Dharmrao And Ors vs Syed Arifa Parveen W/O Mushtaq ...
2022 Latest Caselaw 10377 Kant

                                1
                                                     R
        IN THE HIGH COURT OF KARNATAKA
               KALABURAGI BENCH

       DATED THIS THE 6TH DAY OF JULY 2022

                         PRESENT

THE HON'BLE MR.JUSTICE SREENIVAS HARISH KUMAR

                               AND

       THE HON'BLE MR.JUSTICE S. RACHAIAH

     REGULAR FIRST APPEAL No.200204/2019

Between:

1.   Dharmrao S/o Sharanappa Shabdi
     Age: 70 Years, Occ: Agriculture

2.   Sarubai W/o Dharmrao Shabdi
     Age: 60 years, Occ: Household

3.   Sharanappa S/o Dharmrao Shabdi
     Age: 34 Years, Occ: Agriculture

4.   Siddanna S/o Dharmrao Shabdi
     Age: 30 Years, Occ: Agriculture

5.   Basawaraj S/o Dharmrao Shabdi
     Age: 28 years, Occ: Agriculture

     All R/o Village Kusnoor
     Tq. & Dist. Kalaburagi
                                       ...Appellants

(By Sri Deepak V. Barad, Advocate)
                                 2

And:

Syed Arifa Parveen W/o Mushtaq Ahmed
Age: 45 Years, Occ: Household & Agri.,
R/o Near Baquer Function Hall
Bandenawaz Colony, Ring Road
Kalaburagi-585 103
                                                  ...Respondent

(By Sri Ameet Kumar Deshpande, Senior Counsel for
   Sri Ganesh S. Kalburgi, Advocate)


       This Regular First Appeal is filed under Order 41 Rule 1 of
CPC, praying to allow the appeal and consequently be pleased to
set aside the judgment and decree dated 11.11.2019 passed by
Prl. Senior Civil Judge at Kalaburagi in O.S.No.212/2013, further
prayed to dismiss the suit of the plaintiff.

     This RFA having been heard and reserved on 09.06.2022
and coming on for pronouncement this day, SREENIVAS
HARISH KUMAR J., delivered the following:

                         JUDGMENT

The respondent herein initially filed the suit for

declaration of title in respect of 24 acres 28 guntas of

land in Sy.No.107 of village Kusnoor, taluk and district

Kalaburagi (for short, 'suit property') and perpetual

injunction to restrain the defendants from disturbing her

peaceful possession over the suit property. By amending

the plaint, she claimed further declaration that three

sale deeds dated 25.02.1995 executed by Abdul Basit in

favour of the defendants did not bind her interest and

that they were null and void.

2. For the sake of clarity and convenience, the

parties are referred with respect to their ranks in the

suit. Khudija Bee, the mother of the plaintiff became the

owner of the suit property by virtue of a decree passed

in O.S.No.68/1973. The plea put forward by the plaintiff

was that her mother made oral gift of 10 acres of land

out of the suit property in her favour on 05.12.1985 by

delivering its possession to her and then on 05.01.1989,

she executed a memorandum of gift evidencing the past

oral gift. After the gift, there remained 14 acres 28

guntas in the possession of Khudija Bee. The plaintiff

succeeded to the remaining extent of land of 14 acres

28 guntas after the death of Khudija Bee and thereby

she became the owner of entire suit property.

3. The allegation against the defendants in the

plaint is that on 14.10.2013, the defendants came near

the suit property and tried to dispossess her on the

strength of sale deeds said to have been executed on

25.02.1995 in favour of defendants 1 to 5 by one Abdul

Bas who was not the owner of the suit land. The name

of the plaintiff's father was Abdul Basit Saheb. Neither

the plaintiff's mother nor the father executed any sale

deed in favour of the defendants and therefore the sale

deeds might have been created. Defendants asserted

their right on the property and asked the plaintiff to

hand over the possession to them. In these

circumstances, the plaintiff was constrained to file the

suit.

4. The defendants 1 to 5 in their written

statement, admitted that Khudija Bee was the original

owner of the suit property. They denied the gift made

by Khudija Bee in favour of the plaintiff and delivery of

possession of 10 acres of land consequent to the gift.

