IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED...

1

IN THE HIGH COURT OF KARNATAKA

DHARWAD BENCH

DATED THIS THE 30TH

DAY OF SEPTEMBER, 2015

PRESENT

THE HONOURABLE MR.JUSTICE ANAND BYRAREDDY

AND

THE HONOURABLE MRS.JUSTICE S.SUJATHA

Regular First Appeal No. 100018/2015 (PAR & POS)

Connected With

Regular First Appeal Nos. 100016, 100017, 100099 OF 2015

R.F.A. No.100018/2015:

Between:

1. Leharchand

S/o. Velji Dand

Since deceased by his

Legal Representatives.

1a. Smt. Tarabai

W/o. Leharchand Dand

Aged about 60 years,

Occupation Household work

Mayuri Extension,

Nagashettikoppa,

Hubli – 580029.

1b. Chirag

S/o. Leharchand Dand

R

2

Age Major,

Mayuri Extension,

Nagashettikoppa,

Hubli – 580029.

1c. Smt. Nithika

W/o. Nirmal Lodaya

Aged about 34 years


Mayuri Extension,

Nagashettikoppa,

Hubli – 580029.

2. Smt. Malabai

W/o. Praful Shah



R/at. Narayanpur,

Ahmedabad.

3. Dilipkumar

S/o. Velhi Dand

Aged 57 years,

Occupation Business

R/at. No.62, Patil Layout,

Lingaraj Nagar, Road,

Unakal – Hubli – 580023.

…Appellants

(By Shri V.H. Ron for Shri Rajesh B. Rajanal, Advocate)

And :

1. Gulabchand

S/o. Velji Dand


Legal representatives.

3

1a. Nilesh

S/o. Gulabchand Dand


Occupation Business

Resident of Hubli-580024.

1b. Smt. Lekha

W/o. Sushil Soni

Age 39 years,


R/o. Lamington Palace,

Club road,

Hubli – 580024.

2 Mahesh Kumar

S/o. Veljee Dand



2a. Smt. Shobha

W/o. Mahesh Dand

Age 60 years,


R/at. Keshwapur,

Hubli – 580029.

2b. Rakesh

S/o. Mahesh Dand

Age. 39 years,

Occupation Service work

R/at. Keshwapur

Hubli-580029.

2c. Smt. Dimple

D/o.Mahesh Dand

Age 36 years,


R/at. Keshwapur,

4

Hubli – 580029.

3. Smt. Kamalavva

W/o. late Kyatanagouda Patil

Age 79 years,


And Agriculture

R/at. Keshwapur,

Hubli-580029.

4. Fakirgouda

S/o. Late Kyatanagouda Patil

Age 39 years,

Occupation Agriculture

R/at. Keshwapur,

Hubli-580029.

5. Fakirgouda

S/o. late Basanagouda Patil



Keshwapur, Hubli-580029.

5a. Smt. Gouramma

W/o. Fakirgouda Patil



R/at. Keshwapur,

Hubli-580029.

5b. Subhasgouda

S/o. Fakirgouda Patil

Age Major,

Occupation Business,

R/at. Keshwapur, Hubli.

5c. Gurugouda


5


Occupation Household work,

R/at. Keshwapur,

Hubli - 580029.

5d. Sitamma

W/o. Bharamgouda Somavarad

Age Major,


R/at. Gandhi Nagar

Dharwad – 580134.

5e. Vimala

W/o. Chandrashekar Mangloor

Age. Major,


R/at. Keshwapur,

Hubli – 580029.

5f. Smt. Bharati


Age. Major.

Occupation. Household work

R/at. Barakotri


6. Manohargouda

S/o. late Dyamanagouda Patil


Occupation Pensioner


7. Sadashivgouda





6

7a. Mahesh

S/o.Sadashivgouda patil

Aged 31 years,


R/at. Keshwapur,

Hubli-580029.

7b. Smt. Sushila W/o. Lada,

Age 47 years,



7c. Smt. Geeta

W/o. Basanagouda

Age 51 years,


R/at. Sirur,

Kundagol taluk-580135.

7d. Smt. Raina

W/o. Iregouda Patil

Age 36 years,


R/at. Navalur,

Dharwad taluk –580350.

8. Marigouda


Age 66 years,

Occupation Service.

Keshwapur, Hubli-580029

9. Ishwar Gouda


Age. 66 years,

Occupation service


7

10. Chandramohnagouda


Age. 67 years,

Occupation Pensioner,


11. Yallappagouda


Age. 67 years,



12. Rajashekhargouda


Age. 50 years,

Occupation Agriculture,


13. Prakashgouda

S/o. late Basanagouda patil

Age. 45 years,

Occupation. Agriculture,


14. Chandrashekargouda

S/o. late Marigouda Patil

Age. 45 years,

Occupation. Agriculture


15. Gadag Co-operative

Cotton Sale Society Limited,

Gadag, A registered

Co-operative Society

Having its office at Gadag

And duly represented

By its Secretary.

8

16. M/s. Eureka Builders,

Partnership Concern

Having its registered Office

At Mohak Chambers,

Station Road, Hubli,

Represented by its

Managing Partner

Syam Ramasa Jartarghar,

Age 56 years,

Occupation Partner of

M/s. Eureka Builders.

17. Syam Ramasa Jartaghar

Age 61 years,


M/s. Eureka Builders,

R/o. Mohak Chambers,

Station Road, Hubli-580030.

18. Prakash

S/o. Premachand Kothari

Age. 58 years,





19. Mohan

S/o. Ramasa Jartarghar

Age 55 years,





20. Kashinath

S/o. Ramachandrasa Niranjan

Age 58 years,

9





21. H.R. Pralhad

Age 58 years,





22. Mohan S/o. Rudrappa Wali

Age 58 years,





23. H.R. Rajgopal

Age 55 years,





24. Vishwanath


Age 63 years,

Occupation not known,

R/at. No.11, Eureka Colony,

Kusugal road,


25. Smt. Suneeta

W/o. Gulabchand Dand

Age 59 years,

Occupation household work

10

R/at. Silver Opal Apartment,

7th

Floor, Flat No.704,

Hubli-580029.

… Respondents

(By Shri Shrikant T. Patil, Advocate for R1a-R1b;

Shri Harsh Desai, Advocate for R2a-R2c;

Shri Shreevatsa S. Hegde, Advocate for R3, R4, R6, R7a-R7d,

R8 to R14;

Shri P.S. Tadapatri, Advocate for R5a-R5f;

Shri K.L. Patil, Advocate for R15;

Shri Prakash K. Jawalkar, Advocate for R16, R17, R19-R23;

Shri B.G. Indi, Advocate for R25;

Respondents No.18 and 24 are served, but unrepresented)

This Appeal is filed under Section 96 of the Code of

Civil Procedure, 1908, against the judgment and decree dated

07.11.2014 passed in O.S. No.37/2010 on the file of the III

Additional Senior Civil Judge, Hubli, partly decreeing the suit

filed for partition and separate possession.

R.F.A. No.100017/2015:

Between:

1. Gulabchand

S/o. Velji Dand



1a. Nilesh



Occupation Business

Resident of Hubli.

