Suniyasudhakaran vs Padmamma & Ors.

Rajesh Rai K, J

This Regular First Appeal is filed by the appellant-plaintiff challenging the order passed in I.A.No.V filed by defendant Nos.7 and 8 i.e., respondent Nos. 8 and 9 under Order VII Rule 11(d) read with Section 151 of CPC in O.S.No.804/2018 before the Prl. Senior Civil Judge, Bengaluru Rural District, Bengaluru (hereinafter referred to as "Trial Court" for short) whereby, the Trial court allowed I.A.No.V and consequently, rejected the plaint for want of cause of action and by stating that the suit is barred by limitation vide order dated 11.09.2023.

For the sake of convenience, the parties are referred to by their ranks before the Trial Court. The appellant are the plaintiff and respondents are the defendants.

The abridged facts of the case are as under:

The plaintiff filed a suit for declaration and permanent injunction against the defendants contending that she is the absolute owner of the immovable property bearing Sy.No.8, measuring to an extent of 20 guntas carved out of 1 Acre 21 guntas, (excluding 2 guntas of kharab) situated at Avalalli village, Bidarahalli Hobli, Erstwhile Bangalore South Taluk (now Bangalore East Taluk) vide Sale Deed dated 12.12.1996 (hereinafter referred to as the "Schedule A Property").

It is the further case of the plaintiff that, defendant No.1 and her father Sri. N Nanjundappa were the absolute owners of the agricultural lands bearing Sy.No.8, measuring to an extent of 1 acre 21 guntas including 2 guntas of kharab and land measuring to an extent of 17 guntas inclusive of 1 gunta of phot karab in Sy.No.9, in all measuring 2 acres inclusive of 3 guntas situated at Avalahalli village, Bidarahalli Hobli, erst while Bengaluru South Taluk, now Bengaluru East Taluk (hereinafter referred to as "the item no. 1 of plaint schedule B property", for short).

Further, defendant No.1 and her father were also absolute owners of the property bearing Sy.No.10 measuring to an extent of 1 acre 28 guntas including 1 gunta of phot karab and Sy.No.11, measuring to an extent of 2 acres 12 guntas, in all measuring 4 acres at Avalahalli Village, Bidarahalli Hobli, Bengaluru East Taluk, Bangalore (hereinafter referred to as "the Item no. 2 of the Schedule B property", for short).

Further, it is the case of the plaintiff that, pursuant to acquiring the 'schedule A property', she got mutated revenue records in her name vide MR.No. 48/96-97 and continued to be in lawful possession and enjoyment of the said property as absolute owner thereof by getting the said property duly compounded and fenced by barbed wire. It is contended that the 'schedule A property' and 'item Nos.1 and 2 of schedule B properties' are the adjacent properties from NH-4 (Bengaluru Kolar Madras Road). Hence, a 20 feet wide common road has been formed on the eastern side of the said properties by her vendors leading from NH-4 and passing through Sy.Nos. 8, 9, 10 and 11 as the only access to the said properties.

The plaintiff further contended that, ever since from the date of execution of the Sale Deed of schedule A property in her favour by defendant No.1 and her father on 12.12.1996, she continued to exercise the rights of absolute ownership over the same, without any hindrance, or obstruction from anybody much less from the defendants.

Further it is the case of the plaintiff that, defendant No.1 and her father Sri N Nanjundappa along with partners of defendant No.6 i.e., M/s Manjunatha Developers and Constructions Pvt Ltd, interfered with the lawful possession of the plaintiff in 'schedule A property' sometime in the year 2004 and left with no option, the plaintiff filed the suit for permanent injunction against defendant No.1 and others in OS.No.389/2001, on the file of the Civil Judge, Bengaluru Rural District, Bengaluru. The said suit came to be decreed holding that the plaintiff was in possession of the 'schedule A property'. It is submitted that, thereafter, the plaintiff continued to be in peaceful possession and enjoyment of the 'schedule A property' till 2018.

The plaintiff further contended that, on 31/01/2018 and on 01/02/2018, there was again interference to the 'schedule A property' by defendant No.6 i.e., its partners Sri Muniraju and Sri Amaresha and his family members, apart from defendant No.1-Late Smt. Padmamma and her family members by blocking the said 20 feet wide road leading to her property and illegally damaged the compound/barbed wire. After that, the plaintiff immediately lodged the police complaint before the Avalahalli Police Station wherein the jurisdictional police have summoned the defendants. At that point of time, M/s.Manjunatha Land Developers and Constructions revealed that they have got the registered Sale Deeds dated 15/12/2004 in their favour, in respect of 'Schedule A property' and 'the item no. 1 & 2 of the Schedule B property' from the father of defendant No.1.

