IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR CIVIL REVISION PETITION No. 337 OF 2017 BETWEEN M/s. Edulink Pvt. Ltd., A Company registered under the Companies Act, 1956 Having registered office at No.9 1st Cross, D.K.Road, Ulsoor, Bengaluru-560008.
Rept. By its Director Sri. Hanif Mohammed (By Sri. Sanjay Krishna V., Advocate) AND 1. Sri. Shivalingaiah, S/o. Late Siddaiah, Aged about 75 years, 2. Sri. Siddalingaiah, S/o. Late Siddaiah, Aged about 69 years, Both are residing at Dodderi Village, Tavarekere Hobli-56230 Bengaluru South Taluk (By Sri. Sudarshan S., Advocate for R1 & R2) …Petitioner …Respondents This Civil Revision Petition is filed under Section 115 of CPC, against the order dated 30.05.2017 passed in O.S.No.120/2007 on the file of the Additional Senior Civil Judge, Ramanagara, rejecting the I.A. filed under Order 7 Rule 11(a) and (d) read with Section 151 of CPC., for rejection of plaint.
This Civil Revision Petition coming on for admission, this day, the Court made the following :
ORDER The 11th defendant in O.S.No.120/2007 is the petitioner in this revision petition. He made an application under Order 7 Rule 11(a)(d) of CPC for rejecting the plaint in a suit for partition initiated by the respondents 1 and 2 .
2. Heard the petitioner’s counsel and the respondents’ counsel. The argument of the petitioner’s counsel is that the plaint does not disclose necessary particulars as to when the propositus Henjaiah died and how the suit property became joint family property. In the absence of these particulars, it cannot be said routinely that all the suit properties continued to be joint family properties to say that the plaintiffs have got a right to claim partition. The petitioner is the purchaser of schedule ‘D’ property. After the Hindu Succession Act 1956, came into force, the position of law as regards succession has seen lot of change and for this reason the plaintiffs should have pleaded that the joint family continued to exist. He argues that if the plaint is read as a whole, it does not disclose cause of action. Therefore the plaint should have been rejected by the trial court. The learned counsel for the petitioner relies upon the judgment of the Delhi High Court in the case of Surender Kumar V. Dhani Ram and others – AIR 2016 DELHI 120.
3. The learned counsel for respondents submits that the trial court has given cogent reason for dismissal of the applications. Whether the property belongs to joint family or not is a question of fact to be proved by the plaintiffs. Order 7 Rule 11 CPC, cannot be involved in the facts and circumstances.
4. It is settled that Order 7 Rule 11 CPC should be decided in the background of the plaint averments. If Para 4 of the plaint is read, it appears that the plaintiffs have stated that Henjaiah was the head of Hindu undivided family and that during his life time, he was looking after the entire family as Kartha and after his death his elder son Sri. Arasaiah and 3rd son Sri. Hengaraiah became Karthas of the Hindu undivided joint family. The second son Sri. Henjaiah was cultivating the land belonging to joint family property. After death of Arasaiah and Henjaiah, the 2nd son of 1st son i.e., Chikkahenjaiah was looking after the property bearing Sy.No.33, measuring 12 acres 16 guntas. It is stated that this land was purchased by the joint family funds. Thus this property was held as joint family property. Apart from this, propositus Henjaiah also acquired other properties. It is also stated that after death of their father, the plaintiffs succeeded to joint family properties and have a definite share. The sale made in favour of defendant no.11 on 30.07.2005, does not bind their interest. From these averments it is clear that the plaintiffs assert that the plaint schedule property belongs to joint family. Certainly I find certain factual assertions which are to be proved by the plaintiffs. It cannot be said that the plaint does not disclose cause of action. In judgment of the Delhi High Court cited by the learned counsel, the requisite details were not found in the plaint. Therefore it was a good ground for rejecting the plaint. Certainly this proposition is well founded, but this cannot be applied to the facts of this case. The reason being that in the plaint it is clearly stated that the properties belong to the joint family and that the plaintiffs have a definite share. The plaintiffs have to prove their case to succeed. I do not find any infirmity in the order passed by the trial court. Therefore it is dismissed.
Sd/- JUDGE sd