(PER: THE HON'BLE MR. JUSTICE C M JOSHI)
2. The parties would be referred to as per their rank
before the Trial Court for the sake of convenience.
3. The case of the plaintiff as may be found from her
and financial institutions. Defendant No.2 have
papers. They used it as a Varadi record. The
entered in the revenue records under M.E. No.
1927.
names were entered in the records.
which is now re-numbered as 101/1B. The
unauthorized and is not binding on the plaintiff.
defendant No.1. Such transfer by mutation
such void and invalid transfers.
of permanent injunction. Alternatively, she also
4. Pursuant to the summons issued by the Trial
5. Defendant No.1 contends that the contentions of
with law. He denied the plaint averments. Inter alia he
funds and by joint labour. It was contended that there was
property, the suit schedule property was purchased. He
future complications. Therefore, the plaintiff gave a Varadi
to be recorded. The plaintiff had not challenged the said
M.E.No.1927 for a period of more than 10 years. Defendant
was put in possession of the same. Therefore, the defendant
6. In subsequent additional written statements
suit is not maintainable.
7. Defendant Nos.2 and 3 despite service of
8. On the basis of the above pleadings, the
6. Whether the deft.No.1 proves that he is put in actual
possession and enjoyment of the suit 1 and by virtue
of sale deed?
NC: 2025:KHC-D:16063
HC-KAR
7. Whether the suit of the plff. is barred by limitation?
8. Whether the defendant No.1 proves that without
seeking the relief of cancellation of sale deed dated
2.9.1986, the suit is not maintainable?
9. Whether the plaintiff is entitled for any of the relief
claimed in the suit?
10. What decree or order?"
9. The plaintiff was examined as PW.1 and one
witness was got examined as PW.2. Ex.P.1 to 5 were
marked. Defendant No.1 examined himself as DW.1 and two
witnesses were examined as DW.2 and DW.3. Ex.D.1 to
D.45 were marked in evidence.
10. After hearing the arguments by both the sides,
the Trial Court answered issue Nos.1, 2, 5, 8, 9 in the
negative and the remaining issues in the affirmative and
proceeded to dismiss the suit.
11. Being aggrieved, the plaintiff approached the
First Appellate Court in R.A.No.17/2006. Before the First
Appellate Court, notice to defendant Nos.2 and 3 were
dispensed with.
- 10 -
NC: 2025:KHC-D:16063
HC-KAR
12. The First Appellate Court heard the learned
counsel for the appellant and respondent No.1. It framed
the following points for consideration and answering the
same in the negative, it dismissed the appeal.
"i) Whether the judgment and decree of the trial
court are erroneous and not based on the
correct facts and circumstances of the case? If
so, whether it requires interference by this
Court?
ii) To what order?"
13. Being aggrieved by the concurrent findings of
the Trial Court and the First Appellate Court, the plaintiff is
before this Court in second appeal. At the time of admitting
the appeal, following substantial question of law was framed
by this Court on 06.07.2012.
"Whether both the Courts bellow are justified
in dismissing the suit without properly
appreciating the fact that the defendant nos. 2
and 3 could not have sold property in favour of
defendant no. 1 particularly when there is no valid
records to show that defendant nos. 2 and 3 are
exclusive owners of the property?"
- 11 -
NC: 2025:KHC-D:16063
HC-KAR
14. The arguments by learned counsel appearing for
the appellant and respondent No.1 were heard.
15. The learned counsel appearing for the
appellant/plaintiff contends that both the Trial Court and the
First Appellate Court have not appreciated the evidence in a
proper perspective and they have not considered the law
applicable to the properties held by a female Hindu. It is
submitted that defendant Nos.2 and 3 could not have sold
the property in favour of defendant No.1, when there is no
valid title in their favour. In umpteen number of judgments,
the High Court and the Hon'ble Apex Court have held that
the transfer by mutation entry is not valid and it does not
convey any title to the receiver. He submits that the plaintiff
purchased the suit schedule property on 18.01.1963 and
she was enjoying the same. A Varadi in favour of defendant
Nos.2 and 3 to mutate their names in the year 1983 was
without her knowledge and approval. Even if it is held that
the mutation entry was effected in the name of defendant
Nos.2 and 3, it is not valid under law. The suit schedule
- 12 -
NC: 2025:KHC-D:16063
HC-KAR
property was a self acquired property of the plaintiff and
therefore, it is her exclusive and individual property.
