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Judgment
This appeal under Section 96 of the Code of Civil Procedure has been preferred from the judgment and decree dated 2nd of January, 1997 passed by the 1st Additional City Civil Judge, Bangalore, in Original Suit Number 98 of 1983, whereby the Trial Court had dismissed the plaintiff-appellant''s suit for declaration, possession and mesne profits.
The plaintiff-appellant had filed the suit for decree for declaration to the effect that plaintiff is the absolute owner of the suit scheduled property and for delivery of possession of the suit scheduled property to the plaintiff as well as for future mesne profits from the date of suit till the date of delivery thereof and for costs.
The plaintiff''s case as per plaint allegations is that the suit property which has been more specifically described in the schedule to the plaint and which property bears No. 270, situate at 4th Main, Tenth Cross, Narasimharaja Colony, Basavanagudi, Bangalore, 40 feet East to West and 30 feet North to South bounded, as East: 4th Main Road, West: House of G.S. Das, North: House of Sathyanarayana Shetty and South: 10th Cross Road, originally belonged to one Chinnaswamy Modliar, who according to the plaintiff was the grandfather of plaintiff. According to the plaintiff, Chinnaswamy, executed a Will of the suit property in favour of Lakshmamma alias Ananthamma.
Plaintiff further alleged that said Lakshmamma, in her turn executed a gift deed or to say made a gift of the suit scheduled property in favour of Smt. Rajamma (deceased mother of the plaintiff) on 16-8-1968. According to plaintiff''s case, Smt. Lakshmamma had executed the gift and the above gift deed was presented for registration before the Sub-Registrar, but on that day the said Lakshmamma denied the execution of the gift deed before the Sub-Registrar, and so Sub-Registrar refused to register the above alleged gift deed dated 16-8-1968. According to plaintiff, plaintiff preferred the appeal from the order of Sub-Registrar to the District Registrar under Section 73 of the Registration Act. That during the pendency of the appeal said Smt. Lakshmamma died on 22-12-1974 and application was made to the Special Deputy Commissioner to bring on record in the name of Smt. Rajamma, that is the plaintiff''s mother, as the legal representative of deceased Lakshmamma.
According to plaintiff''s case that appeal was allowed after the evidence had been recorded by the Registrar and the Registrar allowing the appeal, directed the Sub-Registrar to register the said document from the date of appellate order vide its order dated 22-10-1977 and the gift deed dated 16-8-1968, was registered on 18-11-1977.
Plaintiff''s further case is that defendant filed the Writ Petition No. 13606 of 1977, in this Court for quashing order dated 22-10-1977, passed by the Special Deputy Commissioner, but the writ petition had been dismissed vide order dated 18-2-1992, as not pressed. According to plaintiff''s case, the gift having been accepted by the plaintiff''s mother, the transaction of gift completed itself. The plaintiff alleged that defendant claims to be in possession of the suit property on the basis of some other gift alleged to be executed and to have been registered on 26-9-1968. The plaintiff alleged that, since the property had already been gifted to the plaintiff-appellant on 16-8-1968, the gift deed dated 26-9-1968 on the basis of which the defendant-respondent claims title and possession is invalid, null and inoperative, and defendant didnot get any title and possession over the suit property on the basis of that gift deed dated 26-9-1968.
The plaintiff claimed himself to be entitled to possession of the suit property, as being the sole heir of deceased Smt. Rajamma, in whose favour gift deed dated 16-8-1968 had been executed, though registered on 18-11-1977.
Plaintiff-appellant in the plaint has alleged that the cause of action has accrued on 16-8-1968, i.e., the date of the gift deed dated 16-8-1968 and on 18-11-1977 on the date of its registration.
The plaintiff''s suit had been contested by the defendant, who filed his written statement. It is alleged that the plaintiff''s suit was barred by limitation and was not maintainable and further it was not maintainable under the provisions of Contract Act, Transfer of Property Act and Registration Act and further the plaintiff has under-valued the suit and the insufficient Court fee having been paid.
The defendant denied the averment that plaintiff has been the son of Rajamma. The defendant alleged that the plaintiff being the heir of Rajamma, he had no right or locus standi to file the suit. Defendant further pleaded that Chinnaswamy Modliar, who purchased the suit scheduled property, was defendant''s uncle being the defendant''s father eldest sister''s husband. Defendant took the plea that Chinnaswamy Modliar died in July 1962 and thereafter defendant as well as his brothers were looking after their aunt Smt. Lakshmamma as she had no children and defendant''s aunt, on her own Will executed a gift deed in favour of the defendant with respect to the suit scheduled property on 26-9-1968 and the said gift deed also was registered on that very day, that is on 26-9-1968 in the office of Sub-Registrar. The defendant claims to have been in possession and enjoyment of the suit property with all the rights and title and without any obstruction, as absolute owner under that gift deed. Defendant further alleged that there was some foul play, and as such it appears that before the Sub-Registrar, Smt. Lakshmamma, denied the execution of the gift deed dated 16-8-1968.
