Sri K T Devaraj vs Kushalnagar Works
2022 Latest Caselaw 12627 Kant

                           1


    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 28TH DAY OF OCTOBER, 2022

                          BEFORE

             THE HON'BLE MRS. JUSTICE M G UMA

  REGULAR SECOND APPEAL NO. 1232 OF 2013 (DEC/INJ)

BETWEEN:

1. SRI. K.T. DEVARAJ
   AGED 60 YEARS

2. SRI. K.T. ARUN KUMAR
   AGED 57 YEARS

BOTH ARE SONS OF LATE V. THIMMAPPA
RESIDENT OF KUDUMANGALORE VILLAGE
KUDIGE POST, KUSHALNAGAR
SOMWARPET TALUK, 571 234
KODAGU DISTRICT.

                                            ... APPELLANTS

(BY SRI: VENKATESH R. BHAGAT, ADVOCATE)

AND:

KUSHALNAGAR WORKS
(KUDIGE KUSHALNAGAR
SOMWARPET TALUK
KODAGU DISTRICT)
A CONSTITUENT OF THE TATA COFFEE LTD
A COMPANY REGISTERED UNDER THE
INDIAN COMPANIES ACT, 1956
HAVING ITS REGISTERED OFFICE AT
POLLIBETTA, KODAGU DISTRICT
REPRESENTED BY ITS GENERAL MANAGER
(INDUSTRIAL RELATIONS) SRI. VIJAY KARNAD
SON OF K. SHASHIDHAR RAO
AGED 47 YEARS
RESIDENT OF POLLIBETTA, VIRAJPET TALUK
KODAGU DISTRICT. 571 234
                                           ... RESPONDENT
                                   2


(BY SRIYUTHS: MANU KULKARNI, ABHINAG S AND
    N.S. SRIRAJ GOWDA, ADVOCATES)

      THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 20.3.2013 PASSED IN
R.A.NO.7/2010 ON THE FILE OF DISTRICT AND SESSIONS JUDGE,
KODAGU, MADIKERI, ALLOWING THE APPEAL AND SETTING ASIDE
THE JUDGMENT AND DECREE DATED 07.01.2010 PASSED IN
OS.NO.121/2005 ON THE FILE OF CIVIL JUDGE (SR.DN.),
MADIKERI.

     THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 28.09.2022 COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                           JUDGMENT

The defendants have preferred this appeal being

aggrieved by the judgment and decree dated 20.03.2013

passed in RA No.7 of 2010 on the file of the learned District

Judge, Kodagu, Madikeri (hereinafter referred to as 'the First

Appellate Court' for brevity), whereunder the judgment and

decree dated 07.01.2010 passed in OS No.121 of 2005 on the

file of the learned Civil Judge (Sr.Dn.) at Madikeri (hereinafter

referred to as 'the Trial Court' for brevity), was set aside, by

allowing the appeal and decreeing the suit of the plaintiff as

prayed for.

2. For the sake of convenience, parties are referred

to as per their status and rank before the Trial Court.

3. Brief facts of the case are that, the plaintiff filed

the suit against defendant Nos.1 and 2 seeking declaration

that it is the absolute owner of the schedule property and

consequently for mandatory injunction directing defendant

No.1 or through defendant No.2 to execute a rectification

deed to correct the word 'Kudumangalore' as 'Basavanthoor'

in the sale deed dated 22.12.1986, registered in the Sub-

Registrar's office, Somwarpet Taluk, Kodagu District. It is

contended by the plaintiff that it has purchased the schedule

property under the registered sale deed dated 22.12.1986

executed by defendant No.1 through defendant No.2, as

Power of Attorney holder. The schedule property was

delivered to the possession of plaintiff and thus the plaintiff is

in peaceful possession and enjoyment of the same. It is

stated that Sy.No.23/1 lying to the east of the schedule

property belongs to defendant No.2 and he sold it in favour of

plaintiff under the sale deed dated 13.07.1992 and the

plaintiff is in peaceful possession and enjoyment of the said

land as well.

