The failure to frame issues regarding limitation in a suit necessitates remand for proper examination and adherence to principles of natural justice.

AND DECREE DATED 14.10.2022 IN R.A. NO.5/2020 ON THE FILE OF ADDL. SENIOR CIVIL JUDGE AND JMFC BASAVANA BAGEWADI FOR HAVING REMANDING IT TO THE TRIAL COURT BY CONFIRMING THE JUDGMENT AND DECREE DATED 02.01.2020 PASSED IN O.S. NO.518/2014 ON THE FILE OF THE ADDL. CIVIL JUDGE, BASAVANA BAGEWADI.

THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

JUDGMENT The appellant has preferred this appeal against the order dated 14.10.2022 passed by the Additional Senior Civil Judge and JMFC, Basavana Bagewadi [for short, ‘the first appellate Court’] in R.A.No.5/2020.

2. Heard the arguments of the learned counsel for the appellant.

3. The learned counsel for the appellant has submitted his argument that the impugned judgment and decree passed by the first appellate Court is not only against facts and law but also against the principles of natural justice. Further, it is submitted that the suit land was owned and possessed by her elder sister namely Gourawwa Hanamantraya Patil, who purchased the same under registered sale deed dated 13.08.1969. The said Gouravva the elder sister of the plaintiff and defendant No.1 and 2 died intestate and without issues on 9.4.1984 and as such the plaintiff and the defendants No.1 and 2 being the only legal heirs of their deceased elder sister, the suit land came to be mutated in their joint names vide ME No.1067 dated 12.5.1984. But thereafter the defendant No.1 behind the back and knowledge of the plaintiff, got created an alleged entry of ME No.7336 alleging that under partition the plaintiff and defendant No.2 did relinquished their share and accordingly she became the owner and possessor of the suit property on the said order of mutation. But to corroborate the said fact the defendant No.1 Neelawwa did not lead her oral and documentary evidence in support of her contention of ownership and possession pertaining to the suit land in pursuance with ME No.7336. Though no notice is issued to the plaintiff and defendant No.2 as provided by law, the above said alleged entry of mutation as per Ex.P13 is sanctioned and as such it does not confer any right, title and interest in favour of the defendant No.1. Even the defendant No.1 or defendant No.3 did not produce the alleged deed of partition dated 30.8.1993 before the trial Court or the first appellate Court. It is the settled preposition of law that mere order of mutation or relinquishment of right by giving Vardi to the revenue authorities does not confer any title. The first appellate Court, without considering such legal aspect of the matter, has reversed the findings given by the trial Court and come to an incorrect conclusion by remitting back the matter in dispute to the trial Court. Therefore, the impugned judgment and decree passed by the first appellate Court deserves to be set aside.

4. Further, it is submitted that though the defendant Nos.1 and 3 have taken the alleged contention of Order 2 Rule 2 CPC with regard to maintainability of the suit in view of filing of the suit in O.S.No.114/2010 and a subsequent suit by her and the defendants did not produce any records such as plaint, written statement, judgment and decree passed in earlier proceedings. But the plaintiff is not a party to the above said suit and as such, if any judgment and decree that has been passed in O.S.No.114/2010, is not binding upon the plaintiff and she is not concerned with the same, being not a party to the said suit. The first appellate Court did not take into consideration such factual aspect of the matter.

5. Further it is submitted that defendants have not specifically pleaded in the written statement as to from what date the plaintiff is excluded from enjoyment and possession of suit property. The impugned judgment and decree passed by the trial Court is based on mere assumption and presumption in the absence of specific pleadings as provided under Article 110 of the Limitation Act . The first appellate Court, without framing any iss