The plaintiff further contended that, she got to know about the alleged transaction in the month of February 2018, when the defendants furnished the details of the case in O.S.No.744/2013, pending on the file of Senior Civil Judge, Bengaluru Rural District, Benglauru Rural filed by defendant No.1 against defendant No.6. On coming to know about the same, the plaintiff had applied for the copy on 16/02/2018, and obtained the certified copies of the entire proceedings on 11/04/2018. Thereafter, she had filed necessary application to implead in the said suit. It is the clear case of the plaintiff before the Trial Court that only on obtaining the records pertaining to the suit, it had come to her knowledge that there was a fraudulent sale transaction between M/s.Manjunatha Land Developers and Constructions Pvt Ltd and the father of defendant No.1 i.e., Sri N Nanjundappa.

It the further case of the plaintiff that on perusal of the said Sale Deeds dated 15/12/2004 executed in favour of partners of defendant No.6 by the father of defendant No.1, she came to know that the father of defendant No.1 had sold entire extent of land measuring 1 acre 23 guntas in respect of Sy.No.8, including the land measuring 20 guntas of land which belongs to her. Hence, she filed the suit for declaration and permanent injunction against the defendants.

After service of summons, defendant Nos.7 and 8 appeared through their counsel and filed an application for Rejection of Plaint under Order VII Rule 11(d) read with Section 151 of CPC and the other defendants remained ex-parte. However, the said application was opposed by the plaintiff by filing an objection.

The Trial Court, upon perusal of the pleadings of the parties as enumerated in the plaint, I.A.No.V and objections, framed the following point for consideration:

i) Whether the defendant Nos.7 and 8 have made out sufficient grounds under Order 7 Rule 11 (d) read with Section 151 of CPC to reject the plaint on the ground that the suit is not maintainable and is barred under law?

On hearing the learned counsel for the parties and on assessment of the oral submissions and documents placed by both the parties, the Trial Court answered point No.1 in the affirmative and allowed I.A.No.V filed by defendant Nos.7 and 8 under Order VII Rule 11(a) and (d) of CPC and rejected the plaint for non-disclosure of cause of action and by stating that the suit is barred by limitation. Aggrieved by the said order, the plaintiff preferred the instant appeal.

Heard the learned Senior counsel Sri S. Srivatsa for the plaintiff/appellant and the learned counsel Sri C.S Prasanna Kumar for defendant No.8/respondent No.9.

The primary contention of the learned Senior Counsel for the appellant is that the Trial Court erroneously came to conclusion that, there is no cause of action for the plaintiff to file the present suit and the same is barred by law of limitation. Further, he contended that the suit is filed within the period of limitation, and the actual cause of action arose for the suit on 31.01.2018 and 01.02.2018 when the plaintiff came to know about the execution of the Sale Deeds by father of defendant No.1 to defendant No.6, while obtaining the documents in the suit filed by defendant No.1 to defendant No.6 in O.S.No.744/2013 and the interference of the defendants to the suit schedule property with her lawful possession. As such the suit is well within the time. He further contended that the present suit is filed for cancellation of Sale Deeds dated 15.12.2004 executed by the father of defendant No.1 in favour of defendant No.6 behind the back of plaintiff and in such circumstance, Article 59 of the Limitation Act, 1963 (hereinafter referred to as ‘the 1963 Act’ for short) attracts, as such the limitation starts from the year 2018, when the defendants illegally interfered into the schedule A property.

He also contended that the suit filed by the plaintiff against defendant No.1 and others in O.S.No.389/2004 for permanent injunction was decreed in favour of the plaintiff. In such circumstance, it could be gathered that the plaintiff was in actual possession of the suit schedule A property and she was totally unaware about the execution of Sale Deeds in favour of defendant No.6 by the father of defendant No.1. Hence, the Trial Court has erred while rejecting the plaint for want of cause of action and limitation. Accordingly, he prays to allow the appeal.

Per contra, the learned counsel for respondent No.9 contented that, the Trial Court has rightly allowed I.A.No.V by a well reasoned order which does not call for any interference. He further contended that, the plaint averments discloses that the cause of action for filing the suit arose on 12.12.1996 in respect of suit schedule A Property and subsequently, in the year 2018 i.e., the date of alleged interference by the defendants in the suit schedule property and the knowledge of the plaintiff about the execution of the Sale Deeds in favour of defendant No.6 by the father of defendant No.1. According to the learned counsel the prayer of the plaintiff in the suit is to declare the two Sale Deeds dated 15.12.2004 and another Sale Deed dated 04.08.2011 as illegal and not binding on the plaintiff in respect of schedule A property and item Nos.1 and 2 of schedule B property and in such circumstance, to obtain a decree of declaration, the limitation provided is three years when the right to sue first accrues as per Article 58 of 1963 Act.

