Karnataka High Court
Mr. M L Amarnath vs M S Laxman Gupta on 17 July, 2025
Author: S.G.Pandit
Bench: S.G.Pandit
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF JULY 2025
PRESENT
THE HON'BLE MR. JUSTICE S. G. PANDIT
AND
THE HON'BLE MR. JUSTICE T.M.NADAF
REGULAR FIRST APPEAL NO.471/2012 (PAR)
BETWEEN:
MR. M.L. AMARNATH
AGED ABOUT 66 YEARS
S/O MR. M LAXMANA GUPTA
"JALADARSHINI" NO.117
ANNASWAMY MUDALIAR ROAD
BANGALORE-560 042.
... APPELLANT
(BY SRI. M ARUN PONAPPA, ADV.)
AND:
1. M.S. LAXMAN GUPTA
AGED 77 YEARS
S/O M.L. SIDDAPPA SHETTY
NO.2, KINGS STREET, 1ST CROSS
NEHRU ROAD, KAMMANAHALLI
BANGALORE-560 084
(SINCE DECEASED BY HIS WIFE/LR)
1(A) MRS. LAKSMI LAXMAN GUPTA
AGED 86 YEARS
NO.527, 3RD CROSS
10TH MAIN ROAD, BHCS LAYOUT
NEAR BRIGHTWAY SCHOOL
2
WHITEFIELD MAIN ROAD
BANGALORE.
2. SMT. MADHURI VARDE
AGED 86 YEARS
W/O MR. PRATAP VADRE
NO.1, MEHERABAD
NO.594, BHULABHAI DESAI ROAD
(WARDEN ROAD)
BANGALORE- 560 036
SINCE DECEASED BY HER SON/LR
2(A) MR. P. ASHWIN VARDE
AGED ABOUT 54 YEARS
S/O LATE PRATHAP J VARDE
NO.3-4D, RAGHAV WADI
OFF:FRENCH BRIDGE, OPERA HOUSE,
MUMBAI-400007.
3. MR. GANESH NARAYAN
AGED ABOUT 37 YEARS
S/O LATE C.V. NARAYAN
4. MRS. VALLI NARAYAN
AGED ABOUT 72 YEARS
W/O LATE C.V. NARAYAN
BOTH RESIDING AT:
NO.14/A, FIRST MAIN ROAD
1ST BLOCK, KORAMANGALA
BANGALORE-560 034.
...RESPONDENTS
(BY MS. KRUTIKA RAGHAVAN, ADV. FOR R3
SRI ARUN PRADESH, ADV. FOR R4
R1(A) & R2(A) SERVED)
THIS APPEAL IS FILED UNDER SECTION 96,
AGAINST THE ORDERS DATED 29.11.2011 PASSED ON
I.A.NO.8 IN O.S.7024/2005 ON THE FILE OF THE I-
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ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BANGALORE. ALLOWING THE APPLICATION I.A.NO.8
FILED U/O-VII, RULE-11(D), R/W SECTION 151 OF CPC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
ON 08.07.2025 COMING ON FOR PRONOUNCEMENT THIS
DAY, S.G.PANDIT J., DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE S.G.PANDIT
and
HON'BLE MR JUSTICE T.M.NADAF
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE S.G.PANDIT) Plaintiff's first appeal under Section 96 of the Code of Civil Procedure, 1908, aggrieved by the order dated 29.11.2011 in O.S.No.7024/2005 on the file of the I Additional City Civil and Sessions Judge, Bengaluru City (for short, 'Trial Court'), allowing I.A.No.8 filed by defendant Nos.3 and 4 under Order VII Rule 11(d) of CPC read with Section 35 of the Karnataka Court Fees and Suits Valuation Act, 1958 (for short, '1958 Act') and consequently rejecting the plaint as barred by time.
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2. Parties would be referred to as they stood before the Trial Court. Appellant herein was the plaintiff and respondents herein were defendants before the Trial Court.
3. The Brief facts of the case are that, the plaintiff is the son of original defendant Nos.1 and 2. Defendant No.3 is the son of defendant No.4 and defendant No.4 is the plaintiff's mother's brother's wife. The plaintiff's suit is one for partition and separate possession of plaintiff's share in the schedule property; for permanent injunction restraining defendant Nos.1 to 4 from selling, encumbering or alienating the schedule property contrary to the interest of the plaintiff; for permanent injunction restraining defendant Nos.1 to 4 from interfering with the peaceful possession and enjoyment of the schedule property; and also to declare that the sale of the suit property by second defendant in favour of 3rd 5 and 4th defendants does not affect the right and interest of the plaintiff over the suit property and it is not binding on the plaintiff.
