B.M. Eramuddaiah and Others vs Ramalakshmamma

A.S. Bopanna, J.

The appellant herein is the plaintiff in O.S. No. 241/1998. The plaintiff had instituted the suit contending that he had purchased the suit schedule item Nos. 1 and 2 properties from late Kampalaramaiah, son of Kampalaiah i.e., the father of defendants No. 1, 2 and husband of defendant No. 3. The purchase was claimed to have made for valuable consideration under a registered sale deed dated 14.09.1977 and it is contended that he has been in possession and enjoyment thereafter. A suit in O.S. No. 250/1977 was filed by the plaintiff herein against his vendor seeking for injunction to protect his possession which was decreed. The defendants herein i.e. children and wife of vendor thereafter filed a suit in O.S. No. 12/1978 seeking for declaration that the properties bearing Sy. Nos. 69/2 and 64 are ancestral and joint family properties of defendant and Kampalaramaiah. The said suit was dismissed by the judgment dated 30.08.1980, but was however reversed and decreed in R.A. No. 80/1980. The plaintiff herein had assailed the same in R.S.A. No. 731/1983 before this Court. This Court by the judgment dated 20.08.1997 reserved the liberty to the plaintiff herein to file a suit for partition and dismissed the appeal. The plaintiff has accordingly filed the instant suit seeking that the partition be effected among the defendants and late Kampalaramaiah and allot the suit schedule items No. 1 and 2 properties to late Kampalaramaiah and confirm the sale deed dated 14.09.1977 in favour of the plaintiff.

The defendants on appearance filed the written statement disputing the claim made by the plaintiff. The claim of the plaintiff that the suit schedule items No. 1 and 2 properties were purchased under the sale deed dated 14.09.1977 is denied. The defendants have denied knowledge of the suit in O.S. No. 250/1977 filed by the plaintiff, but they admit about the suit in O.S. No. 12/1978 filed by them and the same culminating in R.S.A. No. 731/1983 which was disposed with the observation permitting the filing of partition suit. The claim that Sy. No. 62 was inadvertently mentioned instead of Sy. No. 69/1 in the sale deed is denied. It is further contended that the suit is barred by time and the plaintiff is not entitled to any share as the defendant has perfected the title by adverse possession. On the death of the first and third defendants, the written statement has been amended and the second defendant has claimed exclusive right in respect of the suit schedule properties. The defendant therefore sought for dismissal of the suit.

The trial Court on taking note of the rival contentions has framed as many as nine issues for consideration, which read as hereunder:

In order to discharge the burden cast on the parties, the plaintiff examined himself as P.W.-1, examined two witnesses as P.Ws.-2 and 3 and relied upon the documents marked as Exhs.-P1 to P10. The defendant examined her P.A. Holder as D.W.-1 and relied upon documents at Exhs.-D1 to D16.

The trial Court has taken note of the entire evidence on record, analysed the same and while answering issues No. 2 to 4, more particularly with regard to issue No. 4 has taken note of the extent and boundaries mentioned to Sy. No. 62 in the sale deed which has not been disputed and in that light has taken note of the extent and boundaries mentioned with reference to Sy. No. 69/2 in the plaint schedule and has accepted the case of the plaintiff relating to the purchase. In that view, the case seeking for partition to be made and the suit schedule properties to be allotted to the share of late Kampalaramaiah and in turn to the plaintiff has been accepted. The suit is accordingly decreed by the judgment dated 09.06.2005.

The defendant claiming to be aggrieved by the same preferred an appeal in R.A. No. 186/2008 (Old No. 134/2005). The lower appellate Court, though has accepted the execution of the sale deed dated 14.09.1977 has observed that such sale is relating to property in Sy. No. 62 and the error committed as claimed to contend that what was sold was property in Sy. No. 69/1 is not accepted. It is further observed that the plaintiff would have been entitled to a share in property bearing Sy. No. 62 only if the suit was filed within the period of limitation. The lower appellate Court has held that in view of the finding in R.A. No. 80/1980 the plaintiff herein was not in possession and as such, keeping in view the provision contained in Article 113 of Limitation Act, the suit filed was beyond time and is barred by law. The appeal was accordingly allowed, the judgment and decree passed by the trial Court was set aside and the suit was dismissed.

The plaintiff therefore claiming to be aggrieved is before this Court in this second appeal filed under Section 100 of CPC. This Court while admitting the appeal on 09.01.2012 has framed the substantial questions of law which are as follows;

"(i) Whether the lower Appellate Court was justified in reversing the finding of the trial Court to dismiss the suit as barred by limitation?

(ii) Whether in the light of liberty reserved to the appellant in the order dated 20.8.1997 in RSA 731/83 to file a suit for partition claiming share of his vendor in the suit properties under sale deed dated 14.9.1977 Exs. P5 and P6, the lower Appellate Court was justified in dismissing the suit as barred by limitation?"

In the above backdrop, I have heard Sri S.K. Venkata Reddy, learned counsel for the plaintiff, Ms. Deepashree, learned counsel for the defendant and perused the appeal papers, including the records received from the Court below.

