Karnataka High Court
Archbishop Of Bangalore vs Smt C M Meenakshi on 27 June, 2024
Author: K. Natarajan
Bench: K. Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR. JUSTICE K. NATARAJAN
REGULAR FIRST APPEAL NO.683 OF 2024
BETWEEN:
1. ARCHBISHOP OF BANGALORE
AT NO.75, MILLERS ROAD,
BANGALORE - 560 046.
REPRESENTED BY GPA HOLDER
FR. SANTOSH ROYAN.
2. IMMACULATE CONCEPTION CHURCH
OFFICE AT DORESANIPALYA, BANNERGHATTA ROAD,
BANGALORE - 560 076.
REPRESENTED BY PARISH PRIEST,
FR. SANTOSH ROYAN.
... APPELLANTS
(BY SRI. UDAY HOLLA, SENIOR COUNSEL FOR
SRI. SUDHAKAR G.V., ADVOCATE)
AND:
1. SMT. C. M. MEENAKSHI
D/O LATE C. G. MUTHANNA,
AGED ABOUT 57 YEARS,
R/AT HOUSE NO.145, 3RD FLOOR,
R.K. GARDEN, 3RD CROSS,
RMV 2ND STAGE, BEHIND GOWRI
APARTMENT, NEW BEL ROAD,
BANGALORE - 560 054.
2. SRI. R. ANTHONY JOSEPH
S/O J. RAYAPPA,
AGED ABOUT 73 YEARS,
2
3. SRI. A. SAGAYA RAJ
S/O R. ANTHONY JOSEPH,
AGED ABOUT 51 YEARS,
4. S. PRAVEEN KUMAR
S/O A. SAGAYA RAJ,
AGED ABOUT 26 YEARS,
RESPONDENT NO.2 TO 4 ARE
R/AT: HOUSE NO. 18/13,
JYOTHI NILAYA, IIM POST,
DORESANIPALYA, B.G.ROAD,
BANGALORE - 560 076.
5. SRI. ARVIND GREGORY
S/O R. ANTHONY RAJ,
AGED ABOUT 48 YEARS,
R/AT NO.102, 5TH CROSS,
4TH MAIN ROAD, VIJAYA BANK EXTENSION,
BANNERGHATTA ROAD,
BANGALORE - 560 076.
6. SMT. MARIA GORETTI
D/O J. RAYAPPA,
AGED ABOUT 62 YEARS,
7. SRI. JOHN BOSCO
S/O J. RAYAPPA,
AGED ABOUT 64 YEARS,
8. SRI. SUNIL RAYAPPA
S/O JOHN BOSCO,
AGED ABOUT 34 YEARS,
RESPONDENT NO.6 TO 8 ARE R/AT:
DORESANIPALYA, BANNERGHATTA ROAD,
BANGALORE - 560 076.
3
9. JOSPHINE
D/O JOHN BOSCO,
SINCE DIED BY HER LRS
SRI. CHOURI RAJ,
S/O LATE ANTHONY SWAMY,
AGED MAJOR, R/ AT DORESANIPALYA,
BANNERGHATTA ROAD,
BANGALORE - 560 076.
10 . SRI. G.A.MANOHAR
S/O G.N.ASHWATHA REDDY,
AGED ABOUT 53 YEARS,
R/ AT GUNJUR VILLAGE, VARTHUR HOBLI,
BANGALORE EAST TALUK, BANGALORE.
11 . SRI. K. MUNIRAJU
S/O LATE M. KRISHNAPPA,
AGED ABOUT 46 YEARS,
R/ AT NO. 4121/P1, KODIHALLI VILLAGE,
OLD AIRPORT ROAD,
BANGALORE - 560 048.
... RESPONDENTS
(BY SRI. KESHAV M. DATAR, ADVOCATE FOR C/R1 TO R8;
VIDE ORDER DATED:30/5/2024, NOTICE TO R9 IS
DISPENSED WITH;
R10 & R11 ARE SERVED, BUT UNREPRESENTED)
THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 OF CPC, AGAINST THE ORDER DATED
15.03.2024 PASSED ON I.A.NO.3 IN OS.NO.26246/2023 ON
THE FILE OF THE LXXIII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, MAYO HALL UNIT, BENGALURU,
ALLOWING THE I.A.NO.3 FILED UNDER ORDER 7 RULE
11(a) AND (d) R/W SEC.151 OF CPC.
