IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF MARCH 2019 PRESENT THE HON’BLE MRS.JUSTICE B.V.NAGARATHNA AND THE HON’BLE MR.JUSTICE H.T.NARENDRA PRASAD R.F.A.No.664 OF 2017 (PAR) BETWEEN:
1. Smt. Pilla Muniyamma W/o. Late. Dyapaiah Aged about 76 years 2. Smt. Gopamma W/o. Late D. Nanjappa Aged about 49 years 3. Shri. Manjunath S/o. Late. D.Nanjappa Aged about 29 years 4. Smt. Kalavathi D/o. Late. D. Nanjappa Aged about 27 years 5. Kum. Ramya D/o. Late. D.Nanjappa Aged about 22 years 6. Shri. D. Venkatesh S/o. Late. Dyapaiah Aged about 54 years All are R/at Igglur Village Attibele Hobli, Anekal Taluk Bangalore District Pin Code: 560 099.
7. Smt. Yashodamma D/o. Late. Dyapaiah Aged about 50 years R/at Manchanahalli Village Attibele Hobli, Anekal Taluk Bangalore District Pin Code: 560 099.
8. Smt. Byamma D/o. Late. Dyapaiah Aged about 48 years R/at Sonnappanahatti Village Malur Taluk, Kolar District.
9. Smt. Bhyagyamma D/o. Late. Dyapaiah Aged about 46 years R/at Igglur Village Attibele Hobli, Anekal Taluk Bangalore District Pin: 560 099. ... Appellants (By Sri Vishwanatha Setty V., Advocate) AND:
1. Smt. Saraswathamma W/o. D.Nagaraja Gowda Aged about 61 years 2. Smt. Vasanthamma D/o. D. Nagaraja Gowda Aged about 39 years 3. Shri N. Lakshmana S/o. D. Nagaraja Gowda Aged about 37 years 4. Smt. Kamala D/o. D. Nagaraja Gowda Aged about 35 years 5. Smt. Shashikala D/o. D. Nagaraja Gowda Aged about 33 years All are R/at Igglur Village Attibele Hobli, Anekal taluk Bangalore District Pin: 560 099.
6. Smt. Narayanamma Since deceased by her LR’s 6(a) Smt. Rathnamma W/o. Krishnappa D/o. Late Choodappa Aged about 50 years 6(b) Smt. Lalitha W/o. Krishnapa D/o. Late Choodappa Aged about 38 years 6(a) & 6(b) are R/o Bhatlapalli Village Hosur Post & Taluk, Krishnagiri District, Tamil Nadu.
6(c) Sri. Vankatachala S/o. Late Choodappa, Aged about 47 years 6(d) Sri. Suresh S/o. Late Choodappa, Aged about 45 years 6(e) Sri. Lakshman S/o. Late Choodappa, Aged about 40 years Resp No. 6(c) to (e) are R/at Nayanahalli Village, Haragadde Post, Anekal Taluk, Bengaluru District.
6(f) Smt. Parvathi W/o. Sri. Narayanaswamy, D/o. Late Choodappa, Aged about 38 years, R/at sonapanahatti Village Kudenur Post, Malur Taluk, Kolar District.
7. Smt. Padmamma W/o. Late Narayana Reddy Aged about 56 years 8. Shri Babu Reddy S/o. Late Narayana Reddy Aged about 27 years 9. Smt. Pushpa D/o. Late Narayana Reddy Aged about 36 years Respondent Nos.7 to 9 are R/at Igglur Village, Attibele Hobli, Anekal taluk, Bangalore District Pin – 560 099.
10. Shri T. Rama Reddy S/o. Late Thimmaraya Reddy Aged about 61 years 11. Shri. Vinod Kumar S/o. T. Rama Reddy Aged about 28 years 12. Smt. R. Chaitra D/o. T. Rama Reddy Aged about 27 years, Respondent Nos.10 to 12 are R/at Gulla Reddy Layout Chandapura Village Attibele Hobli, Anekal taluk Bangalore District Pin-560099.
