- 1 - HC-KAR NC: 2025:KHC-D:14263 RSA No. 1873 of 2007 IN THE HIGH COURT OF KARNATAKA,AT DHARWAD DATED THIS THE 25TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE C M JOSHI REGULAR SECOND APPEAL NO. 1873 OF 2007 (DEC) BETWEEN: 1. K.LAKSHMAN RAO S/O. HIROJI RAO, AGED ABOUT 70 YEARS, PENSIONER, R/AT. S.G.P HIGH SCHOOL ROAD, GUNTAKAL, ANANTAPUR DIST., ANDHRA PRADESH. 2. SRI. JAGADISH S/O. LATE K. MOHAN RAO, AGE: MAJOR, 3. SMT. LAKSHMI BAI D/O. LATE K.MOHAN RAO, AGE: MAJOR. BOTH ARE APPELLANTS NO.2 TO 6 ARE R/AT: MADHAVARAM ROAD, NEAR RAILWAY GATE, ADONI DISTRICT, ANDHRA PRADESH. 4. SMT. SHYAMALA BAI W/O. K NAGOJI RAO, AGED ABOUT 50 YEARS, 5. K. LAKSHMAN RAO S/O. K. NAGOJI RAO, AGE: MAJOR, 6 SRI. K. RAMESH RAO S/O. K. NAGOJI RAO, AGE: MAJOR, 7. SRI. K. SREEDHAR S/O. K. NAGOJI RAO, AGE: MAJOR, 8. SMT. SHARADA BAI D/O. K. NAGOJI RAO, AGE: MAJOR, YASHAVANT NARAYANKAR Digitally signed by YASHAVANT NARAYANKAR Date: 2025.10.31 15:13:38 +0530 - 2 - HC-KAR NC: 2025:KHC-D:14263 RSA No. 1873 of 2007 9. SMT. K. SARASWATHI S/O. K. NAGOJI RAO, AGE: MAJOR, APPELLANTS NO. 4 TO 9 ARE R/AT D.NO.12/82, SAI NAGAR, ANATAPURA, ANDHRA PRADESH. …APPELLANTS (BY SRI. RAVIRAJ C. PATIL, ADVOCATE) AND: 1. SRI. DATTAJI S/O. LATE GUDUBAI RAO, AGED ABOUT 35 YEARS, 2. SRI. VENKOJI S/O. LATE GUDUBAI RAO, AGED ABOUT 31 YEARS, 3. SRI. HIRALAL S/O. LATE GUDUBAI RAO, AGED ABOUT 29 YEARS, 4. SMT. MIRABAI D/O. GUDUBAI RAO, AGED ABOUT 33 YEARS, 5. SMT. SUNITHA D/O. LATE GUDUBAI RAO, AGED ABOUT 27 YEARS, 6. SMT. AMBU BAI D/O. LATE GUDUBAI RAO, AGED ABOUT 20 YEARS, APPELLANTS NO.1 TO 6 ARE R/AT. WARD NO.X, 2ND CROSS, SIDDALINGAPPA CHOWKI, HOSPET, BELLARY DISTRICT. SMT. NARSUBAI W/O. SHAJI RAO, NO.1250, KONAVADDA, BELAGAVI, SINCE DECEASED BY HER LRS. - 3 - HC-KAR NC: 2025:KHC-D:14263 RSA No. 1873 of 2007 7. SRI. MOHAN RAO S/O. SHAJI RAO, AGE: MAJOR, R/AT. D.NO.1250, KONAVAL GALLI, BELAGAVI. 8. SMT. SUSHEELA D/O. SHAJI RAO, AGE: MAJOR, R/AT. D.NO.1250, KONAVADDA, BELAGAVI. SMT. LINGUBAI D/O. SHAIKU RAO, SINCE DECEASED BY HER LR. 9. SMT. NARASAMMA W/O. HULUGOJI RAO, AGE: MAJOR, R/AT: KRISHNAJI CHICKEN BUNK, BELLAREPPA COLONY, BELLARY. 10. SMT. CHANDRA BAI W/O. K. MOHAN RAO, AGE: MAJOR, 11. SATHYANARAYANA RAO S/O. LATE K. MOHAN RAO, AGE: MAJOR, 12. SRI. GANESHWARA RAO S/O. LATE K. MOHAN RAO, AGE: MAJOR, DEFENDANT NO.2,3,6 ARE R/AT: MADHAVARAM ROAD, NEAR RAILWAY GATE, ADONI DISTRICT, ANDHRA PRADESH. …RESPONDENTS (BY SRI. C.S SHETTAR, ADVOCATE FOR SRI. HARSH DESAI, ADVOCATE FOR R1-R6, R9; SRI. S.R. KOLUD, ADVOCATE FOR R10 TO R12; R7-APPEAL DISMISSED; R8-NOTICE SERVED) THIS RSA IS FILED UNDER SECTION 100 OF CPC., PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 05.04.2007 PASSED IN R.A.NO.29/2003 ON THE FILE OF THE LEARNED ADDL. CIVIL JUDGE (SR.DN.) BELLARY, AND SET ASIDE THE JUDGEMENT AND DECREE DATED 31.03.2003 PASSED IN OS.NO.485/1998 ON THE FILE OF THE LEARNED III ADDL. CIVIL JUDGE (JR.DN.) AT BELLARY AND CALL FOR THE RECORDS AND ALLOW THIS RSA WITH COSTS THROUGHOUT AND ETC. THIS APPEAL, COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 4 - HC-KAR NC: 2025:KHC-D:14263 RSA No. 1873 of 2007 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE C M JOSHI) None appears for the appellants. 2. Heard the learned counsel appearing for the respondents. 3. Being aggrieved by the concurrent findings of the Trial Court in O.S.No.485/1998 and the First Appellate Court in R.A.No.29/2003, the defendants are before this Court in second appeal. 