Karnataka High Court
Dr K Krishnaswamy vs Dr.S.Rajendra on 2 March, 2023
Bench: M G Uma
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2 ND DAY OF MARCH, 2023
BEFORE
THE HON'BLE MRS. JUSTICE M G UMA
REGULAR SECOND APPEAL NO. 1210 OF 2021 (DEC/INJ)
C/W
REGULAR SECOND APPEAL NO. 229 OF 2022 (DEC/INJ)
IN R.S.A.NO. 1210/2021
BETWEEN:
DR. K KRISHNASWAMY
AGED ABOUT 67 YEARS
MBBS., MS., DOMS EYE SURGEON
KRUPA NURSING HOME
NO. 2050/A, 2ND CROSS
SUBHASH NAGARA
MANDYA - 571 401
... APPELLANT
(BY SRI: SAMPAT ANAND SHETTY, ADVOCATE)
AND:
1. DR.S.RAJENDRA
AGED ABOUT 56 YEARS
GNANODAYA PUBLIC SCHOOL
SY. NO. 413/4
BELAVADI VILLAGE
NAGUVANAHALLI POST
SRIRANGAPATNA TALUK
MANDYA DIST - 571 438
2. N SRINIVASAIAH
AGED ABOUT 84 YEARS
S/O LATE DODDA NEELAIAH
NAGUVANAHALLI POST
2
SRIRANGAPATNA TALUK
MANDYA DIST - 571 438
... RESPONDENTS
(BY SRI: SRINIVASA .D.C., ADVOCATE FOR C/R-1
NOTICE TO R2 IS DISPENSED WITH)
THIS R.S.A. IS FILED UNDER SECTION 100 READ WITH
ORDER XLII RULE OF CPC AGAINST THE JUDGMENT AND DECREE
DATED 29.09.2021 PASSED IN RA.NO.9/2020 ON THE FILE OF THE
PRINCIPAL SENIOR CIVIL JUDGE AND JMFC, SRIRANGAPATNA,
REJECTING THE APPEAL AND CONFIRMING THE JUDGMENT AND
DECREE DATED 20.01.2020 PASSED IN OS NO.335/2012 ON THE
FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, SRIRANGAPATNA.
IN R.S.A.NO. 229/2022
BETWEEN:
SRI. DR. RAJENDRA
S/O. N. SOMASHEKHARAIAH
AGED ABOUT 57 YEARS
GNANODAYA PUBLIC SCHOOL
BELAVADI, NAGUVANAHALLI
SRIRANGAPATNA TALUK
MANDYA DISTRICT - 571 438.
... APPELLANT
(BY SRI: SRINIVASA .D.C., ADVOCATE)
AND:
1. SRI. DR. K. KRISHNASWAMY
S/O. LATE. KRISHNAPPA
AGED ABOUT 67 YEARS
EYE SPECIALIST
KRUPA NURSING HOME
NO. 2050/A, 2ND CROSS
SUBHASH NAGAR
MANDYA - 571 401.
2. SRI. N. SRINIVASAIAH
S/O. DODDA NEELAIAH
AGED ABOUT 84 YEARS
NAGUVANAHALLI VILLAGE
KASABA HOBLI
SRIRANGAPATNA TALUK
MANDYA DISTRICT - 571 438.
... RESPONDENTS
(BY SRI: SAMPAT ANAND SHETTY, ADVOCATE FOR R-1
NOTICE TO R2 IS DISPENSED WITH)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 29.09.2021 PASSED IN
RA.NO.9/2020 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE AND JMFC, SRIRANGAPATNA, REJECTING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 20.01.2020
PASSED IN OS NO.335/2012 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND JMFC., SRIRANGAPATNA.
THESE R.S.A.s HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 07.02.2023 COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
COMMON JUDGMENT
The plaintiff is before this Court being aggrieved by the
judgment and decree dated 20.01.2020 passed in OS No.335
of 2012 on the file of the learned Principal Civil Judge and
JMFC, Srirangapatna (hereinafter referred to as 'the Trial
Court' for brevity), dismissing the suit filed by him for
declaration and for permanent injunction, which was
confirmed by the judgment and decree dated 29.09.2021
passed in RA No.9 of 2020 on the file of the learned Principal
Senior Civil Judge and JMFC, Srirangapatna (hereinafter
referred to as 'the First Appellate Court for brevity).
2. Being aggrieved by the observations made while
answering issue Nos.1 to 3 by the Trial Court, defendant No.1
filed cross-objection before the First Appellate Court, which
came to be dismissed and therefore, he has preferred RSA
No.229 of 2022 against the plaintiff.
3. For the sake of convenience, parties are referred
to as per their status and rank before the Trial Court.