16. Secondly, he submits that the Varadi given to
the revenue authorities is not in respect of any partition.
There is absolutely no pleading on record on behalf of
defendant No.1 to contend that the suit schedule property
was put into the hotchpot and it was amalgamated as the
joint family property of the plaintiff and defendant Nos.2
and 3.
17. Thirdly, he submits that the property purchased
by defendant Nos.1 is 3 acres 10 guntas, but the records
reveal that it is 3 acres 20 guntas and there is discrepancy
in the description of the property purchased by defendant
No.1. He further submits that the suit schedule property
was held by a Hindu woman and therefore, it cannot and
could not have been considered as the joint family property
unless there is cogent and clear evidence in this regard. It is
submitted that at no stretch of imagination, a transfer by
mutation entry can be recognized under law and as such the
- 13 -
NC: 2025:KHC-D:16063
HC-KAR
Trial Court and the First Appellate Court have erred in
dismissing the suit of the plaintiff.
18. Per contra, learned counsel appearing for
respondent No.1 submits that there is discrepancy in the
identification of the property. He submits that the property
purchased was 3 acres 10 guntas, but the property which
was in the name of the plaintiff was 3 acres 32 guntas. He
contends that suit schedule states that the total extent of
the land was 3 acres 32 guntas, but the property bearing
No.101/B is stated to be 3 acres 10 guntas. The original sale
deed in favour of the plaintiff is for 3 acres 10 guntas only.
Therefore, the plaintiff was not the owner at any point of
time to the extent of 3 acres 32 guntas and as such the
plaint has a discrepancy to that effect.
19. Secondly, he contends that as per Ex.D.16, the
property belongs to Yamanavva, who is mother of the
plaintiff and therefore, it is the property inherited by her.
Hence, he contends that there is justification for contending
that the suit schedule property is the joint property of the
plaintiff and defendant Nos.2 and 3. Regarding conduct of
- 14 -
NC: 2025:KHC-D:16063
HC-KAR
the plaintiff, he points out that PW.1 denies her own plaint
as well as the vakalath and therefore, her testimony is not
believable. He further contends that the plaintiff was the
owner in respect of 6 lands. Eventhough similar mutation
entries were effected in respect of the remaining lands, the
plaintiff has not filed any suit in respect of the remaining
properties which were mutated in the name of defendant
Nos.2 and 3. Therefore, targeting defendant No.1 alone
shows the conduct of the plaintiff to be unreliable.
20. Lastly, he contended that the suit is barred by
time. It is admitted that the possession has been sought
after lapse of more than 12 years and therefore, the suit
has been rightly dismissed by the Trial Court and the First
Appellate Court.
21. Countering the said submission, the learned
counsel for the appellant relies on the judgment in the case
of Siddanagouda and others vs. Smt. Kashibai alias
Kantamma and others1 rendered by this Court. He also
counters the submission of the learned counsel for the
ILR 2019 Kar 843
- 15 -
NC: 2025:KHC-D:16063
HC-KAR
respondent stating that the plaintiff was an illiterate woman
and the provisions of Section 14 of the Hindu Succession Act
would come in play to protect her rights. He contends that
the defendants having not made any defence of adverse
possession, the limitation runs from the date of knowledge
of the alienation made by defendant Nos.2 and 3 and
therefore, the suit is well in time.
22. The first aspect to be considered is that it is an
admitted fact that the suit schedule property measuring 1
acre 20 gunthas was standing in the name of the plaintiff-
Rukamavva. The mode of acquisition of the property as
contented by her in the plaint was by way of a purchase
from one from Hanumant Balu Mang and another. There
cannot be any dispute regarding the mode of acquisition of
the suit schedule property by the plaintiff in view of the
certified copy of the sale deed of Rukamavva having been
produced at Ex.P.4. In Ex.P.4, a portion of the said survey
number measuring 3 acres 10 guntas was purchased by her.
