IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF AUGUST, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON’BLE MR. JUSTICE ASHOK G. NIJAGANNAVAR Regular First Appeal No.1534 of 2017 (PAR) BETWEEN :
1. SMT. MUNIYAMMA W/O. LATE KRISHNAPPA, AGED ABOUT 75 YEARS.
2. SRI.RAMASWAMAPPA S/O. LATE CHIKKA MUNISHAMAPPA, AGED ABOUT 73 YEARS, SINCE DEAD BY HIS LEGAL REPRESENTATIVES, 2A. SMT.RATHNA, D/O. RAMASWAMAPPA, AGED ABOUT 43 YEARS.
2B. SRI PARAMESH S/O. RAMASWAMAPPA, AGED ABOUT 41 YEARS.
2C. SRI.RAMESH S/O. RAMASWAMAPPA, AGED ABOUT 38 YEARS.
2D. SRI.KRISHNA S/O. RAMASWAMAPPA, AGED ABOUT 36 YEARS.
3. SRI.ANAND S/O. LATE NARAYANAPPA, AGED ABOUT 52 YEARS.
4. SRI.MUNIRAJU S/O. LATE AKKAYAMMA, AGED ABOUT 30 YEARS.
ALL ARE R/AT GATTAHALLI VILLAGE, SARJAPURA HOBLI, ANEKAL TALUK, BANGALORE URBAN DISTRICT. ... APPELLANTS (BY SRI J. D. KASHINATH, ADVOCATE) AND :
1. SMT. MUNIYAMMA W/O. LATE PULLAPPA, AGED ABOUT 76 YEARS.
2. SRI.MUNIRAJU P. S/O. LATE PULLAPPA, AGED ABOUT 58 YEARS.
3. SMT.RUKAMMA W/O. MUNIRAJU P.
AGED ABOUT 52 YEARS.
4. SRI.SEENAPPA P.
W/O. LATE SRI PULLAPPA, AGED ABOUT 44 YEARS.
5. SMT.RAMAKKA W/O. LATE SRI.CHIKKA YELLAPPA, AGED ABOUT 74 YEARS.
6. SRI.SUBRAMANI C.
S/O. LATE SRI.CHIKKA YELLAPPA, AGED ABOUT 52 YEARS.
7. SMT.BABY W/O. SRI.SUBRAMANI C. AGED ABOUT 44 YEARS.
8. SRI.VENKATESH.C.
S/O. LATE SRI.CHIKKA YELLAPPA, AGED ABOUT 46 YEARS.
9. SMT.SUNANDA W/O. SRI.VENKATESH C., AGED ABOUT 32 YEARS.
10. SMT. LAKSHMAMMA W/O. LATE SRI.VENKATARAMANAPPA, AGED ABOUT 66 YEARS.
11. SRI.MUNISWAMAPPA V.
S/O. LATE SRI.VENKATARAMANAPPA, AGED ABOUT 45 YEARS.
12. SMT.PRABHAVATHI.C.
W/O. SRI.MUNISWAMAPPA.V. AGED ABOUT 38 YEARS.
13. SMT.GOWRAMMA W/O. SRI.MUNIKRISHNAPPA.M. AGED ABOUT 55 YEARS.
14. SRI.RAMESHA.M.
S/O. SRI.MUNIKRISHNAPPA.M., AGED ABOUT 55 YEARS.
15. SMT.TULASI W/O. SRI.RAMESHA.M. AGED ABOUT 34 YEARS.
16. SRI.MANJUNATH.M.
S/O. SRI.MUNIKRISHNAPPA.M., AGED ABOUT 35 YEARS.
17. SMT.MANJULA W/O. SRI.MANJUNATH.M., AGED ABOUT 30 YEARS.
18. SRI.PRAKASHA.M.
S/O. SRI.MUNIKRISHNAPPA.M., AGED ABOUT 30 YEARS.
19. SMT.RUKMINI W/O. PRAKASHA.M., AGED ABOUT 28 YEARS.
20. SMT.THAYAMMA S/O. LATE PULLAPPA, AGED ABOUT 57 YEARS.
21. SMT.RATHNAMMA S/O. LATE PULLAPPA, AGED ABOUT 50 YEARS.
22. SMT.SUNANDA D/O. LATE PULLAPPA, AGED ABOUT 45 YEARS.
23. SMT.RENUKA D/O. LATE CHIKKA YELLAPPA, AGED ABOUT 48 YEARS.
24. SMT.VAJRAMMA D/O. LATE CHIKKA YELLAPPA, AGED ABOUT 35 YEARS.
25. SMT.MANJULA D/O. LATE VENKATARAMANAPPA, AGED ABOUT 45 YEARS.
26. SMT.VASANTHA D/O. LATE MUNIKRISHNAPPA.M. AGED ABOUT 45 YEARS.
27. SRI.MADHU S/O. LATE SAROJA, AGED ABOUT 28 YEARS.
RESPONDENT NOS.1 TO 27 ARE RESIDING AT GATTA HALLI VILLAGE, SARJAPURA HOBLI, ANEKAL TALUK, BANGALORE URBAN DISTRICT-560 100.