Thereafter, no doubt the Appellate Authority allowed the appeal preferred by the plaintiff''s deceased mother Smt. Rajamma, at the time when smt. Lakshmamma was not alive, as she had died on 22-12-1974. The defendant asserted, that he was not given any opportunity of hearing at the course of appeal. Thus the defendant denied the execution of any gift deed in favour of the plaintiff and asserted, that there was execution of gift deed dated 26-9-1968 in his favour. The defendant asserted himself to have been all through, in possession of the suit property from 26-9-1968. He pleaded that the plaintiff''s suit is liable to be dismissed, apart from merits, on the ground that suit has been barred by limitation.
A replication was filed on behalf of the plaintiff to the written statement.
On the basis of the pleadings of the parties, the Trial Court framed as many as seven issues which read as under:
Whether plaintiff proves the gift of the suit property dated 16-8-1968 from Smt. Lakshmamma alias Ananthamma in favour of Rajamma and if so whether the same is valid and enforceable in law?
Does he further prove that the subsequent gift of the same property alleged to have been made by Lakshmamma in favour of defendant is invalid and inoperative?
Does he further prove that he is the son of late Rajamma entitled to succeed to the suit property?
If so, is he entitled to possession?
Is he entitled to mesne profits? If yes, at what rate?
Whether the suit is properly valued and proper Court fee paid?
Whether plaintiff''s suit is barred by time?
The Trial Court after having considered the matter, dismissed the plaintiff''s suit with costs. It held that the suit to be barred by limitation and time. The Trial Court, further held that the plaintiff has failed to prove that the gift deed dated 16-8-1968, was a voluntary gift or transfer made by Lakshmamma. It also found that the said gift deed was not valid and was not acted upon, and so it was not enforceable.
The Trial Court further held that the plaintiff has failed to prove that the subsequent gift of the same property made by Smt. Lakshmamma in favour of defendant vide gift deed dated 26-9-1968, is invalid and is inoperative. That though it comes out to be, that plaintiff has been the son of Narasimhaiah and Rajamma, as he was born on 14-1-1946, but as the gift in favour of Rajamma, has not been proved, plaintiff gets no right to the suit scheduled property and that the plaintiff having failed to prove execution of the gift deed dated 16-8-1968 in his favour which is the basis of his claim, the plaintiff is not entitled to any relief including mesne profits. After having recorded these findings, the Trial Court dismissed the suit.
Having felt aggrieved from the judgment and decree of the Trial Court, the plaintiff has come up before this Court by this appeal under Section 96 of the Code of Civil Procedure (for short, ''CPC'').
I have heard Sri K. Gopala Hegde, learned Counsel for the appellant and Sri S.R. Khamroz Khan, holding brief for Sri R.B. Sadashivappa, learned Counsel for respondent, for good length of time.
The learned Counsel for the plaintiff-appellant Shri K. Gopala Hegde contended that the learned Trial Court erred in law in holding the plaintiff''s suit to be barred by limitation. Elaborating his contention, learned Counsel contended that the cause of action for filing the suit did accrue on 18-11-1977, on which date the gift in favour of plaintiff-appellant had been registered. Learned Counsel contended that counting the time from the date of registration of the gift deed and taking it as giving the cause of action, the suit filed on 18-12-1982, was well-within time, as the limitation for filing the suit has been only 12 years. Learned Counsel, no doubt very fairly submitted, that if cause of action is taken to have accrued on 16-8-1968 or on 26-9-1968 (the date of gift deed executed in defendant''s favour), then no doubt suit can be said to be barred by limitation, but he emphasised that the cause of action, really accrued on the date when the gift deed dated 16-8-1968 had been registered, i.e., on 18-11-1977 though beyond doubt registration relates back to the date of execution of the gift deed, but for the purpose of construing it, as giving cause of action for filing of the suit, date of registration. Even if is taken into consideration the cause of action can be taken to have accrued only on the date of registration 18-11-1977.
The learned Counsel for the appellant emphasised and submitted, that Article 64 of the First Schedule of the Limitation Act, 1963 will not apply to the present case. He submitted that Article 65 of First Schedule to limitation will apply to the present case. He submitted that, Article 65 of First Schedule to limitation will apply and will govern the case and as Article 65 is applicable then cause of action can be said to arise or to have arisen only when defendant''s possession in such a case is shown and established to have become adverse to that of the plaintiff. Learned Counsel contended that in the present case, as Article 65 applies, and as the defendant has not stated when his possession became adverse to that of the plaintiff, so the suit cannot be said to be barred by limitation.
