Kum. Leelavathi vs Smt. B S Chaya
2022 Latest Caselaw 3384 Kant

                                        C.R.P.No.318/2021

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 28TH DAY OF FEBRUARY 2022

                         BEFORE

        THE HON'BLE MRS. JUSTICE K.S.MUDAGAL

       CIVIL REVISION PETITION No.318/2021(IO)

BETWEEN:

1.     KUM.LEELAVATHI
       D/O P.CHANDRASHEKAR (LATE)
       AGED ABOUT 34 YEARS

2.     KUM.BHAGYALAKSHMI
       D/O P.CHANDRASHEKAR (LATE)
       AGED ABOUT 35 YEARS

3.     SRI.VARA PRASAD
       S/O P.CHANDRASHEKAR (LATE)
       AGED ABOUT 31 YEARS
       ALL ARE RESIDING AT NO.54/2
       CUBBONPET, BANGALORE - 560 002
                                        ...PETITIONERS
(BY SMT.P.C.LEELAVATHI, ADVOCATE)

AND:

1.     SMT.B.S.CHAYA
       W/O B.G.BHARATH
       AGED ABOUT 29 YEARS

2.     B.G.BHARATH
       S/O R.GOPAL
       AGED ABOUT 38 YEARS
       BOTH ARE RESIDING AT
       NO.487, 1ST MAIN, 'B' BLOCK
       AECS LAYOUT, KUNDANAHALLI
       BANGALORE - 560 035
                                       ...RESPONDENTS
(BY SRI.M.PURUSHOTHAM, ADVOCATE (ABSENT);
    R1 AND R2 ARE SERVED)
                                                     C.R.P.No.318/2021

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      THIS CIVIL REVISION PETITION IS FILED UNDER
SECTION 115 OF C.P.C. PRAYING TO SET ASIDE THE ORDER
DATED 15.09.2021 PASSED ON IA NO.2 IN O.S.NO.3549/2018
ON THE FILE OF THE XI ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU CITY, DISMISSING THE IA NO.2
FILED UNDER ORDER VII RULE 11 READ WITH SECTION 151 OF
CPC.

     THIS CIVIL REVISION PETITION COMING ON FOR
ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:


                          ORDER

Heard the petitioners' counsel.

2. Aggrieved by the rejection of their application

for rejection of the plaint, defendants in O.S.No.3549/2018

on the file of XI Additional City Civil & Sessions Judge,

Bengaluru City (CCH-8) have preferred the above petition.

3. Respondents were plaintiff Nos.1 and 2 and

petitioners were defendant Nos.1 to 3 in

O.S.No.3549/2018. For the purpose of convenience,

parties will be referred to henceforth according to their

ranks before the trial Court.

4. Subject matter of the suit in

O.S.No.3549/2018 was 'B' Scheduled Property, which was

part of 'A' Scheduled Property. 'A' Scheduled Property is C.R.P.No.318/2021

the property bearing No.54/2 consisting of ground, first,

second and third floor situated at Cubbonpet Main Road,

Bengaluru. 'B' Schedule Property is the third floor of 'A'

Schedule Property measuring 200 sq.ft.

5. Case of the plaintiffs in brief is as follows:

(i) One Papanna acquired 'A' Schedule Property

under registered partition deed dated 04.11.1959.

Defendants are the grandchildren of said Papanna. During

lifetime of Papanna, P.Chandrashekar executed registered

release deed dated 21.11.1985 relinquishing his rights and

interest in 'A' Schedule Property in favour of his father and

brothers. Thereafter, they continued to enjoy the property

to the exclusion of P.Chandrashekar. On the death of

Papanna on 24.09.1993, there was partition between his

wife Annapurnamma and his other sons Ranganath,

Lakshminarayana and Gnanamurthy under registered

partition deed dated 03.03.2004. In that partition, 'A'

Schedule Property was allotted to the share of

Annapurnamma.

                                                         C.R.P.No.318/2021






       (ii)    Annapurnamma            under     the      Will        dated

16.09.2004 bequeathed 'A' Schedule Property in favour of

her sons Ranganath, Lakshminarayana and Gnanamurthy.

P.Chandrashekar died on 01.01.2003. Thereafter,

Annapurnamma provided accommodation to the

defendants in 'B' Schedule Property. Taking advantage of

that, they filed O.S.No.3905/2004 against their uncles for

partition and separate possession of 'A' Schedule Property.

That suit was dismissed for non-prosecution on

13.01.2009. Their petition in Crl.Misc.No.553/2013 for

restitution of O.S.No.3905/2004 also came to be dismissed

on 26.09.2016. That order has become final.

