Sri Maranna S/O Late Sri Madappa vs Sri Thippe Rangappa S/O Late Sri Mudalagiriyappa

This Regular Second Appeal is directed against the

judgment and decree dated 27.9.2006 in

R.A.No.1231/2005 on the file of the Civil Judge (Sr. Dn.),

Sira, thereby dismissing the appeal preferred against the

judgment and decree dated 25.11.1997 in

O.S.No.198/1991 on the file of the Civil Judge (Jr.Dn.),

Sira.

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2. By the impugned judgment, the suit of the

plaintiff in O.S.No.198/91 on the file of Civil Judge

(Jr.Division), Sira, is decreed and confirmed in appeal.

3. To put the facts in a nutshell, the respondent

(plaintiff) herein filed a suit against the appellant

(defendant) for declaration and permanent injunction

against the appellant/defendant and his men from

interfering with the possession and enjoyment of the suit

schedule property. The claim of the plaintiff was, the

suit property is his ancestral property and he is in un-

interfered possession and enjoyment of the same, and

the defendant having no right, title or interest is

interfering with his possession.

4. The defendant contested the suit and denied the

title of the plaintiff to the disputed property. His defence

was, in collusion with the plaintiff, the Revenue

Authorities entered plaintiff's name in column No.9 and

12(2) of the Pahani for the year 1975-76 in respect of the -4-

suit property. In this regard, there were proceedings

before the Revenue Authorities which ended up in the

plaintiff filing Writ Petition before the High Court in

W.P.No.18715/84 which came to be dismissed.

Suppressing the above facts, the plaintiff has filed the

suit.

5. On the basis of pleadings, the Trial Court framed

as many as eight issues. Among others, one of the issues

was about suit being barred by limitation. However, this

issue was not treated as preliminary issue. After a full

fledged trial, the suit came to be decreed by answering

the issues in favour of the plaintiff. With regard to the

question of limitation, the Trial Court referred to the

history that initially plaintiff filed the suit before Munsiff

& JMFC, Sira, in O.S.No.2/1985 and the plaint was

ordered to be returned for want of pecuniary jurisdiction

and the plaintiff was directed to present the suit before

competent Court vide order dated 15.3.1989. But the -5-

plaintiff presented the plaint before Civil Judge Court,

Madhugiri only on 2.3.1991 and it was registered as

O.S.No.198/91. Due to enhancement of the pecuniary

jurisdiction of the Munsiff Court from Rs.10,000/- to

Rs.50,000/-, the Civil Judge (Sr. Dn.) by Civil Court

Amendment Act returned the plaint with a direction to

present the suit before the Civil Judge(Jr.Dn.), Sira and

thus the suit O.S.No.198/91 came to be registered before

the Civil Judge (Jr. Dn.), Sira. The defence that the

earlier proceedings in O.S.No.8/91 does not amount to

continuation of proceedings of O.S.No.2/15 and was not

brushed aside, thus answered against the defendant.

6. Now this appeal is admitted to adjudicate the

following question of law.

1. Whether the suit was barred by limitation?

2. Whether the proceedings of O.S.No.198/1991 on the file of Civil Judge (Jr.Dn.), Sira, can be considered as the continuation of the O.S.No.2/1985 on the file of the same Court?

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3. Whether the lower appellate court was justified in condoning the delay?

4. Whether the courts below were justified in acting on the revenue entries?

7. Learned Counsel for the appellants

Sri.Chithappa submits that the respondent did not

choose to take back the plaint and present it before the

court having pecuniary jurisdiction to try the suit despite

there being pleading in the written statement that suit

was under valued. The Munsiff Court, Sira framed

issues, recorded evidence on Issue No.5, heard

arguments and passed order on 15.3.1989 holding that

the Court has no jurisdiction and directed the plaintiff to

take return of the plaint and to present it before proper

court. The respondent/plaintiff took return of plaint on

2.3.1991 and presented it before the Court of Civil Judge

at Madhugiri on 2.3.1991 and the same was registered as

O.S.No.8/1991. On enhancement of the pecuniary -7-

jurisdiction of the Court of Munsiff & JMFC to

Rs.50,000/-, the plaint was returned by the Civil Judge,

Madhugiri, on 30.5.1991 and the plaintiff/respondent

took return of plaint on 3.6.1991 and presented the same

before the Court of Munsiff & JMFC, Sira, on 4.6.1991

and the suit came to be registered as O.S.No.198/1991.

The appellant had taken a contention both in

O.S.Nos.2/1985 and 198/1991 that plaintiff's claim was

time barred.

