Karnataka High Court
Sri T H Kariyappa vs Smt Giriyamma on 5 March, 2024
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RSA No. 651 of 2007
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 651 OF 2007 (DEC)
BETWEEN:
1. SRI T H KARIYAPPA
S/O BOMMAJJARA HANUMANTHAPPA
DEAD BY LR'S
1(A) GOVINDAMMA
W/O LATE T.H. KARIYAPPA
AGED ABOUT 65 YEARS
1(B) K. HANUMANTHAPPA
S/O LATE T.H. KARIYAPPA
AGED ABOUT 37 YEARS
1(C) K. DEVARATHNAMMA
D/O LATE T.H. KARIYAPPA
Digitally signed AGED ABOUT 35 YEARS
by R DEEPA
Location: HIGH ALL ARE R/AT HARIYABEE VILLAGE
COURT OF HIRIYUR TALUK
KARNATAKA CHITRADURGA DISTRICT.
2. SRI GANGADHARA
S/O SRI T.H KARIYAPPA
AGED ABOUT 30 YEARS
R/O HARIYABEE VILLAGE,
HIRIYUR TALUKDIST CHITRADURGA
...APPELLANTS
(BY SRI. H.K. RAVI, ADVOCATE)
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RSA No. 651 of 2007
AND:
1. SMT GIRIYAMMA
W/O LATE SRI HANUMANTHAPPA
SINCE DEAD RESPONDENT No.2
TREATED LR'S OF RESPONDENT No.1
2. SMT PUTTERAMMA
W/O ANANTH RAMANNA
AGED ABOUT 45 YEARS
3. SMT GUNDAMMA
W/O GUNJJARAPPA
CHIKKA HANUMANTHAPPA
AGED ABOUT 50 YEARS
RESPONDENT Nos. 2 AND 3 ARE
R/O HARIYABBE PALYA VILLAGE,
HIRIYUR TALUK
CHITRADURGA DISTRICT.
4. SRI NAGARAJ
S/O MUDDANAHALLY HANUMANTHAPPA
AGED ABOUT 27 YEARS
5. SRI RAMANNA
S/O SRI MUDDANAHALLY HANUMANTHAPPA
AGED ABOUT 38 YEARS
6. SMT PUTTAMMA
W/O SANNAJJARA HANUMANTHAPPA
AGED ABOUT 38 YEARS
RESPONDENT Nos.4 TO 6 ARE
R/AT HOOBINAHALLY VILLAGE
HIRIYUR TALUK
CHITRADURGA DISTRICT.
7. SMT. SHANTHAMMA
W/O HANUMANTHANALLY MUDDARANGAPPA
AGED ABOUT 35 YEARS
HARIYABBE PALYA VILLAGE
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RSA No. 651 of 2007
HARIYABBE PALYA POST
HIRIYUR TALUK
CHITRADURGA DISTRICT.
8. SMT LAKSHMAKKA
W/O D.H ODORANGAPPA
AGED ABOUT 33 YEARS
R/O DHARMAPURA VILLAGE
HIRIYUR TALUK
CHITRADURGA DISTRICT
...RESPONDENTS
(BY SRI. G BALAKRISHNA SHASTRY, ADVOCATE FOR R2
V/O DATED 31.03.2010 R2 IS TREATED AS LR OF
DECEASED R1
V/O DATED 10.02.2012 NOTICE TO R7 IS HELD
SUFFICIENT
R3, R4, R5, R6 & R8 ARE SERVED)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DATED 5.4.2006 PASSED IN R.A.NO.
286/2004 ON THE FILE OF THE PRL.DISTRICT JUDGE,
CHITRADURGA, ALLOWING THE APPEAL AND SETTING ASIDE
THE JUDGEMENT AND DECREE DATED 7.9.1999 PASSED IN
OS.NO.64/1996 ON THE FILE OF THE ADDL.CIVIL JUDGE
(JR.DN.), HIRIYUR.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This second appeal is filed by the appellants
challenging the judgment and decree dated 05.04.2006
passed in R.A.No.286/2004 by the Principal District Judge,
Chitradurga.
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2. The parties are referred to as per their ranking
before the trial Court. The appellants are defendant Nos.1
and 2, respondent No.1 is plaintiff No.1, respondent No.2 is
plaintiff No.2, respondent Nos.3 to 8 are defendant Nos.3
to 8.
