padmanabha Pillai reported in AIR 2004 SC 1206. In that case one of the co-mortgagors having entitlement to a share each in the suit schedule property, had redeemed the mortgage by paying the entire mortgaged money and had singularly entered into possession over the entire mortgaged property. Consequent upon redemption, other co-owner of the property i.e., the plaintiff, who was asking for the partition of the property commensurate with his share, filed the suit. The question that arose was, what were the rights and obligations of the parties qua each other and whether a suit for partition filed by the plaintiff was maintainable which would also determine the question
43
of limitation as well. The Hon’ble Supreme Court held that the principles of subrogation by operation of law would apply. The co-owner can also be a co-mortgager. The property subject to mortgage is available as between the co-mortgagors for partition, of course, subject to adjustment of the burden on the property. It is held that one of the co-mortgagors, by redeeming the mortgage in its entirety, cannot claim a right higher than what he otherwise had. Faced with a claim for partition by the other co-owner, he cannot defeat the legal claim for partition though he can insist on the exercise of such legal right claimed by the other co-owner-cummortgagor being made subject to the exercise of the equitable right vesting in him by subrogation. The suit filed by non-redeeming co-mortgagor being a suit for partition primarily and predominantly and the relief of redemption having been sought for only pursuant to the direction made by the High Court in its order of remand,
44
it was held that Article 120 of the Limitation Act, 1908 would apply.
45
as sale deeds were nominal, not acted upon and they continued to be in possession of the suit schedule properties. If that was so and when plaintiffs’ claimed ownership in the suit schedule properties, then it is not understandable as to why they later approached the Land Tribunal seeking grant of occupancy rights in respect of the same properties. It is significant to note that in Form No.7, while they sought grant of occupancy rights in respect of the suit schedule properties, they did not name any person as the owner or landlord in respect of the suit lands. It is on that sole reason that their Form No.7 was rejected. The plaintiffs could not have on the one hand contended that they were owners of the suit schedule properties and at the same time sought grant of occupancy rights in respect of the suit schedule properties as tenants. Subsequent to Form No.7 being rejected by the Land Tribunal, which rejection was confirmed by this Court, plaintiffs once again approached the trial Court by filing the present
46
suit seeking partition and separate possession in the suit schedule properties.
on the basis of invoking the principle of estoppel and also Article 58 of the Limitation Act, 1963 it has nevertheless also considered the case of the plaintiffs on merits as evidence was recorded on various issues raised in the suit. While answering issue Nos. 1 and 4, the trial Court on one hand has held that plaintiffs had no locus standi to challenge the sale deeds of the year 1965 as the plaintiffs or their ancestors had joined the defendants concerned in executing the said sale deeds. Therefore, the trial Court on one hand has held that the plaintiffs could not have challenged the sale deeds executed in the year 1965, but at the same breath has also held that the said sale deeds were also nominal sale deeds and that the plaintiffs continued to have right, title and interest in the suit schedule properties.
47
It dismissed the suit on the ground of estopped and limitation while answering additional issues.
contention that the sale deeds dated 5.8.1965 and 13.9.1965 were indeed sales made in favour of Channaveerappa, who was also given the possession of the suit schedule properties. Issue No.4 was answered in the negative by holding that the sale deeds did not convey any right, title and interest to Channaveerappa and that they were nominal sale deeds and therefore, Channaveerappa or his family members did not get any right, title and interest in the suit schedule properties. On this aspect of the matter, respondent Nos. 1 to 3 herein filed their Cross-Objections while appellants herein as plaintiffs challenged the dismissal of the suit as such. The First Appellate Court while answering the points raised for its consideration has held that the trial Court was not right in answering issue No.1 partly in
48
the affirmative and partly in the negative. That
Exs.P.14 and P.15 were not nominal sale deeds and they were indeed sale deeds which were executed by the plaintiffs and their ancestors and some of the defendants conveying right, title and interest in favour of Channaveerappa. The sale deeds were not instruments which were executed in respect of a loan transaction by way of security. In fact this aspect of the matter has also been so held by the trial Court. The First Appellate Court has further noted that pursuant to the sale deeds dated 5.8.1965 and 13.9.1965, Channaveerappa became the owner in possession of the suit lands and thereafter, had entered into an agreement to sell the suit lands on 12.7.1966 in favour of Korlamalllaiah, Giddamallaiah, Erri Palaiah and Ajjaiah. It is pursuant to that agreement of sale that the legal heirs of Channaveerappa sold the suit schedule lands to those four persons on 7.8.1972 under a registered sale deed and for a valuable consideration.