4. The suit averments would indicate that the marriage of first and second defendants took place in the year 1953 and the plaintiff was born to defendants No.1 and 2 in the year 1957. It further indicates that in the year 1960, plaintiff's father i.e., defendant No.1 decided to separate himself from the plaintiff's grandfather and plaintiff's uncle. Accordingly, there was a partition between first defendant, his father and brother under a registered partition deed dated 10.07.1960. It is stated that immediately after the partition, father of the plaintiff i.e., defendant No.1 on behalf of the joint family consisting of the plaintiff and defendant Nos.1 and 2, from out of the joint family funds, purchased the suit schedule property. Further for convenience in management and for the purpose 6 of tax, the property was purchased in the name of second defendant, mother of the plaintiff.
5. Further, it is averred that the suit schedule property was purchased within two months from the date of partition between the father of defendant No.1 and grandfather of plaintiff, from out of the funds which defendant No.1 received on partition. It is further stated that on purchasing the suit schedule property, a residential house was constructed out of the joint family funds. Further, the plaint would state that when the plaintiff was very young, differences between the first and second defendant arose and divorce proceedings were initiated between them which resulted in their divorce. It is stated that when divorce between first and second defendant took place, the plaintiff was aged about 10 years. Thereafter, the first defendant married another person by name Lakshmi and second defendant married 7 another person by name Pratap Varde. From the second marriage, the second defendant has one son.
6. The appellant/plaintiff claims that he has a right and interest over the suit schedule property since it is joint family property and the said property has not been subject matter of partition between the plaintiff's father and plaintiff. It is also stated that the plaintiff has been paying taxes and charges in respect of the suit schedule property and also paying electricity and water bills in respect of the suit schedule property. The plaintiff claims that he has appointed a caretaker to the suit schedule property to maintain it under his supervision. Further, it is stated that second defendant, mother had never disputed the plaintiff's right over the suit schedule property. However, it is stated that few days before filing the suit, plaintiff came to know that second defendant was 8 attempting to transfer the suit schedule property in favour of third persons for huge consideration.
7. The plaint averments would further state that the second defendant has absolutely no right, title or interest over the suit schedule property and she has no right to sell the property. The suit schedule property is the joint family property and the said property has not been partitioned. The plaintiff has a substantial share and he is in possession of the suit schedule property. The suit was filed in July-2005 and subsequently under registered sale deed dated 31.08.2005, second defendant executed sale deed in favour of third and fourth defendants. The plaint averments would state that the cause of action arose 10 days before filing of the suit when plaintiff learnt that second defendant is attempting to alienate the suit schedule property in favour of third parties and when there was refusal for partition. 9
8. During the pendency of the appeal, defendant Nos.1 and 2 died. The second wife of first defendant is brought on record as his legal representative, whereas, son of second defendant from her second marriage is brought on record as legal representative of defendant No.2.
9. On appearance of defendant Nos.3 and 4, they filed application I.A.No.8 under Order 7 Rule 11(d) of CPC read with Section 35 of 1958 Act. In the said I.A., defendant Nos.3 and 4 mainly contended that the Court fee paid on the plaint is insufficient and the valuation of the schedule property is not proper.
10. The Trial Court while considering I.A.No.8 filed under Order 7 Rule 11(d) read with Section 35 of 1958 Act formulated the following three points for consideration:
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1. Whether the defendants 3 and 4 further make out that the valuation of the suit is not correct and Court fee paid is not proper?
2. Whether the defendants 3 and 4 have made out grounds that there is no cause of action and that the suit is barred by any law from the statement made in this plaint?
3. What order?"
11. The Trial Court answered point No.1 in the Negative and point No.2 in the Affirmative and consequently rejected the plaint as barred by time.
12. Heard learned counsel Sri.M.Arun Ponnappa for appellant/plaintiff and learned counsel Smt.Krutika Raghavan along with Smt.Sameeksha Patil for respondent No.3 and learned counsel Sri.Arun Pradesh for respondent No.4. Perused the entire appeal papers.