The description also is clear in Ex.P.4. Therefore, there
cannot be any qualms in respect of this fact.
- 16 -
NC: 2025:KHC-D:16063
HC-KAR
23. The nature of the property as contented by the
defendant No.1 is that it was the joint family property of the
plaintiff and the defendant Nos. 2 and 3 and they had put
the suit schedule properties into a hotchpot and as such,
they enjoyed it as joint family property. It is pertinent to
note that the pleadings of the defendant No.1 is two fold.
24. In paragraph 5 of the written statement, the
defendant No.1 contends that the suit property was the joint
family property of the plaintiff and defendant Nos.2 and 3
and it was purchased by the plaintiff and defendant Nos.2
and 3 in the name of the plaintiff. Prima facie, this
contention taken up by defendant No.1 in the written
statement appears to be far-fetched for the simple reason
that the property was purchased in the year 1963 as per
Ex.P.4 and at the time of the purchase, obviously the
plaintiff was aged about 25 years. It is also relevant to note
that the sale deed executed by the defendant Nos.2 and 3 in
favour of defendant No.1 is produced at Ex.D1 is dated
02.09.1986. The age of the defendant Nos. 2 and 3 is
mentioned to be 35 years and 25 years, respectively. If this
- 17 -
NC: 2025:KHC-D:16063
HC-KAR
is reckoned, in the year 1963, when the suit schedule
property was purchased by the plaintiff, they were aged 12
years and 2 years, respectively. Therefore, the defendant
Nos.2 and 3 contributing for the purchase of the suit
schedule property does not arise. They were minors and
therefore, they contributing for the purchase of the property
cannot be accepted. In order to show that Rukamavva/the
plaintiff had other properties, there is nothing on record to
show the same.
25. Another feeble effort is made by the defendant
No.1 to say that the property was really belonging to the
mother of plaintiff i.e., Yamunavva. This appears to be not
established conclusively. The record of rights produced by
the defendants, particularly at Ex.D.16, would show that the
name of Yamunavva was entered in respect of 3 acres 32
guntas of Survey No.100/1 and later the entry was changed
to be in the name of the plaintiff by M.E.No.1116.
26. Though the defendant No.1 has produced
several of the mutation entries, the one pertaining to
M.E.No.1116 has not been produced. According to the
- 18 -
NC: 2025:KHC-D:16063
HC-KAR
plaintiff, the said mutation entry gives the reason as to why
the name of Yamunavva was rounded off and the name of
the plaintiff was entered. This crucial link as to how the
name of Yamunavva was appearing in the record of rights
as per Ex.D.16 is not explained.
27. Be that as it may, the sale deed at Ex.P.4
clinchingly establish that the suit schedule property
measuring 3 acres 10 guntas was purchased by the plaintiff
under a sale deed from one Hanumant Balu Mang and
another after paying the consideration amount. The above
facts and circumstances would establish that it was the
property acquired by a female Hindu during the minority of
the defendant Nos.2 and 3. Obviously, the said property is
the exclusive property of the plaintiff. The provisions of
Section 14(1) of the Hindu Succession Act, 1956 are clear in
this regard. The Hindu Succession Act, 1956 shows that any
property acquired by a female Hindu would be her exclusive
and absolute property. Section 14(1) of the Hindu
Succession Act, 1956 reads as below:
- 19 -
NC: 2025:KHC-D:16063
HC-KAR
"14. Property of a female Hindu to be her absolute
property.―
(1) Any property possessed by a female Hindu,
whether acquired before or after the commencement
of this Act, shall be held by her as full owner thereof
and not as a limited owner.
Explanation: In this sub-section, "property" includes
both movable and immovable property acquired by a
female Hindu by inheritance or devise, or at a
partition, or in lieu of maintenance or arrears of
maintenance, or by gift from any person, whether a
relative or not, before, at or after her marriage, or by
her own skill or exertion, or by purchase or by
prescription, or in any other manner whatsoever, and
also any such property held by her as stridhana
immediately before the commencement of this Act.
(2) Nothing contained in sub-section (1) shall apply to
any property acquired by way of gift or under a will or
any other instrument or under a decree or order of a
civil court or under an award where the terms of the
gift, will or other instrument or the decree, order or
award prescribe a restricted estate in such property."