1b. Smt. Lekha

W/o. Sushil Soni

11

Age 39 years,



Club road,

Hubli – 580025.

…Appellants

(By Shri Shrikant T. Patil, Advocate)

And :

1. Leharchand

S/o. Velji Dand



1a. Smt. Tarabai




1b. Chirag


Age Major,

Mayuri Extension,

Nagashettikoppa,

Hubli – 580028.

1c. Smt. Nithika

W/o. Nirmal Lodaya

Aged about 34 years


Mayuri Extension,

Nagashettikoppa,

Hubli – 580029.

2. Mahesh Kumar

S/o. Veljee Dand

12


Occupation business,

R/at. 54/2 Sans Villa,

Road – II, Near Medleri Hospital




2a. Smt. Shobha

W/o. Mahesh Dand

Age 59 years,


R/at. Keshwapur,

Hubli – 580028.

2b. Rakesh

S/o. Mahesh Dand

Age. 39 years,


R/at. Keshwapur

Hubli-580028.

2c. Smt. Dimple

D/o.Mahesh Dand

Age 36 years,


R/at. Keshwapur,

Hubli – 580028.

3. Smt. Malabai

W/o. Praful Shah



R/at. Narayanpur,

Ahmedabad-380013.

4. Dilipkumar

S/o. Veljee Dand

13

Aged 52 years,

Occupation Business



Unakal – Hubli – 580025.

5. Smt. Kamalavva


Age 79 years,


And Agriculture

R/at. Keshwapur,

Hubli-580028.

6. Fakirgouda


Age 39 years,


R/at. Keshwapur,

Hubli-580028.

7. Fakirgouda




7a. Smt. Gouramma




R/at. Keshwapur,

Hubli-580028.

7b. Subhasgouda


Age Major,


R/at. Keshwapur,

14

Hubli-580028.

7c. Gurugouda




R/at. Keshwapur,

Hubli - 580028.

7d. Sitamma


Age Major,


R/at. Gandhi Nagar

Dharwad – 580001.

7e. Vimala


Age. Major,


R/at. Keshwapur,

Hubli – 580028.

7f. Smt. Bharati


Age. Major.


R/at. Barakotri


8. Manohargouda





9. Sadashivgouda


15




9a. Mahesh


Aged 31 years,


R/at. Keshwapur,

Hubli-580028.


Age 42 years,



9c. Smt. Geeta

W/o. Basanagouda Kudre

Age 51 years,


R/at. Sirur,

Kundagol taluk-581015.

9d. Smt. Raina

W/o. Iregouda Patil

Age 36 years,


R/at. Navalur,

Dharwad taluk –580001.

10. Marigouda


Age 67 years,

Occupation Service.


11. Ishwar Gouda


16

Age. 66 years,

Occupation service




Age. 67 years,



13. Yallappagouda


Age. 67 years,





Age. 49 years,



15. Prakashgouda


Age. 45 years,





Age. 45 years,





Gadag, A registered


17



By its Secretary.


(Erroneously mentioned as

Ureka Builders in the

Impugned judgment)

Partnership Concern


At Mohak Chambers,


Represented by its

Managing Partner


Age 61 years,



Hubli-580028.


Age 61 years,





20. Prakash


Age. 58 years,





21. Mohan


Age 58 years,

18





22. Kashinath


Age 58 years,





23. H.R. Pralhad

Age 58 years,






Age 58 years,





25. H.R. Rajgopal

Age 55 years,





26. Vishwanath


Age 63 years,


19


Kusugal road,


27. Smt. Suneeta


Age 59 years,


R/at. Keshwapur,

Hubli-580028.

… Respondents

(By Shri V.H. Ron, Advocate for R1a-R1c, 3 and 4;

Shri Harsh Desai, Advocate for R2a-R2c;

Shri Shreevatsa S. Hegde, Advocate for R5-R6, R8, R9a-R9d,

R10 to R16;



Shri Prakash K. Jawalkar, Advocate for R18, R19 and R21 to

R25;








R.F.A. No.100016/2015:

Between:

1. Mahesh Kumar

S/o. Veljee Dand



20

1a. Smt. Shobha

W/o. Mahesh Dand

Age 60 years,



1b. Rakesh

S/o. Mahesh Dand

Age. 39 years,



1c. Smt. Dimple

D/o.Mahesh Dand

Age 36 years,



…Appellants

(By Shri Harsh Desai, Advocate)

And :

1. Gulabchand

S/o. Velji Dand



1a. Nilesh



Occupation Business

Resident of Hubli.

1b. Smt. Lekha

W/o. Sushil Soni

Age 39 years,


21


Club road, Hubli.

2. Leharchand

S/o. Velji Dand



2a. Smt. Tarabai




R/o. Mayuri Extension,

Nagashettikoppa, Hubli.

2b. Chirag


Age Major,

Mayuri Extension,


2c. Smt. Nithika

W/o. Nirmal Lodaya

Aged about 34 years


Mayuri Extension,


3. Smt. Malabai

W/o. Praful Shah



R/at. Narayanpur,

Ahmedabad.

4. Dilipkumar

S/o. Veljee Dand

Aged 57 years,

22

Occupation Business



Unakal – Hubli.

5. Smt. Kamalavva


Age 79 years,


And Agriculture


6. Fakirgouda


Age 39 years,



7. Fakirgouda




7a. Smt. Gouramma





7b. Subhasgouda


Age Major,



7c. Gurugouda



23



7d. Sitamma


Age Major,


R/at. Gandhi Nagar, Dharwad.

7e. Vimala


Age. Major,



7f. Smt. Bharati


Age. Major.


R/at. Barakotri

Keshwapur, Hubli.

8. Manohargouda




Keshwapur, Hubli.

9. Sadashivgouda




9a. Mahesh


Aged 31 years,



24


Age 47 years,


R/o.Keshwapur, Hubli.

9c. Smt. Geeta

W/o. Basanagouda Kudre

Age 51 years,


R/at. Sirur, Kundagol taluk.

9d. Smt. Raina

W/o. Iregouda Patil

Age 36 years,


R/at. Navalur,Dharwad taluk.

10. Marigouda


Age 66 years,

Occupation Service.

Keshwapur, Hubli.

11. Ishwar Gouda


Age. 66 years,

Occupation service

Keshwapur, Hubli



Age. 67 years,


Keshwapur, Hubli.

13. Yallappagouda


25

Age. 67 years,


Keshwapur, Hubli



Age. 50 years,


Keshwapur, Hubli.

15. Prakashgouda


Age. 45 years,


Keshwapur, Hubli



Age. 45 years,


Keshwapur, Hubli.



Gadag, A registered




By its Secretary.




Impugned judgment)

Partnership Concern


At Mohak Chambers,


26

Represented by its

Managing Partner


Age 56 years,




Age 61 years,




Station Road, Hubli.

20. Prakash


Age. 58 years,





21. Mohan


Age 55 years,





22. Kashinath


Age 58 years,





27

23 H.R. Pralhad

Age 58 years,






Age 58 years,





25. H.R. Rajgopal

Age 55 years,





26. Vishwanath


Age 63 years,



Kusugal road,

Keshwapur, Hubli.

