IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT CIVIL REVISION PETITION.No.488 OF 2018 BETWEEN SRI. S.N.JAYARAM AGED ABOUT 62 YEARS S/O. LATE B.NARASIMAIAH R/AT NO.62, 4TH CROSS, 36TH MAIN, DOLLAR SCHEME, BTM LAYOUT, BANGALORE-560068.
(BY SRI. A. SAMPATH, ADVOCATE FOR SRI. NATARAJ.R, ADVOCATE) AND 1. KUMARI S.M.NISHKALA AGED ABOUT 25 YEARS, D/O. LATE S.N.MANJUNATH 2. KUMARI S.M.NIKITHA AGED ABOUT 22 YEARS D/O. LATE S.N.MANJUNATH BOTH ARE RESIDING AT SADALI VILLAGE, SADALI HOBLI SIDDLAGHATT TALUK, CHIKKABALLAPUR DISTRICT-562101.
... PETITIONER 3. S.N. LAKSHMIPATHI AGED ABOUT 50 YEARS S/O. LATE B.NARASIMAIAH R/AT. NO.12, 18TH MAIN, 1ST STAGE, BTM LAYOUT, BANGALORE-560081.
4. S.N. ANASUYA AGED ABOUT 58 YEARS W/O. B.VENKATESH R/AT. J.NO.2 STREET, ASHOKNAGAR, BANGALORE-560025.
... RESPONDENTS (BY SRI. M. MADHUSUDAN, ADVOCATE FOR SRI. V. VISHWANATH SHETTY, ADVOCATE FOR R1 & R2 R3 & R4 – NOTICE DISPENSED WITH V/O DATED 05-4-2019) THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF THE CPC., AGAINST THE ORDER DATED 01/09/2018 PASSED ON IA.NO.04 IN O.S.NO.90/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., SIDLAGHATTA., DISMISSING THE IA.NO.04 FILED UNDER ORDER VII RULE 11(a) AND 11(d) OF CPC FOR REJECTION OF PLAINT.
THIS CIVIL REVISION PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner-defendant No.1 in O.S.No.90/2016 is before this Court under Section 115 of CPC, assailing the order dated 01-9-2018 on I.A.No.4 in O.S.No.90/2016 on the file of the Senior Civil Judge and JMFC, Sidlaghatta, by which application filed under Order VII Rule 11 (a) and (d) of CPC is rejected.
2. Respondent Nos.1 and 2 herein are plaintiffs in O.S.No.90/2016 who filed the suit for the following reliefs:
A. That the release deed dated 19-03-1997 is tainted with fraud and it is null and void;
B. Alternatively to declare that the partition through release deed dated 19-03-1997 is in equitable and it is not binding on the plaintiffs;
C. Consequently declare that plaintiffs are entitled for 5/16th share in the plaint ‘A’ and ‘B’ schedule properties;
D. Order for division of ‘A’ schedule properties by metes and bounds as per law and put the plaintiffs in possession of such allotted share;