4. The factual matrix that is relevant for the present appeal is that the plaintiffs filed the suit for declaration and permanent injunction against the defendants contending that the suit schedule property was in fact owned by their grandfather Kokanji Rao son of Gudu Rao. In the year 1999, the defendants made an application to the Revenue Authorities contending that the name of father of the Kokanji Rao is Lingoji Rao. The said application was accepted by the Revenue Authorities without any enquiry and as such the property was entered in the name of Kokanji Rao son of Lingoji Rao. On the basis of the same, the - 5 - HC-KAR NC: 2025:KHC-D:14263 RSA No. 1873 of 2007 defendants started claiming rights over the suit schedule property. 5. In the year 1994 the defendants herein filed O.S.No.65/1994 for injunction simpliciter, in which they had taken up the contention that it is a property belonging to Kokanji Rao son of Lingoji Rao. Thereafter the said suit came to be decreed in favour of the defendants. 6. Subsequently, the plaintiffs herein filed a comprehensive suit, O.S.No.485/1998 seeking declaration of title and permanent injunction. After the appearance of the defendants, they filed the written statement and on the basis of such written statement, the following issues and additional issues were framed by the Trial Court. ISSUES “1. Whether the plaintiffs prove that plaintiff No.1 and father of plaintiffs 2 to 7 and defendants 13 & 14 are the only legal heirs of late Kokanji Rao and hence they are absoute owner of the suit schedule property? 2. Whether the plaintiffs prove that the suit schedule property is the ancestral property of late Kakonji Rao? 3. Whether the plaintiffs prove that late Kokanji Rao has permitted the husband of defendants No.2 - 6 - HC-KAR NC: 2025:KHC-D:14263 RSA No. 1873 of 2007 and defendants No.7 to enjoy the suit schedule property? 4. Whether the plaintiffs prove that, the husband of 1st plaintiff by name Gubada Bai was dies instates? 5. Whether the plaintiffs are entitled for the relief as sought for? 6. What order or decree? Addl. Issues 1. Whether the suit is barred by limitation ? 2. Whether the suit is not properly valued and Court fee paid by plaintiff is insufficient? Addl. Issue 3. Whether the 1st defendant proves that he has got the title and ownership over the suit schedule property through a partition deed and since then he has been in possession and enjoyment of the same?” 7. The evidence was led and after perusing the evidence on record, the Trial Court in paragraph No.11, observed as below: "1st defendant has produced demand register extract pertaining to the suit schedule property which is marked at Ex.D-21. The learned counsel for the said defendants has vehemently contended that, Kokanji Rao is son of K.Lingoji Rao which is forth-coming in Ex.D-21. I have perused the Ex.D-21 the name of Kokanji Rao, son of K.Lingoji Rao is forth-coming in the said document for the year 1980-81 to 1984-85. The said document has been issued on 11.3.1994. But, it is germane to note that, 1st defendant also produced - 7 - HC-KAR NC: 2025:KHC-D:14263 RSA No. 1873 of 2007 one endorsement issued by the City Municipal office dated 15.10.99 which is marked at Ex.D-22. The Ex.D-22 discloses that the suit schedule property was stood in the name of Kokanji Rao, son of Gudubai Rao and the same had been rectified on the basis of an application given by the 1st defendant dated 29.6.1999 as Kokanji Rao, son of Lingoji Rao. The recital of Ex.D-21 discloses that the property stands in the name of Kokanji Rao, son of Lingoji Rao in the year 1981-82 to 1984-85 but Ex.D-22 discloses that originally the suit dule property stands in the name of Kokanji