Smt S Anasuyamma Vs Sri S v Babu Reddy

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NC: 2025:KHC:5680 CRP No. 489 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7^TH DAY OF FEBRUARY, 2025 BEFORE

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THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR

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CIVIL REVISION PETITION NO. 489 OF 2022 (IO)

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BETWEEN:

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SMT. S. ANASUYAMMA AGED ABOUT 69 YEARS, W/O. LATE S. SUNDAR RAMA REDDY, RESIDING AT NO.61, SOUTH END ROAD, NAGASANDRA BASAVANAGUDI, BANGALORE -560 004.

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Digitally signed by B K MAHENDRAKUMAR B K Location: HIGH MAHENDRAKUMAR COURT OFKARNATAKA DHARWAD BENCH Date: 2025.02.20 16:40:30 +0530

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SMT. CHANDRAKALA S AGED ABOUT 48 YEARS, W/O. SRI. RAGHPATHI REDDY, D/O. LATE SRI. S. SUNDAR RAMA REDDY, R/AT. NO.61, SOUTH END ROAD, BASAVANAGUDI, BANGALORE-560 004, REPRESENTED BY HER POWER OF ATTORNEY HOLDER SRI. RAGHPATHI REDDY, AGED ABOUT 47 YEARS, R/AT NO.61, SOUTH END ROAD, BASAVANAGUDI, BANGALORE -560 004.

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(BY SRI. DILIP KUMAR I.S., ADVOCATE)

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…PETITIONERS

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AND:

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SRI. S.V.BABU REDDY AGED ABOUT 50 YEARS, S/O. LATE A. VENKATESH REDDY, R/AT. NO.56, 10^TH CROSS, SARAKKI J.P.NAGAR, I PHASE, BANGALORE -560 078.

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SRI. VENKATASWAMY REDDY A AGED ABOUT 69 YEARS,

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S/O. LATE ABBAIAH REDDY, R/AT NO.56, 9^TH CROSS, I G CIRCLE, J.P.NAGAR I PHASE, BANGALORE -560 078.

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SRI. RAGHURAM REDDY G AGED ABOUT 34 YEARS, S/O. LATE GOPAL REDDY A., R/AT NO.56, 10^TH CROSS, SARAKKI J.P.NAGAR I PHASE, BANGALORE -560 078.

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SRI. ANAND REDDY S AGED ABOUT 40 YEARS, S/O. LATE SRINIVAS REDDY, R/AT NO.56, 10^TH CROSS, SARAKKI JP NAGAR, I PHASE, BANGALORE -560 078.

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SRI. ARUN KUMAR S AGED ABOUT 33 YEARS, S/O. LATE SRINIVASA REDDY, R/AT NO.56, 10^TH CROSS, SARAKKI JP NAGAR I PHASE, BANGALORE -560 078.

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SMT. VIMALA A AGED ABOUT 60 YEARS, W/O. NANJUNDESH REDDY, R/AT NO.133, 7^TH CROSS, MUNEKOLALLU MARATHALLI POST, BANGALORE -560 037.

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SRI. SUNDAR RAJ S SINCE DEAD BY HIS LR’s.,

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7(A). SMT. VARALAKSHMI N AGED ABOUT 58 YEARS, W/O. LATE SUNDAR RAJ S.

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7(B). SRI. PREETHAM S. AGED ABOUT 34 YEARS, S/O. LATE SUNDAR RAJ S.

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7(C). SMT. DIVYA REDDY AGED ABOUT 31 YEARS, D/O. LATE SUNDAR RAJ S.

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7(A) TO 7(C) ALL ARE R/AT: E-2, B BLOCK, KRISHNA RESIDENCY, 9^TH A CROSS, J.P.NAGAR, 1^ST PHASE, SHIVA TEMPLE, BENGALURU SOUTH, BENGALURU-560076.

