Karnataka High Court
Mohammed Aseem Raheel vs State Of Karnataka And Ors on 17 March, 2026
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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RFA No. 200033 of 2020
HC-KAR
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 17TH DAY OF MARCH, 2026
PRESENT
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
AND
THE HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA
REGULAR FIRST APPEAL NO.200033 OF 2020 (DEC/INJ)
BETWEEN:
MOHAMMED WASEEM RAHEEL
S/O LATE MOHD. PASHA,
AGED ABOUT : 48 YEARS,
OCC: BUSINESS AND AGRICULTURE,
R/O: H.NO: 8-5-389/1 JABBAR COLONY,
NEAR FIRE STATION, BIDAR.
...APPELLANT
(BY SRI. SHIVAKUMAR KALLOOR, ADVOCATE)
AND:
1. STATE OF KARNATAKA,
REPRESENTED BY THE
Digitally signed by
VARSHA N DEPUTY COMMISSIONER,
RASALKAR
Location: HIGH BIDAR - 585 401.
COURT OF
KARNATAKA
2. THE COMMISSIONER,
KARNATAKA HOUSING BOARD,
KAVERI BHAVAN, K.G. ROAD,
BENGALURU - 560 001.
3. THE ASSISTANT EXECUTIVE ENGINEER
KARNATAKA HOUSING BOARD, NAUBAD,
DIST: BIDAR - 585 401.
4. THE COMMISSIONER OF
CITY MUNICIPAL COUNCIL
CMC, BIDAR - 585 401.
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RFA No. 200033 of 2020
HC-KAR
5. THE TAHASILDAR,
BIDAR - 585 401.
...RESPONDENTS
(BY SRI. SHIVAKUMAR R.TENGLI, AGA FOR R1 AND R5;
SRI. SHIVAKUMAR MALIPATIL, ADVOCATE FOR R2 TO R3;
SRI. GOURISH S.KHASHAMPUR, ADVOCATE FOR R4)
THIS RFA IS FILED UNDER SECTION 96 OF CPC, PRAYING TO
SET ASIDE THE IMPUGNED ORDER DATED 21.01.2020 IN
O.S.NO.82/2018 ALLOWING I.A.NO.10 U/O 7 RULE 11(D) OF CPC
REJECTING THE SUIT OF THE PLAINTIFF AND RESTORE THE SUIT
O.S.NO.82/2018 ON THE FILE OF ADDL. CIVIL JUDGE AND CJM,
BIDAR, IN ENDS OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
and
HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE SURAJ GOVINDARAJ)
1. The appellant is before this Court seeking for the following reliefs:
"To allow the above Regular First Appeal and set aside the impugned order dated 21.01.2020 in O.S.No.82/2018 allowing I.A.No.10 U/o 7 Rule 11(d) of CPC rejecting the suit of the plaintiff and restore the suit O.S.No.82/2018 on the file of Addl. Civil Judge and CJM, Bidar, in ends of justice and equity."
2. The appellant had filed a suit in O.S.No.82/2018 before the Principal Senior Civil Judge at Bidar seeking for the following reliefs:
-3-NC: 2026:KHC-K:2486-DB RFA No. 200033 of 2020 HC-KAR "The suit of the plaintiff may kindly be decreed as under: -
i) That, it may be decreed that the plaintiff is the owner and possessor of suit land Sy.No.39/1A now assigned with Sy.No.39/1AA, measuring 01-Acres 18-
Guntas, situated at Jangalkoi, Bidar, consisting of constructed area of 2000 Sq.feet i.e., shops separately assigned with CMC numbers 12-2-99, and remaining open area, situated at Jangalkoi, Bidar bounded as shown in the subject matter of the suit.
ii) That, the relief of perpetual injunction restraining the defendants either directly or through their sub-ordinate officers, contractors, agents and labour from causing any type of interference and obstruction in the peaceful possession of the plaintiff including by way of undertaking any kind of construction and formation of road may also be granted to the plaintiff in respect of the suit property.
iii) That, the relief of correction of revenue records of the suit land from the year 1999- 2000 to upto date by entering the name of the plaintiff in the column of ownership and possession by deleting the name of Karnataka Housing Board in respect of the suit land may also be granted.
iv) That, the costs of the suit may also be awarded to the plaintiff against the defendants.
v) That, any other relief/ s to which the plaintiff is legally and equitability entitle to may also be granted to, meet the ends of justice."