4. Brief facts of the case are that, the plaintiff filed
OS No.335 of 2012 before the Trial Court against defendant
Nos.1 and 2 seeking correction of the survey number, which
was wrongly mentioned as 372/1 instead of mentioning as
376/1P2, in the registered sale deed dated 13.10.1952,
executed by defendant No.2 in favour of the father of the
plaintiff; to declare that the plaintiff is the absolute owner in
possession of the suit property; to grant perpetual injunction
restraining the defendants from interfering with the peaceful
possession and enjoyment of the property; for grant of
mandatory injunction to remove the barbed wire fence put to
the schedule property and to remove the unauthorized
construction put up by defendant No.1 by encroaching the
schedule property in the portion identified as ABCD in the
sketch appended to the plaint. The schedule appended to the
plaint describes 39 guntas of land bearing Sy.No.376/1P2 of
Belavadi Village, Srirangapatna Taluk, with boundaries
mentioned therein.
5. It is contended by the plaintiff that the schedule
property had fallen to the share of defendant No.2 under the
registered partition deed dated 01.09.1950 and the same was
sold in favour of the father of the plaintiff under the registered
sale deed dated 13.10.1952, to meet his family necessities.
The possession of the property was handed over to the
purchaser and since then he was in peaceful possession and
enjoyment of the property. On 20.02.1968, there was a
partition between the father of the plaintiff and his children
and the schedule property had fallen to the share of the father
of the plaintiff. He died on 01.10.1981 and the mother of the
plaintiff also died on 10.03.2001.
6. It is contended that after the death of his father,
the plaintiff filed suit OS No.76 of 2010 seeking partition and
separate possession of the schedule property and other
properties and at that time, plaintiff came to know that a
mistake had crept in, while describing the schedule property
and in mentioning the survey number. In fact, defendant
No.2 was owning 39 guntas of land in Sy.No.376/1 towards
eastern side, which had fallen to his share in the partition
dated 01.09.1950, but by mistake the same was described as
Sy.No.372/1. It is contended that since the father of the
plaintiff was an illiterate, he had not noticed the mistake
during his lifetime. When the plaintiff came to know about
this mistake after filing OS No.76 of 2010, he applied to the
Tahsildar to set right the mistake.
7. It is stated that, a proceedings in case No.58 of
2005-06 was initiated by defendant No.1 after he purchasing
the property from defendant No.2 and the brother of the
plaintiff had contested the same. However, in the said
proceedings, the order came to be passed on 21.12.2005,
rejecting the claim of defendant No.1 to mutate his name to
the schedule property. It is contended that in spite of the
order passed by the Tahsildar, the revenue record was
mutated in the name of defendant No.1 as per MR
No.20/2006-07. At that time, the brother of the plaintiff was
suffering from paralysis and therefore, the plaintiff filed an
application to implead himself as a party in the proceedings
that was pending before the Tahsildar. As per order dated
13.04.2011, the Tahsildar closed the proceedings on the
ground that the dispute between the parties is of civil nature.
The plaintiff challenged the said order before the Assistant
Commissioner in R.Misc.No.6 of 2011-12, which came to be
dismissed directing the plaintiff to approach the Civil Court.
8. It is contended that defendant No.2 by taking
advantage of wrong mentioning of survey number in the sale
deed dated 13.10.1952 sold the schedule property in favour
of defendant No.1 by executing the registered sale deed
12.09.2005 and therefore, the same is not a valid sale deed.
Defendant No.2 had no manner of right, title or interest over
the schedule property after executing the sale deed dated
13.10.1952. It is contended that since the temporary
injunction granted in OS No.76 of 2010 and since at the same
time, the brother of the plaintiff was bed ridden and the
plaintiff was busy in looking after him, defendant No.1
encroached over the schedule property and put up a barbed
wire fence in the portion mentioned as ABCD in the sketch.
Therefore, the plaintiff filed the suit against defendant Nos.1
and 2 for the above said relief's.
9. Defendant No.1 has appeared before the Trial
Court and filed written statement denying the contentions
taken by the plaintiff. It is admitted that the schedule
property was acquired by defendant No.2 under the partition.
It is also admitted that defendant No.2 sold the same in
favour of defendant No.1 under the registered sale deed on
12.09.2005 and contended that, since then, he is in peaceful
possession and enjoyment of the schedule property. The
property was mutated in his name and he converted it for
non-agricultural purposes. He constructed a building and
running a school since June - 2008. It is further contended
that the barbed wire fence was put up by defendant No.1
about 5 years back to protect his building and demark the
play ground. Defendant No.1 contended that he has invested
crores of rupees over the schedule property for its
development and the plaintiff has no right over the same. It
is also contended that the plaintiff has approached the Court
with false allegations seeking claim over the schedule
property. It is contended that all the legal representatives of
late Krishnappa i.e., father of the plaintiff are not made as
parties in the suit. The suit is barred by limitation. Hence, he
prays for dismissal of the suit.
10. On the basis of these pleadings, the following
issues came to be framed by the Trial Court:
1. Whether the plaintiff proves that,
nd
the 2 defendant has sold the suit schedule
property in favour of his father under the
registered sale deed dated 13-10-1952 and his
father was in possession and enjoyment of the
same?