28. SMT. K.P. GAYATHRI D/O. LATE SRI.K.S.PUTANNA, AGED ABOUT 50 YEARS R/AT NO.2509, 5TH CROSS, K.G.KOPPAL, MYSORE-570 009.
29. H.P.KRISHNA REDDY S/O. LATE SRI.CHIKKA PAPAIAH, AGED ABOUT 71 YEARS, R/AT NO.255, 36TH CROSS, 5TH MAIN, JAYANAGAR, 4TH BLOCK, BANGALORE-560 011.
30. M/S. S.J.R. PRIME CORPORATION PVT., LTD., SJR PRIMUS, # 1 INDUSTRIAL LAYOUT, KORAMANGALA, 7TH BLOCK, BANGALORE-560 095, INDIA, REPRESENTED BY ITS MANAGING DIRECTOR.
31. SRI.H.P.RAMA REDDY S/O. LATE CHIKKAPAPAIAH, AGED ABOUT 68 YEARS NO.255, 36TH CROSS, 3RD MAIN, JAYANAGAR, BENGALURU-560 011.
32. SRI.A.RAMA REDDY S/O. SRI.A.R.ASHWATHANARAYANA REDDY, AGED ABOUT 42 YEARS NO.479, 13TH MAIN, 3RD BLOCK, KORAMANGALA, BENGALURU-560 095.
33. SRI. V. KIRAN S/O. SRI. R. VENUGOPALA REDDY, AGED ABOUT 37 YEARS, R/AT NO.1140, 17TH CROSS, 5TH MAIN, 6TH SECTOR, HSR LAYOUR, BENGALURU-560 034. ... RESPONDENTS (BY SRI V. B. SHIVA KUMAR, ADVOCATE FOR C/R31-33; RESPONDENT NOS.1 TO 30 – NOTICE DISPENSED WITH VIDE ORDER DATED 23.04.2018) THIS R.F.A. IS FILED UNDER SECTION 96 READ WITH ORDER XLI RULE 1 OF THE CODE OF CIVIL PROCEDURE, AGAINST THE ORDER DATED: 24.08.2016 PASSED ON IA.NO.7 IN O.S.NO.354/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AND J.M.F.C. AT ANEKAL, ALLOWING I.A.NO.7 FILED UNDER ORDER VII RULE 11(a)(b)(c) and (d) READ WITH SECTION 151 OF C.P.C., FOR REJECTION OF PLAINT.
THIS R.F.A. COMING ON FOR ORDERS THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:
JUDGMENT Though this appeal was listed for admission, with the consent of learned counsel on both sides, it was heard finally yesterday and today it is listed for Dictation of Judgment.
2. The plaintiffs in O.S. No.354 of 2014 have assailed order dated 24.08.2016 passed on I.A. No.7 by the learned Senior Civil Judge and J.M.F.C. at Anekal. I.A. No.7 was filed by defendant Nos.31 to 33 in the suit under Order VII Rule 11 (a) (b) (c) and (d) read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘C.P.C.’, for brevity) seeking rejection of the plaint as the same has been barred by the provisions of the Hindu Succession Act, 1956 (hereinafter referred to as ‘the Act’, for short).
3. For the sake of convenience, the parties shall be referred to in terms of their status before the trial Court.
4. Briefly stated the facts are that the appellants plaintiffs filed the suit before the trial Court seeking the following reliefs :
“Wherefore, it is prayed that this Hon’ble court be pleased to pass a judgment and decree against the defendants :-
a) Directing the defendants 1, 2, 4, 5, 6, 8, 10, 11, 13, 14, 16, 18 and 20 to 27 to effect the partition and to allot and to put the plaintiffs in separate possession of their respective ½ share in the suit schedule property.
b) Declaring that sale deed which is registered as document No.SRJ-1-00864-2007-08, in Book-1, stored in CD No.SRJD3, dated 16.06.2007, in the office of the Sub-Registrar, Sarjapura, Bangalore, executed by the defendants 1 to 19 and the fourth son of Dodda Munishamappa Sri Munikrishnappa M. in favour of the defendant No.28 and the sale deed dated 10.06.2007, which is registered as document No.SRJ-1- 00170-2012-13, in Book-1, stored in CD No.SRJD99, dated 11.04.2012 in the office of the Sub-Registrar, Sarjapura, Bangalore, executed by the defendant No.28 in favour of defendant No.29 in respect of the Schedule Property are not binding on the plaintiffs.
c) Grant such other reliefs as this Hon’ble Court deems fit to grant under the circumstances of the case in the interest of justice and equity.”