They also denied that the plaintiff succeeded to the

remaining extent of 14 acres 28 guntas after the death

of Khudija Bee. Their specific case is that they are the

bonafide purchasers of suit land for valid consideration

from one Abdul Bas @ Abdul Basit S/o Syed Hussain

Saheb. They stated that the three names Abdul Bas,

Abdul Basit and Syed Abdul Basit referred to the same

person who was the husband of Khudija Bee. They

denied the relationship of the plaintiff with Khudija Bee

as according to them, the couple did not have issues.

After the death of Khudija Bee, revenue records were

mutated in the name of Abdul Basit and ascertaining the

fact that Abdul Basit was the absolute owner, all the

defendants individually purchased certain extent of land

in Sy.No.107. In fact in the year 1981, Abdul Bas @

Abdul Basit sold them a house property. The plaintiff

being the stranger cannot claim declaration of title over

the suit property. There was no valid gift in her favour

and therefore suit is to be dismissed.

5. The trial court framed the following issues and

additional issues based on the pleadings.

ISSUES

1. Whether the plaintiff proves that, she is having right, title and ownership over the suit schedule property?

2. Whether the plaintiff further proves that, she is in lawful possession and enjoyment over the suit schedule property as on the date of filing of this suit?

3. Whether the plaintiff further proves that, defendants have interfered in the peaceful possession and enjoyment of suit schedule property as alleged in the plaint?

4. What order or decree?

ADDITIONAL ISSUES

1. Whether suit of plaintiff is barred by limitation?

2. Whether suit of the plaintiff in present form is maintainable?

6. Assessing the oral evidence of the witnesses,

P.Ws.1 to 4 from the plaintiff's side and D.Ws.1 and 2

from the defendants' side, as also the documentary

evidence Exs.P.1 to 8 marked on behalf of plaintiff and

Exs.D.1 to 44 produced by the defendants, the trial

court moulded the relief in its judgment dated

11.11.2019 declaring the plaintiff to be the absolute

owner of 18 acres 21 guntas in Sy.No.107 of Kusnoor

village and declared further that the sale deeds executed

by Abdul Bas @ Syed Abdul Basit in favour of

defendants were bad to the extent of 18 acres 21 guntas

and did not bind the interest of the plaintiff. Ancillary

relief of permanent injunction was also granted

restraining the defendants from interfering with

plaintiff's possession of 18 acres 21 guntas. Hence this

appeal by the defendants.

7. We have heard the arguments of Sri Deepak

V. Barad, learned counsel appearing for the

appellants/defendants and Sri Ameet Kumar Deshpande,

learned senior counsel appearing for the

respondent/plaintiff and perused the records.

8. The points raised by the learned counsel

during the arguments will be referred contextually, but

from their arguments, the following points are

formulated for discussion.

1. Has the trial court correctly held that the plaintiff is the daughter of Khudija Bee and Abdul Basi t?

2. Is the finding of the trial court that there was no delivery of possession of 10 acres of land in Sy.No.107 of Kusnoor village by virtue of oral gift and thereby the gift was not acted upon correct?

3. Could the trial court have granted the relief of declaration of title without there being a claim for possession?

4. Are there grounds to mould the relief by exercising power under Order 41 Rule 33 of the Code of Civil Procedure?

5. Has the trial court correctly held that suit is not time barred?

9. POINT NO.1: Sri Deepak V. Barad, learned

counsel for the appellants/defendants argued that the

plaintiff founded the relief of declaration of title on an

oral gift said to have been made by Khudija Bee. The

defendants denied the plaintiff to be the daughter of

Khudija Bee. Therefore the trial court ought to have

framed an issue regarding relationship. In the absence

of an issue, the judgment of the trial court is not

sustainable.

10. He further argued that according to the

plaintiff herself, she studied upto 10 th standard, and for

that reason, she could have produced her SSLC marks

card or any document obtained from the school to prove

that she is the daughter of Khudija Bee and Abdul Basit.

His argument was that the evidence of P.Ws.2 and 3

should not have been believed by the court and he

emphasized that the trial court should have framed an

issue regarding relationship. The defendants were thus

deprived of an opportunity to rebut the case of the

plaintiff that she is the daughter of Khudija Bee and

Abdul Basit.

11. Sri Ameet Kumar Deshpande met this

argument by arguing that the trial court applied section

50 of the Indian Evidence Act to hold that the evidence

given by the P.Ws.2 and 3 was relevant. These two

witnesses stand in close relation to the plaintiff and that

they knew very much that plaintiff was the daughter of

Khudija Bee and Abdul Basit. Merely because a school

document was not produced, it is not a ground for

discarding the testimonies of P.Ws.2 and 3. Regarding

non-framing of an issue, his argument was that the

plaintiff and the defendants knew the point of

controversy and they adduced evidence knowing the

case of each other. In this view, mere non-framing of

an issue cannot be viewed seriously in the appellate

court.

