IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT CIVIL REVISION PETITION.No.412 OF 2018 BETWEEN 1. SRI R. LAKSHMANAIAH S/O LATE RAJAPPA, AGED ABOUT 58 YEARS, 2. SMT. SAVITHRAMMA W/O LATE SUBRAMANI, AGED ABOUT 45 YEARS, 3. SMT. R. PARVATHAMMA D/O LATE RAJAPPA, AGED ABOUT 50 YEARS, 4. SMT. MUTHAMMA W/O LATE RAJAPPA, AGED ABOUT 93 YEARS, ALL ARE R/AT NO.668, C-CROSS, PIPELINE ROAD, NEAR SRINIVAS KALYANAMANTAPA, MATHIKERE, MSRIT POST, BENGALURU-560 054. ... PETITIONERS (BY SRI. RAMESH.N.J., ADVOCATE) AND 1. SRI R. RAMU S/O LATE R. RAMASWAMY, AGED ABOUT 48 YEARS, 2. SRI R. MUNIYAPPA S/O LATE R. RAMASWAMY, AGED ABOUT 40 YEARS, 3. SMT. PARAVATHAMMA D/O R. RAMASWAMY, AGED ABOUT 36 YEARS, RESPONDENTS NO.1 TO 3 ARE R/AT NO.695, MUNIRAJAIAH BUILDING, 1ST FLOOR, I MAIN ROAD, MATHIKERE, MSRIT POST, BENGALURU-560 054.
4. SRI R. MUNIYAPPA S/O LATE RAJAPPA, AGED ABOUT 54 YEARS, 5. SMT. NARAYANAMMA W/O LATE R. NARAYANA, AGED ABOUT 40 YEARS, RESPONDENTS NO.4 & 5 ARE R/AT NO.668, C-CROSS, PIPELINE ROAD, NEAR SRINIVASA KALYANAMANTAPA, MATHIKERE, MSRIT POST, BENGALURU-560 054. ... RESPONDENTS THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF CPC AGAINST THE ORDER DATED 21.07.2018 PASSED ON I.A.NO.2 IN OS NO.595/2018 ON THE FILE OF THE X ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU REJECTING THE IA NO.2 FILED UNDER ORDER 7 RULE 11(a) AND (d) OF CPC FOR REJECTION OF PLAINT.
THIS CIVIL REVISION PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioners’ revision petition is against the order dated 21-7-2018 on I.A.No.2 in O.S.No.595/2018 on the file of the X Additional City Civil and Sessions Judge, Bengaluru.
2. The parties to the revision petition would be referred as they stand before the trial Court. The petitioners are defendant Nos.1, 2, 5 & 6 and respondent Nos.1 to 3 are plaintiffs in O.S.No.595/2018 filed for the following reliefs:
a) Pass a judgment & preliminary Decree of Partition and separate possession by metes and bounds by directing the 1st defendant to partition the suit schedule property by putting the plaintiffs in their 1/6th share in schedule property.
b) And that the sale deed dt.15/12/2003 vide Doc.No.RJY-1-6223-03-04CDNo.RJND 19 of Book No.1, executed by Smt. Muthamma in favour of R.Lakshmanaiah (1st defendant) is not binding upon the plaintiffs share.
c) Grant such other relief/s as this Hon’ble Court deems fit under the circumstances of the case, in the interest of justice and equity.
3. On issuance of suit summons, the defendants appeared and filed their written statement and also filed application under Order VII Rule 11(a) & (d) of CPC, praying to reject the plaint on the ground that there is no cause of action to file the suit. The said application was opposed by the plaintiffs by filing objections. The trial Court, under impugned order rejected the application. Hence, defendant Nos.1, 2, 5 & 6 are before this Court in this revision petition.
4. Heard the learned counsel for the petitioners and perused the material on record.
5. The learned counsel for the petitioners would submit that the suit schedule property was purchased by defendant No.1 from his mother-defendant No.6 under registered sale deed dated 15/12/2003. The property as stated by the plaintiffs is not a joint family property; it is only a joint property of sons of Smt. Muthamma i.e., R.Ramaswamy, R.Subramani, R.Narayan & R. Muniyappa who purchased the schedule property in mother’s name. He further submits that Smt. Muthamma-defendant No.6 has sold the suit schedule property in favour of defendant No.1 as if it was her own property. As such, the property is not available for partition as on this day and the plaintiffs have not challenged the sale deed. In that circumstances, plaintiffs’ suit would not be maintainable and it is liable to be rejected at threshold.
6. On hearing the learned counsels for the parties and on perusal of the material on record, the only point which arises for consideration in the facts and circumstances of the case is as to “whether the trial Court is justified in rejecting the application filed by the defendants-petitioners herein under Order VII Rule 11(a) & (d) of CPC.” Answer to the said point is in the affirmative for the following reasons.
7. The suit is one for partition in respect of the suit schedule property. The plaint averment would indicate that father of the plaintiffs-R.Ramaswamy was working in the Telecom Department and his entire earning was invested to purchase the suit schedule property. Under registered sale deed dated 05-1-1987, the suit schedule property was purchased in the name of Smt. Muthamma, who is the mother of R.Ramaswamy. From the date of purchase of the suit schedule property, the plaintiffs as well as the defendants are in possession and enjoyment of the same. The said R.Ramaswamy died in the year 1992. R.Subramani, R.Narayan & R. Muniyappa are the brothers of R.Ramaswamy-father of the plaintiffs. It is further stated that the brothers of the plaintiffs’ father also contributed to the purchase of suit schedule property and the schedule property was purchased out of joint family funds in the name of their mother-Smt. Muthamma. Further, the plaint averment discloses that Smt. Muthamma – mother of the plaintiffs’ father executed the sale deed in favour of defendant No.1. It is alleged that defendant No.6-Smt. Muthamma executed sale deed in favour of defendant No.1 under threat and the sale deed is bogus and false document. Hence, the plaintiffs have sought for prayer that the sale deed does not bind their share.
8. It is settled law that the application filed under Order VII Rule 11(a) & (d) of CPC is to be considered only on the plaint averments and the defence or written statement averments are of no relevance. For consideration of the application, when the entire plaint is read, it would indicate the cause of action for filing the suit and cause of action is a bundle of facts, which is to be ascertained from the events stated in the plaint. The plaint paragraph No.13 indicates cause of action which reads as follows:
“13. The cause of action for the suit arose on 5/1/1987, when the suit schedule property was purchased by Smt. Muthamma by the joint family funds, and 15/12/2003 when the 1st defendant got executed the sale deed in his favour and subsequently when the 1st defendant canvassed about the sale deed dt.15/12/2003 and further his intension of alienating the schedule property in favour of third parties in the month of November 2017”. When the request of the plaintiffs to partition the schedule property was turned down by the defendant No.1, and when the plaintiffs got issued legal notice dt.23/11/2017, within the jurisdiction of this Hon’ble court.”
Whether the suit schedule property is a joint family property or joint property or whether the sale deed was executed in favour of defendant No.1 fraudulently or under threat or coercion is a matter for trial. Hence, the trial Court rightly rejected the application.
Thus, I find no jurisdictional error or material irregularity in the order passed by the trial Court. Accordingly, the civil revision petition stands rejected.
All contentions are left open.
In view of the dismissal of the petition, I.A.No.1/2018 for stay does not survive for consideration. Hence, the same is rejected.
Sd/- JUDGE SMJ