2. Whether the plaintiff further proves
that, he is the absolute owner and in possession
of the suit schedule property after the suit
schedule property after the death of his father?
3. Whether the plaintiff further proves
that due to mistake of the scribe, the Sy. No. of
the suit schedule property in sale deed was
wrongly mentioned as 372/1 instead of 376/1?
4. Whether the plaintiff further proves
that the alleged encroachment by the 1st
defendant?
5. Whether the plaintiff further proves
that the alleged interference by the defendants?
6. Whether the suit is bad for non-
joinder of necessary parties as contended in
written statement of the 1st defendants?
7. Whether this court has pecuniary
jurisdiction to try this suit?
8. Whether the plaintiff is entitle for
relief as sought for in the plaint?
9. What Order or Decree.?"
11. Plaintiff examined himself as PW1 and got marked
Exs.P1 to 18 in support of his contention. Defendant No.1
examined himself as defendant No.1 and got marked Exs.D1
to 58 in support of his defence. The Trial Court after taking
into consideration all these materials on record, answered
issue No.1 partly in the affirmative, issue Nos.2, 4, 5, 7 and 8
in the Negative and Nos.3 and 6 in the Affirmative.
Accordingly, dismissed the suit of the plaintiff with cost.
12. Being aggrieved by the same, the plaintiff has
preferred RA No.9 of 2020 before the First Appellate Court. In
the meantime, defendant No.1 being aggrieved by the
observations made by the Trial Court while answering issue
Nos.1 to 3 filed cross objection. The First Appellate Court on
re-appreciation of the materials on record, dismissed the
appeal and also the cross objection, confirming the judgment
and decree passed by the Trial Court. Being aggrieved by the
same, the plaintiff has preferred RSA No.1210 of 2021 and
defendant No.1 has preferred RSA No.229 of 2022.
13. Heard Sri Sampat Anand Shetty, learned counsel
for the appellant and Sri D C Srinivasa, learned counsel for
respondent No.1 and vice-versa. Perused the materials
including the Trial Court records and the written submissions
submitted by the learned counsel for the appellant.
14. Learned counsel for the appellant contended that
the father of the plaintiff was an illiterate and he could not
notice the mistake crept in, while describing the schedule
property in the sale deed as Sy.No.372/1 instead of
Sy.No.376/1P2. After his death, when the plaintiff filed the
suit OS No.76 of 2010 for partition of the properties including
the schedule property, he came to know about the mistake
and immediately thereafter, filed the suit OS No.335 of 2012,
therefore, the suit was within time. Moreover, the Trial Court
has not framed specific issue to consider bar of limitation in
filing the suit. Defendant No.2 has not contested the suit as
he had executed the sale deed in respect of the schedule
property and not in respect of Sy.No.372/1 which was not at
all owned by him at any point of time. However, taking
advantage of the mistake committed in describing the
schedule property as bearing Sy No.372/1, sold the schedule
property in favour of defendant No.1 on 12.09.2005. When
defendant No.2 had no right whatsoever after execution of the
sale deed in favour of the father of the plaintiff, he could not
have sold the schedule property in favour of defendant No.1.
Defendant No.1 will not get any right, title or interest over the
schedule property. When defendant No.1 sought for change
of revenue entry in his favour on the basis of the registered
sale deed, a dispute was raised before the Tahsildar who
finally held that the dispute is of civil nature. This finding was
affirmed by the Assistant Commissioner and directed both the
parties to approach the Civil Court. In the meantime,
defendant No.1 encroached a portion of the schedule property
and put up the barbed wire fence. Therefore, the plaintiff
filed the present suit against defendant Nos.1 and 2 to get the
sale deed rectified and for other consequential relief's.
15. Learned counsel further submitted that the Trial
Court and the First Appellate Court committed an error in
appreciating the materials on record in proper perspective.
Even though the Trial Court held issue No.1 partly in the
affirmative and issue No.3 in the affirmative holding that
defendant No.2 sold the schedule property by showing its
boundary, but wrongly mentioning the survey number as
372/1 instead of 376/1P2, committed an error in answering
issue No.2 in the Negative. The Trial Court has also not
properly appreciated the decision in Tibba Boyi @ Kariya
and Others Vs K Venkatappa 1, wherein, it is categorically
held that the suit falling under Section 27 of the Specific Relief
Act, could be filed within three years from the date of
knowledge of fraud or mutual mistake. The Trial Court even
though categorically held that defendant No.2 has not
produced any document to show that he was owning
Sy.No.372/1 to execute the sale deed in respect of the said
(1987) 2 Kant LJ 379
property and therefore, the plaintiff proved that a mistake has
crept in while describing the schedule property in the sale
deed, failed to grant the relief in favour of the plaintiff. The
finding of the Trial Court that since all the legal
representatives of the deceased - Krishnappa are not made as
parties in the suit, the suit should fail is erroneous, perverse
and is liable to be set aside.