12. It is true that the trial court has not framed

an issue regarding relationship. Since the defendants

denied the relationship with Khudija Bee and Abdul Basit

and since she claimed declaration of title over the suit

property, issue regarding relationship could have been

raised by the trial court. That issue would have been an

ancillary issue to the main issue of proving the title.

Anyway the evidence on record shows that the plaintiff

adduced evidence as P.W.1 and stated in her evidence

affidavit that she was the daughter of Khudija Bee and

Abdul Basit. Her cross-examination discloses a

suggestion being given to her that she was not the

daughter of Khudija Bee and Abdul Basit. P.W.2,

Mohammad Khaya Mulla and P.W.3, Maqbool Ahmed

have given evidence that the plaintiff is the daughter of

Khudija Bee. P.W.2 has stated that his mother and

Khudija Bee's mother were first cousins. P.W.3 has

stated that Syeda Arifa Parveen i.e., the plaintiff is the

daughter of Syed Abdul Basit and he (P.W.3) married

one Siraj Fatima who is the sister of Syed Abdul Basit.

Evidence of these two witnesses is believed by the trial

court to hold that the plaintiff is the daughter of Khudija

Bee and Syed Abdul Basit. The trial court has referred

to section 50 of the Indian Evidence Act to hold that the

testimonies of P.Ws.2 and 3 are relevant in this context.

13. We do not think that the trial court has given

a wrong finding with regard to relationship. It is true

that plaintiff could have produced a school document

having studied upto 10th standard. Mere non-production

of a school document does not take away the

evidentiary value of P.Ws.2 and 3 in support of evidence

of P.W.1 for establishing the relationship. The two

witnesses have clearly stated how they are related to

the plaintiff. The close relationship with the plaintiff's

family makes their testimony believable. Section 50 of

the Indian Evidence Act states that whenever the court

has to form an opinion regarding relationship of one

person with the other, the opinion of any person, who,

as a member of the family or otherwise, has a special

means of knowledge is relevant. If the evidence of

P.Ws.2 and 3 is assessed in the light of scope of section

50, they being close relatives of the plaintiff are in a

better position to speak whether the plaintiff is the

daughter of Khudija Bee and Abdul Basit or not. We do

not see any reason to discard their evidence.

14. Regarding issue being not framed, it may be

stated that once the defendants came to know that

relevant issue had not been framed by the court and if

in their opinion an issue was very much essential,

nothing prevented them from applying to the court

under Order 14 Rule 5 of CPC for raising an issue

regarding relationship. Order 14 Rule 5 of CPC is meant

for the purpose of drawing the attention of the court of

first instance to frame or reframe an issue so that the

party on whom burden is cast can adduce evidence.

Having failed to draw the attention of the court that an

issue regarding relationship was necessary, the

defendants cannot, in the appeal, complain of non-

framing of an issue. It is not as though non-framing of

an issue cannot be urged in the appellate court; it can

be very much urged before the appellate court if the

trial court declined to frame the issue or reframe the

issue in spite of request made by a party during

pendency of the suit. Otherwise, in our opinion, a party

to the suit cannot complain of the same in the appeal.

15. Moreover, as has been rightly argued by

Sri Ameet Kumar Deshpande, in spite of there being no

issue, the parties went into trial regarding the

relationship and therefore the point of argument of

Sri Deepak V. Barad in this regard cannot be

appreciated. The trial court has rightly come to the

conclusion that the plaintiff is the daughter of Khudija

Bee and Abdul Basit.

16. POINT NO.2: The plaintiff has founded her

title on the suit property referring to a hiba or an oral

gift made by her mother. Ex.P.8 is the memorandum of

gift deed. The trial court has held that Khudija Bee did

execute Ex.P.8 evidencing the oral gift made by her on

05.12.1988, but has given a further finding that the gift

was not acted upon as there was no delivery of

possession of the property. Sri Deepak V. Barad argued

that Ex.P.8 is actually a gift deed and not a

memorandum of oral gift. It required registration. The

second point of argument was that delivery of

possession is the essential ingredient of gift made by a

Mohammadan and since the evidence shows that there

was no delivery of possession, the trial court has rightly

come to conclusion that the gift was not acted upon.