THIS REGULAR FIRST APPEAL HAVING BEEN HEARD
AND RESERVED FOR JUDGMENT ON 12.06.2024 THIS DAY,
THE COURT PRONOUNCED THE FOLLOWING:
4
RESERVED FOR ORDERS ON: 12.06.2024
PRONOUNCED ON : 27.06.2024
JUDGMENT
This appeal is filed by the appellants/plaintiffs under Section 96 of CPC for setting aside the order passed by the Additional City Civil and Sessions Judge Bangalore in O.S. No.26246/2023 dated 15.03.2024 for having rejected the plaint under Order VII Rule 11
(a)(d) and Order VII Rule 11(b) of CPC read with Section 151 of CPC.
2. Heard the learned senior counsel for the appellants and learned counsel for respondents.
3. The appellants were the plaintiffs and the respondents were defendants before the trial Court.
4. The ranks of the parties before the trial Court is retained for the sake of convenience. 5
5. The plaintiffs filed the suit for declaration and injunction, contending that they are the absolute owner of the schedule property and other lands attached to the schedule property. The 1st plaintiff acquired the land in Sy. No.152/Bilikeri village measuring 24 acres 33 guntas and the same was registered before the Sub-Registrar by sale deed dated 13.8.1878. The plaintiffs are also running a school in the name of St.Peters Primary and High School and also having a church in the land. The Karda in respect of the land passed in the name of the arch bishop and on 22.4.1958, the land in Sy.No.152 was poded and the land measuring 1 acre 4 guntas and 13 guntas is in possession of plaintiffs assigned with new No.152/5. The plaintiffs being engaged in devotional/church and charitable activities from time to time for the purpose of administration of activities at State, District, Taluk and church wise administrators called as "Parish Priest" 6
are appointed. It is alleged that one Albert was acting as "Parish Priest" of Immaculate Conception Church also known as St.Mary's Immaculate Conception Church at Doresanipalya Church and he was in charge of church in the name of Albert when the plaintiff entered into podi records and Mysore revision settlement.
6. It is further contended that one J.Rayappa working as school teacher run by the plaintiffs church was attached to the schedule property and he was getting salary from the church. He represented that the portion of land in suit schedule property and with permission of the plaintiffs he was cultivating the same and he was not able to manage the family with salary given to him. The plaintiffs were given possession and the J.Rayappa expressed inability to cultivate and he has handed over the property to the plaintiff on 6.8.1957. Once again the said J.Rayappa requested to give portion of the schedule property for cultivation and 7 hence as per Lease agreement dated 16.5.1960 and Rayappa was not interested in cultivation and hence cancelled the lease agreement on 19.3.1961. It is further alleged that by taking advantage of the RTC, which stands in the name of school master, the defendant Nos.2 6 and 7 claiming to be children of J.Rayappa and further they claimed the reverend priest Albert who was Paris Preist and orally gifted the property in the year 1929 in favour of Rayappa and the said Rayappa died on 18.10.1988. Hence, the defendant said to be succeeded the schedule property. The defendant Nos.2 to 5 have no right over the Schedule property. The defendant Nos.2, 6 and 7 filed suit in O.S.No.6674/2009 for declaration and permanent injunction, but the suit was decreed in part on 22.4.2013. The declaration was dismissed, but injunction was granted against the judgment. The defendant Nos.2 6 and 7 filed first appeal in RFA 8 No.965/2013 before the High court, which came to be dismissed on 23.12.2020.