4. It is contended that the revenue records in

respect of the schedule property was not mutated in the name

of the plaintiff in spite of mandatory provisions under Section

128 of the Karnataka Land Revenue Act. During July 1995,

the plaintiff found that the revenue records were not mutated

in his name. On enquiry, it is found that the name of the

village mentioned in the sale deed is 'Kudumangalore' instead

of 'Basavanthoor'. Therefore, the plaintiff approached the

Sub-Registrar concerned seeking necessary corrections. The

Sub-Registrar directed the plaintiff to approach the

defendants. The plaintiff accordingly requested the

defendants to execute a rectification deed. The defendants

were dodging the plaintiff assigning one or the other reasons.

Therefore, the plaintiff issued legal notice on 02.07.1996

calling upon the defendants to execute the rectification deed.

5. It is stated that the defendants assured to execute

the rectification deed, but started making vexatious claim that

the manager of the plaintiff had assured to permit them to

remove the standing timber on the schedule property free of

cost and insisted for the same. There was no such covenant

in the sale deed to enable the defendants to take the standing

timber free of cost and it was not assured at any time. When

this was informed to the defendants they started avoiding

execution of the rectification deed. In the meantime,

Consolidated Coffee Limited of which the plaintiff is a

constituent was taken over by Tata Coffee Limited and the

matter was unnoticed for sometime. When a week earlier to

filing of the suit, the plaintiff approached the revenue

authorities and came to know that necessary changes are not

effected and defendants are not co-operating to fulfill their

obligations. The plaintiff thought it fit to file the suit.

Therefore, it is stated that cause of action for the suit arose

during July 1995. When the plaintiff found that the mistake

that had crept in the sale deed dated 22.12.1986,

subsequently, on 02.07.1996 when the notice was issued to

the defendants and an evasive reply was received by the

defendants. Therefore, the plaintiff prayed for declaration and

consequential mandatory injunction against the defendants.

6. The schedule appended to the plaint describes the

property measuring 6.59 acres of sagu khushki land in

Sy.No.23/2, khata No.3 of Basavanthoor village, Kushalnagar

Hobli, Somwarpwet Taluk, kodagu District, with the

boundaries mentioned therein.

7. Defendant Nos.1 and 2 have filed written

statement denying the contentions taken by the plaintiff. It is

contended that the plaintiff is not an agriculturist and

therefore, it could not have purchased the agricultural

property. No prior permission was obtained to get the sale

deed registered. It is stated that it was a fraudulent

transaction got executed with money and man power. The

defendants admitted that the plaintiff is a constituent of

Consolidated Coffee Limited which was taken over by Tata

Coffee Limited. It is stated that defendant No.2 was the

power of attorney for the limited purpose and therefore, the

suit is bad for mis-joinder of defendant No.2.

8. It is contended that the defendants have not

executed any sale deed dated 22.12.1986 in favour of the

plaintiff. In fact, the defendants have given only a temporary

licence to run the coffee curing activities in the schedule

property for a period of 20 years. The plaintiff made

misrepresentation and got executed the sale deed only with

an intention to grab the property. The defendants were

illiterates and they were not knowing the recitals of the sale

deed till filing of the suit. The defendants were under the

impression that they executed only the licence deed as they

do not know English and the plaintiff has played fraud on

them.

9. It is also contended that the plaintiff is not a

competent person to file the suit, since it is already taken

over by Tata Company. It is stated that the defendants are

ready to repay the licence fees paid by the plaintiff with

interest as the defendants have never transferred the right,

title or interest over the schedule property in favour of the

plaintiff. The plaintiff has never paid tax. The revenue records

stand in the name of defendant No.1. It is also contended

that the Court fee paid is insufficient and the suit is barred by

limitation. Therefore, it is prayed that the suit is liable to be

dismissed.

10. On the basis of these pleadings, the Trial Court

framed the following issues:

"1. Whether the plaintiff proves that, on 22-12-1986 defendant had executed a registered Sale deed in respect of suit property in his favour?

2. Whether the defendants prove that they executed only a licence deed and not Sale deed as alleged in para-12 of written statement?

