High Court Decides Regular Second Appeal in Civil Procedure and Land Reforms — Framed Substantial Questions on Limitation and Tenancy Surrender. Whether permit to withdraw earlier suit with liberty validated fresh suit and whether earlier sale deed and surrender of tenancy were properly considered by lower courts.

Civil suit for declaration and permanent injunction regarding title and possession of agricultural land

Plaintiffs sought declaration of ownership and permanent injunction against defendants

Plaintiffs claimed purchase of suit lands from original owner Smt. Venkubai, but defendants interfered and claimed rights based on earlier sale deed and surrender of tenancy

Earlier suit O.S.No.34/1969 filed by plaintiffs' predecessor for permanent injunction, which was initially decreed, then remanded, and finally dismissed; appeal R.A.No.1/1987 against dismissal was withdrawn with liberty to file fresh suit; present suit O.S.No.585/1989 filed pursuant to that liberty; trial court and first appellate court dismissed the suit

Whether the finding of the courts below that suit is not barred by time since earlier suit in O.S.No.34/69 was permitted to be withdrawn with liberty to file a fresh suit is perverse and arbitrary, being contrary to law as no material has been produced to show that the suit was permitted to be withdrawn with liberty to file fresh suit. Whether the trial Court and the first appellate Court have committed any serious error in considering the effect of the earlier registered sale deed executed by Smt. Venkubai in favour of defendant No.2 dated 21.09.1967 and regarding the effect of the surrender of the land by the Tenant as alleged by the defendants in favour of Smt.Venkubai.

Appellant's counsel argued that the trial court and first appellate court did not properly consider the legal point regarding surrender of tenancy and the effect of the earlier sale deed executed by Venkubai in favour of defendant No.2, and that the finding on limitation was perverse as no material was produced to show permission to withdraw was granted. Plaintiffs argued that the earlier suit was permitted to be withdrawn with liberty to file a fresh suit, hence the present suit was within time, and that the earlier sale deed and surrender of tenancy were void and ineffective, being contrary to law.

On 09.12.2005, this Court has framed the following substantial question of law :- “Whether the finding of the courts below that suit is not barred by time since earlier suit in O.S.No.34/69 was permitted to be withdrawn with liberty to file a fresh suit is perverse and arbitrary, being contrary to law as no material has been produced to show that the suit was permitted to be withdrawn with liberty to file fresh suit.” (Para 2) The plaintiffs have filed the present suit in O.S.No.585/1989 claiming that the findings in the earlier suit neither operates as res-judicata nor any findings recorded in the said suit are binding upon them. (Para 8) the defendants have categorically stated that the appellate Court has not given any permission to the plaintiffs to file a fresh suit on the same cause of action. (Para 12)

Original owner Venkubai owned suit land; she sold northern portion to defendant No.2 in 1967 and relinquished rest to daughters. Plaintiffs claim purchase from Venkubai in 1972. Earlier suit O.S.No.34/1969 filed by plaintiffs' predecessor for injunction; decreed, then remanded, then dismissed, then appeal withdrawn with liberty in 1988. Present suit O.S.No.585/1989 filed. Trial court dismissed suit on 15.06.2002. First appeal R.A.No.412/2004 dismissed on 05.03.2005. Regular Second Appeal filed in 2005; substantial questions of law framed on 09.12.2005; additional question framed later. Heard and reserved for judgment on 14.09.2017; judgment pronounced on 10.11.2017.

• Code of Civil Procedure, 1908: Section 100, Order 2 Rule 2, Order 23 Rule 1
• Karnataka Land Reforms Act, 1961: Section 25
• Indian Registration Act, 1908: Section 17