3. The brief facts leading rise to filing of this appeal
are as under:
The plaintiffs filed a suit for declaration declaring that
the plaintiffs are in lawful possession and enjoyment of the
suit schedule properties and also sought for the decree for
permanent injunction restraining the defendants from
interfering with the peaceful possession and enjoyment of
the suit schedule properties. It is the case of the plaintiffs
that one Hanumanthappa died long back prior to 1940,
leaving behind his estate and 3 sons namely Gundappa,
Hanumanthappa and Kariyappa. Three sons of
Hanumanthappa were living in a Hindu Undivided Joint
Family. Gundappa died in the year 1956 leaving behind his
wife and his 5 daughters. During the year 1956, widow of
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Gundappa, husband of plaintiff No.1 and defendants orally
partitioned the joint family properties, since then they
began to live separately and enjoying their respective
shares. Under the oral partition out of land bearing
Sy.No.147, northern 10 acres 10 guntas and house were
allotted to the share of widow of Gundappa and her
daughters i.e., defendant Nos.3 to 8. Out of Sy.No.147
southern 10 acres 10 guntas and in Sy.No.146/2B towards
western side 9 acres 23 guntas and ½ right in the well
situated in eastern portion in the same survey number and
in Sy.No.145/1 western side 2 acres 3 guntas and 1/8th
share in the well, in Sy.No.145/3 northern side ½ portion
measuring 2 acres 14 guntas and the share in the house
were allotted to the share of Hanumanthappa, who is the
husband of plaintiff No.1 and father of plaintiff No.2. The
share of Kariappa- defendant No.1 in Sy.No.146/2B
towards eastern 8 acres and in Sy.No.145/1 eastern side 2
acres 3 guntas and in Sy.No.145/3 northern 2 acres 14
guntas and right of water in the well situated in
Sy.Nos.146/2B and 145/1 and share in the house. The
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husband of Plaintiff No.1 and defendants are living
separately and enjoying their respective share without
interruption whatsoever. The husband of plaintiff No.1
gifted 8 acres 3 guntas in Sy.No.146/2B under registered
gift deed in favour of plaintiff No.2 dated 12.05.1981 and
rest of the lands i.e., 1 acre 20 guntas was retained by him
which is a 'C' schedule property. The husband of plaintiff
No.1 died intestate. He died on 13.05.1981 leaving behind
the plaintiffs as his legal heirs. The husband of plaintiff
No.1 was an illiterate, ignorant and not wordly-wise. He
was depending on defendant No.1 for guidance in any
transaction. That on the date of execution of registered gift
deed in favour of plaintiff No.2, defendant Nos.1 and 2 and
one Jayaramappa were accompanied the plaintiffs and
husband of plaintiff No.1. Defendant No.1 got drafted the
Will deed as per the instruction of husband of plaintiff No.1
and affixed his LTM with an intention to execute the gift
deed only in favour of plaintiff No.2. Thereafter, after the
death of husband of plaintiff No.1, the plaintiffs gave a
petition to the Tahsildar to transfer 'C' schedule land in
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favour of plaintiffs. The plaintiffs came to know that
defendants got executed a registered Will deed from
husband of plaintiff No.1 i.e., deceased Hanumanthappa.
On the strength of the registered Will deed, the name of
defendant No.2 was entered in the revenue records.
Hence, the plaintiffs have challenged the entries in the
name of defendant No.2, by filing an appeal before the
Assistant Commissioner in R.A.No.55/1994-95. The said
appeal was dismissed by the Assistant Commissioner. It is
contended that by playing a fraud defendant No.1 obtained
a Will dated 12.05.1981. Hence, defendant No.2 has not
acquired any right by virtue of registered Will dated
12.05.1981. Hence, cause of action arose for the plaintiffs
to file the suit for declaration of possession and permanent
injunction.
4. Defendant Nos.1 to 3 filed a joint written
statement contending that Hanumanthappa had 3 sons
namely Gundappa, Hanumanthappa and Kariappa. It is
also admitted that after the death of Hanumanthappa the
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properties which were fallen to the share of sons of
Hanumanthappa transferred to the names of legal
representatives of sons of Hanumanthappa. It is
contended that after getting the share i.e., wife of
Gundappa namely Thimmakka, Hanumanthappa and other
sons were enjoying the joint family properties. After that
Kariyappa and Hanumanthappa got partitioned the joint
family properties orally. After some days, Hanumanthappa
had incurred debts and in order to discharge the said
debts, he intend to discharge some properties. In order to
discharge family debts and to have separate documents of
partition, Hanumanthappa executed a relinquishment deed
dated 22.12.1958 relinquishing all his rights over the lands
bearing Sy.Nos.145/1, 145/3 and 8 acres of eastern
portion in land bearing Sy.No.146/2. Hanumanthappa had
relinquished all the rights in suit items B, D and E.