17. Sri Ameet Kumar Deshpande controverted

the argument of Sri Deepak V. Barad by submitting that

actual handing over of possession to the donee should

not be understood in the ordinary sense. Mother made a

gift in favour of the daughter and therefore what is

required is inference with regard to delivery of

possession in the sense that donee taking over

possession was an obvious consequence of the gift. If

the gift is in favour of a third person, then there is some

meaning in saying that actual delivery of the property

must be proved. In view of closeness of relationship

between the donor and donee, delivery of possession

can be presumed. The trial court has therefore erred in

giving a finding that there was no delivery of possession.

He further argued that the plaintiff being the respondent

in the appeal can urge this point according Order 41

Rule 22 of CPC without cross-objection being filed.

18. The evidence on record is required to be

assessed. Ex.P.8 is the memorandum of gift. It

contains a recital that Khudija Bee made oral gift of 10

acres of land out of 24 acres 28 guntas in Sy.No.107 of

Kusnoor village on 05.12.1988 freely and voluntarily. It

is recited that Khudija Bee delivered the possession of

the gifted property situated on the southern side of

Sy.No.107 to the plaintiff and that the latter accepted

the same. Ex.P.8 contains the signature of plaintiff for

having accepted the gift. Since this is a memorandum of

gift which came into existence in proof of the oral gift as

permitted under Mohammadan law, its registration was

not necessary. P.W.1 has stated in her examination-in-

chief that she took over possession on 05.12.1988 itself.

While cross-examining her she was questioned with

regard to boundaries of the land gifted to her and as to

why she did not make an application for effecting

mutation of the land in her name on the basis of hiba or

gift. Yes, she has given admission that she did not

apply for mutation of revenue records to her name.

19. P.W.2 has given evidence that Khudija Bee

gifted the property to her daughter out of love and

affection and that she handed over the possession also.

His affidavit discloses the names of the persons who

were present at the time when Khudija Bee made the

gift and delivered possession. His further evidence is

that he was present when Khudija Bee executed the

memorandum of gift as per Ex.P.8 on 05.01.1989. He

has stated that Syed Abdul Basit and Abdul Rahman Sab

were present as witnesses at the time of execution of

Ex.P.8. If the cross-examination of P.W.2 is read, it

appears that he has asserted that 10 acres of land

situate on the southern side was gifted to plaintiff and

thereafter Khudija Bee gave one plough and two cows to

her daughter for the purpose of cultivation of the land.

Though nothing is mentioned in the affidavit of P.W.2

about giving a plough and two cows, since it was elicited

from him in the cross-examination, it can be considered

and the effect of this answer is that handing over of

plough and two cows symbolized the delivery of

possession for the purpose of cultivation.

20. The evidence of P.W.4 is important. In his

affidavit he has stated that his land is situated near

Sy.No.107 measuring 24 acres 28 guntas and that he

has seen plaintiff personally cultivating the land by

engaging agricultural labours. His cross-examination

contains only suggestions which have been refuted by

him and therefore there are no reasons to discard his

testimony.

21. It is true that the plaintiff did not apply for

mutation on the basis of gift deed. The trial court has

held that this cannot be a reason for disbelieving the gift

but it has held that gift was not acted upon because the

identity of gifted property does not get established

because of discrepancy in the evidence with regard to

boundaries. The finding is to the effect that if a part of

24 acres 28 guntas was gifted to plaintiff, one of the

four boundaries of the gifted property should have been

indicated as remaining land in Sy.No.107. But the

boundaries given in Ex.P.8 show that remaining land in

Sy.No.107 is not mentioned on any of the four sides and

in this view question of handing over possession would

not arise as the identity of the gifted property is not

established.

22. In Ex.P.8, the boundaries are shown as:

Towards east: Govt. road and thereafter Sy.No.108 Towards west: Sy.No.151 Towards North: Sy.No.106 Towards South: Sy.No.119.

If the boundaries are seen, it appears that they

are not correctly mentioned as opined by the trial court.

If 10 acres of land was a part of 24 acres 28 guntas in

Sy.No.107, obviously one of the boundaries should have

been shown as remaining land in Sy.No.107. It is not

written like that. Whether this could be a reason for

holding that gift was not acted upon is the question.