7. It is further contended, subsequently during the pendency of the appeal, the defendant Nos.2 to 5 created the sale deed on 15.3.2014, in the name of defendant No.1. The defendant No.1 do not derive any right, title and interest over the property and the first defendant also impleaded in the appeal RFA No.965/2013. After dismissal of the suit, the defendant Nos.2 to 7 were harassing the plaintiffs for extortion of money, hence plaintiff filed the suit in O.S.No.26426/2013 for permanent injunction. The plaintiff No.2 also filed a suit in O.S.No.25542/2014 against the defendant Nos.1 to 7 from restraining from alienating the property. Subsequently, the said suits were withdrawn on 22.2.2017 in O.S.No.26426/2013 with liberty to prosecute in O.S.No.25542/2014 and the said suit was pending for consideration. But later, the 9 suit filed by the plaintiff No.2 in O.S.No.26390/2014 was dismissed for non-prosecution.
8. The defendant filed execution case in Ex.Case No.1201/2022 for enforcing the decree passed in O.S.No.6674/2009 and the Execution Court directed to give protection to the defendants and they are trying to put up constructions. The plaintiffs are having school in the portion of property, started in the year 1914 and the plaintiffs suffered decree in OS.No.6674/2009 with an observation that defendant Nos.2, 6 and 7 are in possession of the schedule property. Recently, on 1.7.2023 the defendants also obtained the sale deed on 13.11.2020 by suppressing the fact and now taking advantage of sale deeds. The defendants are trying to put up structure over the schedule property. They created the sale deed on 15.3.2014, during pendency of the appeal and once again they created another sale deed on 13.11.2020 10 which was void ab initio. The defendant No.1 filed application before the tahzildar for mutation, which was rejected and he has filed appeal before the Assistant Commissioner and the same was set aside and in the revision the Deputy Commissioner directed the Tahsildar to hold enquiry whether sale is contrary to the provision of Section 79 (A) and (B) of Karnataka Land Revenue Act. Hence, the plaintiff filed the suit for declaration to declare the plaintiffs, are the owner and judgments in O.S.No.26051/2014 is not binding and injunction against the defendant.
9. In pursuance of the notice, the defendants appeared before the trial court and filed application under order VII rule 11 of CPC for seeking rejection of the plaint, on the ground that the plaint does not disclose a cause of action and the plaint is barred by law.11
10. One of the defendant filed an affidavit on behalf of other defendants contending that as per the plaintiff, the cause of action arose for filing the suit on 15.07.2023 when the defendants are trying to put up structure on the suit schedule property. It is contended that as per the plaint averments, the plaintiffs have suffered judgment and decree on 22.04.2013 in O.S.No.6674/2009, the Hon'ble Court has stated that the defendants there in are not the owners of the property, but the plaintiff has not filed any appeal. Hence, the judgment and decree in O.S..No.6674/2009 have become final and binding and hence, the suit for declaration filed by the plaintiff is not maintainable.
11. It is further contended that the defendant Nos.1, 2, 6 and 7 have filed appeal before the High Court in RFA No.965/2013, the said judgment was delivered on 23.12.2020 where it is clearly stated that 12 the plaintiffs have not filed any appeal. Hence, cannot question the legality of the judgment.
12. The defendants obtained the judgment and decree from the District Court as well as High court, therefore, the suit of the plaintiffs and prayer sought by the plaintiffs are not maintainable. In the Execution petition, the Court was pleased to direct the Deputy Commissioner of Police and Assistant Commissioner of Police to assist the decree holder to put up compound wall around the suit schedule property. Being aggrieved by the said order, the plaintiffs have preferred the writ petition and later it was withdrawn.
13. It is further contended that the suit is barred as the relief claimed have been substantially in issue has been directly claimed as decided in the former suit, therefore, the present suit is barred. 13
14. It is further contended that on 17.07.2023, the plaintiffs have handed over the suit schedule property voluntarily to the defendant No.1 and on functioning in their old school premises, the plaintiff cannot seek possession.
15. It is further contended that the plaintiffs have already filed suits in O.S.No.26426/2013 for permanent injunction, the same was withdrawn on 22.02.2017 and O.S.No.25542/2014 pending for adjudication. O.S.No.26390/2014 for ejectment came to be dismissed and the plaintiffs are aware about the transaction in the year 2014 but not challenged. Therefore, the present suit is not maintainable and hence, prayed for rejection of the plaint.