Hanumanthappa executed registered gift deed in favour of
plaintiff No.2 and also executed a registered Will in favour
of defendant No.2 bequeathing 'C' schedule property and
both the gift deed and Will deed were registered on the
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same day on 12.05.1981. Hanumanthappa died on
13.05.1981. After the demise of Hanumanthappa,
defendant No.2 through defendant No.1 gave an
application to transfer the said lands in favour of defendant
No.2 by virtue of registered Will deed dated 12.05.1981
executed by Hanumanthappa in favour of defendant No.2
bequeathing 'C' schedule property. The revenue authorities
entered the name of defendant No.3 on the strength of
registered Will deed transferred 'C' schedule property in
favour of defendant No.2. Hence, it is contended that there
is no cause of action arose for the plaintiffs to file a suit.
Cause of action shown in the plaint is false and imaginary.
Hence, on these grounds prays to dismiss the suit.
5. The Trial Court, on the basis of the above said
pleadings, framed the following issues:
1. Whether the plaintiffs prove that they are in
lawful possession and enjoyment of the suit
schedule property?
2. Whether the plaintiffs prove that the
defendants are interfering with the peaceful
possession and enjoyment of the suit
property?
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3. Whether the plaintiffs are entitled for
declaration and consequential relief of
permanent injunction?
4. What order and what decree ?
6. Plaintiffs in order to substantiate their case,
plaintiff No.1 was examined as PW-1 and got marked 15
documents as Exs.P1 to P15. In rebuttal, defendant No.1
was examined as DW-1 and examined two witnesses as
DW-2 and DW-3 and got marked 7 documents as Exs.D1
to D7. The parties have closed their evidence. The trial
Court after hearing the arguments of learned counsel for
the parties and on the assessment of oral and
documentary evidence, answered issue Nos.1 to 3 in the
negative and issue No.4 as per final order. The suit of the
plaintiffs was dismissed vide judgment dated 07.09.1999.
7. The plaintiffs, aggrieved by the judgment and
decree passed by the trial Court in O.S.No.64/1996 have
preferred the appeal in R.A.No.286/2004 on the file of
Principal District Judge, Chitradurga.
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8. The First Appellate Court, after hearing the
parties, has framed the following points for consideration:
1. Whether non-framing of any specific issue as
regards the validity of Ex.D3- will has
prejudiced either of the parties?
2. Whether the defendants have proved that
Hanumanthappa has validly bequeathed the
plaint schedule-'C' land in favour of the
second defendant and that the second
defendant has become the owner in
possession of the suit land?
3. Whether the plaintiffs are entitled to the
relief of declaration and injunction in respect
of the plaint schedule-'C' land?
4. Whether the impugned judgment and decree
as regards plaint schedule-C land call for
interference in this appeal?
9. The First Appellate Court, on re-assessment of
oral and documentary evidence answered point Nos.1 and
2 in the negative, point Nos.3 and 4 in the affirmative and
allowed the appeal in part and set aside the judgment and
decree passed by the trial Court, insofar as it relate to
plaint 'C' schedule property and suit of the plaintiffs in
respect of 'C' schedule property was decreed in part and it
is ordered and held that plaintiffs are in lawful possession
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and enjoyment of plaint 'C' schedule property and
consequently, the defendants are restrained by decree of
perpetual injunction from interfering with possession and
enjoyment of the same 'C' schedule property by the
plaintiffs.
10. The defendants, aggrieved by the judgment and
decree passed by the First Appellate Court, have filed this
second appeal.
11. Heard learned counsel for the defendants and
learned counsel for the plaintiffs.
12. Learned counsel for the defendants submits that
suit filed by the plaintiffs itself is not maintainable in the
present form and he submits that plaintiffs have not sought
for relief of declaration of title, only sought for declaration
that plaintiffs are in possession of the suit schedule
properties. He also submits that plaintiffs have not
produced any record to establish the possession of 'C'
schedule property. He submits that First Appellate Court
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without considering the documents produced by the
plaintiffs has committed an error in granting a decree for
declaration in respect of 'C' schedule property holding that
the plaintiffs are in possession of the 'C' schedule property.
