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.310 OF 2018 BETWEEN:
1. CHOKKAPPA, S/O LATE B.V.NARAYANA GOWDA, SINCE DEATH BY HIS LRS, (a) SMT. MUNITHAYAMMA, AGED ABOUT 60 YEARS, W/O LATE CHOKKAPPA, (b) B.C.NAGARAJ, AGED ABOUT 42 YEARS, S/O LATE CHOKKAPPA, (c) B.C.MUNE GOWDA, AGED ABOUT 39 YEARS, S/O LATE CHOKKAPPA, (d) B.C.ASHOK, AGED ABOUT 35 YEARS, S/O LATE CHOKKAPPA, (e) SMT. MANJULA, AGED ABOUT 28 YEARS, D/O LATE CHOKKAPPA, 2. SRI. ASHWATHNARAYANA, AGED ABOUT 55 YEARS, S/O LATE B.V.NARAYANA GOWDA, 3. SHANKARA MURTHY, AGED ABOUT 50 YEARS, S/O LATE B.V.NARAYANA GOWDA, ALL ARE RESIDING AT BHATTERANAHALLI, MALLUR POST, DEVANAHALLI TALUK, BENGALURU RURAL DISTRICT-562 102.
(BY SRI. UDAY K.S., ADVOCATE) AND:
1. SRI. MUNIRAJU, AGED ABOUT 47 YEARS, R/O R.M.GOPALAPPA, 2. SRI. SRINIVAS, AGED ABOUT 43 YEARS, R/O R.M.GOPALAPPA, 1 & 2 ARE RESIDING AT MALLUR, JANGAMAKOTE HOBLI, SIDLAGHATTA TALUK, KOLAR DISTRICT ... PETITIONERS NOW CHIKKABALLAPUR DISTRICT-562 102.
3. SMT. G.SUJATHA, AGED ABOUT 47 YEARS, W/O Y.GOPAL, R/AT C/O HONNAPPA, BIDIRENAHALLI BEEDI, MAGADI ROAD, KEMPE GOWDA CIRCLE, RAMANAGARA TOWN AND POST, RAMANAGARA TALUK AND DISTRICT-562 159.
4. SRI. R.M.GOPALAPPA, AGED ABOUT 68 YEARS, S/O LATE MOTAPPA, 5. SMT. AKKAYAMMA, AGED ABOUT 75 YEARS, W/O LATE DODDAMUNIYAPPA, 6. SMT. VENKATALAKSHMAMMA, AGED ABOUT 55 YEARS, W/O CHIKKARAGHAVAPPA, D/O LATE DODDAMUNIYAPPA, 7. SMT. SARVAKKA @ SARVAMANGALAMMA, AGED ABOUT 48 YEARS, W/O NARANASWAMY, D/O LATE DODDAMUNIYAPPA, 4 TO 7 ARE RESIDING AT BAKTHARAHALLI VILLAGE, SIDDLAGHATTA TALUK CHIKKABALLAPUR DISTRICT-562 102.
8. SRI. CHANDRAPPA AGED ABOUT 50 YEARS, S/O LATE DODDAMUNIYAPPA R/A MALLUR VILLAGE, SIDDLAGHATTA TALUK, CHIKKABALLAPUR DISTRICT-562 102. ... RESPONDENTS THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF CPC., AGAINST THE ORDER DATED: 21.06.2018 PASSED ON I.A.NO.10 IN O.S.NO.423/2007 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., DEVANAHALLI, REJECTING THE I.A.NO.10 FILED UNDER ORDER 7 RULE 11(a) OF CPC., FOR REJECTION OF PLAINT.
THIS CIVIL REVISION PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioners-defendants are before this Court under Section 115 of CPC assailing the order dated 21-6-2018 passed on I.A.No.10 in O.S.No.423/2007 on the file of Senior Civil Judge & JMFC, Devanahalli, by which application I.A.No.10 filed under Order 7 Rule 11(a) of CPC is rejected.
