Karnataka High Court
Sri Sathish vs Sri K N Nagaraj on 20 December, 2024
Author: K Somashekar
Bench: K Somashekar
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IN THE HIGH COURT OF KARNTAKA AT BENGALURU
DATED THIS THE 20TH* DAY OF DECEMBER, 2024
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
REGULAR FIRST APPEAL NO. 2424 OF 2024(PAR/DEC/INJ)
BETWEEN
1. SRI SATHISH
S/O LATE B.K.NARAYANASWAMY
AGED ABOUT 49 YEARS
2. SRI.N.RAJAKUMAR
S/O LATE B.K.NARAYANASWAMY
AGED ABOUT 54 YEARS
THE APPELLANTS 1 AND 2 ARE
RESIDING AT KEMPALINGAPURA VILLAGE,
KASABA HOBLI, UGANAVADI POST,
DEVANAHALLI TALUK,
BENGALURU RURAL DISTRICT - 560 110.
...APPELLANTS
(BY SRI. R.S. RAVI, SENIOR COUNSEL FOR
SRI. CHANDRAPPA.V, ADVOCATE)
AND
1. SRI. K.N.NAGARAJ
S/O LATE B.K.NARAYANASWAMY
AGED ABOUT 69 YEARS
2. SRI.RAJGOPAL
S/O LATE B.K.NARAYANASWAMY
AGED ABOUT 61 YEARS
*corrected vide chamber order dated 27.01.2025
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THE RESPONDENT 1 AND 2 ARE
RESIDING AT KEMPALINGAPURA VILLAGE,
KASABA HOBLI, UGANAVADI POST,
DEVANAHALLI TALUK,
BENGALURU RURAL DISTRICT - 560 110
3. SRI. A.PRAKASH (HUF)
S/O LATE THIMME GOWDA ALIAS ANNE GOWDA
RESIDING AT NIDAGHATTA VILLAGE,
ATHAGUR HOBLI, MADDUR TALUK,
MANDYA DISTRICT - 571 433
4. M/S AFFARAL GLOBAL FASHION PVT LTD.
A PRIVATE LIMITED COPYH REGISTERED UNDER
THE COMPAIES ACT, REPRESENTED BY ITS
MANAGING DIRECTOR
SRI. GOVIND B RAJU
S/O N.BALAKRISHNA
AGED ABOUT 32 YEARS
OFFICE AT NO.11/34,
2ND FLOOR, PALACE CROSS ROAD,
BENGALURU - 560 020.
...RESPONDENTS
(BY SRI. BIPIN HEGDE, ADVOCATE FOR
SRI. SHERRIL ADAPA, ADVOCATE FOR C/R4
SRI. KEERTHI HEGDE, ADVOCATE FOR R1
SRI. SHRIKANTH, ADVOCATE FOR R3
SRI. HARISH H.S, ADVOCATE FOR R5)
THIS RFA IS FILED UNDER ORDER 41 RULE 1 R/W SEC. 151 OF
CPC., AGAINST THE ORDER DATED 1.10.2024 PASSED ON IA NO.IX IN
ORDER OF SENTENCE NO.1293/2023 ON THE FILE OF III ADDITIONAL
SENIOR CIVIL JUDGE AND JMFC, DEVANAHALLI, C/C IIND ADDITIONAL
CIVIL JUDGE AND JMFC, DEVANAHALLI, ALLOWING THE IA NO.9 FILED
UNDER ORDER 7 RULE 11(a) AND (d) OF CPC. FOR REJECTION OF
PLAINT.
THIS APPEAL HAVING BEEN RESERVED FOR JUDGMENT COMING
ON FOR PRONOUNCEMENT THIS DAY, K. SOMASHEKAR, J., MADE THE
FOLLOWING:
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CORAM: HON'BLE MR JUSTICE K SOMASHEKAR
and
HON'BLE MR JUSTICE RAJESH RAI K
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE SOMASHEKAR) This Regular First Appeal is filed challenging the order passed in I.A.No.9 filed by the respondents under Order 7 Rule 11(a) and (d) of CPC in O.S.No.1293/2023 filed by the appellants before the III Additional Senior Civil Judge & JMFC, Devanahalli and C/C of II Additional Senior Civil Judge & JMFC, Devanahalli, whereby, the learned Civil Judge allowed I.A.No.9 and consequently, rejected the plaint vide order dated 01.10.2024.
2. For the sake of convenience, the parties are referred to as per their ranking before the trial Court. The appellants are the plaintiffs and respondents are the defendants.