12-A. Learned Counsel for the appellant placed reliance and made reference to the decision of their Lordships of the Supreme Court in the case of Indira v Arumugam, AIR 1999 SC 1549 and on the decision of the Supreme Court in the case of D.N. Venkatarayappa v State of Karnataka, 1998(6) Kar. L.J. 647 (SC). The learned Counsel for appellant has further referred to the decision of Hon''ble Supreme Court in Thakur Kishan Singh (dead) by L.Rs v Aravind Kumar, (1994)6 SCC 591, Annasaheb Bapusaheb Patil v Balwant alias Balasaheb Babusaheb Patil (dead) by L.Rs and heirs, AIR 1995 SC 895. He made reference and placed reliance on the following decisions of this Court in a Danappa Revappa Kolli v Gurupadappa Mallappa Pattanashetti, 1990(3) Kar. L.J. 497 as well.
The learned Counsel further contended that the defendant has not set up any plea of adverse possession in clear terms, and as such no issue appears to have been framed regarding adverse possession.
These contentions of the learned Counsel for the appellant has been hotly contested on behalf of the respondent by Sri Khan. Sri Khan, firstly submitted that here the suit being one for declaration of title, and primary relief is being declaration Article 58 of the Limitation Act could apply, and under this Article, three years period of limitation is prescribed for filing the suit from the date on which the cause of action first accrues. He further submitted, that even if Article 58 does not apply, and Articles 64 and 65 are applied, the period of 12 years is available. The period of 12 years had expired on or before the date of the filing of the suit, if it is counted from the date of defendant-respondent''s entering into possession of the land under gift deed dated 26-9-1980, and if plaintiff''s allegation, as to cause of action is taken as alleged to have accrued or arisen on 16-8-1968 then from 16-8-1968, it expired on 16-8-1980 if 12 years period of limitation could be taken to be applicable and not 3 years period. The learned Counsel for the respondent further contended, that if the defendant''s gift deed dated 26th September, 1968, executed by Smt. Lakshmamma taken to be invalid and to have become invalid with retrospective effect, from the date of registration of the gift deed dated 16-8-1968, been done on 18-11-1977 and not on 16-8-1968, itself and even if for a moment it be taken that by virtue of the deeming clause, that registration of the gift deed made in favour of the plaintiff had retrospective effect of transferring title in favour of plaintiff with effect from 16-8-1968, then the gift deed dated 26-9-1968 in favour of defendant will have to deemed to have became invalid, null and void, since the very date of its execution, i.e., 26-9-1968, on account of deeming provision and legal fiction contained in the Registration Act, as it is well-settled principle of law that legal fiction once it is applied and so also deeming clause, must be applied giving it full effect and it is not to be boggled down in between the processes.
14(a) Learned Counsel for the respondent contended that the possession of the defendant, who has entered into possession on September 26th, 1968, under an invalid deed of transfer, i.e., gift deed as per appellant''s case with effect from 26-9-1968 itself, the possession automatically became adverse and in hostility to the plaintiff. This is the impact of legal fiction being made applicable, learned Counsel contended that legal fiction cannot be taken help of only to say that registration will effect from the date of execution of gift deed dated 16-8-1968 simplicitor, but its consequence has to be given full effect, as such all consequences have to be given effect.
14(b) Learned Counsel for the respondent referred in this connection to the decision of this Court in the case of Alla Baksh v Mohammed Hussain, 1996(2) Kar. L.J. 336, learned Counsel further referred to another decision of the judicial Commissioner''s Court, Oudh in the case of Ram Chhor Baksh v Ram Surat, AIR 1925 Oudh 182.
14(c) In the alternative, learned Counsel for the defendant-respondent further contended, that really it is a suit for declaration as well as for possession, that is for a joint relief. Nowhere such a suit is provided in any of the said articles, as such, such a suit may be said to be covered by Article 113 which prescribes 3 years period of limitation from the date when the right to sue accrues.
Learned Counsel further contended, that even if the suit may be said to be covered by Article 65, possession of defendant became automatically adverse from the date of execution of the gift deed dated 26th September, 1968 and on respondent-defendant''s entering into possession of the property itself, under gift deed dated 26-9-1968, the defendant''s possession became hostile from 26-9-1968, to the plaintiff, who claims title on the basis of gift deed dated 16th August, 1968. But he submitted, apart from that as Article 113 applies and the right to sue, no doubt even if it be taken to have accrued, as alleged by plaintiff, lastly on the date of registration of the gift deed dated 16-8-1968, i.e., on 18-11-1977, even then suit having been filed after expiry of 3 years period from the date of registration of gift deed in his favour, it was time barred on the date it was filed i.e., 18-12-1982.
That as regards Article 64, it provides 12 years period for filing suit for possession of immovable property based on previous possession and not on title. When plaintiff, while in possession has been dispossessed, then period of limitation of 12 years, to file, it starts to run from the date of possession.
