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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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
RRR,J CRP.No.179 of 2021
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
