Karnataka High Court
Smt Ganganarasamma vs Sri Kempanagaiah on 20 January, 2014
Author: Ashok B.Hinchigeri
Bench: Ashok B. Hinchigeri
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 20TH DAY OF JANUARY 2014
BEFORE
THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI
R.F.A.No.1414/2013 (PAR)
BETWEEN:
SMT.GANGANARASAMMA
W/O LATE HANUMAIAH
D/O KEMPANAGAIAH
AGED ABOUT 55 YEARS
RESIDING AT C/O H.MUNISWAMAIAH
NO.3, 1ST CROSS, MARUTHI NAGAR
KAMASHIPALYA
BANGALORE 560 079. ... APPELLANT
(BY SRI GURURAJ KULKARNI, ADVOCATE)
AND:
1. SRI KEMPANAGAIAH
S/O LATE KADARAIAH
AGED ABOUT 87 YEARS
RESIDING AT BHARATHIPURA
SOMAPURA HOBLI (DABASPET)
NELAMANGALA TALUK
BANGALORE RURAL DISTRICT.
2. SRI B.K.NARASIMHAIAH
S/O KEMPANAGAIAH
AGED ABOUT 59 YEARS
3. SMT.KEMPAMMA (UNMARRIED)
D/O KEMPANAGAIAH
AGED ABOUT 57 YEARS
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BOTH ARE RESIDING AT
NO.2, 6TH MAIN ROAD
OPP:BEML LAYOUT
KAMAKSHIPALYA (KAREKALLU)
BASAVESHWARA NAGAR
BANGALORE-79.
4. SRI B.K.SIDDAGANGAIAH
S/O KEMPANAGAIAH
AGED ABOUT 53 YEARS
RESIDING AT NO.156, 2ND CROSS
BEML LAYOUT 1ST STAGE
BASAVESHWARA NAGAR
BANGALORE 560 079.
5. SMT.NAGAMMA
D/O KEMPANAGAIAH
AGED ABOUT 50 YEARS
RESIDING AT NO.110
C/O SHANTHA DAYANANDA
NEW EXTENSION, THUNGANAGAR
HEROHALLI VISHWANEEDAM POST
BANGALORE 560 091.
6. SRI SIDDARAJU
S/O KEMPANAGAIAH
AGED ABOUT 47 YEARS
RESIDING AT BHARATHIPURA
SOMAPURA HOBLI (DABASPET)
NELAMANGALA TALUK
BANGALORE RURAL DISTRICT.
7. THE LAND ACQUISITION OFFICER, KIDAB
SPECIAL LAND ACQUISITION OFFICE-2
NO.14/3, 1ST FLOOR
MAHARSHI ARVIND BHAVAN
C.F.C. BUILDING
BANGALORE 560 001. ... RESPONDENTS
(BY SRI RAVI H.K., ADVOCATE FOR
M/S.KANTHARAJ & ASSTS.FOR R1 TO R6;
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SRI H.L.PRADEEP KUMAR, ADVOCATE FOR
SRI BASAVARAJ V. SABARAD, ADVOCATE FOR R7]
THIS R.F.A. IS FILED UNDER ORDER 41 RULE 1 R/W
SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE
DATED 12.8.2013 PASSED IN O.S.NO.352/2011 ON THE FILE OF
THE SENIOR CIVIL JUDGE & JMFC., NELAMANGALA, ALLOWING
THE I.A.NO.6 FILED UNDER ORDER 7 RULE 11(d) OF CPC.
THIS R.F.A. COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Although the matter is listed for hearing on I.A.2/13 for vacating the interim order, I have taken up the matter for final disposal with the consent of the learned advocates appearing for the parties.
2. The facts of the case in brief are that the respondent No.1 is the father of the appellant - plaintiff and the respondent Nos.2 to 6. The schedule 'A' property measuring 1 acre 20 guntas was acquired for the purpose and benefit of the Karnataka Industrial Areas Development Board ('KIADB' for short). The seventh respondent - Special Land Acquisition Officer of KIADB passed the award for a sum of `67,50,000/- for the acquisition of schedule 'A' property.