In the present case, it is nobody''s case that plaintiff was in possession of the suit property at any time and that he was dispossessed, and so the plaintiff-appellant filed the suit, for decree for possession. This not having been the case of any of the parties, the suit cannot be said to be covered by Article 64. Here the plaintiff-appellant has filed this suit claiming his title on the basis of gift deed dated 16-8-1968, alleged to have been registered on 18-11-1977. Plaintiff claims that under the provisions of the Registration Act, particularly Section 47 of the Registration Act, the deed of gift would be deemed to have become effective with effect from the date of its execution and not from the date of registration. No doubt Section 47 made and provides that:
"A registered deed shall operate from the time from which it would have been commenced to operate, if no registration thereof had been required or made, and not from the time of its registration".
No doubt, it is tantamount to saying that it will be operative after registration from the date on which it was executed. So the plaintiff''s case has been that deed of gift became operative from 16-8-1968 date of the execution. The plaintiff alleged that defendant is in possession and he claims to be in possession under a gift deed dated 26-9-1968, but he had acquired no title nor interest nor right from under the gift deed dated 26-9-1968 executed in defendant-respondent''s favour though that was registered earlier to the plaintiff''s gift deed dated 16-8-1968 and of gift dated 26-9-1968 on which defendant based his title and possession has been invalid, null and void. No title passed on to the defendant-respondent, as the title under gift deed dated 16-8-1968 had already been passed on to the plaintiff and the defendant''s gift deed being illegal, null and void as Lakshmamma could not execute any gift deed of the suit
property, in view of the fact that she had already executed a gift deed in favour of plaintiff-appellant, i.e., gift deed dated 16-8-1968.
If plaintiff''s suit is taken to be governed by Article 65 being the suit for possession of immovable property based on title it has to be examined from what date the defendant i.e., respondent''s possession became adverse to that of plaintiff-appellant, and whether the period of limitation provided under Article 65 had expired in the eye of law, on the date, the suit was filed.
Article 65 of the Limitation Act reads as under:
Article Description of suit Period of Limitation Time from which period beings to run
65 For possession of Immovable property or any interest therein based on title
Twelve years When the possession of the defendant becomes adverse to the plaintiff
Under this Article 65 it has been provided that for filing of suit for possession of immovable property or any interest therein period of limitation prescribed is 12 years period. Column III Entry indicate from what time or date this period of twelve years begins and it provides in clear terms that period of twelve years prescribed under this article is to commence, i.e., is to begin to run from the date or day, when possession of defendant becomes adverse to the plaintiff. When I so hold I find support from what has been laid in para 12 of the Supreme Court''s observations in Annasaheb Bapusaheb Patil''s case, wherein it is laid:
"Article 65 of Schedule to Limitation Act, 1963 prescribes that for possession of immovable property or any interest therein based on title the limitation of 12 years begin to run from the date of defendant''s interest becomes adverse to plaintiff".
Thus, it is from this day twelve years period of limitation prescribed commences and suit can be filed within this period and if suit is not filed within this period of twelve years, consequences as mentioned in Section 27 of the Limitation Act are to follow. In such a case in my opinion plaintiff-appellant will have to state and allege or aver in his plaint as to from what date defendant-respondent''s possession, according to plaintiff became adverse to him and on what date the cause of action for filing the suit for possession did accrue or arise.
The plaintiff has alleged in the present case the cause of action accrued from August 1968 in the plaint. May it be, it definitely according to him had accrued in 1968, and later he says in 1977. In view of language of Section 47 of the Registration Act, the cause of action can be said to have accrued in 1968. For the reason that when the title has been passed on to the plaintiff in August 1968, the transfer or subsequent gift made by Lakshmamma in favour of defendant was illegal, null and void then and there itself, the defendant-respondent''s possession entered on the suit property claiming title under the gift deed dated 26-9-1968, which was illegal and void as per plaintiff-appellant''s case, became adverse and hostile from the beginning, i.e., from the very beginning namely from 26-9-1968 itself.
In the present case, no doubt defendant has asserted in his written statement that he has been in possession and enjoyment of the property as a owner against all from September 26th, 1968. So definitely the cause of action to the plaintiff had accrued on the date when defendant entered into possession under the invalid deed of gift dated 26-9-1968, as a person if enters into possession of property under invalid, transfer or alienation his possession became adverse to real owner. There have been retina of cases in which this principle has been laid down.
