Murthy Vs. Ravula Somasundaram & Ors  Insc 420 (17 August 2005)
N. Variava & Tarun Chatterjee
O R D
E R [with SLP (C) Nos. 20226-20228 of 2003]
parties at great length.
Special Leave Petitions are against the Judgments of the Andhra Pradesh High
Court dated 21st
dismissing the Appeal filed by the Petitioners and the Judgment dated 4th October, 2002 dismissing the Review Petition.
no substance in the contention that there has been non- appreciation or
misinterpretation of evidence. In our view, the Courts below have correctly
analyzed the evidence on record and correctly concluded, on the basis of
material on record, that the Petitioner had entered into the Agreement to Sell
not just on his own behalf but also on behalf of the other parties. The Courts
below also have correctly recorded that the possession had been taken on behalf
case sought to be made out that after notice dated 11th September, 1976,
calling upon the Respondents 1 to 8 to pay their shares, the Petitioner had cut
off the other Respondents as they had not paid their share is not even pleaded.
In any case it is not believeable in view of the various documents wherein the
Petitioner himself has been stating that the purchase had been made on behalf
also see no substance in the contention that the Suit was barred by limitation
and that the Courts below should have decided the question of limitation. When
limitation is the pure question of law and from the pleadings itself it becomes
apparent that a suit is barred by limitation, then, of course, it is the duty
of the Court to decide limitation at the outset even in the absence of a plea.
However, in cases where the question of limitation is a mixed question of fact and
law and the Suit does not appear to be barred by limitation on the face of it,
then the facts necessary to prove limitation must be pleaded, an issue raised
and then proved. In this case the question of limitation is intricately linked
with the question whether the Agreement to Sell was entered into on behalf of
all and whether possession was on behalf of all. It is also linked with the
plea of adverse possession. Once on facts it has been found that the purchase
was on behalf of all and that the possession was on behalf of all, then, in the
absence of any open, hostile and overt act, there can be no adverse possession
and the Suit would also not be barred by limitation. The only hostile act which
could be shown was the advertisement issued in 1989. The Suit filed almost
also see no substance in the contention that no consideration has flowed from
the other Respondents. The Petitioner in his own evidence-in-chief admits that
some amounts were paid jointly. This is clear from the fact that in respect of
some payments he uses the word "I paid" but in respect of others he
deposes "we paid". Even otherwise, the contention that no
consideration has flowed is contrary to the terms of the Agreement. Also the
evidence of D.W. 3 shows that in 1967, when the Agreement to Sell was entered
into, the Petitioner had no income and no monies. This also belies his claim
that he alone had paid.
also see no substance in the submission of Mr. Ramachandran that there is no
finding on Issue No. 1. In our view, once the finding was reached on Issue No.
5 the answer to Issue No. 1 followed. Even otherwise, both these Issues have
been dealt with together and the reasoning given by the trial Court for
answering these two Issues in favour of the Respondents applies to both these
view of the above, we see no infirmity in the impugned Judgments. We see no
reason to interfere. The Special Leave Petitions stand dismissed with no order
as to costs.