16. Learned counsel further submitted that defendant
No.2 had issued legal notice as per Ex.P5 during Januray-
2004 to the brother of the plaintiff alleging interference. A
reply was issued as per Ex.P6 on 03.02.2004 by the brother
of the plaintiff asserting the right over the schedule property.
Immediately thereafter, defendant No.2 sold it in favour of
defendant No.1 under the registered sale deed. That shows
the conduct of defendant No.2. Defendant No.1 is not a
bonafide purchaser for value without notice as he had not
made any enquiry before purchase of the property.
17. Learned counsel further submitted that the Trial
Court held issue No.1 partly in the Affirmative and thereby the
contention of the plaintiff that defendant No.2 sold the suit
schedule property in favour of the father of the plaintiff under
the registered sale deed dated 13.10.1952 was accepted. The
claim of the plaintiff that his father was in possession and
enjoyment of the same was disputed by the Trial Court and
thus issue No.1 was answered partly in the Affirmative.
Similarly, issue No.3 with regard to the contention of the
plaintiff that due to mistake of the scribe, the survey number
of the schedule property in the sale deed was wrongly
mentioned as Sy.No.372/1 instead of Sy.No.376/1P2 is held
in the Affirmative. The First Appellate Court formulated point
Nos.1 and 2 regarding the claim of the plaintiff that due to
mistake, wrong survey number has been recited in the sale
deed dated 13.10.1952 and answered it in the Affirmative.
Similarly, point No.2 was formulated about the father of the
plaintiff acquiring title over the schedule property through the
registered sale deed dated 13.10.1952, putting in possession
of the same and answered it in the Affirmative. Similarly,
while answering point No.4 with regard to the contention
taken by defendant No.1, that he derived title over the
schedule property under the valid registered sale deed dated
12.09.2005, it has been held in the Negative thereby rejected
the claim of defendant No.1. Thus, both the Trial Court and
the First Appellate Court concurrently recorded the findings
that the sale deed dated 13.10.1952 i.e., Ex.P2 executed by
defendant No.2 in favour of the father of the plaintiff was in
respect of the schedule property and a mistake had crept in
while referring to the survey number in the sale deed. It is
also held that the contention of defendant No.1 that he
derived title over the schedule property was also rejected.
Under such circumstances, the Trial Court and the First
Appellate Court should have decreed the suit of the plaintiff
with regard to his title.
18. Learned counsel further submitted that the Trial
Court recorded a finding that defendant No.1 is in possession
and enjoyment of the schedule property. The First Appellate
Court on re-appreciation of the materials on record rightly
came to the conclusion that defendant No.1 is a trespasser
and he is in wrongful possession of the property. Under such
circumstances, the prayer for mandatory injunction as sought
by the plaintiff should have been granted.
19. Learned counsel further contended that the
plaintiff is not pressing his prayer for rectification of the sale
deed Ex.P2 and he will be satisfied with the declaration of his
title and mandatory injunction in respect of the schedule
property. Learned counsel placed reliance on the decision of
this Court in Tibba Boyi @ Kariya (supra) and contended
that the relief of declaration of title and rectification of the
instrument are two different prayers and one would not
depend on the other. A decree for declaration of title can be
granted even without rectification of the mistake in the
document on the basis of which the title is sought, if the title
is proved in spite of such mistake, by the evidence that is
adduced. When the plaintiff has proved his title over the
schedule property, denial of the relief of rectification of the
mistake in the document will have no consequence.
Therefore, he prays for declaring the title of the plaintiff and
granting mandatory injunction for possession of the schedule
property. Therefore, the impugned judgment and decree
passed by the Trial Court, which was confirmed by the First
Appellate Court are liable to be set aside and the suit of the
plaintiff is to be decreed as prayed for. Hence, he prays for
allowing the appeals.
20. Per contra, learned counsel for respondent No.1 in
RSA No.1210 of 2021 who is the appellant in RSA No.229 of
2022 submitted that even though the suit of the plaintiff was
dismissed, the Trial Court made certain observations which
affects the right of defendant No.1. Therefore, cross objection
was filed before the First Appellate Court. The same was not
properly appreciated by the First Appellate Court and the
cross objection came to be dismissed. Being aggrieved by the
same, defendant No.1 preferred RSA No.229 of 2022.
21. Learned counsel further submitted that the suit of
the plaintiff is hopelessly barred by limitation. Defendant No.2
issued the legal notice dated 16.01.2004 as per Ex.P5. The
brother of the plaintiff issued reply as per Ex.P6 dated
03.02.2004. The contents of Ex.P6 discloses that the so-
called mistake which the plaintiff is alleging was within the
knowledge of the plaintiff and his brother atleast on that date.
In spite of that, no suit was filed to get the mistake corrected.