13. Shri S. Venkataswamy Reddy S/o. Late Sidda Reddy, Aged about 51 years, R/at No.780, Gulla Reddy Layout Chandapura Village Attibele Hobli, Anekal taluk Bangalore District Pin – 560 099.
14. Shri Y. Puttanna S/o. D. Yellappa Aged about 40 years R/at Flat No.401, JP Liviano Apartment Akash Nagara, Anugruha Layout B.Narayanapura Bangalore – 560 016.
15. M/s. Shubhapradha Builders & Developers No.640, MIG Surya City Anekal Road, Chandapura Attibele Hobli, Anekal Taluk Bangalore Urban District Pin – 560 100.
Rep. by the Managing Partner Shri S. Jagapathi S/o. S. Venkatarathnam Aged about 53 years.
16. M/s. NBR Developers & Builders Pvt. Ltd., No.71, 16th Cross, 14th ‘A’ Main 4th Sector, HSR Layout Bangalore – 560 102.
Rep. by the Directors:
Shri Ashwathnarayana Reddy S/o. K. Nanja Reddy Aged about 41 years Shri Nagabhushana Reddy S/o. K. Nanja Reddy Aged about 38 years 17. Shri Ramesh Kumar Sah S/o. Jagathnarayan Sah Aged about 36 years R/at Flat No.401 J.P. Liviano Apartment Akashnagar, Anugraha Layout B. Narayanapura Bangalore – 560 016.
18. Shri Uma Maheshwar Rao S/o. K. Manikyala Rao Aged about 45 years R/at Flat No.BG-4 CVK Meenakshi Elegance Kalena Aagrahara, B.G.Road Bangalore – 560 083.
19. Shri Srinivasa Reddy S/o. Changa Reddy Aged about 63 years R/at No.574, 8th Main 16th cross, BEML Layout, Thubarahalli, Bangalore – 560 066. ... Respondents (By Sri M. Rajeswara P.N., Advocate for C/R18, R17 & R19, Sri Vishwanatha Reddy, Advocate for R6(a-f), Sri K.S. Mahadevan, Advocate for R-13, v/o dated 14.11.2017 R1 to R4 are declared as served, R5, R9, R10, R12, R14, R15 are served, v/o dated: 10.09.2018 notice to R7, R8, R11 & R16 are held sufficient) This RFA is filed under Section 96 of the CPC 1908, against the order dated:23.03.2017 order passed on IA.No.5 in O.S.No.1245/2015 on the file of the Senior Civil Judge, Anekal allowing the IA.No.5 filed under Order 7 Rule 11(a)(b) and (d) R/W Section 151 of CPC.
This RFA, 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 appellants are the plaintiffs in O.S.No.1245/2015.
The said suit has been filed by them seeking the following reliefs:
“Wherefore, the plaintiffs above named prays for a judgment and decree as under:
a) Directing the defendants to effect partition and to allot the plaintiffs ½ share in the suit schedule property by meets and bounds and to put them in possession of their share.
b) For an enquiry into mesne profits from the date of the suit till recovery of the plaintiffs ½ share in the suit schedule property.
c) For declaration, declaring the sale deed dated 12.12.1985, vide Doc.No.1192/1985-86, executed by late D.Nagaraja Gowda in favour of late T.Narayana Reddy is not binding on the plaintiffs.
d) For declaration declaring the sale deed dated 28.03.2005 vide Doc.Nos.29259/2004-05, 29263/2004-05 & 29261/2004-05 (3 in Nos.) executed by Smt.Padmamma and others, the defendant Nos. 7 to 9 in favour of S.Venkataswamy Reddy, the defendant No.13 T.Rama Reddy, the defendant No.10 & Y.Puttanna, the defendant No.14 is not binding on the plaintiffs to the extent of their share in the suit schedule property.
