Karnataka High Court
Sindhulakshmi Kurup vs Sri Manjunatha on 8 May, 2020
Author: S.Sunil Dutt Yadav
Bench: S. Sunil Dutt Yadav
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF MAY, 2020
BEFORE
THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV
CIVIL REVISION PETITION No. 166/2017
C/W
CIVIL REVISION PETITION No. 297/2016
CIVIL REVISION PETITION No. 166/2017
BETWEEN
1. SINDHULAKSHMI KURUP
W/O. DINESH G KRUP
AGED ABOUT 40 YEARS
VIVA 505, SJR VRITY,
KASAVANAHALLI MAIN ROAD,
BANGALORE 560 035.
2. SRI VINEET KUMAR
S/O. ANIRUDH PRASAD GUPTA
AGE: 39 YEARS
NO. 2071, SOBHA DAISY, IBBLUR
OUTER RING ROAD
BANGALORE - 560013
3. SMT. KAVITHA GUPTA
W/O. VINEET KUMAR
AGED ABOUT 37 YEARS
NO.2071, SOBHA DAISY IBBLUR
OUTER RING ROAD,
BANGALORE-560013.
4. SRI. A RAJESH
2
S/O A.T. ANNAMALAI
AGED ABOUT 42 YEARS
PJA, KLASSIK NEST APARTMENTS
80 FEET ROAD, HSR LAYOUT,
SECTOR-II
BANGALORE-560002.
5. SRI UDAY SAMBRANI
AGED ABOUT 46 YEARS
S/O. WARMAN RAO SAMBRANI
NO.1/16, KRISTAL JASPER
KASAVANAHALLI,
OFF SARJAPURA ROAD
BANGALORE-560035.
6. SMT. VANAJA SAMBRANI
W/O. UDYA SAMBANI
AGED ABOUT 45 YEARS
R/O NO.1/16, KRISTAL JASPTER
KASAVANAHALLI,
OFF SARJAPUR ROAD,
BANGALOE-560035.
7. SRI. PAKASH HEGDE
S/O SHRIDHAR HEGDE,
AGED ABOUT 44 YEARS
NO.331/2, PALLAVI, IST A CROSS
29TH MAIN, BTM LAYOUT,
IST STAGE
BANGALORE-560 026.
8. SRI. KAREEMULLA SHAIK
S/O S. BIRAM SAHEBF
AGED ABOUT 39 YEARS
R/O NO.1170/A, 22ND B MAIN
9TH MAIN, SECTOR 1, HSR LAYOUT,
BANGALORE-560 0034.
9. SRI. KIRAN KUMAR VISHNUBHATLA
S/O V. SURYANARAYANA SARMA
AGED ABOUT 42 YEARS
3
NO.3-5-118/8, KRISHNA NAGAR,
ST.2 HYDERGUDA
HYDERABAD-500 048.
...PETITIONERS
(BY SRI. S R HEGDE HUDLAMANE AND
SRI. V. B. SHIVA KUMAR, ADVS.)
AND
1. SRI. MANJUNATHA
S/O LATE MUNIVENKATAPPA
AGED ABOUT 34 YEARS
2. SMT. JAYALAKSHMI
D/O. LATE MUNIVENKATAPPA
W/O. SATISH
AGED ABOUT 27 YEARS
3. SRI. LAKSHMAIAH
S/O LATE DODDAVENKATASWAMY
AGED ABOUT 59 YEARS
4. SRI. MANJUNATH
S/O. LAKSHMAIAH
AGED ABOUT 29 YEARS
5. SRI. SRINIVASA
S/O. LAKSHMAIAH
AGED ABOUT 26 YEARS
6. NETRAVATHI
D/O. LAKSHMAIAH
AGED ABOUT 24 YEARS
7. SHIVAPPA
S/O. DODDA VENKATASWAMY
AGED ABOUT 57 YEARS
4
8. SUJATHA
D/O. SHIVAPPA
AGED ABOUT 34 YEARS
9. SRI. UMASHANKAR
S/O SHIVAPPA
AGED ABOUT 32 YEARS
10. SMT. ANNAPOORNA
AGE: MAJOR
D/O. SHIVAPPA
W/O. RAVIKUMAR
11. MOHAN KUMAR
AGE: MAJOR
S/O SHIVAPPA
AGED ABOUT 24 YEARS
12. SAVITHRAMMA
AGE: MAJOR
D/O LATE DODDA VENKATASWAMY
AGED ABOUT 54 YEARS
RESPONDENTS 1 TO 12
C/O. UMASHANKAR
S/O SHIVAPPA
R/O NO.72, SHIVAPPA HOUSE,
A NARAYANAPURA,
BESIDE OLD GOVT. SCHOOL,
BANGALORE-560 016.
