Telangana High Court
Perna Swarupa vs Perna Krishna on 3 October, 2023
Bench: K. Sarath
1
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CRP.No.2879 of 222
IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD
*****
Civil Revision Petition No.2879 of 2022
C.R.P.No.2879 of 2022
Between:
Perna Swarupa.
...Petitioner
AND
1. Perna Krishna and 4 others.
...Respondents
JUDGMENT PRONOUNCED ON: 03.10.2023
SUBMITTED FOR APPROVAL:
THE HON'BLE SRI JUSTICE K.SARATH
1. Whether Reporters of Local : Yes/No
newspapers may be allowed to see
the Judgment ?
2. Whether the copies of judgment : Yes/No
may be marked to Law
Reports/Journals
3. Whether Their Lordship/Ladyship : Yes/No
wish to see the fair copy of
judgment
_____________________
JUSTICE K.SARATH
2
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CRP.No.2879 of 222
THE HON'BLE SRI JUSTICE K.SARATH
+CIVIL RREVISION PETITION No.2879 of 2022
%Dated 03.10.2023
# C.R.P.No.2879 of 2022
Perna Swarupa.
...Petitioner
AND
1. Perna Krishna and 4 others.
...Respondents
! Counsel for Petitioner: Sri Pratap Narayan Sanghi, learned Senior
Counsel for Sri Avadesh Narayan Sanghi.
^ Counsel for Respondents :Sri Mamidi Avinash Reddy.
< GIST :
> HEAD NOTE :
? Cases referred :
1
(2013)3 SCC 182
2
AIR 2022 SC 2707
3
Air 2022 SC 4724
4
AIR 2019 SC 1430
5
(2011) 9 SCC 126
6
(2019) 7 SCC 76
7
(2015) 8 SCC 331
8
(2004) 1 ALT 34
3
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CRP.No.2879 of 222
THE HON'BLE SRI JUSTICE K.SARATH
CIVIL REVISION PETITION No.2879 of 2022
ORDER:
This Civil Revision Petition is filed under Article
227 of the Constitution of India aggrieved by the order
dated 13.10.2022 in I.A.No.797 of 2021 in O.S.No.464
of 2021 on the file of Principal Senior Civil Judge,
Ibrahimpatnam, Ranga Reddy District.
2. Heard Sri Pratap Narayan Sanghi, learned Senior
Counsel for Sri Avadesh Narayan Sanghi, learned
Counsel for the petitioner and Sri M. Avinash Reddy,
learned Counsel for the respondent No.1.
3. The learned Senior Counsel for the
petitioner/defendant No.2 submits that petitioner filed
I.A.No.797 of 2021 in O.S.No.464 of 2021 on the file of
Principal Senior Civil Judge, Ranga Reddy District at
Ibrahimpatnam for rejection of the plaint and the same
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was dismissed by the Court below through the
impugned order.
4. The learned Senior Counsel for the revision
petitioner/defendant No.2 further submits that the suit
schedule properties were gifted to her by her
father/defendant No.1 through gift deeds
dated 15.10.2014. The suit is filed in the year 2021 for
cancellation of the said registered gift deeds and the
suit is barred by limitation and there is no cause of
action to file the suit, but the Court below without
considering all these facts dismissed the petition for
rejection of plaint.
5. The learned Senior Counsel for the revision
petitioner further submits that the Court below has
failed to appreciate the difference between the mistake
of law and mistake of fact and the observation that the
limitation is always a mixed question of law and the fact
is quite erroneous. The Court below failed to consider
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that the monies as alleged by the plaintiff were
transferred to the respondent No.3 for registration of
properties and the respondent No.3 being a compnay is
an independent legal entity and the privity of the
contract is between the legal entity and the plaintiff and
there is no privity of contract between the
plaintiff/respondent No.1 and the revision petitioner.
The Court below also ignored the admission of the
plaintiff that the cause of action of the suit first arose
when the defendant No.1 played fraud on the plaintiff
and obtained illegal sale deeds in the year, 2007 and
when the plaintiff came to know about the alleged fraud
in the year, 2011 after he returned from USA and
therefore the suit is barred by limitation and requested
to allow the Civil Revision Petition.
