K.B. Shivarudrappa Gowda vs K. Veerappa Gowda and Secretary, Gram Panchayat

S.N. Satyanarayana, J.—First defendant in O.S. No. 129/1999 on the file of Civil Judge (Jr. Dn) & JMFC, Sorab, has come up in this second appeal impugning the divergent finding rendered by the lower appellate court in R.A. No. 47/2008 by judgment and decree dated 18.1 2012. In this proceedings, the parties are referred to by their rank in the original suit, for the sake of brevity. The relationship between the parties is as under:

Plaintiff is paternal uncle of first defendant. The fact that first defendant''s father-Bhadrappa Gowda and plaintiff Veerappa Gowda are brothers and sons of one Nagappa Gowda is not in dispute. It is also not in dispute that they were living in joint family up to 1955 when partition is said to have taken place between them. It is stated that though partition had taken place in 1955, they continued to live together thereafter for longtime. The dispute between the parties is with reference to suit schedule vacant site, which is said to have purchased by the father of first defendant and same having been sold in favour of plaintiff under a registered sale deed dated 9.11.1970, which is produced and marked as Ex. P. 1. It is stated that earlier there was one more round of litigation between the parties, which was initiated by the very same plaintiff in O.S. 129/1999. The original suit, which was filed earlier in O.S. No. 191/1.989, was for the relief of permanent injunction against the very same first defendant, who is said to have interfered with the possession and enjoyment of plaintiff over suit schedule vacant site.

In the said suit, the first defendant, who is also defendant in said suit, also entered appearance and filed statement, wherein first defendant had taken a stand that though his father had executed sale deed in favour of plaintiff, the same is a nominal sale deed and it is not acted upon for the reason that no consideration was reserved and paid under the said document Ex. P1 and possession was also not delivered to plaintiff. As such, first defendant continued to be in possession of suit property after the death of his father, hence plaintiff in the earlier suit in O.S. No. 191/1989 is not entitled to the relief of permanent injunction against him. The said suit is dismissed and thereafter, plaintiff in O.S. No. 191/1989 filed regular appeal in R.A. No. 1/1996, which came to be disposed of on 1.4.1997. Thereafter, the present suit for declaration is filed by the plaintiff in O.S. No. 129/1999 on the file of Civil Judge (Jr. Dn) & JMFC, Sorab.

In the present suit, a specific defence is taken by first defendant stating that present suit of plaintiff, for the relief of declaration and possession, is not maintainable on the ground of limitation for the reason that while filing the written statement in O.S. No. 191/1989 he had taken a specific plea that he is in possession and enjoyment of suit property, therefore, plaintiff is not entitled to the relief of permanent injunction. In that view of matter, plaintiff ought to have filed suit for declaration and possession within three years from that day. Having failed to do so within three years, the suit which is filed belatedly is not maintainable and the same is required to be dismissed on the ground of limitation itself.

In the original suit, in addition to the issue regarding maintainability, which was at issue No. 5, other issues were also framed regarding title of plaintiff to suit schedule property pursuant to sale deed dated 9.11.1970, regarding possession, regarding alleged interference by first defendant, regarding court fee payable on the suit, regarding jurisdiction of the Court to try the suit and the other related issues. In the said proceedings evidence was recorded on behalf of both the parties and documents which were produced by both the parties were marked. After hearing the parties and on appreciating the oral and documentary evidence available on record, the trial Court, after answering issue No. 5 against plaintiff and the other issues in favour of plaintiff, dismissed the suit. Plaintiff, being aggrieved by the judgment and decree dated 19.3.2008 in dismissing his suit for declaration and possession, filed regular appeal in R.A. No. 47/2008 on the file of Civil Judge (Sr. Dn) & JMFC, Sorab, wherein the lower appellate Court on appreciation of the pleadings, oral and documentary evidence available record on record framed four points for consideration. Thereafter, by answering first point with reference to title and possession in favour of plaintiff, second point with reference to limitation against defendant and in favour of plaintiff and the other points with reference to plaintiffs right to seek decree of declaration and possession and with reference to setting aside the judgment and decree passed by the trial court in favour of plaintiff allowed the appeal by decreeing the suit of plaintiff. Being aggrieved by the said judgment and decree of the lower appellate court, the first defendant has come up in this second appeal.

Heard the Counsel for appellant. Perused the judgment of both the Courts below. On going through the same, it is clearly seen that the subject matter of suit is a vacant site which is said to have purchased by the father of first defendant in his name. The records would disclose that in addition to the suit schedule vacant site, first defendant''s father had also acquired the other properties, which he has conveyed in favour of his other two brothers, who are not parties to the proceedings and who are also the brothers of plaintiff. The sale deed in favour of plaintiff and others is executed on the very same day without receiving any considering from any of the brothers in that behalf. The evidence available on record would disclose that though partition has taken place between the parties i.e., plaintiff, the father of first defendant and their other brothers in the year 1955, they continued to remain in joint family and continued to enjoy all the properties as that of joint family properties. It is stated that out of the income that was derived subsequent to 1955 and prior to 1970, certain properties were acquired by the father of first defendant, who is elder brother and he in turn has given some of those properties in favour of his brothers under different sale deeds, one of which is with reference to suit schedule vacant site, which is given in favour of plaintiff. When that being the case and suit schedule property being a vacant site, merely because katha of the same is not transferred in favour of plaintiff, first defendant appears to have tried to set up an adverse claim over the same contending that he is in possession of the same as legal heir of his father, deceased Badrappa Gowda and the sale deed which is executed by his father in favour of plaintiff being nominal sale deed, it is not binding on him.

In the original suit, though first defendant has taken a plea that he is in possession and enjoyment of suit schedule property subsequent to death of his father, considering the fact that suit schedule property being a vacant site, it is not properly explained by him either in the proceedings before the Courts below or in the present appeal that, how he is in possession and enjoyment of suit schedule property. On going through the impugned judgment and decree of both the Courts below, it is clearly seen that trial court has erroneously considered said defence and dismissed the earlier suit of plaintiff for permanent injunction, which has necessitated the plaintiff in filing the subsequent suit seeking declaration immediately within three years from the date of regular appeal filed by him in R.A. 1/1996, which came to be dismissed on 1.4.1997. In that view of matter, it is clearly seen that there is error on the part of trial court in accepting the defence of first defendant by answering issue No. 5 in his favour and consequently dismissing the suit of plaintiff, which is rightly reconsidered by the lower appellate court with reference to relevant provision of law of Limitation Act in decreeing the suit, in favour of plaintiff, by setting aside the judgment and decree passed in O.S. No. 129/1999. In that view of matter, this Court find that as against the judgment and decree rendered by lower appellate court in R.A. No. 47/2008 the appellant herein, first defendant has not made out any grounds for admission of this second appeal, inasmuch as, no substantial question of law arises for consideration as against the judgment and decree passed in R.A. 47/2008. Accordingly, second appeal filed by first defendant is dismissed, consequently judgment and decree dated 18.1.2012 passed in R.A. 47/2008 is confirmed with no order as to costs.