Those cases are Mahipal Singh v Sarjoo Prasad, AIR 1926 Oudh 141, in which reliance had been placed on an earlier Privy Council''s decision in N. Varada Pillai v Jeevarathnammal, AIR 1919 PC 44, as well as the decision of the Allahabad High Court in the case of Kr. Wasiq Ali v The Director of Consolidation, Agra, AIR 1974 All. 46; Sri Krishna Dutta v Vishwanath and Others, AIR 1973 All. 201; Collector of Bombay v Municipal Corporation of City of Bombay, AIR 1951 SC 469; State of West Bengal v The Dalhousie Institute Society, AIR 1970 SC 1778; Smt. Chandrakantaben J. Modi and Narendra Jayantilal Modi v Vadilala Bapalal Modi, AIR 1989 SC 1269.
All these decisions, this Court had occasion to consider, refer and follow in an another decision of this Court in Allah Baksh''s case, supra, where it laid down, that "possession, of a person, having no title in the property and entering into possession under an invalid deed of transfer, his possession from the date of his entering into possession under the invalid deed of transfer becomes prima facie adverse to that of the owner. When he continues in possession for a period of more than 12 years, title by adverse possession accrues in favour of that person as owner".
In the case of Smt. Chandrakantaben, J. Modi and Narendra Jayantilal Modi''s case, supra, Hon''ble Supreme Court has laid it down.-
"Person entering into possession claiming ownership under an illegal deed of transfer, if he continues to be in possession either by ownself or through his agent for a period of twelve years, he acquires title by adverse possession".
This is position of law as emerged from combined reading of Article 65 of the Limitation Act read with Section 27 of the Limitation Act, 1963.
In the present case, the plaintiff-appellant, has alleged and averred in para 4 of the plaint as under:
"Defendant claims to be in possession of the suit schedule property under a registered gift deed dated 26-9-1968. Plaintiff submits that Lakshmamma alias Ananthamma had no competence of power to make a gift on 26-9-1968, since she has already gifted the property to the mother of the plaintiff Rajamma on 16-8-1968, through gift deed itself. The gift deed in favour of defendant is invalid, inoperative and does not confer any right, title or interest on the defendant. The defendant claims to be in possession of the suit schedule property under the aforesaid gift deed dated 26-9-1968. The plaintiff being sole heir of the deceased Rajamma is entitled to possession of the suit schedule property. Though, the defendant was called upon by plaintiff to hand over possession of the suit property, defendant has not complied with his demand".
Defendant in his written statement, as mentioned earlier claims himself to be in actual possession and enjoyment of the suit property, being the absolute owner under the gift deed dated 26-9-1968, as mentioned above. As such the cause of action accrued to the plaintiff, in every case on 16-8-1968 and 26-9-1968, as per the own pleadings of the plaintiff, made in the plaint.
In course of his statement being recorded as P.W. 1, the plaintiff-appellant has stated.-
"Lakshmamma alias Ananthamma had no right to execute the alleged subsequent gift deed. Defendants have no right, title or interest in respect of suit property. Since 26-9-1968 defendant is in possession of plaint schedule property. Defendant has no right to continue in possession of the suit property".
Thus according to statement of plaintiff-appellant as P.W. 1, defendant-respondent has been in continuous possession of suit property, since 26-9-1968 illegally and without any rights under invalid deed.
The suit not to have been filed within the period of 12 years from the date of defendant''s illegal possession which was adverse to that of the plaintiff, on pleading of the plaintiff-appellant in the plaint para 4 and the deposition of P.W. 1, the suit definitely can be said to have become barred by limitation, as having been filed after the expiry of period of 12 years prescribed under Article 65 from 26-9-1968, the date on which defendant entered into possession under invalid deed of gift, and as such even under Article 65, the suit was not maintainable, on account of its being barred by time itself.
Article 65 deals with suit for possession of immovable property based on title and Article 58 deals with suits for declaration only, but when a suit is for declaration and possession i.e., suit for declaration and possession jointly, as such a suit not having been mentioned in any of the two articles, even if it be taken the Articles 58 and 65 do not apply, then such a suit may be taken to be covered by Article 113 of Schedule, and as such if residuary Article 113 is applied, even then suit became barred by limitation, as Article 113 prescribed 3 years period from the date when the right to sue accrues.
If for arguments sake as urged by plaintiff-appellant, the right to sue accrued only on the date of registration of gift deed, i.e., 18-11-1977. The 3 years period would have started, to run from 18-11-1977 on which date, gift deed dated 16-8-1968 was registered, then suit ought to have been filed by or before 18th November, 1980, then plaintiff''s suit, in view of Article 113 might have been well-within time, but in the present case the suit has been filed in 1982. As such the suit, in my opinion was barred by limitation, even under Article 113 of the Limitation Act.
Learned Counsel for the appellant contended that a person claiming to have acquired title by adverse possession, he must plead and establish it.