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13. Learned counsel Sri.M.Arun Ponnappa for appellant/plaintiff would contend that the Trial Court while considering the application filed under order VII Rule 11(d) of CPC read with Section 35 of 1958 Act failed to appreciate the plaint averment that the suit was one for partition and separate possession in respect of the suit schedule property, which was purchased in the name of second defendant by first defendant out of the joint family funds and that till the date of filing the suit, no partition had taken place in respect of the schedule property. Learned trial Judge proceeded to reject the plaint as barred by time, though defendant Nos.3 and 4 had not raised such a plea in the application filed for rejection of plaint. Further, learned counsel for the appellant/plaintiff inviting attention to the impugned order submits that the Trial Court proceeded on the premise that the plaintiff is challenging the alienation made by first 12 defendant of his individual interest in the property that was allotted to the share of the first defendant in 1960 partition and held that the suit filed 20 years after plaintiff attaining the majority is clearly barred by time. In fact, he submits that the plaintiff's challenge was to the subsequent sale dated 31.08.2005 made by his mother defendant No.2 in favour of defendant Nos.3 and 4 and not the sale of properties by defendant No.1 which he received under the partition in the year 1960 between himself and his father and brother.
14. Learned counsel Sri.M.Arun Ponnappa would also submit that when the allegation in the plaint is that the schedule property was purchased in the name of second defendant by the first defendant out of the joint family funds and from out of the funds received by first defendant from sale of the property received by him in the partition, the matter needs trial and without 13 evidence, the prayer of the plaintiff cannot be rejected at the threshold, in the present facts and circumstances of the case. Learned counsel for the appellant/plaintiff would submit that the Trial Court committed grave error in rejecting the plaint on the ground that the suit is barred by time, without framing issue in that regard and without recording evidence. He submits that the question of limitation is a mixed question of law and fact. In that circumstance, he submits that recording of evidence would be absolutely necessary. In that regard, learned counsel places reliance on the decision of the Hon'ble Apex Court in the case of PAWAN KUMAR VS. BABULAL SINCE DECEASED THROUGH LEGAL REPRESENTATIVES AND OTHERS1 and MR.JAGADISH POONJA VS. THE SOUTH CANARA HOTEL COMPLEX PVT. LTD., AND OTHERS2.
1 (2019) 4 SCC 367 2 ILR 2016 KAR 31 14
15. Per contra, learned counsel Smt.Krutika Raghavan supports the order passed by the Trial Court and submits that the suit filed by the plaintiff is hopelessly barred by time and on the face of it, it could be seen that the suit was filed when the appellant/plaintiff was aged 48 years, that too, after divorce between first and second defendants. Learned counsel would further submit that the schedule property was purchased in the year 1963 in the name of second defendant and it is the self-earned property of second defendant in which, the plaintiff cannot claim any share or plaintiff cannot have any right, title or interest. Further, learned counsel would submit that the plaint can be rejected on the ground of limitation, in a suit for partition. Learned counsel submits that the appellant/plaintiff is seeking partition after more than 20 years after the divorce between first and second defendants and more particularly, when the 15 schedule property is the absolute property of second defendant.
16. Further, learned counsel would submit that when ex-facie it is seen that the suit is barred by time, there is no need for trial and recording of evidence. Learned counsel would submit that the plea of limitation need not be raised and it is for the Court to consider the question of limitation. Learned counsel for the defendant Nos.3 and 4 in support of her contention places reliance on the decision of the co-
ordinate Bench of this Court in the case of SMT.MALLAMMA AND OTHERS VS. SHRI MALLEGOWDA @ KARIGOWDA AND OTHERS3;
decision of the Hon'ble Apex Court in the case of SHRI MUKUND BHAVAN TRUST AND OTHERS VS.
SHRIMANT CHHATRAPATI UDAYAN RAJE 3 ILR 2022 KAR 992 16 4
PRATAPSINH MAHARAJ BHONSLE AND ANOTHER and also decision of the Rajasthan High Court in the case of TRUST MANDIR SHRI CHOTE MATHURANATH JI VS. NAND LAL SHARMA5.
17. Having heard the learned counsel appearing for the parties and on perusal of the entire appeal papers, the only point which falls for our consideration is as to, Whether in the facts and circumstances of the case, learned trial Judge is justified in rejecting the plaint as barred by time?
