Karnataka High Court
Smt S Anasuyamma vs Sri S V Babu Reddy on 7 February, 2025
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
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CRP No. 489 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
CIVIL REVISION PETITION NO. 489 OF 2022 (IO)
BETWEEN:
1. SMT. S. ANASUYAMMA
AGED ABOUT 69 YEARS,
W/O. LATE S. SUNDAR RAMA REDDY,
RESIDING AT NO.61, SOUTH END ROAD,
NAGASANDRA BASAVANAGUDI,
BANGALORE -560 004.
2. SMT. CHANDRAKALA S
AGED ABOUT 48 YEARS,
W/O. SRI. RAGHPATHI REDDY,
D/O. LATE SRI. S. SUNDAR RAMA REDDY,
R/AT. NO.61, SOUTH END ROAD,
BASAVANAGUDI, BANGALORE-560 004,
REPRESENTED BY HER
POWER OF ATTORNEY HOLDER
SRI. RAGHPATHI REDDY,
AGED ABOUT 47 YEARS,
R/AT NO.61, SOUTH END ROAD,
Digitally signed by B
BASAVANAGUDI, BANGALORE -560 004.
K
MAHENDRAKUMAR
BK Location: HIGH
MAHENDRAKUMAR COURT OF
KARNATAKA
DHARWAD BENCH
...PETITIONERS
Date: 2025.02.20
16:40:30 +0530 (BY SRI. DILIP KUMAR I.S., ADVOCATE)
AND:
1. SRI. S.V.BABU REDDY
AGED ABOUT 50 YEARS,
S/O. LATE A. VENKATESH REDDY,
R/AT. NO.56, 10TH CROSS,
SARAKKI J.P.NAGAR, I PHASE,
BANGALORE -560 078.
2. SRI. VENKATASWAMY REDDY A
AGED ABOUT 69 YEARS,
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CRP No. 489 of 2022
S/O. LATE ABBAIAH REDDY,
R/AT NO.56, 9TH CROSS,
I G CIRCLE, J.P.NAGAR I PHASE,
BANGALORE -560 078.
3. SRI. RAGHURAM REDDY G
AGED ABOUT 34 YEARS,
S/O. LATE GOPAL REDDY A.,
R/AT NO.56, 10TH CROSS,
SARAKKI J.P.NAGAR I PHASE,
BANGALORE -560 078.
4. SRI. ANAND REDDY S
AGED ABOUT 40 YEARS,
S/O. LATE SRINIVAS REDDY,
R/AT NO.56, 10TH CROSS,
SARAKKI JP NAGAR, I PHASE,
BANGALORE -560 078.
5. SRI. ARUN KUMAR S
AGED ABOUT 33 YEARS,
S/O. LATE SRINIVASA REDDY,
R/AT NO.56, 10TH CROSS,
SARAKKI JP NAGAR I PHASE,
BANGALORE -560 078.
6. SMT. VIMALA A
AGED ABOUT 60 YEARS,
W/O. NANJUNDESH REDDY,
R/AT NO.133, 7TH CROSS,
MUNEKOLALLU MARATHALLI POST,
BANGALORE -560 037.
7. SRI. SUNDAR RAJ S
SINCE DEAD BY HIS LR's.,
7(A). SMT. VARALAKSHMI N
AGED ABOUT 58 YEARS,
W/O. LATE SUNDAR RAJ S.
7(B). SRI. PREETHAM S.
AGED ABOUT 34 YEARS,
S/O. LATE SUNDAR RAJ S.
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CRP No. 489 of 2022
7(C). SMT. DIVYA REDDY
AGED ABOUT 31 YEARS,
D/O. LATE SUNDAR RAJ S.
7(A) TO 7(C) ALL ARE R/AT: E-2, B BLOCK,
KRISHNA RESIDENCY, 9TH A CROSS,
J.P.NAGAR, 1ST PHASE, SHIVA TEMPLE,
BENGALURU SOUTH, BENGALURU-560076.