3. Whether the suit is barred by law of limitation?

4. Whether the defendants prove that suit is barred by the Karnataka Land Reforms Act?

5. Whether the suit is valued properly and court fee paid thereon is correct?

6. Whether the plaintiff is entitled for declaration and mandatory injunction as prayed for?

7. What decree or order?"

11. The plaintiff got examined his power of attorney

holder as PW1 and got marked Exs.P1 to 13 in support of its

contention. The defendants have not examined any witnesses

nor led any evidence in support of their defence. The Trial

Court after taking into consideration all these materials on

record, answered issue Nos.1, 3 and 5 in Affirmative and

issue Nos.2 and 6 in Negative and dismissed the suit of the

plaintiff with costs. It is held that issue No.4 does not arise

for consideration in view of the order dated 12.10.2009 on

IA.6 filed under Order VII Rule 11 of CPC. Accordingly, the

suit of the plaintiff was dismissed.

12. As per order dated 12.10.2009, the application

filed by the defendants to reject the plaint was dismissed with

costs. It is further held that the Civil Court cannot record a

finding under Sections 79 and 80 of the Karnataka Land

Reforms Act and further the question as to whether the suit is

barred by limitation or not is a mixed question of law and fact

and therefore, IA.6 filed by the defendants is not

maintainable.

13. Being aggrieved by the dismissal of suit, plaintiff

preferred RA No.7 of 2010 and the First Appellate Court on re-

appreciation of the materials on record, came to the

conclusion that the plaintiff is entitled for the relief and

accordingly decreed the suit of the plaintiff by allowing the

appeal and setting aside the impugned judgment and decree

passed by the Trial Court. Being aggrieved by the same, the

defendants are before this Court in this second appeal.

14. Heard Sri Venkatesh R Bhagat, learned counsel for

the appellants and Sriyuths Manu Kulkarni, Abhinag S and N S

Sriraj Gowda, learned counsel for the respondent. Perused

the materials including the Trial Court records.

15. Learned counsel for the appellants submits that

the suit of the plaintiff is barred by limitation and the Trial

Court rightly held so. The sale deed is dated 22.12.1986. The

legal notice was issued as per Ex.P5 on 02.07.1996. The

defendants issued the reply on 17.07.1996, but the suit came

to be filed on 19.08.2005. About 19 years after execution of

the sale deed, the plaintiff has approached the Court and

therefore, the suit is liable to be dismissed.

16. Learned counsel submitted that the First Appellate

Court erroneously held that Article 113 of the Limitation Act is

applicable to the facts of the case. But in fact Article 58 of

the Limitation Act which is applicable, since the plaintiff has

sought for declaration. Learned counsel further submitted

that the authority of the plaintiff to file the suit is not stated in

the plaint. PW1 could not have represented the plaintiff nor

he could have deposed on its behalf. The power of attorney

deed relied on by the plaintiff was not in existence as on the

date when PW1 deposed before the Court. It is specifically

contended that PW1 ceased to be the employee of the

Company with effect from 12.07.2008. He was examined

before the Trial Court on 21.07.2008. As per the recitals

found in the general power of attorney deed - Ex.P1, the

same would ceased to exist on retirement of the employee. It

is further contended that the plaintiff is neither a Company

nor a firm as admitted by PW1 during cross examination. It

has no legal existence. Therefore, it could not have instituted

and maintained the suit. The Trial Court on proper

appreciation of the materials on record had dismissed the suit

of the plaintiff. The First Appellate Court committed an error

in allowing the appeal and decreeing the suit. Therefore, he

prays for allowing the second appeal and to dismiss the suit of

the plaintiff.

17. Per contra, learned counsel for the respondent

opposing the appeal contended that even though it was a suit

for declaration and mandatory injunction, it is basically a suit

under Section 26 of the Specific Relief Act seeking rectification

of the sale deed. No period of limitation is provided for

seeking such rectification of an instrument when a mistake

has crept in executing the same. The proviso appended to

Section 26 of the Act makes the position clear that at any

stage of the proceedings, the amendment of the pleading

seeking rectification of the instrument could be asked,

meaning thereby, no period of limitation would restrict the

right of the plaintiff to seek rectification of the instrument.

