H Anantha Murthy vs The State Of Karnataka
2023 Latest Caselaw 314 Kant

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                                                  RFA No. 397 of 2007




                  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                      DATED THIS THE 5TH DAY OF JANUARY, 2023

                                      BEFORE
                    THE HON'BLE MR JUSTICE N S SANJAY GOWDA
                  REGULAR FIRST APPEAL NO. 397 OF 2007 (DEC/INJ)

             BETWEEN:

             1      H.ANANTHA MURTHY
                    SINCE DECEASED HIS LR'S

             1(a) CHETHAN
                  S/O LATE H.ANANTHA MURTHY
                  AGED ABOUT 32 YEARS

             1(b) H.KANTHA MURTHY
Digitally         W/O. LATE ANANTHA MURTHY
signed by         AGED ABOUT 58 YEARS
PANKAJA S
Location:    1(c) H.ARCHANA
HIGH COURT
OF                D/O LATE H.ANANTHA MURTHY
KARNATAKA         AGED ABOUT 30 YEARS

                  ALL ARE R/AT NO.30
                  'YESHASWINI'. NEAR KATTE SUBBANNA BUS STOP
                  SHIVAPPA NAYAKA BADAVANE 'B' BLOCK
                  ALKOLA, SHIMOGA-577 204
                                                      ...APPELLANTS
             (BY SRI. HARISH KUMAR M.S., ADVOCATE)

             AND:

             1.   THE STATE OF KARNATAKA
                  BY ITS CHIEF SECRETARY
                  VIDHANA SOUDHA, DR B.R.AMBEDKAR VEEDHI
                  BANGALORE -560 001
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                                     RFA No. 397 of 2007




2.   THE REVENUE COMMISSIONER
     AND SECRETARY TO
     THE GOVERNMENT OF KARNATAKA
     6TH FLOOR, BLOCK, 22ND STAGE
     WEST WING, MULTI- STORIED BUILDING
     DR B.R.AMBEDKAR VEEDHI
     BANGALORE-560 001

3.   THE DEPUTY COMMISSIONER
     SHIMOGA DISTRICT
     SHIMOGA-577 201

4.   THE KARNATAKA SARVODAYA MANDALA
     GANDHI BHAVAN CAMPUS
     NEAR SHIVANANDA STORES
     KUMARA PARK EAST
     BANGALORE -560 001

5.   THE SECRETARY TO GOVT OF KARNATAKA
     EDUCATION DEPARTMENT,
     MULTI STORIED BUILDING
     DR B.R.AMBEDKAR VEEDHI
     BANGALORE -560 001

6.   THE COMMISSIONER FOR PUBLIC INSTRUCTIONS
     SHIMOGA DISTRICT
     SHIMOGA -577 201

7.   THE DEPUTY DIRECTOR OF PUBLIC
     INSTRUCTIONS
     SHIMOGA DISTRICT
     SHIMOGA -577 201

8.   THE GOVT MODEL HIGHER PRIMARY SCHOOL
     KONANDURU, THRITHAHALLI TQ
     SHIMOGA DIST -577 201

9.   THE GOVT. MALLIKARJUNA LOWER
     PRIMARY SCHOOL,
     KONANADURU, THRITHAHALLI TQ
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                                          RFA No. 397 of 2007




     BY ITS HEAD MASTER
     SHIMOGA DIST -577 432
                                             ...RESPONDENTS

(BY SRI. H.K.RAVI FOR
     SRI.H.KANTHARAJA, ADVOCATE FOR R4
     SRI.SHIVANANDA D.S., AGA FOR R1 TO R3 & R5 TO R9)

     THIS RFA FILED U/S 96 OF CPC AGAINST THE
JUDGEMENT AND DECREE DT.13.09.2006 PASSED IN
OS.NO.259/1998 ON THE FILE OF THE II ADDL. CIVIL JUDGE
(SR.DN.) SHIMOGA, DISMISSING THE SUIT FOR DECLARATION
AND INJUNCITON AND ETC.