...RESPONDENTS
(BY SRI. SHIVARUDRAPPA SHETKAR, ADV. FOR R1 TO R6;
R7(A) TO R7(C) -SERVED)
THIS CIVIL REVISION PETITION IS FILED UNDER SECTION
115 OF CPC PRAYING TO SET ASIDE THE ORDER PASSED ON
I.A.NO.3 FILED UNDER ORDER VII RULE 11(a) AND (b) R/W.
SEC.151 OF CPC DATED 28.09.2022 IN O.S.NO.8435/2018 PASSED
BY THE XXXV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU (CCH-36) AND ALLOW THE APPLICATION AND
REJECTING TO PLAINT ALSO ALLOW AND THIS PETITION.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR
ORAL ORDER
The petitioner-defendants challenge in civil revision the order
dated 28.09.2022 passed by the Trial Court in O.S No. 8435/2018
wherein, their application seeking rejection of plaint filed under
Order 7 Rule 11 (a) and (d) r/w Section 151 of CPC came to be
rejected.
1.1. In short, the defendant-revision petitioners herein seek
the rejection of a plaint instituted after lapse of 16 years from the
date of execution of a registered sale deed on the grounds that the
same is ex facie barred by limitation under Article 65 of the
Limitation Act, 1963, and that the plaintiffs had deemed knowledge
of the same via registration of the impugned deed of sale on
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30.08.2003. Conversely, the plaintiffs allege fraud and that the
plaint had been promptly instituted upon the fact of execution and
registration of the impugned instruments having come to their
knowledge. The allegedly fraudulent execution of the impugned
instruments however, have been followed by a change in the Khata
of the scheduled property in favour of the defendants, respectively,
as and when such impugned conveyances were executed.
2. The Respondents/ plaintiffs have filed a suit for
declaration of title, and recovery of possession, and more
specifically seeking to declare the following:
I. The unregistered GPA dated 10.6.1999 purportedly executed
by the plaintiff no.2 in favour of one deceased Sundarram Reddy is
void, non-est and to be not binding on the plaintiffs;
II. The sale deed dated 30.08.2003, registered as document no.
3103/03-04 executed by the deceased Sundarram Reddy in favour of
the defendants No.1 is void, non-est and to be not binding on the
plaintiffs, and also further to cancel the said sale deed.
III. The Gift deed dated. 30.10.2016 executed by Defendant no.1
in favour of Defendant no.2, registered as document no. JGN-1-
03625/16-17 is void, non-est and to be not binding on the plaintiffs,
and also further to cancel the said Gift deed.
3. The Plaintiffs claim to be the owner of the suit
schedule property having inherited the same upon the demise of
their mother Lingamma on 16.03.1993 and claim to be in joint
possession of the same ever since. The deceased propositus
acquired the schedule property vide Gift Deed dated 28.01.1974,
registered as Document No. 3978/1973-74, conveyed by her
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husband and original owner, Late Abbaiah Reddy. Thereafter, upon
becoming an absolute owner, the deceased propositus had further
gifted two portions within the larger gifted property, to her sisters
vide two separate registered Gift Deeds dated 01.04.1974. The
remainder thereof is the scheduled property herein.
4. The plaint further reveals that the plaintiffs had agreed
to partition the suit schedule property at a later date amongst the
plaintiffs, and further, include one Shri Sundarram Reddy as a
sharer in the schedule property. Shri Sundarram Reddy is
described as a cousin of the Plaintiffs No. 2, 6, and 7 and is
alleged to have been in permissive possession of the scheduled
property, as another property in the exclusive ownership of Shri
Sundarram Reddy, was in joint possession of the plaintiffs and Shri
Sundarram Reddy as one whole property. Hence, the plaintiffs
contend that the plaintiffs and Shri Sundarram Reddy (d.
18.12.2015) have been in joint possession of the scheduled
property ever since.
5. Thereafter, upon long passage of time, the plaintiffs
contend that upon approaching the defendant No. 1 (wife of late
Shri Sundarram Reddy) and requesting the latter to handover the
possession of the scheduled property to the plaintiffs, the
defendant No. 1 refused the same and per contra, alleged that she
had been in possession of the same as a rightful and absolute
owner, as a purchaser of the scheduled property vide sale deed
dated 30.08.2003, registered as document No.3103/03-04, in the
office of the jurisdictional Sub-Registrar, Basavangudi. The plaint
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further reveals that the said sale deed had been executed by the
now deceased Shri Sundarram Reddy, in his purported capacity as
a General Power of Attorney (GPA holder) vide unregistered GPA
dated 10.06.1999, purportedly executed by plaintiff No. 2.