18. Learned counsel for the respondent placed

reliance on the decision in Amrik Singh Vs Jasvir Singh

and Others1 of Punjab and Haryana High Court in support of

his contention that rectification of an instrument is governed

by Section 26 of the Specific Relief Act to which no limitation

has been provided.

19. Learned counsel submitted that as per Section 22

of the Contract Act, any contract will not become void merely

because one of the party commits breach. The defendants

have admitted the execution of sale deed, but put up a claim

over the standing timber without any basis. The defendants

never disputed execution of the sale deed nor disputed the

contention of the plaintiff that by mistake the name of the

village is mentioned wrongly. As per recitals found in the sale

deed at condition No.2, it is obligatory on the part of the

RSA No.5379/2016 DD 12.09.2017

defendants to perform their duties as and when called for and

it is a continuing obligation which the defendants have not

performed. When there is continuing breach of contract and

tort, fresh period of limitation begins to run at every moment

of the time during which the breach or the tort as the case

may be continues as per Section 22 of the Limitation Act.

Therefore, it cannot be contended that the suit of the plaintiff

is barred by limitation. Learned counsel placed reliance on

the decision in Parvataneni Venkataramayya and Others

Vs Lanka Ramabrahmam and Another2, in support of his

contention.

20. Learned counsel further submitted that the

defendants have categorically admitted the status of the

plaintiff as the constituent of Tata Coffee Limited. Even while

filing the written statement, the authority of the plaintiff to file

and maintain the suit is not disputed. The plaintiff was

represented by its power of attorney holder, he being the

General Manager of the Tata Coffee Limited, of which the

plaintiff is a constituent company. Even though he was

already retired when he was examined as PW1 before the

1918 Law weekly 142

Trial Court, that will not disqualify him from deposing before

the Court about the facts which were in his knowledge. The

competence of PW1 was never disputed by the defendants.

When there is no specific denial in the written statement

about the facts pleaded in the plaint, it has to be taken as the

defendants have accepted the competence and the

contentions of the plaintiff.

21. Learned counsel placed reliance on the decision in

Muddasani Venkata Narasaiah (Dead) Through Legal

Representatives Vs Muddasani Sarojana3. He also placed

reliance on the decision in United Bank of India Vs Naresh

Kumar and Others4, to contend that the Company may be

expressive or by necessary implication rectifies the act of its

authorized agent and there is no necessity of any formal

power of attorney deed to enable PW1 to depose before the

Trial Court.

22. Learned counsel also submitted that the

appellants are not the aggrieved parties to invoke Section 100

of CPC and to prefer the appeal. They have not lost any right

(2016) 12 SCC 288

(1996) 6 SCC 660

nor an obligation is created by decreeing the suit of the

plaintiff. On that count also, the appeal is liable to be

dismissed. He placed reliance on the decision in Banarsi and

Others Vs Ram Phal5 in support of his contention.

23. Learned counsel further submitted that the

defendants cannot question the authority of the plaintiff to

seek rectification of the sale deed, since execution of the

same is never disputed nor it was challenged in accordance

with law. It is for the first time before this Court the

competency of the plaintiff and PW1 is raised and it is the

contention that the plaintiff is a non-existing entity. When

there is no pleadings nor proof, the defendants cannot be

permitted to raise such irrelevant contentions. Learned

counsel also submitted that the defendants have never

stepped into the witness box to deny the contention of the

plaintiff, adverse inference will have to be drawn against

them. The First Appellate Court on re-appreciation of the

materials on record arrived at a right conclusion and the

impugned judgment and decree do not call for interference.

Hence, he prays for dismissal of the appeal.

(2003) 9 SCC 606

24. The appeal was admitted vide order dated

23.06.2016 to consider the following substantial questions of

law:

"1. Whether the lower appellate Court is justified in reversing the judgment and decree of the trial Court decreeing the suit filed by the plaintiff, when the suit is barred by limitation in view of the Articles 58 and 113 of the Limitation Act?

2. Whether the lower appellate Court is justified in reversing the judgment and decree of the trial Court allowing the appeal, when there is a prohibition to purchase agricultural lands by the company under Section 109 read with Section 79A and B and 80 of Karnataka Land Reforms Act, 1961?