...RESPONDENTS
(BY SRI. S. NAGARAJ, ADV. FOR R1 TO T12)
THIS CIVIL REVISION PETITION IS FILED UNDER
SECTION 115 OF CPC AGAINST THE ORDER DATED
18.06.2016 ON I.A.NO. IX PASSED IN O.S.NO.3586/2014
ON THE FILE OF THE VIII ADDL. CITY CIVIL AND
5
SESSIONS JUDGE, BENGALURU, REJECTING THE
I.A.NO.IX FILED UNDER ORDER VII RULE 11 R/W
SECTION 151 OF CPC REJECTING THE PLAINT.
CIVIL REVISION PETITION No. 297/2016
BETWEEN
1. M/S RELIABLE LIFESTYLE
RELIABLE PHOENIX TOWERS,
NO.16 & 16/1, 1ST FLOOR,
MUSEUM ROAD
BENGALURU-560 001
2. SRI. H.P.RAMA REDDY
AGED ABOUT 69 YEARS
S/O LATE CHIKKAPAPAIAH
NO.255, 36TH CROSS, 5TH MAIN,
4TH BLOCK, JAYANAGAR
BENGALURU-560 011.
3. SRI. A RAMA REDDY
AGED ABOUT 44 YEARS
S/O SRI.A.ASHWATHANARAYANA REDDY,
NO.435, 15TH CROSS,
LAKKASANDRA
BENGALURU-560 030.
...PETITIONERS
(BY SRI. V B SHIVA KUMAR, ADV.)
AND
1. SRI MANJUNATH
AGED ABOUT 35 YEARS
S/O. LATE MUNIVENKATAPPA
C/O. UMASHANKAR
S/O SHIVAPPA
NO.72, SHIVAPPA HOUSE,
A.NARAYANAPURA,
BESIDE OLD GOVT. SCHOOL
6
BENGALURU-560 016
REPRESENTED BY GPA HOLDER
UMASHANKAR
2. SMT. JAYALAKSHMI
AGED ABOUT 27 YEARS
D/O LATE MUNIVENKATAPPA
W/O SATHISH
C/O UMASHANKAR
S/O SHIVAPPA
NO.72, SHIVAPPA HOUSE,
A.NARAYANAPURA
BESIDE OLD GOVT SCHOOL
BENGALURU-560 016
REPRESENTED BY GPA HOLDER
UMASHANKAR
3. LAKSHMAIAH
AGED ABOUT 59 YEARS
D/O LATE DODDAVENKATASWAMY
C/O UMASHANKAR
S/O SHIVAPPA
NO.72, SHIVAPPA HOUSE
A.NARAYANAPURA
BESIDE OLD GOVT SCHOOL
BENGALURU-560 016
REPRESENTED BY GPA HOLDER
UMASHANKAR
4. MANJUNATH
AGED 29 YEARS
S/O LAKSHMAIAH
C/O UMASHANKAR
S/O SHIVAPPA
NO.72, SHIVAPPA HOUSE,
A.NARAYANAPURA
BESIDE OLD GOVT SCHOOL
BENGALURU-560 016
REPRESENTED BY GPA HOLDER
UMASHANKAR
7
5. SRINIVASA
AGED ABOUT 26 YEARS
S/O LAKSHMAIAH
C/O UMASHANKAR
S/O SHIVAPPA
NO.72, SHIVAPPA HOUSE
A.NARAYANAPURA
BESIDE OLD GOVT SCHOOL
BENGALURU-560 016
REPRESENTED BY GPA HOLDER
UMASHANKAR
6. NETRAVATHI
AGED ABOUT 24 YEARS
D/O LAKSHMAIAH
C/O UMASHANKAR
S/O SHIVAPPA
NO.72, SHIVAPPA HOUSE
A.NARAYANAPURA
BESIDE OLD GOVT SCHOOL
BENGALURU-560 016
REPRESENTED BY GPA HOLDER
UMASHANKAR
7. SHIVAPPA
AGED ABOUT 57 YEARS
S/O DODDA VENKATASWAMY
C/O UMASHANKAR
S/O SHIVAPPA
NO.72, SHIVAPPA HOUSE
A.NARAYANAPURA
