IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 04TH DAY OF NOVEMBER, 2019 BEFORE The Hon’ble Mr.Justice B.M.Shyam Prasad Miscellaneous Second Appeal No. 26 of 2019 Between:
SRI DASEGOWDA @ HYBU SON OF HONNEGOWDA, R/AT KALEGOWDANADODDI VILLAGE, CHEELURU POST, MARALAVADI HOBLI, KANAKAPURA TALUK, RAMANAGARA DISTRICT.
(BY SRI. CHANDRA CHUD A ., ADVOCATE) And:
1. SRI NAGARAJU SON OF LATE VENKATAPPA, AGED ABOUT 44 YEARS.
2. SRI SHANUMKHA C V SON OF LATE VENKATAPPA, AGED ABOUT 42 YEARS.
3. SMT. RATHNAMMA DAUGHTER OF LATE VENKATAPPA, AGED ABOUT 40 YEARS.
ALL ARE RESIDENT OF CHEELURU VILLAGE & POST MARALAVADI HOBLI, KANAKAPURA TALUK, ... APPELLANT RAMANAGARA DISTRICT – 562 121.
4. SMT MOTAMMA WIFE OF LATE VENKATAPPA, AGED ABOUT 75 YEARS R/AT CHEELURU VILLAGE AND POST MARALAVADI HOBLI, KANAKAPURA TALUK, RAMANAGARA DISTRICT – 562 121.
5. THE SPL.LAND ACQUISITION OFFICE NO.1 KIADB, NO.2,14/3, MAHARSHI AUROBINDO BHAVAN, NRUPATHUNGA ROAD, BANGALORE – 01.
... RESPONDENTS (BY SRI. D BORE GOWDA., ADVOCATE FOR R-5;
SRI. N. MAHENDRA., ADVOCATE FOR R-1 TO R-3) THIS MISCELLENEOUS SECOND APPEAL IS FILED UNDER SEC.100 R/W ORDER XLII OF THE CPC, AGAINST THE JUDGMENT AND DECREE DATED 21.03.2018 PASSED IN R.A. NO. 15/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, KANAKAPURA, ALLOWING THE APPEAL AND SETTING AISDE THE JUDGMENT AND DECREE DATED 17.12.2016 PASSED ON I.A. NO. II IN O.S. NO. 520/2014 ON THE FILE OF THE I ADDITIONAL CIVIL JUDGE AND JMFC, KANAKAPURA, ALLOWING THE I.A. NO. II FILED UNDER ORDER 7 RULE 11 OF CPC, FOR REJECTION OF PLAINT.
THIS MISCELLENEOUS SECOND APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
Judgment This appeal is filed by one of the defendants in O.S.No.520/2014 on the file of the I Additional Civil Judge and JMFC, Kanakapura (for short ‘the civil Court’) impugning the judgment and decree dated 21.03.2018 in R.A.No.15/2017 on the file of the Senior Civil Judge and JMFC, Kanakapura (for short ‘the appellate Court’).
2. The civil Court by its order dated 17.12.2016 allowed the application filed by the appellant - defendant under Order VII Rule 11 of Code of Civil Procedure (for short, ‘CPC’) rejecting the suit for partition filed by the respondent Nos.1 to 3 in O.S.No.520/2014. These respondents - plaintiffs filed the first appeal in R.A.No.15/2017. The appellate Court by the impugned judgment and decree dated 21.03.2018 allowed the appeal and set aside the civil Court’s order remanding the suit for fresh disposal with direction to frame necessary Issues with sufficient opportunity to both the parties to lead evidence. As such, this second appeal by the appellant.
