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Judgment
Hari Nath Tilhari, J.-This is plaintiff''s appeal against the judgment and decree dated 27-11-1996 passed by the Principal Civil Judge (Mr. S.N. Navalgund), Jamakhandi, in O.S. No. 23 of 1991 dismissing the plaintiff''s suit for the relief of declaration and possession.
The plaintiff claimed the decree on the basis of title. The plaintiff alleged as per the plaint allegations that the plaintiff''s father Abdulgafar Danakari died on 8-8-1983 leaving behind him his widow Mahibobi and his daughter Hajarabi i.e., the present plaintiff. The plaintiff asserted that the plaintiff''s mother Mahibobi died on 30-8-1990. Abdulgafar and his widow did not leave any male issues. The plaintiff claimed herself to be the only daughter of her parents. According to the plaintiff, Abdulgafar left lot of immoveable properties. The plaintiff claimed her title to the property in dispute on the basis of herself being the sole heir of her deceased parents viz., her father having died on 8-8-1983 and the mother died on 30-8-1990. The plaintiff alleged that on the basis of the mutation dated 31-3-1980, which defendants 1 and 2 got in their names made in the revenue records, by setting up some so called gift deed of the suit schedule property in their favour and on that basis they are setting up title. The plaintiff alleged in the plaint that there was no such gift deed and if there was any such gift deed, it is null and void, as no prior permission was obtained from the Competent Authority under the Karnataka Land Reforms Act. The plaintiff denied that defendants 1 and 2 to be the brothers of late Abdulgafar. The plaintiff alleged that defendants 1 and 2 asserted their title on the basis of the alleged gift deed. The plaintiff further alleged that the defendants were trying to enter into the agreement to sell the said land to cause loss to the plaintiff. Hence, the plaintiff had filed the suit for declaration and possession holding and declaring that the plaintiff to be the owner of the suit schedule land, as well as holding that defendants 1 and 2 had no title to the suit schedule property/land.
The defendants filed the written statement and took a plea that during his lifetime Abdulgafar transferred the suit property to defendants 1 and 2 by way of oral gift and delivered possession and that the property had been mutated in the name of the defendants-respondents. The defendants deny the plaintiff''s theory of taking of fraudulent signatures on blank papers which has been set up by the plaintiff. The defendants asserted that under Mohamadan Law, oral gift is valid. The defendants took the plea that if one of the members is agriculturists, then there is no need to seek permission from the Competent Authority. The defendants deny the plaint allegations that the donor was in sound state of mind to make transfer. The defendants took the plea that the property in question had been transferred by the late Abdulgafar during his lifetime by way of gift in favour of the defendants, there is no question of succession to the property by the plaintiff. That the plaintiff had full knowledge of gift in favour of the defendants and the plaintiff is not entitled to a decree for possession as defendants are the absolute owners in possession under the gift deed. The plea of estoppel, under valuation, limitation and mis-joinder of parties were also raised.
Defendant 3 with whom defendants 1 and 2 had agreed to sell the suit schedule property has also filed the written statement.
On the basis of the pleadings of the parties, the Trial Court framed the following issues.-
(1) Does defendant 2 prove that deceased Abdulgafar who was owner of suit property during his lifetime transferred it in favour of himself and defendant 1 through oral gift by delivery of possession?
(2) Is said gift null and void as claimed by plaintiff in para 5 of plaint?
(3) Is plaintiff entitle to reliefs of declaration and possession as prayed for?
(4) What decree or order?
The Trial Court held that the defendants have proved that the property in dispute has been gifted by oral gift in favour of defendants 1 and 2 as per the admission of the plaintiff contained in paragraph 4 of the plaint in Original Suit No. 141 of 1986. The Trial Court further held that the plaintiff has failed to prove that admission as wrong and incorrect. So, it held that the defendants have been able to establish the transfer of the suit schedule property by gift. The Trial Court opined that the present suit was covered by Article 58 of the Limitation Act. So, the plaintiff is not entitled to the relief for declaration and consequential relief of possession and dismissed the suit.
Aggrieved by the judgment and decree of the Trial Court, the plaintiff had come up before this Court in appeal.
I have heard Sri Ravi S. Balikai, learned Counsel for the appellant, Smt. Vijayalakshmi M. Patil, learned Counsel for respondents 1 and 2 and Sri I.G. Gachhinamath, learned Counsel for respondent 3.
The learned Counsel for the appellant submitted that the appellant-plaintiff claimed the relief of possession in the suit, the question of title, no doubt, had to be decided, because the plaintiff-appellant had claimed the decree for possession on the basis of title. If the plaintiff proves her title and prima facie the suit appears to be within time, then unless the defendants do establish that the defendants have perfected title by adverse possession, the plaintiff''s suit has to be decreed. The learned Counsel, in this connection, made reference to the decision of their Lordships of the Supreme Court in the case of Indira v Arumugam, AIR 1999 SC 1549 and submitted that as the main and principal relief is possession, the suit would be governed by Article 65 and not Article 58 of the Limitation Act, 1963. When the plaintiff has proved title, the suit has to be decreed, unless the defendants establishes perfection of title by adverse possession. The learned Counsel contended that the question of title, no doubt, has to be decided. The title set up by the two parties by their pleadings had to be decided.
The above contentions of the learned Counsel for the appellant have hotly been contested by the learned Counsel for the respondents.
