Smt. M.N. Jayamma Vs Sri. Nanjundaiah

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THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 26.6.2013 PASSED IN

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R.A.NO.175/2011 ON THE FILE OF III ADDITIONAL DISTRICT AND SESSIONS JUDGE, MANDYA (SITTING AT SRIRANGAPATNA), DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 27.8.2011 PASSED IN OS.NO.32/2008 ON THE FILE OF ADDITIONAL SENIOR CIVIL JUDGE, SRIRANGAPATNA.

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

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CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI

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ORAL JUDGMENT

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This Regular second appeal is filed by the appellants challenging the judgment and decree dated 26.06.2013, passed in R.A.No.175/2011 by the III Additional District and Sessions Judge, Mandya, sitting at Srirangapatna and

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the judgment and decree dated 21.08.2011, passed in O.S.No.32/2008 by the learned Additional Senior Civil Judge, Srirangapatna.

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For convenience, the parties are referred to based on their rankings before the trial Court. The

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appellant was the plaintiff, and the respondents were the defendants.

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Brief facts, leading rise to the filing of this appeal are as follows:

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The plaintiff filed a suit against the defendants for possession of the suit schedule property. It is contended that the plaintiff’s husband Sri. Puttashettar was the absolute owner of the land bearing Sy.Nos.28, 29 and 30 measuring 10 acres 12 guntas situated in Chinnayakanahalli, K.Shettihalli Hobli, Srirangapatna Taluk. Sri. D.Thimmaiah @ Dasappa, Smt. Nanjamma, Sri. Honaganahalli Timmaiah and Honaganahalli Lingaiah were the tenants of land bearing Sy.Nos.28 to 30 measuring 10 acres 12 guntas of the land regarding different portions. The plaintiff’s husband filed an application before the Land Reforms Authority in RLC No.825/1970. During the pendency of the proceedings before the Land Reforms Authority, the matter was compromised, and the plaintiff’s husband sold the portions of land in occupation of the

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tenants to the respective tenants on 06.04.1972. On the same day, defendant No.1 and defendant No.6’s father resold 2 acres 12 guntas of the land in favour of the plaintiff. The plaintiff mortgaged the land to one M. Jayakumar on 05.09.1974. At the time of redemption of the mortgage, she sold 1 acre 10 guntas to the mortgagee and retained 1 acre 8 guntas, i.e., the suit schedule property. It is contended that Jayakumar filed a suit in O.S.No.361/1975, and the said suit was partly decreed concerning 1 acre 10 guntas. The defendants are in possession of the property to the extent of more than the property, they purchased. They assured the plaintiff that

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they would hand over the land, which they held in excess to their extent, but failed to do so. In O.S.No.361/1975, ADLR was appointed as a Court commissioner, and ADLR has submitted a report to the Court. According to the commissioner's report, the suit schedule property is located in Sy.No.29. Hence, the plaintiff has filed a suit

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for a declaration seeking to declare her as the owner, and

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for possession. Hence, prays to decree the suit.

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3.1. Defendant Nos.1, 3, 4 and 5 filed a common

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written statement admitting the fact that on 06.04.1972, the plaintiff’s husband sold 10 acres 12 guntas of the land to the tenants and contended that the father of defendant Nos.3, 4 and 5 had purchased the land of Thimmaiah, who purchased the land from the plaintiff’s husband. The plaintiff’s husband sold 3 acres of the land to D.Dasappa,

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who in turn sold 2 acres 18 guntas to the plaintiff in Sy.Nos.28, 29, 30. The defendants denied other averments made in the plaint. It is further contended that the suit is barred by time, and it is contended that the plaintiff had not approached the Court with clean hands, and therefore, prays to dismiss the suit.

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3.2. Defendant No.2 filed a written statement

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contending that there is no cause of action to file a suit. The husband of the plaintiff sold 1 acre 10 guntas of the

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land in favour of defendant No.1, and he has purchased

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the same. He is in possession of the suit schedule property, and accordingly, prays to dismiss the suit.

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3.3. The Trial Court, based on the pleadings of the

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parties, framed the following issues, and additional issues:

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1) Whether the plaintiff proves that she is the owner of suit schedule property?

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2) Whether the plaintiff proves that defendant had illegally occupied the suit schedule property and are in illegal possession of suit property?

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3) Whether the suit is properly valued for the purpose of Court fee and jurisdiction?

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4) Whether the plaintiff is entitled for the relief of declaration and possession and for mesne profits as claimed in the plaint?

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5) What Decree or order the parties are entitled to?

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Additional Issue:

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Whether the suit is barred by limitation?