18. It is settled position of law that, while considering the application filed under Order VII Rule 11(d) of CPC, only the averments of plaint is required to be looked into. On entire and meaningful reading of the plaint, if it is found that the suit is manifestly 4 2024 SCC OnLine SC 3844 5 2011 SCC OnLine Raj 1603 17 vexatious and meritless, in the sense that it discloses no right to sue, the Court could exercise its power under Order VII Rule 11 of CPC. Allowing of the application filed under Order VII Rule 11(d) of CPC at the threshold can have drastic consequences. Averments in the plaint shall have to be read as a whole and averment in the written statement as well as contentions of the defendant are irrelevant while considering the prayer of the defendant for rejection of plaint. In that regard, it would be useful to refer to a decision of the Hon'ble Apex Court in MADANURI SRI RAMA CHANDRA MURTHY v/s SYED JALAL reported in (2017)13 SCC 174. Relevant paragraph 7 reads as follows:
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 18 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 meritless 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 19 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 bud at the earliest so that bogus litigation will end at the earlier stage.
19. When the application under Order VII Rule 11(d) of CPC is filed contending that the suit is barred by limitation, the Court shall carefully examine the plaint averments and only in a case where on the face of it, it is seen that the suit is barred by limitation, then and then only a plaint can be rejected as barred by limitation. For the purpose of finding out whether the suit is barred by limitation, the Court has to go through the entire plaint averments and cannot reject the plaint by reading only few lines and ignoring the relevant parts of the plaint.
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20. The Hon'ble Apex Court in PAWAN KUMAR (supra) while considering the order passed on an application filed under Order VII Rule 11(d) of CPC and in the course of its order, has observed that the disputed questions cannot be decided at the time of considering an application filed under Order VII Rule 11 of CPC and certain issues require recording of evidence of the parties. Relevant paragraph at 13 reads as follows:
"13. In the present case, the controversy has arisen in an application under Order 7 Rule 11 CPC. Whether the matter comes within the purview of Section 4(3) of the Act is an aspect which must be gone into on the strength of the evidence on record. Going by the averments in the Plaint, the question whether the plea raised by the appellant is barred under Section 4 of the Act or not could not have been the subject matter of assessment at the stage when application under Order 7 Rule 11 CPC was taken up for consideration. The matter required fuller and final consideration after the 21 evidence was led by the parties. It cannot be said that the plea of the appellant as raised on the face of it, was barred under the Act. The approach must be to proceed on a demurrer and see whether accepting the averments in the plaint the suit is barred by any law or not. We may quote the following observations of this Court in Popat and Kotecha Property v. SBI Staff Assn.(SCC p.515 para 10) "10. Clause (d) of Order 7 Rule 7 speaks of suit, as appears from the statement in the plaint to be barred by any law. Disputed questions cannot be decided at the time of considering an application filed under Order 7 Rule 11 CPC. Clause (d) of Rule 11 of Order 7 applies in those cases only where the statement made by the plaintiff in the plaint, without any doubt or dispute shows that the suit is barred by any law in force."
21. A co-ordinate bench of this Court in Mr.JAGADISH POONJA case (supra) placing reliance on the decision of Hon'ble Apex Court in MAJOR S.S. KHANNA v/s BRIG. F.J.DILLON reported in AIR 22 1964 SC 497 and in RAMESH B DESAI AND OTHERS AND OTHERS v/s BIPIN VADILAL MEHTA AND OTHERS reported in AIR 2006 SC 3672, held that the question of limitation is a mixed question of law and fact and the same cannot be decided as an abstract principle of law divorced from facts, as in every case, the starting point of limitation has to be ascertained, which is entirely a question of fact, which requires recording of evidence. Relevant paragraphs at 21, 22, 28, 29 and 30 are reads as follows:
21. Question of limitation is ordinarily a mixed question of law and fact. Plea of limitation cannot be decided as an abstract principle of law divorced from facts, as in every case, the starting point of limitation has to be ascertained, which is entirely a question of fact. Therefore, it is now well settled that a plea of limitation is a mixed question of fact and law. The jurisdiction to try issues of law 23 apart from issues of fact may be exercised only where in the opinion of the Court the whole suit may be disposed of on the issues of law alone. But the Code confers no jurisdiction upon the Court to try mixed issues of law and fact as preliminary issue. Therefore, the issue regarding limitation cannot be tried as a preliminary issue.
22. In the instant case, in spite of the plaintiff filing an application seeking for permission to adduce evidence on the issue regarding limitation but without granting permission to lead evidence and deciding the issue regarding limitation only on the basis of the averments in the plaint is illegal as held by the Apex Court. The Trial Court had no jurisdiction to try the issue regarding limitation as a preliminary issue. Therefore, the said finding of the Trial Court cannot be sustained and accordingly, it is hereby set-aside.