He also submits that documents which are produced by the
plaintiffs pertains to schedule A and B properties, but the
plaintiffs have not produced a single piece of paper to show
that the plaintiffs are in possession of 'C' schedule
property. He also submits that Will was executed on
12.05.1981 by Hanumanthappa in favour of defendant
No.2. Hanumanthappa also executed a registered gift
deed in favour of plaintiff No.2 in respect of A and B
schedule properties on the same date and the plaintiffs had
knowledge about the execution of registered Will in favour
of defendant No.2 and plaintiffs have not challenged the
said registered Will within 3 years from the date of
execution of registered Will. He submits that though the
defendants have not taken a defence in the written
statement, however, he placed a reliance on Section 3 of
Limitation Act, wherein even if the defendant has not taken
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a defence in the written statement, it is the duty casts
upon the trial Court to frame the issue regarding limitation
on the basis of the contents of the plaint. He submits that
the First Appellate Court has failed to examine the issue of
limitation. Further submits that no issue is framed
regarding the validity of the Will, without there being any
issue on the validity of the Will, the First Appellate Court
has committed an error in recording a finding that Will is
surrounded by suspicious circumstances. He also submits
that plaintiffs in the year 1994-95 aggrieved by the entries
in the name of defendant No.2 preferred the appeal before
the Assistant commissioner. The Assistant Commissioner
dismissed the appeal. Further he submits that said Will
was registered and as per Section 3 of Transfer of Property
Act, if any instrument is registered it is a notice to all the
public. Hence, the plaintiffs cannot contend that plaintiffs
had no knowledge about the execution of a registered Will
in favour of defendant No.2. Hence, he submits that first
appellate Court has committed an error in passing the
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impugned judgment. Hence, on these grounds he prays to
allow the appeal.
13. Per contra, learned counsel for the plaintiffs
submits that Will is surrounded by suspicious
circumstances i.e., defendant Nos.1 and 2 are actively
participated at the time of execution of the Will and he also
contends that as per the evidence of DW.2, he has
deposed that testator gave a instruction for drafting the
Will, wherein DW.3 has deposed that the villagers gave the
instruction for drafting the Will, there is inconsistence in
the evidence of DWs.2 and 3. Further, he submits that 6
persons of villagers were present at the time of execution
of Will and they have persuaded Hanumanthappa to
execute the Will. He submits that Hanumanthapa had not
executed the Will with free consent. He also submits that
there is no necessity to challenge the registered Will
alleged to have been executed by Hanumanthappa in
favour of defendant No.2. He also submits that evidence
of DW.2 cannot be considered as he is the habitual
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witness, he has already made a statement in the suit for
specific performance of contract filed by one Nagaraj and
he is a member of Congress party and he also submits that
in the year 1994, cause of action arose for the plaintiffs to
file the suit. Hence, plaintiffs have filed a suit within 3
years from the date of cause accrues. Hence, suit filed by
the plaintiffs is well within time. Hence, on these grounds
he prays to dismiss the appeal.
14. This court has admitted the appeal on
30.10.2012 on the following substantial questions of law
and additional substantial question of law:
1. 'Whether the lower appellate Court is
justified in partly allowing the regular appeal
and setting aside the judgment and decree of
the trial Court holding that Hanumanthappa has
not executed the will dated 12.05.1981, Ex.D3
bequeathing plaint 'C' schedule property in
favour of defendant No.2 and whether the said
finding is based on proper appreciation of oral
and documentary evidence on record?'
2. 'To consider any other substantial
questions of law which would arise for
consideration at the time of hearing.
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Additional substantial question of law:
'Whether the defendants prove that the
suit filed by the plaintiffs is barred by
limitation?'
15. Additional Substantial question of Law:
This Court is considering only additional substantial
question of law, if this Court holds that the suit is well
within time then Court has to answer other substantial
questions of law. Suit filed by the plaintiffs is barred by
limitation then this Court cannot go into the merits of other
issues. Hence, additional substantial question of law is
taken for consideration.
16. Perused the records and considered the
submissions of learned counsel for the parties.
17. Plaintiffs filed a suit for declaration that plaintiffs
are in lawful possession and enjoyment of the suit schedule
properties and sought for permanent injunction. Plaintiffs
in order to substantiate their case, plaintiff No.1 was
examined as PW.1 and she has reiterated the plaint
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averments in the examination-in-chief and in order to
prove that Hanumanthappa executed the registered gift
deed in favour of plaintiff No.2 in respect of schedule A and
B properties, the plaintiffs had produced original gift deed
executed on 12.05.1981; Exs.P2 and P3 are Kandayam
receipts; Exs.P4, P6 and P13 to P15 are the RTC extracts.