The present suit was filed only on 29.08.2012 i.e., after lapse
of more than 7 years. Under such circumstances, the suit
should have been dismissed in limine, as barred by limitation.
Even though the Trial Court refused to grant any relief to the
plaintiff, held issue No.1 partly in the affirmative and issue
No.3 in the affirmative, which is against the materials that are
placed before the Court and conclusion that are arrived by the
Trial Court. Exs.P15 and 16 are the record of rights which
were obtained by the brother of the plaintiff during September
2001 who issued Ex.P6. As per these documents,
Sy.No.372/1 stands in the name of one Manchakuruvankara
@ Channakka Cheluva and not in the name of either the
father of the plaintiff or in the name of defendant No.2.
Therefore, the plaintiff and his brother were having knowledge
of the so-called mistake, even in 2001.
22. Learned counsel further submitted that admittedly
there were RRT proceedings held before the Tahsildar and the
Assistant Commissioner during 2005-06 i.e., after purchase of
the schedule property by defendant No.1 under the registered
sale deed. Even then, the plaintiff and his brother have not
chosen to approach the Court for necessary reliefs. Hence,
learned counsel while supporting the conclusion arrived at by
the Trial Court and the First Appellate Court, contended that
the findings recorded on issue Nos.1 and 3 is required to be
set aside.
23. Learned counsel further submitted that the
plaintiff has approached the Court with a specific prayer for
rectification of the sale deed - Ex.P2. Section 26 of the
Specific Relief Act deals with rectification of the instrument.
The Court must have regard to Section 26(2) of the Act which
mandates not to cause prejudice to the rights acquired by the
third person, in good faith and for value. The materials on
record disclose that defendant No.1 is a bonafide purchaser
for value, without notice of title of the father of the plaintiff.
Under such circumstances, the interest of defendant No.1 is to
be safeguarded. Therefore, the plaintiff is not entitled for any
relief.
24. Learned counsel further contended that as per
Article 58 of the Limitation Act, the plaintiff should have
approached the Court within three years from the date of
legal notice issued by defendant No.2. As per Ex.P5, the title
of the father of the plaintiff was denied by defendant No.2 in
the year 2004 itself. When defendant No.2 asserted his right
over the schedule property, the cause of action for the
plaintiff first arose. Therefore, within 3 years from the said
date, the plaintiff should have approached this Court. The
plaintiff filed the suit only during 2012 i.e., after lapse of
about 8 years. The Trial Court and the First Appellate Court
considered these aspects of the matter and concurrently held
that the suit of the plaintiff is barred by limitation. Under
such circumstances, the plaintiff is not entitled even for a
decree of declaration or for mandatory injunction.
Accordingly, he prays for dismissal of RSA No.1210 of 2021
and to allow RSA No.229 of 2022.
25. The appeals were admitted vide order dated
14.12.2022 to consider the following substantial questions of
law:
1. Whether the impugned judgment and
decree passed by the trial Court and confirmed by
the First Appellate Court suffers from perversity,
illegality and calls for interference by this Court?
2. Whether the findings on issue Nos.1
and 3 recorded by the trial Court, effect the rights
of defendant No.1, to any extent and call for
interference by this Court?
26. It is the specific contention of the plaintiff that his
father purchased the schedule property under the sale deed
dated 13.10.1952, which is produced as per Ex.P2. While
describing the property, by mistake it is mentioned as
Sy.No.372/1 instead of Sy.No.376/1P2. After the death of the
purchaser i.e., father of the plaintiff, the plaintiff filed the suit
OS No.76 of 2010 seeking partition and separate possession
of the schedule property along with other properties and at
that time he came to know about the mistake and within the
period of limitation, filed the suit seeking necessary reliefs. In
the meantime, defendant No.2 sold the schedule property in
favour of defendant No.1 taking advantage of the mistake
committed in describing the schedule property in Ex.P2. The
suit came to be filed on 29.08.2012. The plaintiff who
examined himself as PW1 categorically stated that the
properties belonging to his father were partitioned during
1968. He admits that defendant No.1 put up the fence and
the compound wall surrounding the schedule property and
that defendant No.1 is the resident of Mysuru.
27. Ex.P5 is the legal notice dated 16.01.2004 got
issued on behalf of defendant No.2 to K Srinivasiah - the
brother of the plaintiff. In this notice, defendant No.2
asserted that Sy.No.376/1 measuring one acre belongs to him
and he is in peaceful possession and enjoyment of the same.
He also states that the addressee is trying to encroach on the
schedule property and therefore called upon to desist from
highhanded acts. Ex.P6 is the copy of the reply notice dated
03.02.2004 issued by the brother of the plaintiff to defendant
No.2 stating that he had executed the registered sale deed in
favour of one Krishnappa on 13.10.1952 but while executing
the sale deed instead of mentioning the survey number as
376/1 mentioned it as 372/1. Therefore, the revenue records
could not be mutated in the name of said Krishnappa even
though the boundaries are correctly mentioned in the sale
deed. Therefore, the brother of the plaintiff called upon the
defendant to execute the rectification deed rectifying the
mistake in mentioning the survey number.
