(PER: THE HON'BLE MR. JUSTICE C M JOSHI)
2. The factual matrix as is necessary for the purpose of
Devenrappa died long back and after his
death, plaintiff No.1 and defendant No.2
succeeded to the property. Earlier the entire
property, including the portion which was sold
by plaintiff No.1 and defendant No.2 was
bearing the Gram Panchayat No.280. For their
family necessity plaintiff No.1 and defendant
No.2 sold a portion of the property and
retained the other portion, which is given the
Gram Panchayat No.280/2 and later it was
given a new No.325.
c) It is the case of the plaintiffs that after death
of Devendrappa, his children along with their
mother plaintiff No.2 started residing at
Shivamogga doing coolie work. But however,
plaintiff No.2 alone was residing at Rattihalli,
but at some other place. Taking advantage of
the absence of plaintiff No.1 and defendant
No.2, defendant No.1 in collusion with the
Panchayat Officials got entered his name in
the assessment records of the Panchayat and
started enjoying the property.
d) Defendant No.1 on the basis of the illegal
entry in the Panchayat extracts & Panchayat
Registers, started to deny the right, title and
interest of the plaintiffs over the suit property,
though he is no way concerned to the same.
Therefore, the plaintiffs sought the relief of
declaration that they are the owners in title of
the Panchayat No.325, earlier No.280/2 and
to restrain the defendants by permanent
injunction from interfering with the enjoyment
of the said property.
13.07.2005, an alternative prayer that if the
Court comes to the conclusion that the
defendant No.1 is found to be in possession of
the property, then the possession may be
awarded to the plaintiffs was inserted in the
plaint.
3. Defendant No.1 appeared before the Trial Court and
filed written statement. He contended that he is the son of sister
belonging to Manjoji. He took up the defence that Devendrappa
except defendant No.1. He contended that Manjoji was intending
was expressed by Manjoji to the plaintiffs. Thus, Manjoji had
same. He has put up his temporary shed and he is in its
4. As per the intention of Manjoji on 11.04.1990, the
be entered in the records. Therefore, he sought for dismissal of
5. On the basis of the above contentions, the following
3. Whether plaintiffs further prove the alleged
obstruction by defendant?
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4. Whether the defendant proves that the suit of
the plaintiff is bad for non-joinder of
necessary party?
5. Whether the defendant further proves that
the suit of the plaintiff is time barred?
6. Whether the Court fees paid is improper and
insufficient?
7. Whether the plaintiffs are entitle to the reliefs
or declaration, injunction or alternatively for
possession of schedule property?
8. To what order or decree?
ADDITIONAL ISSUES
1. Whether defendant No.1 proves that suit is
hit by the principles of Estoppel as narratted
in his additional written statement?"
6. Plaintiff No.1 was examined as PW.1 and Ex.P.1 to
P.4 were marked. Defendant No.1 was examined as DW.1, one
witness was examined as DW.2 and Ex.D.1 to 11 were marked.
7. After hearing the arguments, the Trial Court held
issue No.1 partly in the affirmative, issue Nos.2, 3, 4, 5 and 6
and additional issue in the negative and issue No.7 in the
affirmative and proceeded to decree the suit and directed
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defendant No.1 to hand over the vacant possession of the suit
property to the plaintiffs.
8. Being aggrieved, defendant No.1 approached the
First Appellate Court in R.A.No.41/2011 and after hearing the
parties, the First Appellate Court held that no interference is
required in the judgment of the Trial Court and therefore,
dismissed the appeal.
9. Being aggrieved, defendant No.1 is before this Court.
10. While the appeal was being heard, the following
substantial question of law was framed by this Court:
"Whether the amendment brought to the plaint in
the year 2005 seeking possession of the property
relates back to the date of filing of the suit in the
background of the sale deed executed by the plaintiffs
in favour of third party depicts the property occupied by
the appellant on the eastern side?"