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3.4. The plaintiff to substantiate her case, examined

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herself as PW-1, and marked 18 documents as Exs.P1 to P18. In rebuttal, defendant No.1 examined himself as DW.1, defendant Nos.2 and 4 were examined as DWs.2

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and 3 respectively, and marked 16 documents as Exs.D1

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to D16. The trial Court, after recording the evidence, hearing on both sides, and assessing the verbal and documentary evidence of the parties, answered issue Nos.1, 3 and additional issue No.1 in the affirmative, issue Nos.2 and 4 in the negative, and issue No.5 as per the final order. The suit of the plaintiff was dismissed vide judgment dated 27.08.2011.

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3.5. The plaintiff, aggrieved by the dismissal of the

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suit in O.S.No.32/2008, preferred an appeal in R.A.No.175/2011 on the file of the III Additional District

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and Sessions Judge, Mandya, sitting at Srirangapatna.

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3.6. The first Appellate Court, after hearing the

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learned counsel for the parties, has framed the following points for consideration:

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1) Whether the trial Court has committed any error of law and facts and interference by this Court in the conclusion arrived by the trial Court is necessary?

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2) What order?

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3.7. The First Appellate Court, after re-assessing the

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verbal and documentary evidence, answered point No.1 in the negative, and point No.2 as per the final order. The

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appeal was dismissed, and the judgment and decree passed in O.S.No.32/2008 dated 27.08.2011 was confirmed vide judgment dated 26.06.2013. The plaintiff, aggrieved by the judgments and decrees passed by the courts below, filed this Regular Second Appeal.

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3.8. Notice was issued to the respondents. Despite service of the notice, the respondents remained unrepresented, and were placed exparte.

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Heard the arguments of Sri. Chandrakanth R. Goulay, the learned counsel for the plaintiff.

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Learned counsel for the plaintiff submits that

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the trial Court answered issue No.1, holding that the plaintiff is the absolute owner of the suit schedule property

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and committed an error in dismissing the suit for

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possession. He submits that when the trial Court had declared that the plaintiff was an owner of the suit property, the trial Court should have decreed the suit of the plaintiff. He also submits that the defendants are in possession of the land purchased. Hence, he submits that the trial Court committed an error in dismissing the suit on the ground that it is barred by limitation, and also by referring Section 27 of the Limitation Act. He submits that proceedings were pending before the revenue authorities. The suit filed by the plaintiff is well within the time. Hence, prays to allow the appeal.

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This Court, admitted the appeal on 02.06.2016

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to consider the following substantial questions of law :

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1) Whether the courts below were justified in dismissing the suit of the plaintiff, when the Appellate Court recorded a specific finding that the plaintiff has proved the ownership in respect of the suit schedule property?

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2) Whether the courts below were justified in dismissing the suit without considering the material evidence Ex.P4 and Ex.P18 sale deeds and encumbrance certificate, which

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clearly depicts the ownership of the plaintiff in respect of the suit schedule property?

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3) Whether the trial Court is justified in rejecting the application for appointment of commissioner to measure the lands and demarcate the lands on the basis of the sale deeds of the respective parties to the suit?

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4) Whether the courts below were justified in dismissing the suit in the facts and circumstances of the present case?

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Perused the records, and considered the

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submissions of the learned counsel for the plaintiff.

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8. REGARDING SUBSTANTIAL QUESTIONS OF LAW NOS.1 AND 2:

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Substantial question of law Nos.1 and 2 are interlinked with each other and are taken together for common discussion to avoid the repetition of facts.

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The plaintiff to substantiate her case, she was examined as PW.1 and produced 18 documents marked as Exs.P1 to P18 in support of her claim. PW1 in her crossexamination at page No.5, who had admitted that, based

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on the sale deed, they had not measured the property.

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Furthermore, she had stated that, due to non-

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measurement of Sy.Nos. 28, 29 & 30, she does not know how many phodis are there. Further, she had admitted that, on 05-09-1974, they mortgaged 2 acres and 18 guntas of land to one Jayakumar. Furthermore, she had admitted that, the mortgagees in her land had made a road, measuring 14 feet long and 600-700 feet in width. further she had admitted that, due to that road, the land in Sy.Nos.28 & 29 had gone. Further, in her crossexamination at page no.6, had admitted that, she had not cultivated the land at any time. Furthermore, she had admitted that, at column No.9 of the Pahani, there is a reference to paddy, but she does not admit it, and had stated that, they had not grown any paddy. Further, PW1 in her cross-examination at page No.6, who had admitted

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that, since 1972, she has been asking for possession from Nanjunda, Honna Alagaiah and other purchasers. She had not issued any notice. Further, PW1 in her cross-

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examination at page No.7, who had admitted that, in O.S.No.361/75, Commissioner was appointed, who had submitted his report. Further, she had admitted that, according to the said commissioner’s report, she is not in possession of the land. Further, she had stated that, one Seena is in possession of 1 acre, and 8 guntas of land, which is her property. Further, in her cross-examination dated 19-08-2010, she stated that, she had sold a property to one Jayakumar i.e., an extent of 1 acre 10 guntas of land on 05-08-1993. Further, she had stated that, at that time, she was also aware of the property, which was left with her.

