Karnataka High Court
Smt Chandini P vs Sri Swamy on 1 December, 2022
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CRP No. 341 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF DECEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE M.I.ARUN
CIVIL REVISION PETITION NO. 341 OF 2022
BETWEEN:
SMT CHANDINI P
D/O PUTTALINGAIAH, GH
R/AT S GOLLARAHALLI VILLAGE,
TAVAREKERE HOBLI,
BENGALURU DAKSHINA TALUK
BENGALURU 577 519
REP BY HER POWER OF ATTORNEY HOLDER
SRI. PUTTAHALAGAIAH G H
...PETITIONER
(BY SRI. SANJAY KRISHNA V.,ADVOCATE)
AND:
1. SRI SWAMY
S/O LATE MADAIAH,
R/AT NANDANAHALLI VILLAGE,
HALANAHALLI POST,
Digitally signed
by V MANJUSHA
KASABA HOBLI,
BAI MYSURU TALUK AND DISTRICT 360 515.
Location: High
Court of
Karnataka
2. SRI. MAHADEVA
S/O LATE MADAIAH,
R/AT NANDANAHALLI VILLAGE,
HALANAHALLI POST,
KASABA HOBLI,
MYSURU TALUK AND DISTRICT 360 515
SRI. MALLESH
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CRP No. 341 of 2022
3. S/O LATE MADAIAH,
R/AT NANDANAHALLI VILLAGE,
HALANAHALLI POST,
KASABA HOBLI,
MYSURU TALUK AND DISTRICT 360 515.
4. SMT. GANGAMMA
W/O LATE MADAIAH
R/AT NANDANAHALLI VILLAGE,
HALANAHALLI POST,
KASABA HOBLI,
MYSURU TALUK AND DISTRICT 360 515.
5. SMT. SIDDAMMA
D/O LATE MADAIAH
W/O LATE JADEGOWDA
R/AT MEGALAPURA VILLAGE,
KILANAPURA POST,
VARUNA HOBLI,
MYSURU TALUK AND DISTRICT 571 130
6. SRI. SIDDAIAH
S/O LATE NANJAIAH 77 YEARS,
R/AT KALISIDDANAHUNDI VILLAGE,
RAMANAHALLI POST,
KASABA HOBLI,
MYSURU TALUK AND DISTRICT 570 019.
7. SMT. NINGAMMA
D/O LATE NANJAIAH
R/AT KALISIDDANAHUNDI VILLAGE,
RAMANAHALLI POST,
KASABA HOBLI,
MYSURU TALUK AND DISTRICT 570 019.
8. SRI. SANNAPPAJI
S/O SANNTHAMMAIAH
MAJOR BY AGE,
R/AT HANCHYA VILLAGE,
KASABA HOBLI,
MYSURU TALUK AND DISTRICT 570 019.
9. SRI. D KUMAR
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CRP No. 341 of 2022
S/O DASAPPA
R/AT HANCHYA VILLAGE,
KASABA HOBLI,
MYSURU TALUK AND DISTRICT 570 019.
10. SRI. SRINIVAS
S/O GANGADHARA
MAJOR BY AGE,
R/AT NO. 5/1,
6th CROSS, 8thMAIN,
RAMASWAMY LAYOUT,
LAKKASANDRA
BENGALURU 560 027.
...RESPONDENTS
(R1 SERVED;
VIDE ORDER DATED 09.09.2022 NOTICE TO R2 TO R10 IS
DISPENSED WITH).
THIS CRP IS FILED UNDER SECTION 115 OF CPC, AGAINST
THE ORDER DATED 24.03.2022 PASSED IN OS.NO.353/2018 ON
THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND CJM,
MYSURU, REJECTING THE I.A.NO.3 FILED UNDER ORDER 7 RULE
11(a) AND (d) OF CPC FOR REJECTION OF PLAINT.
THIS PETITION IS COMING ON FOR ORDERS, THROUGH
PHYSICAL HEARING/VIDEO CONFERENCING THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
1. Aggrieved by the order dated 24.03.2022 passed on I.A.No.3 in O.S.No.353/2018 by II Additional Senior Civil Judge and CJM at Mysuru, the present petition is filed by defendant No.9 therein.
