THE HON'BLE SRI JUSTICE R.RAGHUNANDAN RAO
CIVIL REVISION PETITION No.179 of 2021
ORDER:-
The respondents 1 to 8 had filed O.S.No.35 of 2014 in
the Court of the III Additional District Judge, Kurnool for a declaration of their title over the suit schedule property; consequential permanent injunction, restraining the petitioners and other defendants from trespassing into the suit schedule property or from dispossessing the respondents 1 to 8 from the suit schedule property; cancellation of certain registered deeds of sale executed in favour of the petitioners and some other defendants in the suit. They are referred to as the plaintiffs, for the sake of convenience.
2. The case of the plaintiffs, in the suit, in brief is:
a) One Nasyam Jamal Saheb was the owner of Ac.4.16 cents of land in S.No.700/A7B and S.No.706/A9 of Nandyal Town and Mandal, Kurnool District. He passed away leaving behind 3 sons and 2 daughters as his legal heirs. The aforesaid Ac.4.16 cents of land was partitioned between these legal heirs, by way of a registered deed of partition dated 11.03.1953. The parties to this deed of partition had, by inadvertence or ignorance, recorded the survey numbers incorrectly. The details of these correct/incorrect survey numbers and the shares of the parties to the partition deed are as follows:
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RRR,J CRP.No.179 of 2021 Name Relation Extent of land Survey The Correct with Number survey Jamal shown in number in Saheb Partition which the Deed land is actually situated Jaffer Saheb Son - - -
Dastagiri Saheb Son Ac.1.00 cents 700/A7B No mistake pyki Ibrahim Saheb Son Ac.1.00 cents 700 pyki 700/A7B & 700/A9 Saram Bi Daughter Ac.1.16 cents 706/A9 700/A7B Jainab Bi Daughter Ac.1.00 cents 700/A3 700/A7B & pyki 706/A9
b) The plaintiffs contend that Saram Bi and their children, continued to show the wrong survey numbers in various documents, executed by them in the form of deeds of Gift and Partition Deeds. Subsequently, these persons had also executed deeds of sale showing the land which fell to their share in the survey number which was wrongly recorded in the deed of partition.
c) The parties to the deed of partition dated 11.03.1953 had taken possession of the lands in accordance with the boundaries of the lands shown in the deed of partition dated 11.03.1953. These boundaries clearly show that the lands in the occupation of the parties to the deed of partition are in accordance with the correct survey numbers shown above and the said parties were never in possession of the lands shown in the survey numbers which was wrongly mentioned in the partition deed. 3
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d) The children of Saram Bi and their children, who are arrayed as defendants 1 to 6, taking advantage of the fact that the survey numbers were incorrectly mentioned in the deed of partition, had sold away their land by giving wrong survey numbers and the subsequent purchasers such as the petitioners herein as well as the other defendants are trying to encroach into the lands belonging to the plaintiffs.
e) The defendants 1 to 6 and their purchasers had also sought to obtain TDR rights from the Nandyal Municipality. At that stage, the plaintiffs having come to know all these actions of the defendants in the suit, had approached the trial Court for the reliefs mentioned above.
3) After filing of written statements, the petitioners herein, who are arrayed as defendants 9 and 10, had filed I.A.No.369 of 2019 under Order VII Rule 11 of C.P.C., for rejection of the plaint. This application was filed on the grounds that there was no cause of action and the suit was clearly barred by limitation as it was filed after lapse of 61 years after the deed of partition had been executed on 11.03.1953.
4) The plaintiffs resisted this application by contending that they were unaware of the subsequent gift deeds under which the wrong numbers in the partition deed were continued to be used. They contended that, they came to know about these mistakes in the registered deeds of sale, said to have been executed in the year 2008 and 2009, after the purchasers under these deeds of sale sought to interfere with the possession of the plaintiffs over 4 RRR,J CRP.No.179 of 2021 the lands in their possession. The further contention of the plaintiffs, in the counter filed by them, was that, the petitioners herein had already filed two suits bearing O.S.Nos.421 of 2013 and 423 of 2013 on the file of Principal Senior Civil Judge, Nandyal and that the plaintiffs were taking steps to transfer these two suits before the trial Court, by way of O.P.No.112 of 2014 on the file of Principal District Judge, Kurnool. The plaintiffs also contended that since they were in possession and enjoyment of the land as per the boundaries in the registered deed of partition, there was no need for them to challenge the deed of partition and as such, the question of limitation would not arise.
5) The trial Court after hearing both sides had dismissed the application, by way of an order dated 11.03.2020. Aggrieved by the said order of dismissal, the petitioners have approached this Court, by way of the present Civil Revision Petition.