16. The plaintiffs have filed objections to the Interlocutory applications by denying the averments made in the affidavit of the defendants and contended 14 that the limitation is in mixed question of law and facts and without framing the issue and leading the evidence, the Court cannot reject the plaint and also contended that the relief of declaration was not sought by the plaintiffs where the defendants sought, but it was dismissed. Therefore, it cannot be said that the relief sought by the plaintiffs was already decided in the earlier suit. Now, the plaintiffs have filed comprehensive suit seeking declaration of title and set aside the sale deeds. Therefore, suit is maintainable.
17. Based upon the rival contention of the defendants as well the plaintiffs, the Trial court passed the impugned order dated 15.03.2024 by rejecting the plaint. Being aggrieved by the same, the plaintiffs have filed this appeal.
18. Sri Uday Holla, learned Senior counsel for the appellant has vehemently contended that the suit 15 filed by the defendants against the Manager, where the plaintiff No.1-Arch Bishop who is the owner of the property not made as defendant and the decree obtained by the defendant is only for injunction based upon the name of Rajappa in the RTC, but the civil court already dismissed the claim of the defendant to declare that they are the absolute owners of the suit schedule property and same was upheld by the High court. But for the relief of declaration and injunction, no findings were given on the suit filed by the plaintiffs which was only for bare injunction based upon the possession. Now, the plaintiffs have filed comprehensive suit for declaring them as the owners and to set aside the sale deeds of the defendants even though they have no title over the property. It is further contended that the limitation is mixed question of law and fact and it cannot be decided as a preliminary issue without going for the trial. It is further 16 contended that very recently the defendants executed the sale deed while pendency of the appeal, therefore, the sale deed of the defendants required to be set aside. Though the earlier sale deed of the year 2014 as referred in the earlier suit but no findings given by the Court and the execution of sale. Therefore, without going for the trial, the plaint cannot be rejected and the suit of the plaintiff is maintainable.
19. Learned Senior counsel for the appellant has further contended that there is no finding in respect of ownership of the plaintiff No.1, such being the case, any decree obtained against 3rd party which is not binding on the plaintiff. It is further contended that the plaint required to be rejected by looking to the averments made in the plaint and the defence cannot be looked into. Therefore, it is contended the order passed by the trial court rejecting the plaint is not correct and hence, prayed for allowing the appeal. 17
20. In support of his argument, the learned counsel for the appellant has relied upon the various judgments of the Hon'ble Supreme Court which are as follows:
1) Popat and Kotecha Property vs State Bank of India Staff Association reported in (2005) 7 SCC 510;
2) C. Natrajan vs. Ashim Bai and Another reported in (2007) 14 SCC 183;
3) Bhau Ram vs. Janak Singh and Others
reported in (2012) 8 SCC 701;
4) Pawan Kumar vs. Babulal reported in
(2019) 4 SCC 367;
5) Srihari Hanumandas Totala vs. Hemant
Vithal Kamat and Others reported in (2021) 9 SCC 99;
6) Saranpal Kaur Anand vs. Praduman Singh Chandhok and Others, reported in (2022) 8 SCC 401;18
7) State of Haryana and Another vs. Satyender Singh Rathore reported in (2005) 7 SCC 518;
8) Shakti Bhog Food Industries Limited vs. Central Bank of India and Another reported in (2020) 17 SCC 260.
21. The learned counsel for the respondent has seriously objected the appeal and contended that the suit filed by the defendant in O.S.No.6674/2009 has been partly decreed where the plaintiff No.2 was the defendant and in spite of suffering the decree, no appeal was filed. However, on the appeal filed by the defendants before the High court, he was participated in the RFA No.965/2013 and the same came to be dismissed which has attained finality. The plaintiff No.2 is none other than the defendant in the earlier suit, therefore, the plaintiff who is having knowledge about the result of the earlier suit, but they have not filed any appeal which was attained finality, therefore, the relief 19 sought in the plaint is to be rejected as no cause of action arose. Further contended that the sale deeds were affected in the year 2014 and challenging the sale deed is only three years, therefore, now the suit is barred by limitation and the very plaint averment itself shows no cause of action and suit is barred by law and limitation. Therefore, the trial court has rightly rejected the plaint which does not calls for interference. Hence, prayed for dismissing the appeal.
