Sri Puttanarasappa Vs Sri N Ramakrishnaiah

SRI. N. RAMAKRISHNAIAH, S/O. LATE PATEL NARASEGOWDA, AGED ABOUT 51 YEARS R/O.BANAVATHI VILLAGE, SASLU HOBLI, DODDABALAPURA TALUK BANGALORE RURAL DISTRICT- 561 203.

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…RESPONDENT

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(BY SRI. K HANUMANTHARAYAPPA,

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ADVOCATE/CR/RESPONDENT)

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HC-KAR

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THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 07.08.2008, PASSED IN RA.NO.111/07 ON THE FILE OF THE PRL. DISTRICT JUDGE, BANGALORE (R) DISTRICT, BANGALORE, DISMISSING THE APPEAL FILED AGAINST THE JUDGEMENT AND DECREE DTD 21.08.2007, PASSED IN O.S.No.17/2004, ON THE FILE OF THE CIVIL JUDGE, (SR.DN), DODDABALLAPURA.

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IN RSA NO. 2183/2008 :

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BETWEEN:

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SRI PUTTANARASAPPA SINCE DEAD BY HIS LR

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SHRI. B.P. NAGARAJ S/O LATE.PUTTANARASAPPA AGED ABOUT 63 YEARS, R/O NO.378,4TH CROSS, CHIKKAMARANAHALLI, MSRIT POST, BENGALURU- 560 054.

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...APPELLANT

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(BY SRI. V.B. SIDDARAMAIAH, ADVOCATE)

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AND:

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SRI. N. RAMAKRISHNAIAH, S/O.LATE PATEL NARASEGOWDA, AGED ABOUT 51 YEARS, R/O.BANAVATHI VILLAGE, SASLU HOBLI, DODDABALAPURA TALUK, BANGALORE RURAL DISTRICT- 562 101.

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...RESPONDENT

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(BY SRI. K. HANUMANTHARAYAPPA., ADVOCATE)

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HC-KAR

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THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGEMENT & DECREE DATED 07.08.2008, PASSED IN CROSS APPEAL.NO.142/08 IN RA.NO.111/2007 ON THE FILE OF THE PRL. DISTRICT JUDGE, BANGALORE RURAL DISTRICT, BANGALORE, ALLOWING THE CROSSAPPEAL AND DISMISSING THE APPEAL WHICH IS FILED AGAINST THE JUDGEMENT AND DECREE DTD 21.08.2007 PASSED IN O.S.No.17/2004, ON THE FILE OF THE CIVIL JUDGE, (SR.DN), DODDABALLAPURA.

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

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CORAM: HON'BLE MR. JUSTICE UMESH M ADIGA

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ORAL JUDGMENT

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The present appeals are directed against the judgment and decree dated 07.08.2008, passed by the Principal District and Sessions Judge, Bangalore Rural District, Bangalore, (for short, first Appellate Court'), in R.A.No.111/2007 and Cross Appeal No.142/2008. These appeals arise from the judgment and decree dated 21.08.2007, passed by the Civil Judge (Sr.Dn.,) Doddaballapura, (for short, trial Court'), in

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O.S.No.17/2004, for dismissing the suit filed by the plaintiff for relief of declaration and permanent injunction.

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For the sake of convenience, the parties are referred to as per their ranking before the trial Court.

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The brief facts of the case are that, plaintiff is the absolute owner of the suit property. It was belonging to Patel Narasegowda and his younger brother Nagaiah. They got partitioned the properties about 55 years prior to filing of the suit and the suit property fell to the share of Nagaiah. Nagaiah died in the year 1982, leaving behind his wife, Jayamma. Jayamma has also passed away. Consequently, Patel Narasegowda, the father of the plaintiff, succeeded to the property and became its owner. His name was mutated in the revenue records, and he had even obtained loan from the bank by mortgaging the property.

