Karnataka High Court
Smt Ashwathamma vs Smt Girijamma on 7 January, 2019
Equivalent citations: AIRONLINE 2019 KAR 81
Author: Alok Aradhe
Bench: Alok Aradhe
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 07TH DAY OF JANUARY, 2019
BEFORE
THE HON'BLE MR.JUSTICE ALOK ARADHE
CIVIL REVISION PETITION No.431/2018
BETWEEN:
1. SMT. ASHWATHAMMA
W/O. LATE S. THIMMAPPA
AGED ABOUT 67 YEARS,
RESIDENT OF LAKSHMIDEVIPURA
HADONAHALLI POST,
TUBUGERE HOBLI,
DODDABALLAPURA TALUK,
BENGALURU DISTRICT - 561 203.
2. MASTER POORVIK N. GOWDA
S/O. LATE T. NARASIMHASWAMY
AGED ABOUT 12 YEARS,
MINOR REPRESENTED BY HIS MOTHER
AND NATURAL GUARDIAN
SMT. M. MANJULA
W/O. LATE T. NARASIMHASWAMY,
AGED ABOUT 41 YEARS,
RESIDENT OF C/O. LATE KRISHNAPPA,
(UMESH), AIMCO LAYOUT ROAD,
KODIGEHALLI SAHAKARA NAGAR POST,
BENGALURU NORTH TALUK - 94. ... PETITIONERS
(BY SRI K. GURUDHATTA, ADVOCATE FOR SRI BALARAJ A.C.,
ADVOCATE)
AND:
1. SMT GIRIJAMMA
W/O. RAVIKUMAR,
AGED ABOUT 49 YEARS,
RESIDENT OF HOSAHUDYA VILLAGE,
DODDATUMAKUR POST,
KASABA HOBLI,
DODDABALLAPURA TALUK,
BENGALURU DISTRICT - 561 203.
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2. SMT. SHARADHAMMA
W/O. RAMACHANDRA,
AGED ABOUT 46 YEARS,
RESIDENT OF JUTTANAHALLI VILLAGE,
JALIGE POST, KUNDANA HOBLI,
DEVANAHALLI TALUK,
BENGALURU DISTRICT - 562 110. ... RESPONDENTS
THIS CIVIL REVISION PETITION IS FILED UNDER SEC.115
OF CPC., AGAINST THE ORDER DATED 28.04.2018 PASSED ON
IA NO.III IN O.S.NO.84/2017 ON THE FILE OF THE SENIOR
CIVIL JUDGE, DODDABALLAPUR DISMISSING THE IA NO.III
FILED UNDER ORDER 7 RULE 11(a) AND (d) OF CPC., FOR
REJECTION OF PLAINT.
THIS CIVIL REVISION PETITION COMING ON FOR
ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
Heard Mr. K. Gurudhatta, learned counsel appearing on behalf of Mr. Balaraj A.C., for the petitioners.
2. Petitioners have assailed the validity of the order dated 28/04/2018, by which an application filed by the petitioners under Order VII Rule 11(a) and (d) of the Civil Procedure Code, 1908 (CPC) has been rejected.
3. Facts giving rise to filing of this petition briefly stated that the respondents herein filed the suit in O.S.No.84/2017 seeking the relief of partition and -3- separate possession against the petitioners herein. The petitioners entered appearance and filed a detailed written statement which inter alia stated that the suit is not maintainable as the suit properties are self-acquired properties of petitioner No.1 and hence, the suit seeking the relief of partition and separate possession is liable to be dismissed. Thereafter, the petitioners filed an application under Order VII Rule 11(a) and (d) of the Civil Procedure Code, 1908, (herein after referred as 'Code' for short) seeking rejection of plaint on the ground that the suit properties are self-acquired properties and that the suit is not maintainable. The trial Court has rejected the aforesaid application inter alia on the ground that the question whether the suit properties are the self-acquired properties or they belong to the joint family is the question which can be decided only after the full fledged trial in the suit. In the aforesaid factual background, this writ petition is filed.
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4. Learned counsel for the petitioners, while drawing the attention of this Court to para No.3 of the order submitted that the suit properties are self- acquired properties of the petitioners.
5. I have considered the submission made by the petitioners and perused the material on record.
6. For the purpose of deciding an application under Order VII Rule 11(a) and (d) of the Code, only the averments made in the plaint have to be seen. In this connection, reference may be made to the case in Saleem Bhai & others vs. State of Maharashtra & others [(2003)1 SCC 557]. In light of the aforesaid decision of the Hon'ble Supreme Court, the averments made in the plaint may be seen. Paragraph Nos.3 and 4 of the plaint read as under:
"3. The plaintiffs further submit that one Byranna is the molapurusha and he had a wife by name Bachamma she is no more. The Byranna and Bachamma couples have two children namely, B.Krishnappa and Ashwathamma (Defendant No.1). The -5- Ashwathamma is none other than the mother of the plaintiffs. The Ashwathamma had three children, namely Narasimaswamy (dead), Girijamma Narasimaswamy deceased left behind his wife Manjula and two children namely Anusha and Poorvik Gowda (Defendant No.2). In order to know the relationship of the parties the G-tree is produced along with this plaint and the same may be read as part and parcel of the plaint.
4. The plaintiffs further submit that the suit schedule properties are the ancestral and joint family properties of the plaintiffs and the defendants and the 1st defendant having no absolute right to deal with the suit schedule properties according to her whims and fancies. The plaintiffs being the daughters of the 1st defendant is entitled for 1/4th share in the suit schedule properties."
Thus, if paragraph Nos.3 and 4 of the plaint are read and noticed that the plaintiff has claimed that the suit schedule property is ancestral and joint family properties of the plaintiffs and defendants, the burden is on the plaintiff to prove whether the suit properties are the joint family properties or not. At this stage, on -6- considering of the application under Order VII Rule 11(a) and (d) of the Code, the plaint filed by respondent Nos.1 and 2 cannot be rejected as the question whether or not the properties belong to a joint family or self- acquired properties is a question of fact which require adjudication. The order passed by the trial Court does not suffer from any jurisdictional infirmity nor any error apparent on the face of record warranting interference to the revisional jurisdiction.
7. In the result, I do not find any merit in the revision petition and the same is hereby dismissed.
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JUDGE s*