Learned Counsel further submits, so far the issue

of limitation is concerned, the Trial Court held that filing

of suit O.S.No.2/1985, taking back the plaint and

presenting the same before the court of Civil Judge at

Madhugiri in O.S.No.8/1991 and further taking back the

plaint from the Court of Civil Judge, Madhugiri

presenting the same before the Trial Court in

O.S.No.198/91 is continuation of the proceedings of

O.S.No.2/1985 and therefore held that suit was not -8-

barred by limitation. The 1st Appellate Court concurred

with the finding of the Trial Court and further held that

even if there is a little delay, it could be condoned and

accordingly condoned the delay. A party prosecuting the

suit in good faith in the Court having no jurisdiction is

entitled for exclusion of that period under Section 14 of

Limitation Act. The expression "good faith" as used in

Section 14 means "exercise of due care and attention".

In the context of Section 14 expression "good faith"

qualifies prosecuting the proceeding in the Court which

ultimately is found to have no jurisdiction. The finding

as to good faith or the absence of it is a finding of fact.

But, there is no plea or evidence given by

respondent/plaintiff to seek benefit of Section 14 of

Limitation Act.

Learned Counsel continues to submit that, Article

58 of Limitation Act stipulates three years commencing

from the date of cause of action in respect of a -9-

Declaratory suit. The cause of action to file the suit arose

for the respondent/plaintiff on 31.5.1980 when the

defendant denied his right, title or interest over the

property in the revenue proceedings before the Tahsildar,

Sira Taluk and subsequently in the further proceedings

before the Asst. Commissioner, Madhugiri Sub-Division.

Therefore the suit filed in the year 1985 before Munsiff

Court, Sira was barred by time. The provision of Section

5 of Limitation Act cannot be invoked to condone the long

delay in filing a suit and lower appellant Court had no

jurisdiction to condone the delay. The plaintiff was not

able to place cogent evidence to prove his title and

possession over the suit property. Still the Trial Court

acted upon the revenue entries to decree the suit. But

the revenue entries neither create nor extinguish title of

any person and have no preemptive value on title. In that

view of the matter, impugned judgments cannot be

sustained. Irrespective of finding recorded on other

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issues, the suit should have been dismissed as barred by

time, thus not maintainable.

8. Sri.Keshav R.Agnihotri, learned Counsel

appearing for the respondent while seeking to sustain the

judgments of the court below placing his reliance on:

i) (2015) 7 S.C.C. 58 MP Steel Corporation Vs. Commissioner Central Excise.

ii) (2011) 15 S.C.C. 30 Ketan Parekh Vs. Spl.Director

iii) (2009) 12 S.C.C. 175 J.Kumaradasan Nair Vs. State of Bihar

iv) (2009) 7 S.C.C. 786 Shakti Tubes Ltd., Vs. State of Bihar

v) (2008) 7 S.C.C. 169 Consolidated Engineering Enterprises Vs. Prl.

Secy.

vi) I.L.R. 2005 KARNATAKA 1777 Hutti Gold Mines Vs. Vinay Heavy Equipments

submits that the Trial Court on proper appreciation of

evidentiary material has decreed the suit. The defendant,

who denied the title of the plaintiff, set up the defence of

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adverse possession thereby had admitted the title of the

plaintiff. He was unable to establish his title to the suit

property with documentary proof. The litigation fought

on revenue side is limited to revenue entries. As such,

revenue entries do not confer title of a property on its

holder. Though there was delay of almost two years on

his part in taking back the plaint in O.S.No.2/1985 from

the Munsiff Court, Sira and presenting the same before

the Civil Judge Court, Madhugiri, it is to be construed

that on re-presentation of the plaint, the proceedings

continued. Section 14 of the Limitation Act empowers

the Court to condone the delay in the interest of justice in

respect of the time spent before the Court having no

jurisdiction, in this case, Munsiff Court, Sira. The cause

of action arose for the plaintiff only when the defendant

interfered with his actual possession of the suit property.

Thus, the suit filed within 10 days thereupon is well

within time. The delay in representing the plaint before

the Civil Judge Court, Sira is saved by Section 14 of the

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Limitation Act. Rightly the lower Appellate Court has

held that there is no delay and the present appeal lacks

merits.

9. In the light of the substantial question of law

framed and the rival submission made at the Bar, the

controversy centers around the question of limitation.

Admittedly, both parties entered into battle field when the

revenue entries pertaining to the disputed property was

questioned by the defendant in the R.R.T. proceedings in

the year 1980. The plaintiff was very much conscious of

the denial of his title by the appellant /defendant at that

stage itself. Article 58 of Part III of Schedule to the

Limitation Act stipulates three years' limitation from the

date when right to sue accrues to file a suit for

declaration. Original Suit in O.S.No.2/1985 was filed

without reference to the revenue proceedings that

commenced in 1980. The cause of action was that the

defendant interfered with the possession of the plaintiff

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10 days prior to filing of the suit. That being so, the

cause of action to file a suit for the relief of declaration

and injunction arose during December 1980 subsisted for

3 years only and not later to that. The courts below have

not counted upon the grey period between 15.3.1989

(when the plaintiff was directed to take back the plaint for

presentation before the proper court) to 2.3.1991 (when it

was presented before Civil Judge court, Madhugiri). The

appellate court on its own has considered it as

continuation of the original suit. The law on the point is

covered by the judgment of the Apex Court in (1) AIR

1973 SC 313 Amr Chand Inani -vs- Union of India (2)

(2014) 1 SCC 648 Oil and Natural Gas Corporation

Limited -vs- Modern Construction and Company.