2. Respondent Nos.1 to 3-plaintiffs filed O.S.No.423/2007 praying to pass a judgment and decree for partition, partitioning the suit schedule properties into 3 distinct shares and apportion 1/3rd share each to the plaintiffs in the suit schedule property; Declare the Sale Deeds dated 29-5-1995 allegedly got executed by defendant Nos.1 to 3 in favour of them from defendant Nos.4 & 5, as Null and Void; Permanent Injunction restraining the defendant Nos.1 to 3 from interfering with the peaceful possession and enjoyment of the suit schedule property.
3. The defendant Nos.1 to 3 filed an application under Order 7 Rule 11 (a) of the CPC praying to reject the plaint. In the affidavit accompanying the application, the defendant Nos.1 to 3 have stated that the suit schedule properties originally belonged to one Sri. Motappa, who is grandfather of plaintiffs. The said Motappa had six sons and one daughter. The plaintiffs’ father R.M.Gopalappa is the 6th son of said Motappa, who is defendant No.4. Upon the death of Sri. Motappa-grandfather of plaintiffs, the suit schedule properties were partitioned and allotted to the share of plaintiffs’ father. The plaintiffs’ father- defendant No.4 along with defendant No.5 have sold the suit schedule properties in favour of father of defendant Nos.1 to 3, by executing a registered sale deed dated 29-5-1995.
4. Learned counsel for the petitioners-defendants submit that the suit schedule properties were the absolute properties of the grandfather of the plaintiffs. Upon his death, plaintiffs’ father inherited the properties and has sold the same to the father of the defendants by executing sale deed dated 29-5-1995. It is his further submission that the plaintiffs being the grandsons of Sri. Motappa have no legal right to claim share in the schedule properties. Further learned counsel in support of his contention relied upon the decision of this Court in the case of SMT. SHAKUNTHALA AND OTHERS vs. BASAVARAJ AND OTHERS reported in ILR 2016 KAR 3604, wherein it has held as under:
“after coming into force of The Hindu Succession Act 1956, self acquired or separate property of a male Hindu, on his dying intestate duals on his heirs in their individual capacity and not as a co- parcenery property and in such a case their children will not acquire any right by birth in such property.”
In view of the above, learned counsel for the petitioners prays to allow this revision petition.
5. The trial Court under impugned order rejected the application filed under Order 7 Rule 11 (a) of CPC. Hence, the defendants-petitioners are before this Court in this civil revision petition.
6. Heard the learned counsel for the petitioners and perused the petition papers.
7. After hearing learned counsel for the petitioners and on perusal of the petition papers, 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 7 Rule 11 (a) of CPC, the Court below has to look into only the plaint averments and cannot or need not look into the defense of the defendants. The plaint averments would indicate that the suit schedule properties originally belonged to one Sri. Motappa, who is none other than father of defendant Nos.4 and 5 and grandfather of plaintiffs. Sri.Motappa had six sons and one daughter. Subsequent to the death of Sri. Motappa, the suit schedule properties were partitioned between the father of the plaintiffs and his brothers. On partition, the schedule properties fell into the share of defendant No.4. It is alleged that the said schedule properties were sold by executing a sale deed dated 29-5-1995 in favour of father of defendant Nos.1 to 3. Hence, the suit is filed for partition, partitioning the suit schedule properties into 3 distinct shares and apportion 1/3rd share each to the plaintiffs in the suit schedule property; Declare the Sale Deeds dated 29-5-1995 allegedly got executed by defendant Nos.1 to 3 in favour of them from defendant Nos.4 to 5, as Null and Void and for Permanent Injunction.
8. Whether the suit schedule properties on the death of Sri. Motappa absolutely vests with defendant Nos.4 & 5 and whether it is a joint family property which is partitioned, is a question to be gone into in the trial. At this stage, only on the basis of suit averments, the case cannot be decided. The suit averments would indicate that there is triable issue and cause of action to file suit. Prima-facie from suit averments it is seen that suit schedule properties are ancestral properties. Hence, at this stage it appears that there is cause of action to file suit.
9. Hence, trial Court had justified in rejecting the application I.A.No.10 filed under Order 7 Rule 11 (a) of CPC. The petitioners-defendants have not made out any ground to interfere with the order passed by the trial Court. Accordingly, civil revision petition is rejected.
Sd/- JUDGE SMJ