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…RESPONDENTS

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(BY SRI. SHIVARUDRAPPA SHETKAR, ADV. FOR R1 TO R6; R7(A) TO R7(C) -SERVED)

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THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF CPC PRAYING TO SET ASIDE THE ORDER PASSED ON I.A.NO.3 FILED UNDER ORDER VII RULE 11(a) AND (b) R/W. SEC.151 OF CPC DATED 28.09.2022 IN O.S.NO.8435/2018 PASSED BY THE XXXV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-36) AND ALLOW THE APPLICATION AND REJECTING TO PLAINT ALSO ALLOW AND THIS PETITION.

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR

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ORAL ORDER

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The petitioner-defendants challenge in civil revision the order dated 28.09.2022 passed by the Trial Court in O.S No. 8435/2018 wherein, their application seeking rejection of plaint filed under Order 7 Rule 11 (a) and (d) r/w Section 151 of CPC came to be rejected.

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1.1. In short, the defendant-revision petitioners herein seek the rejection of a plaint instituted after lapse of 16 years from the date of execution of a registered sale deed on the grounds that the same is ex facie barred by limitation under Article 65 of the Limitation Act, 1963, and that the plaintiffs had deemed knowledge of the same via registration of the impugned deed of sale on

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30.08.2003. Conversely, the plaintiffs allege fraud and that the plaint had been promptly instituted upon the fact of execution and registration of the impugned instruments having come to their knowledge. The allegedly fraudulent execution of the impugned instruments however, have been followed by a change in the Khata of the scheduled property in favour of the defendants, respectively, as and when such impugned conveyances were executed.

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The Respondents/ plaintiffs have filed a suit for declaration of title, and recovery of possession, and more specifically seeking to declare the following:

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I. The unregistered GPA dated 10.6.1999 purportedly executed by the plaintiff no.2 in favour of one deceased Sundarram Reddy is void, non-est and to be not binding on the plaintiffs;

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II. The sale deed dated 30.08.2003, registered as document no. 3103/03-04 executed by the deceased Sundarram Reddy in favour of the defendants No.1 is void, non-est and to be not binding on the plaintiffs, and also further to cancel the said sale deed.

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III. The Gift deed dated. 30.10.2016 executed by Defendant no.1 in favour of Defendant no.2, registered as document no. JGN-103625/16-17 is void, non-est and to be not binding on the plaintiffs, and also further to cancel the said Gift deed.

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The Plaintiffs claim to be the owner of the suit schedule property having inherited the same upon the demise of their mother Lingamma on 16.03.1993 and claim to be in joint possession of the same ever since. The deceased propositus acquired the schedule property vide Gift Deed dated 28.01.1974, registered as Document No. 3978/1973-74, conveyed by her

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husband and original owner, Late Abbaiah Reddy. Thereafter, upon becoming an absolute owner, the deceased propositus had further gifted two portions within the larger gifted property, to her sisters vide two separate registered Gift Deeds dated 01.04.1974. The remainder thereof is the scheduled property herein.

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The plaint further reveals that the plaintiffs had agreed to partition the suit schedule property at a later date amongst the plaintiffs, and further, include one Shri Sundarram Reddy as a sharer in the schedule property. Shri Sundarram Reddy is described as a cousin of the Plaintiffs No. 2, 6, and 7 and is alleged to have been in permissive possession of the scheduled property, as another property in the exclusive ownership of Shri Sundarram Reddy, was in joint possession of the plaintiffs and Shri Sundarram Reddy as one whole property. Hence, the plaintiffs contend that the plaintiffs and Shri Sundarram Reddy (d. 18.12.2015) have been in joint possession of the scheduled property ever since.