e) For declaration declaring the joint development agreement dated 17.11.2014, vide Doc.No.SRJ-1-03496/2014-15, stored in CD No.SRJD 161 executed by T.Rama Reddy & others, the defendants 10 to 12 in favour of the defendant No.15 is not binding on the plaintiffs to the extent of their share.
f) For declaration, declaring the sale deed dated 05.01.2012 vide Doc.No.ABL-1-04123/2011- 12, stored in CD No.ADLD87 executed by Y.Puttanna, the defendant No.14 in favour of defendant No.16 is not binding on the plaintiffs to the extent of their share.
g) For declaration, declaring the sale deed dated 12/13.12.2012 vide Doc.No.ABL-1- 05535/2012-13, Stored in CD No.ABLD131 executed by defendant No.16 in favour of defendants 17 to 19 is not binding on the plaintiffs to the extent of their share.
h) For awarding costs of this suit.
i) For granting such other relief/s as this Hon’ble Court.”
The aforesaid reliefs are sought in respect of the following schedule property:
“All that piece and parcel of the agricultural land bearing Sy.No.129/1, measuring 1 acre 0.5 ½ guntas, situated at Iggalur Village, Attibele Hobli, Anekal Taluk, Bangalore Dist. bounded on:
East by: Land of Muniswamappa West by: Remaining land in the same No. belongs to Dyapaiah.
North by: Government Road. South by: Land of Siddappa.”
3. In response to the suit summons and court notices, the defendants appeared in the suit. Defendant Nos. 17, 18 and 19 filed an application under Order VII Rule 11(a), (b) and (d) r/w. Section 151 of Code of Civil Procedure, 1908 (CPC) seeking rejection of the plaint by contending that there is no cause of action and that the suit of the plaintiffs is under-valued and the same is barred by law of limitation. By the impugned order dated 23.03.2017 the plaint has been rejected. Being aggrieved, the plaintiffs have preferred this appeal.
4. We have heard learned counsel for the appellants and learned counsel for the contesting respondents, namely respondent Nos. 17, 18 and 19. The other respondents are either served and unrepresented or though represented not present in Court. We have perused material on record.
5. Learned counsel for the appellants drew our attention to the plaint filed in O.S.No.1245/2015 and contended that the suit has been filed seeking the relief of partition and separate possession of the suit schedule property and for mesne profits. In addition, declaratory reliefs have also been sought which are incidental and ancillary to the main relief of partition and separate possession of the suit schedule property; that the trial Court could not have rejected the plaint on the ground that there was no cause of action to file the suit and that the suit filed was hit by the law of limitation and also the fact that the suit was under-valued. He submitted that the issues raised by defendant Nos. 17 to 19 in the application filed by them under Order VII Rule 11(a), (b) and (d) of CPC could not have been considered after trial and when the evidence was on record; that on the basis of affidavit and pleadings the trial Court could not have rejected the plaint. He contended that on a reading of the plaint it is clearly established that the plaintiffs have a cause of action to file the suit and seek the reliefs of partition and separate possession, mesne profits and also the declaratory reliefs; that it is only on recording of evidence the issue raised by defendant Nos. 17 to 19 could have been determined by the trial Court.
6. He further contended that the impugned order may be set aside and the matter may be remanded to the trial Court for disposal of the suit after conducting trial and in accordance with law.
7. Per contra, learned counsel for respondent Nos. 17 to 19, who are the contesting respondents and who filed the application seeking rejection of the plaint contended that the suit has been filed in the year 2015 seeking the relief of partition and separate possession; that Dyapaiah, the father of plaintiffs died prior to 1977; that they have not sought for partition till date; that subsequently, in the year 1985 the suit schedule property was alienated, therefore, the suit filed in the year 2015 was hit by law of limitation; that the trial Court was right in rejecting the plaint.