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2. For the sake of convenience, the parties are referred to herein as per the status before the trial Court.
3. The plaintiff is the son of one late Madaiah and it is alleged that the father of the plaintiff along with defendant Nos.1 and 2 herein, who are brothers of the plaintiff sold the schedule properties in favour of defendant Nos.7 and 8 by a registered sale deed dated 21.04.1997 and thereafter schedule B property was sold in favour of defendant No.10 and schedule A property has been bequeathed in favour of defendant No.9 and presently defendant No.9 is the owner of schedule A property. On the ground that the sale which happened in the year 21.04.1997 is fraudulent and that plaintiff had a right over the suit schedule property and the said sale deed was executed behind his back and that the said suit schedule properties are the joint family properties, O.S.No.353/2018 came to be filed.
4. In short, the case of the plaintiff is that the suit schedule properties are joint family properties and the sale deed executed on 21.04.1997 in respect of the same is not binding -5- CRP No. 341 of 2022 on him and that he is entitled to 1/5th share out of 1/3rd share which fall to the share of his father.
5. Defendant No.9 filed an application under Order VII Rule 11(a) and (d) of CPC, contending that plaint does not disclose the cause of action and that the same is barred by limitation. It is contended by defendant No.9 that the allegations made in the plaint are bald and it does not say as to who purchased the property initially and how it became the joint family property and whether the joint family is in existence or not and how the plaintiff has got a right over the same and that the alienation took place way back in the year 1997 and as per Article 109 of the Limitation Act, 1963, a Hindu Governed by Mitakshara law to set aside his father's alienation of ancestral property has to file a suit within a period of twelve years from the date of alienee taking the possession of the property and the suit is horribly barred by limitation and on the said ground, it is prayed that the plaint be rejected.
6. The trial Court in the impugned order has observed that plaintiff has filed the suit for partition and separate possession. -6- CRP No. 341 of 2022 That the plaintiff has failed to aver in the plaint whether the joint family/HUF came into existence before 1956 or after 1956 and who had acquired the property in the first place and how it was acquired. However, the trial Court on the ground that the plaintiff has averred in the plaint that the suit schedule property was alienated behind his back and as soon as he came to know about the said alienation has filed the instant suit and on the ground that limitation has to be computed from the date of which plaintiff got the knowledge of alienation and it being mixed question of law and fact, dismissed the application. Aggrieved by the same, the present petition is filed.
7. In spite of service of notice, the plaintiff has remained absent. Notice to other respondents have been dispensed with as there were arrayed as defendants in the plaint and have not contested the application.
8. Admittedly, the challenge in the plaint is the sale deed executed by the father of the plaintiff along with two other brothers on 21.04.1997. The ground of challenge is that the suit schedule property are ancestral properties over which the -7- CRP No. 341 of 2022 plaintiff also has a right but his father has alienated the same behind his back. The plaintiff and his family members are Hindu and are governed by Mitakshara Law. Article 109 of the Limitation Act reads as under :
SL.No. Description of suit Period Time from which of period begins to run Limitation
109. By a Hindu governed by Twelve When the alienee takes Mitakshara law to set aside his years possession of the father's alienation of ancestral property.
property Thus, Article applicable in the instant case to compute limitation is Article 109 of the Limitation Act and the period of limitation runs from the date the alienee took possession of the property and in the instant case it is to be held as 21.04.1997, the date on which schedule properties were alienated by the father of the plaintiff. It is immaterial as to the date on which the plaintiff came to know about the alienation. The trial Court erred in holding that the limitations has to be computed from the date of knowledge on part of the plaintiff about the alienation. Admittedly, the suit is filed in the year 2018, much after lapse of twelve years from the date of alienee taking possession of the property.
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9. For the aforementioned reasons, the impugned order is liable to be set aside and plaint is liable to be dismissed.
10. Hence, the following:
ORDER i. Petition is allowed.
ii. The impugned order dated 24.03.2022 passed on I.A.No.III in O.S.No.353/2018 is hereby set aside and the application filed by the petitioner herein/defendant No.9 under Order 7 Rule 11 (a) and (d) is hereby allowed and the plaint in O.S.No.353/2018 on the file of II Additional Senior Civil Judge and CJM at Mysuru is hereby rejected.
SD/-
JUDGE AG