6. The learned Senior Counsel for the petitioner in
support of his contention placed reliance on the
following Judgments:
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1. Board of Trustees of Port of Kandla vs. Hargovind
Jasraj and another 1
2. Rajpal Singh vs. Saroj (Deceased) through LRs 2
3. C.S.Ramaswamy v. V.K.Senthil 3
4. Raghwendra Sharan Singh v. Ram Pra-sanna Singh
(dead) by Lrs. 4
5. Khatri Hotels Private Limited and another vs.
Union of India and another 5
7. On the other hand the learned Counsel for the
respondent No.1/plaintiff vehemently opposed the Civil
Revision Petition contending that considering the advice
of the defendant No.1, the plaintiff paid total
consideration of Rs.70,00,000/- to the defendant No.3
through cheque bearing No.364266 drawn on Canara
Bank, S.R. Road Branch, Secunderabad. Thereafter,
the defendant No.1 once again played mischief and
transferred plots in favour of the defendant No.2. The
defendant No.1 admitted his mischief and requested the
(2013)3 SCC 182
AIR 2022 SC 2707
Air 2022 SC 4724
AIR 2019 SC 1430
(2011) 9 SCC 126
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plaintiff not to initiate legal action and he has given an
undertaking to the plaintiff that he will pay the entire
sale consideration after cancelling the sale deeds and
gift settlement deeds on 02.12.2015. However, the
defendant No.1 did not take any efforts to cancel the
sale deeds and gift settlement deeds and the defendant
No.1 issued confirmation letter assuring the plaintiff on
06.09.2019. Thereafter, no action has been taken in
furtherance of the said assurance. Thus, the
respondent No.1/plaintiff constrained to file O.S.No.464
of 2021 on the file of Principal Senior Civil Judge,
Ibrahmapatnam, Ranga Reddy District.
8. The learned Counsel for the respondent No.1
further submits that the suit is filed not only for
declaration but also for recovery of possession of the
suit lands. The limitation for filing the suit for recovery
of possession on the basis of title is 12 years and
therefore the suit is filed within limitation. Merely
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because one of the reliefs sought is of declaration that
does not mean that limitation of 12 years is lost and the
Court below considering all these aspects rightly
dismissed the application filed by the petitioner and the
present revision is devoid of merits and requested to
dismiss the same.
9. The learned Counsel for the respondent No.1 in
support of his contention relied on the following
Judgment:
1. Soparnrao and another Vs. Syed Mehmood
and Others 6
2. P.V.Guru Raj Reddy and another vs. P.
Neeradha Reddy and others 7
10. After hearing both sides and perused the record,
this Court is of the considered view that the plaintiff is
son and the defendant No.2 is daughter of defendant
No.1. The plaintiff filed suit for declaration of title,
recovery of possession and consequential reliefs under
Section 26 and under Order VII Rules 1 and 3 C.P.C.
(2019) 7 SCC 76
(2015) 8 SCC 331
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stating that he is a Software Engineer by profession and
he left to USA for work. In his absence, the plaintiff
appointed his father i.e, defendant No.1, to act as his
authorized representative through General Power of
Attorney dated 12.02.2004 to purchase immovable
properties in the name of the plaintiff and to file income
tax returns from time to time. The defendant No.1 has
purchased eight (8) plots through registered sale deeds
from the authorized representative of the defendant
No.3 company in the year 2007 in his name by paying
the amounts sent by the plaintiff. The plaintiff was
under the bona fide belief that the sale deeds were
executed for the suit schedule plots in his name.
However, when he returned back to India in the year,
2011 he came to know about the mischief played by the
defendant No.1 and when he demanded the defendant
No.1 to change sale deeds in his name. On one pretext
or the other, the defendant No.1 has not changed the
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name of the plaintiff and executed the gift deeds in
favour of defendant No.2 on 15.10.2014. After came to
know the same, the plaintiff demanded the defendant
No.1 and he informed that he will take legal action
against the defendant Nos.1 and 2 if the suit schedule
properties were not transferred in his name. By that
time, the defendant No.1 has requested not to initiate
any legal action and executed an undertaking dated
02.12.2015 to get the sale deeds and gift settlement
deeds cancelled after paying the entire sale
consideration while admitting the mischief played by
him. Since the defendant No.1 did not cancel the sale
deeds, once again the plaintiff demanded either to
transfer or return his money with interest at that point
of time. Thereafter, the defendant No.1 issued a
Confirmation Letter dated 06.09.2019 stating that he
was unable to meet the given commitment in the
undertaking dated 02.12.2015 due to personal issues
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between him and the defendant No.2 and assured that
he will cancel the illegal sale deeds and gift deeds. In
spite of the same, the defendant No.1 was not cancelled
the sale deeds and gift deeds. Therefore, the plaintiff
constrained to the file the suit.