3. In the said suit, written statement having been filed, issues were framed, PW.1 was examined, documents -4- NC: 2026:KHC-K:2486-DB RFA No. 200033 of 2020 HC-KAR were marked and thereafter, PW.1 was partially cross-examined. It is at that stage that the defendant Nos.2 and 3/respondent Nos.2 and 3 filed an application under Clause (d) of Rule 11 of Order VII of the Code of Civil Procedure, 1908, which came to be allowed by the impugned order dated 21.01.2020. Challenging the same, the appellant is before this Court.
4. Sri.Shivakumar Kalloor, learned counsel appearing for the appellant, would submit that the entire reasoning assigned by the Trial Court in rejecting the plaint is unsustainable in law. According to him, the Trial Court has erroneously relied upon the order passed by this Court in W.P.No.43952/2004 to conclude that the plaint is liable to be rejected. It is his contention that the appellant is the owner in possession of land bearing Survey No.39/1A, now renumbered as Survey No.39/1AA, measuring 1 acre 18 guntas, situated at Jangalkoi, Bidar. Without initiating or completing acquisition proceedings in respect of the said land, the respondents have attempted to interfere with the appellant's possession. It was in those circumstances that the appellant had earlier approached this Court by filing W.P.No.43952/2004 seeking a declaration that the -5- NC: 2026:KHC-K:2486-DB RFA No. 200033 of 2020 HC-KAR said land was not the subject matter of acquisition proceedings.
5. The learned Single Judge of this Court by order dated 16.02.2015, disposed of the writ petition observing that when the land in question is not the subject matter of either a Preliminary Notification issued under Section 4(1) of the Land Acquisition Act, 1894 (for short, "the Act") or a Final Notification issued under Section 6(1) of the Act, the question of granting a declaratory relief to the effect that the land has not been acquired would not arise. However, it was observed that if there was interference with the possession of the petitioner, it would be open to him to initiate appropriate civil proceedings in accordance with law.
6. The said order was carried in appeal by respondent No.2 herein in Writ Appeal No.200141/2015. The Division Bench, by judgment dated 07.01.2016, observed that when admittedly no notification under Section 4(1) or Section 6(1) of the Act had been issued in respect of the land in question, the property would, in law, be free from acquisition proceedings and there would be no necessity for a declaratory relief to the effect that the land has not been acquired or that the acquisition has lapsed.
-6-NC: 2026:KHC-K:2486-DB RFA No. 200033 of 2020 HC-KAR Nevertheless, the Division Bench modified the order of the learned Single Judge and reserved liberty to respondent No.4 therein, namely the appellant herein, to institute appropriate proceedings before the competent Civil Court seeking injunctory reliefs, if so advised.
7. The judgment in the writ appeal was delivered on 07.01.2016, whereas the suit in O.S.No.82/2018 came to be instituted on 03.08.2018. Sri.Shivakumar Kalloor, learned counsel for the appellant, therefore, submits that even if the orders passed in the writ proceedings are taken into consideration, the suit filed by the appellant is well within the period of limitation. According to him, the Trial Court has committed an error in referring only to the order of the learned Single Judge dated 16.02.2015 without taking into account the subsequent judgment of the Division Bench dated 07.01.2016 in Writ Appeal No.200141/2015, which modified the earlier order. In view of the doctrine of merger, it is the judgment of the Division Bench that governs the field. Hence, it could not have been held, at the threshold, that the suit filed by the plaintiff-appellant is barred by limitation.
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8. Per contra, Sri.Shivakumar Malipatil, learned counsel appearing for respondent Nos.2 and 3, seeks to sustain the order passed by the Trial Court. According to him, the Trial Court has rightly relied upon the order of the learned Single Judge in W.P. No.43952/2004. He submits that the liberty to institute a civil suit was first granted by the learned Single Judge and the plaintiff ought to have exercised that liberty within a period of three years from the date of such order. According to him, the Trial Court was justified in holding that the suit instituted in the year 2018 was barred by limitation and that it was unnecessary to rely upon the judgment of the Division Bench in the writ appeal.