3. The respondent Nos.1 to 3 have filed the suit in O.S.No.520/2014 contending that Sri. Kalegowda, the original propositus, and his wife, Smt.Honnamma, were survived by their two sons, Sri.Venkatappa and Sri. Honnegowda. In a partition effected between these two sons, the suit land in Sy.No.122/10 (measuring 10 guntas) of Cheeluru village, Maralavadi Hobli, Kanakapura Taluk, Ramanagara District (suit schedule land) was allotted to their younger son, Sri. Honnegowda, whose sons, Sri. Kalegowda and Sri. Venkatappa, inherited the suit schedule land. In an oral partition between them, the suit land was allotted to Sri. Venkatappa. On the demise of Sri. Venakatappa, the respondents - plaintiffs succeeded to the suit schedule land along with their mother, Smt. Motamma, the respondent No.4. Their mother, Smt. Motamma transferred the suit schedule land in favour of the appellant under the sale deed dated 27.01.1986. But she could not have sold the suit schedule land in favour of the appellant and such sale deed would not bind their shares.
4. The respondent Nos.1 to 3 have further contended that the respondent No.4 never told them about the sale deed dated 27.01.1986. It is only after M/s.KIADB, the respondent No.5, issued notification for acquisition of the suit land and other surrounding lands, and on coming to know about it from the elders in the family in the village, they secured the revenue records for the suit schedule land. It is only then learnt about the sale deed dated 27.01.1986 executed by the respondent No.4 in favour of the appellant. After obtaining certified copies of all the records, they have issued notice dated 02.12.2013 to the respondent No.5 calling upon them not to disburse the compensation payable for the acquisition of the suit schedule land to the appellant. It is based on these assertions, and asserting that the respondent No.5 would disburse compensation to the appellant, the suit is filed for partitioning of their 3/4th share in the suit schedule land and for declaration that the sale deed dated 27.01.1986 executed by the respondent No.4 in favour of the appellant would not be binding on them.
5. The appellant, on service of notice of the suit, filed written statement and an application under order VII Rule 11(a) and (d) of CPC seeking rejection of the plaint. As regards the grounds for rejection of the plaint, the appellant contended that the respondent Nos.1 to 3 impugned the sale deed dated 27.01.1986 in the year 2014. As such, the suit would be barred by limitation. Further, the appellant was impugning the sale deed dated 27.01.1986 for the suit schedule land without including the other land in Sy.No.122/8 measuring 8 guntas of Cheeluru village, Maralavadi Hobli, Kanakapura Taluk, Ramanagara District that was also transferred along with the suit schedule land under the Sale Deed dated 27.01.1986. Therefore, the suit would be a suit for partial partition and this would be impermissible in law. Furthermore, the suit is filed to harass the appellant as the respondent No.5 is on the verge of disbursing compensation for acquisition of the suit schedule land. The cause of action pleaded by the respondent Nos.1 to 3 is imaginary, and in fact, there is no cause of action for the suit.
6. The respondent Nos.1 to 3 contested this application, and their objection is a reiteration of the plaint assertions denying that the suit is barred by limitation or that there is no cause of action. The respondent Nos.1 to 3 asserted that only the suit schedule land is conveyed under the sale deed dated 27.01.1986. These respondents relied upon, as could be discerned from the objection statement, certain of the terms of the sale deed to vindicate their contention.
7. The civil Court, on consideration of the rival submissions, has allowed the application filed by the appellant rejecting the plaint. The civil Court has opined that a perusal of the sale deed dated 27.01.1986 would reveal that both the lands viz., the suit land and land in Sy.No.122/2 (measuring 8 guntas) of Cheeluru village, Maralavadi Hobli, Kanakapura Taluk, Ramanagara District are transferred representing that they are ancestral properties and are being sold for legal necessities. The respondent Nos.1 to 3, as obvious from the cause title in the plaint, are aged 39, 37 and 35 years respectively as of the date of the suit. This would indicate that the respondent Nos. 1 to 3 attained majority in the year 1996, but they have challenged the sale deed dated 27.01.1986 beyond three years from the date they attained majority as contemplated under Article 60 of the Limitation Act, 1963 (for short, ‘the Limitation Act’). Therefore, the suit filed in the year 2014 would be barred by law.