The abridged facts of the case are as below:
3. The plaintiffs filed a suit for partition seeking share in the suit schedule property. Further, they also sought to challenge the sale deed dated 07.11.2019 executed by defendant No.1 in favour of defendant No.3 in respect of suit schedule property which is not binding on the plaintiffs' share. Also, it was sought to declare that the sale deed 4 dated 31.12.2021 executed by defendant No.3 in favour of defendant No.4 with respect to the suit schedule property as not binding on the share of the plaintiffs'. As per the averments enumerated in the plaint, one B.K.Narayanaswamy was propositus of the Hindu Undivided Joint Family. The plaintiffs No.1 and 2 and defendant No.2 are the brothers and children of B.K.Narayanswamy from his second wife, however, defendant No.1 is the son of B.K.Narayanswamy from his first wife. Defendants No.3 and 4 are the purchasers of the suit schedule property. It was further reveals that, B.K. Narayanaswamy and his children were in unauthorized occupation of the suit schedule property. During B.K. Narayanaswamy's lifetime, defendant No.1 filed application for the grant of suit schedule property. Accordingly, memorandum was issued in the name of defendant No.1 in the year 1995 and Saguvali Chit was issued in the name of defendant No.1 on 05.06.1998. Subsequently, revenue documents were mutated in his name. It was further contended that, the plaintiffs and defendants No.1 and 2 are in joint possession and enjoyment of the suit schedule property and that they are co-parceners. Against this backdrop, B.K. Narayanaswamy promised and assured to effect partition and allot appropriate share, however, he expired on 11.09.2021. Defendant No.1 being the eldest member assured to effect partition. Following the eve of Gowri Ganesha 5 in 2023, difference of opinions surfaced between the plaintiffs and defendants No.1 and 2. Thereafter, plaintiffs on receiving necessary documents learnt about certain transactions that had taken place involving the suit schedule property. The sale deed was executed by defendant No.1 in favour of defendant No.3 with respect to the suit property. Without the knowledge and consent of the plaintiffs this property was eventually sold by defendant No.3 to defendant No.4. The alleged sale transactions have been initiated to deprive the rights of the plaintiffs.
4. Hence, the plaintiffs being the part and parcel of the Hindu Undivided Joint Family, initiated the suit in O.S.No.1293/2023 with respect to the suit schedule properties against the defendants for the aforementioned reliefs.
5. Pursuant to the suit summons, the defendants No.1 to 4 appeared through their respective counsel. Defendants No.1 and 2 have not filed the written statements. However, defendants No.3 and 4 have filed individual written statements refuting the averments enumerated in the plaint submitting that, defendant No.1 alone was in unauthorized occupation of the suit schedule property and further reiterated that no one aside from him was in unauthorized occupation of the suit schedule 6 property. An application for grant of suit schedule property was filed by defendant No.1 alone. Upon enquiry, the Revenue Inspector has filed a report stating that the defendant No.1 has been cultivating the suit schedule property for the last 10-15 years prior to the initiation of the suit. It has been categorically enumerated in the said report that the villagers have unanimously consented to grant the suit schedule property in favour of defendant No.1. Accordingly, it was recommended to regularize and grant the suit schedule property in favour of the defendant No.1 and thereafter, the defendant No.1 paid Rs.2,960/-. Subsequently, upon payment, Saguvali Chit in respect of the suit property was granted in the name of the defendant No.1 dated 05.06.1998. All the records categorically depicts that the defendant No.1 in his individual capacity (not on behalf of the joint family) had filed an application and the suit schedule property was thus granted in favour of defendant No.1 alone. Likewise, the khatha was transferred in his name as per MR.No.1/99-2000. Hence, the schedule property in question is the absolute and self-acquired property of defendant No.1. The plaintiffs and the defendant No.2 do not have any right, title, interest or whatsoever with respect to the suit schedule property.
6. It is further enumerated in the written statement that, defendant No.1 entered into an agreement of sale dated 23.08.2013 in 7 favor of Prakruti Nest, represented by its Proprietor Sri. N. Balakrishna in respect of the suit schedule property. The plaintiff No.2 is a witness to the said agreement of sale, however, he never opposed the execution of the aforesaid deed which making it abundantly clear that the suit schedule property was never thought of as a part of Hindu Undivided Joint Family property and thus the same is considered self- acquired property of defendant No.1. This further establishes that the plaintiff No.2 had sufficient knowledge of the attempt made by defendant No.1 to alienate the suit schedule property on 23.08.2013. The said agreement of sale stood repudiated/cancelled and subsequent sale deed dated 25.04.2019 was executed by defendant No.1 in favour of defendant No.3.
7. Further, on 09.02.2019 in RRT (Dis) No.113/2019 on the file of the Tahsildar, Devanahalli Taluk, Devanahalli, (the Respondent in the said proceedings) who is the plaintiff No.1 (Sri Sathish S/o B.K. Narayana Swamy) consented for the change of khata in favor of the defendant No.3.
8. The suit was filed on 08.12.2023 i.e., more than 4 years from the date of execution of the sale deed stated supra. Accordingly, as stipulated under Article 59 of the Limitation Act, either to cancel or 8 to challenge a sale deed, a suit has to be instituted within the period of three years from the date of execution of the sale deed. Similarly, as per Article 58, any other declaration shall be obtained within 3 years when the right to sue first accrues. Hence the suit is barred by limitation.
9. Subsequently, defendant No.3 executed a sale deed dated 31.12.2021 with respect to the suit schedule property in favour of defendant No.4. Accordingly, defendant No.4 obtained a conversion of the suit schedule property from agriculture to non-agricultural purposes and additionally obtained a plan sanction from BIAPPA to form a residential layout where development activities in the suit property have taken place.