28. When the defendant No.1 contends that it was
the joint family property of the plaintiff and defendant Nos.2
and 3, the burden squarely shifts upon him to establish the
said fact. Obviously, the records produced by the defendant
- 20 -
NC: 2025:KHC-D:16063
HC-KAR
No.1 do not show that it was the joint family property of the
plaintiff and defendant Nos.2 and 3. The defendant Nos.2
and 3 have executed the sale deed in favour of the
defendant No.1 as per Ex.D.1. This sale deed does not
mention that it was the joint family property of defendant
No.2 and 3 and the plaintiff. They boast that they are the
exclusive owners of the suit schedule property and they are
in possession. Curiously, the Ex.D.1 mentions that Survey
No.100/1 was measuring 3 Acres 32 Guntas and out of it, 1
acre 20 guntas has been sold. It is pertinent to note that the
3 acres 32 guntas, which is part of Survey No.100/1 is not
forthcoming from the documents. In fact, Survey No.100/1
was measuring 3 acres 10 guntas as the same was
purchased from the Hanumant Balu Mang and another. It
appears that there are some mutations produced by the
defendants at Ex.D.2, which show that there was a Hissa
Form No.12 and as per it, on 30.05.1966 the Survey
No.100/1 measuring 3 acres 32 guntas was entered in the
name of one Yamunavva. It is not known, in what respect
the Form No.12 was issued. As noted supra, mutation entry
No. 1116 has not been produced by the defendant No.1. It
- 21 -
NC: 2025:KHC-D:16063
HC-KAR
is also to be noted that Ex.D.5, M.E.No.1037, dated
03.01.1964 shows that 3 acres 10 guntas was purchased by
Hanumant Balu Mang from the erstwhile owner Appasab
Govindrao Kulkarni under a sale deed dated 13.08.1962.
The record of rights at Ex.D.16 pertains to Survey No.100/1
measuring 3 Acres 32 guntas and there have been changes
in the extent of the land between the year 1964-65 to 1973-
74, and as per Ex.D.17 for the year 1974-75 to 1982-83.
29. It is worth to note that 3 acres 32 guntas was
held by the plaintiff continuously. The entries changed in the
name of the defendant Nos.2 and 3 on the basis of the
Mutation Entry No.1927, which is the subject matter of the
dispute in this suit. A certified copy of the Varadi alleged to
have been given by the plaintiff, which she denies
vehemently, is produced as Ex.D11. The said Varadi
mentions that the Survey No.100/1 is stated to be
measuring 3 acres 28 guntas. By including 4 guntas of Phot
Kharab, it would be 3 acres 32 guntas.
30. Apart from this, there is no other property held
by her in Survey No.100. Therefore, it is evident that when
- 22 -
NC: 2025:KHC-D:16063
HC-KAR
the suit schedule property is the only property, which she
possessed in Survey No.100, it goes to show that there
were no other properties held by her and Ex.P.4 pertains to
the suit schedule property only.
31. It is a settled principle of law that the mutation
entries cannot convey the title to the property. As noticed
supra, the plaintiff was the exclusive and absolute owner of
the Survey No.100/1 measuring 3 acres 32 guntas. She
could not have conveyed the same to the defendant Nos.2
and 3 by virtue of a Varadi or revenue record. The title will
not convey under a Varadi given in favour of defendant
Nos.2 and 3. When the property is the exclusive and
absolute property of the plaintiff, at no stretch of
imagination it can be held that a mutation entry by virtue of
a Varadi as per Ex.D.11 had been conveyed to the
defendant nos. 2 and 3.
