M S Susheelamma vs Smt Adiratnamma
2023 Latest Caselaw 5106 Kant

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                                                   NC: 2023:KHC:26741
                                                      RFA No. 344 of 2008




                    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                       DATED THIS THE 1ST DAY OF AUGUST, 2023

                                          BEFORE
                       THE HON'BLE MR JUSTICE V SRISHANANDA
                        REGULAR FIRST APPEAL NO. 344 OF 2008
               BETWEEN:

               1.    M S SUSHEELAMMA
                     AGED ABOUT 61 YEARS,
                     W/O M N SATHYTANARAYANA SHETTY

               2.    M N SATHYANARAYANA SHETTY
                     AGED ABOUT 65 YEARS
                     S/O LATE NANJAIAH SHETTY

                     APPELLANTS 1 TO 2 ARE
                     REPRESENTED BY THEIR SON GPA HOLDER
                     M S NAGARAJU GUPTHA
                     AGED ABOUT 32 YEARS
                     S/O M N SATHYANARAYANA SHETTY,
                     R/AT NO.11/32, EASTERN PORTION,
Digitally            NEW BHOOPASANDRA EXTENSION,
signed by            11 E MAIN, 60 FEET ROAD
SUMITHRA             SANJAYNAGAR, BANGALORE-560 094.
R
Location:
High Court                                                  ...APPELLANTS
of Karnataka   (BY SRI. B S MANJUNATHA AND
               SRI. KARTHIK H.R., ADVOCATES)


               AND:

               1.    SMT ADIRATNAMMA
                     W/O R A SRIRAMAIAH

               2.    R A SRIRAMAIAH
                     S/O LATE ASWATHAIAH SHETTY
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                                           NC: 2023:KHC:26741
                                              RFA No. 344 of 2008




    11/32, WESTERN PORTION
    NEW BHOOPASANDRA EXTENSION
    11E MAIN, SANJAYNAGAR,
    BANGALORE.
                                                  ...RESPONDENTS

(BY SRI. C SHANKAR REDDY FOR R1-2., ADVOCATE)
     THIS RFA IS FILED U/S 96 OF CPC AGAINST THE
JUDGEMENT AND DECREE DATED 29.06.2007 PASSED IN
OS.NO.7560/2005 ON THE FILE OF THE V ADDL. CITY CIVIL
JUDGE, CCH-13, BANGALORE CITY, DISMISSING THE SUIT FOR
DECLARATION AND CONSEQUENTIAL RELIEF OF PERMANENT
INJUNCTION.

     THIS APPEAL IS COMING ON FOR HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:


                         JUDGMENT

Heard Sri learned counsel B.S.Manjunath for

appellant and Sri Shankar Reddy for respondents.

2. Appeal filed by the unsuccessful plaintiff

challenging the order dated 29.06.2007 on issue No.2

passed in O.S.No.7560/2005 and holding issue No.2 in

negative and consequently dismissing the suit of the

plaintiff as barred by limitation.

NC: 2023:KHC:26741 RFA No. 344 of 2008

3. Brief facts of the case are as under:

Plaintiffs filed a suit for declaration and injunction

with the following prayer:

"Wherefore, the plaintiff respectfully prays that this Hon'ble Court may please to pass a judgment and decree;

(i) Declaring that plaintiffs have perfected their title to the suit schedule property by adverse possession,

(ii) For permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit schedule property by the plaintiff.

(iii) To award costs and grant such other reliefs as this Hon'ble Court may deem fit in the facts and circumstances of the case in the interest of justice and equity."

4. Earlier to filing of the suit the plaintiffs had filed

O.S.No.3518/2002 which came to be dismissed for non-

payment of the requisite Court fee on 01.08.2005. A

NC: 2023:KHC:26741 RFA No. 344 of 2008

Miscellaneous petition was filed in Miscellaneous

No.565/2005 seeking for restoration of the said

O.S.No.3518/2002 which also came to be dismissed as not

maintainable in view of Order 7 Rule 13 of CPC. Later on,

suit O.S.No.7560/2005 is filed with the aforesaid prayer.

5. It is contended that the defendants are

daughter and son-in-law of the plaintiffs. Property bearing

Site No.11, Assessment No.32, Khata No.306, situated at

Bhoopsandra Village, Kasaba Hobli, Bengaluru North

Taluk, measuring East to west 21 ft x 6 ft and North to

South 43 ft, in all 928.8 sq ft with a residential building

(16 squares) is the subject matter of the suit.