BESIDE OLD GOVT SCHOOL
BENGALURU-560 016
REPRESENTED BY GPA HOLDER
UMASHANKAR
8. SUJATHA
AGED ABOUT 34 YEARS
S/O SHIVAPPA
8
W/O VIJAY KUMAR
C/O UMASHANKAR
S/O SHIVAPPA
NO.72, SHIVAPPA HOUSE
A.NARAYANAPURA
BESIDE OLD GOVT SCHOOL
BENGALURU-560 016
REPRESENTED BY GPA HOLDER
UMASHANKAR
9. UMASHNAKAR
AGED ABOUT 32 YEARS
S/O SHIVAPPA
NO.72, SHIVAPPA HOUSE
A.NARAYANAPURA
BESIDE OLD GOVT SCHOOL
BENGALURU-560 016
REPRESENTED BY GPA HOLDER
UMASHANKAR
10. ANNAPOORNA
AGED ABOUT 26 YEARS,
D/O SHIVAPPA,
W/O. RAVI KUMAR,
C/O. UMASHANKAR,
S/O. SHIVAPPA,
NO. 72, SHIVAPPA HOUSE,
A NARAYANAPURA,
BESIDE OLD GOVT SCDHOOL,
BENGALURU - 560 016
REPRESENTED BY GPA HOLDER
UMASHANKAR.
11. MOHAN KUMAR
AGED ABOUT 24 YEARS,
S/O SHIVAPPA,
C/O UMASHANKAR,
S/O SHIVAPPA,
NO. 72, SHIVAPPA HOUSE,
A NARAYANAPURA,
9
BESIDE OLD GOVT SCDHOOL,
BENGALURU - 560 016
REPRESENTED BY GPA HOLDER
UMASHANKAR.
12. SAVITHRAMMA
AGED ABOUT 54 YEARS,
D/O LATE DODDA VENKATASWAMY,
W/O NARAYANAPPA,
C/O UMASHANKAR,
S/O SHIVAPPA,
NO. 72, SHIVAPPA HOUSE,
A NARAYANAPURA,
BESIDE OLD GOVT SCHOOL,
BENGALURU - 560 016
REPRESENTED BY GPA HOLDER
UMASHANKAR.
13. M/S CHARTERED SAHAKAR BANK
NIYAMITHA
NO.1, 1ST MAIN, 1ST BLOCK, KORAMANGALA,
BENGALURU - 560 034.
14. VELAGAPUDI NITHYA KALYANI
MAJOR BY AGE,
W/O VELAGAPURI KALYAN KRISHNA,
NO. G-5, VAJARAM LOTUS,
VIJAYA BANK LTD.,
BILEKAHALLI, BEGUR POST,
BENGALURU - 560 076.
15. SMT. LAKSHMI SOWRIRAJAN
MAJOR BY AGE,
W/O SRINIVASAN KRISHNAN,
NO.204, ABHITEJA CLASSIC VILLA,
GAUTAMI ENCALVE,
NEAR CHIREC PUBLIC SCHOOL,
KONDAPUR,
HYDERABAD - 500 002.
10
16. SMT. ANUBHUTI BHARGAVA
MAJOR BY AGE,
W/O GAGAN BHARGAVA,
NO.604, PURVA PARONAMA,
KALENA AGRAHARA,
BENGALURU - 560 076.
17. SRI GAGAN BHARGAVA
MAJOR BY AGE,
S/O LATE B K BHARGAVA,
NO.604, PURVA PARONAMA,
KALENA AGRAHARA,
BENGALURU - 560 076.
18. KUKKALA KIRAN KUMAR
MAJOR BY AGE,
S/O K NARSAIAH,
NO.301, SANNIDHI PARADISE,
GREEN GLEN LAYOUT,
BELLANDUR,
BENGALURU - 560 102.
19. SMT. VANAJA
MAJOR BY AGE,
W/O P KULASHEKAR,
NO.93, 2ND AVENUE,
TEACHER COLONY,
VENKATAPURA,
BENGALURU - 560 011.
20. DR. AVI NAHAR
MAJOR BY AGE,
S/O DR. PARAS NAHAR,
NO.119, MAHA SHWETH NAGR,
OPP ISKCON TEMPLE,
UJJAIN - 456 010
MANDHYA PRADESH.