The learned Counsel for the respondents submitted that in this case the principal relief should be taken to be the declaration and not possession. When the relief for declaration is prayed for the relief clause is to be governed by Article 58 of the Indian Limitation Act. When two reliefs are claimed which is the principal and main relief is not determined by seriatim. The main and principal relief is the one which is an effective relief and not ancillary relief. Really the question of title has to be determined whether the appellant-plaintiff is the owner or whether by virtue of gift the respondents-defendants have become the owners. If the appellant-plaintiff succeeded in proving her title, then the effective relief to be granted would be relief for possession. As the relief for declaration will not and cannot be effective without the relief for possession. So the decree for possession in suit for decree for possession based on title can be said to be effective and principal relief and the question of title set up by one party and denied by other may, being essential question has to be decided in such suit even without seeking decree for declaration and title. When possession has been taken under void transaction, Article 65 of the Schedule to Limitation Act, is to apply and not Article 58, even in the decree for declaration has also been sought in addition to relief of decree for possession.
Thus, considered in the present suit, principal and effective relief being decree for possession, in my view, the suit cannot be said to be governed by Article 58, instead it is governed by Article 65 of the Indian Limitation Act. Under Article 65 of Schedule to Limitation Act in which prescribes twelve years limitation period for filing the suit for possession based on title, it provides the said period twelve years for filing the suit starts to run from the date the defendant''s possession became adverse according to parties to suit specifically according to plaintiff unless defendants otherwise alleges and establishes from that date if within 12 years the suit is not filed the plaintiff may looses his right. So in the present case, what has to be looked into is whether the suit has been filed within twelve years from the date the defendant''s possession having become adverse. The defendant''s possession, no doubt, became adverse from 31-3-1980 as per the plaint allegations itself when the defendants got mutation in their favour on the basis of the alleged oral gift. From that date the suit had to be filed within twelve years. The present suit was filed on 7-3-1991. As such, in my opinion, the suit cannot be said to be barred by limitation. The finding of the Trial Court holding the suit to be barred by limitation is erroneous and is liable to be set aside.
The next question is whether the appellant-plaintiff has proved her title. The plaintiff claims to be the daughter and sole heir of her parents. The defendants in their written statement have set up the transfer by gift. If the defendants prove title by gift i.e., under the valid transaction of gift, no doubt, the gift will be effective. The law relating to gift as on the date of gift was alleged to have been made will be operative. As regards the plaintiff being the sole heir, no doubt, the plaintiff-appellant may be entitled to the property, unless execution of the gift is established by defendant according to law, under the Mohamadan Law and under the provisions of Transfer of Property Act. The pleadings of the parties reveal including the allegations in paragraph 4 of the plaint of O.S. No. 441 of 1986 that the plaintiff has admitted that the plaintiff''s father has out of love and affection transferred the suit property by way of gift to defendants 1 and 2 of R.S. No. 224/2/1 of Algur, area 8 acres under Mohamadan Law. The factum of gift may be taken to be the admitted fact and which admission has not been proved to be incorrect. So far as the principles of Mohamadan Law relating to gift is concerned, in view of Section 129 of the Transfer of Property Act, 1882 it is provided that nothing in this Chapter relates to gifts of moveable property made in contemplation of death or shall be deemed to affect any rule of Mohamadan Law. Under the Mohamadan Law, oral gift is permitted even for immoveable property.
The learned Counsel for the appellant contended that the gift deed was illegal, null and void for the reason that it was in contravention of Section 80 of the Karnataka Land Reforms Act, 1961.
A reading of Sections 80 and 83 of the Karnataka Land Reforms Act, 1961 reveals that if the land is alleged or found has been transferred or alienation thereof has been made in contravention of Section 80 of the Karnataka Land Reforms Act, 1961 in favour of the person who is not an agriculturist or otherwise then question has to be decided under Section 83 of the said Act by the prescribed authority. In that case, if it is found by the authority on the basis of the trial or otherwise after hearing both parties that the person is not agriculturist or that the land has been transferred in contravention of the provisions of the Karnataka Land Reforms Act, 1961 then the transaction shall be declared to be null and void and on its being so declared the land shall vests in the State Government free from all encumbrances and no amount shall be payable therefor. Section 80 of the Karnataka Land Reforms Act, 1961 provides that no transfer of agricultural land shall be made either by sale, or by gift, or by mortgage etc., in favour of a person who is not an agriculturist or who comes within clauses (i) to (iv) of Section 80(1)(a) and (b) of the said Act. This has to be specifically pleaded. Apart from that a specific forum and procedure have been provided in Section 83 of the Act. When a specific mode and forum is provided and consequence thereof i.e., of transfer made in contravention of Section 80 of the Karnataka Land Reforms Act, 1961 and necessary consequence resulting therefrom have to be indicated as well to accrue on the basis of the order by the Competent Authority. In my opinion, the Civil Court has no jurisdiction to go into that question. This view has also been expressed by the Division Bench of this Court in the case of K.M. Jose and Others v D. Anantha Bhat, 1987(1) Kar. L.J. 16 (DB). In this view of the matter, this Court cannot go into the question whether the gift has been made in breach of Section 80 and the gift cannot be held in breach of Section 80 by this Court and this point has to be decided by the prescribed or Competent Authority under Sections 80/83 of the Karnataka Land Reforms Act, 1961. So, the transaction of gift made in favour of the respondents having been found or established, the appellant-plaintiff is not entitled to seek any relief.
The regular first appeal, as such, is devoid of merits and is hereby dismissed.
It is open to the appellant-plaintiff to move the competent or prescribed authority under Section 83 of the Karnataka Land Reforms Act, 1961, who is competent to decide the said question.