10. This being the scenario, plaintiff No.2 filed a suit in O.S.No.1008/2023 on 23.09.2023 against the defendant No.1 and other defendants including the plaintiff No.1 for partition and separate possession with respect to the suit schedule property. The said suit was dismissed as not pressed on the memo filed by the plaintiff. However, the plaintiff neither sought liberty to file fresh suit nor the Trial Court reserved liberty to the plaintiff to file a fresh suit and accordingly dismissed the suit by order dated 06.10.2023. Following which, the 9 plaintiffs filed the instant suit on 08.12.2023. However, the plaintiffs have intentionally concealed the filing of suit in O.S.No.1008/2023 and its dismissal amounting to suppression of facts.
11. Further, the plaintiffs intentionally concealed the partition in the family which was initiated in the year 2000 with respect to other properties and that the suit schedule property was deliberately excluded in the said partition as it was exclusively self-acquired property of defendant No.1. Upon entering into the Partition Deed dated 10.05.2000, the joint family status came to be ceased. On careful perusal of the aforesaid Partition Deed, there is no mention of future partition with respect to the suit schedule property. As there is no ambivalence, this verily establishes that there was neither an idea nor intention to claim any share or divide suit schedule property among other members of the family in future. The continuous long standing khatha in the name of the defendant No.1 till 2019 when the sale deed was executed in favour of defendant No.3 makes it abundantly clear that there was no intention among the members of the family to divide the suit schedule property. With utmost earnestness it was believed that the suit schedule property was the absolute and self-acquired property of the defendant No.1.
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12. After submitting the above written statement, the defendant No.4 filed I.A.No.9 for rejection of plaint by reiterating the above contents of written statement. However, the said application was opposed by the plaintiff by filing an objection.
13. The Trial Court upon perusal of the pleadings of the parties as enumerated in the plaint, written statement, I.A.No.9 and objections, framed the following point for consideration.
i) Whether the defendant No.4 has made out the grounds to allow the application filed under Order 7(d) of CPC by rejecting the plaint as it is barred by law of limitation?
14. On hearing the learned counsel for the parties and on assessment of the oral submissions and documents placed by both the parties, the trial Court answered point No.1 in the affirmative and allowed the I.A.No.9 by the defendant No.4 under Order 7 Rule 11(a) and (d) of CPC and rejected the plaint on non-disclosure of cause of action and barred by limitation. Aggrieved by the said order, the plaintiffs sought the instant appeal.
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15. Heard the learned Senior counsel Sri R.S.Ravi for the plaintiffs/appellants so also learned counsel Sri Bipin Hegde for defendant/respondent No.4.
16. The primary contention of the learned counsel for the appellants is that the trial Court erroneously came to conclusion that, the suit schedule property was granted in favour of defendant No.1 in the year 1994 and the same was excluded when the family entered into partition in the year 2000. Besides, there existed no ambiguity and mention of the suit schedule property in the said partition, the appellants cannot seek for the relief as prayed in the plaint after lapse of 23 years. He contended that, the trial Court failed in considering the settled law that the question of limitation is a mixed question of law and fact requiring not merely the examination of plaint but also other documents placed along with the plaint. Further, without giving due opportunity to either of the parties to lead the evidence on the issue of limitation, the Court cannot reject the plaint on the ground that the suit is barred by law of limitation. By emphasizing on Article 110 of Limitation Act he contended that, the sale deed executed by defendant No.1 in favour of defendant No.3 by excluding the plaintiffs who are the members of the Hindu Undivided Family, therefore Article 110 of the 12 limitation act gets attracted and that 12 years is the limitation period to file the suit.
17. He further contended the trial Court erred while concluding that, on perusing the plaint averments, the suit filed by the appellants was without an appropriate cause of action. Even upon skimming through the entire plaint averments he was unable to establish the cause of action. Therefore the plaint is liable to be rejected under Order VII Rule 11 (a) and (d) of CPC. Accordingly, the learned counsel for the appellants have categorically pleaded in paragraphs No.6 11 of the plaint regarding the cause of action; whether there is any cause of action or not to file a suit is determinable solely on recording the evidence and upon hearing the parties. Hence the plaint cannot be rejected by exercising power under Order VII Rule 11 (a) of CPC.