Whether defendant is claiming title by adverse possession or not is not material here when the question is, whether plaintiff''s suit has been within time, plaintiff had to give the date of cause of action, when it arise, in his plaint as well? In such a case from what date defendant''s possession become adverse and it has to be shown that suit has been filed within 12 years from that date. If defendant, in defence asserts certain dates of commencement of his adverse possession and asserts to have perfected title from the date asserted by him for being in adverse, hostile and continuous possession for more than 12 years he has to establish his case. Here it can be said on plaintiff-appellant''s own pleadings that he has not filed the suit within 12 years from 1968 (16-8-1968 or 26-9-1968). So, the present suit is barred by limitation. As such the contention of the learned Counsel for the appellant that the suit by the defendant is barred by limitation. As such the contention of the learned Counsel for the appellant that the finding of Trial Court that suit is barred by limitation is erroneous, is without substance and has to be and is rejected. In my view, the plaintiff''s suit has been barred by limitation, as has been rightly held by Trial Court.
Section 27 of the Limitation Act is also very material, Section 27 of the Limitation Act provides for extinguishment of right of property. It reads as under:
"Section 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".
In a suit for possession of immovable property covered by Article 65, based on title, if the suit has not been filed within 12 years period from the date or time from which limitation starts running as per Article 65, i.e., from date or from time defendant''s possession became adverse to the plaintiff his right to property stands extinguished from the date when 12 years period stands of determined. That in view of plaintiff''s failure to file the suit within the period of limitation prescribed under Article 65, the plaintiff appellant''s right automatically stood extinguished.
Learned Counsel for the appellant had made reference to the decision in the case of Indira, it is of not much assistance to the plaintiff appellant, as firstly it does not lay down that plaintiff in suit for possession based on title can file the suit without there being any cause of action and without averring or stating the cause of action and date of its accrual. The cause of action for such suit for possession based on title would be from the date ''defendant''s possession becomes adverse to plaintiff. Further for the reason in the present case plaintiff vide para 4 of plaint has asserted that defendant-respondent is in continuous possession claiming title thereon, since date of gift deed dated 26-9-1968 which according to plaintiff is invalid, illegal null and void. Thus on own pleading of plaintiff that, since 26-9-1968, defendant-respondent is in possession adversely admitted.
The Supreme Court''s decision of Thakur Kishan Singh''s case, supra, referred to by the plaintiff-appellant''s Counsel is distinguishable again on facts and on question involved therein, firstly on the facts and pleading of the present case as per plaint averments, defendant-respondent has been alleged to be in continuous hostile adverse possession on the basis of gift deed dated 26-9-1968, claiming to be the owner and in hostility to plaintiff and plaintiff-appellant alleged the cause for suit to have accrued in the year 1968 and suit to have been filed after expiry of twelve years from 1968 (16-6-1968/26-9-1968), secondly, in Thakur Kishan''s case, the principle laid down that a person who is in permissive possession as licensee, agent etc., to claim title by adverse possession, must allege and establish hostile, animus and possession adverse to the knowledge of real owner.
The case of Annasaheb Bapusaheb Patil, as mentioned earlier, clearly lays down that; Article 65 of the Schedule to Limitation Act, 1963 prescribes that for suit for possession of immovable property or any interest therein based on title, the limitation of 12 years beings to run from the date the defendant''s interest and possession becomes adverse to plaintiff. From this it follows that when cause of action accrues it is on and from that date limitation of 12 years period starts running and from that date limitation is to be counted and plaintiff is always required to aver cause of action for the such suit. There is no doubt that if a party or person bases his title on adverse possession he must show by clear evidence that his possession was hostile to real owner for 12 years. That in the plaint, plaintiff-appellant has shown defendant-respondent to be
in continuous possession from 26-9-1968 under the gift deed dated 26-9-1968 alleged by plaintiff to be invalid, and cause for suit to have accrued in 1968. Thus Annasaheb Bapusaheb Patil''s case relied by appellant''s Counsel is of no assistance to appellant.
The two decisions of this Court, namely, Danappa Revappa Kolli''s case, and the case of D.N. Venkatarayappa are distinguishable on facts and in view of pleading of plaintiff-appellant in plaint itself and evidence and possession of defendant claiming to be owner being, under gift deed dated 26-9-1968 which is invalid, and void from that date, i.e., from 26-9-1968, defendant''s possession is adverse to plaintiff-appellant, as per own plaintiff''s case and statement of P.W. 1 as referred to above.
That as mentioned earlier here plaintiff well-knew the defendant was claiming title in hostility to the plaintiff on the basis of deed of gift dated 26-9-1968 which as per plaintiff''s case was invalid and plaintiff knowing that very well did not file the suit either within 12 years from the date of defendant''s entering into possession nor he had filed the suit alleging that cause or right, if having accrued to him 1977, within three years. Here in the present case the suit, even from 1977, had been filed after 5 years, so the suit has been barred by limitation, even if Article 113 is applied and the Court below has rightly held that the suit had been barred by limitation and rightly dismissed the same as barred by limitation.
