Karnataka High Court
Smt Nagaratnamma vs Narasimaiah on 10 December, 2021
Bench: R. Nataraj
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE R. NATARAJ
CIVIL REVISION PETITION NO.355 OF 2021 (IO)
BETWEEN:
SMT.NAGARATNAMMA,
W/O LATE APPANNA,
AGED ABOUT 54 YEARS,
RESIDING OF YALADABAAGI,
SIRA TALUK,
TUMKURU DISTRICT - 572 137.
... PETITIONER
(BY SRI.HANUMANTHARAYAPPA K., ADVOCATE)
AND:
NARASIMAIAH,
S/O VILEDELE NARASIMAIAH,
AGED ABOUT 69 YEARS,
RESIDING AT YALADABAAGI,
SIRA TALUK,
TUMKURU DISTRICT - 572 137.
... RESPONDENT
THIS CIVIL REVISION PETITION IS FILED UNDER
SECTION 115 OF CPC, AGAINST THE ORDER DATED 27.09.2021
PASSED ON IA NO.5 IN O.S.NO.383/2012 ON THE FILE OF THE
PRINCIPAL CIVIL JUDGE AND JMFC., SIRA, DISMISSING THE IA
NO.5 FILED UNDER ORDER VII RULE 11 OF CPC., FOR
REJECTION OF PLAINT.
THIS CIVIL REVISION PETITION COMING ON FOR
ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
2
ORDER
This revision petition is filed by the defendant in O.S.
No.383/2012 pending trial before the Principal Civil Judge
and J.M.F.C., Sira, challenging on order dated 27.09.2021,
by which, an application filed by him under Order VII Rule
11 of the Code of Civil Procedure (hereinafter referred to
as 'CPC' for short) was rejected.
2. The suit in O.S.No.383/2012 was filed for
declaration of the plaintiffs right, title and interest in
respect of re-survey No.9 of the Yeladabhagi, Kallambella
Hobli, Sira Taluk. The plaintiff also sought for recovery of
damages of a sum of Rs.50,000/- to Rs.1,00,000/- from
the defendant for destroying the areca, coconut plants and
betel leaf creepers. The plaintiff claimed that the aforesaid
land earlier belonged to Fakruddin Sab and later, his
grandfather purchased it in terms of a sale deed dated
16.02.1954 and that the plaintiff was in possession of the
suit property. It is stated that the plaintiff had planted
about 600 areca plants, 15 coconut trees. He also stated
that his father had purchased the land in Sy.No.9/3 in
terms of a sale deed dated 17.02.1978 and Sy.No.9/4 in
terms of a sale deed dated 13.03.1988. It is claimed that
the defendant had filed O.S.No.231/2002 for perpetual
injunction relating to the land bearing Sy.Nos.9/2, 10 and
16. The defendant after obtaining a decree in the said suit,
had entered upon the land bearing Sy.Nos.9/3 and 9/4 and
had vandalized the areca nut, coconut and betel nut leaf
creepers and caused loss valued at a sum of Rs.50,000/-
to Rs.1,00,000/-. In that regard, he filed a criminal
complaint in C.C.No.1151/2010. The plaintiff claimed that
he had challenged the judgment and decree in O.S.
No.231/2002 in R.A.No.13/2008 and the same was
pending consideration. Therefore, he sought for a
declaration of his right, title and interest in the land
bearing survey Sy.Nos.9/3 and 9/4.
3. The defendant contested the suit and denied
the averments of the plaint and the entitlement of the
plaintiff to the land bearing Sy.Nos.9/3 and 9/4. After the
written statement was filed, he filed an application under
Order VII Rule 11 of CPC for rejection of the plaint
contending that he was in possession of the land bearing
Sy.No.9/2 and that he filed O.S.No.231/2002 for
declaration of his title, which was decreed, against which
the plaintiff had filed R.A.No.13/2008, which when
dismissed, compelled the plaintiff to file R.S.A.
No.333/2012. She therefore submitted that the plaintiff is
barred from filing any suit in respect of land bearing
Sy.No.9/2. She also stated that the plaintiff had filed an
appeal before the Deputy Director of Land Records,
Tumkur for cancellation of the divisions in Sy.No.9, which
too was dismissed. Hence, the defendant sought rejection
of the plaint on the ground that the suit was barred by res-
judicata.
4. The trial Court after considering the averments
of the plaint and the application for rejection, held that the
contentions urged by the defendant had to be established
at a trial and that the Court conduct a mini trial. Therefore,
the trial Court rejected the application in terms of the
order which is impugned in the present petition.
5. The learned counsel for the defendant
contended that a suit in respect of Sy.No.9/2 was already
decreed in O.S.No.231/2002 and that the plaintiff had
raised the very same contention in the present suit and
therefore, the suit is not maintainable.
6. In so far as the contention that the suit is hit
by res-judicata, the same cannot be pressed into service in
an application filed under Order VII Rule 11 of CPC. In this
regard, it is profitable to refer to the Judgment of the
Hon'ble Apex Court in the case of SRIHARI HANUMADAS
TOTALA VS. HEMANTH VITHAL KAMAT AND OTHERS
reported in (2021) 9 SCC 99. The trial Court is bound to
frame an issue as to whether the suit filed in
O.S.No.231/2002 related to the very same property which
is the subject matter of the present suit. Therefore, it is for
the trial Court to decide whether the property claimed by
the plaintiff in the present suit is the same which was the
subject matter of the suit in O.S.No 231/2002. At any rate,
the issue of res-judicata cannot be considered at the stage
of an application under Order VII Rule 11 of CPC. Hence,
the trial Court was justified in rejecting the application.
7. There is no merit in this revision petition.
Accordingly, it is rejected.
Sd/-
JUDGE
NR/-