Subsequently, the scheduled property was gifted to defendant No.
2, vide gift deed, registered as registered as document no. JGN-1-
03625/16-17. The defendants in their written statement have
contended and produced Khatas of the scheduled property which
have been effected in the names of defendants No. 1 and 2, at the
relevant times of registration of the respective deeds of
conveyance.
6. The plaintiffs therefore, now contend that Shri
Sundarram Reddy who had been in actual physical possession of
the scheduled property, had fraudulently conveyed the said
property in favour of his wife in August, 2003, who then conveyed
the property in favour of their daughter in October 2016. The same
having come to their knowledge on 10.06. 2018, the plaintiffs felt
aggrieved, and as such have filed the subject plaint on 24.11.2018.
7. The defendants entered appearance and filed an
application under Order 7 Rule 11(a) and (d) of CPC, 1908
contending that the impugned sale deed was executed in the year
2003 based on the GPA executed in the year 1999, and therefore,
the suit is barred by limitation as per Articles 58 and 59 of the
Limitation Act, 1963. The Trial Court rejected the application, vide
the passing of the impugned order.
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7.1. Aggrieved the defendants have filed the instant civil
revision petition.
8. Learned counsel for the petitioner argues that, the
plaintiff was seeking for declaration to cancel the registered sale
deed dated 30.8.2003 and therefore the plaintiffs are deemed to
have the knowledge of the execution of the sale deed as stated
under Section 3 of the Transfer of Property Act. Therefore the suit
filed beyond the limitation period of 12 years as stated under Article
65 of the Limitation Act is barred by limitation.
In support, reliance is placed upon the following:
i. Dilboo (Smt) (Dead) by LRS. and Others -vs- Dhanraji (Smt) (Dead)
and Others, (2000) 7 SCC 702 (Para 20) - whenever a document is
registered the date of registration becomes the date of deemed
knowledge
ii. Smt Mallama and Ors. v. Shri Mallegowda @ Karigowda and Ors, ILR
2022 KAR 992 - (Para 11) - relief of either cancellation or declaration
that the sale deed does not bind the plaintiffs is barred by limitation;
astute drafting and issuance of notice shall not accrued a cause of
action in relation to time barred remedies.
iii. Metropolis Overseas, Limited, v. H.S. Deekshit and Ors, in CRP No.
307 of 2020 : DD14.09.2021, MANU/KA/4213/2021.
9. Learned counsel appearing for the respondents/plaintiffs
submitted that the petitioners/defendants have filed a counterclaim
seeking declaration that they are the owners of the suit schedule
property under registered sale deed or in the alternative to be
declared as owner by way of adverse possession.
9.1. The learned Counsel further contended that the
Petitioners/defendants having admitted the ownership of the
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plaintiffs/respondents over the subject property, the application filed
under Order VII Rule 11(d) of Code of Civil Procedure (for short
'CPC') is not maintainable. Therefore, the question of limitation is a
mixed question of law and fact and the same can be considered at
the time of trial.
9.2. The Learned counsel for Respondent/ Plaintiffs further
submitted that the Petitioners/defendants having filed the counter
claim cannot maintain an application under Order VII Rule 11(d) of
CPC.
9.3. He further argued that since the possession of the
petitioners/defendants is purportedly based on a void document
and the respondent/plaintiffs ought to have filed the suit within 12
years as prescribed under Article 65 of the Limitation Act, 1963, the
counter claim is independent of the Plaint and therefore rejection of
the Plaint under Order VII Rule 11(d) of CPC will not be a bar to
consider the counter claim independently.