28. Ex.P15 is the copy of the index of properties
issued by the Tahsildar, in respect of Sy No.372/1. As per
this document, the property stood in the name of Sriyuths
Manchakuruvankara, S.Boraiah and N.Ramachandraiah. This
document was obtained on 28.09.2001 by K Srinivasaiah who
is admittedly the brother of the plaintiff. Ex.P16 is the similar
copy of record of rights in respect of Sy.No.372/1, wherein
the names of the owners i.e., Manchakuruvankara and others
were shown, which was also obtained by K Srinivasaiah on
28.09.2001.
29. These documents which are produced by the
plaintiff himself support the contention of defendant No.1 that
the plaintiff was aware of the mistake said to have been
committed while execution of the sale deed as per Ex.P2 by
defendant No.2 in favour of the father of the plaintiff, atleast
during 2001 - 02. There were revenue proceedings in respect
of this issue during 2005-06 before the Tahsildar, when
defendant No.1 tried to mutate the revenue records in his
name. Even defendant No.2 had issued the legal notice to the
brother of the plaintiff asserting his right over the schedule
property as per Ex.P5 on 16.01.2004. Admittedly, the brother
of the plaintiff issued reply as per Ex.P6 dated 03.02.2004
asserting that there was a mistake in describing the schedule
property while executing the sale deed and calling upon
defendant No.2 to execute the rectification deed. Inspite of
that, the plaintiff has not chosen to file the suit till
29.08.2012. The contention of the plaintiff that neither he
nor his father or anybody else in the family were knowing
about the mistake crept in, in describing the property in the
sale deed till he filed the suit OS No.76 of 2010 seeking
partition and separate possession of the schedule property
along with other properties, cannot be accepted.
30. Section 26 of the Specific Relief Act deals with
rectification of the instrument and when it can be rectified.
When through fraud or mutual mistake of the parties, a
contract or other instrument in writing was executed which
does not express their real intention, either party may
institute a suit to have the instrument rectified. Since the
plaintiff sought for a declaration that he is the absolute owner
in possession of the property, Article 58 of the Limitation Act
could be made applicable. Since the plaintiff is seeking
rectification of the registered sale deed by mentioning the
correct survey number while describing the property, Article
113 of the Limitation Act could be attracted. In both the case
i.e., either under Article 58 or under Article 113 of the
Limitation Act, the period of limitation prescribed is 3 years.
But under Article 58, it begins to run when the right to sue
first accrues. The date of knowledge of such mistake crept in
the registered sale deed could be the date, when the right to
sue first accrues in favour of the plaintiff. Ex.P2 executed by
defendant No.2 in favour of the father of the plaintiff is dated
13.10.1952. Admittedly, the name of the purchaser was
never mutated in the revenue records. Thereafter, the father
of the plaintiff died in the year 1981. But even then the
revenue records were never mutated in the name of the
plaintiff or his brother. If the father of the plaintiff or atleast
after his demise, his children were diligent, the so-called
mistake crept in sale deed - Ex.P2 could have been noticed at
the earliest point of time. Even according to the plaintiff, the
mistake crept in Ex.P2 was within the knowledge of the
brother of the plaintiff since 2001.
31. The discussions held above disclose that the
plaintiff himself produced several documents, wherein, it is
found that the plaintiff's brother was knowing that
Sy.No.372/1 is not standing in the name of either his father
who is the purchaser of the property or in the name of
defendant No.2 who is the vendor. He was also knowing that
a mistake had crept in, while describing the schedule property
in the sale deed. Inspite of that he had not taken any action.
Even though the sale deed Ex.P2 is dated 13.10.1952,
admittedly the revenue records were not mutated in the name
of the purchaser or his successors, including the plaintiff. But
no steps whatsoever was taken to rectify the mistake and to
get the revenue records mutated. Thereafter atleast in 2001,
i.e., from the date of Exs.P15 and 16, no action was taken. It
is only thereafter, defendant No.2 sold the schedule property
in favour of defendant No.1 under the sale deed dated
12.09.2005. If the plaintiff and his brother were diligent, they
could have avoided creation of third party right by defendant
No.2 by selling the property. Proceedings before the Tahsildar
had commenced during 2005-06.
32. Ex.P5 is the notice produced by the plaintiff which
is dated 16.01.2004. Admittedly, it was issued by defendant
No.2 to the brother of the plaintiff. Defendant No.2 asserts
his ownership over 1 acre of land in Sy.No.376/1 of Belavadi
village and also claims to be in possession of the same. It is
also stated that the brother of the plaintiff has no manner of
right, title or interest over the said property nor is in
possession of the same. Under such circumstances, it could
be safely concluded that defendant No.2 cast cloud on the title
of the plaintiff and his brother by asserting his ownership and
possession over the schedule property. The contention of the
learned counsel for the appellant that by issuing Ex.P5,
defendant No.2 has not denied title of the plaintiff or his
brother and that it had not given rise to the cause of action
for filing the suit either for rectification of the sale deed or for
seeking declaration of their title, cannot be accepted in view
of the categorical assertion of right over the schedule property
by defendant No.2.