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Thereafter, upon long passage of time, the plaintiffs contend that upon approaching the defendant No. 1 (wife of late Shri Sundarram Reddy) and requesting the latter to handover the possession of the scheduled property to the plaintiffs, the defendant No. 1 refused the same and per contra, alleged that she had been in possession of the same as a rightful and absolute owner, as a purchaser of the scheduled property vide sale deed dated 30.08.2003, registered as document No.3103/03-04, in the office of the jurisdictional Sub-Registrar, Basavangudi. The plaint

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further reveals that the said sale deed had been executed by the now deceased Shri Sundarram Reddy, in his purported capacity as a General Power of Attorney (GPA holder) vide unregistered GPA dated 10.06.1999, purportedly executed by plaintiff No. 2. Subsequently, the scheduled property was gifted to defendant No. 2, vide gift deed, registered as registered as document no. JGN-103625/16-17. The defendants in their written statement have contended and produced Khatas of the scheduled property which have been effected in the names of defendants No. 1 and 2, at the relevant times of registration of the respective deeds of conveyance.

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The plaintiffs therefore, now contend that Shri Sundarram Reddy who had been in actual physical possession of the scheduled property, had fraudulently conveyed the said property in favour of his wife in August, 2003, who then conveyed the property in favour of their daughter in October 2016. The same having come to their knowledge on 10.06. 2018, the plaintiffs felt aggrieved, and as such have filed the subject plaint on 24.11.2018.

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The defendants entered appearance and filed an application under Order 7 Rule 11(a) and (d) of CPC, 1908 contending that the impugned sale deed was executed in the year 2003 based on the GPA executed in the year 1999, and therefore, the suit is barred by limitation as per Articles 58 and 59 of the Limitation Act, 1963. The Trial Court rejected the application, vide the passing of the impugned order.

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7.1. Aggrieved the defendants have filed the instant civil revision petition.

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Learned counsel for the petitioner argues that, the plaintiff was seeking for declaration to cancel the registered sale deed dated 30.8.2003 and therefore the plaintiffs are deemed to have the knowledge of the execution of the sale deed as stated under Section 3 of the Transfer of Property Act. Therefore the suit filed beyond the limitation period of 12 years as stated under Article 65 of the Limitation Act is barred by limitation.

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In support, reliance is placed upon the following:

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i. Dilboo (Smt) (Dead) by LRS. and Others -vs- Dhanraji (Smt) (Dead) and Others, (2000) 7 SCC 702 (Para 20) - whenever a document is registered the date of registration becomes the date of deemed knowledge

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ii. Smt Mallama and Ors. v. Shri Mallegowda @ Karigowda and Ors, ILR 2022 KAR 992 - (Para 11) - relief of either cancellation or declaration that the sale deed does not bind the plaintiffs is barred by limitation; astute drafting and issuance of notice shall not accrued a cause of action in relation to time barred remedies.

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iii. Metropolis Overseas, Limited, v. H.S. Deekshit and Ors, in CRP No. 307 of 2020 : DD14.09.2021, MANU/KA/4213/2021.

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Learned counsel appearing for the respondents/plaintiffs submitted that the petitioners/defendants have filed a counterclaim seeking declaration that they are the owners of the suit schedule property under registered sale deed or in the alternative to be declared as owner by way of adverse possession.

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9.1. The learned Counsel further contended that the Petitioners/defendants having admitted the ownership of the

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plaintiffs/respondents over the subject property, the application filed under Order VII Rule 11(d) of Code of Civil Procedure (for short 'CPC') is not maintainable. Therefore, the question of limitation is a mixed question of law and fact and the same can be considered at the time of trial.

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9.2. The Learned counsel for Respondent/ Plaintiffs further submitted that the Petitioners/defendants having filed the counter claim cannot maintain an application under Order VII Rule 11(d) of CPC.

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9.3. He further argued that since the possession of the petitioners/defendants is purportedly based on a void document and the respondent/plaintiffs ought to have filed the suit within 12 years as prescribed under Article 65 of the Limitation Act, 1963, the counter claim is independent of the Plaint and therefore rejection of the Plaint under Order VII Rule 11(d) of CPC will not be a bar to consider the counter claim independently.