27. Smt. Suneeta


Age 59 years,



… Respondents

(By Shri Shrikant T. Patil, Advocate for R1a-R1b

Shri V.H. Ron, Advocate for R2a-R2c, R3 and R4;

28

Shri Shreevatsa S. Hegde, Advocate for R5-R6,

R8, R9a-R9d, R10 to R16;



Shri Prakash K. Jawalkar, Advocate for R18, R19 and R21

to R25;








R.F.A. No.100099/2015:

Between:

Gadag Co-operative


Gadag, A registered




By its Secretary.

…Appellant

(By Shri K.L. Patil, Advocate)

And :

Gulabchand

S/o. Velji Dand



1. Nilesh

29



Occupation Business

Resident of Hubli-580029.

District dharwad.

2. Smt. Lekha

W/o. Sushil Soni

Age 39 years,



Club road, Hubli-580029.

District dharwad.

Leharchand

S/o. Velji Dand



3. Smt. Tarabai




R/o. Mayuri Extension,

Nagashettikoppa,

Hubli-580023.

District dharwad.

4. Chirag


Age Major,

Mayuri Extension,

Nagashettikoppa,

Hubli-580023.

District dharwad.

5. Smt. Nithika

W/o. Nirmal Lodaya

30

Aged about 34 years


Mayuri Extension,

Nagashettikoppa,

Hubli - 580023.

District Dharwad.

Mahesh Kumar

S/o. Veljee Dand



6. Smt. Shobha

W/o. Mahesh Dand

Age 60 years,


R/at. Keshwapur,

Hubli – 580023

District Dharwad.

7. Rakesh

S/o. Mahesh Dand

Age. 39 years,


R/at. Keshwapur,

Hubli-580023

District dharwad.

8. Smt. Dimple

D/o.Mahesh Dand

Age 36 years,


R/at. Keshwapur,

Hubli-580023

District dharwad.

9. Smt. Malabai

W/o. Praful Shah

31



R/at. Narayanpur,

Ahmedabad-380013.

Gujarat

10. Dilipkumar

S/o. Veljee Dand

Aged 57 years,

Occupation Business



Unakal – Hubli-580031.

District dharwad.

11. Smt. Kamalavva


Age 79 years,


And Agriculture

R/at. Keshwapur,

Hubli-580023.

District dharwad.

12. Fakirgouda


Age 39 years,


R/at. Keshwapur,

Hubli – 580 023.

District dharwad.

Fakirgouda




13. Smt. Gouramma

32




R/at. Keshwapur,

Hubli - 580023.

District dharwad.

14. Subhasgouda


Age Major,


R/at. Keshwapur,

Hubli – 580 023.

District dharwad.

15. Gurugouda




R/at. Keshwapur,

Hubli – 580 023.

District dharwad.

16. Sitamma


Age Major,

R/at. Gandhi Nagar,

Dharwad-580004.

17. Vimala


Age. Major,


R/at. Keshwapur,

Hubli 580 023.

District Dharwad.

18. Smt. Bharati

33


Age. Major.


R/at. Barakotri

Keshwapur,

Hubli – 580 023.

District Dharwad.

19. Manohargouda




Keshwapur, Hubli-580 023.

District dharwad.

Sadashivgouda




20. Mahesh


Aged 31 years,


R/at. Keshwapur,

Hubli – 580 023.

District dharwad.

21. Smt. Sushila W/o. Lada,

Age 47 years,


R/o.Keshwapur,

Hubli 580 023.

District dharwad.

22. Smt. Geeta

W/o. Basanagouda

Age 51 years,

34


R/at. Sirur – 581 113,

Kundagol taluk.

23. Smt. Raina

W/o. Iregouda Patil

Age 36 years,


R/at. Navalur- 580 009,

Dharwad taluk and District.

24. Marigouda


Age 66 years,

Occupation Service.

Keshwapur,

Hubli 580 023.

District dharwad.

25. Ishwar Gouda


Age. 66 years,

Occupation service

Keshwapur,

Hubli – 580 023

District dharwad.



Age. 67 years,



District dharwad.

27. Yallappagouda


Age. 67 years,


35

Keshwapur, Hubli



Age. 50 years,



District dharwad.

29. Prakashgouda


Age. 45 years,


Keshwapur, Hubli-580 023

District dharwad.



Age. 45 years,


Keshwapur, Hubli-580 023

District dharwad.




Impugned judgment)

Partnership Concern


At Mohak Chambers,

Station Road, Hubli-580020,

Represented by its

Managing Partner


Age 56 years.


Age 61 years,

36




Station Road,

Hubli – 580 020.

District dharwad.

33. Prakash


Age. 58 years,




Station Road, Hubli – 580 020.

District dharwad.

34. Mohan


Age 55 years,




Station Road, Hubli – 580 020.

District dharwad.

35. Kashinath


Age 58 years,




Station Road,

Hubli – 580 020.

District dharwad.

36 H.R. Pralhad

Age 58 years,


37



Station Road,

Hubli – 580 020.

District dharwad.


Age 58 years,




Station Road,

Hubli – 580 020.

District dharwad.

38. H.R. Rajgopal

Age 55 years,




Station Road,

Hubli – 580 020.

District dharwad.

39. Vishwanath


Age 63 years,



Kusugal road, Keshwapur,

Hubli – 580 020. District dharwad.

40. Smt. Suneeta


Age 59 years,


R/at. Keshwapur, Hubli – 580 023

District dharwad. … Respondents

38






These appeals having been heard and reserved, and

coming on for pronouncement of judgment, this day, Anand

Byrareddy J., delivered the following:

JUDGMENT

These appeals are heard and disposed of by this common

judgment, as the appeals are all directed against the same

judgment of the trial court.

2. The parties are referred to by their rank before the trial

court, for the sake of convenience.

3. The appeal in RFA 100016 of 2015 is filed by the

legal representatives of the deceased defendant no.2.

The appeal in RFA 100017 of 2015 is filed by the legal

representatives of the deceased plaintiff no.1.

The appeal in RFA 100018 of 2015 is filed by the legal

representatives of the deceased defendant no.1 and by

defendants no.3 and 4.

39

The appeal in RFA 100099 of 2015 is filed by Defendant

no.17.

4. The facts of the case are said to be as under :

The plaintiff, Gulabchand, aged about 58 as on the date

of the suit, was said to be of unsound mind. The suit was

brought on his behalf by his son, Nilesh. The plaintiff had died

during the pendency of the suit.

The plaintiff and defendants no.1 to 4 were said to be the

owners of property bearing CTS nos.361 and 366, Kusugal

Road, Keshwapur, Hubli. The said properties measuring 3

acres - 4 guntas and 1 acre 25 guntas, respectively, were said

to be in the possession of the plaintiff and the said defendants to

the extent of 5/8th

share and M/s Gadag Co-operative Cotton

Sales Society, Defendant no.17, was said to be in possession of

the remaining 3/8th share of the said properties. The

boundaries to the said properties and other particulars were

indicated in the Schedules to the plaint.