6) The trial Court took the view that the relief sought in the suit was for a declaration of a title on the basis of the possession of the respondents 1 to 8 over the land set out in the deed of partition in accordance with the boundaries mentioned in the deed. The trial Court also took the view the question of whether the suit is barred by limitation or not is a mixed question of fact and law and the same cannot be decided without adequate evidence being adduced before the trial Court.
7) Sri K.Ramakanth Reddy learned Senior Counsel, appearing for the petitioners would submit that the sale deeds that 5 RRR,J CRP.No.179 of 2021 are being challenged in the present suit trace their title to the registered deeds of gift, executed by Kareem Bi on 24.01.1968 to the defendants 1 and 2. As the gift deed dated 24.01.1968 and the deed of partition dated 11.03.1953 cannot be challenged at this stage on account of limitation, the respondents 1 to 8 have indulged in a piece of clever draftsmanship and sought the setting aside of the deeds of sale alone, without seeking the relief of setting aside of the deed of gift dated 24.01.1968 or the deed of partition dated 11.03.1953. He would submit that the said suit is clearly beyond limitation and relies upon the Judgment of the Hon'ble Supreme Court in Arivandanam vs. T.V. Satyapal & Anr.1 and in the case of Raghwendra Sharan Singh Vs. Ram Prasanna Singh2 dated 13.03.2019 in Civil Appeal No.2960 of 2019. The principles laid down in these judgements are to the effect that the court would need to look into the pleadings in the plaint to determine whether there is a cause of action or whether the suit is barred by any law. For that purpose, the court should ignore any attempt to obfuscate the real issues, by way of clever drafting and decide on the merits of the case. These judgments may not be applicable to the facts of the present case for the reasons set out below.
8) Sri Sai Gangadhar Chamarthy learned counsel, appearing for the plaintiffs would submit that the petitioners themselves had filed O.S.No.421 of 2013 and 423 of 2013 for a permanent injunction and the vendors of the petitioners had filed other suits which were all transferred to the trial Court and 1 (1977) 4 SCC 467 6 RRR,J CRP.No.179 of 2021 renumbered as O.S.No.46 of 2016 and 47 of 2016, for the purpose of conducting a joint trial along with the present suit. He would submit that, the petitioners having acceded to the appointment of an advocate commissioner to note down the physical features of the suit schedule properties and to mark the boundaries being claimed by the parties cannot turn around and seek rejection of the plaint on the ground that the facts set out in the plaint cannot be accepted.
9) The plaintiffs do not dispute the right and title of the parties to the deed of partition in accordance with the extent of land given to each of the parties. However, it is the case of the plaintiffs that the parties had taken possession of lands and continued to remain in possession of the lands in accordance with the boundaries set out in the plaint attached to the deed of partition. The Plaintiffs claim that the defendants 1 to 6, have created documents showing that the lands owned and possessed by them were in an incorrect survey numbers and the same needs to be rectified. The averments in the plaint are effectively on the question of whether the ownership, title and possession of the parties to the deed of partition should be taken on the basis of the boundaries shown in the deed of partition or on the basis of the survey numbers mentioned in the deed of partition. The respondents 1 to 8 on the basis of their claim, mentioned above, have taken the plea that the deeds of sale executed on the basis of incorrect mention of survey numbers would also have to be set aside.
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10) This Court does not wish to express an opinion on whether such relief can be granted even if the contention of the plaintiffs were accepted by the trial Court. Any opinion expressed in this regard would amount to prejudging the issue.
11) However, the contention of the petitioners that, the suit is barred by limitation, and that the plaintiffs had avoided that issue by deliberately not seeking a declaration that the deed of partition dated 11.03.1953 and the subsequent deeds of gift are invalid and not binding is an issue which will have to await the trial on the earlier question set out above. The question of limitation would definitely arise if the trial court comes to a conclusion that relief cannot be granted to the plaintiffs without setting aside the partition deed of 1953 or the deeds of gift of 1968. However, a trial is necessary before the trial court can arrive at a conclusion on that issue.
12) In the circumstances, there are no grounds for this court to interfere with the orders of the trial court and this revision petition is dismissed. However, without costs.
Miscellaneous petitions, pending if any, shall stand closed.
___________________________________ JUSTICE R.RAGHUNANDAN RAO Date : 03-03-2022 RJS 8 RRR,J CRP.No.179 of 2021 THE HON'BLE SRI JUSTICE R.RAGHUNANDAN RAO CIVIL REVISION PETITION No.179 of 2021 Date : 03.03.2022 RJS 9 RRR,J CRP.No.179 of 2021