Sri.K.C. Narayan Gowda Vs Smt. Channa Krishnamma

THIS RFA IS FILED UNDER SECTION 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 27.09.2023 PASSED ON IA NO. 2 IN OS.NO.519/2023 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, DEVANAHALLI, C/c. IInd ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, DEVANAHALLI, ALLOWING IA NO.2 FILED UNDER ORDER 7 RULE 11(a) AND (d) R/W SEC. 151 OF CPC FOR REJECTION OF PLAINT.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS. JUSTICE ANU SIVARAMAN and

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HON'BLE MR. JUSTICE RAJESH RAI K

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE RAJESH RAI K)

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This Regular First Appeal is filed by the appellantsplaintiffs challenging the order dated 27.09.2023 passed in I.A.No.II filed by defendant i.e., respondent under Order VII Rule 11 (a) & (d) of CPC in O.S.No.519/2023 before the III Additional Senior Civil Judge & JMFC, Devanahalli ( hereinafter referred to as "the Trial Court " for short ) whereby, the Trial court allowed I.A.No.II and consequently, rejected the plaint for want of cause of action and as barred by law.

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For the sake of convenience, the parties are

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referred to by their ranks as before the Trial Court.

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The abridged facts of the case are as under:

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The plaintiffs filed a suit for declaration, adverse possession and for permanent injunction against the defendant contending that their father i.e., Channappa was the absolute owner of the immovable property bearing Sy.No.168/2, measuring 1 acre 18 guntas situated at Hunasamaranahalli Village, Jala Hobli, Bengaluru North (Addl) Taluk, Bengaluru Urban District vide Sale Deed dated 19.02.1966 (hereinafter referred to as the " Schedule Property ").

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Further, it is the case of the plaintiffs that their father, Channappa executed a nominal Sale Deed in favour of Sri Bachanna on 01.09.1971, but said Bachanna neither took possession, nor got transferred the khata in his name till his death i.e., on 06.01.1988, as the said Sale Deed was only a nominal one. After the demise of plaintiffs' father on 27.06.1997, plaintiffs being the legal representatives got transferred the khata of the schedule property in their names as per MR No.15/2004-05 . Further it is submitted that plaintiff

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No.1 executed the Release Deed dated 28.03.2015 in favour of

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his wife in respect of the schedule property.

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It is also submitted that the defendant filed an

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appeal under Section 136(2) of the Karnataka Land Revenue Act 1964 before the Assistant Commissioner in Revenue Appeal (BNG) No.246/2017-18 questioning the Order dated 09.09.2004 passed by the Tahsildar in M.R.No.15/2004-05 pertaining to the schedule property. On 07.06.2019, the Assistant Commissioner passed an order by setting aside the order dated 09.09.2004 and directed the Tahsildar to effect the khata, mutation and RTC pertaining to the schedule property in the name of the defendant by considering the registered Sale Deed dated 01.09.1971 (document No. 1650/1971-72). Further, it is submitted that against the said order, the plaintiffs filed Revision Petition before the Deputy Commissioner in R.P.No.219/2019 and the said revision petition came to be dismissed by affirming the order passed by the Assistant Commissioner on 21.02.2022.

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Being aggrieved by the same, the plaintiffs filed a

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suit in O.S.No.519/2023 before the Trial Court for declaration,

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adverse possession and for permanent injunction against the defendant in respect of the schedule property.

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After service of summons, the defendant appeared

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through her counsel and filed an application for Rejection of Plaint under Order VII Rule 11 (a) & (d) of CPC. However, the said application was opposed by the plaintiffs by filing objections.

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The Trial Court, upon perusal of the pleadings of the

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parties as enumerated in the plaint, I.A.No.II and objections, framed the following point for consideration:

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"Whether the defendant has made out the grounds to allow the application filed under order 7 rule 11(a) and (d) of CPC to reject the plaint for want of cause of action and barred by law?"

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On hearing the learned counsel for the parties and on assessment of oral submissions and documents placed by both the parties, the Trial Court answered the aforesaid point in the affirmative and allowed I.A.No.II filed by the defendant and rejected the plaint for non-disclosure of cause of action and for

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barred by limitation. Aggrieved by the said order, the plaintiffs preferred the instant appeal.

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Heard the learned counsel Sri. Prakasha. M., for the plaintiffs/appellants and the learned counsel Sri. V.F. Kumbar., for the defendant/respondent.

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The primary contention of the learned Counsel for

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the appellants/plaintiffs is that the Trial Court erroneously came to conclusion that there is no cause of action for the plaintiffs to file the present suit and that the same is barred by law of limitation. Further, he contended that the father of the plaintiffs purchased the suit schedule property under the registered Sale Deed dated 19.02.1966 and after the death of their father, the plaintiffs got mutated the revenue entries in their names vide MR.No.15/2004-05 under inheritance and ever since, they are in possession of the schedule property. It is also contended that the defendant approached the Revenue Authorities by suppressing the fact that the plaintiffs' father has executed only a nominal Sale Deed in favour of her husband i.e., Bachanna and the said fact was not at all within the knowledge of the plaintiffs till the order of the Deputy

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Commissioner. They also sought for the relief of adverse possession and for grant of permanent injunction as the Sale Deed executed by their father in favour of Bachanna was not binding on them, since the defendant has never taken possession of the schedule property.