28. The first defendant has filed an application under Order 7 Rule 11(d) of 24 the Code, requesting the Court to reject the plaint as barred by law of limitation.
According to them, plaintiff was bom on 05-07-1980. During his minority, the sale deed came to be executed by his grand mother on 29-05-1983. The plaintiff attained majority on 05-07- 1998. If he wanted a declaration as sought for in the plaint, he should have filed the suit within three years from the date of attaining majority. The suit having been filed in the year 2007 is clearly barred by law of limitation.
Therefore according to the first defendant, the case falls under Order 7 Rule 11(d).
29. When in the plaint the plaintiff specifically avers that the suit is filed within the time of limitation and hence the suit is in time, the Court cannot embark upon an enquiry on an application filed by the defendant under Order 7 Rule 11(d) to find out whether the statement is correct or not and then decide the said issue. The plaint to be rejected on the ground of bar of 25 limitation under Section 3 what has to be seen is only the plaint averments. If the plaint averments do not disclose that the suit is barred by limitation, then the question of rejecting the plaint under Order 7 Rule 11(d) would not arise.
When the defendant raises the plea of bar of limitation, the Court is bound to frame an issue regarding limitation. As the issue regarding limitation cannot be tried as a preliminary issue, the said issue has to be decided after recording of evidence upon all the issues framed in the suit including the issue regarding limitation. It is only thereafter the Court could decide the question whether the suit is barred by the law of limitation. Therefore, the question of the Court going into the question of bar of limitation on an application filed under Order 7 Rule 11(d) CPC would not arise. Rejection of the plaint on the ground that the suit is barred by limitation is ex facie illegal and cannot be sustained. In that view of the matter, the order passed by the Trial Court cannot be sustained. 26
30. The Trial Court also has dismissed the suit on the ground that plaintiff has not signed the plaint and that plaintiff has not produced the power of attorney executed in favour of the power of attorney holder. That is not a ground to reject the plaint under Order 7 Rule 11(d). That is a matter which should have been gone into after enquiry and recording evidence on all issues. During that period, the plaintiff had opportunity to produce the power of attorney to show that he had executed a valid power of attorney duly authorizing to sign the plaint. Therefore, the entire approach of the Trial Court is wrong. It is unfortunate that, the Trial Court has spent considerable time in disposing of this application and thus wasted its judicial time. If it had recorded the evidence on all the issues, probably the suit itself could have been disposed of on merits, including on the issue of limitation, which in an appeal we could have gone into and passed a final order giving a quietus to this litigation.
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22. In the present case, I.A.No.8 was filed under Order VII Rule 11(d) of CPC read with Section 35 of 1958 Act on the ground that the suit valuation is improper and court fee paid on the plaint is insufficient. While considering the said application, learned trial Judge also burdened himself to consider the point of limitation. While the point with regard to valuation of the suit was negated and was held that the valuation of suit and court fee paid is proper. But, while considering the second point with regard to whether the suit is barred by time, learned trial Judge proceeded to consider the same as though plaintiff's prayer is to set aside the sales made by his father on receiving the property on partition in the year 1960 between the father, his grand father and father's brother.
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23. At paragraph (9) of the impugned order, learned trial Judge observes that "in effect, as can be read from the plain reading of the plaint that he is challenging alienation made by the first defendant of his undivided interest in the property that was allotted to the share of the first defendant in 1960 partition". It is not known as to where the trial Judge got those averments from the plaint. The plaint prayers are very clear that, prayer (a) is for partition of the schedule property and for separate possession of plaintiff's share; prayer (b) is for permanent injunction to restrain the defendants from selling, encumbering or alienating the schedule property contrary to the interest of the plaintiff; prayer (c) is to restrain the defendants from interfering with the peaceful possession of the schedule property by the plaintiff and prayer (d) which is added after amendment was to declare that the sale of the suit 29 property by the second defendant in favour of defendants No.3 and 4 under sale deed dated 31.08.2005 is not binding. Further, the plaint averments at paragraph (3) reads as follows:
"3. The plaintiff submits that the marriage of the 1st defendant with the 2nd defendant took place in the year 1953. At that time the 2nd defendant was known by the name Rukmini. The plaintiff was born to the 1st and 2nd defendant in the year 1957. The plaintiff and the defendants were residing at Chickmagalur in the joint family house. Immediately after partition the 1st defendant on behalf of the joint family of himself and me, out of the joint family funds purchased a property bearing no.7-C at Osborne Road, Bangalore. For the purpose of convenience and for purposes of tax the said property was purchased in the name of the 2nd defendant, the mother of the plaintiff. It is submitted that though the said property was purchased out of the funds, which had come to the share of the 1st defendant and the plaintiff under the partition dated 30.06.60. The property was 30 purchased just two months after the partition. A copy of the sale deed is produced as DOCUMENT NO.2. The father of the plaintiff wanted to move away from Chickmagalur and therefore he wanted to have properties at Bangalore. After purchasing the said property a residential house was also constructed upon the said property. The house was also constructed out of joint family funds. A copy of the sale deed selling one item of property obtained under the partition is produced herewith as DOCUMENT NO.3. After constructing the house the family resided in the said house. The said property is more fully described in the schedule hereunder and hereinafter referred to as the "Schedule Property". The properties obtained in the partition were disposed of by the 1st defendant and are not available now for PARTITION. It is learnt that with the assistance and aid of joint family funds other properties have been purchased in the name of the 2nd defendant at Mumbai. The details of the said properties are not available with the plaintiff as of now. The plaintiff seeks leave and reserves his right to 31 add the said properties to the plaint as and when he gets their details."