11
21. TUMMALAPALLI SATYANANDAM
MAJOR BY AGE,
(GPA HOLDER AND F/O OF TUMMALAPPALI MOHAN
KUMAR)
FLAT NO. 507, BLOCK NO. 17, SUNCITY
APARTMENTS, IBBLUR, SARJAPUR OUTER RING
ROAD,
BENGALURU - 560 103.
22. AJITH KUMAR SUBRAMANYAM
MAJOR BY AGE,
S/O. SURYANARAYAN,
SUBRAMANYAM,
NO.78, 7/1, SANTANAM LAYOUT,
US APRT. ROAD, THINDLU,
VIDYARANYAM,
BENGALURU-560 097.
23. SRI. DHANESH G. KURUP
MAJOR BY AGE,
S/O. N.V. GOPINATHA KURUP,
VIVA 505, SJR VARITY,
KASAVANAHALLI MAIN ROAD,
BENGALURU-560 035.
24. SMT. SINDULAKSHMI KURUP
MAJOR BY AGE,
W/O. DHANESH G. KURUP,
VIVA 505, SJT VARITY,
KASAVANAHALLI MAIN ROAD,
BENGALURU-560 035.
25. YEDDULA SUDHEER KUMAR
MAJOR BY AGE,
S/O. Y. RAJANNA,
NO.G-3, SHRUSTI ENCLAVE,
LALBAHADUR NAGAR,
B. CHANNASANDRA,
BENGALURU-560 053.
12
26. KIRAN MYSORE RAMESH
MAJOR BY AGE,
S/O. M. N. RAMESH,
NO.72, SBI OFFICERS COLONY,
BASAVESHWARANAGAR,
BENGALURU-560 079.
27. ROOPA KIRAN
MAJOR BY AGE,
W/O. KIRAN MYSORE RAMESH,
NO.72, SBI OFFICERS COLONY,
BASAVESWARANAGAR,
BENGALURU-560 079.
28. PALAKURU KRISHNA MURTHY REDDY
MAJOR BY AGE,
(GPA HOLDER AND F/O. PALAKURU PRADEEP
KUMAR AND PALAKURU PRAVEEN KUMAR),
NO.23-1/1, JYOTHI REDDY NAGAR,
C.K. PALLI (POST),
CHITTOOR DISTRICT,
ANDHRA PRADESH.
29. V. NARASI REDDY
(GPA HOLDER &
F/O. VANGALA SREENIVASA REDDY),
NO.96, 28TH MAIN ROAD,
1ST SECTOR, H.S.R. LAYOUT,
BENGALURU-560 102.
30. VINEET KUMAR
MAJOR BY AGE,
S/O. ANIRUDH PRASAD GUPTA,
NO.2071, SOBHA DAISY, IBBLUR,
OUTER RING ROAD,
BENGALURU-560 103.
31. SMT. KAVITHA GUPTA
MAJOR BY AGE,
W/O. VINEET KUMAR,
13
NO.2071, SOBHA DAISY, IBBLUR,
OUTER RING ROAD,
BENGALURU- 560 103.
32. KIRAN KUMAR VISHNUBHATLA
MAJOR BY AGE,
S/O. V. SURYA NARAYANA SARMA,
NO.3-5-118/8, KRISHNA NAGAR,
ST. 2, HYDERGUDA,
HYDERABAD-500 048.
33. A. RAJESH
MAJOR BY AGE,
S/O. A.T. ANNAMALAI,
PIA, KLASSIK NEST APARTMENTS,
80 FEET ROAD, HSR LAYOUT,
SECTOR II,
BENGALURU-560 102.
34. UDAY SAMBRANI
MAJOR BY AGE
W/O WAMAN RAO SAMBRANI
NO.1116, KRISTAL JASPER
KASAVANAHALLI
OFF.SARJAPURA ROAD
BENGALURU-560035
35. SMT. VANAJA SAMBRANI
W/O UDAY SAMBRANI
MAJOR BY AGE
NO.1116, KRISTAL JASPER
KASAVANAHALLI
OFF.SARJAPURA ROAD
BENGALURU-560035
36. SMT KONDAPALLI JYOTHIRMAYEE
(GPA HOLDER AND
W/O. SIRIGIRI SREEDHAR REDDY)
NO.E-18, ROLLING HILLS
14
GACHIBOWLI
HYDERABAD-32
37. RENU VOHRA
W/O M M VOHRA
MAJOR BY AGE
NO.4016, SOBHA JASMINE
BELLANDUR
BENGALURU-560103
38. PRAKASH HEGDE
S/O SHRIDHAR HEGDE
MAJOR BY AGE
NOP.331/2, PALLAVI IST A CROSS
29TH MAIN, BTM LAYOUT
IST STAGE
BENGALURU.