32. The second prong of the argument is that the
suit schedule property was put into the hotchpot and
therefore, there was a partition among the plaintiff and
defendant Nos.2 and 3. I am afraid this contention is an
- 23 -
NC: 2025:KHC-D:16063
HC-KAR
argument off the cuff. In the written statement and the
additional written statements filed by defendant No.1
nowhere it is stated that the plaintiff had put the suit
schedule property into the hotchpot and therefore, it had
attained the character of the joint family property where the
defendant Nos.2 and 3 also had a share. It is pertinent to
note that in the mutation entries produced by the defendant
No.1, nowhere mention that the joint name of the plaintiff
and the defendant No.2 and 3 was appearing in the revenue
records at any point of time. On the other hand, the records
also reveal that the suit schedule property was mortgaged
to PLD Bank, Malaprabha Grameen Bank etc., It is not
shown by the defendant No.1 that it was the defendant
Nos.2 and 3, who had mortgaged the property to the said
banks to avail loan on the above said property. Therefore, it
is clear that the defendant Nos.2 and 3 had failed to
establish that it was the joint family property acquired by
the joint exertion of the plaintiff and defendant Nos.2 and 3
or that it was the property, which was put into the hotchpot.
- 24 -
NC: 2025:KHC-D:16063
HC-KAR
33. As noted supra, the conveyance by way of a
Varadi or mutation entry in the revenue records cannot be a
valid conveyance. Curiously, the defendant Nos.2 and 3
have not appeared before the Trial Court. Therefore, the
burden was on the defendant No.1 to establish that the
defendant Nos.2 and 3 had a valid title, which they could
convey to him. The Apex Court and the High Court in catena
of decisions have held that the transfer by way of mutation
is not permissible. It is settled proposition of law that any
conveyance has to be by any mode known to law under the
Transfer of Property Act. The only exception would be that
the person holding title to the property may amalgamate
the same by his conduct or by an express consent into the
Hotchpot of the joint family and in such circumstances, the
rights of such person, who has a share in the property,
cannot extinguish but it would be a joint share. All along
from the year 1963 when the plaintiff purchased the, suit
survey number, till the year 1986 when the property was
sold by the defendant No.2 and 3 to the defendant No.1,
nothing is available on record to show that her conduct was
to put the suit property into the hotchpot. The cross
- 25 -
NC: 2025:KHC-D:16063
HC-KAR
examination of PW1 nowhere shows regarding any of such
suggestions were made or she had admitted that she had
put the properties into the hotchpot. Therefore, what is
available from the cross examination of PW1 is that she and
defendant No.3 are jointly earning their livelihood. She
vehemently denies that these properties were purchased
from the contributions made by the defendant Nos.2 and 3.
Therefore, the judgment of the Apex Court in the case of
Gurunath Manohar Pauskar Vs. Nagesh Siddappa
Navalgund and others2, it was observed that a revenue
record is not a document of title and it merely raises a
presumption in regard to the possession. Under these
circumstances, the substantial question of law has to be
held in the negative.
34. The defendant Nos.2 and 3 were not the
exclusive owners of the suit schedule property and they had
no title in respect of the suit schedule property in
whatsoever manner so that they could convey the same to
the defendant No.1.
AIR 2008 SC 901
- 26 -
NC: 2025:KHC-D:16063
HC-KAR
35. Having come to the conclusion that the
defendant Nos.2 and 3 could not have conveyed the
property to the defendant No.1, let me turn my attention to
the question of limitation raised by the defendant No.1. It is
relevant to note that the Courts below have come to the
conclusion that the suit is also covered by Article 58 of the
Limitation Act. It is evident that nowhere in the plaint, the
plaintiff admits that she had the knowledge of the mutation
entry No.1927, pursuant to her Varadi given to the revenue
authorities as per Ex.D.11. That being so, it was incumbent
upon the defendant No. 1 to establish that the plaintiff knew
about the contents of Ex.D.11.
36. Before considering the evidence in this regard,
the position of law in this regard is to be seen. Article 58 of
the Schedule to the Limitation Act, in a suit for declaration
where Articles 56 and 57 do not apply, the plaint should be
filed within a period of three years when the right to sue
first accrues. On applying Article 58 to the prayer for
declaration, that the sale deed dated 02.09.1986 is not
binding, the suit filed after 3 years is clearly barred by
- 27 -
NC: 2025:KHC-D:16063
HC-KAR
limitation. However, the plaintiff relies on Section 17 of the
Limitation Act, which deals with the effect of fraud and
mistake. It reads as below:
"17. Effect of fraud or mistake.--(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:"