Thus, presentation of plaint in proper court after return

is not continuation of a suit as filed in wrong court so as

to attract Section 14 of the Limitation Act. It amounts to

institution of a fresh suit requiring commencement of

trial afresh even if same had concluded before the court

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which lacks jurisdiction. That being so, the suit filed in

the year 1991 in respect of the cause of action that arose

during December 1984 was time barred and hit by Article

58 of the Limitation Act. The Limitation Act does not

contemplate condonation of delay in filing a suit though

delay in filing an appeal can be condoned under Section 5

of Limitation Act.

10. Sub-section (1) of Section 14 of the Limitation

Act is stressed on behalf of the defendant for the first

time before this court. Said provision reads as under:

"14.Exclusion of time of proceeding bona fide in court without jurisdiction.- (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of

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jurisdiction or other cause of a like nature, is unable to entertain it".

The hindrance for the plaintiff to take shelter under the

above provision is, he had instituted the suit having

territorial jurisdiction. He did receive back the plaint,

even after objection raised by the defendant in his written

statement regarding pecuniary jurisdiction. It was only

after the order of the court on holding enquiry to return

the plaint after a delay of about 2 years, he has taken

back the plaint.

11. The expressions 'good faith' and 'defect of

jurisdiction' were elaborated by the Apex Court in Deena

-vs- Bharath Singh reported in AIR 2002 SCC 2768 at

paras-15 and 16, which reads thus:

"15. The main factor which would influence the Court in extending the benefit of S.14 to a litigant is whether the prior proceeding had been prosecuted with due diligence and good faith. The party

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prosecuting the suit in good faith in the Court having no jurisdiction is entitled to exclusion of that period. The expression 'good faith' as used in S.14 means "exercise of due care and attention". In the context of S.14 expression 'good faith' qualifies prosecuting the proceeding in the Court which ultimately is found to have no jurisdiction. The finding as to good faith or the absence of it is a finding of fact. This Court in the case of Vijay Kumar Rampal and others v. Diwan Devi and others, AIR 1985 SC 1669, observed:

"The expression 'good faith' qualifies prosecuting the proceeding in the Court which ultimately is found to have no jurisdiction. Failure to pay the requisite Court-fee found deficient on a contention being raised or the error of judgment in valuing a suit filed before a Court which was ultimately found to have no jurisdiction has absolutely nothing to do with the question of good faith in prosecuting the suit as provided in S.14 of the Limitation Act".

16. The other expressions relevant to be construed in this regard are 'defect of jurisdiction' and 'or other cause of a like

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nature.' The expression "defect of jurisdiction" on a plain reading means the Court must lack jurisdiction to entertain the suitor proceeding. The circumstances in which or the grounds on which, lack of jurisdiction of the Court may be found are not enumerated in the section. It is to be kept in mind that there is a distinction between granting permission to the plaintiff to withdraw the suit with leave to file a fresh suit for the same relief under O.23, R.1 and exclusion of the period of pendency of that suit for the purpose of computation of limitation in the subsequent suit under S.14 of the Limitation Act. The words "or other cause of a like nature" are to be construed ejusdem generis with the words 'defect of jurisdiction,' that is to say, the defect must be of such a character as to make it impossible for the Court to entertain the suit or application and to decide it on merits. Obviously S.14 will have no application in a case where the suit is dismissed after adjudication on its

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merits and not because the Court was unable to entertain it".

Thus, plaintiff, who did not value the suit properly while

presenting the plaint, cannot take the shelter under the

umbrage of Section 14 of the Limitation Act. That apart,

Section 14 of the Limitation Act was not his case before

the Courts below nor the courts below had jurisdiction to

extend the benefit of said provision to his case.

12. Entries in revenue records will not confer title is

the settled legal proposition. A perusal of the judgment

and decree of the courts below will reflect that finding of

fact was recorded not on the sole ground of revenue

entries. The authorities relied for the

respondent/plaintiff have no semblance to the

substantial questions of law under discussion in this

appeal and the suit is hopelessly barred by limitation.

The findings of facts recorded cannot culminate into relief

in favour of the plaintiff for the discussions supra. The

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judgments of the courts below hence are liable to be set

aside.

The appeal is allowed. The judgment and decree

dated 27.9.2006 passed in R.A.No.1231/2005 on the file

of the Civil Judge (Sr. Dn.), Sira, confirming the judgment

and decree dated 25.11.1997 passed in O.S.No.198/1991

on the file of the Civil Judge (Jr.Dn.), Sira, is set aside.

Consequently, the suit of the plaintiff is dismissed. No

order as to costs.

Sd/-

JUDGE

Dvr/KNM/-