3. Whether the lower appellate Court is justified in reversing the judgment and decree of the trial Court in the facts and circumstances of the case?"

25. Even though substantial question of law No.2 is

raised with regard to the bar under Sections 79A and B and

80 of the Karnataka Land Reforms Act, no argument is

addressed by either of the parties. Even otherwise, the Trial

Court vide order dated 12.10.2009 recorded a finding that the

application IA.6 filed under Order VII Rule 11 of CPC seeking

to reject the plaint on the ground that the plaintiff is a

Company and therefore, it could not have purchased the

schedule property in violation of Sections 79 and 80 of the

Karnataka Land Reforms Act. The said finding of fact

recorded by the Trial Court was never challenged by the

defendants. Therefore, this substantial question of law is to

be answered against the appellants and in favour of the

respondent.

26. On going through the pleadings of the parties, it is

clear that the defendants have not denied specifically the

competence of the plaintiff to file and maintain the suit. In

para 7 of the written statement, the defendants denied the

contention taken by the plaintiff in para 5 of the plaint except

the averments that the Consolidated Coffee Limited of which

the plaintiff as a constituent was taken over by Tata Coffee

Limited. Therefore, there is a clear admission on the part of

the defendants about the constituent of the plaintiff. The

defendants cannot now deny the existence of the plaintiff and

contend that it is a non existent entity.

27. Ex.P5 is the legal notice got issued by the plaintiff

and addressed to defendant Nos.1 and 2 informing them

about the mistake that had crept in mentioning the name of

the village while executing the sale deed and calling upon

them to execute the rectification deed. Ex.P10 is the reply

notice got issued by defendant Nos.1 and 2 wherein para 1 of

legal notice - Ex.P5 is admitted as true. In para 1 of Ex.P5,

the plaintiff stated regarding execution of the registered sale

deed dated 22.12.1986 in respect of the schedule property by

defendant No.1 through defendant No.2 under the power of

attorney deed 15.07.1985.

28. Ex.P10 is an admitted document. When there is a

categorical admission regarding execution of the sale deed as

per Ex.P3, it will not lie in the mouth of the defendants to

raise contention that they have never executed the sale deed

and taking advantage of their illiteracy and innocence, the

document was fabricated, even though it was informed that

they are executing the licence deed. Therefore, I am of the

opinion that these contentions now raised by the learned

counsel for the appellants does not hold this Court for

considerable time in light of the categorical admissions

referred to above.

29. The only substantial question of law that remains

to be considered is with regard to the question of limitation as

it is contended that the suit of the plaintiff is barred by

limitation.

30. It is admitted fact that the sale deed as per Ex.P3

was executed and registered on 22.12.1986. The plaintiff got

issued the legal notice for the first time to the defendants as

per Ex.P5 on 02.07.1996 calling upon them to rectify the

mistake that has crept in the sale deed. Ex.P10 dated

17.07.1996 is the reply notice issued by the defendants

admitting the execution of the sale deed as stated in para 1 of

the notice. The suit was filed before the Trial Court by the

plaintiff on 19.08.2005. With these dates and events, let me

consider as to whether the suit of the plaintiff is barred by

limitation.

31. It is the specific contention of the plaintiff that the

suit is one for rectification of the sale deed, therefore,

governed by Section 26 of the Specific Relief Act, to which no

period of limitation has been provided. He placed reliance on

the decision in Amrik Singh (supra), wherein the Punjab and

Haryana High Court considered a matter where similar

contentions were raised with regard to the limitation in a suit

filed for rectification of an instrument. It was found that while

executing the sale deed, the name of the father was recorded

wrongly and therefore, the plaintiff sought for rectification of

the sale deed. The High Court held that rectification is

governed by Section 26 of the Specific Relief Act and no

period of limitation is provided. The contention of the

appellant therein that Article 113 of the Limitation Act applies

to the facts was rejected.

