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IN THE HIGH COURT OF BOMBAY
M.S.Sonak, J.
Raghuvir Kashinath Kerkar - Appellant
Versus
Drakshayani Vishwanath Kerkar - Respondent
Second Appeal No. 117/2005, Misc. Civil Application No. 1657, 1658/2021 (F)
Decided On : 05-10-2023
LIMITATION - RECTIFICATION OF SALE DEED - Limitation Act, 1963, Article 113; Code of Civil Procedure, 1908, Order 26 Rule 9, Order 8 Rules 13 and 20 - The court discussed the applicability of the Limitation Act, particularly Article 113, which governs the period of limitation for suits where the right to sue accrues. The court interpreted that the cause of action for rectification arose only when the defendants refused to rectify the error in the sale deed, thus allowing the plaintiff's suit to be within the limitation period. The court also addressed procedural aspects under the Code of Civil Procedure regarding counterclaims and the appointment of a commissioner for demarcation, ultimately affirming the lower court's decisions.
Fact of the Case:
The plaintiff purchased a property from the defendants in 1977, which was later found to have a discrepancy in the survey number. After attempts to rectify this through the defendants failed, the plaintiff filed a suit for rectification in 2002. The defendants counterclaimed, alleging encroachment by the plaintiff. The trial court dismissed the plaintiff's suit on grounds of limitation, while the first appellate court reversed this decision and decreed in favor of the plaintiff.
Finding of the Court:
The court found that the trial court erred in dismissing the plaintiff's suit based on limitation, as the cause of action arose only when the defendants refused to rectify the sale deed. The appellate court's decision to allow the suit was upheld, and the counterclaim was also dismissed as it was not properly substantiated.
Issues: 1. Whether the suit for rectification was barred by limitation. 2. Whether the trial court properly addressed the counterclaim raised by the defendants. 3. Whether the appointment of a commissioner was necessary for demarcation of the property.
Ratio Decidendi: The court held that the limitation period for the suit was governed by Article 113 of the Limitation Act, which allows for the period to be counted from when the right to sue accrues, not when it first accrues. The court also clarified that the trial court's failure to explicitly dismiss the counterclaim did not invalidate its decision, as the issues were considered and answered against the defendants.
Final Decision: The second appeal was dismissed, affirming the first appellate court's decree in favor of the plaintiff and upholding the dismissal of the defendants' counterclaim.
JUDGMENT/ORDER
1. Heard Mr Nigel da Costa Frias with Ms Barbara Andrade for the appellants and Mr Deep Shirodkar for the respondents.
2. The appellants are the original defendants and the respondent is the original plaintiff in Regular Civil Suit No.11/2002 instituted in the Court of the Civil Judge, Junior Division at Pernem Goa. Accordingly, in this Second Appeal, the parties will be referred to by their description before the Trial Court.
3. The plaintiff's case in the suit is that he purchased the suit property measuring 520 sq. mtrs. vide registered sale deed dtd. 26/12/1977 from defendants no.1 and 3 to 6. In this registered sale deed, the suit property was described as bearing Survey No.97/1. Based on this sale deed, the plaintiff, in the year 1997, applied to the Talathi of Morjim for mutation in the survey records. The Talathi, on perusing the records, informed the plaintiff that the defendants had partitioned the suit property before the execution of the sale deed dtd. 26/12/1977, and the suit property sold to the plaintiff was now surveyed under No.97/1-B. Accordingly, the plaintiff called upon the defendants to execute a rectification deed by indicating the survey number of the suit property sold vide the sale deed dtd. 26/12/1977 as 97/1-B in place of 97/1. Since there was no response from the defendants, the plaintiff caused a legal notice dtd. 20/11/2001 to be served upon the defendants and, after there was no response to this legal notice as well, instituted Regular Civil Suit No.11/2002 on 5/3/2002. The prayer in the suit is for a decree to direct the defendants to rectify the Survey Number of the suit property in the sale deed dtd. 26/12/1977 by executing the necessary rectification deed.
4. The defendants filed their written statement, in which there is neither any specific denial nor any defence to resist the plaintiff's claim for rectification of the survey number in the registered sale deed dtd. 26/12/1977. However, the defendants pleaded that the plaintiff illegally constructed a laterite stone wall without intimation or permission from the defendants, thereby covering an additional adjoining area of the defendants to the extent of about 34 sq. mtrs. Over and above the 520 sq. mtrs. sold by the defendants to the plaintiff vide the registered sale deed dtd. 26/12/1977. Based upon these pleadings, the defendants raised a counterclaim and sought a mandatory injunction to direct the plaintiff to remove the said portion of the compound wall and restrict the compound wall to the rectangular portion of the plot measuring 520 sq. mtrs. which was sold by the defendants to the plaintiff.
5. The Trial Court vide Judgment and Decree dtd. 25/3/2004 dismissed the suit mainly on the ground that the plaintiff obtained knowledge about the necessity of rectification on 8/1/1997, but the suit was presented only on 5/3/2002. Consequently, the Trial Court decree seems to suggest that the suit was barred by limitation even though the Trial Court framed no specific issue of limitation in the suit.
6. From the perusal of the Judgment and Decree dtd. 25/3/2004, it is apparent that the Trial Court cast issues and even answered the issues concerning the counter claim against the defendants. However, the operative portion of the Judgment and Decree refers only to the dismissal of the suit without explicitly recording the dismissal of the counter claim.
7. The plaintiff, aggrieved by the dismissal of Regular Civil Suit No.11/2002 by the Trial Court, instituted Regular Civil Appeal No.76/2004 before the Additional District Judge at Mapusa (First Appellate Court). Upon receipt of the notice of filing of this appeal, the defendants did not file any cross-objections regarding the dismissal of their counterclaim by the Trial Court within the limitation period prescribed.
8. However, the defendants filed Misc. Civil Application No.330/2004 in Regular Civil Appeal No.76/2004 seeking condonation of delay of over five months in filing cross-objectio
AI
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A plaintiff must plead the precise area of the property in encroachment cases to establish ownership and encroachment claims; failure to do so undermines the case.
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The court emphasized the importance of following instructions for demarcation and the power of the court to appoint a fresh Local Commissioner. The court also highlighted the need for evidence to be ....
In a suit for permanent injunction, the plaintiff must prove possession of the property as of the date of filing; failure to do so results in dismissal.
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