Barred by Limitation under Art. 59 = suit for declaration that they are entitled to the plaint schedule property by setting aside the gift deed, dated 12.01.1976, executed by the father of plaintiff Nos.1 to 3 in favour of respondent No.1 and also for a consequential permanent injunction restraining the respondents from interfering with the peaceful possession and enjoyment of the plaint schedule property. = Under Article 59 of Schedule I of the Limitation Act, 1963, limitation for filing a suit for cancellation or setting aside an instrument or decree or for the recision of a contract is three years from the day when the facts entitling the plaintiff to have the instrument or decree cancelled became known to him for the first time. Both the Courts below have held that in his evidence, plaintiff No.1, who examined himself as PW.1, has admitted that he came to know about the execution of the gift deed in the year 1995 itself. The limitation period of three years has thus commenced in the year 1995 and the appellants failed to file the suit within three years thereafter. Both the Courts below have therefore held that the suit filed in the year 2002 is barred by limitation.
| SA 329 / 2013 | SASR 13049 / 2013 |
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published in http://164.100.12.10/hcorders/orders/2013/sa/sa_329_2013.html
THE HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY
SECOND APPEAL No.329 of 2013
Dated: 01.07.2013
Between:
Kanne Venkataramudu and others
.. Appellants
and
Congregation of Mother of Carnel,
Head Office at Alwaye, Kerala State,
Represented by its superior of
St. Joseph Convent, Pattikonda,
Kurnool District,
and another.
.. Respondents.
Counsel for the appellants: Mr. T.P.Acharya
Counsel for the Respondents: ---
The Court made the following:
JUDGMENT:
This Second Appeal arises out of judgment, dated 28.11.2012, in A.S.No.57 of 2007 on the file of the II Additional District Judge, Kurnool at Adoni, whereby he has confirmed the judgment and decree dated 08.05.2007 in O.S.No.83 of 2002 on the file of the Junior Civil Judge, Pattikonda.
The appellants/plaintiffs filed the above-mentioned suit for declaration that they are entitled to the plaint schedule property by setting aside the gift deed, dated 12.01.1976, executed by the father of plaintiff Nos.1 to 3 in favour of respondent No.1 and also for a consequential permanent injunction restraining the respondents from interfering with the peaceful possession and enjoyment of the plaint schedule property. It is the pleaded case of the appellants that appellant Nos.1 to 3 are the sons of late Ullakki and appellant No.4 is his wife. That they are the members of the Hindu Joint Family, of which appellant No.1 was the Manager and each of the appellants is having 1/4th share in the plaint schedule property. That respondent No.1/defendant No.1 established a Hospital in Pattikonda in the year 1970 and enjoyed a very good reputation in Pattikonda and surrounding villages and as the father of appellant Nos.1 to 3 was suffering from acute asthama, he has received treatment from the said Hospital. During that time, the Hospital Superintendent induced the said Ullakki to convert himself into Christianity, so that his soul will be benefited in the next life, and that under the complete influence of the Superintendent of the Hospital, late Ullakki has executed the gift deed on 12.01.1976 and the same was got registered. The appellants further pleaded that the property being the ancestral property, late Ullakki had no right to convey the shares of the appellants.
On the basis of the respective pleadings, the trial Court framed the following issues for trial:
“1. Whether the father of plaintiffs 1 to 3 executed the registered Gift Deed dt.12.1.1976 with undue influence of the 1stdefendant?
2. Whether the suit is barred by limitation as contended by the 1st defendant?
3. Whether the plaintiffs are entitled to declaration of their title to the suit property?
4. Whether the plaintiffs are entitled to consequential perpetual injunction as asked for?
5. To what relief?”
The trial Court has held all the issues against the appellants. The lower appellate Court has confirmed the findings of the trial Court. Feeling aggrieved by these concurrent judgments, the appellants filed this Second Appeal.
I have carefully considered the detailed reasons given by both the trial and the appellate Courts on all the issues. One of the main issues considered by the Courts below is limitation. Under Article 59 of Schedule I of the Limitation Act, 1963, limitation for filing a suit for cancellation or setting aside an instrument or decree or for the recision of a contract is three years from the day when the facts entitling the plaintiff to have the instrument or decree cancelled became known to him for the first time. Both the Courts below have held that in his evidence, plaintiff No.1, who examined himself as PW.1, has admitted that he came to know about the execution of the gift deed in the year 1995 itself. The limitation period of three years has thus commenced in the year 1995 and the appellants failed to file the suit within three years thereafter. Both the Courts below have therefore held that the suit filed in the year 2002 is barred by limitation. This finding is enough to non-suit the appellants. Therefore, it is unnecessary for this Court to refer to and deal with the findings relating to other issues.
For the above-mentioned reasons, the Second Appeal shall fail and the same is accordingly dismissed.
As a sequel, SAMP.No.880 of 2013 filed by the appellants, for interim relief, is dismissed as infructuous.
_______________________
C.V.NAGARJUNA REDDY,J
01.07.2013
v v
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