He further contended that, in the instant case the Sale Deeds executed in favour of defendant No.6 by the father of defendant No.1 both were dated 15.12.2004 and the same were registered on 10.05.2011 and 12.05.2011, which primarily amounts to constructive notice to the plaintiff and the same should be construed that the plaintiff had relevant knowledge either about the execution of the Sale Deeds on 15.12.2004 or the date of registration i.e., on 10.05.2011 or 12.05.2011. Nonetheless, the plaintiff filed a suit for permanent injunction against defendant No.1, her father and another in O.S.No.389/2004 and the suit was contested by defendant No.1 and her father alleging that the Sale Deed relied by the plaintiff dated 12.12.1996 allegedly executed by the GPA Holder of defendant No.1 and her father was a bogus document and no title of schedule A property is passed in favour of the plaintiff. Hence, the Trial Court has rightly rejected the plaint since the suit is hopelessly barred by limitation. Accordingly, he prays to dismiss the appeal.

To buttress his argument, he relied on the following judgments:

Nikhila Divyang Mehta and another Vs. Hitesh P. Sanghvi and others - 2025 SCC OnLine SC 779.

Khatri Hotels Private Limited and another Vs. Union of India and another - 2011 SCC OnLine SC 1236.

Dada Jinnappa Vs. Shivalingappa Ganapati Bellanki - I.L.R 1989 KAR 993.

Having heard the learned counsel for the parties, the sole point that arises for our consideration is:

"Whether the Trial Court has erred while allowing I.A.No.V thereby rejecting the plaint in O.S.No.804/2018 and, if any, the interference of this Court is required in the impugned order?"

On perusal of plaint averments, it is stated that, defendant No.1 and her father one N. Nanjundappa were the absolute owners of the suit schedule A and B properties and the plaintiff purchased 20 Guntas of land in schedule A property vide registered Sale Deed dated 12.12.1996 as per document No.2980/1996-97 through their GPA Holder namely P.V.Sudhakaran. Thereafter, she put in possession of the said property. Subsequently, her name was mutated in the revenue records i.e., Mutation Register and RTC from 06.06.1997 to 05.03.2013. Further, in the year 2004 the plaintiff filed a suit for permanent injunction against defendant No.1, her father and another in O.S.No.389/2004 on 15.04.2004 claiming that, defendant No.1 and her father interfering in the schedule A property. The said suit was contested by defendant No.1 and her father by filing written statement. The said suit came to be decreed by granting permanent injunction against defendant No.1, her father and another directing not to interfere with the possession of the plaintiff in schedule A property. In the meantime, father of defendant No.1 executed Sale Deeds in favour of one of the partners of defendant No.6 namely Amaresha and in favour of defendant No.6 on 15.12.2004 in respect of suit schedule properties. It is pertinent to observe that the said Sale Deeds were registered on 10.05.2011 and 12.05.2011.

It is the contention of the plaintiff that, she had absolutely no knowledge about the execution of the Sale Deeds dated 15.12.2004 or the registration of the same either on 10.05.2011 or 12.05.2011. Later, on 04.08.2011, defendant No.6 - Firm sold the suit schedule ‘B’ property in favour of one of the partners namely Amaresha vide Sale Deed dated 04.08.2011. According to the plaintiff, after execution of the said Sale Deed, defendant No.1 once again filed a suit against defendant No.6 in O.S No.744/2013 in respect of suit schedule property. As such, she was totally kept in dark.

Thereafter, in the year 2018 i.e. on 31.01.2018 and 01.02.2018, the defendants interfered with the lawful possession of the plaintiff in the suit schedule A property. As such she lodged a complaint before the jurisdictional police on 02.03.2018 and came to know about the suit in O.S No.744/2013 pending in respect of suit schedule property and obtained the proceedings in O.S.No.744/2013. At that time to her utter surprise she learnt about the execution of two Sale Deeds dated 15.12.2004 and another Sale Deed dated 04.08.2011. Left with no other option she filed the instant suit against the defendants to declare that said aforesaid Sale Deeds are illegal and not binding on her.

