Karnataka High Court
Sri K S Parameshwarappa vs Sri K R Raju on 21 June, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2023:KHC:21449
CRP No. 345 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CIVIL REVISION PETITION NO.345 OF 2023 (IO)
BETWEEN:
1. SRI K S PARAMESHWARAPPA
S/O K SANKAPPA
AGED ABOUT 60 YEARS
2. SRI SHANKARAMURTHY
S/O K S BASAVANTHAPPA
AGED ABOUT 53 YEARS
3. SRI MALLIKARJUNA
S/O K S BASAVANTHAPPA
AGED ABOUT 48 YEARS
Digitally signed
by SHARANYA T 4. SMT ASHA
Location: HIGH D/O K S BASAVANTHAPPA
COURT OF
KARNATAKA W/O BASAVARAJ
AGED ABOUT 47 YEARS
R/O HUDIGERE VILLAGE
HOLALKERE TALUK
CHITRADURGA TALUK-577526
5. SRI DHANANJAYA
S/O K S BASAVANTHAPPA
AGED ABOUT 43 YEARS
PETITIONERS 1 TO 3 AND 4
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NC: 2023:KHC:21449
CRP No. 345 of 2023
ARE R/O GODAMANAL VILLAGE
KASABA HOBLI
CHITRADURGA TALUK-577501
6. SRI K S KARIYAPPA
S/O K SANKAPPA
AGED ABOUT 64 YEARS
7. SRI K S RAJAPPA
S/O K SANKAPPA
AGED ABOUT 66 YEARS
8. SRI K S EKANTHAPPA
S/O K SANKAPPA
AGED ABOUT 58 YEARS
ALL ARE R/O GODAMANAL VILLAGE
KASABA HOBLI
CHITRADURGA TALUK-577501
...PETITIONERS
(BY SRI SIDDAPPA B M, ADVOCATE)
AND:
1. SRI K R RAJU
S/O K RUDRAPPA
AGED ABOUT 56 YEARS
AGRICULTURIST
R/O SINDAPURA VILLAGE
HIRIGUNTANURU HOBLI
CHITRADURGA TALUK-577501
2. COMMISSIONER
CHITRADURGA URBAN DEVELOPMENT
AUTHORITY, KELAGOTE
CHITRADURGA-577501
...RESPONDENTS
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NC: 2023:KHC:21449
CRP No. 345 of 2023
THIS CRP IS FILED UNDER SECTION 115 OF CPC
AGAINST THE ORDER DATED 06.04.2023 PASSED ON
I.A.5 IN O.S.NO.160/2020 ON THE FILE OF PRINCIPAL
CIVIL JUDGE AND JMFC CHITRADURGA AND ETC.
THIS PETITION COMING ON FOR ADMISSION, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
This revision petition is filed challenging the order dated 06.04.2023 passed on I.A.No.5 in O.S.No.160/2020 on the file of the Principal Civil Judge and JMFC, Chitradurga.
2. This matter is listed for admission. Heard the learned counsel appearing for the petitioners.
3. The counsel for the revision petitioners would vehemently contend that defendant Nos.1 to 5 who are the revision petitioners herein have sold the property in the year 1993 itself and the plaintiff kept quiet for a period of 27 years and the grievance is only against defendant No.6 who is the purchaser of the property and no cause of action against the petitioners herein. It is also further -4- NC: 2023:KHC:21449 CRP No. 345 of 2023 contended that in plaint, at paragraph 4, described that the owners of Sy.No.83/2 and 83/3 formed the layout and some part of the land was reserved for playground and the same was handed over to defendant No.6 and defendant No.6 while laying the compound to the said playground put up some part of said compound into the western part of the suit 'A' schedule property and also in respect of 'B' schedule property, defendants claim to be as their property as part of said playground in layout formed out of Sy.No.83/2 and 83/3. When already there was a sale deed of the year 1993, the suit is hopelessly barred by law and no cause of action.
4. The Trial Court having considered the grounds urged in the application and also in the statement of objections filed by the plaintiff comes to the conclusion that the dispute is with regard to the cause of action and when the plaint specifically mentioned with regard to the defective title of defendant Nos.1 to 5 and they have sold the property in favour of defendant No.6 and defendant -5- NC: 2023:KHC:21449 CRP No. 345 of 2023 No.6 only started construction in the year 2019 and immediately notice was issued against defendant No.1 on 06.06.2019 and Trial Court having taken note of the pleadings in the plaint particularly, paragraphs 4 and 5 with regard to the cause of action as well as the averments with regard to the defective title of defendant Nos.1 to 5 comes to the conclusion that that suit is not barred by limitation and cause of action also mentioned specifically that the same was arose in the year 2019 and the suit was filed in the year 2020 and hence, the suit cannot be rejected and rejected the application filed under Order VII Rule 11 (a) and (d) of CPC.
5. Having considered the grounds urged in the revision petition and also in view of the submissions of the counsel for the revision petitioners, it is clear that the Court has to look into the averments made in the plaint while invoking Order VII Rule 11(a) and (d) and on perusal of paragraph 4 of the plaint wherein the plaintiff has stated with regard to the formation of layout in -6- NC: 2023:KHC:21449 CRP No. 345 of 2023 Sy.No.83/2 and 83/3 and some part of the said survey number was reserved for playground and the same was handed over to defendant No.6. It is also not in dispute that in 'A' schedule property it is mentioned as Sy.No.83/1 of Medehalli village bearing site No.53 measuring east to west 40 feet and north to south 30 feet and also it is mentioned that defendant No.6 started for putting up construction in western part of 'A' schedule property to the extent of 1840 square feet. When such specific allegation is made in the plaint with regard to the starting up of construction by defendant No.6 and when the specific allegation is made that defendant Nos.1 to 5 have no title and they are having defective title and an allegation is also made against defendant No.1 to 5 that the legal notice was issued on defendant No.1 on 06.06.2019 calling upon the defendants to settle the dispute of 'A' and 'B' schedule properties and cause of action is also mentioned, the Court has to look into the averments of the plaint and not the defence of the defendants. Only based on the averments of the plaint, the Court can invoke Order VII Rule 11 (a) -7- NC: 2023:KHC:21449 CRP No. 345 of 2023 and (b) of CPC and specific averments are made with regard to the allegations made against defendant Nos.1 to 5 but the contention of the counsel that the relief sought against defendant No.6 only and not against defendant Nos.1 to 5 cannot be accepted when disputed issue involved between the parties is with regard to the starting up of construction of compound in respect of 'B' schedule property and when the relief is sought in respect of 'A' and 'B' schedule properties, the same is a disputed question. The law of limitation is also pleaded in the plaint. When the construction was started in the year 2019, cause of action was arose from the said period. When such being the case, the question of law and fact cannot be decided in the application filed under Order VII Rule 11 (a) and (d) of CPC. Hence, the impugned order does not suffer from any legality and its correctness and the Trial Court in detail discussed with regard to the averments made in the plaint and also in the objection statement and comes to the conclusion that the suit is not barred by limitation as -8- NC: 2023:KHC:21449 CRP No. 345 of 2023 contended by the defendants and the matter requires to be tried. Hence, there is no merit in the revision petition.
6. In view of the discussions made above, I pass the following:
ORDER The revision petition is dismissed.
Sd/-
JUDGE SN