Karnataka High Court

Garlapati Anandkumar S/O G. ... vs Dr. Nannapaneni Nageshwar Rao And ... on 3 December, 2021

Bench: M.G.S.Kamal

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         IN THE HIGH COURT OF KARNATAKA
                KALABURAGI BENCH

   DATED THIS THE 3RD DAY OF DECEMBER, 2021

                     BEFORE

        THE HON'BLE MR.JUSTICE M.G.S.KAMAL

      CIVIL REVISION PETITION No.200006/2020

BETWEEN


GARLAPATI ANANDKUMAR S/O G. SINGARAO
AGE: 48 YEARS, OCC: AGRICULTURE & BUSINESS,
R/O: ADARSHA COLONY, SINDHANUR TOWN,
TQ: SINDHANUR, DIST: RAICHUR.
                                      ...PETITIONER


(BY SRI MAHANTESH PATIL, ADVOCATE)


AND


1. DR. NANNAPANENI NAGESHWAR RAO
S/O VENKATAPAYYA @ APPAYYA,
AGED ABOUT: 69 YEARS, OCC: AGRICULTURE
& RETIRED EX-SERVICE MEDICAL PRACTITIONER,
R/O: C/O: K.VENKATESHWARA RAO, H.NO. 547,
VIVEKANAND NAGAR COLONY, KUKATPALLY,
HYDERABAD CITY-500072. (TELANGANA STATE).

2. DONTINENI VEERAIAH S/O RAMAIAH
SINCE DECEASED BY HIS LEGAL HEIRS

2A) DONTINENI APPA RAO
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S/O LATE D. VEERAIAH AGED: 62 YEARS
OCC: AGRI, R/O BODIPALEM VILLAGE KAKUMERU
MANDALAM, DIST: GUNTUR AP

2B) DONTINENI PRABHAKAR RAO
S/O LATE D. VEERAIAH AGED : 59 YEARS OCC: AGRI,
R/O BODIPALEM VILLAGE KAKUMERU MANDALAM
DIST: GUNTUR AP

2C) SMT. SUSHEELA
W/O LATE D. VEERAIAH AGED : 56 YEARS OCC: AGRI, &
HOUSEHOLD R/O BODIPALEM VILLAGE KAKUMERU
MANDALAM DIST: GUNTUR AP

3. GARLAPATI SINGARAO S/O KOTAYYA
AGE: 71 YEARS, OCC: AGRICULTURE,
R/O: ADARSHA COLONY, SINDHANUR TOWN,
TQ: SINDHANUR, DIST: RAICHUR-584101.

4. GARLAPATI VINODAMMA W/O G. SINGARAO
AGE: 73 YEARS, OCC: AGRICULTURE & HOUSEHOLD,
R/O: ADARSHA COLONY, SINDHANUR TOWN,
TQ: SINDHANUR, DIST: RAICHUR-584101.

5. GARLAPATI SRINIVAS RAO S/O G. SINGARAO
AGE: 52 YEARS, OCC: AGRICULTURE & BUSINES,
R/O ADARSHA COLONY SINDHANUR TOWN,
TQ: SINDHANUR, DIST: RAICHUR-584101.
                                     ...RESPONDENTS


     THIS CIVIL REVISION PETITION IS FILED UNDER
SECTION 115 OF CPC PRAYING TO SET ASIDE THE
JUDGMENT AND ORDER DATED 24.09.2019 PASSED BY
THE LEARNED SENIOR CIVIL JUDGE AND JMFC,
SINDHANUR, ORDER ON I.A.9 IN O.S.NO.90/2014, VIDE
ANNEXURE-E AND ALLOW THE PETITION.
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     THIS PETITION COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:-

                                 ORDER

The present civil revision petition is filed under

Section 115 of CPC by the petitioner/defendant No.4 being

aggrieved by the order dated 24.09.2019 passed in

O.S.No.90/2014 on the file of the Senior Civil Judge and

JMFC, Sindhanur upon the application filed by the

petitioner/defendant No.4 under Order 7 Rule 11 read with

Section 151 of CPC seeking rejection of the plaint.

2. Brief facts leading up to filing of the present

petition are that the respondent No.1/plaintiff has

instituted a suit in O.S.No.90/2014, for the following

reliefs:

"1. That it may be declared the plaintiff is the owner of suit schedule property land Beg. Ny.No.58 Meg 12 acre 35 guntas of Jalawadagi village, tq. Sindhanur.

2. That the plaintiff may be put into possession of suit property by dispossessing the defendants along with standing crop there in.

3. It may be declared that the registered sale deed document No.2453/94-95 and 2454/94-

95 both dated 06.04.1994 and 1113/69.70 dated 07.07.69 and registered partition deed No.1829/03-04 dated 10.07.03 are illegal, null and void.

4. That the mesne profit pendentlite till delivery of possession of suit property to the plaintiff be passed.

5. That the cost of the suit be awarded.

6 .That any other relief be granted in the circumstances of the case as this Hon'ble Court deems fit and proper."

3. The petitioner/defendant No.4 filed his written

statement on 04.01.2013 and the application under Order

7 Rule 11 of CPC filed on 19.08.2019. In the affidavit

accompanying the said application, the

petitioner/defendant No.4 referring to the plaint

averments, reliefs sought therein and the

pleadings/defence set up in the written statement has

contended that suit is barred by law of limitation and that

the cause of action as has been set out in the plaint is

purely fictitious, illusory and hence, sought for rejection of

the plaint.

4. The objections to the said application were

filed by the plaintiff/respondent No.1 specifically

contending that; the suit was of the year 2014 for

declaration and injunction, the issues were framed on

12.07.2013 and the application was filed at a highly

belated stage; and that the issue raised with regard to

limitation is a mixed question of law and facts and it must

be tried during the trial.