In support, reliance is placed on the following:
i. Smt Noor Aftab Parveen and Ors v. Sri. H.N Chandrashekar and Ors)
RSA No. 864/2015 : DD 151.01.2021 (Para 4)
ii. Essem Logistics v. Darcel Logistics Ltd and Anr (2023) 9 SCC 753,
(Para 11)
10. Heard the learned counsels and perused the material
on record. The issue that arises for consideration is whether the
subject plaint warrants rejection under Order 7, Rule 11 (a) and (d)
r/w Section 151 of CPC, as ex facie barred by the law of limitation,
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on grounds of the plaintiffs having deemed knowledge of the
allegedly fraudulent impugned instruments upon their registration.
11. The relevant facts necessary for the disposal of this
revisional proceeding have been adequately recorded in the
preceding paragraphs and require no further elaboration.
12. The impugned order dated 28.09.2022 passed by the
Trial Court below dismissing the application for rejection of plaint
has recorded that no admission is made by the plaintiffs in their
plaint about their awareness of execution of the sale deed dated
30.02.2003 by the GPA Holder in favour of defendant No.1.
Furthermore, the Court observed therein that the plaintiff came to
know about registration of sale deed only in the month of June,
2018 when the plaintiffs had contacted defendant no.1 for seeking
partition and possession of the suit property.
12.1. Therefore, the Trial Court observed that where the
recitals of the plaint did not disclose any knowledge on part of the
plaintiffs, the onus of proof of petitioners having knowledge of the
execution of the impugned sale deed or the GPA purportedly
executed by the plaintiff No. 2, would necessarily shift on the
applicant seeking rejection of plaint. Hence, in absence of the
same, the Trial Court has dismissed the defendants' application
seeking rejection of the plaint.
13. In view of the proposed order and the reasons
recorded hereunder, I am of the opinion that the impugned order
does not warrant interference at the hands of this Court, and the
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subject plaint cannot be rejected under the provisions of Order 7,
Rule 11(d) of CPC, 1908.
14. It is now settled law that unless a suit is ex facie barred
by the law of limitation, the issue of limitation remains a mixed
question of law and fact, and is a matter of trial. Therefore, the
issue of rejection of a plaint in revisional proceedings before this
Court merits a limited scope of enquiry as to whether the subject
plaint herein stands ex facie barred by limitation. It is further
needless to observe that the question as to whether the suit is
barred by any law, would always depend upon the facts and
circumstances of each case, and the real object of the provision
contained in Order 7, Rule 11 (d)) is to reject irresponsible and
meaningless lawsuits (See, Madnuri Sri Rama Chandra Murthy v.
Syed Jalal, (2017) 13 SCC 174, and Sopan Sudhdeo Sable and
Others v. Assistant Charity Commissioner and Others, (2004) 3
SCC 137).
15. Before proceeding any further, it is pertinent to advert
to the governing provisions and precedents established in relation
to 'deemed knowledge' or 'constructive notice'.
15.1. Section 3 of the Transfer of Property Act, 1882, deals
with interpretation, and the relevant portion reads thus -
"3. Interpretation clause -
...
a person is said to have notice of a fact when he actually
knows that fact, or when, but for wilful abstention from an
enquiry or search which he ought to have made, or gross
negligence, he would have known it.
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Explanation I.-- Where any transaction relating to immoveable
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 (16 of 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:
Provided that--(1) the instrument has been registered
and its registration completed in the manner prescribed by the
Indian Registration Act, 1908 (16 of 1908), and the rules made
thereunder, (2) the instrument or memorandum has been duly
entered or filed, as the case may be, in books kept under
section 51 of that Act, and (3)the particulars regarding the
transaction to which the instrument relates have been correctly
entered in the indexes kept under section 55 of that Act.
Explanation II.--Any person acquiring any immovable property
or any share or interest in any such property shall be deemed
to have notice of the title, if any, of any person who is for the
time being in actual possession thereof.
Explanation III.--A person shall be deemed to have had notice
of any fact if his agent acquires notice thereof whilst acting on
his behalf in the course of business to which that fact is
material: Provided that, if the agent fraudulently conceals the
fact, the principal shall not be charged with notice thereof as
against any person who was a party to or otherwise cognizant
of the fraud."
15.2. Therefore, in terms of Explanation 1 to Section 3 of the
TP Act, an instrument which is compulsorily registrable, and the
registration thereof is completed in the manner contemplated under
the Registration Act of 1908, and where the entry of particulars
regarding the transaction is correctly entered in the indexes kept
under Section 55 of the said Act, a registration of an instrument
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may operate as a constructive / deemed notice, as unto the recitals
of the said instrument.
