Karnataka High Court
Smt. Varalakshmi vs Sri. K. Manjunath on 12 July, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2023:KHC:24047
CRP No. 462 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CIVIL REVISION PETITION NO. 462 OF 2022 (IO)
BETWEEN:
1. SMT. VARALAKSHMI
AGED ABOUT 70 YEARS,
W/O. LATE K. NARAYANA,
K. NARAYANA, MAJOR,
S/O. LATE KARIYAPPA,
SINCE DECEASED BY HIS LRS.,
2. N. BALAMURALI,
AGED ABOUT 49 YEARS,
3. HEMANTHKUMAR N.,
AGED ABOUT 47 YEARS,
Digitally signed
PETITIONER NOS.2 AND 3 ARE
by SHARANYA T SONS OF LATE K. NARAYANA
Location: HIGH ALL ARE RESIDENTS OF
COURT OF NO.8/18/1, 3RD MAIN ROAD,
KARNATAKA
ATHIGUPPE, VIJAYANAGAR,
BENGALURU-560 040.
...PETITIONERS
(BY SRI R. CHANDRANNA, ADVOCATE)
AND:
1. SRI. K. MANJUNATH
AGED ABOUT 29 YEARS,
S/O. LATE KRISHNAPPA &
SMT. THIMMAKKA,
RESIDING AT NO.30,
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NC: 2023:KHC:24047
CRP No. 462 of 2022
2ND MAIN ROAD, ATHIGUPPE,
VIJAYANAGAR,
BENGALURU-560 040.
2. SRI M. MAHESH
AGED ABOUT 35 YEARS,
S/O. MUTHURAPPA AND
SMT. MANGALAMMA,
RESIDING AT NO.1,
POST OFFICE BUILDING,
KUMBALAGODU,
KENGERI HOBLI,
BENGALURU-560 060.
3. SMT. THIMMAKKA
AGED ABOUT 59 YEARS,
D/O. CHIKKANARASIMHAIAH,
RESIDING AT NO.30,
2ND MAIN ROAD,
ATHIGUPPE, VIJAYANAGAR,
BENGALURU-560 040.
4. KOMALA. K.,
AGED ABOUT 36 YEARS,
D/O. THIMMAKKA,
RESIDING AT NO.2,
PATEL CHELUVAPPA STREET,
MUNIREDDYPALYA,
BENGALURU-560 006.
5. SMT. MANGALAMMA
AGED ABOUT 56 YEARS,
D/O. CHIKKANARASIMHAIAH,
RESIDING AT NO.1,
POST OFFICE BUILDING,
KUMBALAGODU,
KENGERI HOBLI,
BENGALURU-560 060.
6. SMT. JYOTHILAKSHMI
AGED ABOUT 36 YEARS,
D/O. MANGALAMMA,
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NC: 2023:KHC:24047
CRP No. 462 of 2022
RESIDING AT NO.1,
POST OFFICE BUILDING,
KUMBALAGODU,
KENGERI HOBLI,
BENGALURU-560 060.
7. SRI KRISHNAPPA
AGED ABOUT 53 YEARS,
S/O. CHIKKANARASIMHAIAH,
NO.8/11, 3RD MAIN ROAD,
ATHIGUPPE, VIJAYANAGAR,
BENGALURU-560 040.
...RESPONDENTS
(BY SRI BYRE REDDY M.S., ADVOCATE FOR R1 & R2;
SRI SAMEER S.N., ADVOCATE FOR R3 TO R7)
THIS CRP IS FILED UNDER SECTION 115 OF CPC,
AGAINST THE ORDER DATED 16.07.2022 PASSED ON I.A.NO.3
IN O.S.NO.5718/2016 ON THE FILE OF THE XV ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU, REJECTING
THE IA NO.3 FILED UNDER ORDER 7 RULE 11(a) AND (b) R/W
SECTION 151 OF CPC.
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This matter is listed for admission and I have heard the learned counsel for the petitioners and learned counsel for the respondents.
2. This revision petition is filed challenging the order dated 16.07.2022 passed on I.A.No.3 in O.S.No.5718/2016 on the file of the XV Additional City Civil and Sessions Judge, -4- NC: 2023:KHC:24047 CRP No. 462 of 2022 Bengaluru, rejecting I.A.No.3 filed under Order 7, Rule 11(a) and (b) read with Section 151 of C.P.C.
3. The main contention of the petitioners-defendants before the Trial Court by filing an application is that the plaintiffs have filed the suit for the relief of declaration to declare that the sale deed dated 28.05.1980 executed by late Chikkanarasimhaiah in favour of second defendant is void in terms of the judgment of the High Court of Karnataka in BASHEER AHMED VS. STATE OF KARNATAKA. In the said suit, the plaintiffs alleged that they are the sons of defendant Nos.3 and 5 respectively. The defendant Nos.3 and 5 are the daughters of late Chikkanarasimhaiah and said Chikkanarasimhaiah died on 25.10.2010 leaving behind the only son defendant No.7 and two daughters, defendant Nos.3 and 5. They also contend that Chikkanarasimhaiah was granted occupancy rights by the Land Tribunal with respect to the land bearing Sy.Nos.143, 142, 159/4 (New No.340/1), 161 and 165 of Jodi Kempapura Agrahara Village, Kasaba Hobli, Bengaluru North Taluk by order dated 17.05.2007. The said Chikkanarasimhaiah become absolute owner of the above said land, as it is his self-acquired property. He died intestate, -5- NC: 2023:KHC:24047 CRP No. 462 of 2022 hence the estate of the deceased Chikkanarasimhaiah devolved on his children i.e., defendant Nos.3, 5 and 7. It is the claim that the suit property bearing Sy.No.340/1 has been in peaceful possession and enjoyment of the of the defendant Nos.1 and 2 from the date of purchase. The same was sold vide registered sale deed dated 28.05.1980 by Chikkanarasimhaiah in favour of defendant No.2. Hence, the plaintiffs, who are no way legal heirs of deceased Chikkanarasimhaiah does not have any right and interest over the property and the very suit itself is not maintainable and there is no cause of action to file the suit. Hence, prayed the Court to reject the suit.