5. The Trial court on examination of the contents

of the application filed under Order 7 Rule 11 of CPC and

objections thereto, passed the impugned order by

dismissing the application. Aggrieved by the same, the

petitioner/defendant No.4 is before this Court.

6. The learned counsel for the petitioner

reiterating the grounds urged in the petition submitted

that the reliefs sought for by the plaintiff/respondent No.1

is barred by limitation. He further submits that the

question of limitation is a mixed question of law and facts

and if the suit is barred by limitation, the same can be

rejected in exercise of powers under Order VII Rule 11(d)

of CPC. Hence, sought for setting aside the impugned

order. He relied upon the judgment of the Apex Court in

the case of Raghwendra Sharan Singh vs. Ram

Prasanna Singh (Dead) by L.Rs. reported in AIR 2019

SC 1430.

7. It is no longer res integra that the application

seeking rejection of the plaint has to be considered only on

the basis of the pleadings/averments made in the plaint

alone. The averments made in the written statement or

defence material cannot form basis for entertaining the

application for rejection of the plaint. In the instant case,

at paragraph Nos.6 and 9 of the plaint, the plaintiff has

averred as follows:

"06. That this plaintiff not at all sold any properties situated in Sindhanur taluka including this suit property to the defendant No.1, this defendant No.2 without the knowledge of this plaintiff and behind back of this plaintiff in respect of suit schedule

property might be registered in the name of defendant No.1. That this matter was totally put in darkness to this plaintiff and this plaintiff totally believed and trusted to defendant No.2 as the defendant No.1's wife and defendant No.3 are full sisters of this plaintiff. The plaintiff's father was died in the year 1947 and the defendant No.1 was well wisher of this plaintiff. Originally the plaintiff and defendants are belongs to same village and close relatives.

07. That the defendant No.2 by taking the undue advantage of close relationship it seems defendant No.2 might have created false and fabricated registered sale deeds in the name of defendant No.1 and thereafter the defendant No.2 got it registered sale deed in the name of his wife and sons who are the defendant No.3 to 5 herein alleged to have executed by defendant No.1 and also in respect of non suit property land Sy.No.60 this defendant No.2 executed registered power of attorney deed. This plaintiff separately filed suit in respect of land Sy.No.60 of Jalwadagi village.

08. That this plaintiff receiving profits of landed property from the deft.No.2. Therefore this plaintiff could not verified the land revenue records. Since 3 years defendant No.2 could not paid the profits therfore this plaintiff came to suit property in the last week of August 2010 and went to the suit property at that time, the defendant No.5 engaged in agricultural work over the suit property and this plaintiff raised objection about cultivation of land and at that time the defendant No.5 informed the land was purchased and got it registered sale deed in his name to the extent of 6 acre and an area of 6 acre 35 gunta in the name of his mother defendant no.3 herein. Then this plaintiff became surprise about the execution of registered sale deed. Thereafter this plaintiff went to Taluka office and verified the revenue records. It is found that the suit property was standing in the name of defendant No.2 to 5 and previously the property was transferred in the name of defendant No.1. After verification of record, it is found that the suit property was registered in the name of deft. No.1 as per registered sale deed No.1113/69-70 dated 07.07.1969 and

there after it seems the suit property was registered in the name of deft No.4 as per registered in the name of deft. No.4 as per registered sale deed document NO.2453/94-95 to an extent of 6 acre towards east and remaining 6 acre 35 gunta of land towards west got registered sale deed document No.2454/94-95 dated 06.04.1994 in the name of defendant No.3 & 2 to got it registered partition deed allotted this property to the share of defendant No.4 & 5. Then this plaintiff approached defendant No.1 at his native place and enquired about registered sale deeds. But the defendant No.1 informed to this plaintiff he has never purchased the land of this plaintiff and question of execution of sale deed in the name of deft. No.2 and 5 does not arise and stated no sale deeds were registered in his name and he has not at all come over to Sindhanur and executed registered sale deeds. In the name of deft. No.3 & 5. it seems by taking undue advantage of close relationship of deft. No.2 to 5 created and fabricated false registered sale deeds with an intention to cheat this plaintiff. Therefore, the plaintiff requested the deft. No.2 to 5 for cancellation

of deeds but they did not agreed to cancellation of deeds hence the plaintiff constrained to file this suit for seeking a decree for declaration of title and recovery of possession and also rectification of RORs. That the deft. No.2 to 5 creted a registered partition deed bearing No.1829/03-04 dated 10.07.03 for effecting partition and in that partition the suit property was allotted to the share of defendant No.1 and 2. Therefore, defendant No.2 and deft. No.4 are arrayed as party to this suit.

09. That the deft. No.2 since 3 years did not gave any proper account in respect of management of landed property and he was totally denied about the ownership of this plaintiff over the suit property, therefore, the very title of the plaintiff casted cloud. Hence, this suit for seeking declaration of title and the registered sale deeds document No.1113/69- 70 dated 07.07.69 and the document bearing No.2453/94-95 both dated 06.04.1994 and registered partition deed beg.No.1829/03-04 dated 10.07.03 may be declared as illegal, ineffective and void ab-initio. The relevant

documents are produced with separate list for the kind perusal of this Hon'ble Court."

8. A bare perusal of the plaint averments

particularly paragraph Nos.6 and 9 of the same, which are

extracted hereinabove, would not lend any ground

warranting rejection of the plaint. There is no admission of

any nature whatsoever by the plaintiff in the plaint

regarding his purported knowledge of execution of deeds

of sale. It is also not the case of the petitioner/defendant

No.4 that the plaintiff has made any such admission. As

such the reliance placed by the learned counsel for the

petitioner on the judgment of the Apex Court in

Raghwendra Sharan Singh (Supra) is of no avail. As in