16. Section 17 of the Limitation Act, 1963 deals with Effect
of fraud and reads thus -
"(1) Where, in the case of any suit or application for which a
period of limitation is prescribed by this Act,--
(a)the suit or application is based upon the fraud of the
defendant or respondent or his agent; or
(b)the knowledge of the right or title on which a suit or
application is founded is concealed by the fraud of any
such person as aforesaid; or
(c)the suit or application is for relief from the
consequences of a mistake;or
(d) where any document necessary to establish the right
of the plaintiff or applicant has been fraudulently
concealed from him,
the period of limitation shall not begin to run until the
plaintiff or applicant has discovered the fraud or the
mistake or could, with reasonable diligence, have
discovered it; or in the case of a concealed document,
until the plaintiff or the applicant first had the means of
producing the concealed document or compelling its
production:
Provided that nothing in this section shall enable any suit
to be instituted or application to be made to recover or enforce
any charge against, or set aside any transaction affecting, any
property which--
(i) in the case of fraud, has been purchased for valuable
consideration by a person who was not a party to the
fraud and did not at the time of the purchase know, or
have reason to believe, that any fraud had been
committed, or
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(ii) in the case of mistake, has been purchased for
valuable consideration subsequently to the transaction in
which the mistake was made, by a person who did not
know, or have reason to believe, that the mistake had
been made, or
(iii) in the case of a concealed document, has been
purchased for valuable consideration by a person who
was not a party to the concealment and, did not at the
time of purchase know, or have reason to believe, that
the document had been concealed".
(emphasis supplied)
16.1. Therefore, where the subject plaint is instituted upon
the alleged fraud of the defendant; and the fraudulent conveyances
having been executed (the first of the them having been executed
on 30.08.2003) on the basis of the allegedly forged unregistered
GPA purportedly executed by the plaintiff No.2 on 10.06.1999 in
favour of the deceased Shri Sundarram Reddy; and the contention
that the plaintiffs have not yet been able to obtain the concealed
GPA, coupled with the fact the plaintiffs had not until 10.06.2018
or until the institution of the subject suit had any means to compel
the production thereof, the period of limitation cannot have begun
until the plaintiffs had not discovered the allegedly forged and
concealed GPA, purportedly executed by the plaintiff No. 2.
17. The learned Counsel for respondent-plaintiffs further
contends that the defendants have herein made a counter claim for
declaration of title, which is independent of the claim made in the
subject plaint. He places reliance on the decision of the Apex Court
in the case of Essem Logistics v. Darcl Logistics Limited,
(2023) 9 SCC 753, wherein it was observed at para 11 as follows:
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"11. It is well recognised that in view of Order 8 Rule 6-A(4)
CPC, 1908 a counterclaim is virtually a plaint and an
independent suit. It is also a settled proposition of law that a
plaint which falls within the teeth of the conditions laid down
under Rule 11 of Order 7 CPC which is liable to be rejected at
the threshold for which the plaint allegations alone are
required to be considered and nothing else."
There is no quarrel with the above proposition.
18. The learned counsel (appearing for the respondent-
plaintiffs) further drew the attention of this Court to the decision of
Smt Noor Aftab Parveen and Ors v. Sri. H.N Chandrashekar
and Ors) RSA No. 864/2015 : DD 151.01.2021, wherein a
coordinate Bench of this Court had dealt with the issue of
extinguishment of a right to suit property under Section 27 of the
Limitation Act, 1963 therein. This Court observed that where the
defendant contented graduation of possession by the plaintiff into
adverse possession, the right of the plaintiff to sue for possession
would remain till the defendant acquired a positive title, to the
exclusion of the plaintiff.
