Karnataka High Court
Sri. H. Venkataswamy Reddy vs Sri. Narayana Reddy on 7 June, 2017
Equivalent citations: 2017 (4) AKR 288
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 07TH DAY OF JUNE, 2017
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
W.P. NOS. 192-195/2017 (GM-CPC)
BETWEEN:
1. SRI. H. VENKATASWAMY REDDY
S/O LATE OBALA REDDY
AGED ABOUT 57 YEARS
2. SRI GOPAL REDDY
S/O LATE OBALA REDDY
AGED ABOUT 55 YEARS
3. SRI MUNIREDDY
S/O LATE OBALA REDDY
AGED ABOUT 45 YEARS
4. SMT SHEELA
W/O SRINIVASA REDDY
D/O LATE OBALA REDDY
AGED ABOUT 40 YEARS
ALL R/AT NO.535
KUDLU VILLAGE
SADGURU SAHINATHA SCHOOL
ROAD, MADIVALA POST
SARJAPURA HOBLI
ANEKAL TALUK
BENGALURU-68
... PETITIONERS
(BY SRI. R.B. SADASHIVAPPA FOR
SRI SHANKARE GOWDA V N, ADVOCATE)
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AND:
1. SRI. NARAYANA REDDY
S/O LATE CHIKKA ARASAPPA
AGED ABOUT 68 YEASR
R/AT NO.459, 1ST FLOOR
8TH MAIN, AECS LAYOUT
A BLOCK, NEAR KALANEKTHAN
SCHOOL, KUDULU VILLAGE
MUDIWALA POST
BENGALURU-68.
2. SRI P KRISHNA REDDY
S/O LATE PILLAIAH @ PILLAPPA
AGED ABOUT 55 YEARS
R/AT NO.14, 8TH MAIN
WILSON GARDEN
BENGALURU-27
3. SRI H H MANJAPPA
S/O HANUMANTHAIAH
AGED ABOUT 53 YEARS
R/AT NO.165, 4TH 'B' MAIN
4TH BLOCK, 4TH STAGE
BASAVESHWARANGAR
BENGALURU-79
4. SRI N BABU RAI
S/O LATE P NARASIMHA REDDY
AGED ABOUT 50 YEARS
R/AT KUDLU VILLAGE
SARJAPURA HOBLI
ANEKAL TALUK
BENGALURU.
5. SRI V VIJAY
S/O R VENUGOPALA REDDY
AGED ABOUT 32 YEARS
R/AT NO.1140, 17TH CROSS
8TH SECTOR, HSR LAYOUT
BENGALURU-34.
6. M/S PURUVANKARA PROJECTS
LIMITED, A LIMITED COMPANY
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INCORPORATED UNDER THE
COMPANIES ACT 1956
AND HAVING ITS REGISTERED
OFFICE AT NO.227, S V ROAD,
BANDRA WEST, MUMBAI-50
AND HAVING ITS BRANCH OFFICE
AT NO.130/1, ULSOOR ROAD,
BENGALURU-560 042
REP BY / ITS AUTHORIZED SIGNATORY
GIRISH PURUVANKAR.
... RESPONDENTS
(BY SRI. Y.R. SADASHIVA REDDY, SR. COUNSEL FOR
SRI. SHIVAKUMAR V, ADVOCATE FOR C/R1;
SRI. DEEPAK J., ADVOCATE FOR R-1)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLE
227 OF THE CONSTITUTION OF INDIA, PRAYING TO GRANT
AN INTERIM ORDER TO STAY OF THE FURTHER
PROCEEDINGS IN O.S.NO.534/2016 PENDING BEFORE
THE HON'BLE SR. CIVIL JUDGE AND JMFC AT ANEKAL,
BENGALURU URBAN DISTRICT, TILL DISPOSAL OF THE
W.P.,
THESE PETITIONS COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioners are the defendants in O.S.No.534/2016, which suit has been instituted by first respondent herein seeking partition and separate possession of suit schedule properties. 4
2. During the pendency of proceedings defendants 1 to 4 filed an application under Order VII Rule 11(d) CPC for rejection of plaint on the ground that suit is barred by law. In the affidavit supporting the application it was contended that earlier suit O.S.No.18/1987 filed for partition and separate possession had been dismissed on the ground of there being an earlier partition and said judgment and decree passed on 16.11.1993 in O.S.No.18/1987 had attained finality and as such, present suit is barred by principles of resjudicata. Trial Court after considering the rival contentions has rejected the said application on the ground that rights of parties are not decided in the said suit and plaintiffs are seeking for partition of suit properties and as such, they are required to establish the existence of joint family and also the fact that property belongs to the joint family. It has also been rejected on the ground that limitation cannot be decided as an abstract principle of law, since it is a mixed question of fact and law.
