Point of Law: Section 27 of Limitation Act, 1963 provides for extinguishment of right on lapse of limitation fixed to institute a suit for possession of any property, right to such property shall stand extinguished.

JUDGMENT :

This appeal is filed challenging the judgment and decree dated 25.01.2017, passed in R.A.No.348/2016, on the file of the VII Additional District Judge, Mysuru.

2. The plaintiffs before the Trial Court while seeking the relief of declaration and possession contended that the plaintiffs are the absolute owners of the suit schedule property and husband of plaintiff No.1 by name late Ainora Devaiah was the owner in possession of the said property and the father of defendant No.1 by name late Shivanna had approached plaintiff No.1 and her husband and requested for permission for him and his family to reside in the suit schedule property as he had no other house for residence in the village and accordingly the permission was granted. It is further pleaded that after the death of defendant No.1’s father, the defendants continued in the suit schedule property with the permission of the plaintiffs. The plaintiffs sympathetically permitted the defendants to reside in the suit schedule house for few years, when the defendants requested the plaintiffs to permit them to continue to reside in the said property. When the plaintiffs demanded possession for their residential purpose, the defendants refused to vacate the suit schedule property and hand over the possession to the plaintiffs and hence legal notice dated 29.05.2007 was sent to the defendants and it was replied by notice dated 05.06.2007 by making false claim contending that Ainora Devaiah sold the suit schedule property in favour of defendant No.1’s father in the year 1980 and since then they are in possession of the suit schedule property as absolute owners.

3. Based on the pleadings of the parties, the Trial Court framed the issues and the plaintiffs in order to prove their case examined plaintiff No.2 as P.W.1 and got marked the documents at Exs.P.1 to 7. The legal representatives of defendant No.1 got examined legal representative No.1 as D.W.1 and another witness as D.W.2, but no documents are marked. The Trial Court after considering both oral and documentary evidence placed on record, decreed the suit declaring that the plaintiffs are the owners of the suit schedule property and directed the defendants to deliver the possession of the suit schedule property to the plaintiffs within three months from the date of order, failing which the plaintiffs will be entitled to get the same through process of Court.

4. Being aggrieved by the judgment and decree of the Trial Court, the defendants filed an appeal before the Appellate Court which is numbered as R.A.No.348/2016. The First Appellate Court on considering the grounds urged in the appeal, formulated the points whether the impugned judgment and decree of the Trial Court is opposed to law, facts and circumstances of the case and whether it requires interference. The First Appellate Court re-assessing the material, allowed the appeal and set aside the judgment of the Trial Court and consequently dismissed the suit. Hence, the second appeal is filed by plaintiff No.2 before this Court.

5. The learned counsel for the appellant in his arguments would vehemently contend that the First Appellate Court committed an error in reversing the finding of the Trial Court. The First Appellate Court failed to consider the fact that admittedly the defendants are in permissive possession in the suit schedule property and the husband of plaintiff No.1 had permitted the defendants to reside in the suit schedule property sympathetically when the defendant No.1 was not having any premises to live and even after the death of the husband of plaintiff No.1, the plaintiffs have permitted the defendants to reside in the suit schedule property, as the defendants requested that they have no house in the village and when the demand was made sets up false plea. The First Appellate Court totally erred in coming to the conclusion that the plaintiffs have issued a legal notice after 27 years. Even assuming for the moment, why the defendants have kept quite