BASAPPA Vs. NAGOJAPPA

JUDGEMENT

(1.) This Second Appeal is filed against the reversing Judgment, dated 26.10.1994, in A.S.No.25 of 1991 passed by the Court of the Additional District Judge, Hindupur, setting aside the Judgment of the trial Court, dated 08.07.1991 in O.S.No.45 of 1986 on the file of the Court of the District Munsif, Madakasira, and decreeing the suit in favour of the plaintiff. The plaintiff/respondent is one Nagojappa and the defendant/appellant is Basappa. They are referred to as such in this Second Appeal.

(2.) The property involved in the present suit is 1/6th share in dry land admeasuring Acs.10.92 cents in survey No.292, stone rivetted well, an irrigation channel and fruit bearing and other trees in the land. The property is situated at Tamadehalli village of Madakasira Mandal in Anantapur District. This property had been contentious issue between Basappa and Nagojappa. It originally belonged to one Thimmappa. Basappa allegedly purchased the property under registered sale deed, dated 05.08.1966. The same property was purchased by Nagojappa also under another registered sale deed, dated 25.10.1969 perhaps this led to the Us. Basappa filed a suit being O.S.No.87 of 1969 on the file of the Court of the District Munsif, Madakasira, for declaration of title and perpetual injunction against Thimmappa (original owner), Nagojappa and one Mahalingappa based on the sale deed. The suit was decreed on 21.11.1970. Basappa then filed A.S.No.29 of 1971 on the file of the Court of the District Munsif, Anantapur. The same was allowed on 01.07.1977 reversing the Judgment and decree in O.S.No.87 of 1969. Basappa then filed Second Appeal being S.A.No.676 of 1980 before this Court. By Judgment dated 10.11.1983, this Court dismissed the Second Appeal. Thus, the declaration of title in favour of Basappa as made by the Court of the District Munsif, Madakasira, in O.S.No.87 of 1969 was no more available to Basappa from 10.11.1983. After dismissal of S.A.No.676 of 1980, Nagojappa filed suit being O.S.No.45 of 1986 on 02.04.1986 on the file of the Court of the District Munsif, Madakasira, out of which the present Second Appeal arises; for declaration of right, title over the same property and for recovery of possession. In the plaint, Nagojappa alleged that Basappa was delivered possession fifteen days after the delivery of Judgment by the Court of District Munsif in O.S.No.87 of 1969 and as he lost the suit in the appeal as confirmed by the Second Appeal, Nagojappa is entitled for declaration of title and possession based on the sale deed. Basappa opposed the suit mainly on two grounds: that the suit is barred by limitation and that he perfected title by adverse possession as the suit was filed on 02.04.1986 when the suit ought to have been filed within twelve years from 21.11.1970 on which day the Court of District Munsif decreed O.S.No.87 of 1969. The trial Court framed five issues, namely, (i) whether the plaintiff is entitled for declaration and possession as prayed for; (ii) whether the decree and Judgment in A.S.No.29 of 1971 operates as res judicata; (iii) whether the defendant has perfected his title to the suit property by adverse possession; (iv) whether the suit is barred by limitation; and (v) to what relief. Nagojappa as plaintiff examined himself as P.W.1 and marked Exs.A. 1 to A.4. Ex.A.1 is the copy of the sale deed executed by Thimmappa in favour of Nagojappa and Exs.A.2, A.3 and A.4 are the certified copies of the decrees in O.S.No.87 of 1969, A.S.No.29 of 1971 and S.A.No.676 of 1980 respectively. The trial Court dismissed the suit holding that the suit is barred by limitation and that Basappa, the defendant perfected his right by adverse possession. Placing reliance on Padmamma v. Parvathamma, 1987 (2) ALT 188

(3.) the trial Court also came to the conclusion that in the absence of any prohibition in the earlier suit preventing Nagojappa for filing a suit for possession the time spent in the earlier proceedings cannot be excluded for the purpose of limitation. In A.S.No.25 of 1991, the appellate Court on consideration of the evidence opined that Nagojappa was prevented by the decree of permanent injunction in O.S.No.87 of 1969, Ex.A.2, from approaching the Court for recovery of possession and declaration and that the suit filed on 02.04.1986 after disposal of S.A.No.676 of 1980 on 10.11.1983 is within time. The appellate Court also came to the conclusion that the possession of Basappa pursuant to the decree in O.S.No.87 of 1969 was not adverse to the right of Nagojappa. Learned counsel for Basappa, the defendant/appellant, placed strong reliance on Padmamma v Parvathamma (supra) and submits that mere pendency of the suit proceedings at the stage of Appeal and Second Appeal does not amount to precluding the plaintiff from filing the suit for declaration of title and possession within a period of limitation as per Article 65 of the Schedule to the Limitation Act, 1963 and as the suit was filed after a period of fifteen years on 02.04.1986, the suit was barred by limitation. Per contra, learned counsel for Nagojappa, plaintiff/respondent, strenuously contends that till 10.11.1983 when Second Appeal was dismissed, the suit proceedings in O.S.No.87 of 1969 was pending, and therefore, the plaintiff could not have filed a separate suit for declaration of title and possession when there was already a declaration and injunction operating against the plaintiff by virtue of the decree in O.S.No.87 of 1969.