39. KAREEMULLA SHAIK
S/O S BIRAM SAHEB
MAJOR BY AGE
NO.1170/A, 22ND B MAIN
9TH CROSS, SEC.1, HSR LAYOUT
BENGALURU-560034
40. KAPIL KATARIA
S/O SUNDER DAS
MAJOR BY AGE
NO.H-456, PHASE-I
MOHALI-160055
PUNJAB
41. DR PRADEEP CHANDRA SHETTY
MAJOR BY AGE
S/O CHANDRASHEKAR SHETY
NO.A102, ADARSH PALACE
47TH CROSS, 5TH BLOCK
JAYANGAR
BENGALURU-560041
15
42. GAURAV GARG
S/O GAIN CHAND AGARWAL
MAJOR BY AGE
NO.77, HARGOVIND ENCLAVE
DELHI-110092
43. SMT. DIVYA GARG
W/O GAURAV GARG
MAJOR BY AGE
NO.77, HARGOVIND ENCLAVE
DELHI-110092.
44. DR INDU SHETTY
W/O. DR PRADEEP CHANDRA SHETTY
MAJOR BY AGE
NO.A-102, ADARSH PALACE
47TH CROSS, 5TH BLOCK
JAYANAGAR
BENGALURU-560041.
...RESPONDENTS
(BY SRI. DR. S. NAGARAJ, ADV. FOR R1 TO R12
V/O. DT. 18.08.2016 NOTICE TO R13 TO R44 IS
DISPENSED WITH)
THIS CIVIL REVISION PETITION IS FILED UNDER
SECTION 115 OF CPC AGAINST THE JUDGMENT AND
DECREE DT. 18.06.2016 PASSED IN O.S.NO. 3586/2014
ON THE FILE OF THE VIII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU, REJECTING THE
I.A.NO.IV FILED UNDER ORDER VII, RULE 11(A) AND (D)
OF CPC.
THESE CIVIL REVISION PETITIONS HAVING BEEN
HEARD AND RESERVED ON 27.02.2020 AND COMING ON
FOR PRONOUNCEMENT OF ORDERS THROUGH VIDEO
CONFERENCE AT BENGALURU, THIS DAY, THE COURT
MADE THE FOLLOWING:
16
ORDER
CRP 297/2016 has been filed by the defendants 1, 2 and 3 and CRP No.166/2017 has been filed by defendant nos.15, 21, 22, 24, 25, 26, 29, 30, and 23 respectively challenging the common order passed on IA Nos. 4 and 9 whereby the applications filed under Order V11 Rule 11 (a) and (d) of CPC came to be dismissed as per the order dated 18.06.2016.
2. As both the petitions have been filed challenging the common order both the petitions are disposed of by this order.
3. The parties are referred to by their ranks before the trial court for the purpose of convenience. The plaintiffs are stated to be the collateral and lineal descendants of late Munivenkata Bhovi. It is stated that the propositus Munivenkata Bhovi died leaving behind his legal representatives Hurukappa and two grandsons 17 Dodda Venkataswamy and Chikka Venkataswamy. It is stated that the children of late Munivenkata Bhovi, Hurukappa and Chikka Venkataswamy had executed sale deed in favour of Khasimsab to the exclusion of Dodda Venkataswamy by the sale deed dated 09-12-1946 with respect to the property described as 'A' schedule property.
4. Subsequently it is stated that late Khasimsab sold the same property in favour of late H.R.Lakshmaiah Reddy and the property has changed hands as per the narration contained in paragraph 5 onwards of the plaint.
5. The plaintiffs claiming under late Dodda Venkataswamy have filed the present suit for partition seeking for a declaration that the plaintiffs are entitled to an extent of one third share of the joint family property with a further direction that the sale deeds executed by the children of late Munivenkata Bhovi are 18 not binding to the extent of one third share of Dodda Venkataswamy's share.
6. The defendants No. 1, 2 and 3 have filed an application under Order V11 Rule 11 (a) and (d) and sought for rejection of plaint on the ground that there was no cause of action as the properties were vested under the provisions of the Mysore (Personal and Miscellaneous) Inams Abolition Act 1954 and Lakshmaiah Reddy had acquired title in respect of the property by virtue of a grant. It was also contended that the title of the plaintiffs' great-grandfather stood extinguished on 09.12.1946 and hence the suit was barred by limitation.