23. While cross-examining P.W.1, she was

questioned with regard to the boundaries and she gave

the boundaries as mentioned in Ex.P.8. Merely because

the boundaries appear to be not correctly written in

Ex.P.8 and that P.W.1 asserts the same, taking a view

that there was no delivery of possession consequent to

oral gift is incorrect. All attending circumstances must

be gathered. For this purpose reference may be made

to Ex.D3 to D7, the sale deeds which the defendants

rely upon for asserting their right and title. The sale

deeds pertain to land in Sy.No.107 and if the boundaries

mentioned in these sale deeds are seen, the

Government road exists on the western side whereas in

Ex.P.8 the road is shown to be in existence on the

eastern side. Therefore there is discrepancy with regard

to mentioning of the road in all these deeds. Moreover,

P.W.1 has not been questioned in the cross-examination

as to why one of the boundaries is not shown as

remaining part of land in Sy.No.107. If she had been

questioned, probably she would have given an

explanation. In this view, the oral testimonies of P.Ws.2

and 4 can be given weightage as lending support to the

testimony of P.W.1 that she took over possession of 10

acres of gifted land. The oral testimonies of these

witnesses has not been impeached in the cross-

examination. Therefore the finding of the trial court that

the gift deed has not been acted upon cannot be

accepted. We hold that the evidence on record discloses

delivery of possession and thereby the gift became

complete and that the plaintiff held its possession.

24. POINT NO.3: This is a question of law. The

accepted principle is that if the plaintiff is not in

possession of the immovable property, he must seek

relief of possession. Many a time the plaintiff files a suit

for declaration of title and injunction by pleading

possession being with him. The evidence brought on

record negatives plaintiff's possession and in that event

the suit will have to be dismissed invariably. It was in

this background, Sri Deepak V. Barad argued that

possession of the plaintiff is not forthcoming in respect

of the entire extent of 24 acres 28 guntas. The

defendants purchased the entire land from Abdul Basit.

Their names were entered in the revenue records. If

really there was a gift in favour of the plaintiff in respect

of 10 acres of land and that she succeeded to remaining

extent of land after the death of Khudija Bee, she should

have obtained revenue records to her name in order to

presume possession being with her. She has admitted

in her cross-examination that she did not apply for

mutation; and Exs.D.9 to 16 clearly show that mutation

was accepted in the name of the defendants based on

the sale deeds, Exs.D.3 to 7. He also refers to Ex.D8

regarding sale of the property by Abdul Basit, which the

plaintiff did not question. Therefore he argued that the

plaintiff did not have actual possession and that the trial

court should not have decreed the suit even applying the

Mohammadan law of succession.

25. Sri Ameet Kumar Deshpande replied that the

possession being with the plaintiff on the basis of gift

and inheritance after the death of Khudija Bee can be

inferred. Here in this case, because of relationship

between Khudija Bee and the plaintiff being mother and

daughter respectively, it is not necessary to prove actual

handing over of possession, it is a matter of inference.

Moreover evidence of P.Ws.2 and 4 establishes the

possession being with the plaintiff.

26. What the trial court has held is, though

delivery of possession on the basis of oral gift is not

proved, after the death of Khudija Bee, the plaintiff and

her father succeeded to their respective shares

according to Mohammadan law of succession and

therefore the possession of the plaintiff to the extent of

her share is forthcoming. This finding of the trial court

is for the purpose of moulding the relief in the

background of Order 7 Rule 7 of CPC. We do not find it

inappropriate. But we do not agree with the argument of

Sri Deepak V. Barad that the suit could not have been

decreed in the absence of claim for the relief of

possession.

27. While answering point No.2, we have already

held that there is proof for delivery of possession of 10

acres of land by Khudija Bee to the plaintiff. It is not

only on the basis of evidence of P.Ws.2 and 4 that we

have come to this conclusion, but as argued by Sri

Ameet Kumar Deshpande, particularly in the background

of the relationship of mother and daughter between

Khudija Bee and the plaintiff, the delivery of possession

can be inferred. It is not necessary to discuss the same

aspect once again.

28. The possession of the plaintiff can be said to

have continued on the remaining extent of her share in

the suit property after the death of her mother. The

plaintiff and her father simultaneously succeeded to the

property to the extent of their respective shares

according to their personal law. So the joint possession

of the plaintiff with her father can be inferred. It is not

the case of the defendants that there had taken place a

division of property between the plaintiff and her father.