40

The above said properties were said to be Watan

properties, governed by the provisions of the Bombay

Hereditary Offices Act, 1874 (Hereinafter referred to as the

‘BHO Act', for brevity). The property bearing CTS no.361

was said to have been obtained under a permanent lease dated

9.3.1920. And the property bearing CTS no.366 was said to

have been acquired under a lease deed dated 23.10.1915, for a

term of 50 years, by the ancestors of Defendants no.5 to 16,

namely, Adiveppagouda, who is said to have held 50% share in

the said properties, Basanagouda to the extent of 25% and

Marigouda to the extent of 25%. The said lessees are said to

have transferred the lease hold rights to others.

It transpires that the property bearing no.361 was at a

point of time the subject matter of recovery proceedings and is

said to have been brought to auction sale in terms of the decree.

The father of the plaintiff, Shah Veljee Kanjee, is said to have

purchased the same at the auction, held in the year 1941.

41

The lease hold rights of the other property bearing

no.366, is also said to have been acquired by the father of the

plaintiff from its erstwhile lessees, in the year 1943.

The plaintiff's father is said to have expired on 2.12.1957.

Immediately on his expiry one, K.H. Patil is said to have

instituted arbitration proceedings against the family, for

recovery of certain money. In lieu of the award amount the said

Patil and another are alleged to have brought pressure on the

family, to execute two sale deeds in favour of Gadag Co-

operative Cotton Sales Society Limited, Gadag, and another

society of Annigeri, as on 19.12.1957. The plaintiff and

defendants no.1 to 4 are said to have challenged the arbitration

award in a civil suit in OS 9 of 1969. The same is said to have

been decreed in their favour, as on 26.8.1977. In terms of the

said decree, the plaintiff and his family members were declared

owners of the lease hold rights to the extent of 5/8th

share of

the properties. The said judgment and decree is said to have

been unsuccessfully challenged before this court and the Apex

court, as well.

42

In the above background, M/s Eureka Developers,

defendant no. 18, a partnership firm, said to be engaged in real

estate business, allegedly with the active connivance of

defendants no.19 to 25, are said to have got instituted two civil

suits in the Court of Civil Judge, (Senior Division), Hubli, in

OS 364 of 2004 and OS 365 of 2004, as against the plaintiff

and defendants no.1 to 4 and defendant no.17 seeking recovery

of possession of the suit properties. It was claimed that the suit

properties were entrusted to the plaintiffs therein, by defendants

5 to 16. This was vehemently denied by the said defendants,

except defendant no.7, and they had even complained to the

court that they had made no such entrustment and even

complained that they had not even authorised counsel

representing them, and that it was the handiwork of defendant

no.18, in making a false claim over the suit properties.

The suits were however, dismissed as being barred by

limitation, as on 29.1.2007. The same was said to have been

challenged in appeals before this court in RFA 579/2007 and

RFA 580/2007, respectively, by defendant no.7, claiming an

43

extent of 25% in the suit properties. However, Defendants 5,6

and 8 to 16 did not seek to appeal against the said judgment of

the trial court. The said appeals have been subsequently

dismissed as withdrawn, as on 2.2.2012.

It was the plaintiff's assertion that defendants 5 to 16 had

not disputed that the suit properties were Watan properties and

any lease beyond the lifetime of the Wattandar was void, in

terms of Section 5 of the BHO Act. And that the lease deeds of

the year 1915 and 1920, in respect of the suit properties

became void on the respective death of the lessors. Adiveppa

gouda is said to have died on 8.2.1933, Mari gouda on

14.2.1947 and Basanna gouda on 17.8.2004. It is for this

reason that their legal heirs never chose to recover possession of

the properties from the subsequent transferees. And the same

stood vested in favour of the plaintiff and defendants no. 1 to 4.

It was also contended that though the said properties

were said to have been re-granted to the family members of

defendants 5 to 16, by virtue the BHO Act having been

repealed with the coming into force of the Karnataka Village

44

Offices Abolition Act, 1961 (Hereinafter referred to as the

‘KVOA Act’, for brevity), as per orders dated 31.3.1973 and

1.4.1973, the re-grantees were not in possession of the lands as

on those dates. They were required to approach the competent

civil court for recovery of possession ,session within a period of

12 years from the date of order of re-grant. In the absence of

any such suits, their rights stood extinguished.

In the above circumstance, Defendant no.18, Counsel

aiming to have entered into an agreement dated 23.3.2001 with

defendants no.5 to 16, in respect of the properties is not tenable

as they had no subsisting right to the properties as on that date.

That the plaintiff, defendants no.1 to 4 and defendant no.17 had

perfected their title to the property in terms of Section 27 of the

Limitation Act, 1963.

The plaintiff had also contended that a relinquishment

deed said to have been executed by defendants no. 8 to 16 in

favour of defendants no. 1 to 4, dated 8.3.2006 and 10.4.2006,

were null and void, as the said defendants no.8 to 16 had no

45

subsisting right in the properties. And that the plaintiff was not

even a party to the same.

It was also contended that an agreement of sale dated

23.3.2001, set up to lay claim to the suit properties and an

arbitration clause sought to be relied upon therein, was also not

binding on the plaintiff. Apart from the fact that the same was

blatantly fraudulent as the arbitrator named under the arbitration

clause was the elder brother of the managing partner of

defendant no.18. And that the plaintiff was never a party to

several proceedings in respect of the said agreement of sale and

the arbitration proceedings.

It was thus contended that the plaintiff being a co-owner

of the suit properties to the extent of 1/5th share and since

defendants no.1 to 4 were seeking to alienate the same, the suit

for partition and separate possession in respect of his share and

for injunctory reliefs as against defendants 5 to 25, was filed.

Defendants 1 to 4, (defendant no.1 being represented by

his legal representatives, as he died during the pendency of the

suit) had filed written statement conceding the plaintiff's claim,

46

had also sought partition of their respective shares and paid the

necessary court fee in that regard.

Defendants no.5,6,8 and 10 to 16 had also conceded the

claim of the plaintiff. Defendant no.9, represented by his legal

representatives, had adopted the written statement filed by

defendants no. 5,6,8 and 10 to 16.

Defendant no.17 had also admitted the plaint averments,

except for minor variations as to the manner of execution of

sale deeds in its favour and as regards allegations made against

one K.H.Patil.

Defendants no.18,19 and 21 to 25 had filed their written

statement to assert that the suit was barred by limitation and

that the court fee paid was insufficient and that there was no

adjudication to determine that the plaintiff was of unsound

mind. It was contended that the suit being one for partition

inter-se between the plaintiff and defendants no.1 to 4 and

defendant no.27, the other defendants were not necessary

parties to the suit.

47

It was asserted that there were a series of proceedings

namely, three civil suits in OS 359 of 2006, OS 420 of 2006

and OS 52 of 2007 apart from an arbitration case in AA 3 of

2007, writ petitions in WP 1842 of 2007 and WP 66743 of

2009, appeals in MFA 13599 of 2007 and MFA 14061 of 2007,

revision petitions in CRP 494 of 2007 and 1106 of 2011, where

the central issue that arbitration proceedings had validly

commenced and the parties herein, except defendant no.17, had

been directed to resolve the dispute if any against defendants 18

to 25 ought to be resolved before the named arbitrator, namely,

defendant no. 26, having been reaffirmed, the question of any

adjudication in respect of the property which is the subject

matter of the agreement of sale dated 23.3.2001, in this suit,

would not arise. The grant of any relief against the defendants

18 to 25 also did not arise.

