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
PETITIONERRESPONDENT
KANNE VENKATARAMUDU & 3 OTHERS  VSCONGREGATION OF MOTHER OF CARNEL & ANOTHER
PET.ADV. : ACHARYARESP.ADV. : 
SUBJECT: DECLARATION OF TITLE(IMMOVABLE PROPERTY)DISTRICT:  KURNOOL
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



                                                                                                    

Comments

Popular posts from this blog

Article 54 of the Limitation Act, 1963 (36 of 1963) reads as follows: “For Specific performance of a contract: Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.”= the apex Court in Ahmmadsahb Abdul Mila vs. Bibijan[1], wherein it was held that the date fixed for the performance of the contract should be a specified date in the calendar, and submitted that since no specified date in the calendar for performance of the contract is mentioned in the agreement of sale, the second limb of Article 54 of the Limitation Act is applicable. ; whether the suit is barred by limitation or not becomes a tribal issue and when there is a tribal issue, the lower Court ought not to have rejected the plaint at the threshold. In view of the same, order, dated 27-01-2012, in CFR.No.90 of 2012, passed by the Additional Senior Civil Judge, Ongole, (FAC) Senior Civil Judge, Darsi, is, hereby, set aside. The Appeal is allowed accordingly.

Or.18, rule 17 and sec.151 C.P.C - petition filed for reopen and examination of the executant of Ex.A1 the sale deed to fill up the lacuna in evidence pointed out at the time of arguments not maintainable = Shaik Gousiya Begum. ..Petitioner Shaik Hussan and others.... Respondents = Published in http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=10515

Order 39 Rules 1 and 2 CPC. plaintiff has to prove his title and possession how he came into possession prima faice , in the absence of the same, not entitled for interim injunction = The questions as to whether the lease deed was properly stamped and whether the stamp paper on which it was typed can be said to have been procured through proper source, need to be dealt with at the stage of trial.; The suit filed by the 1st respondent, is the one for injunction simplicitor in respect of an item of immovable property. He has also filed an application under Order 39 Rules 1 and 2 CPC. Basically, it was for the 1st respondent to establish that he is in possession and enjoyment of the property and that he derived the same through lawful means, particularly when he did not contend that he encroached upon the property.= assumptions of facts against to the contents of crucial third party by misreading the same- it is just un-understandable as to how the trial Court gathered the impression that Anuradha stated that there was a meeting of Board of Directors, where it was decided to lease the property to the appellants. - the trial Court itself was not clear as to whether the appellant is the lessee or a Manager or is working under any other arrangement. - The important findings that have a bearing upon the valuable rights of the parties cannot be based upon such uncertain and unverified facts. One of the cardinal principles in the matter of examining the applications filed under Order 39 Rules 1 and 2 CPC is that a party claiming that relief must come to the Court with clean hands. Prima facie, we find that there are no bona fides, much less consistency on the part of the 1st respondent, in his effort to get the order of temporary injunction. The trial Court has misread the evidence and misinterpreted the facts borne out by the record.