That learned Counsel for appellant further urged that the Trial Court has been wrong and it has erroneously held, that plaintiff has failed to prove that execution of gift deed dated 16-8-1968, by Smt. Lakshmamma in favour of Smt. Rajamma, mother of plaintiff-appellant, of free-will and to be an act voluntarily done and the finding of Trial Court that plaintiff has failed to prove the gift deed in favour of Rajamma was voluntarily made is erroneous on facts and law, in view of statement of P.W. 4 read with Exs. P. 9 and P. 10 (statements of attesting witnesses made before Registrar in proceeding under Section 74 of the Registration Act. Shri K. Gopal Hegde submitted that order dated 18-11-1977 of District Registrar i.e., Ex. P. 8 passed an appeal from the order of the Sub-Registrar refusing to register gift deed dated 16-8-1968. Ex. P. 6, i.e., in R.A. No. 8 of 1968-69, holding that execution of gift deed dated 16-8-1966 to have been established and directing the registration of said gift deed dated 16-8-1968 relied by plaintiff appellant, has been binding as res judicata and so finding of Trial Court on Issues 1 and 3 is bad in law and erroneous.
That regards the question if order of District Registrar Ex.P. 8, dated 22-10-1977 operates as res judicata, I am unable to accept this contention of plaintiff-appellant''s learned Counsel Shri K. Gopal Hegde as under Section 11 of the Code of Civil Procedure, it is the decision of Court of competent jurisdiction in an earlier suit on an issue directly and substantially in dispute between same parties, arising as in a subsequent suit involving or raising same point substantially in issue, may operate as res judicata, and it is the decision of Court only that operates as res judicata.
District Registrar is an Officer under the Registration Act and is not a Court, so the decision or order or even finding recorded by District Registrar under Section 74 of the Registration Act cannot and does not operate as res judicata. When I hold that the Registrar or District Registrar, when discharge the function under Sections 73 and 74 is not a ''Court'', I find support for my view under Section 77 of Registration Act and from the following.-
(a) Udit Upadhia v Imam Bandi Bibi, ILR 1902 All. 402 (FB);
(b) Mohima Chundir Dhur v Jugal Kishor Bhuttach Argi, ILR (1881)7 Cal. 736 (DB);
(c) Krishan Mal v Krishan Iyangar and Others, (1912)13 Cri. L.J. 508 (Mad.);
(d) Quenn Empress v Tulga, ILR 1888 Bom. 36;
(e) Shiva Cheran Das v Rukmini Devi, AIR 1975 All. 354;
(f) Bommi Reddi v Muni Reddi, AIR 1937 Mad. 585;
(g) Sree Rajan Bommadevara Naganna Nayudu Bahadur Zamindar Garu v Thiruga Pattabhiramayya, AIR 1928 Mad. 475.
That as regards the question, if the finding recorded by Trial Court that plaintiff-appellant had failed to prove the gift deed dated 16-8-1988 (Ex. P. 6) is a validly executed gift deed or that plaintiff-appellant failed to prove that it was voluntarily executed, suffers from any error. I am of the view and hold that Trial Court''s finding does not suffer from any error and the contention made by the learned Counsel for appellant has to be and is hereby rejected.
To prove Ex. P. 6 gift deed dated 16-6-1968 which from the basis of plaintiff-appellant''s case and claim of title, the plaintiff-appellant examined himself as P.W. 1 and the scribe, i.e., the Deed Writer as P.W. 4 and has filed Ex.P. 9 (Deposition of Huccappa) and Ex. P. 10 (Statement of Deposition of M. Ramanujappa), both certified copies of depositions made by two before the District Registrar in proceeding under Sections 73 and 74 of the Registration Act.
It is a fact as deposed by P.W. 1-V.N. Narasimhaiah in course of cross-examination. Lakshmamma was an illiterate lady. P.W. 1 deposed at P. 83 (renumbered) as under: Lakshmamma was illiterate (vide page No. 68 of paper book and page 83 of L.C.R.).
Lakshmamma admittedly being an illiterate the burden did heavily lie on the plaintiff-appellant to prove that the execution of said gift deed dated 16-8-1968, Ex. P. 6 was an act done by Lakshmamma voluntarily and of her freewill after fully understanding the nature etc., of deed. Mere proof, even if of signature or L.T.M. by itself cannot be taken to proof of execution see Mt. Farid-ud-nisa v Mukthar Ahmad, AIR 1925 PC 204, Banasettappa Laljichikkanna v District Registrar, AIR 1966 Mys. 310.