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

                          JUDGMENT

1. The plaintiff is in appeal.

2. The plaintiff instituted the suit in which he sought for

a declaration that he was the absolute owner of the

property bearing Sy.No.266 measuring 11 acres 39 guntas

situate at Konanduru Village, Agrahara Hobli, Thirthahalli

Taluk. He also sought for a declaration that the Gift Deed

executed on 16.05.1956 was not binding on the plaintiff.

Consequently, a decree for injunction was also sought.

RFA No. 397 of 2007

3. It was the case of the plaintiff that the land bearing

Sy.No.266 was a joint family property and there was a

partition effected on 28.07.1955 amongst the members of

the family by way of a registered Partition Deed. It was his

case that he was a minor aged about 12 years as on that

date and his father Phaniyappa Jois had participated in the

partition as his guardian. It was stated that in the said

partition, the land bearing Sy.No.266 measuring 11 acres

39 guntas was allotted as his share and his father had not

been allotted any share.

4. He contended that he attained majority on

16.03.1962 and his father was managing the affairs of the

plaintiff and his father had executed the registered Gift

Deed on 16.05.1956 in favour of Rajapramukh of Mysore

to facilitate the implementation of new education scheme

and reforms undertaken by the Government of Mysore. He

contended that the said Gift Deed to an extent of 4 acres

was not binding upon him since the entire property had

RFA No. 397 of 2007

been allotted in his favour and not to his father. He also

contended that possession of the property was never

handed over to the Government.

5. The suit was contested by the State denying the

averments of the plaintiff. It was contended that the suit

was barred by law of limitation inasmuch as the Gift Deed

of the year 1956 was sought to be challenged by filing a

suit 46 years thereafter in the year 1998.

6. The Trial Court framed seven issues and the plaintiff

was also examined and the matter was set down for cross-

examination and at that stage, the Government Pleader

insisted that the question of limitation i.e., issue No.5

should be taken up for consideration and the Trial Court

accordingly took up issue No.5 and had proceeded to pass

the impugned judgment holding that the suit was barred

by limitation.

7. Learned counsel for the appellant contends that the

Trial Court has failed to notice that question of limitation

RFA No. 397 of 2007

was always a mixed question of fact and law and the Trial

Court could not have passed the impugned order on the

basis of the assertions of the Government Pleader. He

submitted that essentially the prayer of the plaintiff was

that he was the owner of entire extent of 11 acres 39

guntas and the Trial Court was carried away by the fact

that the Gift Deed in respect of 4 acres only was

challenged and considered the question of limitation only

with reference to the gift deed. He submitted that the Trial

Court could not have decided the question of limitation

until the trial was completed in all respects.

8. Learned Additional Government Advocate, however,

supported the impugned order and contended that on a

plain reading of the plaint itself, it was clear that the suit

was barred by limitation.

9. It is to be stated here that it is settled law that the

question of limitation is always a mixed question of law

and fact and unless from the admitted pleas, the prayer in

RFA No. 397 of 2007

the plaint is found to be prima facie barred by limitation,

the suit cannot normally be dismissed on the ground of

limitation at the threshold without considering all the

issues involved in the suit.

10. In the instant suit, the plaintiff had contended that

he was the owner of entire extent of 11 acres 39 guntas,

out of which, a portion of 4 acres had been gifted to the

Government. Even if the plea regarding the Gift is to be

negatived, the Trial Court would, nevertheless, would still

have to consider the plea in respect of remaining extent.

The Trial Court has not even considered the plea of the

plaintiff that the entire extent of 11 acres 39 guntas had

been allotted to his share under the registered Partition

Deed dated 28.07.1955 and therefore, there could have

been no gift executed by his father in favour of the State.

11. In view of the fact that none of the pleas raised by

the plaintiff have been considered and the fact that the

Partition Deed has also not been considered, the impugned

RFA No. 397 of 2007

judgment and decree cannot be sustained and the same

are accordingly set aside. The matter is remitted back to

the Trial Court with a direction to reconsider the matter

afresh and to record a finding on all the issues on the

basis of the evidence adduced and decide the suit in

accordance with law.

The appeal is accordingly allowed.

SD/-

JUDGE

PKS CT:AN