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It is the further case of the plaintiff that the defendant was interfering in the peaceful possession and

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enjoyment of the property. It is the contention of the defendant that, during the life time of Smt.Jayamma, he had purchased the land in Survey No.342/1 from Smt.Jayamma, but that property was different from the suit property. Due to interference of the defendant, father of the plaintiff had filed a suit in O.S.No.237/1990, for the relief of injunction before the Court of Munsiff, Doddaballapura. The said suit was dismissed. Thereafter, an appeal was filed in R.A.No.70/1997. The said appeal was dismissed for non-prosecution. Taking advantage of the dismissal of the appeal, the defendant once again began to claim the suit land illegally and attempted to trespass into the property. With these reasons, prayed for the relief of declaration and injunction against the defendant.

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4. The contention of the defendant before the trial

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Court was that the suit property had fallen to the share of Nagaiah in the partition between Patel Narasegowda and his brother Nagaiah, and after Nagaiah’s death, his wife

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became absolute owner of suit property and she sold the property in favour of the defendant. Thus, the defendant became absolute owner and in possession of suit property. Narasegowda had no right over the suit property.

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Defendant also stated about suit and appeal filed by Narasegowda and dismissal of the same. Further it is stated that Civil Miscellaneous Case No.13/1998 (new No.5/2022) was filed for restoration of the appeal. The said petition is also dismissed and hence prayed to dismiss the suit. Further it is stated that Civil Miscellaneous Case No.13/1998 (new No.5/2022) was filed for restoration of the appeal. The said petition is also dismissed and hence, prayed to dismiss the suit.

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The defendant further contended that the suit

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was barred by law of limitation i.e., Article 58 of the Limitation Act. The suit is also barred by the principles of res judicata under Order II Rule 2 of CPC. With these reasons, he prayed to dismiss the suit.

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HC-KAR

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From the rival contentions of the parties, the

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trial Court framed the following issues :

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1. Whether plaintiff prove his ownership with possession of the suit schedule land within its measurements and boundaries by succession of his uncle's share?

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2. Whether defendant prove that boundaries of the suit schedule land are wrongly described by the plaintiff with that of Sy.No.342/1 purchased from his aunty Smt.Jayamma under Sale Deed dated 07.04.1988?

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3. Whether plaintiff's suit is hit by the principles of res judicata due to another suit O.s.No.123/93?

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4. Whether plaintiff's suit is barred by time under Article 58 of the Limitation Act?

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5. Whether plaintiff's suit valuation and court fee paid is not correct and proper?

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6. For what Decree or Order?

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The trial Court recorded the evidence of both

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side parties and after hearing the arguments, answered issue No.1 in the affirmative, issue Nos.2 to 5 in the

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negative and decreed the suit. While answering issue No.4, which is pertaining to limitation, the trial Court held that defendant had not persuaded the Court to answer the said issue against the plaintiff. Therefore, it was held against the defendant and the Court held that the suit was in time.

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The defendant preferred an appeal before the first Appellate Court in R.A.No.111/2007 and also filed Cross Appeal No.142/2008. The first Appellate Court heard the arguments of both sides and framed the following points for its determination :

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" 1) Whether the plaintiff proves title to the plaint schedule property?

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2) Whether the defendant proves that he is in possession of the plaint schedule property also after having purchased the property from Jayamma on 7.4.1988?

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3) Whether the principles of res judicata bar the present suit?

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4) Whether the suit of the plaintiff is barred under Order II Rule 2 CPC?

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5) Whether the plaintiff is entitled for possession of 1 acre of the property?

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6) Whether the delay in preferring the cross appeal can be condoned?

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7) Whether the defendant has made out a case for amendment of the written statement?

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8) What order?"

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The first Appellate Court on re-appreciating the

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materials produced before the trial Court, by its impugned judgment and decree, allowed the Cross Appeal filed by the plaintiff and dismissed the appeal filed by the defendant and confirmed the judgment and decree dated 21.08.2007, passed by the trial Court in O.S.No.17/2004. The same is challenged in the above said two appeals.

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Heard the arguments of learned counsel for both

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side.

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This appeal was admitted to consider the following substantial questions of law :

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(1) Whether the Courts below were justified in entertaining the suits in respect of the very suit property though earlier suit filed was withdrawn as not pressed and whether that would bar the subsequent suit under Order II Rule 2 of CPC which has been negated by the Courts below?

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(2) Whether the Courts below were justified in proceeding with the adjudication of the suits, though an objection as to res judicata having been taken and sought to be substantiated in the circumstances of the case?

