IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT CIVIL REVISION PETITION.No.180 OF 2019 BETWEEN:
1. SRI. KESHAVAMURTHY SINCE DEAD REPRESENTED BY HIS LEGAL REPRESENTATIVES 1(a) SMT. CHANNAMMA WIFE OF LATE KESHAVAMURTHY, AGED ABOUT 65 YEARS, 1(b) SMT. MAHALAKSHMI DAUGHTER OF LATE KESHAVAMURTHY, AGED ABOUT 44 YEARS, 1(c) SRI.MAHESH GOWDA SON OF LATE KESHAVAMURTHY, AGED ABOUT 39 YEARS.
PETITIONERS 1(a) to 1(c) ARE RESIDING AT MADAGONDANAHALLI VILLAGE, MADHURE HOBLI, DODDABALLAPUR TALUK BENGALURU RURAL DISTRICT-561 203.
SMT. JAYAMMA SINCE DEAD BY HER LEGAL REPRESENTATIVES DEF NO.3 AND DEF NO.4 2. SRI. VIJAYA KUMAR SON OF LATE VEERACHANNEGOWDA, AGED ABOUT 43 YEARS, 3. SRI. RAMESH SON OF LATE VEERACHENNEGOWDA, AGED ABOUT 40 YEARS, PETITONERS 2 AND 3 ARE RESIDING AT NO.3063, 11TH CROSS, C BLOCK, GAYATHRI NAGAR, BENGALURU-560 021.
(BY SRI. S.VENUGOPALA, ADVOCATE) AND:
1. SRI SIDDAGANGAIAH SON OF LATE HONNAGANGAIAH, AGED ABOUT 65 YEARS, 2. SRI. GANGAIAH SON OF LATE HONNAGANGAIAH, AGED ABOUT 63 YEARS, 3. SRI. ANJINAPPA BALLAGERE SON OF LATE HONNAGANGAIAH, AGED ABOUT 61 YEARS, 4. SRI. NAGARAJU SON OF LATE GANGADHARAPPA @ BANGARAPPA AGED ABOUT 28 YEARS, RESIDING AT BALLAGERE VILLAGE, THYMAGONDLU HOBLI, NELAMANGALA TALUK-562 123, BENGALURU RURAL DISTRICT.
... PETITIONERS 5. SRI. CHUNCHEGOWDA SON OF LATE CHANNIGAPPA, AGED ABOUT 82 YEARS, RESIDING AT MADAGONDANAHALLI VILLAGE, MADHURE HOBLI, DODDABALLAPUR TALUK, BENGALURU RURAL DISTRICT-561 203.
... RESPONDENTS THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF CPC., AGAINST THE ORDER DATED 21.03.2019 PASSED ON I.A.NO.XVIII IN O.S.NO.141/2008 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., DODDABALLAPUR, DISMISSING THE I.A.NO.XVIII FILED UNDER ORDER 7 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 petitioners are before this Court under Section 115 of CPC assailing the order dated 21-3-2019 passed on I.A.No.18 in O.S.No.141/2008 on the file of Senior Civil Judge & JMFC, Doddaballapur, by which application I.A.No.18 filed under Order VII Rule 11(a) and (d) read with Section 151 of CPC is rejected.
2. Respondent Nos.1 to 3-plaintiffs filed O.S.No.141/2008, praying for partition of the schedule property in to four shares and put them in to separate possession; to declare the registered sale deed dated 01-7-1940, is not binding on the plaintiffs and to declare the compromise judgment and decree in O.S.No.419/2007 dated 25-1-2008, passed by the Lok Adalath, is not binding on the plaintiffs.
3. The defendant Nos.1 to 4 filed I.A.No.18 under Order VII Rule 11(a) and (d) read with Section 151 of CPC, praying to reject the plaint, stating that the suit is barred by limitation as the plaintiffs are challenging the sale deed dated 01-7-1940 and there is no cause of action against the defendants to file the present suit.
4. The plaintiffs opposed the application I.A.No.18, by filing objections. The statement of objections filed by the plaintiffs is produced at Annexure-E.
5. The trial Court under impugned order rejected the application I.A.No.18 filed under Order VII Rule 11(a) and (d) read with Section 151 of CPC. Hence, the petitioners are before this Court in this civil revision petition.
6. Heard the learned counsel for the petitioners.
Perused the petition papers.
7. Learned counsel for the petitioners reiterating the grounds urged in the application-I.A.No.18 and submitted that the suit is barred by time and there is no cause of action against the defendants-petitioners to file the present suit. Hence, prays to allow the petition.
8. Having heard the learned counsel for the petitioners and on going through the material on record, I am of the view that the order passed by the trial Court is neither perverse nor erroneous. While considering the application filed under Order VII Rule 11(a) and (d) read with Section 151 of CPC, the Court below has to look into only the plaint averments and not the written statement or defense of the defendants. The suit averments from the copy of the plaint which is produced at Annexure-B indicates that the plaintiffs have sought prayer for partition of the schedule property in to four shares and to put them in to separate possession; to declare the registered sale deed dated 01-7-1940, is not binding on the plaintiffs and to declare the compromise judgment and decree in O.S.No.419/2007 dated 25-1-2008, passed by the Lok Adalath, is not binding on the plaintiffs. It is the averment in the plaint that there is no division of the schedule property between the plaintiffs and defendant No.5, during the life time of Melegowda- father of defendant No.1 or Mariyappa or after their demise. Further it is stated that the schedule property is the joint and ancestral property which is not partitioned. The same will have to be looked into in the trial on placing evidence before the Court. Looking to the plaint averments, it is seen that there is triable issue.
9. With regard to the question of limitation, which is question of mixed law and fact, which is to be decided on the evidence, which is to be placed before the Court. As such, I am of the opinion that trial Court has rightly rejected the application filed under Order VII Rule 11(a) and (d) read with Section 151 of CPC. No ground is made out to interfere with the order passed by the Court below.
Accordingly, civil revision petition is rejected.
In view of disposal of civil revision petition, I.A.No.1/2019 does not survive for consideration, the same is rejected.
Sd/- JUDGE SMJ