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In support, reliance is placed on the following:

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i. Smt Noor Aftab Parveen and Ors v. Sri. H.N Chandrashekar and Ors) RSA No. 864/2015 : DD 151.01.2021 (Para 4)

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ii. Essem Logistics v. Darcel Logistics Ltd and Anr (2023) 9 SCC 753, (Para 11)

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Heard the learned counsels and perused the material on record. The issue that arises for consideration is whether the subject plaint warrants rejection under Order 7, Rule 11 (a) and (d) r/w Section 151 of CPC, as ex facie barred by the law of limitation,

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on grounds of the plaintiffs having deemed knowledge of the allegedly fraudulent impugned instruments upon their registration.

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The relevant facts necessary for the disposal of this revisional proceeding have been adequately recorded in the preceding paragraphs and require no further elaboration.

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The impugned order dated 28.09.2022 passed by the Trial Court below dismissing the application for rejection of plaint has recorded that no admission is made by the plaintiffs in their plaint about their awareness of execution of the sale deed dated 30.02.2003 by the GPA Holder in favour of defendant No.1. Furthermore, the Court observed therein that the plaintiff came to know about registration of sale deed only in the month of June, 2018 when the plaintiffs had contacted defendant no.1 for seeking partition and possession of the suit property.

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12.1. Therefore, the Trial Court observed that where the recitals of the plaint did not disclose any knowledge on part of the plaintiffs, the onus of proof of petitioners having knowledge of the execution of the impugned sale deed or the GPA purportedly executed by the plaintiff No. 2, would necessarily shift on the applicant seeking rejection of plaint. Hence, in absence of the same, the Trial Court has dismissed the defendants’ application seeking rejection of the plaint.

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In view of the proposed order and the reasons recorded hereunder, I am of the opinion that the impugned order does not warrant interference at the hands of this Court, and the

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subject plaint cannot be rejected under the provisions of Order 7, Rule 11(d) of CPC, 1908.

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It is now settled law that unless a suit is ex facie barred by the law of limitation, the issue of limitation remains a mixed question of law and fact, and is a matter of trial. Therefore, the issue of rejection of a plaint in revisional proceedings before this Court merits a limited scope of enquiry as to whether the subject plaint herein stands ex facie barred by limitation. It is further needless to observe that the question as to whether the suit is barred by any law, would always depend upon the facts and circumstances of each case, and the real object of the provision contained in Order 7, Rule 11 (d)) is to reject irresponsible and meaningless lawsuits (See, Madnuri Sri Rama Chandra Murthy v. Syed Jalal, (2017) 13 SCC 174, and Sopan Sudhdeo Sable and Others v. Assistant Charity Commissioner and Others, (2004) 3 SCC 137).

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Before proceeding any further, it is pertinent to advert to the governing provisions and precedents established in relation to ‘deemed knowledge’ or ‘constructive notice’.

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15.1. Section 3 of the Transfer of Property Act, 1882, deals with interpretation, and the relevant portion reads thus -

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“3. Interpretation clause -

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a person is said to have notice of a fact when he actually knows that fact, or when, but for wilful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it.

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Explanation I.— Where any transaction relating to immoveable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or, where the property is not all situated in one sub-district, or where the registered instrument has been registered under sub-section (2) of section 30 of the Indian Registration Act, 1908 (16 of 1908), from the earliest date on which any memorandum of such registered instrument has been filed by any Sub-Registrar within whose sub-district any part of the property which is being acquired, or of the property wherein a share or interest is being acquired, is situated:

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Provided that—(1) the instrument has been registered and its registration completed in the manner prescribed by the Indian Registration Act, 1908 (16 of 1908), and the rules made thereunder, (2) the instrument or memorandum has been duly entered or filed, as the case may be, in books kept under section 51 of that Act, and (3)the particulars regarding the transaction to which the instrument relates have been correctly entered in the indexes kept under section 55 of that Act.

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Explanation II.—Any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof.

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Explanation III.—A person shall be deemed to have had notice of any fact if his agent acquires notice thereof whilst acting on his behalf in the course of business to which that fact is material: Provided that, if the agent fraudulently conceals the fact, the principal shall not be charged with notice thereof as against any person who was a party to or otherwise cognizant of the fraud.”

