IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G. PANDIT CIVIL REVISION PETITION NO.296 OF 2016 (IO) BETWEEN:
SMT MUNIAKKAYYAMMA, WIFE OF LATE KALAPPA, SINCE DEAD BY LRs, 1. SRI MUNIANJINAPPA, SON OF LATE KALAPPA, AGED ABOUT 55 YEARS.
2. SRI MUNIRAJU, SON OF LATE KALAPPA, AGED ABOUT 53 YEARS.
3. SRI RAJANNA, SON OF LATE KALAPPA, AGED ABOUT 51 YEARS.
4. SRI SHIVANNA, SON OF LATE KALAPPA, AGED ABOUT 49 YEARS.
5. SRI THIMMAPPA, SON OF LATE KALAPPA, AGED ABOUT 47 YEARS, THE PETITIONERS 1 TO 5 ARE RESIDING AT YARTHIGANAHALLI VILLAGE, KASABA HOBLI, DEVANAHALLI TALUK, BANGALORE RURAL DISTRICT-562110. ...PETITIONERS (BY SRI B SHARATH KUMAR, ADVOCATE) AND:
SRI HANUMAPPA, SON OF LATE THIMMAIAH SINCE DEAD REPRESENTED BY HIS LRs, 1. SMT A SANJEEVAMMA, WIFE OF LATE HANUMAPPA, AGED ABOUT 60 YEARS.
2. SMT CHINNAMMA, DAUGHTER OF LATE HANUMAPPA, AGED ABOUT 40 YEARS.
3. SMT LAKSHMAMMA, DAUGHTER OF LATE HANUMAPPA, AGED ABOUT 38 YEARS.
4. SMT MUNIYAMMA, DAUGHTER OF LATE HANUMAPPA, AGED ABOUT 35 YEARS, 5. SRI KRISHNAPPA, S/O LATE HANUMAPPA, AGED ABOUT 33 YEARS.
6. SRI SATHISH, SON OF LATE HANUMAPPA, AGED ABOUT 30 YEARS.
7. SRI MUNIYAPPA, SON OF LATE THIMMAIAH, AGED ABOUT 69 YEARS.
THE RESPONDENTS ARE RESIDING AT YARTHIGANAHALLI VILLAGE, KASABA HOBLI, DEVANAHALLI TALUK, BANGALORE RURAL DISTRICT - 562 110. …RESPONDENTS (BY SRI R HEMANTH RAJ, ADVOCATE FOR R1 TO R7) **** THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF CPC, AGAINST THE ORDER DATED 29.02.2016 PASSEDD IN OS NO.145/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, DEVANAHALLI, DISMISSING THE IA NO.IX FILED BY THE DEFENDANTS UNDER ORDER 7 RULE 11(A) R/W SECTION 151 OF CPC.
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The defendants are before this Court under Section 115 of the Code of Civil Procedure assailing the order dated 29.02.2016 passed on I.A. No.IX filed under Order VII Rule 11(a) r/w Section 151 of the Code of Civil Procedure, praying to reject the plaint in O.S. No.145/2010, on the file of the Senior Civil Judge & JMFC, Devanahalli.
2. The petitioners are defendants and respondents are plaintiffs in O.S.No.145/2010, filed for the following reliefs:
A) Orders of declaring that the Plaintiffs are absolute owners of the suit schedule property, as per the virtue of partition deed 1971.
B) Restraining the Defendants their agents, servants, acting under them or through them from in any way interfering with the peaceful possession and enjoyment of the suit Schedule property.
C) Restraining the Defendants their agents, servants, acting under them or through them from in any way alienating to the Schedule property to any third parties.
D) As pass such other orders or orders as this Hon’ble Court deems fit in the circumstances of the above case, in the interest of justice and equity.
3. On issuance of summons, the defendants appeared and filed their written statement. The defendants also filed an application under Order VII Rule 11(a) of the Code of Civil Procedure praying to reject the plaint on the ground that there is no cause of action for the plaintiffs to institute the suit. In the affidavit accompanying the application, it is stated that the suit schedule property is granted to Kalappa, the husband of defendant No.1 and father of other defendants in the year 1982, subsequent to partition of the joint family properties in the year 1971. It is also stated that all are not made parties to the suit. It is the self acquired property of Kalappa. The plaintiffs have no right, title or interest over the suit schedule property. The correction of revenue entries by the Deputy Commissioner cannot be the cause of action to file the suit. The plaintiffs filed their objection and opposed the application filed under Order VII Rule 11(a) of the Code of Civil Procedure and the application came to be dismissed under the impugned order, which is under challenge in this petition.
