IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF JULY, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON’BLE MR. JUSTICE K. NATARAJAN Regular First Appeal No.895 of 2017 (PAR) BETWEEN :
1. SMT. NANJAMMA W/O. VENKATAPPA AGED ABOUT 49 YEARS R/O. HAROKETHANAHALLI VILLAGE MAKALI POST, DASANAPURA HOBLI BANGALORE NORTH TALUK PIN-562 162.
2. SMT. THOPAMMA W/O. HOMBAIAH AGED ABOUT 54 YEARS R/O. VAJARAHALLI VILLAGE BIDADI HOBLI RAMANAGARA TALUK RAMANAGARA DISTRICT PIN-560 109.
... APPELLANTS (BY SRI G. OMKAR MURTHY, ADVOCATE) AND :
1. HANUMAKKA W/O. BASAPPA AGED ABOUT 51 YEARS.
2. SMT. MANJULA D/O. BASAPPA AGED ABOUT 39 YEARS.
3. SRI SHIVASHANKAR S/O. BASAPPA AGED ABOUT 32 YEARS.
4. SMT. VIJAYALAKSHMI D/O. DASAPPA AGED ABOUT 30 YEARS.
5. SRI THIMMARAYAPPA S/O. BASAPPA AGED ABOUT 28 YEARS.
6. SRI GIRISH S/O. BASAPPA AGED ABOUT 26 YEARS.
7. SMT. PUTTARUDRAMMA W/O. LATE BETTAIAH AGED ABOUT 66 YEARS.
8. SRI GANGARAJA S/O. LATE BETTAIAH AGED ABOUT 36 YEARS.
9. SRI GOPALA S/O. LATE BETTAIAH AGED ABOUT 28 YEARS.
RESPONDENT NOS.1 TO 9 ARE RESIDING AT AGARA VILLAGE TATAGUNI POST, KENGERI HOBLI, BANGALORE SOUTH TALUK PIN-560 079.
10. SMT. BHAGYAMMA W/O. CHIKKAMUTHANNA AGED ABOUT 49 YEARS R/O. SETTIGOWDANADODDI VILALGE BIDADI HOBLI, RAMANAGARA TALUK PIN-562 109.
11. SMT. LAKSHMAMMA W/O. KUCHELAPPA AGED ABOUT 46 YEARS R/O. DEVAGERE VILLAGE KUMBALAGODU POST KENGERI HOBLI BANGALOE SOUTH TALUK PIN-560 074.
12. SMT. MUNIGANGAMMA W/O. DRIVER NAGARAJU AGED ABOUT 42 YEARS R/O. MUNIYELLAPPA BUILDING GUNDAMMA LAYOUT GKM COLLEGE ROAD J. P. NAGAR POST, JARAGANAHALLI KANAKAPURA MAIN ROAD UTTARAHALLI HOBLI BANGALORE-560 078.
13. SMT. MANJAMMA W/O. BYRAPPA AGED ABOUT 30 YEARS R/O. HEMMIGEPURA VIDYAPEETHA POST, KENGERI HOBLI BANGALORE SOUTH TALUK PIN-560 060.
14. SRI V. KRISHNAMURTHY S/O. VENUGOPALA NAIDU AGED ABOUT 50 YEARS R/O. NO.121/26, “MATHURA”, 16TH MAIN ROAD, 2ND BLOCK BSK 1ST STAGE BANGALORE-560 050.
15. SRI M. KRISHNAPPA S/O. MUNISWAMAPPA AGED ABOUT 54 YEARS R/O. NO.196, 24TH CROSS 16TH MAIN, BSK 2ND STAGE BANGALORE-560 070.
... RESPONDENTS (BY SRI M. C. JAYAKIRTHI, ADVOCATE FOR R7-R9;
SRI G. D. ASHWATHANARAYANA, ADVOCATE FOR R15;
R12 – NOTICE HELD SUFFICIENT VIDE ORDER DATED 03.10.2018;
R1 TO 6, 11, 13 AND 14 – SERVED AND UNREPRESENTED) THIS R.F.A. IS FILED UNDER SECTION 96 OF THE CODE OF CIVIL PROCEDURE, 1908, TO SET ASIDE THE ORDER DATED: 22.03.2017 IN O.S.NO.105/2013 ON THE FILE OF II ADDITIONAL SENIOR CIVIL JUDGE, BENGALURU, RURAL DISTRICT, BENGALURU, AND DISMISS THE APPLICATION FILED UNDER ORDER VII RULE 11 (d) READ WITH SECTION 151 OF C.P.C.