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15.2. Therefore, in terms of Explanation 1 to Section 3 of the TP Act, an instrument which is compulsorily registrable, and the registration thereof is completed in the manner contemplated under the Registration Act of 1908, and where the entry of particulars regarding the transaction is correctly entered in the indexes kept under Section 55 of the said Act, a registration of an instrument

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may operate as a constructive / deemed notice, as unto the recitals of the said instrument.

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Section 17 of the Limitation Act, 1963 deals with Effect of fraud and reads thus -

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“(1) Where, in the case of any suit or application for which a period of limitation is prescribed by this Act,—

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(a)the suit or application is based upon the fraud of the defendant or respondent or his agent; or

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(b)the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person as aforesaid; or

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(c)the suit or application is for relief from the consequences of a mistake;or

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(d) where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him,

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the period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it; or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production :

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Provided that nothing in this section shall enable any suit to be instituted or application to be made to recover or enforce any charge against, or set aside any transaction affecting, any property which—

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(i) in the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know, or have reason to believe, that any fraud had been committed, or

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(ii) in the case of mistake, has been purchased for valuable consideration subsequently to the transaction in which the mistake was made, by a person who did not know, or have reason to believe, that the mistake had been made, or

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(iii) in the case of a concealed document, has been purchased for valuable consideration by a person who was not a party to the concealment and, did not at the time of purchase know, or have reason to believe, that the document had been concealed”.

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(emphasis supplied)

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16.1. Therefore, where the subject plaint is instituted upon the alleged fraud of the defendant; and the fraudulent conveyances having been executed ( the first of the them having been executed on 30.08.2003 ) on the basis of the allegedly forged unregistered GPA purportedly executed by the plaintiff No.2 on 10.06.1999 in favour of the deceased Shri Sundarram Reddy; and the contention that the plaintiffs have not yet been able to obtain the concealed GPA, coupled with the fact the plaintiffs had not until 10.06.2018 or until the institution of the subject suit had any means to compel the production thereof, the period of limitation cannot have begun until the plaintiffs had not discovered the allegedly forged and concealed GPA, purportedly executed by the plaintiff No. 2.

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The learned Counsel for respondent-plaintiffs further contends that the defendants have herein made a counter claim for declaration of title, which is independent of the claim made in the subject plaint. He places reliance on the decision of the Apex Court in the case of Essem Logistics v. Darcl Logistics Limited, (2023) 9 SCC 753, wherein it was observed at para 11 as follows:

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“11. It is well recognised that in view of Order 8 Rule 6-A(4) CPC, 1908 a counterclaim is virtually a plaint and an independent suit. It is also a settled proposition of law that a plaint which falls within the teeth of the conditions laid down under Rule 11 of Order 7 CPC which is liable to be rejected at the threshold for which the plaint allegations alone are required to be considered and nothing else.”

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There is no quarrel with the above proposition.

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The learned counsel (appearing for the respondentplaintiffs) further drew the attention of this Court to the decision of Smt Noor Aftab Parveen and Ors v. Sri. H.N Chandrashekar and Ors) RSA No. 864/2015 : DD 151.01.2021, wherein a coordinate Bench of this Court had dealt with the issue of extinguishment of a right to suit property under Section 27 of the Limitation Act, 1963 therein. This Court observed that where the defendant contented graduation of possession by the plaintiff into adverse possession, the right of the plaintiff to sue for possession would remain till the defendant acquired a positive title, to the exclusion of the plaintiff.

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In the instant case, where the defendants have made a counter claim for declaration of the title to the scheduled property, the right of the plaintiff herein to maintain an action for declaration of the same cannot be held to be non-existent, when the fact of an allegedly forged unregistered General Power of Attorney dated 10.06.1999 executed in favour of the deceased Shri Sundarram Reddy, was only brought to the knowledge of the plaintiff on 10.06.2018. Hence, the period of limitation can begin to

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run from thereon, and the subject suit for declaration and possession having been filed within the period of limitation of 12 years, from the date of the knowledge of the possession of the defendants having become exclusive and adverse to that of plaintiffs.

