Karnataka High Court
B.Ranganath S/O. Pampathi And Ors vs Sujatha W/O. Mahadevappa And Ors on 27 March, 2017
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 27TH DAY OF MARCH 2017
BEFORE
THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA
C.R.P. No.200038/2016
Between:
1. B. Ranganath S/o Pampathi
Age : 43 years,
Occ : Business & Agriculture,
R/o Rejendra Gunj,
Behind Purnima Theatre,
Raichur,
Dist. Raichur-584101.
2. B. Mallikarjuna S/o Pampathi
Age : 47 years,
Occ : Business & Agriculture,
R/o Rejendra Gunj,
Behind Purnima Theatre,
Raichur,
Dist. Raichur-584101.
3. B. Srikanth S/o Pampathi
Age : 45 years,
Occ : Business & Agriculture,
R/o Rejendra Gunj,
Behind Purnima Theatre,
Raichur,
Dist. Raichur-584101. ...Petitioners
(By Sri. Ashok S. Kinagi Advocate)
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And:
1. Sujatha W/o Mahadevappa
Age : 40 Years,
Occ : Agriculture and Household affairs,
R/o Village Eganoor,
Tq. & Dist. Raichur-584101.
2. Rekha D/o Mahadevappa
Age : 24 Years,
Occ : Student,
R/o Village Eganoor,
Tq. & Dist. Raichur-584101.
3. Neelamma D/o Mahadevappa
Age : 22 Years,
Occ : Student,
R/o Village Eganoor,
Tq. & Dist. Raichur-584101.
4. Sangeetha D/o Mahadevappa
Age : 20 Years,
Occ : Student,
R/o Village Eganoor,
Tq. & Dist. Raichur-584101.
5. Roopa D/o Mahadevappa
Age : 19 Years,
Occ : Student,
R/o Village Eganoor,
Tq. & Dist. Raichur-584101.
6. Mahadevappa S/o Bheemanna
Aged : 51 Years,
Occ : Agriculture,
R/o Village Eganoor,
Tq. & Dist. Raichur-584101.
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7. The Special Land Acquisition Officer,
KIADB,
Kalaburagi-585102
...Respondents
This petition is filed under Section 115 Read with
Rule 1 of the CPC, praying to allow the revision petition
by setting aside Order on I.A. No.11 dated: 14.11.2016
passed in O.S. No.137/2011 by the learned Addl. Senior
Civil Judge, Raichur vide Annexure-F and consequently
allow the I.A. No.11, and reject the plaint.
This petition coming on for admission this day,
Court made the following:
ORDER
The petitioners in this Civil Revision Petition are defendants No.2 to 4 in O.S. No.137/2011, which is pending on the file of the Civil Judge (Junior Division) at Raichur. That suit has been filed by the respondent/plaintiffs seeking the relief of partition and separate possession of the suit schedule properties as well as declaration that the sale deed executed by 4 defendant No.1 in favour of defendant Nos.2 to 5 as per document No.1168/97-98 dated 07.08.1997 registered in the office of the Sub-Registrar is illegal and not binding on the plaintiffs.
2. In response to suit summons, the defendants filed written statements and one of the contentions raised in the written statement was with regard to the suit being barred by limitation.
3. On the basis of rival pleadings, the trial court has raised certain issues and additional issues. Additional issue No.4 is with regard to whether the suit being barred by law of limitation. The petitioners herein had sought for consideration of that issue as a preliminary issue. The trial court however declined to do so. The petitioners herein did not challenge the said order. Instead they filed an application under Order VII rule 11 (d) of the Civil Procedure Code, 1908 (CPC) 5 seeking rejection of the plaint on the premise that the suit is barred by limitation. Being aggrieved by the dismissal of the said application the present petition has been filed.
4. I have heard learned counsel for the petitioners and perused the materials on record. Learned counsel for the petitioners submitted that having regard to Article 109 of Limitation Act, 1963 the suit is barred by Limitation, that limitation period prescribed is 12 years for assailing a transaction which has been made by the Kartha of Hindu joint family. In the instant case the suit schedule properties which are joint family properties were alienated by defendant No.1 as long back as in the year 07.08.1997. The suit is filed in the year 2011 i.e. long after the limitation period. Therefore, the trial court ought to have allowed the application and rejected the plaint, by not doing so it has resulted in miscarriage of justice. Hence, learned counsel would submit that this 6 court may interfere in the matter and order for rejection of the plaint.
5. Having heard learned counsel for the petitioners and on perusal of the materials on record it is noted that when the petitioners had sought for consideration additional issue no.4 pertaining to limitation as a preliminary issue. That, means in substance, they agreed or consented for letting in evidence on that issue. The trial court however declined to consider additional issue No.4 as a preliminary issue, the petitioners herein have accepted that order as there has been no challenge to the same. Instead the petitioners herein have now sought for rejection of the plaint on the basis of Order VII rule 11 (d) of CPC. The trial court has rejected that application by holding that the issue of limitation in the instant case is a mixed question of law and facts and therefore, recording of evidence is necessary. Hence, the said application is 7 rejected. No doubt under Article 109 of the limitation Act, a period of twelve years is the period prescribed for assailing a sale or alienation made by a Kartha of Hindu joint family governed by Mitakshara law. But in order to answer as to whether the instant suit is barred by limitation or not, the trial court has held that recording of evidence on that aspect is necessary. I do not find any infirmity in the reasoning of the trial court in holding so. Further, the petitioners herein had themselves sought for trial of that issue as a preliminary issue, which would mean that they had intended to let in evidence on that issue. Such being the position the petitioners herein could not have by-passed that procedure and instead seek rejection of plaint under Order VII rule 11(d) of the CPC. I do not find any error in the order of the trial court. There is no merit in the revision petition.
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Petition is dismissed.
The dismissal of this petition would not come in the way of the trial court considering additional issue No.4 as a preliminary issue after recording the evidence and on answering that issue, the suit may be disposed of in accordance with law.
Sd/-
JUDGE RSP