18. The erudite trial Court Judge has grossly erred in considering the legal aspects of the application filed under Order VII Rule 11 of CPC. It is the innate duty cast upon the Court to look into the averments in the plaint and the averments enumerated in the plaint should be read comprehensively to figure out whether there arises cause of action or whether the suit is barred by law. Under such circumstances, the case of the parties shall be adjudicated by 13 conducting trial. The trial Court has failed to consider that, the appellants have categorically stated in paragraphs No.6 and 11 of the plaint that the appellants have demanded to effect partition in respect of the suit schedule property and the respondents did not take interest to effect the partition and then only they have applied for the RTC extracts and after obtaining the same they came to know about the transaction that the 1st respondent had executed the sale deed in favour of the 3rd respondent and in turn sold the suit schedule property in favour of the 4th respondent in the last week of July- 2023, though the appellants have categorically pleaded that they came to know about the transaction in the last week of July-2023 after the execution of sale deed by defendants No.3 to 4. Albeit, defendant No.1 being the kartha of the family, filed an application seeking grant of the property in his name, however, the mutation records of the said suit schedule property did not reflect his name, as such the plaintiffs were under false impression that the suit schedule property was in the possession of defendant No.1 and that the plaintiffs had no knowledge of the sale deed executed by defendant No.1 in favour of defendant No.3. Hence, viewed from any angle the trial judge is erred in allowing I.A.No.9. 14
19. To buttress his argument, he relied on the following judgments:
i. Kum.Geetha vs. Nanjundaswamy reported in AIR 2023 SC 5516;
ii. Biswanath Banik vs. Sulanga Bose reported in AIR 2022 SC 1519;
iii. M/s. Frost International Limited vs. M/s. Milan Developers and Duilders (P) Limited reported in AIR OnLine 2022 SC 437;
iv. Shakti Bhog Food Industries Limited vs. Central Bank of India reported in AIR 2020 SC 2721;
v. Smt.Ashwathamma vs. Smt.Girijamma reported in 2019 (1) AKR 736;
vi. Urvashiben and Another vs. Krishnakant
Manuprasad Trivedi reported in 2019 (1)
Kar.L.R.228 (SC);
vii. Smt.Prameela N., vs. L.Mahadevaiah reported in 2017 (2) AKR 488;
viii. Hardesh Ores (P) Limited vs. Hede and Company reported in (2007) 5 SCC 614;
ix. Smt.Sonubai and Others vs. Smt.Susheela and Others in RFA No.100264/2016 (PAR & SEP. POSSN.) dated 21.02.2018.
Accordingly, he prays to allow the appeal.
20. Per contra, learned counsel for Respondent No.4 submits that, the trial Court rightly allowed I.A.No.9 in a well reasoned order which does not call for any interference. He submitted that, the 15 plaintiffs admitted in their statement of objection filed to I.A.No.9 that the plaintiffs, defendants No.1 and 2 and their father entered into panchayat palupatti on 10.05.2000 in respect of their joint family properties. Hence, it is clear there was a prior partition between the family members. He further contended that the plaintiffs have intentionally suppressed the material facts in the plaint in order to create an illusive cause of action. As a matter of fact, till 2009, the suit schedule property was a Government Gomala land and defendant No.1 filed the application for grant of the same in his personal capacity. Subsequently, the said land was granted in his favour and the revenue documents were mutated in his name. Accordingly, he being an absolute owner of the suit schedule property, entered into a agreement of sale with Prakruthi Nest on 28.03.2013 by way of registered sale agreement. The plaintiff No.2 was a witness for the said sale agreement; however, the said sale agreement was subsequently cancelled. Thereafter, defendant No.1 executed an absolute sale deed with defendant No.3 on 25.04.2019; the father of plaintiffs and defendants No.1 and 2 was a witness for the said sale deed. Further, after execution of the sale deed during the course of mutation entries RRT proceedings were held in RRT (Dis) No.113/2019 on the file of Tahsildar, Devanahalli Taluk, Devanahalli; the plaintiff No.1 has given 16 his consent for change of khatha in favour of defendant No.3. Under such circumstance, viewed from any angle the cause of action to file the suit arose in the year 2019 and the limitation period to file the suit is 3 years under Article 58 of the Limitation Act. However, the suit is filed in the year 2023, which is barred by limitation and there is no cause of action for the suit. Accordingly, the trial Court rightly allowed I.a.No9 filed by the defendant No.4.
21. He further contended that, on reading the plaint it is relatively apparent that there is no cause of action as it is barred by law, the plaint is liable to be rejected. Clever drafting of the plaint to create an illusive cause of action should not be entertained by the Courts. By elaborating his submission, he submitted that, on perusal of the plaint averments the plaintiffs have stated that the cause of action for the suit arose on the last week of July 2023 i.e., the date on which the plaintiffs acquired knowledge upon perusal of the revenue entries with respect to suit schedule property based on the sale deed dated 25.08.2023. However, in the prayer the plaintiffs have prayed the Court to declare the registered sale deed dated 07.11.2019 executed by defendant No.1 to defendant No.3 in respect of suit schedule property as not binding on them. This clever drafting of the plaint indicates that 17 in order to create an illusive cause of action, the plaintiffs intentionally suppressed the knowledge of the sale deed dated 07.11.2019 executed by defendant No.1 in favour of defendant No.3. He further contended that, the prayer sought by the plaintiffs for the relief of partition and separate possession of their legitimate 1/4th share in the suit schedule property does not hold good unless the Court declares the registered sale deed executed by defendant No.1 in favour of defendant No.3 dated 07.11.2019 as not binding on the plaintiffs.