11. The learned counsel appearing for the appellants
submits that the plaintiffs had not sought the possession of the
property, when they filed the suit in the year 1998. He contends
that the amendment was brought in the year 2005, whereas the
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boundaries shown in the admitted document of the plaintiffs
shows the possession of the appellant to the suit schedule
property. Therefore, he contends that when Ex.D.10 of the year
1990 shows that on the eastern side of the property sold, the
property of defendant No.1 is situated, there is an admission by
the plaintiffs that defendant No.1 is in possession of the suit
property and as such an amendment brought in the year 2005
seeking possession is beyond the period of the limitation.
Therefore, the Trial Court could not have granted the relief of
possession. In this regard, he relies on the judgment of the
Hon'ble Apex Court in the case of Vishwambhar and others
vs. Laxminarayan (dead) through LRs and another1.
12. Per contra, the learned counsel appearing for the
respondents submits that the limitation starts to run only when
the possession of defendant No.1 turns adverse to the interest of
the plaintiffs. Simply because defendant No.1 was in possession
in the year 1990, it cannot be construed that at that time itself
the possession was adverse to the interest of the plaintiffs.
Admittedly, it is not the case of the defendants that they have
(2001) 6 SCC 163
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perfected the title by adverse possession. Defendant No.1 was
none else than the son of the paternal aunt of plaintiff No.1 and
defendant No.2. Therefore, when it is not the case of defendant
No.1 that his interests had turned hostile or adverse to the
interest of the plaintiffs, it cannot be said that Ex.D.10 would
indicate the starting point of the limitation. He further contends
that the judgment in the case of Vishwambhar, relied by the
learned counsel for the appellants was in the context of different
facts and therefore, it cannot be applied to the case on hand. He
also submitted that the relief claimed for possession is an
alternative relief and therefore, that cannot be hit by the law of
limitation.
13. The factual aspects as it unfolds from the judgment
of the Trial Court reveal that defendant No.1 had initially
contended that it was standing in the name of Devendrappa and
Manjoji had intended the property to be given to defendant No.1.
It is his case that Manjoji insisted the plaintiffs and defendant
No.2 to mutate the name of defendant No.1 in respect of half
portion of the property. He further contends that it was Manjoji
who had given a varadi to the Panchayat to enter the name of
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defendant No.1. But later a different contention was taken. In
other words, the Trial Court observed that the evidence adduced
by defendant No.1 was at variance to the contentions taken up in
the written statement.
14. The second point that was considered by the Trial
Court is that DW.2 in categorical terms admits that when he
purchased the property in the year 1990, the entire property was
in possession of the plaintiffs. He admits that entire property was
owned by the plaintiffs and defendant No.2 and they have not
sold the property to anybody after they sold the half portion to
DW.2. So far as the present possession of the suit property is
concerned, he states that he does not have the knowledge of it.
In other words, he had given a go-bye to his examination-in-
chief and pleaded ignorance regarding the possession.
15. The third aspect noticed by the Trial Court is that
when the property was in the name of Devendrappa and it was
mutated in the name of the plaintiffs and defendant No.2,
plaintiff No.2 being the minor guardian; the transition of the
property in the name of defendant No.1 is based on a revenue
entry in the Panchayat. It also observes that the property has
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not been conveyed under any of the means known under law and
recognized under the Transfer of Property Act, 1882. It also
notices that the value of the property is more than ₹100/-.
Therefore, in the absence of any valid conveyance deed, entry of
the name of defendant No.1 cannot be construed to be a valid
transfer of the title. On that ground, it holds that when the
property is held in the name of Devendrappa about 30 years
prior to the date of deposition of DW.1, (which is admitted by
him), it is not in the mouth of defendant No.1 to say that Manjoji
had agreed to transfer the said property to him. Evidently, he
happens to be the son of sister of Devendrappa. There is no
material on record to show that his grandfather Manjoji had
intended to transfer the suit property to him. Therefore, on this
ground also, the Trial Court holds that the title had not been
transferred to defendant No.1 in any manner known to law. On
these grounds, the Trial Court holds that the suit deserves to be
decreed granting the relief of declaration of title to the plaintiffs.
