Karnataka High Court
Smt. Savithramma vs Smt Siddamma on 10 November, 2021
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE R.NATARAJ
CIVIL REVISION PETITION No.136/2021 (IO)
BETWEEN
SMT.SAVITHRAMMA
W/O LATE AJJIAPPA &
D/O LATE SHIVANNA @ HURULIYAL SHIVANNA
@ KENCHAVEERAPPANA SHIVANNA
FOSTER DAUGHTER OF VEERABHADRAPPA
@ HURULIYAL VEERABHADRAPPA
AGED ABOUT 72 YEARS
AGRICULTURIST &
R/O HIREHALLI VILLAGE
CHALLAKERE TALUK
CHITRADURGA DISTRICT.
NOW R/O GANDHI NAGARA
1ST CROSS, BEHIND POLICE STATION
CHALLAKERE TOWN - 577522
CHITRADURGA DISTRICT.
... PETITIONER
[BY SRI.MURALI B.S., ADVOCATE]
AND
1. SMT.SIDDAMMA
W/O LATE LINGANNA @ LINGAPPA
AGED ABOUT 74 YEARS
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2. SMT.THIPPAMMA
W/O B.T.RAJASHEKARA &
D/O LINGANNA @ LINGAPPA
AGED ABOUT 54 YEARS
3. SMT.GOWRAMMA
W/O LATE MALLIKARJUNA &
D/O LINGANNA @ LINGAPPA
AGED ABOUT 52 YEARS
ALL ARE AGRICULTURIST &
R/O HIREHALLI VILLAGE
CHALLAKERE TALUK - 577522
NOW RESIDING AT
74-UDEGOLA VILLAGE
RAYADURGA TALUK - 515865
ANANTHAPURA DISTRICT.
4. SPECIAL LAND ACQUISITION OFFICER
NATIONAL HIGHWAY OF AUTHORITY
OF INDIA, HOSPET
WARD NO.25, LLC COLONY
OPPOSITE NCC CANTEEN
CANTONMENT
BELLARY - 583101.
5. SPECIAL LAND ACQUISITION OFFICER
BRANCH OFFICE
NATIONAL HIGHWAY OF AUTHORITY
OF INDIA, HOSPET
OPPOSITE RAMDEV GRANITE
BEHIND NEW KEB
JAFAR SHERIFF LAYOUT
CHITRADURGA ROAD
CHALLAKERE CITY - 577522
CHITRADURGA DISTRICT.
... RESPONDENTS
(BY SRI.G.BALAKRISHNA SHASTRY, ADVOCATE
FOR R.1 TO R.3;
STANDING COUNSEL FOR R.4 AND R.5)
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THIS CIVIL REVISION PETITION IS FILED UNDER
SECTION 115 OF CPC., AGAINST THE ORDER DATED
30.11.2018 PASSED ON I.A.NO.9 IN O.S.NO.5/2017 ON
THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC,
CHALLAKERE, REJECTING THE I.A.NO.9 FILED UNDER
ORDER 7 RULE 11 OF CPC., FOR REJECTION OF PLAINT.
THIS CIVIL REVISION PETITION COMING ON FOR
ADMISSION THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
This Revision Petition is filed by defendant No.1 in O.S.No.5/2017 pending trial before the Hon'ble Senior Civil Judge & JMFC, Challakere, (henceforth referred to as the 'Trial Court' for short) challenging the order dated 30.11.2018, by which the Trial Court rejected an application filed by defendant No.1 under Order VII Rule 11(a) of Code of Civil Procedure, 1908, (henceforth referred to as 'CPC' for short).
2. A suit in O.S.No.5/2017 was filed for declaration that the plaintiffs are the owners of the suit schedule properties and for consequential relief of perpetual injunction. Defendant No.1 contested the suit and claimed that the predecessor-in-title of the plaintiffs 4 had in fact executed a relinquishment deed dated 09.12.1966 and that he had received a sum of Rs.2,000/- in lieu of his share and therefore, the plaintiffs did not have subsisting right, title or interest in the suit schedule properties. Following the written statement, the plaintiffs sought amendment of the plaint to incorporate further pleadings in the form of paragraph No.14(a) and denied the lawful execution of the Relinquishment deed and contended that the said Relinquishment deed is false and frivolous. The Trial Court framed issues and set down the case for recording evidence of the parties. At that stage, an application under Order VII Rule 11 of CPC was filed to reject the plaint contending that it did not disclose any cause of action. The Trial Court considered the averments of the plaint and held that suit did disclose the cause of action and therefore rejected the application.
3. Being aggrieved by the aforesaid order, the present revision petition is filed.
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4. Learned counsel for the petitioner submitted that plaintiffs contended that the said Relinquishment deed was false and not binding on them and incorporated the same in Paragraph No.14(a) of the plaint. He claimed that therefore the plaint averments if taken together would indicate that the plaintiffs had knowledge of the Relinquishment deed dated 09.12.1966 and hence, the plaintiffs did not have any subsisting cause of action to seek for declaration of their title to the suit properties. He also contended that the plaintiffs did not seek for appropriate relief to annul the Relinquishment deed dated 09.12.1966 and therefore, the suit is not maintainable. It is also contended that plaintiffs did not seek for annulment of the Gift deed dated 18.12.1980 executed in favour of defendant No.1 and therefore, the suit was not maintainable. Learned counsel also contended that there was a certain revenue proceedings in respect of suit properties which culminated in an order passed by the Assistant Commissioner in RA No.28/1984-85 and therefore, the suit in question was barred by law of 6 limitation, since the plaintiffs knew about the claim of defendant No.1 long prior to filing of the suit itself.
5. Learned counsel for the petitioners submits that plaintiffs have indulged in clever drafting circumventing the law of limitation by claiming that they were in possession of the suit schedule properties under the gift deed dated 18.12.1980 notwithstanding the execution of the Relinquishment deed dated 09.12.1966.
6. Learned counsel for respondents/plaintiffs contended that an application filed under Order VII Rule 11 of CPC, should be tested on the averments in the plaint and not the averments in the written statement. Learned counsel also contended that the plaintiffs had legitimately denied the lawful execution of the Relinquishment deed dated 09.12.1966 and therefore, a triable case was made out and this constituted cause of action for the relief of declaration of their title in the suit schedule properties. 7
7. I have considered the rival contentions of the parties. A perusal of plaint would indicate that the plaintiffs are claiming title of the suit properties through Mr. Linganna S/o Veerabhadrappa while defendant No.1 is the daughter of Shivanna who is the uncle of Linganna. The plaintiffs claim that partition between Veerabhadrappa and Shivanna took place on 30.12.1974 and the suit properties fell to the share of Veerabhadrappa while defendant No.1 claimed that son of Veerabhadrappa namely Linganna, who is the predecessor in the title of the plaintiffs, had executed a relinquishment deed on 09.12.1966. The execution of relinquishment deed is seriously disputed by the plaintiffs. Therefore, the crux of the matter between the parties would be the lawful execution of the relinquishment deed dated 09.12.1966 which cannot on the basis of an application filed under Order VII Rule 11 of CPC. The Trial Court therefore held that contentions urged by defendant No.1 cannot be considered at the stage of application filed under Order VII Rule 11 of CPC. The question whether the suit was barred 8 by the law of limitation, the same has to be considered after a trial in the suit, as it is a mixed question of fact and law. The Trial court was justified in rejecting the application. There is no merit in the revision petition. The same is dismissed.
7. All contentions are left open.
Sd/-
JUDGE nms