Rao, son of Gudubai Rao till 29.6.1999 when 1st defendant has filed an application to rectify the father name of Kokanji Rao as Lingoji Rao. Therefore, it is crystal clear that, suit schedule property originally stands in the name of Kokanji Rao, son of Gudubai Rao and hence I have no hesitation to hold that Sri. Son of Kokanji Rao is son of Gudubai Rao but not Son of Lingoji Rao. Moreover, it is pertinent to note that, plaintiff has produced demand register of schedule property which is marked at Ex.P-1 wherein Kokanji Rao father name is forth-coming as Gudubai Rao. The Ex.P-1 is issued on 22.12.94, Ex.D-21 produced by the 1st defendant is also for the year 1994.” 8. The said finding of the Trial Court was upheld by the First Appellate Court. Therefore, the factual aspect that the property was owned by Kokanji Rao, son of Gudubai Rao, alias Gudubhai Rao is established and this Court cannot go into the said factual aspect. 9. While admitting the appeal, this Court has framed the following substantial question of law. “i) Whether both the Courts below have committed a serious error in not noticing the important aspect - 8 - HC-KAR NC: 2025:KHC-D:14263 RSA No. 1873 of 2007 of limitation more especially when the suit came to be filed in the year 1998 after their appearance in the earlier a suit being O.S.No.65/1994? ii) Whether both the Courts have ignored to collect requisite Court fee as per Section 38 of K.C.F. & S.V. Act more particularly in the light of suit being filed seeking cancellation of the partition deed?” 10. It is pertinent to note that the question as to whether the suit was barred by limitation has been considered by the Trial Court in extenso in paragraph No.18 of the impugned judgment, the Trial Court observes as below, “I have perused the said citation wherein plaintiff No.1 husband was a party to the alleged documents i.e., gift deed and hence it was held in the said authority that the limitation would commence to run from the date of document itself and suit would be barred after expiry of partition, irrespective of the fact whether the heir of the executant of the document became aware of the fraud subsequently or not. Hence, it was held that, the time would be commenced to run against the Predecessor, it would not stop but continues to run against the legal heir of executant of the document in dispute. But, the facts and circumstances of the instant suit is that, 1st plaintiff husband Gudubai Rao is not at all party to the alleged partition document i.e., Ex.D-1 and hence I have no hesitation to hold that the facts and circumstances of the above said authority is not applicable to the instant suit. Hence, it is not justifiable to rely on the said authority. On the other hand, plaintiffs counsel contended that the knowledge of Ex.D-1 is the beginning of limitation period to the plaintiffs to declare the same as null and void. He has also contended that, plaintiffs came to know the existence of Ex.D-1 only on 18.5.98 when 1st plaintiff father Gudubai Rao came to know - 9 - HC-KAR NC: 2025:KHC-D:14263 RSA No. 1873 of 2007 the mutation of Town Survey extract in the name of K.Nagoji Rao, K.Lakshman Rao i.e., 1st defendant and in the name of K.Mohan Rao on the basis of Ex.D-1. He relied under section 59 of Limitation Act. There is no evidence on record to show that Gudubai Rao had knowledge of Ex.D-1 before 1998. Ofcourse, the defendants counsel has cross- examined the P.W-1 to that effect but he has not extracted anything to show that the plaintiffs had knowledge of Ex.D-1 before 1998. As per Article 59 of Limitation