IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT CIVIL REVISION PETITION.No.365 OF 2019 BETWEEN SMT. SHIVAGAMI.S W/O. SANJAY HAZARIKA AGED ABOUT 58 YEARS RESIDING AT NO.42 SRIHARI ADJ 12A CROSS HEBBAL, KEMPAPURA BENGALURU-560024.
... PETITIONER (BY SMT. SADHANA DESAI, ADVOCATE) AND 1. SMT. AJJIKUTTIRA RATHI SOMAIAH W/O LATE A.C. SOMAIAH AGED ABOUT 58 YEARS R/AT. KUTTANDI VILLAGE, VIRAJPET TALUK, KODAGU DISTRICT-571218.
2. SMT. K. DEEPTHI W/O. KOKKALERA B. APPAIAH AGED ABOUT 34 YEARS OPP. MANS COMPOUND MADIKERI TOWN KODAGU DISTRICT-571253.
3. SRI. AJJIKUTTIRA ASHOK SOMAIAH S/O. LATE A.C. SOMAIAH AGED ABOUT 28 YEARS R/AT. KUTTANDI VILLAGE, VIRAJPET TALUK, KODAGU DISTRICT-571218.
... RESPONDENTS THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF THE CPC., AGAINST THE ORDER DATED 06.07.2019 PASSED ON IA NO.1 IN O.S.NO.103/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., VIRAJPET REJECTING IA NO.1 FILED UNDER ORDER VII RULE 11[a] AND [d] R/W. SEC. 151 OF CPC, FOR REJECTION OF PLAINT.
THIS CIVIL REVISION PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner is before this Court under Section 115 of CPC, assailing the order dated 06-7-2019 on I.A.No.1 in O.S.No.103/2017 on the file of the Senior Civil Judge and JMFC, Virajpet, by which application filed under Order VII Rule 11 (a) and (d) of CPC is rejected.
2. The petitioner is defendant and respondents are plaintiffs in O.S.No.103/2017. The plaintiffs-respondents are the wife, daughter and son of late A.C.Somaiah. The suit schedule property (’A’ schedule property) was purchased out of the income from the family properties, under registered sale deed dated 24-10-2008. It is stated that late A.C.Somaiah had sold the suit schedule property to the defendant under sale deed dated 11-9-2009, which came to the knowledge of the plaintiffs only during May 2017. Plaintiffs further stated that late A.C.Somaiah had no independent right to alienate the suit schedule property. Thus, the plaintiffs prayed for the following reliefs:
1) Declaring that the Plaintiffs are the absolute owners of the A and B schedule property and 2) To declare that the Sale Deed dated 11-9-2009 document duly registered as document No 558/09-
10 executed by Sri. Ajjikuttia Somaiah in favour of the Defendant is not binding on the Plaintiffs.
3) Granting Permanent Injunction against the First Defendant restraining him, his men, agents, servants or representatives from disturbing the peaceful possession of the A schedule property by the Plaintiffs.
4) Costs of this Suit.
5) Grant such other relief/s as this Hon’ble Court may deem fit under the circumstances of the case.
3. On issuance of suit summons, the defendant- petitioner appeared before the court and even before filing the written statement, the defendant filed application under Order VII Rule 11 (a) and (d) of CPC on the ground that there is no cause of action for the plaintiffs to file the suit and the suit is barred by time/limitation.
4. The trial Court, on consideration of the application as well as objections filed by the plaintiffs to the said application, under impugned order rejected the application-I.A.No.1 filed under Order VII Rule 11 (a) and (d) of CPC. Against which, the petitioner-defendant is before this Court in this civil revision petition.
5. Heard the learned counsel for the petitioner and perused the petition papers.
6. Learned counsel for the petitioner-defendant submits that the plaintiffs-respondents, who are wife and children of one late A.C.Somaiah have no right to challenge the sale deed dated 11-9-2009 executed by late A.C.Somaiah in favour of the defendant-petitioner and there is no cause of action for them to file the suit and also the suit is barred by time. It is further contended that the sale deed is dated 11-9-2009, whereas the suit is filed in the year 2017. Thus, the suit is barred by limitation. It is further stated that the sale deed would clearly indicate that the suit schedule property (“A” schedule property) was self acquired property of late A.C.Somaiah. Therefore, the plaintiffs have no right over the self acquired property of late A.C.Somaiah. Thus, prays for allowing the application/I.A.No.1.
7. The suit averment at paragraph No.3 would indicate that the suit schedule property (“A” schedule property) was purchased under sale deed dated 24-10-2008 out of the income from the family properties. Further, it is stated that the first plaintiff/wife of late A.C.Somaiah was contributing her monthly salary towards family fund which was utilized for paying sale consideration while purchasing the suit schedule property. It is further contended that late A.C.Somaiah had no independent title over the property and was not a competent person to execute the sale deed in favour of the defendant. The sale made in favour of the defendant came to the knowledge of the plaintiffs only during May 2017.
8. On reading of the entire suit averments, it would indicate the cause of action for the plaintiffs to file the suit and it cannot be said that there is no cause of action. Further the issue raised by the defendant that the plaintiffs have no right to challenge the sale deed is a matter for trial. It is for the plaintiffs to prove that the first plaintiff was contributing her monthly salary towards family fund, which was utilized for paying sale consideration and the suit schedule property (“A” schedule property) was purchased out of the family income. Further the question of limitation is a mixed question of law and fact. It is specifically mentioned at paragraph No.12 of the plaint that execution of sale deed dated 11-9-2009 came to the knowledge of the plaintiffs only during May 2017. At this stage, it would not be appropriate to disbelieve the specific averment made in the plaint at paragraph No.12.
9. As stated above, the question of limitation requires trial and it is for the parties to place material in support of their contention. Thus, I am of the view that the order passed by the trial Court is neither perverse nor erroneous so as to interfere with the same. All the contentions of the petitioner are left open.
Accordingly, the civil revision petition is dismissed.
In view of dismissal of civil revision petition, I.A.No.1/2019 does not survive for consideration.
Sd/- JUDGE SMJ