Karnataka High Court
S Raju S/O Late Siddappa vs Venkatesh S/O Kaveri Gowda on 2 May, 2025
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF MAY, 2025
BEFORE
THE HON'BLE MR. JUSTICE K. V. ARAVIND
REGULAR SECOND APPEAL No.611/2012
BETWEEN:
1 . S. RAJU,
S/O LATE SIDDAPPA,
AGED ABOUT 55 YEARS,
R/AT No.46/A, (OUT HOUSE),
CHAMALLA MUTT ROAD,
2ND CROSS, MANDI MOHALLA,
MYSORE-570001.
2. M.R. GIRISH,
S/O LATE RAJASHEKAR,
AGED ABOUT 31 YEARS,
R/AT BEHIND SHISHUVIHAR,
AGRAHARA, TUMKUR-572101.
3. SMT. RAJESHWARI,
D/O LATE SIDDAPPA,
AGED ABOUT 60 YEARS,
R/AT No.46/A,(OUT HOUSE),
CHAMALLA MUTT ROAD,
2ND CROSS, MANDI MOHALLA,
MYSORE-570001.
...APPELLANTS
(BY SRI K.V. PRAKASH, ADVOCATE)
AND:
1 . VENKATESH,
S/O KAVERI GOWDA,
AGED ABOUT 52 YEARS,
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R/AT No. 33, A.T. STREET,
MANDI MOHALLA,
MYSORE-570001.
...RESPONDENT
(VIDE ORDER DATED 18.12.2024 NOTICE TO RESPONDENT
HELD SUFFICIENT)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 R/W ORDER XLII RULE 1 OF THE CPC PRAYING
TO AGAINST THE JUDGMENT AND DECREE DATED 04.01.2012
PASSED IN R.A. No.6/2011 ON THE FILE OF THE III
ADDITIONAL DISTRICT JUDGE AT MYSORE, DISMISSING THE
APPEAL AND FILED AGAINST THE JUDGMENT AND DECREE
DATED 19.10.2010 PASSED IN O.S. No.275/2001 ON THE FILE
OF THE JUDGE, COURT OF SMALL CAUSES AND SENIOR CIVIL
JUDGE, MYSORE.
THIS REGULAR SECOND APPEAL HAVING BEEN HEARD
AND RESERVED FOR JUDGMENT, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
CORAM: HON'BLE MR. JUSTICE K. V. ARAVIND
C.A.V. JUDGMENT
This appeal is filed by plaintiff Nos.2, 3 and 4 being
aggrieved by the judgment and decree dated 19.10.2010
in O.S. No.275/2001 passed by the Court of the Small
Causes and Senior Civil Judge, Mysore, as well as the
order dated 04.01.2012 passed by the III Additional
District Judge, Mysore, in R.A. No. 6/2011.
2. The parties are referred to by their ranks as assigned
in the original suit, for the sake of convenience.
3. The brief facts, as gathered from the pleadings, are
that the plaintiffs instituted the suit against the defendant
seeking a declaration that they are the absolute owners of
the suit schedule property and for a permanent injunction
restraining the defendant from putting up any construction
on the suit schedule property. The suit schedule property
comprises of premises bearing Municipal D. No.46, New
No. M-34/1, K.T. Street, Mandi Mohalla, Mysore City,
measuring East to West 34 feet and North to South 18
feet.
3.1 It is pleaded that the entire property bearing
Municipal D. No.46 originally belonged to one N.H.
Sangappa, the father of plaintiff No.1 and grandfather of
plaintiff No.2. After the demise of N.H. Sangappa, plaintiff
No.1's brother, M.S. Nanjappa, instituted a suit in O.S.
No.566/1964 on the file of the I Additional Munsiff,
Mysore, seeking a declaration, which ended in a
compromise. As per the compromise, plaintiff No.1 was
allotted an area measuring 33 feet x 18 feet from out of
the entire extent of the property bearing D. No.46 and the
remaining portion was retained by M.S. Nanjappa.