7. The defendant nos. 21, 22, 23, 25, 30 and 31 had also filed an application numbered as I.A. No. 9 seeking for rejection of the plaint under Order 7 to 11 CPC. It was contended that the plaintiffs were seeking for a declaration that the sale deed dated 19.12.1946 19 and the subsequent transactions are not binding on the plaintiffs share. It is contended that as the sale deed at the first instance was executed by the ancestors of the plaintiffs family in 1946 the said relief relating to the sale deed was barred by the law of limitation, it was further contended that the land in survey No.55 was converted for non-agricultural purpose and the Bangalore Development Authority had approved the layout but however court fee was paid by treating the property as agricultural land which was contrary to the legal position as laid out in the case of J. M. Narayana and others v. Corporation of the City of Bangalore, By its Commissioner Office, Bangalore and Others reported in ILR 2005 KAR 60, it was also contended that all co-sharers including those with whom two thirds share was vested were not made parties though they were necessary parties in a suit for partition, that as proceedings were pending regarding resumption of land under the provisions of the Karnataka Scheduled 20 Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 ("the P.T.C.L. Act", for short) suit could have been filed only after land was restored under the provisions of the aforesaid Act.
8. Common objections were filed by the plaintiffs to I.A.No. 4 and I No. 9, whereby the stand taken was that the land was not a Personal or Miscellaneous Service Inam, that the question of limitation would not come into play in light of the plaintiffs claiming to be joint possession of the property, that the plaintiffs came to know of the impugned sale transactions only on 11-01-2014 as pleaded in para nine of the plaint, that Lakshmaiah Reddy having purchased the property from Kasimsab on 25-07-1949, the reliance on Grant certificate would not confer any better title as the Inam Abolition Act did not apply, that the court has decided the question of court fee as per the order dated 13-05-2014 and hence the question of insufficiency of court fee is not a question open for 21 reconsideration, the question of having initiated proceedings under the P.T.C.L. Act cannot defeat the rights of the plaintiffs to claim for partition, as the same are parallel remedies.
9. The trial court has disposed of IA No. 4 and 9 by a common order dated 05-07-2016 by rejecting the said applications. The trial court has held that the question whether suit schedule properties were notified and vested under section 3 of the Inam's Abolition Act and hence there was no question of claiming rights over the said property were matters to be considered only after a full fledged trial. As regards the contention that the suit was barred by limitation as the earliest transaction was in the year 1946, trial court has observed that the question of limitation being a mixed question of fact and law, the plaint cannot be rejected at the threshold. It was further noted that the plaintiffs had specifically contended that there were series of transactions from 1946 till the filing of the suit. As 22 regards the contention of improper payment of court fee, the trial court has referred to the earlier order dated 13-05-2014 wherein the court while noticing the assertion of joint possession had upheld the valuation of the suit by the plaintiff and accordingly had held that the said aspect cannot be made out as a ground for rejection of the plaint.
10. The defendants who have filed the revision petition have specifically assailed the impugned order of the trial court by asserting that the claim of the plaintiffs was barred by limitation as Hurulappa and Chikka Venkataswamy both children of Munivenkata Bhovi had executed sale deed in favour of Kasimsab on 09-12-1946 and the contention that the Dodda Venkataswamy had been excluded in such alienation giving rise to cause of action to institute the present suit cannot be permitted to be raised at such a belated stage in the year 2014. It is also contended that by clever drafting the plaintiffs are seeking to overcome the 23 question of limitation and create a cause of action which ought to be taken note of in an appropriate manner. It is further contended that the other sharers who represent two thirds interest in the schedule property are necessary parties but have not been made as parties in the suit and accordingly the plaint is liable to be rejected on this ground alone.
11. The respondents who are the plaintiffs have contended that question of limitation being a mixed question of fact and law cannot be taken note of for the purpose of rejecting the plaint at the threshold more so in light of article 109 of the limitation Act which provides that the starting point of limitation would be when the alienee takes possession of the property, which determination is a question of fact. It is further contended that while considering the application for rejection of plaint the court is obliged to look into the averments of the plaint alone and the defence of the defendants cannot be looked into and accordingly the 24 contentions urged by the defendants are matters to be decided during trial.
12. Heard learned counsel Sri.V.B.Shivkumar and Sri. S.R.Hegde Hudlamane for the petitioners and Sri.Nagaraj, learned counsel for the respondents.
