IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT CIVIL REVISION PETITION.No.327 OF 2019 (IO) BETWEEN:
Sri. K. Balaji Since dead by LRs, 1. Smt. Sudhamani Aged about 62 years, W/o late K. Balaji, 2. B. Naveen Aged about 40 years, S/o late K. Balaji, 3. B. Praveen Aged about 38 years, S/o late K. Balaji, Nos.1(a) to 1(c ) are residing at No.23, Old No.29, 1st Floor, Rangarao Road, Shankarapuram, Bengaluru – 560 004.
... Petitioners (By Sri. Anantha Narayanan B.N, Advocate) AND:
Ramachandra @ Ramanna Aged about 73 years, S/o late Krishna Murthy, R/at No.23, Old No.19, Ground Floor, Rangarao Road, Shankarapuram, Bengaluru – 560 004.
... Respondents This Civil Revision Petition is filed under Section 115 of CPC., against the order dated 13.02.2019 passed on I.A.No.III in O.S.No.25969/2013 on the file of the LXXII Additional City Civil and Sessions Judge, Bengaluru rejecting the I.A.No.III filed under Order 7 Rule 11 read with Section 151 of CPC for rejection of plaint.
This Civil Revision Petition coming on for Admission this day, the court made the following:
ORDER Defendants in O.S. No.25969/2013 are before this Court under Section 115 of Code of Civil Procedure, aggrieved by the rejection of application-I.A. No.III filed under Order VII Rule-11 r/w Section 151 of CPC dated 13.02.2019 on the file of LXXII Additional City Civil and Sessions Judge at Mayo Hall, Bengaluru.
2. The suit for partition was filed contending that the plaintiff has contributed towards development of the suit schedule property and as such, suit schedule property has become joint property of plaintiff and defendants. The plaintiff has share out of the suit schedule property.
3. On issuance of suit summons, the defendants appeared before the Trial Court and filed written statement and also filed application – I.A. No.III under Order 7 Rule 11 of CPC, praying to reject the plaint on the ground that cause of action is illusory and there is no cause of action for filing the suit. Further, it was stated that the suit is barred by limitation. Plaintiff opposed the application by filing objection. The Trial Court under impugned order rejected the application filed under Order VII Rule 11 of CPC against which, the defendants are in revision before this Court.
4. Heard the learned counsel for the petitioners and perused the material placed on record i.e., plaint copy, written statement, application filed under Order VII Rule 11 of CPC and objection filed to the said application.
5. Learned counsel for the petitioners/ defendants would submit that there is no cause of action for filing the suit. The cause of action stated at paragraph No.27 of the plaint is illusory and no cause of action had arisen on the dates mentioned therein. The cause of action if at all has arisen, it is much earlier in the year 2000 itself, but the plaintiff had not initiated any action at that point of time. As such, suit filed by the plaintiff at this stage is barred by limitation. Learned counsel invites the attention of this Court to paragraph No.20 of the plaint and contend that north east corner site measuring 32.1 x 52.1 feet side of the portion was already sold under the registered Sale Deed dated 14.07.2000 and as such, the cause of action as stated at paragraph No.27 is totally false. Further, learned counsel submits that the sale which had taken place in the year 2000 is not challenged in the present suit and the present suit filed for partition holding that the plaintiff is the co-owner and co-sharer, is hopelessly barred by time. It is his further submission that the trial Court without appreciating the contention raised dismissed the application, which is wholly perverse and erroneous.
6. Having heard the learned counsel for the petitioners and on perusal of the material placed on record, the only point that arises for consideration is: as to whether the trial Court is justified in rejecting I.A. No.III filed under Order VII Rule 11 of CPC.
7. Answer to the above question is in the Affirmative for the following reasons:
The suit is one for partition and suit prayer reads as follows:
“Wherefore, the plaintiff respectfully pray that this Hon’ble Court be pleased to pass a judgment and decree against the defendant for:
a) Partition of Plaintiff half (½) share in the schedule Property by metes and bounds, by holding that the Plaintiff is a co-owner and co- sharer along with defendant in respect of the Schedule Property and to put the plaintiff in possession of his respective share in the schedule property;
b) Perpetual injunction restraining the defendant, his agents, attorneys, henchmen or anybody claiming under him or through him in any way interfering with the plaintiff’s enjoyment of his respective share in the schedule property.
c) For means profits from the date of suit.
d) To pass such other order/s as this Hon’ble Court deems fit and proper to grant under the facts and circumstances of the case and for cost of this legal proceedings in the interest of justice and equity.”