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In the case of Daliben Valjiben and Ors v. Prajapathi Kodarbhai Kachrabhai and Anr 2024 INSC 1049 , where a sale deed was challenged after a lapse of 13 years from the date of its registration on grounds of fraud and forgery, and the entry of sale deeds in the revenue records was not in compliance with the governing resolution issued by the Department of Revenue, the Hon’ble Supreme Court dismissed an application for rejection of plaint and held that the period of limitation would not commence from the date of registration of the allegedly fraudulent impugned instruments, where the knowledge of of the same was not forthcoming from the averments in the plaint.

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20.1. The Court further relied on its earlier decision rendered in the case of PV Guru Raj Reddy v. P Neeradha Reddy (2015) 8 SCC 331, wherein it was observed that that the claim of plaintiffs with regard to the knowledge of essential facts giving rise to the cause of action as pleaded will have to be accepted as correct” and that pleadings averred in the written statement would irrelevant to adjudicate upon the issue of rejection of plaint. The Court in the case of Guru Raj Reddy (supra) had further observed that the plaint shall warrant rejection only if the averments therein revealed that the suit appeared to be barred under any law, and that claims

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shall in all other situations will have to be adjudicated upon in a trial.

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20.2. The Court in Daliben Valjiben had further referred to its earlier decision in the case of Chhotanben v. Kirtibhai Jalkrushnabhai Thakkar, (2018) 6 SCC 422, wherein the Court had observed that the period of limitation shall in a case for suit for cancellation of sale deed will arise from the date of knowledge of execution of the alleged fraudulent instruments.

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Before proceeding to pronounce the order, it is pertinent that following authorities relied upon by the petitionerdefendants be dealt with. In the case of Dilboo (Smt) (Dead) by LRS. and Others -vs- Dhanraji (Smt) (Dead) and Others, (2000) 7 SCC 702, the Apex Court observed, “whenever the document is registered the date of registration becomes the date of deemed knowledge. In other cases where a fact could be discovered by due diligence then deemed knowledge would be attributed to the plaintiff because a party cannot be allowed to extend the period of limitation by merely claiming that he had no knowledge ”.

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21.1. The Supreme Court therein affirmed the dismissal of a suit filed by descendents of a mortgagor against the descendents of the mortgagee seeking redemption of mortgage wherein, the mortgagee by executing a sale of mortgage property had created an interest in excess of interest of mortgagee.The Court observed therein where the perusal of the plaint revealed the predecessors-intitle of the plaintiff had full knowledge of the transactions of mortgage and subsequent sale by mortgagee, the period of limitation to

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institute a suit under such circumstances would be governed by Article 134 of Limitation Act, 1908, which prescribed a 12 year period of limitation to recover possession of mortgaged property which is subsequently transferred by the mortgagee for a valuable consideration. The Court negated the contention of the plaintiff that the subject suit therein ought to be governed by Article 148 of the Act of 1908, which prescribed the period of 60 years for redemption of mortgage.

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21.2. Therefore, the above ratio elucidating presumption of constructive notice or deemed knowledge in rem unto the recitals of a registered instrument, is applicable to cases where pleadings in the plaint revealed predecessors-in-title of having notice of the impugned transfer of mortgaged property by the mortgagee. Hence, the same is inapplicable to the facts of instant case where pleadings in the plaint do not reveal any knowledge of fraudulent execution of a forged and unregistered GPA purportedly executed by the plaintiff No.2.

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In the case of Smt Mallama and Ors. v. Shri Mallegowda @ Karigowda and Ors, ILR 2022 KAR 992 , a Division Bench of this Court had dismissed a suit for partition and separate possession instituted by female coparceners in relation to suit property alienated prior to 20.12.2004. As regards to the issue of limitation, the claim of minor plaintiffs was dismissed on the grounds that a suit which ought to have been instituted within a period of three years upon attaining the age of majority, as prescribed under Article 60 of Act of 1963, was not so filed. The

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above decision therefore, is not applicable to the case at hand, as the subject plaint does not reveal any preexisting knowledge of the alleged fraud.

