Allowed

Rasakatla Sagar v. Kusuma Rajamani

Telangana HC4 Apr 2023CRP/627/2023

Case brief

AI extract

What is this about?

High Court allowed civil revision petition setting aside trial court order. Held that in suit for cancellation of registered sale deed, principal relief is setting aside deed; possession is ancillary. Limitation issue must be framed regardless of initial characterization.

What did the court decide?

Order under revision dated 01.02.2023 set aside; additional issue on limitation framed; trial to proceed.

Rasakatla Sagar Vs Kusuma Rajamani — Civil Procedure and Limitation | Telangana HC (2023)

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[³¹⁶⁷ ]

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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TUESDAY ,THE FOURTH DAY OF APRIL TWO THOUSAND AND TWENTY THREE

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PRESENT

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THE HONOURABLE SRI JUSTICE A.ABHISHEK REDDY

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CIVIL REVISION PETITION NO: 627 OF 2023

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Petition under Article 227 of lhe Constitution of lndia aggrieved by the order dated 01-02-2023 in lA No.1002 of 2022 in OS.No.138 of 2022 (Old OS No.647 ol 2014) on the file of the Court of the Principal Senior Civil Judge at Hanamkond a.

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Between:

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Rasakatla Sagar, S/o. Saraiah, Aged 50 years, Occ. Employee in SCCL,RI/o. Bupalapally Municipality, L4andal and District.

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Kale Saraiah, S/o. Mallaiah, Age 72 years, Occ. Business, H.No.12-8-287, K.M. Complex, Hunter Road, Warangal.

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... PETITIONERS/PETITIONERS

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AND

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Kusuma Rajamani, W/o. Uppalaiah, RJo. Kashibughga, Warangal, Rep.by GPA Holder Kore Raj Kumar.

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Kore Raj Kumar, S/o. Komuraiah, R:/o. H.No.12-8-236, Hunter Road, Hanamkonda, Warangal

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...RESPONDENTS/RESPONDENTS

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lA NO: 1 OF 2023

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Petition under Section 151 CPC^{prayingthat in the circumstances stated} in the affidavit filed therewith the^{Highcourt may be pleasedto stay all further} proceeding in oS.No.138 of 2O22^(Old os^{No.647 of 2014) on the file of the} iton'ble^piincipal Senior^{Civil Judge,at Hanamkonda, pending disposal of the} civil revision^petition in the^{interest of justice and pass such other order or orders} as may deem fit and^{proper in the circumstancesof the case'}

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Counsel for the Petitioners:^{SRI T. DAMODAR}

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Counsel foithe Respondents:^{SRI S. GANESH RAO}

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The Court made^{the following: ORDER}

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{

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'illl'- IlO,r''BLl'. SRI JUSl'ICtl A. ABHISHEK REDDY CIvlt.llE/ISION Pli'tII'ION No.627 of 2023

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ORI)lrIt:

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Qucstioning^{thc ordcr dated 01 .02.2023 passed by the} ul learnecl I)rincipal Senior Civil Judge, Hanamkonda, l.A.No.l002 ol'2021 in O,S.No.138 of 2022 (old O.S.No.647 of 20 l4), thc prcsent Civil Revision Petition has been filed.

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l-carncd counscl fbr the petitioners/defendants has slated that the trial Court u,ithout properly appreciating the facts ol' the cusc untl rr ithout lbllou'ing the well settled principles o1' larv. lras crroneously passed the order under revision dated 01.01.102:l clismissing I.A.No.1002 of 2021 in O.S.No.l38 ot' 2022 (old O.S.No.(r47 of 2014) filed by the petitioners seeking to l}amc an additional issue with regard to the limitation i.e., rvhether the suit is lllcd within the period of limitation. The learneci counsel has stated that though it was specifically a'crred in the rr,ritten statcment f,rled by the petitioners that the sr-rit itsell'is barrecl by limitation, the trial Court did not 1l.anre an issue as to r.vhether the suit is filed within the limitation. lherclirre. thc petitioner.s \/ere co,strained to file I.A.No. 1002

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AAR, J CRPNo.627of2023

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of 2022 for frarning of an additional issue, but, the same was dismissed in a pedantic and mechanical manner, vide order under rcvision dated 0l .02.2023. Fufther, the learned counscl has statcd that thc trial Court ought not to have given a finding that the suit is within the period of limitation, in the order under revision dated 01 .02.2023 passed by the trial Court in thc I.A. tiled sccking to fiame an additional issue, more so, without^([rc evidcncc being adduced by both the partics, therefbrc, prayed this Court to set aside the order under revision datcd 0l .02.2023 in I.A.No.1002 of 2022 and allow the present Civil Revision Petition.

