Ishwar Ganapati Kyasti and Others vs Gurulingappa Bashettappa Kyasti and Another

Heard Sri B.M. Siddappa, learned Counsel for the revision petitioner and Sri Rajashekar Seeri holding brief for Sri Mohan Shanthana Goudar,

learned Counsel for the respondent 2.

This revision arises from the judgment and order dated 23-12-1994 passed by the Principal Munsiff, Gokak, dismissing the plaintiffs'' suit as

time barred. The Trial Court decided the issue as to limitation as a preliminary issue and after having found the suit to be time barred, dismissed the

suit.

According to the plaintiffs'' case, the plaintiffs who claim to be the sons of one Ganapati Bashetfyappa Kyasti of Waderhatti and plaintiffs 3 and

4 are his brothers and all of them are cultivating land of their respective shares in the suit property. The plaintiffs claim in the suit a declaration of

title to the effect that plaintiffs are Kabzedars i.e., holders in actual possession of the suit land bearing 22, Waderhatti, Gokak Taluk. According to

the plaintiffs, they were Kabzedars and were paying the land revenue and the defendant/respondent who had been natives of Waderhatti, claimed

to be in possession of the suit land and according to the plaintiffs, defendant had been encroaching the suit land and creating trouble. So,

plaintiffs/revision petitioners filed a suit for permanent injunction against the defendant/respondent namely in Suit No. 155 of 1989. The plaintiffs

alleged that on 25-7-1993, after the dismissal of the plaintiffs'' Suit No. 155 of 1989, the defendant again attempted to take forcible possession of

the land with a view of occupying it on the strength of judgment in O.S. No. 155 of 1989 whereby the Trial Court had dismissed the plaintiffs'' Suit

No. 155 of 1989. The plaintiffs alleged the cause of action to have accrued on 25-7-1993 when the defendant caused obstructions to the

plaintiffs'' possession and use.

The defendant filed the written statement and alleged that the plaintiffs'' suit for declaration is barred by time. The defendant alleged that in suit

No. 155 of 1989 i.e., in the previous litigation between the same parties, the defendant/respondent had clearly denied the title of the plaintiffs over

the suit land. He further took the plea of res judicata that the suit was barred by resjudicata as well as by limitation from the date the plaintiffs'' title

was denied in the written statement filed in the suit.

The Trial Court on the basis of the material on record consisting of certified copy of the written statement and also of paper-book of Regular

Appeal No. 31 of 1991 in O.S. No. 155 of 1989 opined that the written statement in earlier Suit No. 155 of 1989 had been filed on 18-1-1990

for the first time when the defendant in unequivocal terms denied the plaintiff''s title over the said land. It, as such, opined that as the decree for

declaration of title which has been claimed in the present suit was sought by the plaintiff as principal relief and injunction being the ancil- lary. The

Court opined that under Article 58 the phrase used is, ""when the right to sue first occurs"". So, it opined that the right to file suit first accrued on 18-

1-1990 when written statement was filed by the defendant in O.S. No. 155 of 1989 and plaintiff''s title in the land in suit was denied. The Trial

Court, as such, opined that the Suit No. 263 of 1993 filed on 27-7-1993 was barred by limitation and dismissed the suit. Feeling aggrieved from

that order of the Trial Court dismissing the plaintiffs suit on the ground of bar of limitation, the plaintiff has come up in revision u/s 115 of the CPC

before this Court.

There is no dispute that the principal relief and the main relief in the present suit has been declaration though injunction had also been sought for.

The declaration that has been sought for is that the plaintiff is the kabzedar-holder in possession of the land.

The learned Counsel for the applicant Sri B.M. Siddappa contended that, as alleged in O.S. No. 263 of 1993, the cause of action accrued on

25-7-1993 and taken from that date, the present suit i.e., O.S. No. 263 of 1993 has been within time. The learned Counsel further contended that

the limitation is the mixed question of law and fact and it should not have been tried as a preliminary issue and the Court below acted illegally in

treating it as a preliminary issue.