4. On the contrary, the plaintiffs have also filed the objection statement contending that upon the death of deceased Chikkanarasimhaiah, the estate of the deceased devolved among this children, who are defendant Nos.3, 5 and 7 and they have been made as parties to the proceedings. The Sy.No.3400/1 has been in peaceful possession and enjoyment of the defendants. The defendant Nos.1 and 2 ever since the date of purchase under the sale deed dated 28.05.1980 is -6- NC: 2023:KHC:24047 CRP No. 462 of 2022 divided by the plaintiffs and contend that the very contention that suit is not maintainable cannot be accepted.
5. The Trial Court, having considered the grounds urged in the application and also the objection statement, formulated the point for consideration whether the defendant Nos.1 and 2 have made out a ground that the suit is liable to be rejected under Order 7, Rule 11(a) and (b) read with Section 151 of C.P.C. The Trial Court having considered the very contention raised in the application filed under Order 7, Rule 11(a) and (b) read with Section 151 of C.P.C. and also the statement of objection, in Para No.10 discussed that, when the plaintiffs claim that they are entitled for share in the property and also specifically stated they came to know about the said alleged sale deed recently i.e., on 29.07.2012 and cause of action is also mentioned in the plaint itself, the Trial Court observed that the deceased Chikkanarasimhaiah was in possession of the property as cultivator and he filed an application for grant of land, which was granted in the year 2007. But, prior to it after filing application for grant of land, he had sold the property through registered sale deed dated 28.05.1980. The question before this Court is whether -7- NC: 2023:KHC:24047 CRP No. 462 of 2022 Chikkanarasimhaiah has right to sell the property and even if it is sold, whether it is valid in the eye of law and subsequently, he also died in the year 2010 and these are all the matters to be adjudicated only during trial and disputed questions cannot be decided in an application filed under Order 7, Rule 11(a) and
(b) read with Section 151 of C.P.C. Hence, dismissed the same and therefore, the present revision petition is filed before this Court.
6. Learned counsel for the petitioners would vehemently contend that said Chikkanarasimhaiah was cultivating the property and he made an application for grant of land and land was also granted in the year 2007 but, sale deed was executed in the year 1980 itself and the Trial Court failed to take note of the said fact into consideration and also failed to consider the ratio laid down in the judgment of Division Bench of this Court in SMT. SHAKUNTALA AND OTHERS VS. BASAVARAJ AND OTHERS reported in ILR 2016 KAR 3604, wherein the Court has categorically held that Section 8 applies in a case of succession, if the property is a self-acquired property of a person, who died intestate. When such being the case and the deceased Chikkanarasimhaiah died intestate and -8- NC: 2023:KHC:24047 CRP No. 462 of 2022 mother is alive, the plaintiffs cannot seek any relief. The Trial Court failed to consider the very contention urged in the application and erroneously dismissed the application.
7. Per contra, learned counsel for the respondents would submit that with regard to the issue whether the defendant Nos.1 and 2 are having right or not, the same cannot be decided in an application filed under Order 7, Rule 11(a) and
(b) read with Section 151 of C.P.C. and the Court has to look into the averments of the plaint and not the defence of the defendants.
8. Having heard the learned counsel for the petitioners and also the learned counsel for the respondents, the Court has to look into the averments of the plaint while considering the application filed under Order 7, Rule 11(a) and (b) read with Section 151 of C.P.C. and it is also settled law that defence is immaterial and application cannot decided on the basis of the defence which has been taken by the defendants. The very contention is that the plaintiffs are not having any right and when the mother is alive, they cannot claim any right. Admittedly, the application was filed by Chikkanarasimhaiah -9- NC: 2023:KHC:24047 CRP No. 462 of 2022 and grant was also made in the year 2007 and the defendants claim that already property was sold in the year 1980 and The issue with regard to whether the plaintiffs have got the right or not has to be considered during trial.
9. In the judgment of Division Bench of this Court relied upon by the petitioners in SMT. SHAKUNTALA's case, this Court decided the matter on merits when there was a decree which was challenged before this Court and the Trial Court has not committed any error in coming to the conclusion that whether the defendants have right or not and they are entitled for relief of declaration is a matter of trial. Hence, I do not find any error committed by the Trial Court in dismissing the application and whether the defendants are having right or not cannot be decided in an application filed under Order 7, Rule 11(a) and (b) read with Section 151 of C.P.C. and the Court has to only look into the averments of the plaint and not the defence of the petitioners-defendants and the very defence is immaterial and there is no merit in the revision.
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NC: 2023:KHC:24047 CRP No. 462 of 2022
10. In view of the discussions made above, I pass the following:
ORDER The revision petition is dismissed.
Sd/-
JUDGE ST List No.: 1 Sl No.: 28