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3. The appellant represented to the respondent No.7 that she is entitled to 1/7th share in the said compensation amount. As she did not get the amounts, she filed the suit for partition. The respondent Nos.1 to 6 filed the written statement. They also made I.A.No.6 invoking Order VII Rule 11(d) of C.P.C. for the rejection of the plaint. On considering the averments contained in the plaint and the written statement and on hearing the rival contentions urged on behalf of the parties, the Trial Court, by its order, dated 12.8.2013 allowed the said I.A.No.6. As the plaint is rejected by virtue of the said order, the plaintiff has come in appeal before this Court.
4. Sri Gururaj Kulkarni, the learned counsel for the appellant submits that the appellant is a member of the joint family consisting of the first respondent - defendant and the respondent Nos.2 to 6. He submits that the land in question was granted by the Government to the family of the first defendant, that is, for the benefit of the members of the family, which included the appellant too.
5. Sri Gururaj Kulkarni submits that the respondent No.3 died during the pendency of the suit. Thereafter, the appellant 5 has modified her claim from 1/7th to 1/6th share. According to him, the appellant - plaintiff is entitled to `11,25,000/-.
6. The learned counsel sought to draw support from the Apex Court's judgment in the case of BHANU RAM v. JANAK SINGH & ORS., reported in AIR 2012 SC 3023, wherein it is held that the application for the rejection of the plaint has to be considered only on the basis of the averments made in the plaint. The pleas taken in the written statement are totally irrelevant.
7. The learned counsel also read out Head Note 'C' from this Court's decision in the case of VERUPEGOWDA AND ANOTHER v. SHANKAREGOWDA AND ANOTHER, reported in ILR 2009 KAR 1867. It is extracted hereinbelow:-
"(C) KARNATAKA LAND REFORMS ACT, 1961- SECTION 2(11), 2(23) 4, 44 and 45 - Statutory provisions - effect of vesting - Registration in the name of a family member - Concurrent error committed by the Courts below in not understanding the relevant statutory provisions - HELD, when the occupancy right is ordered to be registered in the name of a member of the family whose name appeared in the record of rights or in any other public or revenue record, it would enure to the benefit of the entire family. The moment occupancy 6 right is registered or granted, such property become partible. It is only the vested land under the Act, which can be ordered to be granted. The land in respect of which occupancy rights are registered/granted, the same would be with reference to the date of vesting in the State Government though the orders are passed by the tribunal subsequently. ON FACTS HELD, The Courts below have not considered the relevant statutory provisions and the effect of the vesting of the land in the State Government and its registration thereafter in the name of a family member. Hence, there is apparent illegality committed, which calls for interference."
8. Sri H.K.Ravi, the learned counsel appearing for M/s.Kantharaj & Associates for the respondent Nos.1 to 6 submits that the appellant is not a member of the first respondent's joint family. The land in question is granted to the first respondent by taking the sale consideration from him. As the grant-order, mutation entry and record of rights are clearly indicative that the property in question is a self-acquired property of the first respondent, no enquiry is called for. He submits that under Section 133 of the Karnataka Land Revenue Act, 1964, the entries in the revenue records have a presumptive value that they are valid.
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9. Sri H.L.Pradeep Kumar, the learned counsel appearing for Sri Basavaraj V. Sabarad for the respondent No.7 submits that the award is passed and that the amount would be disbursed depending on the outcome of the proceedings before this Court.
10. I notice with concern that the third defendant is shown as the respondent No.3 in the cause-title, but with a note that he is not made a party, because he is dead. On being asked whether she has left behind any legal representatives, Sri Gururaj Kulkarni, the learned counsel for the appellant says that she died unmarried and that she has not left behind her any legal representatives. There is no question of her being made a party to these proceedings or being dropped from the suit proceedings, as she died during the pendency of the suit proceedings. I therefore hold that suit as against the defendant No.3 stands abated.