- 28 -
NC: 2025:KHC-D:16063
HC-KAR
37. In the case of Saranpal Kaur Anand v.
Praduman Singh Chandhok3 it was observed by Supreme
Court as below:
"11. The general principle, which also manifests itself in
Section 17 of the Limitation Act, is that every person is
presumed to know his own legal right and title in the
property, and if he does not take care of his own right
and title to the property, the time for filing of the suit
based on such a right or title to the property is not
prevented from running against him. The provisions of
Section 17(1) embody fundamental principles of justice
and equity viz. that a party should not be penalised for
failing to adopt legal proceedings when the facts or the
documents have been wilfully concealed from him and
also that a party who had acted fraudulently should not
be given the benefit of limitation running in its favour by
virtue of such frauds. [Pallav Sheth v. Custodian, (2001)
7 SCC 549] However it is important to remember that
Section 17 does not defer the starting point of limitation
merely because the defendant has committed a fraud.
Section 17 does not encompass all kinds of frauds, but
specific situations covered by clauses (a) to (d) to
Section 17(1) of the Limitation Act. Sections 17(1)(b)
and (d) encompass only those fraudulent documents or
acts of concealment of documents which have the effect
of suppressing knowledge entitling the party to pursue
(2022) 8 SCC 401
- 29 -
NC: 2025:KHC-D:16063
HC-KAR
his legal remedy. Once a party becomes aware of
antecedent facts necessary to pursue legal proceedings,
the period of limitation commences. [P. Radha Bai v. P.
Ashok Kumar, (2019) 13 SCC 445]
12. Therefore in the event the plaintiff makes out a case
that falls within any or more of the four clauses to sub-
section (1) to Section 17 of the Limitation Act, the period
of limitation for filing of the suit shall not begin to run
until the plaintiff or applicant has discovered the
fraud/mistake or could with reasonable diligence have
discovered it or if the document is concealed till the
plaintiff has the means of producing the concealed
document or compelling its production a fortiori.
xxxxxx
14. The word "diligence" read with the word
"reasonable" in the context of Section 17(1) of the
Limitation Act is subjective and relative, and would
depend upon circumstances of which the actor called
upon to act reasonably, knows or ought to know. Vague
clues or hints may not matter. Whether the
plaintiff/applicant had the means to know the fraud is a
relevant consideration. It is manifest that Section 17(1)
of the Limitation Act does not protect a party at fault for
failure to exercise reasonable diligence when the
circumstances demand such exercise and on exercise of
which the plaintiff/applicant could have discovered the
fraud. When the time starts ticking subsequent events
will not stop the limitation. The time starts running from
- 30 -
NC: 2025:KHC-D:16063
HC-KAR
the date of knowledge of the fraud/mistake; or the
plaintiff/applicant when required to exercise reasonable
diligence could have first known or discovered the fraud
or mistake. In case of a concealed document, the period
of limitation will begin to run when the plaintiff/applicant
had the means of producing the concealed document or
compelling its production.
15. Thus when the plaintiff relies on Section 17(1)(b) of
the Limitation Act asserting fraud or mistake, he has to
state the date on which he has discovered the fraud or
mistake, and also state that he could not have
discovered the fraud or mistake with reasonable diligence
on a date earlier than on which he has based his cause of
action."
(emphasis by me)
38. Coming to the case on hand, in regard to
Ex.D.11, it is not known whether the revenue authorities
had conducted any enquiry on the basis of the Varadi given
by the plaintiff as per Ex.D.11. The M.E.No.1927 at Ex.D.4
simply mentions that the plaintiff had grown old and she
couldn't work and therefore the name of the defendant
Nos.2 and 3 has to be entered and accordingly it was
entered in the records. Under these circumstances, the
contention of the plaintiff that she only came to know about
the mutation entry and the alienation by defendant Nos.2
- 31 -
NC: 2025:KHC-D:16063
HC-KAR
and 3 in favour of defendant No.1, two-three months prior
to filing of the suit has to be examined.
