A.L. Yellappa vs Hutchamma and Others

B.S. Patil, J.—This second appeal is filed challenging the rejection of plaint filed by the appellant seeking relief of declaration of title, possession and permanent injunction, on an application filed in that regard by the defendants under Order VII Rule 11(d) read with Section 151 CPC.

As the Trial Court rejected the plaint not only by adverting to the pleadings in the plaint but also on the basis of defense taken in the written statement by referring to the documents and evidence on record and as the Appellate Court has confirmed the said order passed by the Trial Court, this appeal has been admitted framing the following substantial question of law.

"Whether the courts below were justified in rejecting the plaint after recording the evidence and by looking into the defence and documents relied upon by the defendants?" 3. I have heard the learned Counsel for the parties on the question of law framed.

Plaintiff has filed the suit seeking relief of declaration of his title to the suit lands and for a direction to deliver possession of the same to the plaintiff, along with consequential relief of perpetual injunction to restrain the defendants from alienating or encumbering the suit land, and changing the nature and character of the suit lands, etc.

It is the case of the plaintiff that the suit lands were owned by one N.S. Bhaskar Rao who was none other than the husband of the 1st defendant and father of defendants 2 to 4. The said N.S. Bhaskar Rao executed registered sale deed in respect of 5 acres of land comprised in Sy. Nos. 77, 79 and 80 of Ananthapura village, Yelahanka Hobli, Bangalore North Taluk, in favour of the father of the plaintiff one Kullappa on 11.11.1964. Father of the plaintiff was put in possession of the property. He died in the year 1972, whereupon the plaintiff succeeded to the properties. Plaintiff continued to cultivate the suit lands even after the death of his father. Thus, plaintiff had become the absolute owner of the suit lands after the death of his father.

As plaintiff''s father had good relationship with Bhaskar Rao, he did not take the original sale deed from Bhaskar Rao nor any mutation entries were got effected in the revenue records in respect of the suit lands in favour of the father of the plaintiff. After the death of Bhaskar Rao, defendants 1 to 4 partitioned the suit properties among themselves ignoring the sale deed in favour of plaintiff''s father. It is further alleged that 3rd defendant went to the extent of obtaining revenue entries in respect of the suit land in her favour based on the partition and went on paying the assessed on the lands. In paragraph 5 of the plaint, plaintiff has specifically and categorically stated that defendants 1 to 4 dispossessed the plaintiff from the suit lands in the month of June 1991 and that the plaintiff made several attempts to enter upon the suit lands, but in vain. It is further stated in the said paragraph that defendants with the help of other persons were making continued efforts right from June 1991 till the date of filing of the suit to prevent the plaintiff from entering on the suit lands. In paragraph 7 of the plaint, plaintiff has stated that he was seeking relief of declaration of his title over the land in view of the illegal partition between defendants 1 to 4 which was not binding on the plaintiff and in view of the dispossession of the plaintiff by the defendants from the suit properties in the month of June 1991.

It is thus apparent from the bare reading of the plaint that father of the plaintiff though purchased the property did not even secure the original sale deed in his favour. He did not get the mutation entered in his name in the revenue records based on the sale deed. Though the registered sale deed was executed in the year 1964 (11.11.1964) and he died during the year 1972, he had not made any efforts to see that the sale deed was acted upon and to assert his rights based on the sale deed. Even after the death of the father of the plaintiff in the year 1972, plaintiffs did not make any efforts to assert their rights over the lands.

Defendants got the suit properties partitioned. Plaintiff has not furnished the date on which the said partition took place wherein the suit properties were got divided by the defendants. However, it is clearly stated that suit lands fell to the share of 3rd defendant and she got her name entered in the revenue records and started paying tax. Above all, it has been categorically stated in paragraphs 5 and 7 of the plaint that plaintiff was prevented from entering upon his own land right from June 1991 and that in view of plaintiffs dispossession by the defendants from the suit lands in the month of June 1991, a cloud had been created on the right of the plaintiff and therefore, the plaintiff had sought for relief of declaration of his title to the suit lands. This statement in the plaint makes it very clear that cause of action for the relief of declaration of title as per plaint averments had arisen in the month of June 1991. If that is so, in view of Article 58 of the Limitation Act, for the purpose of obtaining relief of declaration of this nature, period of limitation is three years from the date right to sue first accrues. As per the plaint averments, right to sue has accrued to the plaintiffs on the date on which partition took place, on the date on which 3rd defendant got her name entered in the revenue records based on the partition, which demonstrated that the rights of the plaintiff over the lands were denied, at any rate in the month of June 1991 when admittedly plaintiff was dispossessed from the lands and was continuously prevented thereafter from entering into the lands by the defendants. Therefore, even if it is taken that the right to sue first occurred to the plaintiff, on his own showing, in the month of June 1991, the suit for declaration of his title ought to have been filed within three weeks from that date viz., before the end of June 1994. But, the suit has been filed in the year 2000.

The Trial Court has dismissed the suit as barred by time apart from dismissing it on the ground that the plaintiff has suppressed certain material facts and that the plaint averments were vague, etc. Even though it can be said that for the purpose of rejecting the plaint under Order VII Rule 11(d), what is required to be looked into is the statement in the plaint and not the defense or the evidence on record, but the fact remains that in the present case even as per the plaint averments, the plaint was barred by law of limitation.

Although it is contended by the learned Counsel for the appellant that bar of limitation is a mixed question of law and fact and therefore courts ought to have decided the matter on merits instead of rejecting the plaint as barred by time, I do not find any substance in this contention because the statement in the plaint is clear and categorical that the cause of action to file the suit for declaration and other relief had arisen during the month of June 1991 because that is the date on which admittedly plaintiff was dispossessed from the suit properties. In fact, the cause of action as can be seen from the entire reading of the plaint had arisen to the plaintiff on the date when the partition was got effected by the defendants partitioning the suit properties among themselves and getting mutation effected and securing entries in the revenue records. Though these dates are not furnished by the plaintiff in the plaint, it is sufficient to know that admittedly the cloud on the right of the plaintiff was caused as back as in the month of June 1991 when he was dispossessed from the lands by the very defendants. Therefore, as rightly held by the courts below, the suit was barred by limitation and the plaint was liable to be rejected. Hence, the question of law raised is answered accordingly, against the appellant.

The appeal, therefore, fails and the same is dismissed. In the circumstances of the case, parties are directed to bear their respective costs.