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Further it is contended by the learned counsel for the plaintiffs that the defendant approached the Revenue Authorities only after the suit was filed by the third party even though the alleged nominal Sale Deed was executed in the year 1971 and the husband of the defendant died in the year 1988. The Assistant Commissioner without appreciating the fact of plaintiffs having mutation entries in their names under inheritance has set aside the mutation made in their favour, which was challenged by them before the Deputy Commissioner, who has dismissed the revision filed by them vide order dated 21.02.2022 and thus, the cause of action arose to the plaintiffs from the date of the order of the Deputy Commissioner i.e., 21.02.2022. Hence, the Trial Court has erred while rejecting the plaint for want of cause of action and limitation. Accordingly, he prays to allow the appeal.

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Per contra, the learned counsel for the respondent/defendant contended that, the Trial Court has rightly allowed I.A.No.II by a well reasoned order which does not call for any interference. He further contended that, the plaint averments discloses that the schedule property was already sold in favour of defendant's husband i.e., Bachanna on 01.09.1971 itself by the father of the plaintiffs and that there is a recital in the Sale Deed that possession of the schedule property was given to the purchaser. Further, it is contended that though the father of plaintiffs executed the nominal Sale Deed in favour of the husband of the defendant in the year 1971 itself, they failed to file the suit seeking appropriate relief either in the year 1971, or in the year 1997, when the father of the plaintiffs died.

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It is also contended that the plaintiffs were the parties in O.S.No.379/2015 which was filed by the brother-inlaw of the defendant for partition, in which they engaged the counsel and also filed the written statement. As such, the plaintiffs cannot contend that they were not aware of the Sale Deed executed by their father in favour of defendant's husband. Thus, even in the year 2015, the plaintiffs failed to

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file the suit and that they filed the suit only in the year 2023 i.e., after lapse of nearly 8 years, which is clearly barred by limitation as per Article 58 of the Limitation Act. Thus, the instant suit is not maintainable and is barred by law of limitation.

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It is further contended that the plaintiffs have filed

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suit for declaration of ownership in respect of the property already sold 52 years ago. Therefore, there is no cause of action arose to the plaintiffs to file the suit. Thus, Trial Court has rightly rejected the plaint for want of cause of action and as hopelessly barred by limitation. Accordingly, he prays to dismiss the appeal.

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Having heard the learned counsel for the parties,

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the sole point that arises for our consideration is:

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"Whether the Trial Court is justified in

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allowing I.A.No.II, thereby rejecting the plaint in O.S.No.519/2023?"

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It could be gathered from the records that the father of the plaintiffs executed the registered Sale Deed dated 01.09.1971 in favour of the husband of the defendant and

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possession was handed over to him. Subsequently, the husband of the defendant died in the year 1988 and the possession of the property was continued with the defendant. In the meantime, after the death of plaintiffs' father, they approached the Revenue Authorities and got the mutation in their name vide MR.No.15/2004-05. Later, the brother-in-law of the defendant filed suit in O.S.No.379/2015 for partition against the defendant in respect of schedule property and other properties, in which, the plaintiffs were arrayed as defendant Nos. 9 to 11. In the year 2017, the defendant approached the Assistant Commissioner to set aside the mutation entry made in favour of the plaintiffs, which was allowed and the mutation was set aside and the name of the defendant was entered. Though a revision preferred by the plaintiffs before the Deputy Commissioner, the same was dismissed in year 2022. Thereafter, the present suit has been preferred.

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The suit is filed for declaration, adverse possession and for permanent injunction. Article 58 of the Limitation Act reads as under:

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Description of suit	Period of limitation	Time from which period
		begins to run

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58. To obtain any	Three years	When the right to sue
other declaration.		first accrues.

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19. On careful perusal of the aforesaid provision, it is clear that the suit for declaration has to be filed within three years when the right to sue first accrues. In the case on hand, as admitted by the plaintiffs, they came to know about the execution of the Sale Deed by their father in favour of the husband of the defendant in the year 2015 when the brotherin-law of the defendant filed a suit for partition in respect of schedule property by arraying the plaintiffs as parties since the plaintiffs contested the said suit. Even otherwise, in the year 2017, the defendant filed an appeal before the Assistant Commissioner to change the khatha of the schedule property in her name, which was allowed by the Assistant Commissioner. Against which, the plaintiffs preferred revision in the year 2019 in Revision Petition No.219/2019. In such circumstances, it is categorically established that the plaintiffs were well aware about the execution of the Sale Deed in the year 1971 in favour of defendant's husband, in the year 2015 itself and subsequently, in the year 2017 and 2019. However, the instant suit was filed in the year 2023. Thus, the right to sue for the

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plaintiffs first accrued in the year 2015 and subsequently, in 2017 and 2019. Hence, the plaintiffs ought to have filed the suit in the year 2022 even if it is considered that the plaintiffs had knowledge of the Sale Deed in the year 2019. Thus, viewed from any angle the suit is barred by limitation.

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The Hon'ble Apex Court in the case Khatri Hotels Private Limited & Another Vs. Union of India & Another - 2011 SCC Online SC 1236 in paragraph 30 has observed as under:

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"30. While enacting Article 58 of the 1963 Act, the legislature has designedly made a departure from the language of Article 120 of the 1908 Act. The word “first” has been used between the words “sue” and “accrued”. This would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. To put it differently, successive violation of the right will not give rise to fresh cause and the suit will be liable to be dismissed if it is beyond the period of limitation counted from the day when the right to sue first accrued."

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Applying the ratio laid down by the Apex Court to

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the facts and circumstances of this case, we are of the view that the Trial Court has rightly passed the impugned order, which does not call for any interference. Accordingly, we answer the point raised above in the affirmative and proceed to pass the following:

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ORDER

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The Regular First Appeal is dismissed .

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Consequently, the pending I.As., if any, also stand

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disposed of.

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SD/(ANU SIVARAMAN) JUDGE

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SD/(RAJESH RAI K) JUDGE