It was urged that the suit was apparently a collusive one

as between the plaintiff and defendants 1 to 17 and 27 and was

intended to stall the arbitration proceedings.

48

While denying the plaint averments, it was asserted that

the family of defendants 5 to 16, had entered into an agreement

of sale and had received the sale consideration reserved

thereunder, by way of cheques. But had subsequently failed to

complete the transaction. And in utter disregard of the

agreement of sale, some of the owners had alienated their share

of the suit properties in favour of the plaintiff and defendants

no.1 to 4 and 27. In view of the said dispute, the arbitration

clause in the sale agreement has been invoked and the

arbitration proceedings had commenced.

It was further asserted that an assignee of the suit

properties from Chandrashekar gouda Patil, Yellappa gouda

Patil, Rajashekar gouda Patil and Prakash gouda Patil, is said

to have filed the suit in OS 359/2006 as against defendants 18

to 25 on the same facts as canvassed by the plaintiff herein. An

application under Section 8 of the Arbitration and Conciliation

Act, 1996 (Hereinafter referred to as the ‘AC Act, for brevity),

having been filed by the said defendants, the same is said to

have been allowed and the parties were relegated to the

49

arbitration proceedings. The same having been question in a

writ petition in WP 1842/2007, the same has been dismissed.

It is stated that Yellappa gouda Patil sought to injunct the

arbitration proceedings by filing a suit in OS 420/ 2006, the

said suit also met the same fate as that of OS 359/2006, in the

defendants having filed an application under Section 8 of the

AC Act.

Defendants 18 to 25 are said to have filed an application

under Section 9 of the AC Act, in case no.AA 3/2007, which

had been allowed by the District Court and confirmed in a

common judgment rendered in the Civil Revision Petition CRP

494/2007 decided along with the appeals in MFA 13599/2007

and MFA 14061/2007, by this court. It is hence asserted that

the suit was filed only in order to scuttle the pending arbitration

proceedings and was clearly contumacious and an abuse of

process of court.

It was also contended that after the property bearing

no.366 was regranted, Kyatanagouda Patil had initiated eviction

proceedings against defendant no.17 in respect of the said

50

property, under the provisions of the Karnataka Rent Control

Act, 1961. It is said that the present plaintiff and defendants

no.1 to 4 had got themselves impleaded and took up a defense

that in terms of the judgment and decree in OS 9/1969, they had

become owners of the suit property and other properties

mentioned therein. Those proceedings had however, abated

with the coming into force of the Karnataka Rent Act, 1999.

Kyatanagouda Patil having died, his legal representatives are

said to have then filed civil suits in OS 364/2004 and OS

365/2004, seeking recovery of possession. It is during the

pendency of those proceedings, that some of the owners had

executed relinquishment deeds in favour of defendants no.1 to 4

and 27. And it is thereafter there was active collusion between

the plaintiff and defendants 1 to 4 and 27. And it is also in the

wake of the same that, defendants 5 to 16 even after having

received the consideration under the agreement of sale dated

23.3.2001, had colluded with the plaintiff and defendants no. 1

to 4.

51

It is also pointed out that the plaintiff and defendants 1 to

4 and 27 having lost their right over the properties in the year

1957 in favour of defendant no.17, it is only in the year 2006

that they were able to recover possession of the same to the

extent of 5/8th share culled out by metes and bounds. They

were thus not in possession of the land from 1957 to 2006. The

attempt on the part of the said parties thereafter to have their

names incorporated in the Mutation Register, has been

negatived by the Joint Director of Land Records, on the ground

that they are only lessees. That order has remained

unchallenged.

Hence the said defendants had sought for dismissal of the

suit.

In a rejoinder to the written statement of Defendants

18,19 and 21 to 25, the plaintiffs have contended that the

erstwhile owners of the suit properties, namely, defendants no.

5,6,8 to 16 having admitted the title of the plaintiffs in their

written statement, the defendants 18,19 and 21 to 25 , who are

52

claiming to be agreement holders in respect of the property

have no say in the matter.

That the unsoundness of mind of the plaintiff was amply

evidenced in other proceedings and that there was other

material available on record in proof of that circumstance, the

defendants could not join issue on the same.

It was pointed out that the plaintiff and defendants 1 to 4

and 17 were not seeking partition of any lease hold rights, but

were seeking partition as owners thereof.

That the pleas raised as regards the arbitration

proceedings was in fact, raised by way of an application in IA

no.III before the Trial Court and it was held that the issues

raised were beyond the scope of arbitration and could only be

adjudicated in the suit and that order had been affirmed by this

court. It is hence contended that the said pleas cannot be

reagitated.

It is pointed out that the defendant no.18, company, have

merely quoted the several paragraphs in the plaint and have

merely denied the same, without any other qualification or a

53

preamble. The denial of matters which are clearly matters of

record that cannot be disputed, would indicate the dishonesty

and irresponsible pleadings of the said defendants.

On the basis of the above pleadings, the Trial Court had

framed the following issues :-

“1. Whether the plaintiff proves that he

is a person of an unsound mind and disabled

with sound disposing state of mind and

therefore he is duly represented by his next

friend?

2. Whether the plaintiff proves that the

agreement of sale dated 23.3.2001 alleged to

have been executed by defendant No.5 to 16 in

favour of defendant no.18 is not only sham,

bogus, fraudulent, but is also null and void,

ab-initio, non-est and unenforceable in the

eyes of law?

3. Whether the plaintiff proves that

himself and defendant no.1 to 4 and defendant

no.17 have perfected their title to the suit

schedule properties by operation of law under

section 27 of the Limitation Act?


registered relinquishment deeds alleged to

54

have been executed by defendant no.8 to 16 in

favour of defendant no.1 to 4 dated 8.3.2006

and 10.4.2006 are also null and void ab initio

and non-est in the eyes of law as he is not

party to the said deeds?


proceedings or any orders passed in previous

litigations in AA No.3/07, AA No.9/07, OS

No.359/06, MFA NO.13599/09, MFA

No.14061/07 and OS No.52/07 are not binding

on him as he is not party to those

proceedings?

6. Whether the plaintiff proves that he

is entitled for perpetual injunction restraining

the defendants No.18 to 25 from enforcing the

Sale Agreement dated 23.3.2001 alelged to

have been executed by the defendant No.5,6, 7

and 16 in respect of the suit schedule

properties?

7. Whether the plaintiff is entitled for

partition and separate possession of his 1/5th

share in the suit schedule properties by metes

and bounds?

8. Whether the plaintiff is entitled for

the perpetual injunction restraining the

55

defendant No.5 to 25 from interfering with the

suit schedule properties?

Additional Issues dated 2.9.2014

1. Whether the suit is barred by limitation?

2. Whether the suit without seeking the

declaration is not maintainable?

