Karnataka High Court
Smt Nanjamma vs Smt Gangamma on 9 October, 2015
Author: B.S.Patil
Bench: B.S.Patil
CRP 312/2014
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF OCTOBER, 2015
BEFORE
THE HON'BLE MR.JUSTICE B.S.PATIL
C.R.P.No.312/2014
BETWEEN
SMT.NANJAMMA
W/O LATE RAMANNA,
AGED ABOUT 71 YEARS,
OCC: BUSINESS,
R/AT NO. 125, 6TH CROSS,
LOWER PALACE ORCHARDS,
BANGALORE-560 003. ... PETITIONER
(By Sri.VIJAYA SHANKAR, SR.COUNSEL FOR
Sri G.A.SRIKANTE GOWDA, ADV.)
AND
1. SMT.GANGAMMA
D/O YELLAPPA,
AGED ABOUT 49 YEARS,
2. SMT. BHAGYAMMA
D/O YELLAPPA,
AGED ABOUT 49 YEARS,
3. SMT. SHANTHAMMA
D/O YELLAPPA,
AGED ABOUT 43 YEARS,
4. SMT. VENKATAMMA
D/O YELLAPPA,
AGED ABOUT 38 YEARS,
ALL ARE R/AT NO.32,
9TH CROSS, 1ST MAIN,
CRP 312/2014
2
BHOVIPALYA,
MAHALAKSHMIPURA,
BANGALORE-560 086.
5. SHRI CHINNAPPA
S/O LATE POOJARI VENKATASWAMY
AGED ABUT 61 YEARS,
R/AT NO. 32, 9TH CROSS,
1ST MAIN, BHOVI PALYA,
MAHALAKSHMIPURAM
BANGALORE-86.
6. SMT. VENKATAMMA
D/O GURAPPA
AGED ABOUT 68 YEARS,
R/AT MALAVALLI VILLAGE,
ALASUR TALUK, T.K. HALLI POST,
KADHAMPUR VILLAGE,
MANDYA DISTRICT.
7. SHRI SHAMANNA
S/O LATE POOJARI VENKATASWAMY
AGED ABOUT 54 YEARS,
R/AT NO. 32, 9TH CROSS,
1ST MAIN, BHOVI PALYA,
MAHALAKSHMIPURAM,
BANGALORE-86.
8. SMT. SHIVARAJAMMA
W/O LATE RAMASWAMY
AGED ABOUT 45 YEARS,
R/AT NO. 32, 9TH CROSS,
1ST MAIN, BHOVI PALYA,
MAHALAKSHMIPURAM
BANGALORE-86.
9. SHRI Y. NARAYANASWAMY
S/O LATE YELLAPPA
AGED ABOUT 40 YEARS,
R/AT NO. 32, 9TH CROSS,
1ST MAIN, BHOVI PALYA,
MAHALAKSHMIPURAM,
BANGALORE-86.
CRP 312/2014
3
10. SRI. VENKATESH
S/O LATE YELLAPPA
AGED ABOUT 44 YEARS,
R/AT NO. 32, 9TH CROSS,
1ST MAIN, BHOVI PALYA,
MAHALAKSHMIPURAM,
BANGALORE-86. ... RESPONDENTS
(By Sri. M.S.GANESH, ADV. FOR R1 TO R8 & R10,
Sri M.T.RANGASWAMY, ADV. FOR R9)
THIS CRP FILED UNDER SEC.115 OF CPC., AGAINST THE
ORDER DATED 6.8.2014 PASSED ON IA NO.3 IN O.S.NO.775/2011
ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE, BANGALORE (R)
DISTRICT, BANGALORE, REJECTING IA NO.3 FILED UNDER
ORDER 7 RULE 11(a) OF CPC.,
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 15.09.2015, IS COMING ON FOR PRONOUNCEMENT,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. Defendant No.7 in O.S.No.775/2011 has filed this revision petition under Section 115 CPC challenging the dismissal of her application filed under Order VII Rule 11 CPC.