THIS R.F.A. COMING ON FOR ADMISSION THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:
JUDGMENT Though this appeal is listed for admission, with the consent of learned counsel on both sides, it is heard finally.
2. The plaintiffs in O.S. No.105 of 2013, being aggrieved by the rejection of their plaint in the said suit by the impugned order dated 22.03.2017 passed by II Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru have preferred this appeal. By the said order, the plaint filed by the plaintiffs has been rejected under Order VII Rule 11(d) read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘C.P.C.’, for the sake of brevity) and thereby the application filed by defendant Nos.7 to 9 in the suit has been allowed.
3. For the sake of convenience, the parties shall be referred to in terms of their status before the trial Court.
4. The plaintiffs filed the suit seeking a declaration that they are entitled to 2/3rd share in the suit schedule properties and for partition of suit schedule properties by metes and bounds; and for an enquiry with regard to mesne profits vis-à-vis the suit schedule properties. According to the plaintiffs, Basappa is the propositus of the plaintiffs and defendants family. Basappa had three sons, namely, Puttaiah, Muniyappa and Munichikkaiah. The first son, Puttaiah had a son by name Chikkamuniyappa, who died on 27.12.1990 leaving behind him three daughters by name Thopamma (plaintiff No.2), Mayamma (since deceased, without issues) and Nanjamma (plaintiff No.1); and a son Basappa (defendant No.1). The second son Muniyappa had separated from joint family long ago. The third son Munichikkaiah had a son by name Bettaiah, who died on 12.06.2004. Defendant Nos.7 to 13 are wife and children of Bettaiah. Defendant Nos.2 to 6 are the children of defendant No.1. According to the plaintiffs, plaintiffs and defendant Nos.1 to 6 constituted a Hindu Joint Family. That only Puttaiah and Munichikkaih remained joint and were enjoying the suit schedule properties having inherited the same from their father Basappa. That after the death of Puttaiah and Munichikkaiah, their sons, namely, Chikkamuniyappa S/o. Puttaiah and Bettaiah S/o. Munichikkaiah were enjoying the properties inherited from their father. The plaintiffs sought a share in their father’s share, namely, Chikkamuniyappa’s share. According to the plaintiffs, they became aware that Chikkamuniyappa S/o. Puttaiah, father of plaintiffs had filed O.S. No.53 of 1986 on the file of Principal II Munsiff Judge seeking partition and separate possession of their half share in the suit properties against Bettaiah, husband of defendant No.7. The said suit was dismissed by judgment and decree dated 21.02.1990 holding that there was no joint family status and that there was a partition which had taken place earlier. This was on the basis of the written statement filed in the said suit. Thereafter Bettaiah, husband and father of defendant Nos. 7 to 13 respectively got mutated his name in the revenue records in respect of the suit schedule properties which include Chikkamuniyappa’s share by mis-representing to the revenue authorities stating that O.S. No. 53 of 1986 was dismissed. Plaintiffs’ father thereafter had filed R.A. No.260 of 1995 before the Assistant Commissioner challenging the mutation entries made by the Tahsildar. The said appeal was remanded to the Tahsildar for re- consideration and the Tahsildar on 25.11.2002 confirmed the earlier order. Once again an appeal was preferred before the Assistant Commissioner in R.A. (S) 153 of 2002 – 03 which was dismissed on 05.02.2004 holding that the dispute between the parties were of a civil nature, and therefore, they ought to approach the Civil Court. The plaintiffs have thereafter referred to O.S. No.528 of 1996 filed by defendant No.7 and O.S. No.2958 of 2005 filed by defendant Nos.2 to 6.
5. It is the case of plaintiffs that their share in the suit schedule properties have not been allotted to their father and thereafter to them and hence the plaintiffs sought for declaration of their 2/3rd share in the suit schedule properties and for partition and separate possession and for an enquiry with regard to mesne profits.