11. The petitioner/defendant No.2 filed I.A.No.797 of
2021 under Order VII Rule 11 CPC to reject the plaint
on the ground that the suit is filed on an illusory cause
of action by clever drafting and a reading of the plaint
clearly reveals that the suit is manifestly vexatious,
meritless and is barred by limitation. After hearing both
sides and considering the facts of the case, the Court
below dismissed the said I.A., filed by the
petitioner/defendant No.2 and held that the grounds
taken by the petitioner cannot be decided at the stage
of petition filed for rejection of plaint and the said order
is impugned in the present revision.
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12. The main contention of the learned Senior Counsel
appearing for the petitioner/defendant No.2 is that the
suit filed by the respondent No.1/plaintiff is barred by
limitation on the ground that the plaintiff has
knowledge about the execution of sale deeds by the
defendant No.3 company in favour of the defendant
No.1 in the year, 2011. He submits that as per Articles
58 and 59 of the Limitation Act, 1963 (for short 'the
Act'), within three years the plaintiff has to file the suit,
but after 10 years in the year 2021, he filed the present
suit and the same is barred by limitation and the Court
below has wrongly taken into account the Article 65 of
the Act and held that the suit is filed within the
limitation. His further contention is that there is no
specific cause of action mentioned by the plaintiff in the
plaint and it amounts to clever drafting as held by the
Hon'ble Supreme Court.
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13. It is settled law that for considering the petition
under Order VII Rule 11 CPC, the Court has to take
into account the averments in the plaint along with the
documents filed by the plaintiff. In the instant case,
the cause of action in the plaint as follows:
"That the cause of action for this suit first arose when the
defendant Nos.1 and 2 played fraud on the plaintiff and obtained
illegal sale deeds in the year 2007 for the suit schedule plots from
defendant Nos.3,4 and 5. The cause of action also arose when the
defendant No.1 executed Gift Deeds for the suit schedule plots in
favour of the plaintiff in the year 2014. The cause of action also
arose when the plaintiff came to know of the fraud played by
defendant No.1 and defendant No.2 in the year 2011 when he came
to India and the cause of action continued every day thereafter when
the plaintiff kept asking defendant No.1 to cancel the illegal
obtained sale deeds. And the cause of action has also arisen on
02.12.2015 when the defendant No.1 gave an undertaking to the
plaintiff admitting that he has illegally obtained sale deeds for the
suit schedule plots in his name and in the name of defendant No.2
by playing fraud on the plaintiff and agreed to convey the suit
schedule plots to the plaintiff and the cause of action has also
arisen on 06.09.2019 when the defendant No.1 gave confirmation
letter agreed to transfer the schedule of plots to the plaintiff. As
such the cause of action has been continuing since then every day
thereafter".
SK,J
A close reading of the cause of action reveals that the
cause of action arose when the plaintiff came to know
about the fraud played by the defendant Nos.1 and 2 in
the year, 2011 when he came to India and the cause of
action continued every day thereafter when the plaintiff
asking the defendant No.1 to cancel the sale deeds
illegally obtained by him.
14. The Part III of the Schedule of the Limitation Act,
1963 deals with the suits relating to declaration in
Articles 56 to 58. The Part V of the Schedule of the
Limitation Act, 1963 deals with the suits relating to
immovable property in Articles 61 to 65. Under Article
65 of the Act, for possession of immovable property or
any interest therein based on title, the limitation for the
suit is 12 years and the trial Court has taken into
account the Article 65 of the Act and held that the suit
is filed within the limitation.
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15. The judgment relied on by the learned counsel for
the respondent in Sopanrao's case (cited 6 supra), the
Hon'ble Supreme Court in paragraph No.9 held as
follows:
". It was next contended by the learned counsel that the suit
was not filed within limitation. This objection is totally untenable.
Admittedly, the possession of the land was handed over to the Trust
only in the year 1978. The suit was filed in the year 1987. The
appellants contend that the limitation for the suit is three years as the
suit is one for declaration. We are of the view that this contention has
to be rejected. We have culled out the main prayers made in the suit
hereinabove which clearly indicate that it is a suit not only for
declaration but the plaintiffs also prayed for possession of the suit
land. The limitation for filing a suit for possession on the basis of title
is 12 years and, therefore, the suit is within limitation. Merely because
one of the reliefs sought is of declaration that will not mean that the
outer limitation of 12 years is lost. Reliance placed by the
learned counsel for the appellants on the judgment of this Court
in L.C. Hanumanthappa v. H.B. Shivakumar1 is wholly misplaced.