19. In the instant case, where the defendants have made
a counter claim for declaration of the title to the scheduled
property, the right of the plaintiff herein to maintain an action for
declaration of the same cannot be held to be non-existent, when
the fact of an allegedly forged unregistered General Power of
Attorney dated 10.06.1999 executed in favour of the deceased
Shri Sundarram Reddy, was only brought to the knowledge of the
plaintiff on 10.06.2018. Hence, the period of limitation can begin to
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run from thereon, and the subject suit for declaration and
possession having been filed within the period of limitation of 12
years, from the date of the knowledge of the possession of the
defendants having become exclusive and adverse to that of
plaintiffs.
20. In the case of Daliben Valjiben and Ors v. Prajapathi
Kodarbhai Kachrabhai and Anr 2024 INSC 1049, where a sale
deed was challenged after a lapse of 13 years from the date of its
registration on grounds of fraud and forgery, and the entry of sale
deeds in the revenue records was not in compliance with the
governing resolution issued by the Department of Revenue, the
Hon'ble Supreme Court dismissed an application for rejection of
plaint and held that the period of limitation would not commence
from the date of registration of the allegedly fraudulent impugned
instruments, where the knowledge of of the same was not
forthcoming from the averments in the plaint.
20.1. The Court further relied on its earlier decision rendered
in the case of PV Guru Raj Reddy v. P Neeradha Reddy (2015) 8
SCC 331, wherein it was observed that that the claim of plaintiffs
with regard to the knowledge of essential facts giving rise to the
cause of action as pleaded will have to be accepted as correct"
and that pleadings averred in the written statement would irrelevant
to adjudicate upon the issue of rejection of plaint. The Court in the
case of Guru Raj Reddy (supra) had further observed that the
plaint shall warrant rejection only if the averments therein revealed
that the suit appeared to be barred under any law, and that claims
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shall in all other situations will have to be adjudicated upon in a
trial.
20.2. The Court in Daliben Valjiben had further referred to its
earlier decision in the case of Chhotanben v. Kirtibhai
Jalkrushnabhai Thakkar, (2018) 6 SCC 422, wherein the Court had
observed that the period of limitation shall in a case for suit for
cancellation of sale deed will arise from the date of knowledge of
execution of the alleged fraudulent instruments.
21. Before proceeding to pronounce the order, it is
pertinent that following authorities relied upon by the petitioner-
defendants be dealt with. In the case of Dilboo (Smt) (Dead) by
LRS. and Others -vs- Dhanraji (Smt) (Dead) and Others, (2000)
7 SCC 702, the Apex Court observed, "whenever the document is
registered the date of registration becomes the date of deemed
knowledge. In other cases where a fact could be discovered by
due diligence then deemed knowledge would be attributed to the
plaintiff because a party cannot be allowed to extend the period of
limitation by merely claiming that he had no knowledge".
21.1. The Supreme Court therein affirmed the dismissal of a
suit filed by descendents of a mortgagor against the descendents of
the mortgagee seeking redemption of mortgage wherein, the
mortgagee by executing a sale of mortgage property had created an
interest in excess of interest of mortgagee.The Court observed
therein where the perusal of the plaint revealed the predecessors-in-
title of the plaintiff had full knowledge of the transactions of mortgage
and subsequent sale by mortgagee, the period of limitation to
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institute a suit under such circumstances would be governed by
Article 134 of Limitation Act, 1908, which prescribed a 12 year period
of limitation to recover possession of mortgaged property which is
subsequently transferred by the mortgagee for a valuable
consideration. The Court negated the contention of the plaintiff that
the subject suit therein ought to be governed by Article 148 of the
Act of 1908, which prescribed the period of 60 years for redemption
of mortgage.
21.2. Therefore, the above ratio elucidating presumption of
constructive notice or deemed knowledge in rem unto the recitals of
a registered instrument, is applicable to cases where pleadings in
the plaint revealed predecessors-in-title of having notice of the
impugned transfer of mortgaged property by the mortgagee. Hence,
the same is inapplicable to the facts of instant case where pleadings
in the plaint do not reveal any knowledge of fraudulent execution of a
forged and unregistered GPA purportedly executed by the plaintiff
No.2.