3. Whether the suit is bad for mis-joinder of

parties?

4. Whether defendants No.18,19,21 to 25

prove that this court has no jurisdiction to

grant permanent injunction in view of the

pendency of arbitral proceedings in respect

of sale agreement dated 23.3.2001?

Additional Issues dated 9.9.2014

5. Whether the defendant No.1 proves that

defendants No.1(a) to (c) and defendant

No.2,3 and 4 are having 1/5th share each in the

schedule property?

6. Whether defendants No.18, 19 and 21 to 25

prove that suit is to be restricted to the claim

of plaintiff only and other defendants have no

56

right to claim the share or other right in the

schedule property?

7. Whether defendants No.1 to 4 prove that they

are entitled for the share claimed in their

written statement?”

The trial court having answered Issue no.1, 5 and

additional issues no.2, and 4 in the affirmative and having

answered Issue no.7 and additional issues no. 5 and no.7, partly

in the affirmative and having answered the remaining issues in

the negative, has held that the plaintiff, through his class I heirs,

was entitled to a 1/5th share in the leasehold rights to the plaint

schedule properties. That defendants 1(a) to (c) and defendants

2 to 4 were entitled to 1/5th share, each, in the lease hold rights

in respect of the suit properties and has dismissed the suit in

respect of other reliefs sought for.

It is that judgment which is under challenge in these

appeals.

5. The learned counsel for the appellants would

uniformly contend as follows :

57

That the only contesting party in the suit was defendant

no.18, represented by its partners, defendant nos.19 to 25. The

partnership firm was only an agreement holder of the suit

properties under an agreement said to have been executed by

the erstwhile owners, defendants No.5 to 16, who have clearly

admitted all the averments made in the plaint. There is no

contest of the suit by the other defendants except defendant

no.18 and its partners. The plaintiffs had contended before the

Trial Court that under Section 54 of the Transfer of Property

Act, 1882, a mere agreement of sale did not create any interest

in favour of defendant no.18 and that it had no locus standi to

contest the suit except the enforceability or otherwise of the sale

agreement. The plaintiffs and defendants No.1 to 4 had also

claimed partition by metes and bounds. Defendant no.18 had

been made a formal party only for the purpose of consequential

reliefs claimed by the plaintiffs restraining it from enforcing the

said sale agreement on the ground that the same is ab initio,

null and void as on the date of the agreement as the vendors had

no subsisting title in the properties. The Trial Court has

58

ignored this point. No finding has been recorded on the locus

standi of defendant no.18, as contended by the plaintiff and

defendant nos.1 to 4. Hence, the judgment and decree on issues

No.2 to 4 and also on issue no.6 and 8 as well as the findings

recorded on the other issues against the plaintiffs is vitiated in

law and cannot be sustained on facts.

Regarding the title of defendants 5 to16, since the two

suits in OS No.364 and 365 of 2004 filed by them, seeking

possession of the suit properties from the plaintiffs, defendant

nos.1 to 4 and defendant no.17 had been dismissed as barred by

time and the said decree, having become final and binding

between the parties, Section 27 of the Limitation Act, 1963

applied, thereby extinguishing their right in the suit properties.

This position is clearly admitted by all the parties including

defendants 5 to 16. Even Defendant no.17, the Society, which

was in joint possession of the suit properties along with

plaintiffs and defendants No.1 to 4 from 1957 till 2005 had

clearly admitted the title of the plaintiffs and defendants No.1 to

4 to the extent of 5/8th

share, that is Schedule ‘B’ of the suit

59

properties. In view of these clear admissions and the declared

law, the Trial Court ought to have recorded a finding that the

right of defendants 5 to 16 to the properties was extinguished

long prior to the sale agreement in favour of defendant no.18

and the said right vested statutorily and automatically in favour

of the plaintiffs and defendants No.1 to 4 and defendant no.17.

In view of the settled position in law that the period of 12

years for filing suits for possession expired immediately on the

expiry of 12 years from the date of regrant of the suit properties

in favour of defendants 5 to 16 under the KVOA Act in the

year 1973 and 1982, the Trial Court ought to have recorded a

finding regarding the limitation that in view of the settled

proposition of law under the KVOA Act, that if the regrantees

are not in possession of the suit properties as on the date of the

regrant, their remedy was to file a suit for possession within 12

years based on title under Article 65 of the Limitation Act,

1963 from the date of regrant and that since the two suits were

filed by them.

60

In the year 2004, that is long after the expiry of 12 years

from the date of regrant and the suits having been dismissed as

barred by time, the court below erred in not applying Section 27

of the Limitation Act, 1963.

The Trial Court had no power and jurisdiction to go into

the question of the validity of the decree dated 29.1.2007,

passed in OS 364 and 365 of 2004 nor the reasons assigned by

the Trial Court while dismissing the said two suits on the

ground of limitation, under Section 11 of the Code of Civil

Procedure, 1908, on the doctrine of res judicata. Hence, the

reasons assigned by the trial court for not applying Section 27

of the Limitation Act, 1963 cannot be sustained both in law and

on facts.

The Trial Court has recorded a finding, without any plea

to that effect by any of the parties in their written statements,

that there still existed a relationship of lessor and lessee

between the defendants 5 to 16 on the one hand and the

plaintiffs, defendant nos. 1 to 4 and the defendant no.17 on the

other hand.

61

In OS 364 and 365 of 2004, the said leases of the years

1915 and 1920 in favour of the predecessors of the plaintiffs

and others became void immediately on the death of the lessors

who created the said leases. The said leases beyond the life

time of the lessors became void in law and the defendants in the

said two suits were in unauthorised occupation of the land. The

Trial Court completely misdirected itself in decreeing the suit

for partition only in respect of the leasehold rights which

leasehold rights have become void both under the BHO Act

and KVOA Act.

The suit lands got vested absolutely in the State

Governments, as per the provisions of the KVOA Act, free

from all encumbrances, thereby vitiating the leases as void and

that the plaintiffs, defendants No.1 to 4 and defendant no.17

were unauthorised occupants of the suit properties. The suit

properties vested in the State Government on 1.3.1963 till the

lands were regranted. The erstwhile lessees cease to be the

lessees with vesting of the land in the State Government.

62

Hence, the finding of the court below that there existed a

relationship of lessor and lessee cannot be sustained.

The reasoning of the court below that the erstwhile

lessees did not contend that they had become owners by virtue

of Section 27 of the Limitation Act, 1963 in OS 9 of 1969 is, ex

facie, without any basis and has been recorded without

appreciating the fact that the said suit was filed long prior to the

regrants. The reasoning of the court below that this contention

was not taken up in OS 364 and 365 of 2004 and therefore,

Section 27 does not apply is also unsustainable. The court has

ignored the well established proposition of law that under

Section 115 of the Evidence Act, 1872, there cannot be any

estoppel against the law.

The finding of the trial court was that the plaintiffs and

defendants 1 to 4 should have sought declaration of title and

since no declaration of title was sought in the suit, the suit is not

tenable. Section 27 of the Limitation Act, 1963 clearly declared

the extinguishment of title of defendants 5 to 16 and the title of

the plaintiffs and defendants no.1 to 4 and defendant no.17 to

63

the suit properties. In view of this provision of law, which

itself declared the legal status of the plaintiffs and the

supporting defendants, no declaration could be prayed in the

suit.