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Per contra. learned counsel for the respondents/plaintiffs Iras statod that O.S.No.l38 of 2022 (old O.S.No.647 of 2014) was hled tbr recovery of possession and declaration and that the time limit for tiling the same is 12 years but not 3 years, as contcnded by thc learned counsel for^{the petitioners. Thatthe} question of the suit bcing hit by^{the provisions of the} Linritation Act clocs not^{arise and therefore the issuc with} legard to the^{suit bcing barred by limitation was not liarned'} Furthcr, learned courlscl^{has stated that th.e trial Court has only}

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i{.\R, J C.R.P No 627 of 2023

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givcn a clarilication in the order passed as to tvhy the ac'klitional issue sought for by 1he petitioners \,as llot tl'amcd ancl thc sarne cannot be said to be the finding^given by the trial ('ourt. Therofore,, learned counsel has prayed to disrniss thc prescnt Civil Revision Pe tition.

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A pcrusal of the documents, more particularly. a copy of tlre plaint filed in O.S.No.138 of 2022 shows that in the lreacling porlion, it is stated that thc suit is fltcd firr cancellation ol'registered sale deed and restoration ol'posscssien. but, in the prayer portion ofthe plaint, it is prayed as undcr:

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"A decree declaring the Regd Sale Deed No.7997/2005 daled 29.8.2005 executed by Plaintiffs in favour of l)ef'entiant No. I Registered with Joint Sub Registrar Warangal-l be dcclared as not enforceable and it is null and void and declaretl as cancelled and Copy of the decree be forwarded to Joint Sub Registrar Warangal-I for necessary entries as declared null and void and not enforceable against the Regd Salc decd No.7997l2005 Registered in his Office and Def'enclanr No.l be directed to restore the possession of suit propcrty to rlte plaintiffs."

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A reading of the above prayer would nrake it abundantly clcar tlrat the rnain prayer sought by the responile*ts/plaintillis is lbr declaring the registered sale decd as not cnti'rrccable. null

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arrd void and cancelled and the prayer lbr recovcrv ol. the / ,/

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4 r\AR,.i C R.P No 627 o, 2023

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possesslorl ls an ancillary reliel' to the nrain reliel- ol canccllation of the registered sale deed, therctbrc, the rcasoning given by the trial Court that the suit is one tbr recovery of possession and the period of Iiuritation prescribed is 12 ycars, is not legally tenable. The question as to rvhelher the suit is barred by limitation or not u,ill depcnd on thc evidence led by the parties and on the basis ol-the lacls in cach case. The said issue can only be dealt rvith at the tinic of llnal disposal. Moreover, nlere Il-alning of thc issuc docs rtot causc any prejudice to any of the pafties, but, in cilse ar) issuc is fi'amed, the parlies will have a fair idca as to u'hat evidcncc is to be led by thern in the suit.

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It is pertinent to note that in llilat l)as and others r'. Babuji Dasl, the Hon'ble Supreme Court has held as undcr:

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"....The main relief, claimed by the plaiutifl in the suit. is a relief for cancelling or setting^{aside thc salcdecd(llxhihit-} 3). The other reliefs, sought for by^{hrm.retcrrcd to abolc.} mercly flow from the tnain relicf^{atttl arc attcillaryaucl} consequential to thc sarne.^{-l he lorcrirppcllatcCtrurt'} under misapprchcnsion^{of thc lilv of lirltitirtion'llas takerr it} contrary view on^{the grountl thd otlc ol'tllc reliet's clairrrcd} was also for confimration of^{pttsscssittuand in tltc} altemative recovery of^{posscssionatttlas such 12 years}

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I AII{ 198 I Pat I l9

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&AR, J C. R.P No 627 ol 2023

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limitation shall apply.^'Ihe instant suit is not a suit for possession ol immovablc properties. to !vhich the limitation of twelve years is applicable.^'l'he imrnovable property could not have bcen recovered until the^(ler'd of sale had been set aside and il rvas rccessar] to bring a suit to set aside the deed."

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Having regard to the rvell scttlcd position of law, the order under revision dated 0l .02.2023 in I.A.No.l002 of 2022 in O.S.No.l38 of 2022 (old O.S.No.647 ol 2014\ is hereby set aside and the trial Courl is clireclecl lo ll'aurc an additional issue "whether thc suit liled by the plaintilfs is within the period of limitation or nol". and procccd rvith the trial of the case.

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Accordingly, this Civil Revision Pctition is allowed.

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Miscellaneous applications, il'any pending, shall stand

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closed. There shal I be no orcler as to cosls.

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SD/-P.PADMANABHA DY ASSISTANT REG

,TRUE COPY'

SECTION FICER

To,

The Principal Senior Civil^{Judge, Hanamkonda' Warangal,T.S.}

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One CC to Sri T. Damodar,^Advocate IOPUC]

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Qne CC to Sri S. Ganesh Rao,^Advocate [OPUC] 4. Two CD Copies gbr <sup>.k-

HIGH COURT

DATED: 0410412023

ORDER

CRP.No.627 of 2023

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ALLOWING THE CIVIL REVISION PETITION )^-s"r/ ,/ r.i^{-12</sup> € '..b'}

Rasakatla Sagar v. Kusuma Rajamani

Case brief

What is this about?

What did the court decide?

Rasakatla Sagar v. Kusuma Rajamani

Case brief

What is this about?

What did the court decide?

What the court decided

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