6. According to the plaintiffs, based on the power

of attorney executed in favour of Sri Venkatesh by original

owner Chikkavenkatappa, Venkatesh sold the suit property

in favour of the defendant No.2 who is the son-in-law of

plaintiffs. It is further contended that defendant No.2 in

turn executed a power of attorney and wanted to sell the

portion of property which is suit property for a valuable

NC: 2023:KHC:26741 RFA No. 344 of 2008

consideration of Rs.1,00,000/- executed a power of

attorney and an affidavit. Dispute arose between the

parties with regard to the power of attorney. It is

contended by the plaintiff that in the year 1999 there was

a cancellation of the power of attorney and affidavit by the

defendants in favour of the plaintiffs resulting in plaintiffs

approaching the Court of law first in the year 2002 and

subsequently in the year 2005. It is also contended on

behalf of the plaintiffs that at the time of execution of the

power of attorney and the affidavit defendant No.2 had

taken sum of Rs.1,00,000/-, a sale deed is also executed

but it was not registered and plaintiffs were put into the

possession of the property.

7. After dismissal of O.S.No.3518/2002 and the

Miscellaneous No.565/2005, a comprehensive suit in

O.S.No.7560/2005 came to filed by the plaintiffs seeking

the aforesaid prayer.

NC: 2023:KHC:26741 RFA No. 344 of 2008

8. Suit was contested by filing the detailed written

statement inter alia taking a plea that the suit is barred by

time in view of Section 58 of the Limitation Act.

9. After pleadings were complete, trial Court

raised necessary issues and issue No.2 reads as under:

"whether the suit is barred by time in view of Section 58 of the Limitation Act?"

10. Parties were heard with regard to the question

of limitation and after detailed argument, by the impugned

order dated 29.10.2007, the learned trial Judge dismissed

the suit by holding issue No.2 in affirmative.

11. The learned trial Judge also referred to para

No.19 of the plaint which is culled out in the impugned

order. For the sake of certainty and clarity said paragraph

is extracted hereunder:

"19. The defendants attempted to illegally dispossess the plaintiffs and grab the suit schedule property to make unjust gain. The plaintiffs filed a suit O.S.No.3518/2002. In the

NC: 2023:KHC:26741 RFA No. 344 of 2008

said suit the defendants appeared and have filed their written statements. The defendants have admitted that the plaintiffs are in possession of the suit schedule property. The plaint in O.S.No.3518/2002 was rejected on 01.08.2005 under Order VII Rule 11 CPC for non-payment of Court fees. There afterwards the plaintiffs filed Misc.565/2005 for recalling the order of 01.08.2005. However, by an order dated 26.09.2005 in Misc.565/2005 it was observed that the Rule 13 of Order 7 CPC enable the plaintiff to file the plaint with requisite Court fee."

12. On perusal of the aforesaid paragraph and in

the light of in Miscellaneous No. 565/2005 came to be

dismissed and in the light of the fact that there is an

averment in the plaint that in the year 1999 photocopy of

the cancelled power of attorney and affidavit is supplied to

the plaintiffs and plaintiffs contention that they were put

into possession of the property in the year 1987, the suit

would not have been dismissed only on the question of law

as issue No.2 was to be decided along with the main as it

required leading of evidence in view of the disputed facts.

NC: 2023:KHC:26741 RFA No. 344 of 2008

It is settled principles of law and requires no emphasis

that question of limitation where there are serious

disputed facts, is a mixed question of law and facts and

adducing evidence by the parties is utmost necessary to

arrive at a finding that suit is barred by limitation or not.

13. Sri Shankar Reddy, learned counsel for

respondents however tried to support the impugned order

by contending that on the face of it if the suit is barred by

limitation, there is no necessity for the trial Court to

ponder over other issues and to know the judgment on all

issues.

14. Such a proposition of law is no doubt true but in

the case on hand, since the plaintiffs have categorically

contended that there was a power of attorney executed by

defendant No.2 in their favour and they were put in

possession of property from the year 1987 and the same

is evident by canceling the power of attorney by sending

the photocopies of the cancelled power of attorney and the

affidavit in the year 1999, this Court is of the considered

NC: 2023:KHC:26741 RFA No. 344 of 2008

opinion that recording of evidence of parties is utmost

necessary for trashing out the real dispute among the

parties. Accordingly, this Court is of the considered

opinion that appeal needs to be allowed and matter be

remitted for disposal in accordance with law. Hence,

following:

ORDER

(i) Appeal is allowed.

(ii) Impugned order dated 29.06.2007 passed by

the V Additional City Civil Judge (CCH-13) at Bangalore

City, is hereby set aside.

(iii) Matter is remitted to the trial Court for expedite

disposal in accordance with law. It is made clear that

parties are at liberty to lead evidence on all issues and

issue of limitation including the issue of limitation

uninfluenced by the order passed by the learned trial

Judge dated 29.06.2007 and the observations made by

this Court during the course of this order and dispose of

the suit in accordance with law.

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NC: 2023:KHC:26741 RFA No. 344 of 2008

(iv) Having regard to the fact that the suit is of the

year 2007, the trial Court shall expedite the disposal of the

suit and suit shall be disposed of on or before

31.03.2024.

(v) Needless to emphasize the parties shall

cooperate for the same.

(vi) Parties shall appear before the trial Court

positively on 22.08.2023 without further notice.

Sd/-

JUDGE

HB