The plaintiff has sought for partition of the property as co-owner and co-sharer in respect of suit schedule property. Paragraph Nos.22, 23 and 27 of the plaints reads as follows:-
“22. It is submitted that, the Plaintiff during his tender age opted to work for money later joined to Indian Telephone Industries during the year 1964 as Technical Assistant and gradually promoted as Supervisor and discharged his duties satisfactorily and was retired from his job during the year 2001 the entire salaried income contributed for the improvement of the Schedule Property and continued to reside in the Schedule Property as co owner with a found belief that the Schedule Property will be partitioned among himself and defendant in equal half share, the Plaintiff in order to settle the partition of the Schedule Property requested the defendant to effect division and to provide the Plaintiff half share, the defendant agreed to effect partition however citing a reason that the developer Sri. K.R. Prabhu said to have filed a suit in O.S. No.1482/2008 for permanent injunction in respect of the Schedule Property which was earlier subject matter of Joint Development Agreement dt: 23.05.96 stated to be pending on the file of City Civil Judge Court at Bangalore, stating the defendant vehemently contesting the said case only after disposal of the said suit the partition of the Schedule Property can be effected and assured the Plaintiff to wait till disposal of the said suit.
23. It is submitted that, the Plaintiff bonafidely believing the defendant awaiting the call of defendant to have amicable partition of the Schedule Property, the Plaintiff when ever enquired the defendant regarding the status of the suit of developer, the defendant went on saying the said suit pending consideration with repeated assurances to have partition immediately after completion of the said dispute and assured Plaintiff not to worry about partition. It is submitted that, earlier to death of Sri. Krishnamurthy the father of Plaintiff and defendant, the Schedule Property affairs taken care by him including monetary accepts after death of Krishnamurthy the management and monetary affairs of the Schedule Property took over by the defendant, later the attitude of defendant gradually changed the defendant in spite repeated requests not disclosing the affairs of the joint family to the Plaintiff, the Plaintiff with at most faith and trust awaiting the defendant to effect division of the Schedule Property, instead of partition the defendant approached Plaintiff to sing to some of the papers on the plea that the same required to submit to the income tax department to avoid huge taxes on the Schedule Property and persuaded the Plaintiff to make some payments by way of cash and cheques for record purpose assuring to effect partition, the Plaintiff believing the defendant affixed his signatures to the documents brought by the defendant, on request of defendant the defendant also got affixed signatures of his wife as witness, however the defendant hurriedly taken away the papers not evening allowing to Plaintiff and his wife to peruse the same, the Plaintiff always under bonafide belief and trust that the defendant will effect partition and provide the Plaintiff half share in the Schedule Property.
27. The cause of action for the above suit arose on 15/05/2013, 05.06.2013 and subsequent dates, when defendant attempted to alienate the suit Schedule Property with out consent of plaintiff and failed to effect partition to provide the plaintiff half share in the Schedule Property, which is with in the jurisdiction of this Hon’ble Court.”
8. It is definite contention of the plaintiff that the plaintiff and one late K. Balaji are brothers. The suit schedule property was bequeathed in favour of K. Balaji by one Anoo Narayana Rao in the year 1948.
Subsequently, the defendant i.e., K. Balaji was looking into management of the property. Further, it is stated that the plaintiff has contributed towards development of the suit schedule property. As such, the plaintiff has sought for share in the suit schedule property as co- owner and co-sharer. The said contention needs trial. The contention of the defendants that the present suit for partition is counter blast to the suit filed by the defendants in S.C. No.75/2012 for ejectment of the plaintiff herein. It is stated that the plaintiff is a tenant under defendants and he has no share in the suit schedule property as the father of the defendants i.e., K. Balaji is the owner of the suit schedule property. It is well settled legal position that while considering the application under Order VII Rule 11 of CPC, only the plaint averment would be relevant and the written statement would be of no relevance. Hence, I am of the view that there is cause of action for maintaining the suit.
9. The petitioners/defendants further contend that the suit is hopelessly barred by time. It is their contention that the sale of portion of the suit schedule property has taken place in the year 2000 under the registered Sale Deed dated 14.07.2000. The plaintiff has not challenged the said sale under the present suit. There is no cause of action as stated by the plaintiffs, if at all any cause of action arises, it is on 14.12.2000 when the registered sale deed was executed, but he has not challenged the same and indirectly in the present suit, the plaintiff cannot challenge the said alienation. Question of limitation is a mixed question of law and fact. Starting point of limitation is to be determined on the material placed on record. Unless material is placed on record in trial, the question of limitation cannot be decided in abstract without the facts. The cause of action stated by the plaintiff at this stage to be taken as it is and at this stage, cause of action stated cannot be disbelieved at the instance of the defendant. Thus, I am of the view that there is no jurisdictional error or material irregularity in the order passed by the trial Court. Hence, the Civil Revision Petition is dismissed.
Sd/- JUDGE MBM