SUPREME COURT OF INDIA
Narne Rama Murthy
Vs.
Ravula Somasundaram
S.L.P.(Civil) 20182-20184 of 2003
(S.N.Variava and Tarun Chatterjee JJ.)
17.08.2005
S.N.Variava, J.
1. Heard parties at great length.
2. These Special Leave Petitions are against the Judgments of the Andhra
Pradesh High Court dated 21st December, 2001 dismissing the Appeal filed by the
Petitioners and the Judgment dated 4th October, 2002 dismissing the Review
Petition.
3. We see 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
of all.
4. The 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
of all.
5. We 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 immediately thereafter.
6. We 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.
7. We 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
Issues.
8. In 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.