Laxmidevi W/O. Venkappa ... vs The Merchant Urban Co.Op
2022 Latest Caselaw 164 Kant

               IN THE HIGH COURT OF KARNATAKA
                       DHARWAD BENCH

           DATED THIS THE 05TH DAY OF JANUARY 2022

                           BEFORE

      THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

      REGULAR SECOND APPEAL NO. 5399 OF 2012 (DEC & INJ)

BETWEEN
SMT. LAXMIDEVI W/O. VENKAPPA WADAWADAGI
AGE: 79 YEARS, OCC: HOUSEHOLD WORK,
R/O. GADAG AND WAS C/O. ASHOK V. GADAG
KULKARNI BUILDING,
VIVEKANAND NAGAR, NEAR P & T QUARTERS,
GADAG - 582 101.
                                                ...APPELLANT
(BY SRI. DINESH M KULKARNI, ADVOCATE)

AND
1.     THE MERCHANT URBAN CO.OP.
       BANK LTD., GADAG, DIST: GADAG.

2.     REGISTRAR OF CO-OP. SOCIETIES,
       NO.1, ALI AKBAR ROAD,
       BANGALORE - 560001.
                                             ...RESPONDENTS

(BY SRI. SANTOSH NARGUND ADV., FOR
SRI. PRAKASH ANDANIMATH, ADVOCATE FOR R1;
SRI. PRASHANT MOGALI, ADV., FOR R2)

      THIS RSA IS FILED UNDER SECTION 100 OF C.P.C., AGAINST
THE JUDGEMENT & DECREE DATED 11.01.2012 PASSED IN
R.A.N0.17/2009 ON THE FILE OF THE DISTRICT AND SESSIONS
JUDGE, GADAG, DISMISSING THE APPEAL FILED AGAINST THE
JUDGMENT DATED 16.01.2008 AND THE DECREE PASSED IN OS
NO.77/2003 ON THE FILE OF THE CIVIL JUDGE (SR.DN.) & CJM,
GADAG, DISMISSING THE SUIT FILED FOR DECLARATION &
INJUNCTION.
                              -2-



     THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE

COURT DELIVERED THE FOLLOWING:


                        JUDGMENT

The captioned second appeal is filed by the

unsuccessful plaintiff, who has questioned the concurrent

judgment and decree passed by the Courts below. This

case has a checkered history.

2. The subject matter of the appeal is property

bearing CTS No. 1768/4. The plaintiff's contention is that

the property was purchased by her husband-Venkappa

way back in the year 1932 by utilizing the joint family

income. The plaintiff's contention is that after death of

her husband, plaintiff and her children, who constitute a

joint Hindu Family, have succeeded to the property.

3. It is specific case of the appellant/plaintiff that

there was a partition in the family in the year 1973 and

plaintiff's husband-Venkappa effected a partition among

himself and his children and in the said partition, the suit

schedule property was jointly allotted to the present

plaintiff and her husband-Venkappa. The present suit is

filed for declaration and injunction by the present plaintiff

questioning the sale deed dated 26.07.1977 executed by

her husband-Venkappa in favour of respondent No.1-

Bank under a registered sale deed. The appellant has

questioned the sale deed executed by her husband by

seeking the relief of declaration and alternative relief of

partition and separate possession by contending that the

sale deed dated 26.07.1977 does not bind her legitimate

share in the suit property.

4. Respondent No.1-Bank on receipt of summons

contested the proceedings and stoutly denied the entire

averments made in the plaint. Respondent No.1-Bank has

taken a specific contention that the present suit is filed at

the instigation of Balaji Trading Company, who has

already lost litigation against the respondent No.1-Bank.

Respondent No.1-Bank also contended that the present

suit is hopelessly barred by time and therefore, sought

for dismissal of the suit.