33. There is absolutely no reason as to why no suit
was filed seeking rectification of the instrument in time. Even
according to the plaintiff he was having cordial relationship
with his brother Srinivasiah and he was looking after the
affairs of the family. The plaintiff is a doctor by profession
running a nursing home of his own. He cannot take shelter by
contending that his father was an illiterate. Under such
circumstances, I am of the opinion that the suit of the plaintiff
filed on 29.08.2012 is barred by limitation and therefore, the
plaintiff cannot seek any remedy.
34. Admittedly, Ex.P2 was not in respect of the
schedule property. On the other hand, Ex.D2 is the registered
sale deed executed by defendant No.2 dated 12.09.2005 in
favour of defendant No.1 in respect of the schedule property
and therefore, the title passes on to defendant No.1. Ex.D12
is the order passed by the Deputy Commissioner, Mandya
dated 28.08.2008 converting the schedule property to
commercial (education institution) purpose. This order also
discloses that Sy.No.413, 376/1P1 and 376/1P2 measuring
1.13, 0.33 and 1.00 acres respectively and totally measuring
3.06 acres were combined together as they were adjacent to
one another. Ex.D4 is the survey sketch which shows the
larger extent of the land comprising in these three survey
numbers, which are owned by defendant No.1.
35. It is the specific contention of the defendants that
after getting the land converted, he constructed a building
and running an educational institution. Exs.D29 and 30 are
the building licences dated 15.10.2008 and 29.12.2011.
Construction of the building and running the educational
institution by defendant No.1 is not in serious dispute. The
description of the schedule property as found in the plaint
schedule relates to an agricultural property bearing
Sy.No.376/1P2 measuring 0.39 acres, bounded by the other
agricultural lands. Definitely the schedule property has lost
its identity in view of the subsequent developments.
36. The plaintiff refers to the plaint sketch to identify
the schedule property and seeks permanent injunction against
the defendants. He also refers to the portion of the land
mentioned with the letters ABCD, which is said to have been
encroached by defendant No.1 while constructing the building
in respect of which the relief of mandatory injunction to
remove the portion of the said building and to hand over the
possession to the plaintiff is sought. As observed above, the
said sketch was never marked as an exhibit. Interestingly,
the said sketch is not found in the Trial Court records.
Admittedly, no Commissioner was appointed to identify the
land in question. Under such circumstances, identifying the
schedule property as an agricultural land and identifying the
portion of the land which was encroached by defendant No.1
by constructing the building, is definitely impossible.
37. In view of the above, passing of a decree for
declaration, permanent injunction and mandatory injunction
as sought by the plaintiff would be non-executable. The
contention of the learned counsel for the appellant that it is
for the decree holder to identify the schedule property at the
time of executing the decree cannot be accepted, as it is the
duty of the Court to first identify the schedule property and
thereafter to pass the decree and not vice-versa. Passing the
decree and thereafter asking the parties to identify the
schedule property at the time of execution would be putting
the cart before the horse, which is impermissible in law.
38. Even though Section 26 of the Specific Relief Act
enables rectification of the instrument which does not express
the real intention of the parties executed either through fraud
or through mutual mistake, sub section (2) specifies that
granting of such relief of rectification of an instrument can be
done without prejudice to the rights acquired by the third
person in good faith and for value. Admittedly, the defendant
is the resident of Mysuru. From the materials that are placed
before the Court including the cross examination of defendant
No.1, it cannot be concluded that he had the knowledge of
sale deed Ex.P2 executed by defendant No.2 in favour of the
father of the plaintiff and that it relates to schedule property.
Even if defendant No.1 was aware of Ex.P2, it cannot be
concluded that the said deed was in respect of the schedule
property for the simple reason that the schedule property was
never the subject matter of Ex.P2. Therefore, the burden is
on the plaintiff to prove that defendant No.1 is not a bonafide
purchaser for value, without notice. When there is no
registered deed in respect of the schedule property and when
the revenue records still stand in the name of defendant No.2,
it cannot be reasonably presumed that defendant No.1 would
have known about transfer of right, if any, in respect of the
schedule property by defendant No.2. Therefore, even if the
plaintiff proves that he is entitled for the relief of rectification
of the instrument and for other relief's, granting of such relief,
would definitely prejudice the rights acquired by defendant
No.1 under Ex.D2.