2. The suit has been filed by respondents 1 to 4 herein seeking the following reliefs:
(i) direct defendants 1 to 6 to effect partition and separate possession of plaintiffs' legitimate share over the suit schedule property;
CRP 312/2014 4 (ii) declare that defendant No.7 has no right, title or interest or possession over the schedule
property and the entry made in MR.No.16/2007-
08 in respect of Sy. No.49/2 measuring 8 acres 9 guntas and 21 guntas kharab land situated at Kariobanahalli Village in respect of Sy. No.49/2 in the name of defendant No.7 is illegal and not binding on the absolute inheritance right, ownership and possession of the same by the plaintiffs;
(iii) grant permanent injunction restraining defendant No.7 from alienating, transferring or creating any charge or encumbrance in respect of the schedule property and from trespassing, interfering, meddling with or disturbing plaintiffs' peaceful possession and enjoyment of the schedule property;
3. The plaint averments disclose that suit for partition and for declaration that defendant No.7 has no right over property bearing Sy. No.49 measuring 5 acres 11 guntas of Kariobanahalli Village, Yeshwanthpur Hobli, Bengaluru North Taluk, has been instituted on the basis of the assertions that plaintiffs were the members of the joint family along with defendants 1 to 6. Plaintiffs 1 to 4 and defendants 5 & 6 claim to be children of late Yellappa. They trace their inheritance CRP 312/2014 5 rights to the property to one Venkatabhovi, son of Poojari Venkataswamy Bhovi, who purchased the suit schedule property under Sale Deed dated 22.02.1949 and who is stated to be the great grandfather of the plaintiffs. On the death of Venkata Bhovi, his son Poojari Venkataswamy succeeded to the suit schedule property. After Poojari Venkataswamy's death, according to the plaintiffs, they could not get the khata and mutation changed in their name due to illiteracy and lack of knowledge. Though the revenue authorities had sub-divided the land and effected phodi of land bearing Sy.No.49 assigning new Sy.Nos.49/1, 49/2 and 49/3 for different extents of land, plaintiffs were not served with any notice and they had no knowledge of sub-division. Only on 03.10.2008, when the plaintiffs applied for change of khata in their name, the Tahsildar refused to effect transfer of khata stating that khata in respect of Sy.No. 49/2 in respect of 8 acres 9 guntas had been made in the name of the defendant No.7 - Smt.Nanjamma. Thereafter, plaintiffs were shocked to know of the bifurcation of land and upon enquiry found that Mutation Entry No.16/2007- 08 dated 05.12.2007 had been ordered by the revenue authorities showing that sites had been formed in Sy.No.49/2 to an extent of 8 acres 9 guntas. Thus, defendant No.7 had CRP 312/2014 6 misrepresented the revenue authorities and illegally got the khata and mutation entry in her name.
4. Plaintiffs further contended that defendant No.7 was an utter stranger to the joint family and had no manner of right, title or interest over the schedule property and that there was imminent threat of interference by defendant No.7. Hence, the suit for declaration and injunction was instituted.
5. The Trial Court has rejected the application holding that the plea taken by the plaintiffs stating that they belonged to joint family was itself sufficient for the relief of partition and that pendency of O.S.No.1016/2009 against the very 7th defendant could not be considered at the stage of consideration of interlocutory application. The Trial Court has not gone into any other aspect of the matter. Indeed, there is non- consideration of the material and relevant aspects of the case by the Trial Court. It has only concluded that a meaningful reading of the plaint would show that relief of partition sought was required to be tried.
CRP 312/20147
6. I have heard Mr. S.Vijayashankar, learned Senior Counsel appearing for the revision petitioner - 7th defendant and the learned Counsel appearing for the respondents.
7. What is important to notice from the averments made in the plaint and the relief sought is, no declaration is sought in respect of the right, title and interest of the plaintiffs over the suit property. A negative declaration stating that defendant No.7 had no right, title, interest or possession over the suit property has been sought, apart from declaration that M.R.No.16/2007-08 made in the name of defendant No.7 was illegal and not binding on the plaintiffs.
8. Such a relief is not contemplated under the provisions of Specific Relief Act. Indeed, as per Section 34 of the Specific Relief Act, any person entitled to any legal character, or to any right regarding any property may institute a suit against any person denying or interested to deny his title or right and the Court may make a declaration that he is so entitled. Therefore, what is contemplated is relief regarding entitlement of the plaintiffs to a right over any property and a declaration to the effect that they are so entitled to such right against a person who denies his right or title. No such relief is sought by the CRP 312/2014 8 plaintiffs in this case. Unless the plaintiffs establish and seek a declaration that they are entitled for a right over the suit property, question of granting any relief against defendant No.7 to the effect that she has no right over the property will not arise.
9. So far as the relief of declaration that M.R.No.16/2007-08 entered in the name of defendant No.7 was illegal, Section 135 of the Karnataka Land Revenue Act, 1964 enacts a bar for institution of any suit against the State Government or any Officer of the State Government in respect of a claim to have an entry made in any record or register maintained under Chapter XI regarding record of rights omitted, cancelled or amended. However, the proviso enacts that a person aggrieved by such entry and who has any right may institute a suit against any person denying his title to such right for declaration of his right under the provisions of the Specific Relief Act and entry in the record or register shall be amended in accordance with such declaration. Therefore, unless the plaintiffs seek a declaration of their right over the property, question of challenging the entries in the revenue records effected by way of mutation entry does not arise and the same is indeed barred.
CRP 312/20149
10. The plaintiffs intend to defeat the provisions of Section 135 of the Karnataka Land Revenue Act and also institute a suit seeking a negative relief regarding absence of any right in defendant No.7 without seeking any declaration of their right over the property. This attempt has been made only to get over the bar of limitation regarding institution of a proper suit seeking appropriate relief.