8. In support of his submission he placed reliance on an unreported judgment of the Hon’ble Supreme Court dated 13.03.2019 in the case of RAGHWENDRA SHARAN SINGH vs. RAM PRASANNA SINGH (DEAD) BY LRS. (Civil Appeal No.2960/2019).
9. He further contended that after the alienation being made, there has been conversion of the suit schedule property and construction put up thereon and third party rights have been created; that at this point of time, the suit seeking partition and separate possession as well as the declaratory reliefs could not have been filed by the plaintiff; that the impugned order would not call for any interference at the hands of this Court. He contended that there is no merit in the appeal and the appeal may be dismissed.
10. Having heard learned counsel for the respective parties the only point that arises for our consideration is whether the trial Court was justified in allowing the application filed under Order VII Rule 11(a), (b) and (d) r/w. Rule 151 of CPC and thereby rejecting the plaint filed by the appellants/plaintiffs.
11. The prayer sought for by the plaintiffs in the suit have been extracted above. They are, inter alia, seeking the relief of partition and separate possession, mesne profits as well as declaratory reliefs. In substance, the plaintiffs are contending that the alienation of the suit schedule property by defendant Nos. 17 to 19 is not binding on them as the suit property is a joint family property in which the plaintiffs have a share. It is no doubt true that the Hon‘ble Supreme Court in a catena of cases has discussed the law on the point. It has observed in the case of T.ARIVANDANDAM vs. T.V. SATYAPAL [(1977) 4 SCC 467], as under:
“5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentently resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful — not formal — reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7, Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order 10, CPC. An activist Judge is the answer to irresponsible law suits ”.
12. Similarly, in CHURCH OF CHRIST CHARITABLE TRUST & EDUCATIONAL CHARITABLE SOCIETY vs. PONNIAMMAN EDUCATIONAL TRUST [(2012) 8 SCC 706], it has been observed as under:
“13. While scrutinizing the plaint averments, it is the bounden duty of the trial Court to ascertain the materials for cause of action. The cause of action is a bundle of facts which taken with the law applicable to them gives the Plaintiff the right to relief against the Defendant. Every fact which is necessary for the Plaintiff to prove to enable him to get a decree should be set out in clear terms. It is worthwhile to find out the meaning of the words "cause of action". A cause of action must include some act done by the Defendant since in the absence of such an act no cause of action can possibly accrue.”
13. There are other judgments of the Hon’ble Supreme Court on the point, namely, A.B.C. LAMINART PVT. LTD. vs. A.P.AGENCIES [(1989) 2 SCC 163] wherein, at paragraph 12, it has been observed as under:
“12. A cause of action means every fact, which if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything which if not proved would give the defendant a right to immediate judgment must be part of the cause of action. But it has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff.”
14. It is unnecessary to multiply the judicial precedent on the point. However, on a close reading of the judgments of the Hon’ble Supreme Court, what emerges is that the conditions for rejection of the plaint as enumerated in Order VII Rule 11 CPC must be fulfilled. In order to decide as to whether the plaint has to be rejected or not, the averments made in the plaint only have to be read and perused closely. It is on a reading of the plaint in a meaningful manner, it has to be determined as to whether the plaint has to be rejected or not or whether the plaint is manifestly vexatious, meritless, in the sense of not disclosing a cause of action or that the plaint has been filed without there being any cause of action or that the suit is barred by any law. The same would depend on the facts and circumstances of each case. The averments made in the written statement as well as the contentions of the defendants in the written statement are wholly immaterial while considering prayer of the defendants for rejection of the plaint. The test is, whether on a reading of the plaint, whether it discloses a cause of action or does not do so, whether the suit is barred by any law or not, as to whether the suit is hit by law of limitation. When it comes to the question of law of limitation, it is a settled position that the question of limitation is a mixed question of law and fact in which event it would not be necessary to record evidence on the said aspect of the matter.