22. The learned counsel as taken us through the sale deed dated 07.11.2019 and the notice issued by the revenue department to the plaintiffs while changing the khatha of the suit schedule property in the name of defendant No.3. According to the learned counsel, the sale deed dated 07.11.2019 primarily amounts to constructive notice to all members of the joint family as the same is a registered document. By emphasizing on the explanation 1 to Section 3 of Transfer of Property Act he submitted that, should a transaction relating to the immovable property needs to be affected by registered instrument, under law, then the registration of the document will be deemed as a constructive notice. Hence, according to him, in that view of the matter also it should be construed that the plaintiffs had relevant knowledge of the 18 sale deed dated 07.11.2019. Nevertheless, the plaintiff No.2 initiated a suit against the defendants No.1 and 2 in O.S.No.1008/2023 seeking a similar relief as claimed in the instant suit, the same was withdrawn and subsequently, the present suit i.e., O.S.No.1293/2023 was instituted. Under such circumstances, the plaintiffs by suppressing all these material facts approached the Court by filing this frivolous suit without any cause of action as such the trial Court rightly allowed I.A.No.9. Accordingly, he prays to dismiss the appeal.
23. In order to buttress his arguments, he relied the following judgments:
i. Madanuri Sri Ramachandra Murthy vs. Syed Jalal reported in (2017) 13 SCC 174;
ii. T.Arivandandam vs. T.V.Satyapal and Another reported in (1977) 4 SCC 467;
iii. K.Akbar Ali vs. K.Umar Khand and Others in SLP (Civil) No.31844/2018;
iv. Sopan Sukhdeo Sable and Others vs. Assistant Charity Commissioner and Others reported in (2004) 3 SCC 137;
v. Raghwendra Sharan Singh vs. Ram Prasanna
Singh reported in (2020) 16 SCC 601;
vi. M/s Durga Projects and Infrastructure Pvt. Ltd.,
vs. Sri S Rajagopal Reddy and Others reported in ILR 2019 KAR 4739;
19vii. Khatri Hotels Pvt. Ltd and Another vs. Union of India and Another reported in (2011) 8 SCC 126;
viii. Janardhanam Prasad vs. Ramdas reported in (2007) 15 SCC 174;
ix. Nusli Neville Wadia vs. Ivory properties and Others reported in (2020) 6 SCC 557;
x. Rajendra Bajoria and Others vs. Hemant Kumar Jalan and Others reported in (2022) 12 SCC 641;
xi. Dahiben vs. Arvindbhai Kalyanji Bhanusali (Garja) reported in (2020) 7 SCC 366.
24. Having heard the learned counsel for the parties, the sole point arising for our consideration is:
"Whether the trial Court has erred while allowing I.A.No.9 thereby rejecting the plaint in O.S.No.1293/2023 and, if any, interference is required in the impugned order?"
25. On perusal of the plaint averments, it is stated that, the cause of action for the suit arose on 25.08.2023 so also on the last week of July 2023 i.e., the date on which the last demand was made by the plaintiffs to the defendants No.1 to 4 seeking their legitimate share of the suit schedule property. So also on 22.11.2023 the date on which the defendant No.4 was making efforts to alienate the suit schedule property. On further perusal of the prayer sought by the plaintiffs in the plaint, it is prayed to declare the registered sale deed dated 07.11.2019 20 executed by defendant No.1 in favour of defendant No.3 in respect of suit schedule property as not binding on the plaintiffs' share; also to the subsequent sale deed dated 31.12.2021 and for partition and separate possession of the suit schedule property. On wary perusal of the prayer sought by the plaintiffs in the plaint with the facts described in the statement of objection filed by the plaintiffs in I.A.No.9, and on perusal of the written statement filed by the defendants, it is clear that the plaintiffs have suppressed the facts, by cleverly drafting the plaint to create an illusive cause of action i.e., in the year 2023. Thereby, praying to seek a decree of partition and separate possession of the suit schedule property. To substantiate this, upon careful examination of the statement of objection filed by the plaintiffs to I.A.No.9, it could be gathered that, the plaintiffs, defendants No.1 and 2 and their father had entered into Panchayat Palupatti on 10.05.2000 with respect to joint family properties. This has been categorically admitted by the plaintiffs. It is further not disputed till the year 2008-09, the khatha of the suit schedule property was standing in the name of Government Gomala. Based on the application for grant of the said suit schedule property filed by defendant No.1, the same was granted in his name in the year 2010. The defendant No.1 filed the application for grant of suit schedule property in his name in his individual capacity and not as a member of 21 the joint family. The said grant of suit land in the name of defendant No.1 is not challenged by the plaintiffs till the year 2023. Nevertheless, the prior partition between the family members in the year 2000 is not in dispute. It is also pertinent to observe that after suit property granted in favour of defendant No.1, though the suit was filed by the plaintiffs against the defendants No.1 and 2 in O.S.No.1008/2023 and the same was withdrawn by them without reserving liberty to file a fresh suit. In such circumstances, the present suit is also hit by Section 11 of CPC, res judicata. On careful perusal of the averments of written statement, the same depicts that, after the grant of the suit land in favour of defendant No.1, he executed a registered sale agreement with Prakruthi nest on 28.03.2013. The plaintiff No.2 was a witness for the said sale agreement, however, the said sale agreement did not materialise and subsequently stood repudiated. Thereafter, the defendant No.1 executed an absolute sale deed with defendant No.3 on 25.04.2019. The father of plaintiffs and defendants No.1 and 2 was a witness to the said sale deed. Further, following the execution of the sale deed during the course of mutation entries RRT proceedings were held in RRT (Dis) No.113/2019 on the file of Tahsildar, Devanahalli Taluk, Devanahalli; the plaintiff No.1 gave his consent for change of khatha in favour of defendant No.3. As rightly contended by the learned 22 counsel for the respondent the plaintiffs had explicit knowledge about the sale deed executed by defendant No.1 in favour of defendant No.3 on 07.11.2019. In such circumstances, the plaintiffs ought to have filed the suit within 3 years from the date of execution of the said sale deed i.e., on or before 07.11.2023 as per Article 58 of the Limitation Act. Hence, we are of the view that the suit is barred by limitation.