11. Indeed, there is suppression of material fact by the plaintiffs and a total misrepresentation has been made in paragraph 15 of the plaint stating that there were no legal proceedings with regard to the subject matter of the suit in any court, inasmuch as the very plaintiffs have filed O.S.No.1016/2009 in respect of the very land seeking declaration of their lawful title and possession over the suit schedule property by challenging the very mutation entry and also for permanent injunction. A copy of the said plaint has been placed for perusal of the Court and the plaint averments are exactly the same, except for the fact that only defendant No.7 herein/revision petitioner is made party defendant in the said suit and not other members of the family. It is thus clear that the present suit apart from being hit by the provisions of CRP 312/2014 10 Section 135 of the Karnataka Land Revenue Act and not conceived or recognized under the provisions of Section 34 of the Specific Relief Act, is vexatious and frivolous.
12. It is also very important to notice here that the first relief sought in the suit is for partition and separate possession of the plaintiffs' share over the suit schedule property. If the suit is for partition of the joint family property, how defendant No.7 who is admittedly not a member of the family could be arrayed as a party and how there could be a cause of action against defendant No.7 in a suit for partition unless it is alleged and shown that he had purchased the suit schedule property or a part thereof from any one of the coparceners and that the sale made in his favour by the coparceners was not binding on the plaintiffs is not forthcoming. There is no such pleading in the plaint. Therefore, the suit for partition filed against defendant No.7 is without any cause of action in the pleadings and no decree can be passed against defendant No.7 regarding partition. Therefore, the entire claim made in the suit is bereft of any cause of action. Even as against other defendants, who are allegedly the family members of the plaintiffs, there is no averment with regard to the cause of action to seek partition CRP 312/2014 11 against them. Except the property which is held by the 7th defendant, no other property is the subject matter of the suit.
13. Incidentally, it is relevant to notice that defendant No.7 claims to have purchased the property on 28.04.1972 from one Chinna Bhovi and in the revenue records, the name of defendant No.7 has been recorded from the time of sale in her favour. Plaintiffs do not want to seek any relief against the registered Sale Deed executed in the year 1972 in favour of defendant No.7 for obvious reasons, because such a relief, if sought, would necessarily attract the operation of bar of limitation.
14. It is also relevant to notice here that by virtue of conversion of land to non-agricultural purpose, defendant No.7 claims to have formed sites in the land which is reflected in the mutation entry produced by the very plaintiffs. The land, therefore, did not any longer remain as an agricultural land as it was converted for non-agricultural purpose and sites have been formed. Therefore, on the basis of the plaint averments and in the wake of the nature of relief sought and having regard to the facts and circumstances adverted to herein above, it is clear that the suit instituted does not have any cause of action CRP 312/2014 12 against defendant No.7 and the negative relief sought against her cannot be granted in law.
15. It is also necessary to note here that the suit filed is vexatious and frivolous. The relief sought for are designed to circumvent the bar of limitation to lay a challenge to the Sale Deed executed as back as in the year 1972 in favour of defendant No.7. The Court below has totally misdirected itself in not considering these relevant aspects while simply rejecting the application filed by defendant No.7 seeking rejection of plaint. Such suit instituted by the plaintiff has to be nipped in the bud as such conduct of the plaintiffs deserves to be deprecated and discouraged.
16. Learned Senior Counsel for the petitioner is right and justified in placing reliance on the judgment of the Apex Court in the case N.V.SRINIVASA MURTHY & OTHERS Vs. MARIYAMMA (DEAD) BY PROPOSED L.Rs. AND OTHERS - (2005) 5 SCC 548 to support his contention that averments in the plaint concerning the mutation proceedings before the revenue authority did not furnish any cause of action for the suit as they had been made as a camouflage to get over the bar of limitation. The mutation entry was on the basis of the conversion order noting that sites CRP 312/2014 13 had been formed. Indeed, the mutation entry with regard to the revenue land was effected in the name of defendant No.7 after the Sale Deed of the year 1972 about which there is no whisper by the plaintiffs.
17. In the case of T.ARIVANDANDAM VS T.V.SATYAPAL & ANR. - 1978 SCR (1) 742, the Apex Court has held that if on a meaningful not formal reading of the plaint it is found to be manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, the Court should exercise its power under Order VII Rule 11 CPC. It has further observed that if clever drafting has created the illusion of a cause of action, it should be nipped in the bud at the first hearing. In the instant case, the suit as framed is not conceived under the provisions of the Specific Relief Act, barred under Order II Rule 2 of CPC and Section 135 of the Karnataka Land Revenue Act, apart from the fact that there is no cause of action to seek partition against defendant No.7.
18. It has to be again noticed here that defendant has purchased the property way back in the year 1972 under a registered sale deed and has been enjoying the same. He has also got the land converted as is evident from the mutation CRP 312/2014 14 entry which is sought to be challenged in the suit. Plaintiff does not seek any relief against the said sale deed of the year 1972 under which defendant No.7 has acquired title, nor is there any whisper as to how a suit for partition against defendant No.7 in respect of the property which has been purchased by him in the year 1972 from third party could be maintained. Hence, in my considered view, the plaint deserves to be rejected at the threshold. No purpose whatsoever would served in keeping this litigation pending. It is not in the interest of justice to encourage such vexatious and frivolous litigation.
19. In the result, this revision petition is allowed. Impugned Order is set aside. Plaint is ordered to be rejected in terms of Order VII Rule 11 (a) and (d) CPC.
Sd/-
JUDGE KK