Act 3 years is the limitation period to file a suit to cancel an instrument. This suit is filed from the date of right to entitle plaintiff to cancel instrument. This suit is filed within 3 years from the date of knowledge of Ex.D-1. Even other-wise, the 1st defendant has not taken defence of limitation in his written statement. The defendants No.5, 6 have taken the said defence that too by filing a additional written-statement. But, they have inferred the plaintiffs contention and consented to decree the suit in their earlier written statement. Therefore, I hold that, the suit is not barred by law of limitation. Thus I answer this issue in Negative.” 11. The above view appears to be correct and no interference is required in the same. The First Appellate Court also in paragraph No.15 observes as bellow: “Similarly, the present suit property and the property involved in O.S.65/94 are not one and the same. I am unable to under stand how both the parties have lost sight of this important aspect and conducted the case in an ignorant manner. Therefore, I am of the considered opinion that, the judgement and decree passed in O.S.65/94 has no bearing on the present O.S.485/98.” 12. Thus it is evident that the question of limitation had been considered by the Trial Court and the First Appellate Court - 10 - HC-KAR NC: 2025:KHC-D:14263 RSA No. 1873 of 2007 and they have come to the conclusion that the suit is not hit by the law of limitation. Hence, this Court does not find any reason to interfere with the same. 13. So far as the Court fee is concerned, the suit is in respect of declaration of the title to the property. It is pertinent to note that the plaintiffs had sought declaration that the inter se partition deed among the defendants is not binding on them and for that purpose, they had valued the suit at ₹32,000/- and had paid a Court fee of ₹1,650/-. They had also paid a sum of ₹25/- towards the declaration, whereas paragraph No.14 of the plaint reads as below. “14. The value of the suit for the purposes of Court Fees and jurisdiction is as follows :- a) for declaratory decree of cancellation of alleged partition deed and for possession dated 18-2- 1984 entered into between the K. Nagoji Rao, K. Lakshman Rao and K. Mohan Rao, The suit is valued at Rs. 32,000-00 being shares divided amongst the K. Nagoji Rao share Rs. 17,000-00 K. Lakshmana Rao share Rs. 7,500-00 and K. Mohan Rao share Rs-7,500/- and court Fees of Rs. 1650/-is paid thereon under Section 38 of the Karnataka Court Fees and suits Valuation Act. b) for declaring that the plaintiffs and the defendants No. 13 and 14 are the absolute owners of the suit schedule property, the suit is valued at Rs. 1000/- and a Court Fees of Rs. 25/- is paid thereon under - 11 - HC-KAR NC: 2025:KHC-D:14263 RSA No. 1873 of 2007 Section 24 (a) of the Karnataka Court Fees and Suits Valuation Act.” 14. It may be noted that the defendants were claiming rights over the suit schedule property after entering the name of Kokanji Rao son of Lingoji Rao and partitioning the suit schedule property amongst themselves. The said partition deed was questioned by the plaintiffs stating that it is not binding on them. Therefore, the valuation of the partition deed was incorporated, since the declaration was in respect of the said property. The Trial Court and the First Appellate Court have not found any fault with the same. Therefore, this Court does not find any reason to interfere with the impugned judgment. In the result the appeal is dismissed. SD/- (C M JOSHI) JUDGE SSP CT:PA List No.: 1 Sl No.: 36