6. In response to the plaint, defendant Nos.7 to 9 filed their written statement and an application under Order VII Rule 11(d) of C.P.C. seeking rejection of the plaint by contending that the father of the plaintiffs had earlier filed O.S. No.53 of 1986 before the competent Court claiming half share in the suit schedule properties against his cousin Bettaiah, father of defendant Nos.8 to 13 and husband of defendant No.7. The said suit was dismissed on 21.02.1990. Therefore, the plaintiffs were barred from filing the second suit on the same cause of action and in respect of the same properties and in between the same parties and that the present suit was hit by the principles of res judicata. The trial Court considered the said application and has held that the suit has been hit by the principles of res judicata and consequently ordered rejection of the plaint by allowing the application.
7. It is also brought to our notice that the trial Court has also reasoned that as the father of plaintiffs, Chikkamuniyappa had died prior to 09.09.2005, his daughters could not have maintained a suit for partition under the amended Section (6) of the Hindu Succession Act, 1956 (hereinafter referred to as ‘the Act’, for the sake of brevity). Being aggrieved by the rejection of the plaint, the plaintiffs have preferred this appeal.
8. We have heard learned counsel for the appellants and learned counsel for respondent Nos.7 to 9 and respondent No.15. The other respondents are served and unrepresented. We have perused the material on record.
9. Appellants’ counsel contended that the trial Court was not right in rejecting the plaint on the ground that the suit was hit by the principles of res judicata, and therefore, was barred in law. He contended that res judicata is a mixed question of law and fact and a complaint cannot be rejected on the basis that the suit is hit by the principles of res judicata. He submitted that on a reading of the plaint, principles of res judicata is not at all applicable. That it is a matter which has to be considered after conclusion of trial. The same has to be established by the contesting respondents / defendants in the trial. By the rejection of the plaint, the trial Court has simply stultified the suit and as a result the plaintiffs have lost an opportunity of establishing their right, title and interest in the suit properties and to seek appropriate remedies.
10. In support of his submission, he placed reliance on the judgment of the Hon’ble Supreme Court in the case of Vaish Aggarwal Panchayat v. Inder Kumar and Others reported in AIR 2015 SC 3357 ( Vaish Aggarwal Panchayat) to contend that the principles of res judicata cannot be a ground to reject a plaint. He, therefore, submitted that this Court may set aside the order passed by the trial Court and restore the suit on the file of the trial Court so that it could be disposed of in accordance with law after the trial.
11. Per contra, learned counsel for respondent Nos.7 to 9 and 15 supported the order of the trial Court and contended that when the plaintiffs themselves have referred to the earlier suit, namely, O.S. No.53 of 1986 which was filed by their father against Bettaiah, husband of defendant No.7 and father of defendant Nos.8 to 13 which was dismissed on the basis that there was a prior partition between the parties, there would be no joint family subsisting. That on account of the earlier partition the properties were divided and the families are living separately. Therefore, the plaintiffs could not have filed the suit seeking declaration, partition and separate possession. They submitted that the impugned order would not call for any interference and the appeal being devoid of merit may be dismissed.
12. Having heard learned counsel for the respective parties, the following question would arise for our consideration :
“Whether the trial Court was justified in rejecting the plaint under Order VII Rule 11(d) of C.P.C. on the ground that the suit was hit by the principles of res judicata?”
13. The detailed narration of facts and contentions would not call for a reiteration except highlighting the fact that plaintiffs being the daughters of Chikkamuniyappa had sought a declaration that they are entitled to 2/3rd share in the suit schedule properties and for the relief of partition and separate possession and for an enquiry into mesne profits. Nodoubt the plaintiffs in their plaint have referred to the earlier suit filed by their father in O.S. No.53 of 1986 against the husband of defendant No.7 and father of defendant Nos.8 to 13 and the said suit was dismissed. The said suit was dismissed on the premise that there was an oral partition between Chikkamuniyappa and Bettaiah, and therefore, a suit seeking partition could not have been filed. Nodoubt the said suit has been dismissed and the said judgment has attained finality. But, it is not known as to whether pursuant to any oral partition between the aforesaid parties there was indeed a division of properties by metes and bounds.