That judgment has no applicability since that case was admittedly only
a suit for declaration and not a suit for both declaration and
possession. In a suit filed for possession based on title the plaintiff is
bound to prove his title and pray for a declaration that he is the owner
of the suit land because his suit on the basis of title cannot succeed
unless he is held to have some title over the land. However, the main
relief is of possession and, therefore, the suit will be governed
by Article 65 of the Limitation Act, 1963. This Article deals with a suit
for possession of immovable property or any interest therein based on
title and the limitation is 12 years from the date when possession of
the land becomes adverse to the plaintiff. In the instant case, even if
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the case of the defendants is taken at the highest, the possession of
the defendants became adverse to the plaintiffs only on 19.08.1978
when possession was handed over to the defendants. Therefore, there
is no merit in this contention of the appellants.
In the above judgment, it is clearly mentioned that if
the prayer in the suit is not only for declaration but
also for possession, the limitation is 12 years. Merely
because one of the reliefs sought is of declaration that
will not mean that the outer limitation of 12 years is
lost.
16. This Court in Naseem Begum and another vs.
S.M.Khaleem 8 held that when a suit is based on title
and the relief of declaration and recovery of possession
apart from other reliefs had been prayed for, the period
of limitation is 12 years and not 3 years since the
Article 65 of the Limitation Act is applicable and not the
Article 58 of the Limitation Act.
(2004) 1 ALT 34
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17. The Hon'ble Supreme Court in P.V.Guru Raj
Reddy's case (cited 7 supra) held at para 5 as follows:
"5. Rejection of the plaint under Order VII rule 11 of the CPC is a
drastic power conferred in the court to terminate a civil action at the
threshold. The conditions precedent to the exercise of power under Order
VII rule 11, therefore, are stringent and have been consistently held to be
so by the Court. It is the averments in the plaint that has to be read as a
whole to find out whether it discloses a cause of action or whether the suit
is barred under any law. At the stage of exercise of power under Order VII
rule 11, the stand of the defendants in the written statement or in the
application for rejection of the plaint is wholly immaterial. It is only if the
averments in the plaint ex facie do not disclose a cause of action or on a
reading thereof the suit appears to be barred under any law the plaint can
be rejected. In all other situations, the claims will have to be adjudicated in
the course of the trial.
The above judgments are squarely apply to the instant
case as the suit is filed declaration of title, recovery of
possession and consequential relief. In view of the
same, the suit is filed within limitation.
18. The judgments relied on by the learned Senior
Counsel for the petitioner viz Board of Trustees's case,
Rajpal Singh's case, C.S.Ramaswamy's case,
Raghwendra Sharan Singh's case and Khatri Hotels's
case (cited 1 to 5 supra) are not apply to the instant
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case as the cause of action clearly mentioned in the
plaint and it cannot be treated as clever drafting for
rejection of plaint under Order VII Rule 11 of C.P.C.
19. In the instant case, along with the plaint, the
plaintiff has filed the undertaking dated 02.12.2015
and also the confirmation letter dated 06.09.2019
issued by the defendant No.1. The defendant No.1 who
has executed the gift deeds in favour of the defendant
No.2 has not filed any petition or counter denying the
disputes with the plaintiff and admittedly, there is a
power of attorney executed by the plaintiff in favour of
the defendant No.1. The undertaking letter and the
confirmation letter issued by the defendant No.1 have
to be examined in detail during the course of the trial
and the plaint cannot be rejected under Order VII Rule
11 CPC, merely on the petition filed by the defendant
No.2.
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20. The plaintiff is seeking declaration of the
ownership over the suit schedule property and recovery
of possession, which is a triable issue and the same has
to be proved after full-fledged trial. The both parties
have submitted the Bank statements before this Court
through memos and the said memos cannot be looked
into in the present revision petition and after
conducting full-fledged trial only, all the facts will come
out as the contesting parties in the suit are close
relatives.
21. In view of the above findings, there is no illegality
or irregularity in the impugned order passed by the
Court below and this Court is not inclined to interfere
with the same while exercising jurisdiction under
Article 227 of the Constitution of India.
22. Accordingly, the Civil Revision Petition is devoid of
merits and is accordingly dismissed.
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23. Miscellaneous petitions, if any pending in this
revision, shall stand dismissed. There shall be no order
as to costs.
_____________________
JUSTICE K. SARATH
Date.03.10.2023
sj/trr
LR copy to marked
