Karnataka High Court
Thopamma vs K S Hanumantharayappa on 4 July, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:25319
RSA No. 243 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.243 OF 2019 (SP)
BETWEEN:
1. THOPAMMA
AGED ABOUT 80 YEARS,
W/O LATE NANJAPPA
2. HANUMAIAH
AGED ABOUT 60 YEARS,
S/O LATE NANJAPPA
3. K N GANGADHARAIAH
AGED ABOUT 50 YEARS,
S/O LATE NANJAPPA
Digitally signed
by DEVIKA M 4. K N GOPALA
Location: HIGH AGED ABOUT 47 YEARS,
COURT OF S/O LATE NANJAPPA
KARNATAKA
ALL ARE R/AT KAIDALA VILLAGE,
GULUR HOBLI
TUMAKURU TALUK-572102
...APPELLANTS
(BY SRI KARUMBAIAH T A, ADVOCATE)
AND:
1. K S HANUMANTHARAYAPPA
AGED ABOUT 58 YEARS,
S/O LATE SOOLAPPA
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NC: 2024:KHC:25319
RSA No. 243 of 2019
2. RAVIKUMAR @ RAVINDRA
AGED ABOUT 33 YEARS,
S/O HANUMANTHARAYAPPA
3. SATHYAMURTHY
AGED ABOUT 31 YEARS,
S/O HANUMANTHRAYAPPA
RESPONDENTS 1 TO 3 ARE
R/AT HETHENAHALLI VILLAGE, GULUR HOBLI
TUMKUR TALUK & DISTRICT-572102
...RESPONDENTS
(BY SRI M B CHANDRACHOODA, ADVOCATE)
THIS RSA IS FILED UNDER SEC.100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 28.08.2018
PASSED IN R.A.NO.96/2017 ON THE FILE OF THE II ADDL.
SENIOR CIVIL JUDGE AND JMFC, TUMAKURU AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This second appeal is filed against the concurrent finding of both the Courts passed on IA filed under Order VII Rule 11(d) of CPC wherein a prayer is sought to reject the plaint on the ground that the suit is barred by law of limitation.
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NC: 2024:KHC:25319 RSA No. 243 of 2019
2. Heard the learned counsel appearing for the respective parties.
3. On perusal of the records, it discloses that the Trial Court taking into note of the material available on record, allowed the IA and rejected the plaint. Being aggrieved by the said order of the Trial Court, an appeal was preferred in R.A.No.96/2017 and the First Appellate Court also having reassessed the material available on record, confirmed the order of the Trial Court. Being aggrieved by the said concurrent finding of both the Courts, the present second appeal is filed before this Court.
4. The counsel appearing for the appellants would vehemently contend that both the Courts have committed an error in passing the said order by allowing the application filed under Order VII Rule 11(d) of CPC on the ground that the suit is barred by limitation since the question of considering the fact on limitation is also mixed -4- NC: 2024:KHC:25319 RSA No. 243 of 2019 question of fact and law when the parties have disputed the fact of cause of action. Under such circumstances, both the Courts ought not to have dismissed the plaint. The counsel for the appellants also reiterated the grounds urged in the second appeal.
5. Per contra, the learned counsel appearing for the respondents would vehemently contend that this Court in R.S.A.No.523/2020 already comes to a conclusion that there is no merit in the appeal when the similar facts and circumstances were raised in that appeal. In that appeal also challenge was made to the application filed under order VII Rule 11(d) of CPC in O.S.No.1360/2011 wherein the Trial Court allowed the said application and against that order, an appeal was preferred in R.A.No.72/2016 and the said regular appeal was also dismissed and confirmed the order of the Trial Court and against that concurrent finding, second appeal was filed in R.S.A.No.523/2020 and this Court while considering the facts and circumstances of the case, comes to the -5- NC: 2024:KHC:25319 RSA No. 243 of 2019 conclusion that both the Courts having taken note of Article 54 of the Limitation Act held that there was a sale agreement and there was also a stipulation in the sale agreement hence, the Fragmentation Act is prevailing and hence, the plaintiff cannot execute the document and the sale deed would be executed after repealement of the Fragmentation Act. Admittedly, the Fragmentation Act repealed in the year 1991 itself but the suit was filed in the year 2011. All these facts have been taken note of by the Trial Court as well as the First Appellate Court and this Court also found that there is no ground made out to entertain the second appeal.
6. In the present case also, the suit is filed in the year 2011 and same is also based on the sale agreement. When this Court already considered similar set of facts and comes to the conclusion that the suit is barred by limitation in view of Fragmentation Act which was repealed in the year 1991 itself and the suit is filed in the year 2011, in this case also, similar circumstances are arisen. -6-
NC: 2024:KHC:25319 RSA No. 243 of 2019 Hence, I do not find any grounds to entertain the second appeal.
7. In view of the discussions made above, I pass the following:
ORDER The regular second appeal is dismissed.
Sd/-
JUDGE SN