5. In substance, the plaintiffs sought partition and separate possession of their half share in the suit schedule properties and for a declaration that the sale deeds dated 16.06.2007, 10.06.2007, 11.04.2012 in respect of the suit schedule properties are not binding on the plaintiffs.
6. In response to the suit summons and Court notices, defendant Nos.31 to 33 who are the contesting respondents herein filed their written statement inter alia, contending that the suit filed by the plaintiffs was not maintainable. In fact defendant Nos.31 to 33 got themselves impleaded in the suit. The said defendants also filed an application under Order VII Rule 11 (a) (b) (c) and (d) read with Section 151 of C.P.C. seeking rejection of the plaint. Objections were filed to the said application by the plaintiffs appellants herein.
7. The trial Court, after hearing the respective parties, by the impugned order dated 24.08.2016 allowed the said application and has rejected the plaint by holding that the same is barred by the provisions of the Act. Being aggrieved, the plaintiffs have preferred this appeal.
8. We have heard learned counsel for the appellants and learned counsel for respondent Nos.31 to 33. Other respondents are served and unrepresented. We have perused the material on record.
9. Learned counsel for the appellants contended that the trial Court was not right in rejecting the plaint by exercising jurisdiction under Order VII Rule 11 of C.P.C. and by holding that the suit was barred as per the provisions of the Hindu Succession Act, 1956. He drew our attention to the reliefs sought for by the appellants and contended that the suit was for partition and separate possession of their half share and such a suit cannot be barred under the provisions of the said Act.
10. He drew our attention to the averments in the plaint and also to the genealogical tree and contended that late Krishnappa was the original propositus. He had two sons, namely, Doddamuniswamappa and Chikkamuniswamappa. That the plaintiffs are the children and grandchildren of Chikkamuniswamappa and his wife Akkayyamma. They had three sons, namely, Krishnappa, Ramaswamappa and Narayanappa, who are since deceased. That the widow of Krishnappa is plaintiff No.1. The children of Ramaswamappa are plaintiff Nos.2(a), (b), (c) and (d). The children and grandchildren of Narayanappa are plaintiff Nos.3 and 4. That they being the branch of Chikkamuniswamappa, second son of Krishnappa, sought half share in the suit schedule properties from the branch of Doddamuniswamappa, who is the elder son of Krishnappa (original propositus). He contended that when the plaintiffs have sought for partition and separate possession of their half share in the suit properties, the plaint could not have been rejected on the ground that the suit was not maintainable under the provisions of the Act. He submitted that the reasoning of the trial Court while rejecting the plaint is erroneous and unjustified, and therefore, the impugned order may be set aside by allowing the appeal. The matter may be remanded to the trial Court on restoration of the suit and for disposal of the same in accordance with law.
11. Per contra, learned counsel for respondent Nos.31 to 33, who are in fact the purchasers of the suit schedule property supported the impugned order and decree and contended that there does not exist any joint family status between the plaintiffs and defendant Nos.1 to 30. Therefore, a suit seeking partition and separate possession of the joint family properties does not arise at all. The trial Court has appreciated the said aspect of the matter in its proper perspective and has rightly rejected the plaint. That the impugned order would not call for any interference.
12. Having heard learned counsel for the respective parties, the following points arise for our consideration:
1. Whether the trial Court was justified in rejecting the plaint under Order VII Rule 11 (a) (b) (c) and (d) read with Section 151 of C.P.C.?
2. What order?
13. We have perused the plaint, a copy of which is produced along with Memorandum of Appeal and we have also extracted the prayers sought for in the said suit. It is essentially one for partition and separate possession of plaintiffs’ half share in the suit schedule properties by seeking a declaration that the alienations made by defendant Nos.1 to 19 through other defendants in favour of defendant Nos.31 and 33 are not binding on them.