8. The civil Court has also opined that the suit would even otherwise be barred by Limitation Act because the sale of the suit land in favour of the appellant is in the year 1986, and the suit is filed challenging the sale deed only in the year 2014. The respondent Nos.1 to 3, in any event, should have filed the suit impugning the sale deed within twelve years from the date thereof. But they have filed the suit challenging this sale beyond the period of 12 years from the date of alienation. Therefore, the suit would be barred under Article 109 of the Limitation Act. Therefore, the plaint is liable to be rejected.
9. The appellate Court, on the other hand, has interfered with the civil Court’s judgment in the premise that limitation is a mixed question of fact and law, and the plaint on the question of limitation cannot be rejected without necessary trial. As regards the suit being filed for partition of only one of the properties excluding one of the lands viz., Sy.No.122/8 of Cheeluru village, Maralavadi Hobli, Kanakapura Taluk, Ramanagara District which is transferred under the very same sale deed, the appellate Court has opined that even if there is failure to include the other land in Sy.No.122/8, the same would be a curable defect that can be rectified/cured by way of an amendment. The appellate Court has also opined that whether the cause of action pleaded by the respondent Nos.1 to 3 is genuine or not is a question which will have to be decided after trial.
10. The learned counsel for the appellant arguing in support of the rejection of the plaint submitted as follows:
a) It is settled law that the plaint averments alone will have to be considered for rejection of the plaint. If plaint assertions are considered it would be indisputable that the respondent Nos.1 to 3, who have pleaded knowledge of the sale deed dated 27.01.1986 after the date of issuance of notification by the respondent No.5, did not file the suit until the year 2014. The cause of action for the respondents started immediately from the date of notifications by the respondent No.5. As such, the suit to challenge the sale deed stood barred with the lapse of three years from the date of such knowledge as contemplated under Article 59 of the Act. The respondent No.5, undisputedly, issued the Preliminary Notification on 25.10.2006 and the Final Notification on 02.02.2010. Even if the cause of action were to be reckoned either from the date of the first notification or the final notification, the suit stood barred much prior to the date of the suit in the year 2014.
b) The respondent Nos.1 to 3 have described themselves as being aged 39, 37 and 35 years respectively as of the date of the suit. It is undisputed that the sale by the respondent No.4 in favour of the appellant is on 27.01.1986. The civil Court is therefore justified in concluding that even the youngest of the aforesaid respondents would have attained majority by 1996. The cause to sue for setting aside of the transfer made on their behalf under the sale deed dated 27.01.1986, if any, stood barred with lapse of three years from 1996. The suit is therefore hopelessly barred by limitation.
c) The learned counsel for the appellant has relied upon the decision of the Hon’ble Supreme Court in the Civil Appeal No.2960/2019 in Raghwendra Sharan Singh Vs. Ram Prasanna Singh (dead) by LRs1 to contend that merely because rejection of the plaint is sought on the grounds of limitation, it cannot be rejected under Order VII Rule 11 (d) of CPC. The learned counsel contended that when the suit is obviously barred by law even as per the plaint averments, the plaintiff cannot sustain the suit based on clever drafting.
d) It is clear from the bundle of the facts as pleaded by the respondents – plaintiffs themselves that the suit is barred by limitation, and therefore the plaint should be rejected. Further, the learned counsel has also relied 1 2019 SCC Online Sc 372 upon the decision of the Hon’ble Supreme Court in the case of T.Arivandandum Vs. T.V.Satyapal and Another2 to contend that a false and vexatious suit must be shot down at the earliest stage, and the facts of the present case justify application of this proposition.
11. The learned counsel for the appellant, as regards the reasoning by the appellate Court that non- inclusion of one of the properties in a suit for partition, is a curable defect, relies upon the decision of the Division Bench of this Court in G.M.Mahendra v/s G.M.Mohan3. He submits that the proposition laid down by the Division Bench of this Court that a suit for partial partition cannot be maintained without leave of the Court as contemplated under the provisions of Order II Rule 2 of CPC would apply to the present case. The respondent Nos.1 to 3, who have filed the suit without including the land in Sy.No.122/8 2 AIR 1977 Supreme Court 2421 3 KCCR 2011 4 2461 measuring 8 guntas, have not sought for any leave at the time of institution of the suit and because they have not sought for such leave, even the recourse of amendment would not be permissible. As such, the reasoning that failure to include the land in Sy.No.122/8 measuring 8 guntas of Cheeluru village, Maralavadi Hobli, Kanakapura Taluk, Ramanagara District is a curable defect cannot be accepted.