26. As a matter of fact, unless the sale deed dated 2019 executed by the defendant No.1 in favour of defendant No.3 with respect to the suit schedule property is null and void and not binding on the plaintiffs, the prayer seeking partition and separate possession of their legitimate share does not arise. It is also not seriously disputed by the learned counsel for the plaintiffs that, after 2019 sale deed executed by defendant No.1 to defendant No.3, defendant No.3 in turn sold the property to defendant No.4 and defendant No.4 has currently developed the suit schedule property by forming a layout. As discussed supra, while changing the khatha of the suit schedule property, the RRT proceedings were held and this information was within the Plaintiffs knowledge, despite, they never objected for change of khatha in favour of defendant No.3. In such circumstances, it cannot be construed that the plaintiffs had no knowledge of the sale deed dated 07.11.2019. We 23 are well aware that the cause of action arise as a bundle of facts, but in the case on hand the plaintiffs intentionally suppressed the material facts in order to create cause of action which never existed. We do not agree with the arguments advanced by the learned Senior counsel for the appellants that, in the instant case, the limitation arose as per Article 110 of the Limitation Act instead of Article 58 of Limitation Act. On perusal of Article 110 of Limitation Act, the same reads thus:
Description of suit Period of Time from which
limitation period begins to
run
110. By a person Twelve When the exclusion
excluded from a joint years. becomes known to
family property to the plaintiff.
enforce a right to
share therein.
27. Admittedly, the plaintiffs have not been excluded from the joint family to enforce a right to share therein. Per contra, as discussed supra the plaintiffs were parties to the prior partition of the year 2010. Likewise, the sale deed executed in the year 2019 was well within their knowledge.
28. Hon'ble Apex Court in the case of Madanuri Sri Rama Chandra Murthy v. Syed Jalal, reported in (2017) 13 SCC 174, has observed and held that, on reading the plaint it discloses that, neither 24 there is cause of action nor that it is barred by any law, the plaint is required to be rejected. Clever drafting of the plaint to create an illusive cause of action should not come in the way of the Court to nip in the bud such bogus litigation. Paragraph No.7 of the judgment is hereunder quoted below:
"7. The plaint can be rejected under Order 7 Rule 11 if conditions enumerated in the said provision are fulfilled. It is needless to observe that the power under Order 7 Rule 11 CPC can be exercised by the Court at any stage of the suit. The relevant facts which need to be looked into for deciding the application are the averments of the plaint only. If on an entire and meaningful reading of the plaint, it is found that the suit is manifestly vexatious and merit less in the sense of not disclosing any right to sue, the Court should exercise power under Order 7 Rule 11 CPC. Since the power conferred on the Court to terminate civil action at the threshold is drastic, the conditions enumerated under Order 7 Rule 11 CPC to the exercise of power of rejection of plaint have to be strictly adhered to. The averments of the plaint have to be read as a whole to find out whether the averments disclose a cause of action or whether the suit is barred by any law. It is needless to observe that the question as to whether the suit is barred by any law, would always depend upon the facts and circumstances of each case. The averments in the written statement as well as the contentions of the defendant are wholly immaterial while considering the prayer of the defendant for rejection of the plaint. Even when the allegations made in the plaint are taken to be correct as a whole on their face value, if they show that the suit is barred by any law, or do not disclose cause of action, the application for rejection of plaint can be entertained and the power under Order 7 Rule 11 CPC can be exercised. If clever drafting of the plaint has created the illusion of a cause of action, the Court will nip it in the 25 bud at the earliest so that bogus litigation will end at the earlier stage."
29. Further, in the case of T Arivandandam v. T V Satyapal and Another reported in (1977) 4 SCC 467, has observed that, should clever drafting create an illusion the same has to be nipped in the bud. Paragraph No.5 of the judgment is hereunder quoted below:
"5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the Court repeatedly and unrepentantly resorted to. From the statement of the facts found in and judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must of thenber that if on a meaningful - not formal reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order VII, Rule 11, C.P.C taking care to see that the ground mentioned therein is fulfilled. And, if dever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order X, C.P.C. An activist Judge is the answer to irresponsible law suits. The trial Courts would Insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men, (Cr. XI) and must be triggered against them. In this case, the learned Judge to his cost realised what George Bernard Shaw remarked on the assassination of Mahatma Gandhi: It is dangerous to be too good."26
30. In the case of K Akbar Ali v. K Umar Khan & Others in SLP (Civil) No.31844/2018, it is held that, clever drafting creating an illusive cause of action is not permitted in law. Order 7 Rule 11 of CPC is not exhaustive; Court has inherent power to curtail frivolous and vexatious suits from consuming the Courts' valuable time. Paragraph No.7 of the judgment is hereunder quoted below:
"7. In any case, an application under Order VII Rule 11 of the CPC for rejection of the plaint requires a meaningful reading of the plaint as a whole. As held by this Court in ITC v. Debts Recovery Appellate Tribunal reported in AIR 1998 SC 634, clever drafting creating illusions of cause of action are not permitted in law and a clear right to sue should be shown in the plaint. Similarly the Court must see that the bar in law of the sult is not camouflaged by devious and clever drafting of the plaint. Moreover, the provisions of Order VII Rue 11 are not exhaustive and the Court has the inherent power to see that frivolous or vexatious litigations are not allowed to consume the time of the Court."