14. The plaintiffs have elaborately narrated the relationship between the parties and as to how the plaintiffs are seeking half share in the suit schedule properties. As already stated, Krishnappa was the original propositus. He had two sons, namely Doddamuniswamappa and Chikkamuniswamappa. The plaintiffs are belonging to the branch of Chikkamuniswamappa, while the defendants are belonging to the branch of Doddamuniswamappa. The plaintiffs have claimed that the suit schedule properties are joint family properties and that they have half share in the said properties, subsequent to the death of Krishnappa, the original propositus, and also the death of his two sons, namely, Doddamuniswamappa and Chikkamuniswamappa. They have also narrated as to how some of the suit schedule items have been alienated by some of the defendants, even though the said items are the joint family items. They have also narrated as to how the defendants who belong to the branch of Doddamuniswamappa had not acceded to the requests made by the plaintiffs to effect partition and put the plaintiffs in separate possession of their half share. That many panchayats have been held in that regard. But the defendants have flatly refused the demands made by the plaintiff and instead have made alienations of certain portions of the suit schedule properties to defendant Nos.28 and 29, who have, in turn, sold the said properties to others, two of whom are defendant Nos.31 to 33 who filed the application seeking rejection of the plaint. In the circumstances, the prayer of the plaintiffs has been one for partition and separate possession of the suit schedule properties to an extent of half share and to seek a declaration that the alienations made by some of the defendants in favour of other defendants are not binding on the plaintiffs.
15. The defendant Nos.31 to 33 by impleading themselves filed written statement; denied the averments made in the plaint by specifically contending that there does not exist any joint family between the parties. The said plea in the written statement would at best have given rise to a contentious issue in the suit. But the same could not have been the basis for rejecting the plaint and by holding that the suit is barred under the provisions of the Act. The reliefs sought for by the plaintiffs are those which have to be sought for precisely under the provisions of Act, as the plaintiffs have sought for partition and separate possession of their half share in the suit properties. As already noted, the plaintiffs belong to the branch of Chikkamuniswamappa and the defendants against whom the request and demand of partition was made belong to the branch of Doddamuniswamappa. Both of them are the children of Krishnappa. Therefore, the plaintiffs had prima facie right to seek partition and separate possession of the suit schedule properties. However, they had to establish their right for seeking their half share on the trial of the suit. Instead, on the basis of what has been averred in the written statement and by ignoring the pleading in the plaint, the trial Court has simply rejected the plaint by stating that the suit is barred under the provisions of the Act. Thus, the approach of the trial Court is erroneous. In this regard, it would be useful to rely upon the decision of the Hon’ble Supreme Court in the case of Kamala and Others v. K. T. Eshwara SA and others reported in AIR 2008 SC 3174, wherein the Hon’ble Supreme Court has observed as under :
“21. Order 7 Rule 11(d) of the Code has limited application. It must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averments made in the plaint. Different clauses in Order 7 Rule 11, in our opinion, should not be mixed up. Whereas in a given case, an application for rejection of the plaint may be filed on more than one ground specified in various sub-clauses thereof, a clear finding to that effect must be arrived at. What would be relevant for invoking clause (d) of Order 7 Rule 11 of the Code are the averments made in the plaint. For that purpose, there cannot be any addition or subtraction. Absence of jurisdiction on the part of a court can be invoked at different stages and under different provisions of the Code. Order 7 Rule 11 of the Code is one, Order 14 Rule 2 is another.
22. For the purpose of invoking Order 7 Rule 11(d) of the Code, no amount of evidence can be looked into. The issues on merit of the matter which may arise between the parties would not be within the realm of the court at that stage. All issues shall not be the subject-matter of an order under the said provision.”
16. We may also at this stage observe that even if a plaint is sought to be rejected on the ground that it is hit by the doctrine of res judicata, the Hon’ble Supreme Court in the case of Vaish Aggarwal Panchayat v. Inder Kumar and Others reported in AIR 2015 SC 3357 has held that the application of res judicata to case involves mixed question of law and fact, requires not only examination of plaint but also other evidence. Hence the plaint cannot be rejected on the threshold on that ground. Further in the said case the Hon’ble Supreme Court has also adverted to a discussion as to whether a plaint could be rejected on the ground that it is hit by limitation. It has been held that the suit cannot be dismissed as barred by limitation without considering pleadings, framing of issue on limitation and recording evidence for the question of limitation is a mixed question of fact and law and ex facie by a reading of the plaint it cannot be held that the suit is barred by time.
17. In the circumstances of the instant case, we hold that the trial Court was not right in its approach in rejecting the plaint by ignoring the averments made in the plaint and on the basis of what has been stated in the written statement. Therefore, the impugned order and decree of the trial Court is set aside. The suit is restored on the file of the concerned trial Court. The matter is remanded to the trial Court for a consideration of the suit in accordance with law.
18. As the appellants and respondent Nos.31 to 33 are present before this Court, they are directed to appear before the trial Court on 16.09.2019 without expecting any separate notices from the said Court. The trial Court to issue notice to the other defendants in case they do not appear before the said Court on the said date and thereafter to dispose of the suit in accordance with law.
Parties to bear their respective costs.
Sd/- JUDGE Sd/- JUDGE hnm