16. So far as possession is concerned, the Trial Court
holds that Ex.D.10 mentioned that on the eastern side of the suit
property, the property of DW.2 is situated and the boundary is
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mentioned in Ex.D.10 that it is occupied by defendant No.1. It
comes to the conclusion that the plaintiffs are not in possession,
but there being a consequential relief of possession, it has to be
granted. The Trial Court also comes to the conclusion that the
plaintiffs are not in possession, since the name of defendant No.1
is appearing in the panchayat records as per Ex.P.1 to Ex.P.4.
Therefore, as a consequential relief, the Trial Court awards the
relief of possession.
17. Coming to the question, whether there was a bar of
limitation, it may be noted that the relief of possession was not a
substantial relief, but it was a consequential relief. It is not the
case of the defendant No.1 that his title became adverse to the
title of the plaintiffs since the year 1990. There is no such
mention anywhere in the written statement that he started
enjoying the property as owner. Evidently, the title of defendant
No.1 has not been established by him. At one stretch, he
contends that the suit property was given to him by Manjoji. In
the next breath, he states that plaintiff No.1 and defendant No.2
gave a varadi to the Panchayat to enter his name. In the third
breath, he says that there was a partition. Therefore, defendant
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No.1 is unable to say in what capacity he was in possession of
the property. In that view of the matter, it cannot be said that
the possession of the defendants had turned adverse to the
interest of the plaintiffs in the year 1990 itself. Evidently, the
entry of the name of defendant No.1 was a few months prior to
the Ex.D.10 dated 19.11.1991. The Panchayat extracts show
that on 10.07.1990, the Khata was changed in the name of
defendant No.1. Obviously, it was on the basis of a varadi.
18. The judgment relied by the learned counsel for the
appellant in vishwambar (supra) was pertaining to a set of
facts, which is different. In the said case, one of the plaintiffs
had attained majority on 05.08.1975 and contended that the
transfers made by their mother were without legal necessity and
without permission of the Court and as such they are void ab
initio. The amendment was brought at a later point of time. The
prayer for setting aside the sale deeds was not there earlier and
it was introduced during the hearing of the suit. It was held that,
when the plaintiff had attained majority in the year 1975 and
1978 and the suit was filed in the year 1980 and prayer seeking
setting aside the sale deeds was made in the year 1985. In that
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background, the Hon'ble Apex Court held that Article 60 of the
Limitation Act, 1963 prescribes a period of three years and as
such, the prayer was hit by the law of limitation.
19. In the case on hand, the Trial Court considers this
aspect in paragraph No.19 of the judgment. It holds that the
plaintiffs have admitted in Ex.D.10 that defendant No.1 is in
possession of the property and time starts running for the
plaintiffs from the date of execution of Ex.D.10 and plaintiffs
have to file the suit within twelve years. The suit was filed in the
year 1998. Therefore, when the suit was filed in the year 1998,
consequential relief was sought in the year 2005, it is the Article
65 of the Limitation Act, 1963 which will apply. It is not shown
by the defendant No.1 that entry of his name in Panchayat
records was adverse to the title of the plaintiffs and defendant
No.2. Hence, there cannot be any doubt that the suit is in time.
Moreover the prayer for possession being a consequential relief,
it squarely depends upon the declaration which is sought. It is
not that the plaintiffs had not sought any consequential relief.
Under these circumstances, no fault can be found in the decree
passed by the Trial Court. In that view of the matter, the
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substantial question of law raised by this Court deserves to be
answered in the negative. As a consequence, the appeal fails
and the same is dismissed.
SD/-
(C M JOSHI)
JUDGE
SSP
CT:PA
