Case Note & Summary
This regular second appeal arose from a dispute concerning agricultural land bearing Sy.No.10/1 measuring 2 acres 3 guntas at Kundarasanahalli Village, Bangarpet Taluk. The plaintiff claimed ownership under a registered gift deed dated 29.01.1996 executed by one Thimmappa, asserting continuous possession and cultivation since that date, with revenue records in his name. The defendant contested the claim, setting up title through a sale agreement dated 11.12.1991 from Venkatappa (Thimmappa's brother) for Rs.15,000, under which he claimed possession and had made applications to revenue authorities. The defendant alleged that the gift deed was fabricated and that the suit property originally belonged to Muniyamma and Nyathappa, with no valid title passing to the plaintiff.
The plaintiff had initially filed O.S.No.36/2004 for permanent injunction. In his written statement filed on 27.10.1999, the defendant expressly denied the plaintiff's title. That suit was dismissed on 30.11.2006 after full trial. On appeal in R.A.No.3/2007, the plaintiff sought and obtained permission on 14.06.2010 to file a fresh suit, leading to the present O.S.No.182/2010 for declaration and possession, filed on 03.09.2010. The trial court framed issues on title, possession, interference, and limitation. After trial, it held that the plaintiff had partly proved title, the defendant failed to prove his claimed possession, and the suit was not barred by limitation. It decreed the suit, declaring the plaintiff as absolute owner and directing the defendant to hand over possession within 60 days, while rejecting the injunction prayer. The defendant's appeal, R.A.No.65/2018, was dismissed by the first appellate court, which confirmed the trial court's findings.
In the second appeal, the defendant-appellant contended that both courts erred in failing to appreciate that the suit was barred by limitation. He argued that the defendant had denied title way back in 1999 in the earlier suit, and the present suit for declaration ought to have been filed within three years under Article 58 of the Limitation Act, 1963, not under Article 65. Reliance was placed on H.B. Shivakumar vs. Sri L.C. Hanumanthappa (2015 SCC Online Kar 3860), wherein it was held that cause of action for declaration arises when title is denied. The appellant urged that the liberty granted to file a fresh suit could not override the law of limitation. The respondent presumably defended the concurrent findings on limitation, though no specific submissions are recorded in the available text. The High Court heard the matter for admission but the excerpt provided does not contain the final order or reasoning.
Issue of Consideration
Whether the suit for declaration and possession filed in 2010 was barred by limitation under Article 58 of the Limitation Act, 1963, given that the defendant had denied the plaintiff's title in the earlier suit for injunction filed in 2004 (OS No.36/2004).
Case Details
2023 LawText (KAR) (03) 44
Regular Second Appeal No. 172 of 2020 (DEC/INJ)
Puttige R. Ramesh, Lakshmi S. Holla, G.A. Srikante Gowda
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Nature of Litigation
Suit for declaration of title, recovery of possession, and permanent injunction relating to agricultural land
Remedy Sought
The plaintiff sought declaration of absolute ownership and possession of the suit property based on a gift deed, and a permanent injunction restraining interference.
Filing Reason
The defendant interfered with the plaintiff's possession, claiming title under a sale agreement, and the earlier suit for injunction having been dismissed, the plaintiff filed a fresh suit for declaration and possession after obtaining court permission.
Previous Decisions
The trial court partly decreed the suit, granting declaration and possession and rejecting injunction. The first appellate court dismissed the defendant's appeal, confirming the trial court's decree. The second appeal is pending before the High Court.
Issues
Whether the suit for declaration and possession filed in 2010 was barred by limitation under Article 58 of the Limitation Act, 1963, given the denial of title in the earlier suit of 2004?
Whether the plaintiff proved his title and possession under the gift deed dated 29.01.1996?
Whether the defendant proved his title and possession under the sale agreement dated 11.12.1991?
Submissions/Arguments
Appellant-defendant contended that the suit is time-barred as the plaintiff's title was specifically denied in the written statement dated 27.10.1999 in O.S.No.36/2004, and the present suit for declaration filed in 2010 is beyond the three-year period under Article 58 of the Limitation Act. The permission to file a fresh suit cannot cure the limitation defect. Reliance was placed on H.B. Shivakumar v. L.C. Hanumanthappa (2015 SCC Online Kar 3860) to argue that cause of action for declaration accrues when title is denied.
Respondent-plaintiff's arguments are not specifically recorded in the available excerpt, but the trial court had held that the suit was within time, presumably on the ground that cause of action for recovery of possession based on title arises continuously, attracting Article 65.
Judgment Excerpts
The main contention of the learned counsel appearing for the appellant-defendant before this Court is that both the Courts have committed an error and failed to take note of the pleadings of the parties.
The defendant has taken specific contention that the suit is barred by limitation and earlier suit filed by the plaintiff against the defendant in O.S.No.36/2004 is dismissed after completion of full-fledged trial and thereafter, he has preferred an appeal before Senior Civil Judge, KGF and in the said appeal, an application was also filed to withdraw the suit and permission was given to file a fresh suit, since he did not seek any relief of declaration in the earlier suit.
The learned counsel for the appellant-defendant, in support of his argument, relied upon the judgment in H.B. SHIVAKUMAR VS. SRI L.C. HANUMANTHAPPA, SINCE DECEASED BY HIS LEGAL REPRESENTATIVES reported in 2015 SCC ONLINE KAR 3860...
It is the established principles of law that, cause of action for the relief of declaration will arise when the title is denied by the other side.
Procedural History
1. Plaintiff filed O.S.No.36/2004 for permanent injunction; defendant filed written statement on 27.10.1999 denying title; suit dismissed on 30.11.2006 after full trial.
2. Plaintiff preferred R.A.No.3/2007 before Senior Civil Judge, KGF; in that appeal, he applied for and was granted permission on 14.06.2010 to file a fresh suit.
3. On 03.09.2010, plaintiff filed the present O.S.No.182/2010 for declaration and possession.
4. Trial Court (Addl. Civil Judge and JMFC, Bangarpet) partly decreed the suit on 01.08.2018, granting declaration and possession, rejecting injunction.
5. Defendant filed R.A.No.65/2018; First Appellate Court (Senior Civil Judge and Prl. JMFC, KGF) dismissed the appeal on 07.11.2019, confirming the trial court decree.
6. Defendant filed Regular Second Appeal No.172/2020 before the High Court of Karnataka.
Acts & Sections
- Code of Civil Procedure, 1908: Section 100
- Limitation Act, 1963: Article 58, Article 65