The finding of the court below that section 27 is not

applicable since the plaintiffs and other supporting defendants

no.1 to 4 were not in possession of the suit properties from

1957 till 2005 cannot be sustained, since defendant no.17,

which was admittedly in possession of the suit properties has

clearly admitted the fact that the defendant no.17 was in joint

possession along with the plaintiffs and the supporting

defendants.

The court below has ignored the elementary principle of

law that parties cannot take any plea contrary to law and they

cannot contract against a statute. Under the KVOA Act, the

lease having become void in law and also under the repealed act

of 1957, any plea, even if taken by the erstwhile lessees, cannot

prevail against the said law. Since plaintiff Gulabchand was

not a party to any of the previous proceedings, any plea taken

64

by the other erstwhile lessees in ignorance of law and contrary

to the provisions of law, cannot bind the plaintiffs and their

case does not stand affected by any such adverse plea, even if

taken by the other parties.

The court below has practically considered the validity

and legality of the previous judgements and decree in OS 9 of

1969, which is affirmed by the High Court and the Supreme

Court and the judgment and decree dismissing the two suits OS

364 and 365 of 2004, which also has attained finality, as if the

Trial Court is sitting on the appellate jurisdiction over the said

judgment and decrees, which judgement and decrees have

clearly been admitted by the parties in the said proceedings.

The following authorities are relied upon by the

appellants :

a) Bapu Mallu Khot vs. Deputy Commissioner, Belgaum and

others, 1975(2) Karnataka.LJ 315,

b) V.Channanarasimhaiah vs. Additional Tahsildar,

Bangalore and others, 1997(3) Karnataka.LJ 101,

65

c) G.V.Subba Rao vs. Tahsildar, Chikkaballapura Town,

Kolar District and others, 1998(3) Karl.LJ 413,

d) Janatha Dal Party, Bangalore vs. The Indian National

Congress, New Delhi and others reported in 2014(2) KLJ

265,

e) Yeshwantrao Laxman rao Ghatge and another vs. Baburao

bala, (1978)1 SCC 669

f) Rajender Singh and Others vs. Santa Singh and others,

(1973)2 SCC 705,

g) Kalidas Dhanjibhat vs. The State of Bombay, AIR 1955 SC

62,

h) Som Dev and others vs. Rati Ram and another, (2006)10

SCC 788

i) Eureka Builders vs. Gulabchand and others, 2013(1) KLJ

675,

j) N.Radhakrishnan vs. Maestro Engineers and others,

(2010)1 SCC 72

k) Sukanya Holdings Pvt.Ltd. vs. Jayesh Pandya and another,

(2003)5 SCC 531.

66

6 .The learned counsel for defendants 18 to 25, on the other

hand, would amplify on the very stand taken in the suit and

would seek to justify the judgment of the trial court.

7. In the light of the above contentions and having

regard to the facts and circumstances as emanating from the

record and in addressing the judgment under challenge, the

following points arise for our consideration :

a. Whether the plaintiff could claim a partition of the suit

property as owner thereof ? Was the trial court right in its

conclusion that he was at best a lessee and could claim partition

only of lease hold rights.?

b. Whether the plaintiff was not entitled to claim as a owner in

the absence of a prayer for a declaration to that effect? Or

whether it could be said that the plaintiff became a lawful

owner by operation of law. ?

c. What is the effect of the Arbitration clause contained in the

agreement of sale dated 23.3.2001 said to have been executed

by defendants no.6 to 15 in favour of Defendants 18 to 25?

67

And whether the plaintiff was required to have his claim

adjudicated in the arbitration proceedings only, since the suit

property is subject matter of the said arbitration proceedings.?

d. Whether defendant no.18 and its partners had a right to

contest the suit on merits.?

e. Whether the plaintiff was entitled to the injunctory reliefs

prayed for ?

POINT ( a): The following chronology of events is not in

dispute.

The property bearing no.366, originally bearing RS no.20

of Keshwapur, measuring 3.20 acres was granted on a term

lease of 50 years in favour of one Chaturbhuj Ratansi, under a

lease deed dated 23.10.1915, by a Watandar.

The property bearing no.361, originally bearing RS

no.20/1 and 20/2, of Keshwapur measuring 1.25 acres, was said

to have been granted under a permanent lease in favour of one

Kaanji Ghelabhai Shet alias Gujjar, under a deed dated

9.3.1920.

68

The property bearing no.361 was purchased by the

father of the plaintiff, Shah Velji Kanji, at a Court auction in

the year 1942.

The lease hold rights pertaining to the property bearing

no.366 was said to have been purchased by the father of the

plaintiff as on 14.5.1943. The father of the plaintiff is said to

have died on 2.12.1957. A sale deed is said to have been

executed in respect of the above properties by the widowed

mother of the plaintiff, representing herself and her 2 major

daughters, 4 minor sons and a minor daughter, in favour of

Defendant no.17, a Society, under a sale deed dated 19.12.1957.

A civil suit in OS 9/1969 was filed by the plaintiff and

four other children of Sha Velji Kanji, as on 13.6.1969, against

Defendant no. 17, challenging the sale in its favour, by their

mother and for partition. The suit was decreed in their favour,

the sale of the suit properties was nullified and the suit for

partition was decreed, by a preliminary decree, dated 26.8.1977.

The same had been unsuccessfully challenged by Defendant

69

no.17, before this court as well as before the Apex Court. The

same attained finality.

In the meanwhile, re-grant orders were made under the

provisions of the KVOA Act, in favour of the erstwhile original

holders of the land, by an order dated 31.3.1973, re-grant was

ordered in respect of 32 guntas of land in property no.361 and

by an order dated 1.4.1973, re-grant was ordered in respect of

land measuring 3.20 acres in property no.366. A further order

of re-grant in respect of an extent of 33 guntas in property

bearing no.361 was made on 24.2.1982. No proceedings were

initiated, on such re-grant, to recover possession of the suit

properties which was under the occupation of Defendant no.17.

An agreement of sale, dated 23.3.2001, is said to have

been executed by some of the Defendants amongst Defendants

5 to 16, in favour of Defendant no.18, represented by its

partners, in respect of the suit properties.

Defendants 5 to 16 instituted civil suits in OS 364 and

OS 365 of 2004, seeking to recover possession of the suit

properties from the plaintiff, defendants no.1 to 4 and defendant

70

no. 17. The same are dismissed, as being barred by limitation

on 29.1.2007. Appeals filed against the said dismissal in

appeals in RFA 579 and RFA 580 of 2007, before this court

are dismissed as withdrawn on 2.2.2012.

The present suit was filed by the plaintiff in February

2010, seeking partition and separate possession of his 1/5th

share in the suit properties as a co-owner thereof and for

injunctory reliefs against defendants 5 to 16 and 18 to 25.