22. Having heard the arguments and perused the records, the point that arise for my consideration are:
"Whether the order of the trial court rejecting the plaint on the ground of limitation and cause of action is liable to be interfered?"
23. On perusal of the records and before going to the discussion, it is worth to mention the principles 20 laid down by the Hon'ble Supreme Court for considering the rejection of plaint under Order VII Rule 11 of CPC.
24. The Hon'ble Supreme Court in the case of Popat and Kotecha Property stated supra has held at paragraph No.23 as under:
"23. Rule 11 of Order 7 lays down an independent remedy made available to the defendant to challenge the maintainability of the suit itself, irrespective of his right to contest the same on merits. The law ostensibly does not contemplate at any stage when the objections can be raised, and also does not say in express terms about the filing of a written statement. Instead, the word "shall" is used clearly implying thereby that it casts a duty on the court to perform its obligations in rejecting the plaint when the same is hit by any of the infirmities provided in the four clauses of Rule 11, even without intervention of the defendant. In any event, rejection of the plaint under Rule 11 does not preclude the plaintiffs from 21 presenting a fresh plaint in terms of Rule 13".
25. In another judgment in the case of C. Natrajan stated supra, the Hon'ble Supreme Court has held that the allegation in the plaint alone to be looked into for the purpose of deciding as to whether the plaintiff is liable to be rejected at the stage, the Court is not entitled to consider the case of the defence. In another judgment in the case of Bhau Ram stated supra also held that only the averments in the plaint and not the defence to be taken into account while considering the application under Order VII Rule 11 of CPC. In another judgment in the case of Pawan Kumar stated supra where the Hon'ble Supreme Court has held that the plaint cannot be rejected on the basis of disputed facts requiring evidence. In the latest judgment in the case of Srihari Hanumandas stated supra, the Hon'ble Supreme Court has held that Res 22 judicata is not a ground for rejection of plaint. In another judgment in the case of Saranpal Kaur Anand stated supra, it is held that the limitation is mixed question of law and fact and hence, cannot be tried as a preliminary issue and a plaint cannot be rejected on the ground of limitation.
26. Learned counsel for the appellant also relied upon the judgment of the Co-ordinate Bench of this Court in the case of D'Souza vs. Joseph reported in ILR 1992 KAR 2972, where the Co-ordinate Bench of this Court has held that the decree cannot be enforced against the purchaser of the property from the defendant, since the injunction does not run with the land. Therefore, it is contended that the order of the trial court rejecting the plaint on the ground of limitation and barred by law and in view of the injunction in favour of the defendant cannot be sustainable.
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27. Per contra, learned counsel for the respondent also seriously objected the appeal and also relied upon the judgments of Hon'ble Supreme Court in the case of T.Arivandandam vs. T.V. Satyapal and Another reported in (1977) 4 SCC 467, in the case of Sopan Sukhdeo Sable and Others vs. Assistant Charity Commissioner and Others reported in (2004) 3 SCC 137. The judgment of the Division Bench of this Court in the case of Mallamma and others vs. Mallegowda reported in 2021 SCC Online KAR 15944. In another judgment of Hon'ble Supreme Court in the case of Dahiben vs. Arvindbhai Kalyaniji Bhanusali and Others reported in (2020) 7 SCC 366 and another judgment of the Hon'ble Supreme Court in the case of Rajendra Bajoria and Others vs. Hemant Kumar Jalan and Others reported in (2022) 12 SCC 641. In these cases, the Hon'ble Supreme Court has held under Order VII Rule 24 11 (a), when the relief sought in the plaint cannot be granted the only option available to the court is to reject the plaint.