Plaintiff's father could not have sold the entire land of 24

acres 28 guntas as he had no right over the entire

extent. That means the defendants purchased undivided

share of plaintiff's father and therefore it was necessary

for them to file a suit for partition and possession. This

kind of a suit having not been filed by the defendants, it

can be said that the plaintiff continued to be in

possession of the suit property with her father and after

the death of her father, the possession of entire land

remained with her. She continues to hold the

possession of entire land until the defendants seek

partition and possession of whatever the share they are

entitled to as per discussion on point No.4.

29. Here is a case where the transfer was from

mother to daughter. As we are of the opinion that not

only delivery of possession by Khudija Bee in favour of

the plaintiff could be inferred, but also there is evidence

which shows that there was actual delivery of

possession. For this reason, the argument of Sri

Deepak V. Barad does not stand. We do not find any

error in the decision of the trial court to grant

declaratory relief.

30. POINT NO.4: The trial court, as stated

above, has moulded the relief to grant declaration in

respect of 18 acres 21 guntas of land out of 24 acres 28

guntas in Sy.No.107 applying Mohammadal law of

succession. As we have held that Khudija Bee made a

gift of 10 acres of land and it was accepted by the

plaintiff taking over possession of the land, we may

state that the plaintiff would become entitled to more

extent of land than what the trial court has held.

Despite the fact that the plaintiff has not questioned the

finding of the trial court, here is a case for further

moulding the relief notwithstanding no cross-objection

being filed by the plaintiff. In fact, cross-objection was

not necessary to be filed because the plaintiff claimed

declaration of title in respect of entire extent of land

basing her claim on the gift deed to the extent of 10

acres and succession to the remaining land after the

death of her mother. But the plaintiff's father executed

sale deeds in favour of defendants in respect of entire

extent of land. The trial court has rightly held that

Abdul Basit could not have executed the sale deeds for

the entire 24 acres 28 guntas and that those sale deeds

can be sustained only to the extent of his share.

31. According to Mohammadan law of

inheritance, the plaintiff and Abdul Basit being the

daughter and husband of Khudija Bee respectively are

sharers. After the death of Khudija Bee, in the property

left behind by her, the plaintiff succeeded to ½ share

and Abdul Basit to 1/4th share. Still there remained

1/4th residue, and if the Rule of Return or Radd, is

applied, the plaintiff became entitled to 1/4th residue and

thus her total entitlement in the property left behind her

mother enlarged to 3/4th. Therefore the sale deeds

executed by Abdul Basit in favour of the defendants was

valid and enforceable only to the extent of his 1/4th

share in the properties that remained with Khudija Bee

after she made oral gift of 10 acres in favour of the

plaintiff. The plaintiff succeeded to 3/4th in the remaining

property of her mother in addition to 10 acres of land

that she got by gift. This is how the reliefs can be

moulded in accordance with Order 41 Rule 33 of the

Code of Civil Procedure.

32. POINT NO.5: The trial court has held that

suit is not time barred. According to Sri Deepak V.

Barad, the plaintiff challenged the sale deeds by

amending the plaint and by that time, the limitation

period for seeking the relief of declaration had expired.

But this argument of Sri Deepak V. Barad cannot be

accepted because the principle is that whenever

amendment of pleading is permitted, it relates back to

the date of suit unless the order granting amendment

specifies the day on which amendment comes into

effect. In this case, it is not the argument of Sri Deepak

V. Barad that the amendment came into effect from the

date of granting of application for amendment.

Moreover, the plaintiff could have just averred in the

body of the plaint that the sale deeds did not bind her

interest without specifically claiming declaration as

regards the validity of the sale deeds. Merely because

the plaint was amended at a later stage, the suit did

not become time barred. In the plaint, the plaintiff has

stated that it was on 14.10.2013, the defendants tried

to dispossess her on the strength of the sale deeds and

that the limitation should be reckoned from the first date

of invasion on the right and title of the plaintiff. The suit

was filed on 20.08.2013. Therefore suit was filed within

time.

From the above discussion, we come to conclusion

to dismiss the appeal with a modification in the

judgment to the effect that the plaintiff is declared to be

the absolute owner of 10 acres of land gifted by her

mother and 3/4th of 14 acres 28 guntas in Sy.No.107 of

village Kusnoor, taluk and district Kalaburagi. Till the

defendants carve out their share in accordance with law,

they shall not disturb the possession of plaintiff in

respect of entire land. There is no order as to costs.

Sd/-

JUDGE

Sd/-

JUDGE BL