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3. Having heard Sri.R.B.Sadashivappa, learned counsel appearing on behalf of Sri. Shankare Gowda V.N. for petitioners and Sri. Y.R.Sadashiva Reddy, learned Senior counsel appearing on behalf of Sri.V.Shivakumar for Caveator / first respondent / plaintiff. It is noticed by this Court that original propositus was Sri.Venkatappa had two sons namely, Sriyuths Chikka Arasappa and Pillaiah @ Pillappa. Even according to both parties and their pleadings would disclose there was a division of properties amongst Chikka Arasappa and Pillaiah and suit properties fell to the branch of Chikka Arasappa and he had 5 sons who are said to have made some family arrangements in the year 1980 under which plaintiffs claim that suit properties amongst other properties fell to the share of Sri. Obala Reddy and Sri. Narayana Reddy i.e., plaintiffs and father of defendants 1 to 4. On account of properties having not been divided amongst them subsequent to family arrangements, suit in question has been filed.
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4. Defendants 1, 4 and 7 contended that in the family arrangements, which took place in the year 1980, there was already a division/partition earlier to it and as such, properties which had fallen to the share of Sri.Chikka Arasappa came to be divided amongst his sons and this has also been affirmed in O.S.No.18/1987, which suit had been filed by Sri Rama Reddy, who is one of the sons of Sri. Chikka Arasappa and in the said judgment trial Court had recorded a finding about earlier partition and as such, present suit is barred by principles of resjudicata. As to whether there was earlier partition/family arrangements and in the said family arrangements suit property had fallen exclusively to the share of Sri Obala Reddy or not, is an issue which requires to be decided after recording of evidence.
5. Perusal of plaint averments would clearly disclose that plaintiff has specifically contended that there was no such division between Sri. Obala Reddy and Sri. Narayana Reddy in whose favour suit 7 properties amongst other properties came to be allotted. Thus, any amount of plea raised by defendants either in written statement or in any other form of pleading, cannot form the basis on which plaint can be rejected under Order VII Rule 11(d) CPC. For this proposition judgment of the Apex Court in the case of KAMALA AND OTHERS vs. K.T.ESHWARA SA AND OTHERS reported in AIR 2008 SC 3174 can be looked up.
6. On the ground of suit in question being hit by Order II Rule 2 CPC plaint cannot be rejected under Order VII Rule 11(d) CPC and this view is fortified by the law laid down by Apex Court in the case of VAISH AGGARWAL PANCHAYAT vs. INDER KUMAR AND OTHERS reported in AIR 2015 SC 3357 whereunder it has been held:
"16. After so stating, the Division Bench opined that in the facts of the said case, the suit could not be dismissed as barred by limitation without proper pleadings, framing of issue on limitation and taking evidence, for question of limitation is a mixed question of fact and law and on ex facie reading of the plaint it 8 could not be held that the suit was barred by time.
17. Coming to the case at hand we find that the allegations in the plaint are absolutely different. There is an asseveration of fraud and collusion.
There is an assertion that in the earlier suit a decree came to be passed because of fraud and collusion. In such a fact situation, in our considered opinion, the High Court has fallen into error by expressing the view that the plea of res judicata was obvious from the plaint. In fact, a finding has been recorded by the High Court accepting the plea taken in the written statement. In our view, in the obtaining factual matrix there should have been a trial with regard to all the issues framed."
6. Thus, in the instant case, trial Court will have to examine after recording of evidence as to whether property involved in the suit was the subject matter of consideration in O.S.No.18/1987 and whether there was already a division between the members of family as pleaded by defendants 1 to 4 in the written statement and if so, had it become exclusive property of Sri.Obala Reddy i.e., father of defendants 1 to 4. As such, at this stage, by invoking Order VII Rule 11(d) 9 CPC plaint cannot be rejected that too without there being any express admission on the part of plaintiffs in the plaint itself.
7. In that view of the matter, order passed by the trial Court rejecting the application, cannot be found fault with. Hence, writ petitions stands rejected. However, it is made clear that no opinion is expressed with regard to claim made in the writ petitions and trial Court shall expeditiously dispose of the suit keeping in mind the Karnataka (Case Flow Management in Subordinate Courts) Rules, 2005 and Order XVII CPC, subject to both parties cooperating with the trial Court.
Ordered accordingly.
SD/-
JUDGE DR