22. In the case of Smt Mallama and Ors. v. Shri
Mallegowda @ Karigowda and Ors, ILR 2022 KAR 992, a
Division Bench of this Court had dismissed a suit for partition and
separate possession instituted by female coparceners in relation to
suit property alienated prior to 20.12.2004. As regards to the issue
of limitation, the claim of minor plaintiffs was dismissed on the
grounds that a suit which ought to have been instituted within a
period of three years upon attaining the age of majority, as
prescribed under Article 60 of Act of 1963, was not so filed. The
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above decision therefore, is not applicable to the case at hand, as
the subject plaint does not reveal any preexisting knowledge of the
alleged fraud.
23. In the case of Metropoli Overseas Limited v. HS
Deekhsit, CRP No. 307/2020 : DD 14.09.2021, a coordinate
Bench of this Court elaborated upon the essentials of a valid
registration of an instrument and further allowed the defendant's
application for rejection of plaint on the grounds that a registered
sale deed in relation to joint family property would amount to
constructive notice to all members of the joint family. A careful
scrutiny of the said judgment further reveals that the learned Judge
had elucidated that a 'cause of action' would not necessarily arise
as on the date of purchase of a property (immoveable) and
registration of the sale deed, but only when somebody would
interfere with the right to enjoy such property, for which a different
date would have been mentioned in the plaint.
23.1. The issue of a plaint being barred by law under Order
7, Rule 11 (d) of CPC, 1908 is essentially dependent upon the
facts and circumstances of each case. In the instant case, the
plaint averments reveal that plaintiffs had been in constructive
possession of the scheduled property on account of succession,
and the defendants had been in actual permissive possession of
the property. Thus, the cause of action arose in June 2018 when
the plaintiffs had realised that the purportedly permissive
possession of the defendants had become adverse to their title
derived through succession, on the basis of allegedly fraudulent
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GPAs and subsequent transfers. Therefore, the subject plaint does
not warrant rejection as being time-barred.
23.2. Furthermore, in light of the consistent position of the
Hon'ble Supreme Court that the period of limitation shall begin only
from the date of discovery of fraud, and the fact that impugned
transfers herein have been executed on the basis of an allegedly
fraudulent unregistered GPA in favour of the vendor in the first
impugned sale deed dated 30.08.2003, the ratio enunciated in the
case of Metropoli is inapplicable to the case at hand.
24. Thus, placing reliance upon the above, the learned
counsel for the petitioner-defendants contended that a bare
perusal of the plaint revealed that the petitioners have admitted
registration of the impugned sale deed executed by the Late Shri
Sundarram Reddy, purportedly in his capacity as the GPA Holder,
in favour of defendant No. 1 on 30.08.2023, and therefore, the
plaintiffs remain precluded from claiming lack of knowledge as
regards the execution of the impugned instrument.
25. In the instant case, although the allegedly fraudulent
transfers executed on 30.08.2003 and 30.10.2016 in favour of
defendant No. 1 and defendant No. 2 respectively, are registered
and Khatas in relation to the same are duly effected, but the same
having been executed on the basis of an unregistered GPA dated
10.06.1999 executed in favour of the deceased Shri Sundarram
Reddy (husband of defendant No. 1 and father of defendant No. 2),
the knowledge of the same cannot be deemed to have been with
the plaintiffs. Additionally, the averments in the plaint further reveal
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NC: 2025:KHC:5680
that the deceased Shri Sundarram Reddy had been in permissive
possession of the suit property, jointly with the plaintiffs, and the
same had not been adverse to the constructive possession of the
plaintiffs, until the date of actual notice, i.e., 10.06.2018.
Furthermore, the issue of whether impugned instruments herein
were discovered on the date as alleged in the plaint can only be
answered upon consideration of evidence adduced and is
therefore, a matter of trial.
26. Needless to mention, it is settled law that the period of
limitation shall begin to run from the date of knowledge of
execution of the allegedly fraudulent impugned instruments, and
that a plaint may not be ex facie barred by time on account of
deemed knowledge, via registration of the impugned allegedly
fraudulent document.
27. In light of the fact that plaint averments do not reveal
that the suit is ex facie barred by limitation, the issue of limitation
therefore becomes a mixed question of fact and law, and a matter
of trial.
Accordingly, the instant civil revision petition stands
dismissed.
Sd/-
(HEMANT CHANDANGOUDAR)
JUDGE
BKM
Ct:vh