The question therefore to be considered at the outset would be, as to whether the lower appellate was justified in dismissing the suit as being barred by limitation, that too in the circumstance where this Court in R.S.A. No. 731/1983 had granted the liberty to the plaintiff herein to file a suit seeking for partition of the share he had purchased.

The learned counsel for the plaintiff would therefore refer to the entire proceedings from the date of purchase and the earlier two suits which were filed relating to the dispute pertaining to the same property and in that light would refer to the judgment in R.S.A. No. 731/1983 dated 20.08.1997, wherein while disposing of the appeal, liberty to file the suit for partition and possession was granted. It is pointed out that subsequent to the same, the suit has been filed on 03.04.1998 which is well within time and there was no scope for the Courts below to advert to that aspect and for the Lower Appellate Court to dismiss the suit on the ground of limitation. It is contended that there is no limitation provided for seeking partition and possession of the property belonging to the joint family unless ouster is pleaded and proved.

The learned counsel for the defendant on the other hand would seek to sustain the judgment of the lower appellate Court. It is contended that the partition and possession being sought by the plaintiff was based on the alleged purchase dated 14.09.1977. The plaintiff, not being a family member, while seeking for possession should have filed the suit in any event within twelve years from the date of sale deed as provided under Articles 64 or 65 of the Limitation Act. The lower appellate Court was justified in noticing that the plaintiff should have filed the suit within three years as provided under Article 113 of Limitation Act. The disposal of R.S.A. No. 731/1983 cannot constitute the cause of action is her contention.

In the above background, a consideration of this aspect will at the outset indicate that in respect of joint family property, there is no limitation provided to seek for partition and separate possession unless ouster is pleaded and proved. In the instant case, as per the contention of the defendant and the findings rendered by the Courts below, the property is the ancestral property which belonged to the family of the vendor of the plaintiff and the defendants. However, the issue relating to limitation has been raised in the background that the partition and separate possession is sought, not by a member of the joint family, but the plaintiff who is a purchaser under the sale deed dated 14.09.1977, a stranger to the family. Though plaintiff claims to have been put in possession of the property purchased under the sale deed dated 14.09.1977 and a suit filed by the plaintiff herein against his vendor in O.S. No. 250/1977 was decreed granting injunction, the possession as claimed by the plaintiff herein was negatived in R.A. No. 80/1980 filed by the defendants herein. The Lower Appellate Court in the instant case has therefore taken into consideration such finding and has arrived at the conclusion that the plaintiff not being in possession, the suit should have been filed within the period as provided under Article 113 or at least within the time prescribed under Article 64 and 65 of the Limitation Act computed from the date of sale deed.

The conclusion reached by the lower appellate Court would not have required further discussion if it was simply a case where the purchaser had approached the Court for the first time seeking for separation of the extent of the property purchased under the sale deed from the other extent of the same item of property belonging to the joint family. But, in the instant case, the other facets needs to be noticed in which background the substantial question of law has arisen for consideration.

While considering these aspects, what cannot be lost sight is that the very object of prescribing limitation is to ensure that Courts would not come to the aid of person who sleeps over his rights and that stale matters are not rejuvenated so as to unsettle the settled issues. In the instant case, the plaintiff herein claiming that he has possession of the property was before this Court in O.S. No. 250/1977 against the vendor himself seeking to protect his possession. Though ex parte, the suit has been decreed. However, subsequently the defendants herein filed the suit in O.S. No. 12/1978 against the plaintiff herein seeking injunction, which was dismissed but on the appeal filed in R.A. No. 80/1980 the suit was decreed which resulted in R.S.A. No. 731/1983. Though this Court did not interfere with the decree passed by the lower appellate Court as it was a finding of fact, this Court noticed the right claimed by the plaintiff herein who was the appellant therein. Paragraph Nos. 7 and 8 of the judgment reads as hereunder,

"7. Therefore, the findings of the Courts below are confirmed. The only thing that is to be done is to safeguard the interest of the first defendant. The second defendant is the wife of the first defendant and she is formal party. Defendant No. 1 has purchased the property on 14.9.1977 under duly registered sale deed from the third defendant. Once the Court below found that the properties are the joint family property of plaintiffs and defendant No. 3, whatever share the third defendant would have owned over the property would be deemed to have conveyed to the first defendant under the sale deed. Therefore, it is open to the first defendant to file the suit for partition claiming the share of the third defendant in the properties and seek for possession as well.

Reserving that liberty, the decree of the Courts below are confirmed and second appeal is dismissed."