5. The Trial Court having appreciated the oral

and documentary evidence recorded a finding that the

appellant-plaintiff has failed to prove that the suit

property was jointly allotted to the plaintiff and her

deceased husband-Venkappa. The Trial Court was also of

the view that the plaintiff has failed to establish that the

sale deed was secured by respondent No.1-Bank by

practice fraud. While examining issue No.4, the learned

Judge having examined the materials on record found

that the sale deed is of the year 1977 and the present

suit is filed in the year 2003 and therefore, was of the

view that the suit is hopelessly barred by law of limitation

and accordingly, answered Issue No.4 in affirmative by

recording a finding that the suit is not filed in time. On

these set of reasoning, the learned Trial Court Judge has

proceeded to dismiss the suit.

6. Feeling aggrieved by the judgment and decree

passed by the Trial Court the appellant-plaintiff preferred

regular appeal in R.A.No.17/2009. The appellate Court on

re-appreciation of oral and documentary evidence and

having perused the records has held that the respondent

No.1-Bank had to seek redemption of mortgage as

plaintiff's husband-Venkappa had mortgaged the suit

property in favour of one Ganapathi Nagesh Palankar by

a registered mortgage deed dated 07.06.1977 for an

amount of Rs.45,000/- for a period of ten years. The

Appellate Court was of the view that the respondent

No.1-Bank had to initiate proceedings by seeking

redemption of mortgage. The said suit was decreed and

confirmed in R.S.A.No.106/1997. The Appellate Court on

re-appreciation of the evidence on record was of the view

that the sale deed executed by the plaintiff's husband

was for the benefit of the family. The appellate court also

took a judicial note of the fact that the subject matter of

the suit had already seen two rounds of litigation which

went up to the High Court. Apart from the claim of the

mortgagee, one Balaji Trading Company, who claimed to

be a tenant also filed an injunction suit against

respondent No.1-Bank, which was decreed, however the

appellate court allowed the appeal filed by the

respondent-bank and dismissed the injunction suit filed

by said Balaji Trading Company and the same was

confirmed by this Court in Regular Second Appeal. In two

rounds of litigations, the claim of the Bank was upheld. In

this background, the Appellate Court was of the view that

the findings recorded by the Trial Court and the

conclusions arrived was based on the material on record

and therefore, proceeded to dismiss the appeal. It is

against these two concurrent findings, the plaintiff is

before this Court.

7. The counsel for appellant has raised various

grounds in the present appeal. He has strenuously argued

before this Court and contended that the plaintiff had an

independent right in the suit property and therefore, even

if the relief of declaration is barred by law of limitation,

the plaintiff is entitled to prosecute the present suit

insofar as relief of partition is concerned. He would

submit that since the plaintiff has an independent right,

she can maintain the present suit insofar as relief of

partition is concerned and therefore, he would submit

before this Court that the relief of partition is not barred

by limitation and this material aspect is not dealt by both

the Courts below.

8. Per contra, learned counsel appearing for

respondent No.1 limning the conduct of plaintiff would

submit before this court that this litigation is fought not

by the plaintiff but by Balaji Trading Company, which is

still squatting over the suit property and wants to re-

litigate through the plaintiff having suffered a decree in

earlier litigation.

9. Heard the learned counsel for the appellant

and the counsel appearing for respondent-Bank.

10. Plaintiff's husband mortgaged the suit property

for a period of ten years under a registered mortgage

deed dated 07.06.1977 in favour of one Ganapathi

Nagesh Palankar. The respondent-Bank purchased the

property from its original owner namely Venkappa

Wadawadagi for sale consideration of Rs.1,00,000/-

subject to the subsisting mortgage under registered sale

deed dated 26.06.1977. The respondent No.1-Bank

having stepped into the shoes of the mortgagor by virtue

of sale deed filed a suit seeking redemption of mortgage

in O.S.No.449/1989. The said suit was contested by the

mortgagee. The Court having examined the rival

contentions decreed the suit filed by respondent No.1-

Bank and ordered for redemption. The mortgagee

preferred an appeal in R.A.No.1/1995, which came to be

dismissed and the same was confirmed by this Court in

RSA No.106/1997.