These contentions of the learned Counsel for the applicant have hotly been contested by Sri Rajashekar Seeri holding brief for Sri Mohan

Shanthana Goudar, learned Counsel for the respondent.

Sri Rajashekar Seeri contended that Article 58 as per Limitation Act, 1963, uses the expression that period of three years in a suit for declaration

is to be counted ""from the date when the cause of action for the first time accrues"". He further contended when the defendant denied the title by

filing the written statement in the suit No. 155 of 1989, the cause of action no doubt did accrue on that date. Any accrual of subsequent cause of

action will not make the suit within time,

Here, the suit has been primarily a suit for declaration of title. The injunction is only an ancillary relief. Article 58 provides that for suit to obtain

any other declaration, period of limitation prescribed is three years and the time from which the period begins to run is the date when the right to

sue first accrues. No expression used in the enactment is to be taken to be superfluous. If we look to Article 113, the expression used is, ""for those

suits which are not covered by any Article, three years limitation is provided"" and it is mentioned that ""the time begins to run when the right to sue

accrues"". It does not use the expression ""first"". This distinction of the language clearly indicates the legislative intent with reference to suits covered

by Article 58. That the period of three years is to be counted from the date when the right to sue first accrues. The certified copy of the written

statement filed in O.S. No. 155 of 1989 appears to have been filed by the defendant by or before framing of issues. Therefore, there was no other

evidence to be recorded on that point. The written statement filed by the defendant were before the Court. It clearly reveals that the defendant

unequivocally denied the plaintiffs title to the land in dispute. Therefore, when his title was denied and he wanted to file the suit for declaration, the

suit had to be filed within three years from that date and accrual of any subsequent cause of action cannot save the limitation. If the earlier suit for

injunction had been dismissed holding the plaintiff not to be in possession and the plaintiff if had filed the suit for possession, the position might have

been different. But, here is a suit for declaration of title, as per relief No. 1 in the plaint. So, definitely this case is covered by Article 58 and suit

had rightly been held to be barred by limitation. The learned Counsel contended that this issue should not have been tried as a preliminary issue and

made reference to certain cases namely, Mohammed Ali Vs. Dawood Basha, , and to the case of Shyam Sunder Vs. Hudibai and Others, and

also to the decision in the case of Major S.S. Khanna Vs. Brig. F.J. Dillon, , for the proposition that where an issue involve mixed question of fact

and law, then it is not to be tried as the preliminary issue. No doubt, there cannot be any dispute so far as this proposition is concerned as bare

proposition of law. The admitted position was that Suit No. 155 of 1989 had been filed. The admitted position is that the defendant in the suit had

filed written statement. The admitted position is that the suit had been dismissed holding the plaintiff not to be in possession. The written statement

was before the Court. No other evidence had to be recorded. The evidence prior to the issue framed have been filed. So, no evidence had to be

recorded as to whether the defendant denied the plaintiffs title. The documentary evidence is already there i.e., written statement of earlier suit is

already there. The Court had to decide this question as a question of law as to whether in those circumstances when the cause of action first

accrued and the Court decided that cause of action first accrued on 18-1-1990 and so, suit was bad. Even if for a moment if it is taken that there

is irregularity on the part of the Court in deciding the Issue No. 2 as a preliminary issue, but decision on that issue does not change the course and

cannot be said to have caused material injustice to the revision petitioner. It is not in dispute that the defendant had filed written statement in the

earlier suit. It is not in dispute that the plea was taken that title of the plaintiff was denied in that suit. So, even if there is some irregularity, which

may be said to have been committed, in my opinion, it is not of such a nature that any material prejudice or injustice has been done to the plaintiff

(petitioner) by reason thereof.

In this view of the matter, in my opinion, it is not a fit case for interference. The revision petition is dismissed on merits. No order as to costs.