11. The scope for rejecting the plaint in exercise of the power conferred by Order VII Rule 11(a) of C.P.C. is rather limited. In I.A.No.6, no specific sub-clause of Rule 11 is invoked. However, in the application it is prayed that the plaint be 8 rejected, as there is no cause of action. Such a request can be considered only within the ambit of Rule 11(a) of Order VII. The provisions contained in Order VII Rule 11(a) reads as follows:
"11. Rejection of plaint. - The plaint shall be rejected in following cases:-
(a) where it does not disclose a cause of action."
12. The cause of action should be culled out on a conjoint reading of all the paragraphs of the plaint. Whether there is a cause of action or not is to be determined on the assumption that every averment in the plaint is true. In saying so, I am fortified by the decision of Manipur High Court in the case of THOUNAOJAM NIMGOL INDRANI DEVI AND OTHERS v. THE MUNICIPAL BOARD OF IMPHAL AND OTHERS reported in AIR 1958 MANIPUR 27. All the statements are to be taken as true for argument on preliminary issue as to whether the plaint discloses the cause of action or not.
13. When an application is filed for the rejection of the plaint on the ground that there is no cause of action, the Court is required to look at the plaint and the documents accompanying the plaint only and nothing else. The defence of the defendants should not be examined at this stage. Therefore, examining the 9 defence of the defendants coupled with the accompanying documents and thereby rejecting the plaint is not proper.
14. In the case of M/S. ZUARI INDUSTRIES LTD. CO. v. COMMUNIDADE OF SANCOALE AND OTHERS reported in AIR 2007 (NOC) 97 Bombay High Court held that the Court has to ascertain whether the plaint discloses the cause of action or not and not to ascertain whether the plaintiff would be entitled to get the relief asked for in the facts and circumstances of the case.
15. The perusal of the impugned order reveals that the Trial Court has gone by the averments made in the written statement. Based thereon it has come to the conclusion that suit schedule 'A' property is the self-acquired property of the first respondent. The approach adopted by the Trial Judge is not sound.
16. The plain reading of the plaint does not reveal that there are no triable issues at all. Whether the suit schedule 'A' property is the self-acquired property of the first defendant, whether the appellant is entitled to any share therein or in the 10 compensation-amount determined on its compulsory acquisition, etc. are all the disputed questions of facts, which can be resolved only on holding the trial. Similarly, even when I find the substance in the submission urged on behalf of the contesting respondents that the entries in the revenue records have the presumptive value, what cannot be denied is that the presumptive value can always be rebutted and a party cannot be denied of an opportunity to rebut it.
17. However, on holding the enquiry, if the Trial Court finds that the appellant - plaintiff has filed the suit advancing the claims without there being any basis for the same, it may consider imposing the exemplary costs on the appellant - plaintiff.
18. For all the aforesaid reasons, I allow this appeal by setting aside the order under appeal and remand the matter to the Trial Court for enquiry in accordance with law.
19. I.A.No.6 stands rejected. The Trial Court is directed to hold the enquiry in accordance with law. The parties are directed to appear before the Trial Court on 12.2.2014 without waiting for 11 any notice from the Trial Court. The parties are directed to co- operate with the Trial Court in the speedy disposal of the mater. The matter shall be disposed of as expeditiously as possible and in any case within an outer limit of one year from 12.2.2014.
20. Sri Gururaj Kulkarni, the learned counsel for the appellant fairly indicates his no objection to the release of 5/6th of the compensation-amounts to the defendants, who are entitled to receive the same. It is open to the respondent No.7 [SLAO, KIADB (defendant No.7 originally)], to release the compensation-amounts to the other claimants, but he shall not disburse/release 1/6th of the compensation-amount to any party till the matter is adjudicated by the Trial Court in O.S.No.352/2011.
Sd/-
JUDGE VGR/MD