32. In Parvataneni (supra), the High Court of

Judicature at Calcutta considered a situation where the

defendants sold the property in favour of the plaintiff, but the

physical possession of the property could not actually be

delivered in favour of the plaintiff as it was in possession of

the tenant who asserted right over the property. A suit for

ejectment was filed against the tenant and a decree was

obtained. The decree was set aside by the First Appellate

Court and the same was confirmed by the High Court.

Thereafter, a suit was filed by the plaintiff seeking

cancellation of the same and for damages in the alternative.

The said suit was also dismissed on the ground of limitation.

When the matter came up before the High Court, reliance was

placed upon a clause in the sale deed where the seller

undertook to clear all dispute of any kind touching the land in

question at his own cost and assured that the plaintiff would

be allowed ownership over the property uninterruptedly. This

clause in the sale deed was held to be a continuing covenant

as the duty is cast upon the seller to keep the property free

from any such encumbrances. It is further held that even

though the cause of action might have arisen as soon as there

was a breach, the injured party is not bound to sue once for

all and prospective damages for breach of the covenant.

Therefore, it is held that the suit filed after long lapse of 6

years is not barred by limitation.

33. As per Section 22 of the Limitation Act, where

there is continuing breach of contract or where there is

continuing tort, a fresh period of limitation begins to run at

every moment at the time during which the breach or the tort

as the case may be continues. In the sale deed Ex.P3, which

is an admitted document, at page 5 clause (2) reads as

under:

"The vendors undertake to take all steps and do all deeds and things to have the record of rights of the said properties changed to the name of the purchaser, including rendering necessary co-operation when called for by revenue authorities and they have executed separate application by themselves and by their father Sri V Thimappa in whose name the record of rights stands toady to change the said record of rights to be filed before the Tahsildar, Somwarpet or Revenue Inspector, Kushalnagar as the case may be, for transfer of patta of the properties conveyed hereunder, to the name of the above purchaser."

34. A bare reading of the above clause found in the

sale deed, the execution of which is categorically admitted by

the defendants in the reply notice Ex.P10, speaks about the

obligation that was imposed on the vendors. By admitting the

contents of para 1 of the legal notice - Ex.P5, while replying

as per Ex.P10, now it cannot be disputed that there is an

unambiguous undertaking by the vendors to do all necessary

acts and deeds to see that the record of rights and the patta

changes in the name of the purchaser i.e., the plaintiff. When

there is breach of this contract, it will be a continuing breach

as referred under Section 22 of Limitation Act and therefore,

fresh period of limitation begins to run at every moment of

the time during which such breach continues.

35. In view of the above, I do not find any merits in

the contention raised by the learned counsel for the

appellants. The conduct of the defendants in admitting

execution of sale deed at the earliest point of time while

issuing the reply as per Ex.P10 and taking untenable

contentions while filing the written statement is to be taken

into consideration. It is also to be noted that defendants have

never chosen to step into the witness box to speak about

those defence. Moreover, even though it is contended that

taking advantage of the illiteracy and ignorance of the

defendants, the plaintiff got the document as sale deed even

though it was purported to be a temporary licence for a period

of 20 years, the defendants have not taken any steps to

challenge the registered sale deed or to recover the

possession of the schedule property till date. Admittedly, the

plaintiff continues to be in possession of the schedule property

without any interference. Therefore, I am of the opinion that

substantial question of law No.1 regarding limitation is to be

answered by holding that the case of the plaintiff is governed

by Section 22 of the Limitation Act and therefore, no period of

limitation is prescribed to hold that the suit is barred by

limitation. It is answered accordingly.

36. In view of the discussions held above, I proceed

to pass the following:

ORDER

(i) The appeal is dismissed with costs throughout.

(ii) The judgment and decree dated 20.03.2013

passed in RA No.7 of 2010 on the file of the learned District

Judge, Kodagu, Madakeri, is hereby confirmed.

(iii) Consequently, the judgment and decree dated

07.01.2010 passed in OS No.121 of 2005 on the file of the

learned Civil Judge (Sr.Dn.) at Madikeri, is set aside and the

suit of the plaintiff is decreed as prayed for.

Registry to send back the Trial Court records along with

copy of the judgment.

Sd/-

JUDGE

*bgn/-