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In the case of Metropoli Overseas Limited v. HS Deekhsit, CRP No. 307/2020 : DD 14.09.2021, a coordinate Bench of this Court elaborated upon the essentials of a valid registration of an instrument and further allowed the defendant’s application for rejection of plaint on the grounds that a registered sale deed in relation to joint family property would amount to constructive notice to all members of the joint family. A careful scrutiny of the said judgment further reveals that the learned Judge had elucidated that a ‘cause of action’ would not necessarily arise as on the date of purchase of a property (immoveable) and registration of the sale deed, but only when somebody would interfere with the right to enjoy such property, for which a different date would have been mentioned in the plaint.

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23.1. The issue of a plaint being barred by law under Order 7, Rule 11 (d) of CPC, 1908 is essentially dependent upon the facts and circumstances of each case. In the instant case, the plaint averments reveal that plaintiffs had been in constructive possession of the scheduled property on account of succession, and the defendants had been in actual permissive possession of the property. Thus, the cause of action arose in June 2018 when the plaintiffs had realised that the purportedly permissive possession of the defendants had become adverse to their title derived through succession, on the basis of allegedly fraudulent

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GPAs and subsequent transfers. Therefore, the subject plaint does not warrant rejection as being time-barred.

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23.2. Furthermore, in light of the consistent position of the Hon’ble Supreme Court that the period of limitation shall begin only from the date of discovery of fraud, and the fact that impugned transfers herein have been executed on the basis of an allegedly fraudulent unregistered GPA in favour of the vendor in the first impugned sale deed dated 30.08.2003, the ratio enunciated in the case of Metropoli is inapplicable to the case at hand.

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Thus, placing reliance upon the above, the learned counsel for the petitioner-defendants contended that a bare perusal of the plaint revealed that the petitioners have admitted registration of the impugned sale deed executed by the Late Shri Sundarram Reddy, purportedly in his capacity as the GPA Holder, in favour of defendant No. 1 on 30.08.2023, and therefore, the plaintiffs remain precluded from claiming lack of knowledge as regards the execution of the impugned instrument.

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In the instant case, although the allegedly fraudulent transfers executed on 30.08.2003 and 30.10.2016 in favour of defendant No. 1 and defendant No. 2 respectively, are registered and Khatas in relation to the same are duly effected, but the same having been executed on the basis of an unregistered GPA dated 10.06.1999 executed in favour of the deceased Shri Sundarram Reddy (husband of defendant No. 1 and father of defendant No. 2), the knowledge of the same cannot be deemed to have been with the plaintiffs. Additionally, the averments in the plaint further reveal

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NC: 2025:KHC:5680 CRP No. 489 of 2022

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that the deceased Shri Sundarram Reddy had been in permissive possession of the suit property, jointly with the plaintiffs, and the same had not been adverse to the constructive possession of the plaintiffs, until the date of actual notice, i.e., 10.06.2018. Furthermore, the issue of whether impugned instruments herein were discovered on the date as alleged in the plaint can only be answered upon consideration of evidence adduced and is therefore, a matter of trial.

¶149

Needless to mention, it is settled law that the period of limitation shall begin to run from the date of knowledge of execution of the allegedly fraudulent impugned instruments, and that a plaint may not be ex facie barred by time on account of deemed knowledge, via registration of the impugned allegedly fraudulent document.

¶150

In light of the fact that plaint averments do not reveal that the suit is ex facie barred by limitation, the issue of limitation therefore becomes a mixed question of fact and law, and a matter of trial.

¶151

Accordingly, the instant civil revision petition stands dismissed.

¶152

BKM Ct:vh List No.: 19 Sl No.: 9

¶153

Sd/(HEMANT CHANDANGOUDAR) JUDGE

Smt S Anasuyamma v. Sri S v Babu Reddy

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Smt S Anasuyamma v. Sri S v Babu Reddy

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