Subsequently, the wife of M.S. Nanjappa, namely,
Smt. Bharamakka, mortgaged the suit property in favour
of one H.N. Doddabasappa. Plaintiff No.1 purchased the
equity of redemption under the said mortgage, and the
defendant's father late Kaverigowda, was inducted as a
tenant in the year 1968. The tenancy in respect of the suit
schedule premises was attorned in favour of plaintiff No.1,
pursuant to her purchase of the equity of redemption
under the deed of mortgage dated 29.08.1969.
3.2 Plaintiff No.1 filed a suit against Kaverigowda, the
father of the defendant, in S.C. No.129/1970 for recovery
of arrears of rent, which came to be decreed. Late
Kaverigowda preferred an appeal before this Court, and
the said judgment and decree were set aside and
remanded. After the remand, plaintiff No.1 withdrew the
suit with liberty to file a fresh suit. It is stated that during
the pendency of the said suit, the vendor of the defendant,
represented by his natural guardian and mother Smt.
Bharamakka, along with her son Shivaswamy, sold the
property in favour of plaintiff No.1 under a registered sale
deed dated 10.04.1971. It is further stated that
possession of the property continued with the tenant late
Kaverigowda, the father of the defendant.
3.3. Subsequently, plaintiff No.1 filed a suit against late
Kaverigowda in O.S. No.109/1979, which was later
renumbered as O.S. No.117/1983, on the file of the II
Munsiff, Mysore, seeking a mandatory injunction.
However, the said suit came to be dismissed for non-
prosecution.
3.4 Late Kaverigowda filed O.S. No.315/1974 on the file
of the I Additional Munsiff, Mysore, against plaintiff No.1
seeking the relief of permanent injunction. Further, in the
written statement filed by Kaverigowda in O.S.
No.117/1983, it was specifically contended that S.N. Raja,
son of Smt. Bharamakka, had sold the suit schedule
property in his favour under a registered sale deed dated
29.08.1977.
3.5 The plaintiffs have asserted their right, title, and
interest over the suit schedule property based on the
registered sale deed dated 10.04.1971. The defendant has
denied the plaintiffs' right, title, and interest, relying on
the registered sale deed dated 29.08.1977 executed by
S.N. Raja in his favour. The Trial Court, on consideration
of the pleadings, framed the following issues for
determination. One of the issues framed pertained to the
question of limitation. The issues framed by the Trial
Court are as under,
"1. Whether the plaintiffs prove their title to the
plain schedule property as alleged?
2. Do they further prove that the defendant is
the tenant under them in respect of the suit
schedule property?
3. Do they further prove that the defendant has
caused damages to the structure of the suit
schedule property as alleged?
4. Whether the Court fee paid is sufficient?
5. Whether the plaintiffs are entitled for the
relief's as sought ?
6. What order or decree?
Addl. 1. Whether the suit is barred by limitation?"
4. The Trial Court, after considering the evidence and
pleadings of the parties in the present suit as well as in
the prior proceedings, held that the assertion regarding
the execution of the sale deed dated 10.04.1971, namely,
that S.N. Raja was minor and was represented by his
mother Smt. Bharamakka was incorrect. It was held that
as on the date of the sale deed dated 10.04.1971, S.N.
Raja had attained majority and the said sale deed was not
valid. The Trial Court further held that the sale deed dated
29.08.1977 executed by S.N. Raja in favour of the
defendant's father was subsequent to S.N. Raja attaining
majority. It also observed that the original sale deed
dated 10.04.1971, said to have been executed by Smt.
Bharamakka and Shivaswamy, was not produced before
the Court. Additionally, the Trial Court found that the
defendant had categorically denied the plaintiffs'
ownership of the suit property in the earlier suit instituted
in O.S. No.109/1979, and that the dismissal of the said
suit had attained finality. Accordingly, the Trial Court held
that the present suit, seeking the same relief and filed
beyond the period of three years, was barred by limitation,
and dismissed the suit.
5. The plaintiffs preferred appeal under Order XLI Rule
1 of CPC read with Section 96 of CPC. The First Appellate
Court formulated the following points for its determination,
"1. Whether the defendant has proved that the
suit is barred by limitation?