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(3) Whether the Courts below were justified in overlooking the bar of limitation?

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Looking at the contentions of both sides, the substantial questions of law 1 and 2 raised by this Court must be answered against the appellant. The relief of injunction is a recurring cause of action, and whenever there is interference, a party may file a suit to protect his interest. Moreover, according to the plaint averments in the present suit, the plaintiff contended that since his title over the property was disputed, he had a cause of action to seek a declaration, and therefore the suit was not

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barred under Order II Rule 2 of the CPC. The said

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contention is not tenable.

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In respect to the principles of res judicata , it is undisputed that the pleadings and evidence in the previous suit, O.S. No. 237/1990, have not been placed on record except for the judgment dated 20.02.1997. Unless the pleadings are produced, the Court cannot determine whether the matters involved in both suits are substantially the same, nor can it ascertain the other requirements that must be proved under Section 11 of the CPC. Therefore, in view of the limited material available on record, it cannot be held that the suit is barred by the principles of res judicata .

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The next question is whether suit is barred under Section 58 of the Limitation Act.

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The ground of limitation was raised before the trial Court and the trial Court has framed a specific issue No.4 in this regard. The trial Court ought to have

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considered this matter on the basis of available materials, but, it had answered the said issue in the negative on the ground that defendant did not explain as to how the said suit was barred by time and on that count, answered the

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said issue in the negative and held that suit was in time.

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The learned counsel for the appellant/defendant vehemently contended that in O.S.No.237/1990, appellant herein was a defendant and the said suit was filed by Patel Narasegowda and after his death, plaintiff herein continued the said suit. He further contended that defendant filed written statement contending that he purchased the suit property from Smt.Jayamma, widow of Nagaiah and he claimed title over the property and denied the title of the plaintiff in the said suit. The trial Court in O.S.No.237/1990, considered the contentions of both the parties and upheld that contentions of the defendant by its judgment and decree dated 20.02.1997, it has attained

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finality. The title of the plaintiff was denied by the defendant in O.S. No. 237/1990. Even after the disposal of

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that suit in 1997, the plaintiff did not amend the suit to

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seek the relief of declaration of his title over the property. Instead, he filed the present suit after lapse of 11 years from the filing of the written statement. Therefore, the suit is hopelessly barred by limitation. When the materials are on record, the trial Court ought to have answered the said point against the plaintiff. The question of limitation is a question of law. Considering the facts of the present case, when a specific issue had been framed and relevant materials were placed on record, the learned Trial Judge, without properly examining them, observed that the defendant had not explained how the suit was barred under Section 58 of the Limitation Act and consequently rejected the issue. The said finding is erroneous.

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The defendant further contended that, even

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though this contention was raised in the first appeal, the first Appellate Court has not considered the said point while deciding the matter. Therefore, both the Courts below erred in not considering the period of limitation

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before entertaining the suit. With these reasons, prayed to answer the said point in favour of the appellant.

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Learned counsel for the respondent/plaintiff contended that, in a suit for injunction, mere denial of the title is not relevant. It is not an issue before the trial Court in O.S.No.237/1990. At the time of filing the suit, since the defendant had disputed the plaintiff’s title, the plaintiff instituted the present suit for declaration and injunction. The cause of action for filing the suit arose in the year 2004, and hence it is not barred by limitation as alleged in the written statement filed by the defendant. Hence, the suit is within time, and the issue deserves to be answered in favour of the respondent.

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As already noted above, pleadings of the parties

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are not placed on record and only copy of the judgment and decree passed in O.S.No.237/1990 is placed on record

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as per Ex.D-2.

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The following dates are materials dates to

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consider the period of limitation :

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The suit was filed on 13.09.1990, evidence was recorded on 16.12.1993. It appears, between the said dates, the defendant had filed written statement in the said suit. The said suit was disposed of by the judgment and decree dated 20.02.1997. Undisputedly, an appeal was filed against it and it was dismissed for non-prosecution. Therefore, the judgment and decree passed in O.S.No.237/1990 had attained finality.

