IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF NOVEMBER 2019 BEFORE THE HON' BLE MR. JUSTICE S.G. PANDIT C.R.P. No.401/2018 BETWEEN:
SMT. G K VANI W/O GURUMURTHY AGED ABOUT 54 YEARS R/AT KALYANAPURA VILLAGE SOLUR HOBLI, MAGADI TALUK RAMANAGARA DIST.- 562 120.
(BY SRI.RAGHU M N, ADV.) AND:
SMT. YELLAMMA (SINCE DIED REPT. BY HER LRS) 1. SMT. SHOBHA D/O YELLAMMA AGED 36 YEARS 2. SRI GOPALA KRISHNA S/O LATE PATEL YELLABHOVI AGED 54 YEARS 3. SMT. YELLAMMA W/O LATE YELLAPPA AGED 57 YEARS 4. SMT. RADHA W/O LATE NAGARAJU AGED 35 YEARS ...PETITIONER 5. SRI JAYANNA S/O LATE RAJANNA AGED 50 YEARS 6. SRI LOKESH S/O LATE RAJANNA AGED 48 YEARS 7. SRI LOKANATHA S/O LATE RAJANNA AGED 43 YEARS 8. SMT SHASHIKALA D/O LATE RAJANNA AGED 46 YEARS 9. SRI MOHAN KUMAR S/O LATE CHINNASWAMY AGED 48 YEARS ALL ARE R/AT KALYANAPURA VILLAGE SOLUR HOBLI, MAGADI TALUK RAMANAGARA DIST.-562120.
…RESPONDENTS THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF THE CODE OF CIVIL PROCEDURE, 1908, AGAINST THE ORDER DATED 23.06.2018 PASSED ON I.A.NO.6 IN O.S.NO.296/2013 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, MAGADI, REJECTING I.A.NO.6 FILED UNDER ORDER VII RULE 11 (d) R/W SECTION 151 OF CPC.
THIS CIVIL REVISION PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The defendant No.9, who is the purchaser in O.S.No.296/2013 is in revision assailing the order dated 23.06.2018 passed on I.A.No.6 filed under Order VII Rule 11(d) of CPC, by which the application is rejected.
2. Respondent No.1 is the 1st plaintiff and petitioner is defendant No.9. Respondents 2 to 9 are co- defendants in O.S.No.296/2013 filed for partition and separate possession of the suit schedule property. Defendant No.9 filed his written statement contending that the suit would not be maintainable in view of the provisions of the Hindu Succession Amendment Act and also contending that he has purchased the suit schedule property on 28.10.2004 i.e., prior to the coming into force of amended Hindu Succession Amendment Act, 2005. The petitioner herein is defendant No.9, who filed application under Order 7 Rule 11(d) of CPC to reject the plaint in respect of item No.1 of the suit schedule property on the ground that he has purchased suit item No.1 of suit schedule property under sale deed dated 28.10.2004 prior to coming into force of the amended Act. The said application was opposed by the plaintiff by filing objections and denied the sale deed and possession of defendant No.9. The trial Court under impugned order rejected the application of the petitioner herein, hence he is in revision before this Court.
3. Heard the learned counsel for the petitioner and perused the material on record.
4. On hearing the learned counsel for the petitioner and on perusal of the material on record, the only point that arise for consideration is as to ‘Whether the trial Court is justified in rejecting the I.A filed under Order 7 Rule 11(d) of the CPC ?’ The said point is answered in the affirmative for the following reasons :-
The suit is one for partition and separate possession. The defendant No.9, who is in revision before this Court is purchaser of suit item No.1 of suit schedule property under sale deed dated 28.10.2004 to an extent of 23 guntas. The plaintiff has alleged that in collusion with the other defendants, the defendant No.9 got executed the sale deed. The suit is in respect of 4 items of property. The defendant No.9 states that he is the purchaser of item No.1 of suit scheduled property. The plaint averment would not indicate the date of death of the propositor of the family. Whether the item No.1 purchased by defendant No.9 is joint family property or whether the alleged sale deed is in collusion with other defendants and whether the provisions of the amended Act would apply to the present case, are all matters to be decided only after trial. At this stage, the application is to be considered only on the averments made in the plaint. It is also to be noted that the question of limitation is a mixed question of law and facts. The starting point of limitation is to be decided based on the facts and circumstances of the case. The defence or written statement averments would be of no relevance, while deciding the application. As the matter requires trial, the trial Court is justified in rejecting the application. There is no jurisdictional or material irregularity found in the impugned order. Hence revision petition is dismissed.
5. In view of dismissal of the Civil Revision Petition, I.A.No.1/2018 filed for stay does not survive for consideration, hence the application stands dismissed.
Sd/- JUDGE NG* CT:bms