Karnataka High Court

Garlapati Anandkumar S/O G. ... vs Dr. Nannapaneni Nageshwar Rao And ... on 10 November, 2021

Bench: M.G.S.Kamal

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         IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

     DATED THIS THE 10TH DAY OF NOVEMBER, 2021

                       BEFORE

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

      CIVIL REVISION PETITION No. 200004/2020

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.     GARLAPATI SINGARAO S/O KOTAYYA
       AGE: 71 YEARS, OCC: AGRICULTURE,
       R/O: ADARSHA COLONY, SINDHANUR TOWN,
       TQ: SINDHANUR, DIST: RAICHUR-584101.
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3.      GARLAPATI VINODAMMA W/O G. SINGARAO
        AGE: 73 YEARS, OCC: AGRICULTURE &
        HOUSEHOLD, R/O: ADARSHA COLONY,
        SINDHANUR TOWN, TQ: SINDHANUR,
        DIST: RAICHUR-584101.

4.      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.89/2014, VIDE
ANNEXURE-E AND ALLOW THE PETITION.


     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.89/2014 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.60/2010, which is renumbered

as O.S.No.89/2014 for the following reliefs:

"1. That it may be declared the plaintiff is the owner of suit schedule property land Beg. Ny.No.60 Meg 13 acre 36 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.2455/94-95 and 2456/94- 95 both dated 26.09.1994 and registered GPA document 1/72-73 dated 24.04.1972 partition deed document No.1829/03-04 dated 10.07.2003 as illegal in effective and void and void ab-initio.

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

5. That the cost of the suit award.

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

3. The petitioner/defendant No.4 has 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 2010 for

declaration and injunction, the issue were framed on

18.11.2015 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 prayer 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 filed based on 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:

"6. That since 3 years this defendant No.1 stop to give profit of suit property and thereafter this plaintiff made efforts for getting profit of the land but the defendant No.1 totally declined to give account and profits in respect of suit property therefore this plaintiff intended to cultivate the suit land personally through his own labor and cost then this plaintiff went to suit property in the last week of August 2010 for cultivation of land at that time these defendants raised objection and at that time the defendants were denied the very title of this plaintiff. Therefore this plaintiff verified the revenue record it is found that the suit property

who are the son of defendant No.1 and 2. Thereafter this plaintiff secured certified copy of registered sale deed it is found that the defendant No.1 executed registered sale deed document No.2455/1994-95 dated 26.09.1994 in the name of defendant No.3 for an extent of 6 acre 38 guntas towards western portion and another registered sale deed document No.2456/94-95 dated 26.09.1994 in the name of defendant No.4 to an extent of 6 acres 38 guntas towards eastern side hence the defendant No.1 seems to have executed about two sale deeds in the name of his sons defendant No.3 and 4. Without supporting lawful consideration and object and also without the permission of consent of his plaintiff. It seems on the basis of false and fabricated registered General power of attorney deed No.1/72-73 dated 24.04.1972. That the plaintiff never instructed to sell the suit property to this defendant No.1 it seems this defendant No.1 and his sons created a registered sale deeds with an intention to get suit property in their name on the guise of alleged

power of attorney. On the date of registered sale deed in the name of defendant No.3 and 4 the defendant No.1's family is undivided Hindu Joint family. Therefore the said registered sale deeds are totally illegal and void ab-initio.

7. That this plaintiff at the time of going to Iran country trusted with defendant No.1 as he is brother in law and he was authorized to manage the suit property. But this defendant No.1 fraudulently executed registered sale deed in the name of his sons with an intention to cause unlawful gain to his family members. The very act of plaintiff and defendant No.1 is coming under per view cheating. This plaintiff reserve his right to take action under the criminal law. That the defendants got mutation entry in their name therefore revenue records is fit to be rectified and this plaintiff name may be restored in the revenue record of suit property.

8. That the plaintiff entitled possession of the property but the defendants are declined to hand over the possession of suit property to this plaintiff and all the defendants are Hindu undivided joint family members therefore this plaintiff file this suit against all the defendants.

9. That the above facts constitute the cause of action arose in the last week of August, 2010 when this plaintiff came to know that about the execution of registered sale deed in the name of defendant No.3 and 4 by defendant No.1 and also the efforts for seeking possession of the suit property proved in vein and the same is continuing one with in the jurisdiction 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

averments 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 the said case the plaintiff has specifically