(emphasis supplied)

A perusal of the above extracted portion of the judgment in the earlier appeal inter se between the same parties will disclose that it is not an innocuous observation made permitting the liberty of availing any other remedy open to him in accordance with law. On the other hand, it would disclose that though the relief sought by the defendants herein that the suit property is the joint family property was accepted by confirming the judgment of the lower appellate Court therein, by the above extracted portion in the judgment, the purchase made by the plaintiff herein has been taken note of and since it was held that it was the joint family property by the said judgment, it was decided therein that whatever share the vendor (the third defendant therein) of the plaintiff herein would have owned would be deemed to have conveyed to the plaintiff herein. It is on determination of the right, the liberty was given to file the suit for partition and seek possession also. The portion of the conclusion reached determining the plaintiffs right and the liberty granted has not been assailed by the defendants herein. In that light, even if the initial cause of action for seeking a share and possession of the property was based on the purchase made under the sale deed dated 14.09.1977, since the dates of the earlier litigation between the parties and the ultimate judgment dated 20.08.1997 in R.S.A. No. 731/1983 are relevant for constituting the subsequent dates of cause of action, though that has not been specifically mentioned, it would be sufficient if the suit is filed within the time computed from 20.08.1997. Even if Article 113 of the Limitation Act is taken into consideration, the suit filed within three years therefrom would be within time. As noticed, in the instant case, the suit in O.S. No. 241/1998 was filed on 03.04.1998 and as such well within time.

That apart the manner in which the suit is framed and the relief that is sought is also to be kept in view while considering this aspect. As noticed earlier, the plaintiff herein has not filed the suit referring only to the items of property sold under the sale deed dated 14.09.1977 and seeking to separate his share and put him in possession thereof. On the other hand, the suit schedule would indicate that all the properties which belonged to the joint family i.e., even the properties which was not part of the sale deed has been included and what has been prayed in the suit is to partition the suit schedule properties among the defendants and late Kampalaramaiah, son of Kampalaiah, and allot the suit schedule items No. 1 and 2, to late Kampalaramaiah, son of Kampalaiah and confirm the sale deed dated 14.09.1977 in favour of the plaintiff. Therefore, in a circumstance where the plaintiff has sought for partition amongst the family members so as to take the portion purchased by him by way of equitable partition and allotment, and that too in a circumstance where this Court had given that liberty in the manner as discussed supra, the suit filed could not have been dismissed on the ground of limitation.

In the above backdrop, when the suit is within the period of limitation, the issue would be with regard to the relief the plaintiff is entitled. Though there is dispute with regard to one of the items sold and the plaintiff has claimed that what is purchased is Sy. No. 69/1, the sale deed indicates it as Sy. No. 62. In that regard, a perusal of the sale deed at Ex. P-6 will disclose that what is indicated therein is an extent measuring 1 acre 19 guntas, as per the boundaries indicated at Beeranakallu village. The other item is an extent measuring 09 guntas in Sy. No. 64 of the same village with boundaries indicated. From the decision in the earlier R.S.A as noticed above and from the judgments of the Courts below passed herein, it is clear that the fact of the sale deed having been executed by late Kampalaramaiah in favour of the plaintiff herein, there can be no dispute. Similarly, the property bearing Sy. No. 64 which is the suit item No. 2 property being one of the properties included therein also there can be no cavil. From the judgment of the trial Court based on the evidence, the description of the property in the sale deed and in item No. 1 property in the suit schedule, it would relate to the property bearing Sy. No. 69/1 which belongs to the family of Kampalaramaiah is evident. Though the trial Court had observed that it cannot be property bearing No. 62 as that property was not owned by the family of the defendants, the lower appellate Court has observed that the family of the defendants owned property in Sy. No. 62 also as shown in item No. 3 of the plaint schedule. Further, the documents at Exhs. P1, P4 and documents at Exhs. D6, 7, 8, 9, 10 indicate that both the property bearing Sy. Nos. 62 and 69 with its respective sub-numbers belong to the family of the defendant.

In that light, the lower appellate Court apart from observing in paragraph 17 of the judgment that the plaintiff has not sought in the alternative to give property purchased by him has held in paragraph 24 that the relief is denied since the suit is not within limitation. However, having held that the suit is within time, the plaintiff in any event would be entitled to the property in Sy. No. 64 to the extent of share allotted to late Kampalaramaiah by the trial Court. In so far as Sy. No. 69/1 as claimed in the suit, the conclusion of the trial Court that what is purchased is the property bearing Sy. No. 69/1 is justified even if the fact that property bearing Sy. No. 62/P1 also belongs to the family of the defendants is kept in view since that property measures a larger extent, while the description and extent as indicated in the sale deed is similar to the extent indicated in suit schedule item No. 1 i.e., Sy. No. 69/1. Therefore, the plaintiff would be entitled to the extent that would be allotted to the share of late Kampalaramaiah in the property bearing Sy. No. 69/1 as well.

For the reasons indicated above, the substantial questions of law are answered in favour of the plaintiff holding that the lower appellate Court was not justified in dismissing the suit as barred by limitation.

In the result, the following:

ORDER

"(i) The judgment dated 04.10.2010 in R.A. No. 186/2008 (Old No. 134/2005) is set aside.

(ii) The judgment dated 09.06.2005 passed in O.S. No. 241/1998 is restored and modified to the effect that the late Kampalaramaiah, son of late Kampalaiah and the defendant are entitled to half share each in the suit schedule properties.

(iii) The preliminary decree be drawn to that effect.

(iv) The plaintiff is permitted to seek equitable allotment of the property purchased by him i.e. in Sy. Nos. 64 and 69/1 to the share of late Kampalaramaiah and be put in possession of the same while drawing up the final decree.

(v) The appeal is allowed in the above terms.

(vi) In the facts and circumstances the parties shall bear their own costs."