39. The plaintiff, who is examined as PW1, states in
her examination-in-chief that the suit schedule property was
owned by her and she came to know about the deletion of
her name from the revenue records few weeks prior to filing
of the suit and the defendant No.2 and 3 have executed the
sale deed in favour of defendant No.1 without her
knowledge. In the cross-examination, she admits that the
defendant No.3 is working as a school teacher at
Sindikurabet, and in the house which is situated by the side
of her land she and defendant No.2 are residing. She also
admitted that the defendant No.3, whenever visits her
village, he stays with the plaintiff. She also admitted that
the other properties are being cultivated by the defendant
No.1 on contractual basis. She also admits that she and the
defendant No.2 live together and work together. Even then,
she states that she does not know about the entry of the
name of defendant No.2 and 3 in the revenue records. In
her enthusiasm to deny the signature on the Varadi as per
- 32 -
NC: 2025:KHC-D:16063
HC-KAR
Ex.D11, she denies her signature on vakalath and plaint
also.
40. Her testimony does not allege any fraud being
played upon her by the defendant No.2 and 3, but however
she only says that she does not know as to how the name of
defendant No.2 and 3 came to be entered in the revenue
records. Conspicuously, the defendant No.2 and 3 did not
appear despite service of summons.
41. This conduct of PW1 falls short of the
requirement of Section 17(1) (b) and (d) of the Limitation
Act. It is pertinent to note that in order to exclude the
ticking of the limitation period from the date of either
mutation entry 1927 or the sale deed, the plaintiff has to
establish any of the grounds falling under Section 17(1) of
the Limitation Act.
42. When the testimony of PW1, especially her
cross-examination, is examined on the anvil of provisions of
Section 17(1) of the Limitation Act, it is evident that the
plaintiff had not shown any diligence. It is significant to note
- 33 -
NC: 2025:KHC-D:16063
HC-KAR
that the period of limitation for filing the suit starts to run
from the date of sale deed by defendant No.2 and 3 in
favour of defendant No.1 and in order to exclude such time,
she has to make out a case under Section 17(1) of the
Limitation Act. The evidence of PW1, especially her
examination-in-chief does not allege any fraud, but on the
other hand, she admits that the defendant No.2 and 3
continued to live with her. It is not possible for this Court to
believe that the defendant No.2-Shivaji, despite living with
her and working together with her, had not disclosed the
sale transaction with the defendant No.1. As discussed by
the Hon'ble Apex Court in the judgment of Saranpal Kaur
Anand (supra) the plaintiff has not established that she
was diligent about her rights.
43. It is also relevant to not that the cross-
examination of the PW1 show that the names of defendant
No.2 and 3 are also entered in respect of the other
properties owned by her. Curiously, she has not taken any
action in respect of the same. Thus, the testimony of PW1
that she was unaware of the entry of the names of
- 34 -
NC: 2025:KHC-D:16063
HC-KAR
defendant No.2 and 3 in the revenue records and that they
had sold the suit schedule property to the defendant No.1 as
per Ex.D1 does not inspire this Court to believe her
testimony. The version of PW1 that despite the defendant
No.2 and 3 were living with her, she did not come to know
about entry of the names of defendant No.2 and 3 and the
sale of the suit schedule property to defendant No.1 is
unbelievable.
44. In that view of the matter, the plaintiff is unable
to establish that she falls in anyone of the circumstances
envisaged under Section 17(1) of the Limitation Act and
therefore, the suit is hit by law of limitation. Admittedly, the
name of the defendant No.2 and 3 was entered in the
revenue records in the year 1983. The plaintiff has not
made any effort to show that Ex.D11 is a fraudulent
document, except saying that the defendant No. 2 and 3 got
her signature on a paper. Therefore, this Court is of the
view that the conclusions of the Trial Court as well as the
First Appellate Court regarding issue No.7 (on limitation) is
proper and no interference is required by this Court. In that
- 35 -
NC: 2025:KHC-D:16063
HC-KAR
view of the matter, the suit is not maintainable as it is
barred by limitation and accordingly, the appeal stands
dismissed.
45. In view of disposal of the appeal, pending
interlocutory applications, if any, do not survive for
consideration and are disposed of accordingly.
SD/-
(C M JOSHI)
JUDGE
SSP-Paragraphs 1 to 21
YAN-Paragraphs 22 till end