28. In Dahiben case, the Hon'ble Supreme Court has held the provisions of Order VII Rule 11 the Court in order to ascertain the prima facie regarding cause of action to read the averments in conjunction of the documents and court not require to further enquire about the truthfulness about the allegation. The written statement of the defendant is not relevant. The Division Bench of this Court also had the remedy under Order VII Rule 11 is an independent and special remedy and the court can dismiss the suit if it is satisfied that any grounds contained in Order VII Rule 11 is made out. In all the cases, the Hon'ble Supreme Court has held that the plaint can be rejected, if there is no cause of action and barred by law.
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29. By keeping the judgments and principle laid down by the Hon'ble Supreme Court and on perusal of the records and the rival contentions of the both the counsel, which reveals that the respondent have filed a suit claiming the declaration and injunction by filing the suit in O.S.NO.6674/2009 as against one Francis Billomane, Parish Priest, Church of Mary Immaculate, Doresanipalya and the said suit for declaration and injunction contested by the defendants and finally suit was partly decreed holding that the declaration sought by the defendants was dismissed and injunction has been granted. However, the Parish priest not filed any appeal. On the other hand, the respondent i.e., the plaintiff in the said suit preferred an appeal before the High court in RFA No.965/2013 and the same was dismissed by the Division Bench of the High Court and no relief of declaration granted to the respondent herein who are the plaintiffs in the earlier suit. The 26 injunction was confirmed as the revenue records stand in the name of the father of the defendants. However, the present plaintiff also filed various suits, but those suits were dismissed as withdrawn and not attained finality on merits and no rights were determined by the Courts.
30. Of course, the declaration sought by the defendant wherein who are the plaintiff in earlier suit was dismissed and therefore, the defendant cannot become a owner of the property but while pendency of the appeal before the High Court there was sale deed effected in the year 2014 but the same came to light only while arguing the matter in the High court and though the suit for injunction filed by the plaintiff. One of the suit was still pending for consideration i.e., in O.S.No.25542/2014. The other three suits were dismissed as withdrawn and one is for non prosecution. While pendency of the appeal, once again there was 27 one more sale deed effected on 13.11.2020. Therefore, the plaintiffs claims to be the owners of the property constrained to file comprehensive suit for declaration to declare the plaintiffs as owner and declare the sale deeds are not binding as null and void and consequential relief of injunction. Such being the case, the trial court required to go for the trial and plaint cannot be rejected threshold since the limitation is mixed question of law and facts and cause of action is bundle of facts, the court required to allow the appellant-plaintiff to adduce the evidence and also allow the respondent to cross examine the witnesses and take defence in their case and without going for the trial, the plaint cannot be rejected in limine and the valuable property right was involved in this case. Though the learned counsel for the respondent produced some documents to show the plaintiff No.2 is none other than the defendant in the earlier suit and it 28 was contested the matter etc., but admittedly, the plaintiff No.1 is the owner of the property was not made as defendant in the said suit and only the care taker was made as defendant. Therefore, the court required to consider whether the plaintiff No.1 was having knowledge about earlier suit, he is the person contested or not were all disputed facts required for adjudication. Therefore, the court cannot reject the plaint on the ground of cause of action and also the sale deeds were made during the pendency of the appeal which is hit by principles of lis pendency applies. Therefore, the plaintiffs required to file suit for declaration and for cancellation of those sale deeds and the court not decided the ownership of the property in any of the earlier suits. Such being the case, it is necessary for the plaintiffs to file suit for declaration and injunction as comprehensive suit therefore, the 29 plaint cannot be rejected. Therefore, rejecting the plaint by the trial court is liable to be set aside.
31. Accordingly, the appeal is hereby allowed. The order of rejection of the plaint is hereby set aside and the suit is restored on the file of the trial court the trial court is directed to proceed with the case on merits.
Looking to the facts and circumstances of the case the status quo order passed by this court regarding suit schedule property is extended until disposal of the Interlocutory Application if any filed by the plaintiff under order XXXIX Rule (1) and (2) of CPC before the trial court.
No Orders as to cost.
Sd/-
JUDGE CS/AKV/GBB_CT:SK