As regards due execution of Ex. P. 6 gift deed dated 16-8-1968, P.W. 1 Narasimhaiah clearly states:
"Since Lakshmamma had not admitted the execution of that gift deed so the document was not registered". P.W. 1 has further deposed: "On 16-8-1968 gift deed was executed, I do not know on what date it was prepared and where. I do not know who gave instruction to write the gift deed........ I was not present when Ex. P. 6 was signed by witnesses and by the executant". (vide P. 84, O.R. and P. 69/70 paper book).
In view of that above depositions of P.W. 1 himself; P.W. 1-Narasimhaiah''s statement is inadmissible as well as of not worth to prove execution of Ex. P. 6, the gift deed dated 16-8-1968.
The next witnesses in this context is P.W. 4-Shri Venkat Rao. His evidence is of no worth to prove the execution of gift deed Ex. P. 6 by Lakshmamma as an act done with free-will and full understanding the nature of transaction nor is there anything in his statement to show that the contents of deed was explained to her and she did put her L.T.M. after having understood it, and of her own accord voluntarily and of free-will. Mere proof of L.T.M. without proof of due execution as mental and physical act is no proof of execution of deed. So, P.W. 4''s evidence cannot be taken to prove the due execution of the gift deed Ex. P. 6.
The two attesting witnesses alleged to have attested the gift deed Ex. P. 6, namely, Huchappa and M. Ramanujappa have not been produced. It has been stated that they had already died as per P.W. 1 (at page 81 O.R.), though no documentary proof has been filed to that effect. No doubt P.W. 4-Venkat Rama Rao has also deposed that Ramanujappa had died some eight years ago. Plaintiff has filed the certified copies of their depositions made before District Registrar in proceedings before under Section 74 of the Registration. For a moment even I take that Huchappa and M. Ramanujappa had died earlier to the proceedings of the suit giving rise to this appeal and proceed to examine if plaintiff-appellant has proved execution of gift deed dated 16-8-1968 by Ex. P. 9 and Ex. P. 10 on record.
Ex. P. 9 on record is statement of Huchappa as per examination in Chief is:
"The respondent (Lakshmamma) has executed ''Ex. P. 1'' in favour of appellant (Rajamma). The respondent has affixed her L.T.M. at Ex. P. 1A and Ex. P. 1B. I have written the sharah of the L.T.M. of respondent. The appellant also has affixed her L.T.M. for having accepted the gift deed and I have written sharah of that L.T.M. also.
After document was read the respondent put her L.T.M. in my present..... I did not read Ex.P. 1 (gift deed dated 16-8-1968)......... Respondent did not ask me. Respondent (Lakshmamma) did not read Ex. P. 1". Later on it is in the statement Ex. P. 9 of Huchappa; "The appellant (Rajamma) and her husband had brought the respondent (Lakshmamma). There was great number of people where Ex. P. 1 (gift deed dated 16-8-1968) was written. Excepting appellant and Narasimhaiah (i.e., husband of Rajamma) none else was with respondent (Lakshmamma)".
From above statement of Huchappa due execution of gift deed dated 16-8-1968 does not stand proved. It is admitted position as per P.W. 1''s statement himself that Lakshmamma was an illiterate women. There is nothing in it to show that deed in question and its contents and nature was explained to Lakshmamma by any one nor is there anything in the evidence of Huchappa that Smt. Lakshmamma put her L.T.M. on Ex. P. 6 (i.e., Ex. P. 1 in proceeding under Section 74 of the Registration Act). i.e., gift deed dated 16-8-1968, after its being explained to her and she having understood it. Even there is nothing in Ex. P. 9 to show, who read the deed to Lakshmamma nor there is anything in evidence in Ex. P. 9 to show that she executed the deed of free-will and voluntarily. As per Ex. P. 9-Huchappa''s statement ''there was none whom she could consult''s as Huchappa say "except Rajamma and her husband, who brought her for execution of gift deed in question Ex. P. 6, none else was with Lakshmamma". So this statement of Huchappa-Ex. P. 9 fails to establish due and voluntary execution of gift deed dated 16-8-1968, Ex.P. 6 with free-will etc., by Lakshmamma.
Ex. P. 10-Deposition of M. Ramanujappa before District Registrar in proceedings under Sections 73 and 74 of the Registration Act, I have gone through, this also does not prove due execution of gift deed Ex. P. 6 by Smt. Lakshmamma of her free-will and voluntarily after document having been read and explained to her and after she having understood it.
Thus considered plaintiff-appellant has failed to prove due execution of gift deed dated 16-8-1968 by Smt. Lakshmamma after understanding it and of her free-will and voluntarily and I am of the view that Trial Court''s finding in this regard does not suffer from any error either of fact or of law.
Thus considered I am of the view and I do hold that appeal has got no merits. The Trial Court''s judgment and decree dismissing the suit does not suffers from any error and it does not call for any interference. The first appeal is hereby dismissed, as being one with no merits with cost.