15. In the instant case, on a reading of the plaint, in paragraph 3 of the plaint, relationship between the parties are described and in paragraph 4 of the plaint the undisputed facts pertaining to the suit schedule property is collated, in paragraph 7 it is stated as to how the suit schedule property, which, according to the plaintiffs is a joint family property and which has been alienated with the consent of the plaintiffs and in the subsequent paragraphs the conversion of the suit schedule property from agricultural to non-agricultural use, the joint development agreement entered into in respect of the suit property, the construction of the apartments thereon and such other facts have been stated. It is stated in paragraph 14 of the plaint that the cause of action arose on 04.09.2015, when the plaintiffs demanded their share in the suit schedule property and the fact that they came to know that sale deeds had been executed in respect of the same. Therefore, they sought for partition and separate possession of the suit schedule property claiming half share thereon and for an enquiry into the mesne profits in respect of their half share. While doing so, the plaintiffs have also sought a declaratory relief vis-à-vis sale deeds which have been executed by defendant Nos. 17 to 19 on 12.12.1985 and on subsequent dates as well as the execution of the joint development agreement on 17.04.2014, these are the events which have taken place subsequent to the alienation of the suit schedule property by defendant Nos. 17 to 19, which, according to the plaintiffs is the joint family property and it could not have been alienated by only defendant Nos. 17 to 19. In the circumstances, they have sought for the aforesaid reliefs.
16. On a plain reading of the plaint in a meaningful manner, it emerges that the plaintiffs have indeed disclosed the cause of action for seeking the relief of partition and separate possession and for mesne profits in respect of their half share in the suit schedule properties as well as declaratory reliefs.
17. Having regard to the aforesaid reliefs claimed by the plaintiffs, the trial Court could not have said that the suit was barred by law of limitation or that there was no cause of action disclosed by the plaintiffs. The genealogy tree which has been produced along with the memorandum of appeal clearly discloses the relationship between the parties, which is not disputed.
18. The learned counsel for respondent Nos. 17 to 19 has placed reliance on RAGHWENDRA SHARAN SINGH (supra). The said judgment does not apply to the present case as in the aforesaid judgment only declaratory relief was sought with regard to gift deed dated 06.03.1981 on the ground that it was a sham document and possession was also sought of the gifted property as also the injunction. The Hon’ble Supreme Court taking note of the facts of the said case, in the light of the relief sought therein, held that the suit was barred by law of limitation. But in the instant case, the plaintiffs have sought the relief of partition and separate possession of their half share in the suit schedule property and other reliefs also. There is no reason to hold that the said relief is barred by law of limitation on a plain reading of the plaint, with evidence being let in and considered by the trial court.
19. The question is whether the plaintiffs have right, title and interest in the suit schedule property which they claim to be the joint family property. The same has to be adjudicated by the trial Court. Instead, the plaint itself has been rejected. We find that the plaint indeed discloses the cause of action and therefore the plaint could not have been rejected on that score. Further, when the relief sought for by the plaintiffs is one regarding partition and separate possession of their half share in the suit schedule property, the plaint could not have been rejected on the ground of limitation.
20. As far as declaratory reliefs are concerned, it is necessary to let in evidence on the point of limitation. In the circumstances, we set aside the order dated 23.03.2017 passed on I.A.No.5 in O.S.No.1245/2015. Consequently, we restore the suit on the file of the trial Court. The trial Court is directed to dispose off the suit in accordance with law. In the event, the issues raised on I.A.No.5 by respondent Nos. 17 to 19 herein arise in the suit, they may be raised in the suit and answered by the trial Court. However, the alienation made by respondent Nos. 17 to 19 subsequent to the rejection of the plaint vide order dated 23.03.2017 and till date are subject to the result of the suit.
21. Appeal is allowed in the aforesaid terms. Parties to bear their respective costs.
22. In view of disposal of the appeal, I.A.No.1/2017 stands disposed off.
Sd/- JUDGE Sd/- JUDGE Cm/-