31. In the case of Sopan Sudhdeo Sable and Others v.
Assistant Charity Commissioner and Others reported in (2004) 3 SCC 137, held that the objective of Order VII Rule 11 of CPC is to keep out of Courts' preview irresponsible lawsuits/criminal law proceedings. The onus is on the Court to reject the plaint in any suit which either does not make out cause of action or which ex-facie appears to be 27 barred by limitation upon plain reading of the plaint. Paragraphs No.15, 17 and 18 are hereunder quoted verbatim for easy reference:
"15. There cannot be any compartmentalisation, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in Isolation. Although it is the substance arid not merely the form that has to be loaked into, the pleading has to be construed as it stands without addition or subtraction or words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadirigs taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair-splitting technicalities.
"17. Keeping in view the aforesaid principles, the reliefs sought for in the suit as quoted supra have to be considered. The real object of Order 7 Rule 11 of the Code is to keep out of Courts examination suits. Therefore, Order 10 of the Code is a tool in the hands of the Courts by resorting to which and by a searching party, in case the Court is prima facie of the view that the suit is an abuse of the process of the Court in the sense that it is a bogus and irresponsible litigation, the jurisdiction under Order 7 Rule 11 of the Code can be exercised. law of the irresponsible "18. As noted supra, Order 7 Rule 11 does not justify rejection of any particular portion of the plaint. Order 6 Rule 16 of the Code is relevant in this regard. It deals with "striking out pleadings". It has three clauses permitting the Court at any stage of the proceeding to strike out or amend any matter in any pleading i.e. (a) which may be unnecessary, scandalous, frivolous or 28 vexatious, or, (b) which may tend to prejudice, embarrass or delay the fair trial of the suit, or, (c) which is otherwise an abuse of the process of the Court.
32. In the case of Raghwendra Sharan Singh v. Ram Prasanna Sing (Dead) by LRs reported in (2019) SCC Online SC 372, held that, trial is not required to be conducted to determine whether a suit is barred by law or not. In every case, the law of limitation is not a mixed question of law and facts. Where a plaint ex-
facie indicates that, it is barred by law, the Court ought to exercise power under Order VII Rule 11 and reject the plaint, more particularly paragraphs No.15, 19, 29, 30 and 31, which are hereunder quoted for easy reference:
"15. It is vehemently submitted by the learned counsel appearing on behalf of the original plaintiff that the question of limitation is a mixed question of law and facts and for which the evidence is required to be led by the parties and therefore both, the High Court as well as the learned trial Court, rightly refused to reject the plaint at the threshold and in exercise of powers under Order 7 Rule 11 CPC.
"19. At the outset, it is required to be noted that the plaintiff has instituted the suit against the defendant for a declaration that the defendant has acquired no title and possession on the basis of the deed of gift dated 6- 3-1981 and that the plaintiff has got title and possession in the said 29 property. In the suit, the plaintiff has prayed for the following reliefs:
"A. That on adjudication of the facts stated above, it be declared that the defendant acquired no title and possession on the basis of the said showy deed of gift dated 6-3-1981 and the plaintiff has got title and possession in the said property.
B. That it be declared that the said showy deed of gift dated 6-3-1981 is not binding upon the plaintiff.
C. That the possession of the plaintiff be continued over the suit property and in case if he is found out of possession, a decree for recovery of possession be passed in favour of the plaintiff.
D. That the defendant be restrained by an order of ad interim injunction from transferring or encumbering or interfering with the possession of the plaintiff over the sult land, during the pendency of the suit.
E. That the cost of the suit be awarded to the plaintiff and against the defendant.
F. Any other relief or reliefs which the Court deems fit and proper, be awarded to the plaintiff and against the defendant."
"29. At this stage, It is required to be noted that, as such, the plaintiff has never prayed for any declaration to set aside the gift deed. We are of 30 the opinion that such a prayer is not asked cleverly. If such a prayer would have been asked, in that case, the suit can be said to be clearly barred by limitation considering Article 59 of the Limitation Act and, therefore, only a declaration is sought to get out of the provisions of the Limitation Act, more particularly, Article 59 of the Limitation Act. The aforesaid aspect has also not been considered by the High Court as well as the learned trial Court.
"30. Now, so far as the application on behalf of the original plaintiff and even the observations made by the learned trial Court as well as the High Court that the question with respect to the limitation is a mixed question of law and facts, which can be decided only after the parties lead the evidence, is concerned, as observed and held by this Court in Sham Lal, considering the averments in the plaint if it is found that the suit is clearly barred by law of limitation, the same can be rejected in exercise of powers under Order 7 Rule 11(d) CPC.