11. What emerges from the records is that the

original owner-Venkappa had also leased the suit

property in favour of Balaji Trading Company. The said

Balaji Trading Company filed a bare suit for declaration

and injunction in O.S.No.505/1997. The said suit was

decreed. Respondent No.1-Bank preferred an appeal in

R.A.No.106/2003. The Appellate Court reversed the

finding and decreed the suit filed by respondent No.1-

Bank. The said judgment and decree passed in regular

appeal was confirmed by this Court in RSA

No.1354/2005. If these significant details are taken into

consideration, this Court is of the view that the suit which

is being prosecuted by the wife of the original owner-

Venkappa lags bona fides. The contention and

apprehension raised by respondent No.1-Bank that this

suit being filed at the instance of Balaji Trading Company

also appears to be probable. The Balaji Trading Company

which has filed a comprehensive suit for declaration and

injunction in O.S.No.505/1997 is dismissed by this Court

is dismissed by this Court in RSA No.1354/2005.

12. Admittedly, the sale deed executed by

Venkappa in favour of respondent No.1-Bank is of the

year 1977. The sale deed is dated 26.07.1977. Therefore,

the right, if any, was lost by the plaintiff's family way

back in the year 1977. Since various litigations were

being fought by the tenants and mortgagee, it has to be

presumed that the present appellant had constructive

notice of all these litigations. The Trial Court while

answering issue No.4 has rightly held that the suit filed

by the appellant herein is hopelessly barred by limitation.

If the respondent No.1-Bank sought redemption of

mortgage and has paid the mortgaged money, the

present appellant/plaintiff cannot be permitted to re-

litigate virtually on the same cause of action.

13. The question as to whether present plaintiff

who is none other than the widow of Venkappa had equal

share in the suit property and as to whether the sale

deed would bind her share also cannot be adjudicated at

this juncture and much of water is flown and the right of

the respondent No.1-Bank has stood crystallized on

account of bank succeeding against the mortgagee as

well as against the plaintiff. Therefore, it would not be

proper at this juncture to find out and ascertain whether

the appellant had an independent right than that of

Venkappa.

14. The plaintiff's husband has sold the suit

schedule property on 26.07.1977 whereas the present

suit was filed in 2003. Therefore, the plaintiff and her

husband-Venkappa were not at all in possession of the

suit schedule property. If possession was lost in the year

1977, even the relief of partition which is sought in the

present suit filed in the year 2003 cannot be entertained

as per Article 65 of the Limitation Act, which

contemplates that suit has to be filed within 12 years

from the date possession becomes adverse. Therefore the

material on record would clearly indicate that there is a

gross negligence and deliberate inaction which would

disentitle the plaintiff from seeking any relief at the hands

of this Court as the present suit even seeking relief of

partition is barred by limitation. The Hon'ble Apex Court

in catena judgments held that the concept such as liberal

approach, justice oriented approach, substantial justice

cannot be employed to jettison substantial law of

limitation. If the suit is hopelessly barred, it is well within

the jurisdiction of Civil Court to invoke section 3 of the

Limitation Act and dismiss the suit, even in cases, where

limitation is not pleaded as a defence. This clearly implies

that the suit or other proceeding even instituted after the

prescribed period of limitation, must be dismissed.

15. The Appellate Court on reappreciation of oral

evidence has recorded a categorical finding that the sale

deed executed by Venkappa in favour of respondent

No.1-Bank was in fact for the benefit of the family. The

findings and conclusions arrived by both the Courts below

are based on the evidence on record. I do not find any

merits and the grounds urged in the present appeal

memo does not give rise to any substantial question of

law. The appeal is devoid of any merits and hence,

dismissed.

16. In view of disposal of the appeal, pending

interlocutory applications, if any, do not survive for

consideration and are dismissed accordingly.

Sd/-

JUDGE YAN