The said RTC extracts are in respect of schedule A and B
properties which stands in the name of plaintiff No.2 on the
basis of the registered gift deed executed by
Hanumanthappa in favour of plaintiff No.2; Ex.P5 is the
patta receipt, Ex.P7 is the mutation extract which reflects
that, on the strength of the registered gift deed-Ex.P1
dated 12.05.1981, the plaintiffs have submitted an
application to the revenue authorities to transfer the said
lands in the name of plaintiff No.2 in respect of schedule A
and B properties. The revenue authorities after due
enquiry passed a mutation order as per Ex.P7, wherein the
revenue authorities ordered to change or transfer the
properties A and B in the name of plaintiff No.2; Ex.P8 is
the village form No.1; Exs.P9 and P10 are index of lands
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which discloses the name of Hanumanthappa and name of
Hanumanthappa was rounded of in respect of land bearing
Sy.No.147 in Ex.P.9 and land bearing Sy.No.146 in Ex.P10
and Exs.P11 and P12 are the record of rights.
18. During the course of cross examination of PW.1,
it was suggested to PW.1 that Hanumanthappa executed a
registered gift deed in favour of plaintiff No.2 bequeathing
A and B schedule properties in favour of plaintiff No.2 and
on the same day Hanumanthappa also executed Ex.D1 and
Ex.D3 registered Will dated 12.05.1981 bequeathing 'C'
schedule property in favour of defendant No.2. Though
PW.1 has admitted about the execution of the registered
gift deed, but denied the execution of Will dated
12.05.1981 bequeathing 'C' schedule property in favour of
defendant No.2 and further also admitted that on the
strength of the registered Will, the name of the defendant
No.2 was entered in the revenue records and thereafter in
the year 1994, the plaintiffs aggrieved by the entries in the
name of defendant No.2, preferred the appeal before the
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Assistant Commissioner. The Assistant Commissioner has
passed the order dismissing the appeal filed by the
plaintiffs and further she admitted that wife of Gundappa
by name Thimmakka had relinquished her right to her
mother-in-law Giriyamma and defendant No.1 and husband
of plaintiff No.1. She pleads ignorance that Thimmakka had
received a land bearing Sy.No.147 measuring 20 acre 21
guntas and also admitted that her husband and defendant
No.1 were residing jointly and constituted a Joint Hindu
family and in the oral partition her husband got the land
bearing Sy.No.146 measuring 9.23 acres and defendant
No.1 also got 8 acres and also have right over property
scheduled in the Will in the said survey number.
19. From the oral evidence of PW.1, it is clear that
Hanumanthappa had got land bearing Sy.No.146 to an
extent of 9 acres 23 gunats and out of 9 acres 23 guntas
he had gifted 8 acres of land in favour of plaintiff No.2
under registered gift deed and bequeathed 1 acre 23
guntas in favour of defendant No.2 under a registered Will.
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Registered gift deed and registered Will deed were
executed on the same day on 12.05.1981. The plaintiff
No.2 on the strength of registered gift deed, she got
transferred the said properties i.e., schedule A and B
properties in her name. Defendant No.2 was minor at the
time of execution of the Will by Hanumanthappa.
Defendant No.1 on the strength of Ex.D3 i.e., registered
Will submitted the application to the revenue authorities.