A reading of the above paragraph of the plaint makes it clear that the plaintiff has averred that the schedule property was purchased in the name of second defendant from and out of the funds which had come to the share of the first defendant under partition dated 30.06.1960. Further the suit averment would indicate that since the suit schedule property was purchased from and out of the funds of the joint family, mother alone has no right, title or interest over the schedule property and she has no right to sell the property. It is also averred that partition has not taken place in the family. When such being the plaintiff's case, the Trial Court committed grave error in rejecting the plaint as barred by time. On a reading of the entire plaint averments it cannot be said that the plaint is barred by time.
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24. To decide the question as to whether the suit schedule property which stood in the name of second defendant was purchased in the name of second defendant by the first defendant from the funds realized from the sale of properties which had fallen to the share of the first defendant under partition deed dated 30.06.1960 between the first defendant and his father, i.e., grand father of the plaintiff and plaintiff's father's brother, recording of evidence would be necessary. In the present facts and averments of the plaint, it can be safely said that the question of limitation would be a mixed question of fact and law. The starting point of limitation shall have to be ascertained in a full fledged trial from the facts and materials to be placed on record. The trial Court without applying its mind and by recording the averments which is not part of the plaint, proceeded to reject the plaint, as barred by time. 33
25. Learned counsel for the respondents/ defendants No.3 and 4 places reliance on the decision of a co-ordinate bench of this Court in SMT.MALLAMMA (supra) wherein the co-ordinate Bench has held that the plaint could be rejected on the ground of limitation even in a suit for partition and limitation need not be the subject of trial, if the suit is ex-facie barred by time. The decision would not in any manner assist defendants No.3 and 4, since, a reading of the suit averments in the present case would not even remotely indicate that the suit is ex- facie barred by time. The sale by the second defendant is subsequent to filing of the suit and the main prayer of the plaintiff is for partition and separate possession on the ground that no partition has taken place and the suit schedule property is purchased from out of joint family funds. Further, learned counsel for the respondents also placed 34 reliance on TRUST MANDIR SHRI CHOTE MATHURANATH JI (supra) to contend that the Court has to see as to whether the plaint discloses any cause of action and has been presented within the time prescribed for institution of such a suit. It is always for the Court to find out in the absence of specific plea also, whether the suit is within the period of limitation as prescribed in terms of Section-3 of Limitation Act, 1963. The said decision would have no application to the facts of the present case.
26. For the reasons recorded above, the appellant-plaintiff succeeds. Hence, the following order:
(i) The Regular First Appeal is allowed.
(ii) The impugned order dated 29.11.2011 passed on I.A.No.8 in O.S.No.7024/2005 on the file of the I Additional City Civil and Sessions 35 Judge, Bengaluru City is set aside and the suit is restored to its file.
(iii) I.A.No.8 filed under Order VII Rule 11(d) of CPC read with Section 35 of Karnataka Court Fees and Suits Valuation Act, 1958 stands dismissed.
(iv) The trial Court is directed to proceed further in the suit.
(v) The parties shall appear before the trial Court on 18.08.2025.
Sd/-
(S.G.PANDIT) JUDGE Sd/-
(T.M.NADAF) JUDGE NC/MPK CT: bms