IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF OCTOBER, 2019 BEFORE THE HON' BLE MR. JUSTICE S.G. PANDIT C.R.P.No.424/2019 BETWEEN:
1. SRI MAHESHAPPA S/O LATE MUNIYAPPA AGED ABOUT 77 YEARS 2. SRI JAGADISH S/O MAHESHAPPA AGED ABOUT 37 YEARS BOTH ARE RESIDING AT SINGAHALLI VILLAGE BUDIGERE POST, JALA HOBLI BENGALURU NORTH (ADDL) TALUK BENGALURU DISTRICT-562129.
...PETITIONERS (BY SRI.BASAVARAJ V SABARAD, ADV.) AND:
1. SRI C RAMAKRISHNAPPA S/O LATE CHIKKAPPAIAH AGED ABOUT 66 YEARS 2. SRI VENKATESH S/O LATE CHIKKAPPAIAH AGED ABOUT 54 YEARS BOTH ARE RESIDING AT SINGAHALLI VILLAGE BUDIGERE POST, JALA HOBLI BENGALURU NORTH (ADDL) TALUK BENGALURU DISTRICT-562129.
…RESPONDENTS (BY SRI.MANJUNATH K V, ADV. FOR C/R) THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF CPC.,1908 AGAINST THE ORDER DATED 12.07.2019 PASSED ON IA.NO.6 IN OS.NO.480/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., DEVANAHALLI REJECTING THE IA NO.13 FILED UNDER ORDER 7 RULE 11(a) AND (d) R/W SECTION 151 OF CPC, FILED FOR REJECTION OF PLAINT.
THIS CIVIL REVISION PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The defendants No.1 and 2 in O.S.No.480/2017 on the file of the Senior Civil Judge and JMFC, at Devanahalli are before this Court under Section 115 of the Code of Civil Procedure, assailing the order dated 12.07.2019 passed on I.A.No.6 filed under Order VII Rule 11(a) and (d) of CPC.
2. Heard the learned counsel for the petitioners and perused the material placed on record.
3. Learned counsel for the petitioners would submit that the respondents/plaintiffs filed the suit for the following reliefs:
(i) To declare that the plaintiffs are absolute owners in peaceful possession and enjoyment of the Schedule property by way of inheritance.
(ii) Directing the defendants to remove unauthorized illegal constructions over the suit schedule property and to hand over the vacant possession of the suit schedule property by way of mandatory injunction.
(iii) Restraining the defendants not to put-up further constructions over the suit schedule property either by himself or his agents or any person/s claiming through or under him by way of permanent injunction.
4. It is the submission of the learned counsel for the petitioners that the plaint averments would not give rise to cause of action for filing the suit. It is his further submission that the plaintiffs have not placed any document to show that they have legal right over the suit schedule property. It is his further contention that this Court in MFA No.7872/2017 has given a finding that the plaintiffs’ application for regularization of vacant site is pending consideration, as such, they are in unauthorized occupation of the suit schedule property. They have no legal right, title and interest over the suit schedule property. It is his further submission that the suit averments would not disclose the identity of the property, and the plaintiffs are claiming Government property without there being any right. As such, he submits that there is no cause of action for the plaintiffs to file the instant suit.
5. Having heard the learned counsel for the petitioners and on perusal of the material placed on record, the only point which falls for consideration is as to whether the trial Court is justified in rejecting the application filed by the petitioners under Order VII Rule 11(a) and (d) of CPC?
6. Answer to the above point is in the affirmative for the following reasons:
It is settled law that while considering the application filed under Order VII Rule 11 of CPC, the Court shall look into only the plaint averments and nothing else. Averments in the written statement or defence would have no bearing while considering the application. Annexure-B is the copy of the plaint. On perusal of the plaint averments, it would disclose that the suit schedule property is ancestral property of the plaintiffs. Further, the plaintiffs’ names have been entered in the Mutation Register. The plaintiffs’ father and defendants’ father are brothers. Paragraphs 6, 7 and 9 of the plaint read as follows:
”6. That the plaintiffs submits that the suit schedule property is the ancestral property of the plaintiffs and further the plaintiffs name have been entered in the M.R.No.21/2017-18, form No.9 and 11, in Tax paid Receipt also.
7. That the plaintiffs submits that the plaintiffs had away from the suit schedule property on 01.08.2017 for historical places and they have returned to the suit schedule property and found that the defendants are illegally without having any right, title and interest over the suit schedule property putting up illegal constructions over the suit schedule property and the plaintiffs has been requested the defendants on 22-8-2017 and not to put up any constructions over the suit schedule property and however the said request made by the plaintiffs did not need and in turn the defendants along with the followers tried to dispossess the plaintiffs and further the defendants are illegally tress pass over the suit schedule property and encroaching the suit schedule property by putting up illegal constructions and as such the plaintiffs had lodged complaint on 23.08.2017 before the Bagalur Police Station and the Station House Officer has given the endorsement the matter is civil in nature, they have approached by knocking the door of this Hon’ble Court. The Police has issued endorsement i.e., NCR/CMIS No.190/2017 dated 23.08.2017. The copy of police NCR along with photos are enclosed herewith for the kind perusal of this Hon’ble Court. That unless and until the defendants illegally further construction of the suit schedule property. Hence, the plaintiffs has filed the above suit for the relief of declaration to declare that they are the absolute owners of the suit schedule property and also directing the defendants to remove the unauthorized constructions over the suit schedule property and handover the vacant possession of the suit schedule property in favour of the plaintiffs by way of mandatory injunction.
9. That the cause of action for the suit arose on 22.08.2017 when the plaintiffs had returned to their native place i.e., suit schedule property and subsequent dates within the jurisdiction of this Hon’ble Court.
7. On reading of paragraph 7 would disclose that when the plaintiffs were away, the defendants had put up illegal construction over the suit schedule property, which is said to be the cause of action for filing the present suit. The contentions urged by the defendants at this stage, cannot be gone into. Whether the plaintiffs have no right over the property, whether the suit schedule property is Government property are all matters for trial. The findings stated to have been given in MFA No.7872/2017 would be a matter for trial, on placing all those materials on record. Moreover, it is the written statement averment and defense of the defendants which cannot be looked into at this stage.
8. There is no material or jurisdictional error in the order passed by the trial Court. Accordingly, the revision petition is rejected.
Sd/- JUDGE mpk/-* CT:bms