14. It is the case of plaintiffs that there was no division of the properties by metes and bounds, and therefore, they have sought for a declaration of their share and for partition and separate possession. In fact, reference is also made in the plaint to the disputes with regard to revenue records which was a matter of challenge before the Assistant Commissioner, who had dismissed the appeal and had directed the parties to seek a civil remedy.
It is on the basis of the said order that the plaintiffs filed the suit seeking declaratory relief as well as partition and separate possession of their share in the suit schedule properties and for an enquiry with regard to mesne profits. In our view, such a plaint could not have been rejected on the ground that it is hit by the principles of res judicata.
15. The Hon’ble Supreme Court in the case of Vaish Aggarwal Panchayat, referred to above, has held that res judicata cannot be a ground for rejection of the plaint. Res judicata involves mixed question of law and fact which requires not only examination of the plaint, but also other evidence. Therefore, by a mere reading of the plaint, the principles of res judicata cannot be applied and the plaint cannot be rejected. But, in the instant case, the trial Court has precisely done the same. Based on the reference being made to the earlier suit in O.S. No.53 of 1986, the plaint filed by the appellants herein has been rejected. There is no evidence let-in in order to ascertain in what way the principles of res judicata would apply to the present suit.
16. Nodoubt the contesting respondents herein may have brought to the notice of the trial Court in their application that the earlier suit, namely, O.S. No.53 of 1986 had been dismissed and that the appeal filed against it had been dismissed. But even if the said suit had been dismissed, the implication or the effect of said dismissal of the present suit has to be ascertained. By merely stating that the suit filed by the father of the plaintiffs in O.S. No.53 of 1986 with regard to suit schedule properties having been dismissed would result in application of principles of res judicata to the instant suit, and therefore, the plaint would have to be rejected is only a superficial approach of the trial Court.
17. Further reasoning of the trial Court to the effect that the suit filed by the daughters vis-à-vis the suit schedule properties is not maintainable as their father had passed away prior to 09.09.2005 and that the daughters would be entitled to a share in the suit schedule properties only if their father and they had both lived on 09.09.2005 is a mis-reading of the judgment of the Hon’ble Supreme Court in the case of Prakash and Others v. Phulavati and Others reported in (2016)2 SCC 36. With effect from the date of enforcement of Section 6 of the Act and in terms of the judgment of the Hon’ble Supreme Court, in the aforesaid case, if the father and daughter are both living on 09.09.2005, in such a situation the daughter would be considered to be a co-parcener entitled to a share equal to that of a brother. Otherwise, the daughter will have to take her share in father’s share in terms of the notional partition to be made as per the judgment of the Hon’ble Supreme Court in the case of Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum and Others reported in AIR 1978 SC 1239. In the circumstances, the trial Court was not right in holding that the suit filed by the appellants plaintiffs was not maintainable and for that reason the plaint was rejected.
18. Nodoubt in T.Arivandandam v. T. V. Satyapal and Another reported in AIR 1977 SC 2421 (T. Arivandandam), the Hon’ble Supreme Court has enunciated the approach to be made by the trial Court while considering a plaint for the purpose of rejecting the same under Order VII Rule 11 of C.P.C. it should be on a meaningful and not a formal reading of the plaint and if it is established that the suit is manifestly vexatious and meritless in the sense of not disclosing any cause of action and not maintainable. It is only in such circumstances that such a plaint would have to be rejected. The facts which arose in T. Arivandandam do not at all arise in the present case. In the circumstances, impugned order is set aside and the appeal filed by the appellants is allowed.
19. The suit is restored on the file of the trial Court and the matter is remanded to the trial Court for disposal in accordance with law.
20. Since the appellants and respondent Nos.7 to 9 and 15 are represented by their respective counsel, they are directed to appear before the trial Court on 18.09.2019 without expecting any separate notices from the said Court. The trial Court to issue fresh notices to the other parties, who are not represented on the said date and to dispose of the suit in accordance with law.
Parties to bear their respective costs.
In view of disposal of the appeal, I.A. No.1 of 2017 stands disposed.
It is needless to observe that since the suit has been restored on the file of the trial Court, interim orders, if any, in the suit shall revive.
Sd/- JUDGE Sd/- JUDGE hnm