9. Upon a specific query by this Court as to whether a Final Notification had been issued in respect of the land in question, learned counsel for respondent Nos.2 and 3 fairly submitted that a Final Notification has been issued only in respect of Survey No.39/1B and that no Final Notification has been issued in respect of Survey No.39/1A, which has subsequently been renumbered as Survey No.39/1AA. He, however, submits that mutation entries have been effected in the revenue records including the name of the Karnataka Housing Board.
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10. Having heard Sri.Shivakumar Kalloor, learned counsel for the appellant and Sri.Shivakumar Malipatil, learned counsel for respondent Nos.2 and 3, and having perused the material on record, this Court finds that the present case presents a somewhat peculiar factual situation. Admittedly, no Final Notification under Section 6(1) of the Act has been issued in respect of the land bearing Survey No.39/1A (renumbered as Survey No.39/1AA) measuring 1 acre 18 guntas. The Final Notification has been issued only in respect of Survey No.39/1B.
11. The appellant had earlier approached this Court by filing W.P.No.43952/2004 complaining of the proposed utilisation of his land by the Karnataka Housing Board. The learned Single Judge, while disposing of the writ petition, observed that when no acquisition notification had been issued in respect of the land, the writ petition seeking declaratory relief would not be maintainable and that the petitioner could avail the remedy of a civil suit in case of interference with possession. Curiously, the said order came to be challenged by the Karnataka Housing Board itself in Writ Appeal No.200141/2015, essentially questioning the liberty granted to the appellant to institute civil proceedings.
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12. The Division Bench, while partly allowing the writ appeal, modified the order of the learned Single Judge to a limited extent but once again reserved liberty to the appellant to institute appropriate proceedings before the competent Civil Court seeking injunctory reliefs. The judgment of the Division Bench dated 07.01.2016 has attained finality. Consequently, by operation of the doctrine of merger, the order of the learned Single Judge stands merged with the judgment of the Division Bench.
13. In that view of the matter, when the writ appeal was pending consideration before the Division Bench, it could not reasonably have been expected of the appellant to institute a civil suit on the strength of the liberty granted by the learned Single Judge. The effective liberty to institute civil proceedings must therefore be construed with reference to the judgment rendered by the Division Bench on 07.01.2016.
14. The suit having been instituted on 03.08.2018, it cannot be said, even prima facie, that the suit is barred by limitation. Even if the period of limitation of three years is applied, as noticed by the Trial Court with reference to the decision in Suresh Kumar
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NC: 2026:KHC-K:2486-DB RFA No. 200033 of 2020 HC-KAR Dagla vs. Sarwan and Another, the suit would still fall within the prescribed period.
15. It is also well settled that a plaint can be rejected under Order VII Rule 11 of the Code of Civil Procedure only when it is evident, on the face of the plaint itself that the suit is barred by limitation. Unless such bar is apparent ex-facie from the averments contained in the plaint, the plaint cannot be rejected at the threshold.
16. In several cases, the question of limitation involves determination of both legal and factual aspects and therefore constitutes a mixed question of law and fact, which ordinarily requires adjudication after the parties lead evidence at trial.
17. In the present case, apart from the orders passed in Writ Appeal No.200141/2015, the averments contained in the plaint do not disclose that the suit is ex-facie barred by limitation so as to warrant rejection of the plaint under Order VII Rule 11 of the Code of Civil Procedure.
18. In view of the above discussion, we are of the considered opinion that the order passed by the Trial Court rejecting the plaint cannot be sustained in law.
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19. Hence, we pass the following:
ORDER i. The Appeal is allowed.
ii. The judgment and order dated 21.01.2020 in O.S.No.82/2018 passed by the Additional Civil Judge and CJM, Bidar is set aside.
iii. The suit in O.S.No.82/2018 is restored to the file of the Additional Civil Judge and CJM, Bidar. The suit is directed to proceed from the stage it was last at before filing of the application under Rule 11 of Order VII of the Code of Civil Procedure.
iv. It is made clear that we have not made any observation on the merits of the matter, the trial Court shall consider the said suit on the basis of the merits as established after trial.
Sd/-
(SURAJ GOVINDARAJ) JUDGE Sd/-
(DR.CHILLAKUR SUMALATHA) JUDGE VNR List No.: 2 Sl No.: 6 Ct:VK