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O.S.No.17/2004 was filed on 30^th January 2004,

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nearly about 11 years after starting recording of the evidence in O.S.No.237/1990 i.e., on 16.12.1993. Considering Ex.D-2, as on the date of filing O.S. No. 237/1990, the title of the plaintiff’s father, and subsequently that of the plaintiff, was disputed by the defendant. The defendant contended that he had purchased the suit property from Smt. Jayamma under a registered sale deed. Therefore, while O.S. No. 237/1990

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was pending, the plaintiff’s title was not merely denied but was specifically challenged by asserting that the defendant had purchased the very same property through a registered sale deed. Accordingly, at that point in time, the plaintiff in O.S. No. 237/1990, as well as the plaintiff in the present suit, O.S. No. 17/2004, had a cause of action to seek amendment of the suit and claim the relief of declaration. It appears that the plaintiff, being satisfied with the relief of permanent injunction, did not seek a relief of declaration at that stage. The present suit, O.S.No.17/2004, was thereafter filed on 30 January 2004, as already noted, nearly 11 years from the date of denial of his title over the property.

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Section 3 of Limitation Act reads as under :

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" 3. Bar of limitation.— (1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.

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(2) For the purposes of this Act, —

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(a) a suit is instituted,—

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(i) in an ordinary case, when the plaint is presented to the proper officer;

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(ii) in the case of a pauper, when his application for leave to sue as a pauper is made; and

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(iii) in the case of a claim against a company which is being wound up by the court, when the claimant first sends in his claim to the official liquidator;

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(b) any claim by way of a set off or a counter claim, shall be treated as a separate suit and shall be deemed to have been instituted —

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(i) in the case of a set off, on the same date as the suit in which the set off is pleaded;

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(ii) in the case of a counter claim, on the date on which the counter claim is made in court;

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(c) an application by notice of motion in a High Court is made when the application is presented to the proper officer of that court."

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Therefore, it is a question of law. Even without

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the pleadings, the Court can consider whether any suit filed before it was in time or not. In the present case, the defendant contended in the written statement that the suit

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was barred by limitation and an issue was framed accordingly. The learned counsel for the respondent argued that no such substantial question of law has been framed by this Court in this appeal. This contention is not

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acceptable. Even in the absence of such a specific contention, the Court is duty-bound to examine whether the suit has been filed within the period of limitation or not.

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Article 58 of the Limitation Act reads as under :

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" To obtain any other declaration - period of limitation Three years - when the right to suit first accrues."'

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As discussed above, in this case, the right to sue

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accrued when the defendant filed the written statement in O.S. No. 237/1990. Despite this, the plaintiff did not seek

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the relief of declaration, and after a lapse of 11 years from

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the commencement of evidence in O.S. No. 237/1990, the present suit was filed beyond the period of three years from the date on which the cause of action accrued to the

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plaintiff. Therefore, the suit is hopelessly barred by law of limitation. The Courts below failed to properly consider these facts and erroneously answered the issue in the negative solely on the ground that the defendant had not argued this point adequately.

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Although such an issue was existing before the trial Court and the First Appellate Court, both the Courts have not considered period of limitation as a point for determination. The appellant had an opportunity to argue and substantiate said contention before the first Appellate Court. Therefore, both the Courts below erred in failing to properly consider the period of limitation.

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For the aforesaid discussions, the substantial questions of law raised in this appeal are answered in favour of the appellants. Accordingly, I proceed to pass the following :

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ORDER

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i) RSA.No.2099/2008 and

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RSA.No.2183/2008 are allowed, with costs.

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ii) The impugned judgment and decree

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dated 7^th August 2008, passed by Prl.District and Sessions Judge, Bengaluru Rural District, Bengaluru, in R.A.No.111/2007 and Cross Appeal No.142/2008, are set aside.

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iii) Similarly, the judgment and decree dated 21.08.2007, passed by the Civil Judge (Sr.Dn.), Doddaballapura, in O.S.No.17/2004, is set aside. The suit in O.S.No.17/2004 is

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dismissed as barred by time.

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iv) Consequently, IA.No.1/2022 filed under Order LXI Rule 27 read with Section 151 of CPC in RSA.No.2099/2008, seeking permission to produce additional documents stands dismissed.

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