13. It is a settled position in law that the application for rejection of plaint rests on appreciation of the averments in the plaint and must stand or fall on the contents of the plaint and does not depend on the defence taken by the defendants.
14. A perusal of the plaint would reveal that the plaintiffs claim to be the descendants of the Dodda Venkataswamy and have claimed that sale deed executed on 09-12-1946 in favour of Khasimsab by Chikka Venkataswamy and Hurulappa to the exclusion of Dodda Venkataswamy was not binding on the plaintiffs and hence have sought for partition of the property.
25
15. The question as to whether the plaint lacks cause of action and a make-believe cause of action has been made out by clever drafting in the plaint is a matter that requires to be examined with much circumspection. While in an appropriate case recourse can be made to the principle that if on a careful scrutiny of the plaint it would reveal that the cause of action is sought to be created by clever drafting in such circumstances plaint could be rejected.
16. A reading of the plaint would reveal that the plaintiffs have set up their rights as descendants of Dodda Venkataswamy who had a share in the property and hence the alienation of property by the other sharers would not bind the branch of Dodda Venkataswamy and the series of alienations are not binding on the plaintiffs. As regards the question of limitation it has been specifically pleaded that though the first alienation was in the year 1946 and there were further alienations till filing of the suit, the attempt to 26 dispossess the plaintiffs from the suit schedule property was only made in the year 2014. In light of the same, keeping in mind that an application for rejection of the plaint rests on the averments of the plaint and in light of Article 109 of the Limitation Act, which stipulates that the starting point of limitation is when the alienee takes possession which is a disputed question, case is made out for further enquiry of the case of the plaintiff in trial. Accordingly it cannot be stated that the plaint is one that lacks a cause of action and an illusion of cause of action is sought to be created by clever drafting. Accordingly the contention of the petitioners that the plaint itself is frivolous litigation and is a matter that does not call for further enquiry cannot be accepted and the plaintiff cannot be non-suited at the threshold itself.
17. It is contended that by clever drafting an illusory cause of action is sought to be created. The petitioners have relied on the judgment of the Apex 27 Court in the case of T. ARIVANDANDAM v.
T.V.SATYAPAL AND ANOTHER reported in (1977) 4 SCC 467 wherein the Apex Court has held that where on a "meaningful - not formal - reading of the plaint is manifestly vexatious and meritless in the sense of not disclosing a right to sue, he (Munsiff) should exercise his power under Order VII Rule 11 of CPC, taking care to see that the ground mentioned therein is fulfilled." However, the context in which such observations were made cannot be ignored. That was a case where the father who was a tenant had suffered an eviction decree which was affirmed by the High Court and later a suit came to be filed by the son that the eviction decree was obtained by 'fraud or collusion'. However, in the present case, the primary arguments advanced was that the proceedings are time barred, having noted the contentions, it is clear that in the present case the question of limitation involves a mixed question of fact and law which is to be decided after trial. In the present case, clearly at this 28 stage, the plaint does not warrant rejection by invoking the principle enunciated by the Apex court as noticed above.
18. Similarly the reliance by the counsel for the petitioners on the judgment in N.V.Srinivasa Murthy and Others v. Mariyamma (Dead) by proposed LRs and Others reported in (2005) 5 SCC 548 is also misplaced. That was a case where relief for declaration of title was sought for in the year 1996 while contending that the sale deed dated 05-05-1953 was a loan transaction and there was an oral agreement of re-conveyance. The court while observing that the suit was not maintainable without seeking for an appropriate declaration specifically as regards the sale deed of 1953, held that by clever drafting the bar of limitation was sought to be overcome. In the present case (as the suit is one for partition) the limitation to sue being governed by Article 109 to set aside alienation by the father, in light of the assertion regarding 29 possession in Para 9 of the plaint, the principle laid down by the Apex Court is inapplicable.
19. The petitioners have further contended while advancing arguments that the proceeding is manifestly an abuse of the process of the court and such litigation must be nipped in the bud and have relied on the judgment in Sandeep Polymers (P) Ltd. v. Bajaj Auto Ltd. and Others reported in [ (2007) 7 SCC 148]. However, a reading of the plaint in the present case would not justify treating the present litigation as one deserving termination at the threshold, as would be made out from the observations made supra. While rejecting such contention of the defendants as made out above, this court is not affirming the merits of the plaintiffs case. The court is merely expressing the opinion that plaint cannot be rejected at the threshold and matter requires to be taken up for trial leaving open all contentions.