39. The contention of the learned counsel for the
appellant that Ex.D2 is null and void as defendant No.2 was
not having right, title or interest over the schedule property
after the same having been sold under Ex.P2, also cannot be
accepted for the simple reason that Ex.P2 was not in respect
of the schedule property, but it is in respect of a different
survey number. The onus is on the plaintiff to prove his
contention that defendant No.2 in fact executed Ex.P2 in
respect of the schedule property and there was a mistake
crept in, while describing the property. Even though the
plaintiff had sought for the relief of rectification of the sale
deed, during the course of addressing the argument, learned
counsel for the appellant contends that the appellant gives up
such prayer for rectification of the sale deed in view of the
decision in Tibba Boyi @ Kariya (supra).
40. Even though the prayer for such relief is to be
given up, to seek declaration of his right, the plaintiff is
required to prove his contention that by mistake the survey
number was wrongly mentioned in Ex.P2, but in fact, it refers
to the schedule property. Even though the Trial Court and the
First Appellate Court held this issue in favour of the plaintiff,
the said findings are being challenged by the defendants.
Therefore, the plaintiff is required to prove his contention that
his father had acquired title over the schedule property under
the registered sale deed Ex.P2. The co-ordinate Bench of this
Court in Tibba Boyi @ Kariya (supra), made it clear that if
without seeking the relief of rectification of mistake in the
document, the plaintiff is able to prove his title to the
schedule property, then only it is permissible in law to pass a
decree declaring the title of the plaintiff as prayed, without
granting the relief of rectification of the sale deed. The
plaintiff has not thought it fit to examine defendant No.2 to
prove the mistake that was committed while executing Ex.P2.
Even though defendant No.2 has not contested the matter,
the plaintiff could have summoned him to prove his
contention that defendant No.2 was never owning the land
described in Ex.P2.
41. The other contention taken by the learned counsel
for the plaintiff that defendant No.1 has never pleaded
acquisition of title over the schedule property by adverse
possession will also of no help to the plaintiff, as it was never
the contention of the defendant that he is claiming right over
the property by adverse possession. Defendant No.1 is
claiming right over the property under the registered sale
deed Ex.D2 executed by defendant No.2. Therefore, Articles
64 and 65 of the Limitation Act are not applicable to the facts
and circumstances of the case.
42. Learned counsel for the defendants placed
reliance on the decision of the co-ordinate Bench of this Court
in U Manjunath Rao Vs U Chandrashekar and another 2
to contend that the defence of the defendant that the suit of
the plaintiff is barred by limitation which is supported by
several documents that are placed before the Court, cannot
be ignored to grant a decree of declaration or mandatory
injunction. The Trial Court and the First Appellate Court
concurrently held that the suit of the plaintiff is barred by
limitation and dismissed the same. Merely because there is a
finding regarding title of the plaintiff to the schedule property,
he cannot take advantage of such finding when the suit itself
is barred by limitation.
2021(1) KCCR 955
43. The discussions held above disclose that the suit
of the plaintiff for the relief of rectification of the sale deed
Ex.P2 and declaration of his title over the schedule property is
hopelessly barred by limitation. Bar of limitation cannot be
ignored for granting any of the reliefs in favour of the plaintiff.
The concept of law of limitation and its consequences is that
even if the plaintiff was having right over the property, by
efflux of time, he will lose the remedy. Therefore, even if the
findings of the Trial Court and the First Appellate Court that
the plaintiff has proved that Ex.P2 was in respect of the
schedule property and by mistake the survey number is
wrongly shown as 372/1 instead of 376/1P2 is to be accepted,
since the plaintiff slept over his right for such a long period
and filed the suit after the period of limitation, disentitles him
from getting any relief. The discussions held above do not
justify the findings of the Trial Court and the First Appellate
Court regarding proof of mistake crept while executing Ex.P2.
Under such circumstances, the findings on issue Nos.1 and 3
are liable to be set aside as the same would affect the rights
of defendant No.1. However, the conclusion arrived at by the
Trial Court and the First Appellate Court that the plaintiff is
not entitled for any relief is just and proper and the same is
supported by reasons. Hence, I answer the substantial
questions of law in favour of the defendants and against the
plaintiff.
44. Accordingly, I proceed to pass the following:
ORDER
(i) RSA No.1210 of 2021 is dismissed.
(ii) RSA No.229 of 2022 is allowed.
(iii) The findings of the Trial Court on issue Nos.1 and
3 are set aside. The judgment and decree dated 20.01.2020
passed in OS No.335 of 2012 on the file of the learned
Principal Civil Judge and JMFC, Srirangapatna, which was
confirmed by the judgment and decree dated 29.09.2021
passed in RA No.9 of 2020 on the file of the learned Principal
Senior Civil Judge and JMFC, Srirangapatna, in respect of
findings on other issues are confirmed. Consequently, the suit
of the plaintiff is dismissed.
The parties are directed to bare their own cost under
the peculiar facts and circumstances of the case.
Registry is directed to send back the Trial Court records
along with the copy of this judgment.
Sd/-
JUDGE
*bgn/-