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On the other hand, the defendant Nos. 1, 2, & 4 who had filed their affidavit evidence as DW1 to 3, wherein their affidavit evidence, had spoken about the averments as made in their written statement.

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Further, I have also gone through the documents produced by the defendants and the plaintiff.

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Ex.P-8 is the record of rights of Sy. No.29/Pai P4, which is measuring 1 acre 8 guntas, at column no.9, the plaintiff is shown as a possessor and at column no. 10, the plaintiff is shown as possessor under MR 9/72-73 RR 1381. Ex.P-2 is a sale deed, wherein the plaintiff had purchased 2 acres 18 guntas of land from one Dasappa. Furthermore, it is the specific case of plaintiff that, after the purchase of 2 acres 18 guntas from D. Dasappa, she sold 1 acre 10 guntas of land to one Jayakumar. Now, in view of Exs.P-8 & P-2, I am of the view that, the plaintiff is the owner of the said extent of 1 acre 8 guntas of land. Furthermore, looking to the earlier evidence of PW1 and the documents on record, the plaintiff is uncertain about the existence of 1 acre 8 guntas of land i.e., the suit schedule property in Sy.Nos.28, 29 & 30. Further, the plaintiff who unequivocally admitted that, she has been insisting on the possession of the suit schedule property since 1972. Further, in her cross-examination who had admitted that, in Sy.Nos.28 & 29, the mortgagees had made a road

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measuring 14 feet long and 600-700 feet width. In view of

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the above discussion, the plaintiff has proved the ownership regarding the suit schedule property. Hence, the substantial questions of law Nos.1 and 2 is answered partly in the affirmative.

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11. REG. SUBSTANTIAL QUESTION OF LAW NO.3:

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The learned advocate for plaintiff vehemently argued

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that the trial court ought to have appointed the Court Commissioner, by allowing the application, instead of rejecting the same. In the plaint para 8 itself, the plaintiff herself relied on the sketch prepared by the Court Commissioner in O.S.361/75, and aggrieved by the order passed by the trial Court, the Writ Petition was filed before the Hon'ble High Court of Karnataka in W.P.No.4406/2007 (GM-CPC). The said Writ Petition was dismissed. Therefore, at this stage, the reversal of orders on an interim application filed before the trial court is not required. In view of the above discussion, I answer substantial question of law No.3 in the negative.

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12. REG. SUBSTANTIAL QUESTION OF LAW NO.4:

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The plaintiff has filed a suit for possession. During

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the course of cross-examination of PW.1, PW.1 admitted that since 1972, she has been insisting on the possession of the suit schedule property from the defendants. Under such circumstances, since 1972, a cause of action arose for the plaintiff to file a suit for possession within 12 years from the date of refusal to vacate the land. As per article 65 of the Limitation Act, the suit ought to have been filed within 12 years when the possession of the defendants becomes adverse to the plaintiff, and further, Section 27 of the Limitation Act, 1963, provides for the extinguishment of the right to property. On the determination of a period whereby limited in person for instituting the suit for possession of any property, the right to said property shall be extinguished. Although, the plaintiff had demanded possession in 1972, the suit was filed in 2008. Hence, the suit filed by the plaintiff for the relief of possession is barred by limitation under Article

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65 of the Limitation Act. Both the courts below were justified in passing the impugned judgments. Hence, I do not find any error in the impugned judgments. In view of the above discussion, I answer the substantial question of law No.4 in the affirmative.

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The plaintiff filed an application for the production of an additional evidence i.e., I.A.No.1/2020.

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In support of the application, an affidavit was filed stating that the suit was dismissed on the ground that it is barred by limitation. It is contended that there is no delay in filing the appeal. During the pendency of the appeal, a revenue adalath notice was issued by the Tahsildar, Srirangapatna, calling upon the mother to submit certain documents for

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the purpose of surveying the land in the nature of modification of akharbhand in the RTC regarding Sy.No.29. This document indicates that the survey/modification of the Akharbhand is still to be done, and have not been completed. It is stated that the name of their mother is mentioned in record of rights for 2017-

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20 and continues to show her name. Hence, the documents are necessary for deciding the dispute.

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Heard the learned counsel for the plaintiff on the said application.

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The revenue adalath notice enclosed with the

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application was issued on 06.11.2014. Also produced the RTC extracts pertaining to 2017-18 i.e., during the pendency of the appeal. Earlier, the parties to the suit had already produced the RTC extract regarding the suit schedule property. During the pendency of this appeal, revenue authorities have initiated the proceedings. The revenue authorities have no right to initiate proceedings when the matter is pending before this Court. The said document has no bearing on the merits of the case.

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From the perusal of the affidavit, it discloses that the plaintiff has not proved the requirements of Order XLI Rule 27 of the CPC. Furthermore, the plaintiff has filed this application solely with an intention of filling the

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