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20. Insofar as the contention of defendants 1 to 2, and 3 that the cause of action does not survive in light of title being vested in Lakshmiah Reddy by virtue of a grant under the provisions of the Mysore (Personal and Miscellaneous) Inams Abolition Act, 1954, the said contention as to the vesting of title in Lakshmaiah Reddy while extinguishing all previous title under which the plaintiffs are claiming, is a matter to be established during trial and cannot be taken note of to reject the plaint in the initial stage. Moreover, while deciding the application for rejection of the plaint, it is only the averments of the plaint that ought to be taken note of and not the defence of the defendants, which is also the view taken by the trial judge. Accordingly the above contention is to be rejected and this court concurs with the view of the trial court which does not call for interference.
21. As regards the question of sufficiency of court fee, it has been pointed out by the counsel for the 31 plaintiffs that the office had raised an objection regarding payment of court fee and the trial court by its order dated 13-05-2014 while taking note of the assertion that the plaintiffs were in joint possession of the property, had overruled the said office objections and the said order having become final the ground urged as regards insufficiency of court fee cannot be considered for the purposes of the application.
22. As regards the question of suit being barred by limitation, as the property was alienated by Hurulappa and Chikka Venkataswamy to the exclusion of the Dodda Venkataswamy on 09-12-1946, it must be noted that the relevant article of the Limitation Act that would be applicable is article 109 which provides that the starting point of limitation for challenging and alienation by the father is 12 years from when the alienee takes possession. Clearly the date on which the alienee takes possession being the starting point of limitation, in the present case the plaintiff has 32 specifically stated at paragraph 9 of the plaint that the plaintiffs were dispossessed on 11-01-2014 and subsequently regained possession, which could then be taken to be the starting point of limitation.
23. The Madhya Pradesh High Court had an occasion to consider the starting point of limitation under article 109 of the limitation Act in the case of J. K. Shrivastava v. Vikram Shrivastava reported in 1999 AIHC 3981.
In the facts of the said case, the legal heirs of Sir JP Srivastava had executed the sale deed on 19-05-1993 in favour of M/s.Rampur Finance Corporation Private limited which was an instrumentality of the family itself. The court observed, that as to when possession passed out of the family control pursuant to the sale of the property in 1958, was a question of fact to be decided on the basis of evidence. The court refused to interfere with the order 33 of the District Judge whereby the application for injunction which had been allowed was challenged by way of a miscellaneous appeal. Clearly distinction was maintained between execution of the sale deed and alienee being put into possession which date is the starting point of limitation to challenge the sale deed in terms of article 109 of the limitation Act.
24. It has been contended by the petitioners that a plaint can be rejected in exercise of the power under Order VII Rule 11 of CPC even if the question of limitation is involved. The petitioners have relied on various judgments. However, it must be noted that where the question of limitation is a mixed question of fact and law then such a ground may not be available to reject a plaint as the suit must be subject to a trial. However, where the question of limitation can be adjudicated on a perusal of the averments of the plaint, then the question of limitation could still be a ground to reject the plaint.
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25. In the present case, Article 109 of the Limitation Act applies which stipulates that the starting point of limitation is where the alinee is put into possession. At Para 9 of the plaint it has been asserted that the alienees dispossessed the plaintiff briefly in 2014. The said period if taken to be the starting point of limitation, the suit filed in the year 2014 cannot be stated to be barred by time, as per the averments of the plaint. Accordingly, it cannot be stated that the petitioners have made out a ground for rejection of the plaint on the ground of limitation.
26. Though the petitioners have relied upon the judgment in RSA No.394/2005 dated 29.05.2008 and that of the Apex Court in the case of Krishna Pillai Rajasekharan Nair (D) by LRs v. Padmanabha Pillai (D) by LRs and Others reported in AIR 2004 SC 1206, it must be noted that both the judgments were rendered in the light of peculiar facts of the cases and though it was held that the right to claim partition was governed 35 by Article 113 of the Act of 1963 (corresponding to Article 120 of the Act of 1908) the said cases did not deal with the applicability of Article 109 of the Limitation Act, which is the relevant Article and governs the limitation as regards the right to sue, in the present factual matrix. Accordingly, the above referred judgments do not come to the aid of the petitioners.
27. In light of the discussion as made above, the petitions are dismissed.
Sd/-
JUDGE NP/VGR