"31. In view of the above and for the reasons stated above, we are of the opinion that both the High Court as well as the learned trial Court have erred in not exercising the powers under Order 7 Rule 11 CPC and in not rejecting the plaint in exercise of powers under Order 7 Rule 11 CPC. For the reasons stated above, the impugned judgment and order passed by the High Court as well as the trial Court cannot be sustained and the same deserve to be quashed and set aside. Consequently, the impugned judgment and order passed by the High Court dated 12-3-2013 as well as the order passed by the Munsif, Danapur rejecting Order 7 Rule 11 application filed by the original defendant are hereby set aside. Consequently, the application submitted by the appellant herein-original defendant to reject the 31 plaint under Order 7 Rule 11 CPC is hereby allowed and the plaint, being Title Suit No. 19 of 2003 is hereby rejected. The present appeal is allowed accordingly in terms of the above. No costs."
33. M/s Durga Projects and Infrastructure Pvt. Ltd., Bengaluru v. Sri.S.Rajagopala Reddy and others reported in [(2019) 04 KCCR 3891], the preliminary cause of action had been shown to be 07.11.2019 and last cause of action was shown to be 25.08.2023, it does not necessarily imply that, last cause of action would be the cause of action. Limitation period would commence from the first cause of action. Once limitation period begins, it cannot be stopped by any force except by the force of law. The relief of Declaration sought i.e., the sale deeds are not binding is the primary relief, without the grant of the primary relief the subsequent relief seeking partition and separate possession cannot be granted. Paragraph No.8 of the judgment cited supra is hereunder quoted verbatim for easy reference:
"8. As regards limitation, in Para 38 of the plaint it is clearly stated that the cause of action arose on 18.03.2005, 3.2005, 15.06.2016. 18.03.2005 is the date when the first defendant executed a sale deed in favour of third defendant. That means, the cause of action first arose on 18.03.2005. This is a suit for declaration and possession. Just because possession is claimed, 12 years period of limitation is not available.32
Unless the sale deeds are set aside and the plaintiffs title is declared, they are not entitled to possession. Declaration is the main relief in the circumstances pleaded. Article 58 of the Limitation Act is applicable and therefore the limitation is to be reckoned from the first date; the subsequent dates pleaded do not extend the limitation period. In the case sar khatri Hotels Private Limited v. Union of India [(2011) 9 SCC 126.], it is held as below.
"30. While enacting Article 58 of the 1963 Act, the legislature has designedly made a departure from the language of Article 120 of the 1908 Act. The word 'first' has been used between the words 'sue' and 'accrued'. This would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. To put it differently, successive violation of the right will not give rise to fresh cause and the suit will be liable to be dismissed if it is beyond the period of limitation counted from the day when the right to sue first accrued".
34. In this regard, the respondent relied upon the decision of the Apex Court in Khatri Hotels Pvt. Ltd. And Another v. Union of India and Another reported in (2011) 9 SCC 126, more particularly paragraph No.30 thereof, is hereunder quoted verbatim for easy reference:
"30. While enacting Article 58 of the 1963 Act, the legislature has designedly made a departure from the language of Article 120 of the 1908 Act. The word "first"
has been used between the words "sue" and "accrued". This would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the 33 date when the right to sue first accrues. To put it differently, successive violation of the right will not give rise to fresh cause and the suit will be liable to be dismissed if it is beyond the period of limitation counted from the day when the right to sue first accrued."
35. Hence, on applying the dictums laid down in the aforementioned judgments/orders to the facts and circumstances of the instant case, we are of the view that the trial Court rightly allowed I.A.No.9 and rejected the plaint by concluding that the plaint does not disclose cause of action and the suit filed by the plaintiffs suffer from absence/dearth of cause of action. In such circumstances, the plaint is liable to be rejected under Order VII Rule 11(a) and (d) of CPC. We do not dispute the law laid down in the judgments relied by the learned counsel for the appellants/plaintiffs. We are well acquainted with the power conferred on the Court to terminate civil action, however, the conditions stipulated in Order VII Rule 11 are required to be strictly adhered to. Further, while dealing with Order VII Rule 11 of CPC, Court has to comprehensively the plaint averments and cannot reject the plaint merely skimming through a few lines/passages and thereby ignoring the other relevant parts of the plaint. However, in the instant case, on careful perusal of the plaint averments, it could be vehemently held that, the plaintiffs have intentionally suppressed material facts and 34 knowledge like the Partition executed among the Joint Family members in the year 2000 and also further suppressed the knowledge of sale deed executed by defendant No.1 in favour of defendant No.3 in the year 2019, by clever drafting to create an illusive cause of action. The said malevolent disposition of the plaintiffs should be nipped in the bud to prevent bogus litigation as upheld in catena of judgments discussed supra. Against this backdrop, we answer the point raised above in the negative and proceed to pass the following:
ORDER i. The RFA No.2424/2024 is dismissed.
Sd/-
(K.SOMASHEKAR) JUDGE Sd/-
(RAJESH RAI K) JUDGE HKV