It is on record that the suit properties were Watan lands

and were subject to the provisions of the BHO Act, 1874. It is

seen that under Section 5 of the said Act, a lease granted

beyond the life time of the Watandars, without leave of the

State government was void. This legal position is also asserted

by Defendants 5 to 16, in their suit in OS 364/2004, the copy of

the plaint is marked as Exhibit D-3.

In any event, with the coming into force of the KVOA

Act, the BHO Act stood repealed, village offices were

abolished and the land held by virtue of office, stood resumed

71

by the State, this included the Watan lands, such as the suit

properties.

The lands were, however, re-granted to the original

holders or their legal representatives, as in the case on hand, on

the dates as indicated above. The legal position under the

KVOA Act, is that if the re-grantee is not in possession on the

date of re-grant, his remedy is to file a suit before the civil court

for possession against a third party, who may be in possession

and who would be deemed to be a trespasser. The re-grantee

cannot even seek the assistance of the Deputy Commissioner to

obtain such recovery.

(See: Bapu Mallu Khot vs. Deputy Commissioner, Belgaum and

others, 1975(2) Karnataka.LJ 315; V.Channanarasimhaiah vs.

Additional Tahsildar, Bangalore and others, 1997(3)

Karnataka.LJ 101; G.V.Subba Rao vs. Tahsildar,

Chikkaballapura Town, Kolar District and others, 1998(3)

Karl.LJ 413)

It is not in dispute that the re-grantees had not taken steps

to recover possession of the suit properties, till the filing of the

civil suits in OS 364 and 365 of 2004, as on 23.11.2004. The

72

period of limitation to file a suit for recovery of possession

from the date of the order of re-grant dated 31.3.1973 and

1.4.973 had expired on 1.4.1985 and 2.4.1985, respectively. As

the period of limitation prescribed under Article 65 of the

Schedule to the Limitation Act, 1963, is 12 years. The

limitation in respect of the order of re-grant dated 24.2.1982,

also expired on 24.2.1994.

The plaintiff seeks to claim title to the property by

operation of law. Attention is drawn to Section 27 of the

Limitation Act, 1963. The said section reads as under :-

“27. Extinguishment of right to

property – At the determination of the period

hereby limited to any person for instituting a

suit for possession of any property, his right

to such property shall be extinguished.”

The principle underlying this section is that a person

having a right to possession suffers his right to the property as

barred by the law of limitation. It is an exception to the general

principle that the law of limitation only bars the remedy, but

does not extinguish the right itself. It is actually a provision of

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prescription rather than a provision prescribing limitation. In

other words, this section is a substantive provision of law rather

than one prescribing procedure.

When there is conferment of title to the person out of

possession, the extinguishment of title under this provision, of

the rightful owner - gives the trespasser a good title as against

the rightful owner and anyone claiming under him.

However, it is to be noticed that the section only

extinguishes the title of the rightful owner and does not

specifically state as to the vesting of that right. Then again the

title to the property cannot remain in a vacuum. Therefore, on

the extinguishment of the title of the rightful owner, such title

to the property shall follow possession and the person in

possession as trespasser is to be treated to have acquired title to

the property.

(See: Din Dayal v. Rajaram, AIR 1970 SC 1019; Jawaharlal

v. Bhagchand, AIR 1987 Del 338; Ahmed Wani v. Lassugen,

AIR 1967 J & K 149; Ram Murthy v. Puran Singh, AIR 1963

74

Punj 393; Ramanathan v. Somasundaram, AIR 1964 Mad 327;

Janatha Dal Party, Bangalore vs. The Indian National

Congress, New Delhi and others reported in 2014(2) KLJ 265;

Yeshwantrao Laxman rao Ghatge and another vs. Baburao

bala, (1978)1 SCC 669; Rajender Singh and Others vs. Santa

Singh and others, (1973)2 SCC 705, Kalidas Dhanjibhat vs.

The State of Bombay, AIR 1955 SC 62)

In view of the above legal position, by virtue of which,

the plaintiff had perfected his title to the property, the Trial

Court was not justified in holding that the plaintiff could claim

only as a lessee and could seek partition of only the lease hold

rights. Such a finding is without reference to the fact that the

lease was void from inception and in any event, the properties

stood vested in the State with the coming into force of the

KVOA Act. The re-grantees having failed to recover

possession, the plaintiff has perfected title by continued

possession.

POINT ( b) : The sequence of events and the factual position

is not disputed by any of the defendants, except defendant

75

no.18 through its partners. The said circumstances being borne

out by material documents produced and marked in evidence,

the reasoning of the Trial Court that it was incumbent on the

plaintiff to seek a declaration of his title - is an objection with

reference to form and is not an infirmity of any substance. It

may even be said that the plaintiff had perfected his title by

operation of law. Hence, the court below could not have

denied the title of the plaintiff to the suit properties as a co-

owner.

POINT (c) : This really does not arise for consideration as the

Order dated 9.2.2012 in CRP 1106 of 20011 passed by this

court in the said revision petition filed by Defendant no.18 and

others, questioning the dismissal of an application under

Section 8 of the AC Act, by the trial court, is a complete

answer. The plaintiff has been held not bound by the

arbitration clause contained in the agreement dated 23.3.2001.

POINT (d): Defendants 18 to 25 were made parties to the suit

only because of the plaintiff's apprehension that the said

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defendants were seeking to enforce an agreement of sale in

respect of the suit properties and that they were also seeking to

interfere with their possession. In so far as the agreement of

sale is concerned, it is already found while deciding I.A no.3

filed in the suit of the plaintiff, that he was not a party to the

said agreement and that he was not bound by the arbitration

clause contained therein. That view has been affirmed by this

court in CRP 1106 of 2011.

The said defendants however, cannot be restrained from

enforcing the agreement of sale under which they are claiming -

whether the same is a valid agreement of sale and whether it

would be enforceable against the plaintiff and other defendants

need not be answered in these proceedings , as there is said to

be an arbitration proceeding pending in that regard.

The plaintiff being in possession of the property cannot

however, be dispossessed or disturbed by defendants 18 to 25,

otherwise than under due process of law.

Further, as holders of an agreement of sale, the said

defendants would not be in a position to claim any interest or

77

charge over the property and hence could not question the claim

of the plaintiff. Their right if any, accrues only after a final

result of the arbitration and any further proceedings thereto.

Ironically, the Trial Court had adopted a reasoning, in

dealing with several issues, when even the contesting

defendants (18 to 25) had not pleaded any such facts, which

formed the basis of the reasoning.

POINT (e) : The plaintiff's title and possession having been

affirmed, it would follow that the plaintiff is entitled to

protection of such possession and therefore the order of the

Trial Court would certainly require modification.

In the result, the appeals are allowed. The suit of the

plaintiff, now represented by his legal representatives, and the

counter claim of defendant no.1, now represented by his legal

representatives and defendant nos.2 to 4, are decreed.

The plaintiff and defendants no.1 to 4 are each entitled to

a 1/5th share in the suit schedule properties. A preliminary

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decree shall be drawn up in terms as above. Defendants 5 to 25

are restrained by a permanent injunction from interfering with

the peaceful possession of the plaintiff and others, of the suit

properties aforesaid, otherwise than under due process of law.

Sd/-

JUDGE

Sd/-

JUDGE

nv*

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