12. The learned counsel for the respondent Nos.1 to 3 - plaintiffs submits that the appellant seeks rejection of the plaint essentially on the ground of limitation. The courts cannot decide any question which is a mixed question of law and fact as a preliminary issue, and the question of limitation is always a mixed question of fact and law. If the question of limitation cannot be decided as a preliminary issue, then the plaint cannot be rejected under the provisions of Order VII Rule 11 (d) of the CPC. The learned counsel relies upon the decision of the Division Bench of this Court in Mr. Jagadish Poonja vs. The South Canara Hotel Complex Pvt. Ltd., Bangalore and Others4.
13. Further, the learned counsel for the respondent Nos.1 to 3 – plaintiffs submits that the suit is in time because the respondent Nos. 1 to 3 – plaintiffs have filed the suit within three years from the date they first learnt about the sale of the suit schedule land. The appropriate provisions of Limitation Act against which the plaint will have to be tested is Article 59 of the Limitation Act. Therefore, the appellate Court has rightly appreciated the facts and circumstances of the case and set aside the civil Court’s judgment remitting the matter back for reconsideration in accordance with law.
14. The learned counsel for the respondent No.5 has filed objection statement, and the sum and substance of the objection is that the respondent No.5 has issued the 4 2015 (3) KCCR 2754 Preliminary Notification on 25.10.2006 and the Final Notification was issued on 02.02.2010. Though the appellant and the respondent Nos. 1 to 3 - plaintiffs seek compensation as per the price determined by the Advisory Authority and the agreement as contemplated under Section 29 of the Karnataka Industrial Areas Development Act, 1966 (for short, ‘KIAD Act’), the respondent No. 5 cannot grant such compensation if there is any dispute, litigation or rival claim. In the event of any dispute or litigation or rival claim, the Special Land Acquisition Officer under the provisions of KIAD Act, will have to perforce pass general award. In view of the pending dispute between the appellant and the respondent Nos. 1 to 3 - plaintiffs, though compensation has been paid to the owners of the surrounding lands as per the price determined by the Advisory Authority and the agreement under Section 29 of the KIAD Act, the Special Land Acquisition Officer has passed the general award. The learned counsel for the respondent No.5, in continuation of the objection statement submits that it is always open to either the appellant or the respondent Nos. 1 to 3 - plaintiffs to seek enhancement in the compensation as contemplated in law.
15. In view of the rival submissions, the questions that arise for consideration in this appeal are:
a) Whether the appellate Court is justified in interfering with the civil Court’s judgment holding that the plaint could not have been rejected on the ground of limitation under the provisions of Order VII Rule 11(d) of the CPC.
b) Whether from the plaint averments alone it could be concluded that the suit by the respondent Nos. 1 to 3 – plaintiffs challenging the Sale Deed dated 27.1.1986 executed by their mother – the respondent No. 4 when they were minors in the year 2014 in OS No. 520/2014 is barred by limitation.
If the appeal could be decided on these questions, the question whether the suit filed is admittedly without including all the properties would not arise, and therefore, the appeal is decided answering these questions.