On careful perusal of the above plaint averments, it could be gathered that, the defendant No.1 and her father executed the sale deed in respect of schedule A property in favour of the plaintiff through their GPA Holder on 12.12.1996. Admittedly, the said sale deed is a registered one and executed by the registered GPA Holder of defendant No.1 and her father. Additionally, after execution of said sale deed, a suit for permanent injunction was filed by the plaintiff against defendant No.1, her father and another for their unlawful interference in the schedule A property in the year 2004 in O.S No.389/2004. Though defendant No.1 and her father denied the execution of GPA and the execution of sale deed in favour of plaintiff by filing written statement, however, neither they cross-examined the plaintiff nor led any defence evidence in the said suit. Accordingly, the said suit was decreed by granting the relief of permanent injunction in the year 2007. In the interregnum, father of defendant No.1 executed two Sale Deeds dated 15.12.2004 in favour of one of the partners of defendant No.6 namely Amaresha and defendant No.6 in respect of suit schedule A and B properties and strangely registered the said Sale Deeds in the year 2011 i.e., on 10.05.2011 and 12.05.2011. Hence, the contention of the learned counsel for the respondents/defendants that, the registered document itself is a constructive notice does not hold good for the reason that the execution of Sale Deeds and its registration are in different dates in a span of seven years.

Admittedly, as per records the plaintiff was in possession of the suit schedule A property and her name was effected in the mutation entries and RTC till the year 2013. Additionally, the suit filed by the plaintiff for permanent injunction against defendant No.1, her father and another decreed in the year 2007. Further, it also not in dispute that defendant No.1 filed a suit against defendant No.6 in O.S.No.744/2013 in respect of suit schedule property.

In such circumstance, though it is stated in the plaint that the cause of action arose for the suit when the plaintiff purchased the suit schedule A property in the year 1996 and subsequently i.e. in the year 2004 and 2018, Article 58 of the 1963 Act cannot be applied in stricto sensu to the case on hand by considering the above facts and circumstances of the case. No doubt, the limitation to file a declaration suit is three years when the right to sue first accrues as per Article 58 of the 1963 Act. However, on perusal of the Article 59 of the 1963 Act to cancel or set aside an instrument, the period of limitation prescribed is 3 years from the contract rescinded first become know to him or her. In the case on hand as contended by the plaintiff the subsequent Sale Deeds executed by the father of defendant No.1 in favour of one of the partners of defendant No.6 namely Amaresha and defendant No.6 in the year 2004 which was registered in the year 2011 came to the knowledge of the plaintiff only in the year 2018 when the defendants interfered in the suit schedule A property.

We are not disputing the principles enumerated in the judgments cited by the learned counsel for the respondents/defendants. However, it is equally important to note that, defendant No.1 and her father's GPA holder executed the Sale Deed in favour of the plaintiff way back in the year 1996 and a suit in O.S No.389/2004 was filed by the plaintiff against defendant No.1, her father and another was decreed against them. It is also pertinent to note that immediately after the institution of the said suit i.e., on 05.04.2004, father of defendant No.1 executed the Sale Deeds in favour of one of the partners of defendant No.6 namely Amaresha and also in favour of defendant No.6 within 8 months i.e., on 15.12.2004 and the same were strangely registered in the year 2011 and further, the subsequent filing of inter-se suit between defendant No.1 and 6 in the year 2013 i.e. O.S.No.744/2013 which is still pending for consideration. In that view of the matter, we are of the considered opinion that, these mixed question of facts and law has to be dealt with in a detail trial.

The Hon’ble Apex Court in the case of MADANURI SRI RAMA CHANDRA MURTHY V/S SYED JALAL - (2017) 13 SCC 174, held that, since the power conferred on the court to terminate civil action at the threshold is drastic, the conditions enumerated under Order VII Rule 11 of CPC to the exercise of power for rejection of plaint have to be strictly adhered to. The averments of the plaint have to be read as a whole to find out whether the averments disclose a cause of action or whether the suit is barred by any law. The question as to whether the suit is barred by any law, would always depend upon the facts and circumstances of each case. In that view of the matter, we are of the view that, the Trial Court has failed to consider the above aspect as per the law enumerated by the Hon’ble Apex Court in the aforesaid judgment. Hence, the interference in the impugned order is called for. Accordingly, we answer the point raised above in the “affirmative” and proceed to pass the following:

ORDER

The Regular First Appeal is allowed.

The Order dated 11.09.2023 passed in I.A No.V in O.S.No.804/2018 filed by defendant Nos.7 and 8 under Order VII Rule 11 (d) r/w Section 151 of CPC by the Trial Court is hereby set aside.

The suit in O.S No.804/2018 is restored to its original file.

The parties shall mark their appearance before the Trial Court on 01.09.2025 without expecting any further notice.

All the contentions left open.

The Registry is directed return the records to the concerned Court forthwith along with the certified copy of this judgment.