2. Whether the Judgment and Decree passed
by the Trail Court needs to be set aside or
modified? "
6. The First Appellate Court, while upholding the
findings of the Trial Court that the suit was barred by
limitation, dismissed the appeal. The judgments and
decrees passed in the original suit and the first appeal are
brought under challenge in the present second appeal by
raising the following substantial questions of law:
"1. Whether the trial court and first appellate
court are right in dismissing the suit without
looking at the earliest sale deed dated 10.04.1971
executed by Smt. Bharamakka, her son and on
behalf of a minor son S.N. Raju in favour of 1st
plaintiff as against a subsequent sale deed
executed by S.N.Raja (Smt. Bharamakka's one
son) in favour of Kaveri Gowda on 29-08-1977 who
had no manner of right title and interest at that
point of time without challenging the earlier Sale
Deed.
2. Whether the trial court and 1st appellate
courts are justified in dismissing the suit and the
appeal without appreciating the legal fact that the
defendant's father Kaveri Gowda was a tenant
under 1st plaintiff's vendor and as such the
defendant continued to be the tenant in respect of
the suit schedule property.
3. Whether the lower courts and lower appellate
court are justified in coming to the conclusion that
the title to the suit schedule property was not
passed on in favour of the 1st plaintiff without there
being any challenge from any of the executants."
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7. Learned counsel appearing for the appellants submits
that the Courts below failed to consider that the registered
sale deed dated 10.04.1971 executed in favour of plaintiff
No.1 was prior in point of time to the sale deed dated
29.08.1977 relied upon by the defendant. It was
contended that much before the sale deed executed in
favour of Kaverigowda, a valid sale deed had been
executed in favour of plaintiff No.1, who was also in
possession of the suit schedule property. It was further
submitted that since the sale deed dated 10.04.1971 is a
document anterior in time to the sale deed dated
29.08.1977, and the same having not been challenged by
the defendant, the Courts below erred in ignoring its
evidentiary value and in failing to record appropriate
findings with respect to the sale deed dated 10.04.1971.
8. It is submitted that the father of the defendant was
merely a tenant under plaintiff No.1, and therefore, the
period of limitation, as recorded by the Courts below, is
not applicable in this case.
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8.1 Learned counsel further submits that the Courts
below have erroneously applied the principle of limitation
and committed a grave error in dismissing both the suit
and the appeal on the grounds of limitation.
9. Having heard learned counsel for the appellants and
considered the submissions, it is observed from the
pleadings that the plaintiffs have claimed rights, title, and
interest in the suit schedule property under the registered
sale deed dated 10.04.1971. It is further contended that
Kaverigowda, the father of the defendant, was a tenant
and that he has no right, title, or interest in the property.
10. Per contra, the defendant has claimed rights, title,
and interest in the suit schedule property under the
registered sale deed dated 29.08.1977. The parties have
instituted multiple suits against each other, seeking
various reliefs. As evident from the order passed by the
Court below in O.S. No.109/1971, which was re-numbered
as O.S. No.117/1983, instituted by the plaintiff, the father
of the defendant has disputed the plaintiff's title to the
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property. The said suit was dismissed as the plaintiff had
failed to take any action or institute any proceedings for
more than twelve years. In that suit, the relief sought
was to declare plaintiff No.1 as the owner of the suit
schedule property. In the present suit, a similar prayer has
been made. The title of plaintiffs over the suit schedule
property was disputed 12 years prior to institution of the
present suit. The present suit in question is completely
barred by limitation.
11. The findings recorded by the Trial Court, which were
affirmed by the Appellate Court, are well-reasoned and
based on a thorough evaluation of the facts and evidence.
Both Courts have properly considered the claims and legal
aspects, and their decisions are logically sound. There is
no infirmity or perversity in the orders that would warrant
interference by this Court. The judgments passed by the
Courts below are in accordance with the law, and no
substantial question of law arises for consideration.
12. The appeal is meritless. Accordingly, dismissed.
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In view of dismissal of main appeal, pending
interlocutory application, if any, stands disposed of as not
surviving.
Sd/-
(K. V. ARAVIND)
JUDGE
MV