16. The learned counsel for the appellant relies upon the decision of the Hon’ble Supreme Court in the recent decision in SLP (C)No.20068/2013 (Civil Appeal No.2960/2019) in Raghwendra Sharan Singh Vs. Ram Prasanna Singh (dead) by LRs, supra wherein, the Hon'ble Supreme Court after referring to its earlier decisions has held thus:
“Now, so far as the application on behalf of the original plaintiff (sic) and even the observations made by the learned trial Court as well as the High Court that the question with respect to the limitation is a mixed question of law and facts, which can be decided only after the parties lead the evidence is concerned, as observed and held by this Court in the cases of Sham Lal alias Kuldip (supra)’; N.V. Srinivas Murthy (supra) as well as in the case of Ram Prakash Gupta (supra), considering the averments in the plaint if it is found that the suit is clearly barred by law of limitation, the same can be rejected in exercise of powers under Order 7 Rule 11(d) of the CPC.”
The appellate Court has interfered with the civil Court’s reasoning that the question of limitation is always a mixed question of law and facts, and the civil Court should have framed appropriate Issues based on the respective pleadings insofar as the question of limitation and decided the Issue only after a trial. In the light of the exposition as aforesaid by the Hon'ble Supreme Court, the appellate Court could not have interfered with the civil Court's judgment on such ground. The appellate Court should have re-examined the respondent Nos. 1 to 3 - plaintiffs' pleading and decided whether the appellant's application for rejection of the plaint is permissible because of such pleadings because the appellant in support of the application assert that the suit filed by the respondent Nos.
1 to 3 - plaintiffs as quondam minors challenging the sale deed dated 27.1.1986 executed by their mother - the respondent No. 4 in the year 2014 is barred by limitation.
17. It is settled that Courts cannot traverse beyond the plaint averments/documents while deciding an application under Order VII Rule 11 of CPC. The respondent Nos. 1 to 3 - plaintiffs’ pleadings insofar as their challenge to the Sale Deed dated 27.1.1986 executed by their mother in favour of the appellant when they were minors are as follows:
(i) The land in Sy.No.122/10 measuring 0.10 guntas of Cheeluru Village, Maralavadi Hobli, Kanakapura Taluk, Ramanagara District – suit schedule land was owned by Sri Kalegowda, and his grandsons Sri Kale Gowda and Sri Venkatappa succeeded to this property.
(ii) In a partition between them, the suit schedule land was allotted to their father, Sri. Venkatappa. On his demise, their mother Smt. Motamma, transferred the suit schedule land in favour of the appellant under the Sale Deed dated 27.01.1986.
(iii) The sale of the suit schedule property was not for their welfare, and nowhere it is stated in the Sale Deed dated 27.01.1986 that the sale of the suit schedule property was for their welfare.
(iv) The respondent Nos.1 to 3 - plaintiffs were not aware of the sale of the suit schedule land by their mother until KIADB – the respondent No.5 issued notifications for acquisition of the land and they learnt of the same from the elders in the village.
(v) The respondent Nos.1 to 3 – plaintiffs, even as per the cause title in the plaint were aged 39, 37 and 35 years respectively as of the date of the suit.
18. The civil Court, in consideration of these plaint averments, opined that the suit was barred by limitation and therefore, liable to be rejected under Order VII Rule 11(d) of the CPC. As per the sale deed dated 27.01.1986 impugned by the respondent Nos. 1 to 3 – plaintiffs the possession of the suit schedule land was given to the appellant simultaneously with the execution of the sale deed. Therefore, the suit had to be filed within 12 years from that day as contemplated under Article 109 of the Limitation Act and the suit being filed much beyond the period of limitation, would be obviously barred in law. Further, the civil Court has also opined that even if Article 60 of the Limitation Act were to apply, the suit would be barred by limitation because the respondent Nos.1 to 3 – plaintiffs, as obvious from the plaint, attained majority in the year 1996. They had to file the suit impugning the sale deed within three years from 1996.