The revenue authorities after due enquiry mutated the
name of defendant No.2 in respect of 'C' schedule
property. Further, though the said document was
executed on the same day, the plaintiffs were very much
present in the Sub-registrar office on 12.05.1981 at the
time of execution of registered gift deed and the Plaintiffs
had knowledge about the execution of registered Will in
favour of defendant No.2 by Hanumanthappa. The
plaintiffs had not chosen to challenge the registered Will
executed by Hanumanthappa in favour of defendant No.2
from 1981 till 1996. Further, plaintiffs had challenged the
mutation order passed in favour of defendant No.2 before
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the Assistant Commissioner. Assistant Commissioner
dismissed the appeal filed by the plaintiffs. The plaintiffs
had knowledge regarding the execution of the registered
Will. Though the learned counsel for the plaintiffs submits
that plaintiffs had no knowledge about the execution of
registered Will deed, but as per Section 3 of Transfer of
Property Act, 1882, explanation I to Section 3 which reads
as under:
3. Interpretation clause- xxx
Explanation I- Where any transaction
relating to immovable property is required by law to
be and has been effected by a registered
instrument, any person acquiring such property or
any part of, or share or interest in, such property
shall be deemed to have notice of such instrument
as from the date of registration or, where the
property is not all situated in one sub-district, or
where the registered instrument has been
registered under sub-section (2) of section 30 of the
Indian Registration Act, 1908, from the earliest date
on which any memorandum of such registered
instrument has been filed by any Sub-Registrar
within whose sub-district any part of the property
which is being acquired, or of the property wherein
a share or interest is being acquired, is situated:
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Provided that-
(1)xxx
(2)xxx
(3)xxx
20. Where any transaction relating to immovable
properties required by law has to be effected by registered
instrument, any person acquiring such a property, share or
interest or any part of such property shall be deemed to
have notice of such instrument, as from the date of
registration or, where the registered instrument has been
registered under sub-section (2) of section 30 of the Indian
Registration Act, 1908, from the earliest date on which any
memorandum of such registered instrument has been filed
by the Sub-registrar. Admittedly, Ex.D3 is an instrument
registered and plaintiffs had knowledge about the
execution of registered Will, the plaintiffs ought to have
filed the suit for declaration of title within 3 years from the
date of death of Hanumanthappa. Admittedly, the plaintiffs
have not filed the suit for declaration of title within 3 years.
Further, defendants have not taken any defence in the
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written statement in regard to the limitation. However, as
per Section 3 of Limitation Act, 1963 which reads as under:
"3. Bar of Limitation: (1) Subject to the
provisions contained in sections 4 to 24(inclusive),
every suit instituted, appeal preferred, and
application made after the prescribed period shall be
dismissed, although limitation has not been set up
as a defence."
21. Section 3 of the Limitation Act, 1963, provides
bar of limitation wherein the suit instituted after the
prescribed period shall be dismissed although limitation
has not been set up as a defence. Admittedly, in the
instant case, the defendants have not set up the plea of
limitation, however, the trial Court has dismissed the suit.
The First Appellate Court, without considering the fact that
the suit filed by the plaintiffs is barred by limitation has
proceeded to pass impugned judgment without framing
point for consideration issue of limitation. However, in
rebuttal, defendant No.1 was examined as DW.1 and he
has reiterated written statement averments in the
examination-in-chief and also produced the documents
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Ex.D1 .e., certified copy of release deed executed by
Thimmakka relinquishing her rights in favour of Gundappa
and Hanumanthappa; Ex.D2 is the certified copy of
relinquishment deed; Ex.D3 is the original register Will
executed by Hanumanthappa in favour of defendant No.2
bequeathing 'C' schedule property; Ex.D4 is the death
certificate of Hanumanthappa; Ex.D5 is the certified copy
of the order passed by the Assistant Commissioner wherein
plaintiffs have challenged the entries in the record of rights
which stood in the name of defendant No.2, which stood in
the name of defendant No.2. The Assistant Commissioner
vide order as per Ex.D5 dismissed the appeal and name of
defendant No.2 continued in the record of rights; Ex.D6 is
the RTC extract in respect of 'C' schedule property which
indicates that defendant No.2 is in possession of the suit
schedule properties and Ex.D7 is the receipt of Patta.
22. The suit filed by the plaintiffs is barred by
limitation as per Article 58 of the Limitation Act, 1963 as
the plaintiffs had a knowledge about Ex.D3 as the said
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document at Ex.D3 and Ex.P1 were executed on the same
dayi.e., 12.05.1981. The plaintiffs did not choose to
challenge the registered Will deed within three years from
the date of registration of the Will. The plaintiffs filed a suit
in the year 1996. Thus, the defendants have proved that
the suit filed by the plaintiffs is barred by limitation. Thus,
the suit filed by the plaintiffs is barred by limitation.
23. In view of the above discussion, additional
substantial question No.1 is answered in Affirmative and as
already observed above, the suit is barred by limitation.
Therefore, question of considering other substantial
question of law does not arise for consideration.
24. In view of the above discussion, I proceed to
pass the following:
ORDER
The appeal is allowed.
The judgment and decree passed by the
First Appellate Court is set aside.
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The judgment and decree passed by the
trial Court is restored.
No order as to the cost.
SD/-
JUDGE
SKS/NR