E. Order for release of 5/16th share of money in the ‘B’ schedule property in favour of plaintiffs;
F. To pass such other reliefs as deems to fit in the circumstances of the case, in the ends of justice and equity.
3. Paragraph No.5 of the plaint averments reads as follows:
“5. In the year 1997 the defendant No.1 told the defendant No.1 to 3 that he will get the compensation for the sub merged lands provided lands are transferred to his name, by using his good office and he will see that the lawful proceedings will get initiated for acquisition of sub merged lands and proper compensation will be get awarded. It is learnt that further he told if the lands are transferred to his name it is easy for him to use his good office to initiate the proceedings. At that time the defendant No.1 has been working as Deputy Commissioner. By believing the words of defendant No.1 the plaintiff’s father and defendant No.2 and 3 obliged for the same and they told him to they are ready to execute any sort of document as he wishes. Then the defendant No.1 has proposed to execute release deed in his favour with respect to all the family properties including sub merged properties. By believing the say of the defendant No.1 the father of plaintiffs and defendant No.2 and 3 have executed registered release deed dated 19-03-1997 in favour of defendant No.1 which is registered at Sub Registrar office, Sidlaghatta. The said release deed was got prepared by the defendant No.1 at Bangalore through an advocate known to him. The contents of the document were not drafted at the instance of plaintiffs father and defendant No.2 and 3. In the release deed it has been shown that all the suit properties were got released in favour of defendant No.1 and in lieu of such release\relinquishing the plaintiffs father and defendant No.2 and 3 were paid cash of Rs.5,000/- each. It is submitted in reality no such cash is paid to the releasers, it is only a nominal document got executed as per the wishes of defendant No.1. Further it is submitted even after such release the plaintiffs father was continued in possession of all the suit properties and doing agriculture operations till his death and he is residing in the ancestral house. It is further submitted that the release deed dated 19-03-1997 is not at all acted upon. The defendant No.1 had the knowledge of acquisition proceedings are processing by the Govt., The Katha of lands changed to the name of defendant No.1.”
4. The plaintiffs alleged that by playing fraud, the release deed dated 19-03-1997 was obtained from their father. On issuance of summons, defendant No.1 appeared and filed written statement and also an application-I.A.No.4 under Order VII Rule 11 (a) and (d) of CPC, seeking to reject the plaint on the ground that when the executant himself has not challenged the release deed dated 19-03-1997, it is not open for his legal heirs to challenge the same subsequent to his death. The trial Court on consideration of the application, under impugned order rejected the same. Aggrieved by the same, the petitioner-defendant No.1 is before this Court in this civil revision petition.
5. Heard the learned counsel for the petitioner and learned counsel for the respondents. Perused the petition papers.
6. Learned counsel for the petitioner would submit that the release deed was executed in the year 1997 and the executant-father of the plaintiffs died in the year 2015. After the death of executant, present suit is filed by his legal heirs, which is impermissible. It is his further submission that when the executant himself has not challenged the release deed dated 19-03-1997, it is not open for his legal heirs to challenge the same on the ground of fraud. Thus, prayed to allow the revision petition.
7. Per contra, learned counsel for the respondents would submit that the trial Court rightly rejected the application filed under Order VII Rule 11 (a) and (d) of CPC, as the plaint averments clearly establish that there is cause of action for the plaintiffs to file the suit against the fraud played by defendant No.1 on their father in obtaining the release deed. Thus, prays for dismissal of the revision petition.
8. On hearing the learned counsels for the parties and on perusal of the petition papers, the only point that falls for consideration in the facts and circumstances of the case is as to whether the trial Court is justified in rejecting the application filed under Order VII Rule 11 (a) and (d) of CPC. Answer to the said point is in the affirmative for the following reasons.
9. The suit of the plaintiffs is for declaration that the release deed dated 19-03-1997 is tainted with fraud and it is null and void and for consequential reliefs. The plaintiffs alleged that fraud was played on their father and the release deed was got executed in favour of defendant No.1. When the plaintiffs allege fraud, it is for the plaintiffs to prove the same and when allegations of fraud is made, it would be a case for trial. Whether there is fraud or whether the plaintiffs at this length of time could challenge the release deed, could be decided only after trial. At the stage of considering application filed under Order VII Rule 11, the same cannot be gone into, since the application to be considered based on the plaint averments only and written statement averments or defence, would be of no consequence. Therefore, I am of the view that the trial Court rightly rejected the application filed under Order VII Rule 11 (a) and (d) of CPC.
10. Thus, I find no material or jurisdictional error in the impugned order. No ground is made out to interfere with the order passed by the trial Court. Any observation made by the trial Court during the course of its order under challenge shall be treated as only for the purpose of disposing off the IA. All the contentions of the parties are left open.
Accordingly, the civil revision petition is dismissed.
In view of the dismissal of civil revision petition, I.A.No.1/2018 does not survive for consideration.
Sd/- JUDGE SMJ