19. The Hon’ble Supreme Court in the case of Narayan Vs. Babasaheb and Others5, in similar circumstances where the mother had sold an admitted ancestral property when her children were minors, and the 5 (2016) 6 SCCC 725 minors filed suit impugning such sale after they attained majority, has concluded that the mother would be a natural guardian as contemplated under the provisions of the Hindu Minority and Guardianship Act, 1956 (for short ‘1956 Act’) and if she sells the property on behalf of the minors in that capacity, the quondam minors must file a suit challenging the sale deed executed within three years from the date of they attaining majority otherwise the suit would be barred under Article 60 of the Limitation Act. The relevant extracts read as follows:
“22. A bare reading of section 8(1) of the 1956 Act indicates that it empowers the natural guardian to do all the acts which are necessary or reasonable or proper for the benefit of the minor. Section 8(2)(a) of the 1956 Act prescribes that either the purchaser or the seller should obtain the permission of the District Court to transfer the property by sale.
23. Hence, the present transaction on the face of it is in contravention of the mandatory provisions laid down by the 1956 Act.
24. When once a transaction takes place in the name of the minor which is in contravention of the 1956 Act and which is not done for legal necessity, such transaction is voidable and unless such a transaction is sought to be impeached or set aside, the question of recovery of possession of that property does not arise.
25. A close analysis of the language of Article 60 would indicate that it applies to suits by a minor who has attained majority and further by his legal representatives when he dies after attaining majority or from the death of the minor. The broad spectrum of the nature of the suit is for setting aside the transfer of immovable property made by the Guardian and consequently, a suit for possession by avoiding the transfer by the guardian in violation of section 8(2) of the 1956 Act. In essence, it is nothing more than seeking to set-aside the transfer and grant consequential relief of possession.
26. There cannot be any doubt that the suit by a quondum minor to set-aside the alienation of this property by his guardian is governed by Article 60. To impeach the transfer of immovable property by the Guardian, the minor must file a suit within the prescribed period of three years after attaining majority.
27. The Limitation Act neither confers a right nor an obligation to file a suit, if no such right exists under the substantive law. It only provides a period of limitation for filing the suit.
28. Hence, we are of the considered opinion that a quondam minor plaintiff challenging the transfer of an immovable property made by his guardian in contravention of Sections 8(1) and (2) of the 1956 Act and who seeks possession of property can file the suit only within the limitation prescribed under Article 60 of the Act and Articles 109, 110 or 113 of the Act are not applicable to the facts of the case.”
20. If Article 60 of the Limitation Act applies and if it is obvious from the plaint averment that the respondent No.4, who is the mother of the respondent Nos.1 to 3 – plaintiffs, transferred the suit schedule land, which admittedly is an ancestral property, under the sale deed dated 27.01.1986, the respondent Nos. 1 to 3 – plaintiffs, if aggrieved by the sale of the suit schedule land under the sale deed dated 27.01.1986, should have filed the suit calling in question such sale deed within three years from the date of attaining majority. The period for reckoning the limitation is the date on which the last of the quondam minors attain majority. Therefore, the civil Court is justified in its conclusion, based on the description of the respondent Nos.1 to 3 - plaintiffs in the cause title of the plaint, that the respondent Nos.1 to 3 – plaintiffs attained majority in the year 1996, and the suit filed by them in the year 2014 was barred by limitation.
21. It is oft reiterated that a plaintiff cannot by clever drafting circumvent the circumstances which establish that his or her claim is barred by the provisions of the Limitation Act. The respondent Nos.1 to 3 – plaintiffs while admitting that the revenue records for the suit schedule land stood mutated in the favour of the appellant, cannot by clever drafting avoid the indisputable fact that they have not filed the suit challenging the sale deed executed by their mother in the year 1986 within the three years from the date they attained majority. The appellate Court has not considered these circumstances and the applicable law while interfering with the civil Court’s judgment.
For the foregoing the questions formulated are answered in favour of the appellant, and the appeal is allowed and the impugned judgment and decree in R.A.No.15/2017 on the file of the Senior Civil Judge and JMFC, Kanakapura is set aside and the civil Court’s judgment in O.S.No.520/2014 is restored rejecting the plaint under Order VII Rule 11(d) of the Code of Civil Procedure. No costs.
In view of the disposal of the appeal, the application in I.A.1/2019 does not survive for consideration and is disposed of.
RB/SA Sd/- Judge