4. Heard learned counsel for the petitioners and learned counsel for the respondents.
5. Learned counsel for the petitioners would submit that there is no cause of action for the plaintiffs to institute the suit. It is their contention that the suit schedule property is the self acquired property of Kalappa, the husband of defendant No.1 and father of other defendants. Sri. Kalappa and Sri.Hanumappa, father of plaintiffs are brothers. They have partitioned the joint family properties in the year 1971. The suit schedule property was granted to Kalappa in the year 1982 subsequent to partition. The correction of the revenue entries in the year 2010 would not give rise to the cause of action for the plaintiffs to file the suit.
6. Per contra, learned counsel for the respondents-plaintiffs submits that the plaintiffs are in possession of the suit schedule property and only when the defendants tried to disturb their possession and tried to make correction of the revenue entries, they filed the present suit for declaration of title and for injunction. He submits that the question involved in the suit is as to whether the suit schedule property was the joint family property or not and submits that, at this stage the same cannot be decided.
7. Having heard the learned counsel for the parties and perused the materials on record, the only point which would arise for consideration is:
Whether the trial Court is justified in dismissing the application filed under Order VII Rule 11(a) of the Code of Civil Procedure?
The answer would be in the affirmative for the following reasons.
8. The suit is one for declaration and injunction based on the partition entered into between the parties in the year 1971. The amended plaint averments at para Nos.7 and 8 reads as follows:
“7. The plaintiffs submit that, plaintiff and his brother where in possession and cultivating the suit Schedule property since very long back, while partitioning the joint family property all the members of the family had good hope on belief on the kartha of the family, who is the Defendant No.1 and hence in the year 1971 with the consent of the members of the joint family the suit Schedule property were shared among the family members which has taken place for the past 35 years ago, there was no any dispute regarding the suit Schedule property, but the land prices fetched high the Defendant No.1 to 6 started making hasty attempts to snatch away the suit Schedule property from the Plaintiffs and to sell the same keeping in view this, at the same time suit Schedule property was granted in the name of the 1st Defendant husband. This made very much helpful the Defendants to snatch and grab the suit Schedule property from the Plaintiffs, keeping only the grant in favour of the 1st Defendant husband the Defendants filed R.A. before the Asst. Commissioner, Doddaballapura Sub Division, Bangalore and got order in their favour and the same is been upheld by the Deputy Commissioner Rural District keeping this order in view the Defendants are trying to interfere with the peaceful possession and enjoyment of the suit Schedule property, and local heads the Plaintiffs got the news that the Defendants are trying to alienate the suit Schedule property in favour of the 3rd parties and now and then some Real Estate Agents coming near the suit Schedule property, hence, the plaintiff is filing the above suit for the relief of declaration and injunction, as the Plaintiff is in possession since more than 35 years, in the suit Schedule property, hence Plaintiff prays this Hon’ble Court be pleased to pass an order of declaration, declaring that the Plaintiffs are absolute owners of the suit Schedule property as they are in continuous possession without any let or hindrances from anybody at any point of time, hence this suit comes within the jurisdiction of this Hon’ble Court. Hence this suit. And pass permanent injunction restraining the Defendants from not to interfere within the suit Schedule property.
8. The cause of action arose 30.01.2010 when the Deputy Commissioner, Bangalore Rural District pass the order keeping in view that order the Defendants are trying to interfere and also trying to alienate they case and suit Schedule property on 28th March 2010. And when the Defendants made attempts to interfere with possession of the Plaintiffs and all subsequent dates”.
9. A reading of the plaint averments would indicate that the partition had taken place in the year 1971 and the plaintiffs are in possession of the suit schedule property. When the defendants started making attempts to snatch away the suit schedule property from the plaintiffs and when they tried to correct the revenue entries in the year 2010, the cause of action arose to institute the suit. The application under Order VII Rule 11(a) of the Code of Civil Procedure is to be considered based on the plaint averments. The defendants’ written statement averments would be of no relevance while considering the application. In the instant case, the case of the defendants is that the suit schedule property is granted to the defendants’ father Kalappa in the year 1982 subsequent to the partition and it is the self acquired property of Kalappa. The same cannot be gone into at the stage of considering the application under Order VII Rule 11(a) of the Code of Civil Procedure. As stated above, the plaint averments would not indicate about the grant of land in the year 1982. It is stated in the plaint averments that it is joint family property. To decide the question involved in the suit, the trial would be necessary. Whether the suit schedule property is the self acquired property of Kalappa or whether it forms part of joint family property as contended by the plaintiffs, requires evidence.
10. Hence, I am of the view that the trial Court rightly rejected the application. The impugned order would not suffer from material or jurisdictional error. Accordingly, the Civil Revision Petition is dismissed.
Sd/- JUDGE SJ