49
50
earlier point of time, they were the co-owners of the suit schedule property. It must be remembered that when they executed the sale deeds on 5.8.1965 and 13.9.1965, they lost right, title and interest to Channaveerappa. As already noted, in those sale deeds, there was no clause regarding re-conveyance of the suit schedule properties to the vendors. Merely because the heirs of Channaveerappa sold the suit schedule properties to four persons, who were their earlier vendors, would not create any right, title and interest to the plaintiffs in respect of the suit schedule properties.
51
In fact, it is their case that the suit schedule properties were purchased by them along with others on 22.5.1957 from three persons. Therefore, the suit seeking partition and separate possession of the suit schedule properties, as if the plaintiffs had antecedent rights in the suit schedule properties, despite conveyance on 5.8.1965 and 13.9.1965 to Channaveerappa, was not maintainable. Further the sale made by the legal heirs of Channaveerappa to the defendants viz., four persons would not enure to the benefit of the plaintiffs as if they were members of a joint family or that they had also a right of reconveyance in respect of the suit schedule properties. The sale dated 7.8.1972 is not a recoveyance made by the heirs of Channaveerappa in favour of the four persons. It is altogether a different and distinct transaction. As already noted, the heirs of Channaveerappa could have alienated the suit schedule properties to any third party. It is by co-incidence they alienated the suit schedule properties to four of their
52
vendors. By that, the rights of the plaintiffs in the suit schedule properties did not emanate or re-surface. In the circumstances, the First Appellate Court was right in answering issue Nos. 1 and 4 in the affirmative and thereby allowing the Cross-Objections which are on merits.
53
there is no finality in the matter which is an abuse of the process of the Court. On that ground also the suit ought to be dismissed.
the suit filed by the plaintiffs was barred by limitation having regard to Article 58 of the Limitation Act, 1963. On that aspect, the First Appellate Court has confirmed the reasoning of the trial Court. The trial Court was justified in dismissing the suit by invoking Order II Rule 2 of CPC as this suit was for seeking partition and separate possession of the suit schedule properties by metes and bounds. In fact, the relief sought by the plaintiffs in the present suit were in substance the very reliefs which they had sought in the earlier suit – O.S.280/1972 and they having withdrawn the said suit without seeking liberty to file a fresh suit, the present suit for the very relief was not maintainable.
54
any infirmity in the judgment and decree of the First Appellate Court which has modified the judgment and decree of the trial Court by allowing the CrossObjections filed by respondent Nos. 1 to 3 and by dismissing the appeal filed by the appellants/plaintiffs. No substantial question of law would arise in the appeal. Appeal is hence, dismissed.
Parties to bear their respective costs.
Civil No.9576/2010 is also dismissed.
Sd/Judge
Nsu/-
3 issues framed by the court
Whether the sale deeds of 1965 were nominal and not binding on the plaintiffs or conveyed right, title and interest to the purchaser?
Whether the present suit for partition and separate possession was maintainable when the earlier suit for the same relief was withdrawn without liberty to file a fresh suit?
Whether the suit was barred by limitation having regard to Article 58 of the Limitation Act, 1963?
Colour shows how this judgement treated each authority
Sarguja Transport Service v. S T A Tribunal, GwaliorReferred¶30
Sarguja Transport Service –vs- S T A Tribunal, Gwalior reported in AIR 1987 SC 88 · Who else cites this
Krishna Pillai Rajasekharan Nair v. Padmanabha PillaiDistinguished¶32
Krishna Pillai Rajasekharan Nair –vs- Padmanabha Pillai reported in AIR 2004 SC 1206 · Who else cites this
6 provisions across 2 enactments
Sri Thippeswamy, S/o Chinnaiah
Sri Machuraiah, S/o Kallesuraiah
Sri Thirukaiah, S/o Murukuchetha
Ajjaiah, S/o Doddamallaiah
Sri Yerripalaiah, S/o Korlu Palaiah
Sri Korlu Palaiah, S/o Korlumallaiah
B.V. Nagarathna
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