Annapurnamma died on 09.01.2008. Thereby legatees

under the Will i.e. her sons Ranganath, Lakshminarayana

and Gnanamurthy became absolute owners of 'A' Schedule

Property. Ranganath, Lakshminarayana and Gnanamurthy

sold 'A' Schedule Property to one Skender Mollick under

registered sale deed dated 06.01.2012. Plaintiffs have

purchased the said property from Skender Mollick under

registered sale deed dated 16.06.2017. Thereby, they

became absolute owners of the said property.

C.R.P.No.318/2021

(iii) Defendants have initially agreed to vacate the

premises within five months, later turned hostile.

Therefore, they seek declaration of their title and

possession.

6. On appearing in the suit, even before written

statement was filed, defendants filed I.A.No.2 under Order

VII Rule 11 r/w Section 151 of CPC seeking rejection of

the plaint. In the application they claim that suit schedule

property is their ancestral property and P.Chandrashekar

had no right to sell the property, therefore, they have filed

O.S.No.3905/2004 for partition. They further claim that

the alleged Will and transfers in favour of Skender Mollick

and the plaintiffs are hit by Section 52 of Transfer of

Property Act (for short 'T.P. Act'). They claim that Review

Petition No.792/2016 was pending in Misc.Petition filed for

restoration of O.S.No.3905/2004. They claim that suit is

under valued and the Court fee paid was deficit.

7. Plaintiffs/respondents contested the application

claiming that O.S.No.3905/2004 was frivolous suit and C.R.P.No.318/2021

therefore, that was not prosecuted. They denied the claim

of suit being barred by law or that was under valued.

8. The trial Court on hearing both side by the

impugned order rejected the application on the ground

that for rejection of the plaint under Order VII Rule 11 of

CPC, Court has to see only the averments in the plaint and

not the written statement. The trial Court further held that

property consists in the suit is only 'B' Schedule Property

measuring 200 sq.ft out of plaint 'A' Schedule Property and

that is valued as per Section 24(a) of the Karnataka Court

Fees and Suits Valuation Act, 1958. Therefore, at that

stage Order VII Rule 11 of CPC was not attracted.

9. Reiterating the ground of the application and

the grounds of the petition, learned counsel for the

petitioners submits that suit is hit by Section 52 of T.P.

Act, therefore, Order VII Rule 11 of CPC is applicable. She

further submits that plaint 'B' Schedule Property is

measuring 520 sq.ft and not 200 sq.ft as stated in the

plaint, therefore, valuation of the suit and Court fee paid is

insufficient. In support of her submission, she relied on C.R.P.No.318/2021

judgment of this Court in Smt.Shakuntala and Others

Vs.Basavaraj and Others1.

10. Learned counsel for the respondents did not

turn up to submit his arguments.

11. Having regard to the material on record and

submissions of the learned counsel for the petitioners, the

question that arises for consideration is 'In rejecting the

application under Order VII Rule 11 of CPC whether trial

Court committed any jurisdictional error?'

12. It is the settled proposition of law that for

rejection of the plaint invoking Order VII Rule 11 CPC,

Court has to see plaint averments and not written

statement of the defendants. Admittedly, defendants had

not even filed written statement in the case. Defendants'

suit in O.S.No.3905/2004 related to entire 'A' Schedule

Property. That was pending since 2004 and that was not

diligently prosecuted.

13. Learned counsel for the petitioners/defendants

submits that the said suit is restored by virtue of order

ILR 2016 KAR 3604 C.R.P.No.318/2021

passed in review petition. Said material is not before this

Court. Even if that is accepted, question is that whether

pendency of the suit itself bars another suit. Earlier suit in

O.S.No.3549/2019 is for declaration and possession.

14. Section 52 of T.P. Act itself does not bar filing

the subsequent suit. That only says that if any transfer is

effected in respect of subject matter of any suit, during the

pendency of such suit, the judgment passed in such suit

binds the transferee. Therefore, there is no merit in the

contention that Section 52 of T.P. Act bars filing of

subsequent suit and that attracts Order VII Rule 11 (d) of

CPC.

15. So far as improper valuation of suit and

payment of Court fee, plaintiffs claim that the subject

matter of the suit was only an area of 200 sq.ft in 'B'

Schedule Property. As per sale deed dated 16.09.2017

executed by Skender Mollick in favour of plaintiffs, entire

'A' Schedule Property was sold to them for a consideration

of 80 lakhs.

C.R.P.No.318/2021

16. Perusal of the judgment in Shakuntala's case

relied on by the learned counsel for the petitioners shows

that the same was rendered on a full fledged trial.

Therefore, the same cannot be justifiably accepted to the

facts of the case.

17. As already pointed out, 'A' Schedule Property

consists of ground floor, first floor, second floor and third

floor. As per the said sale deed, third floor consists of 520

sq.ft residential building. According to the plaintiffs, out of

520 sq.ft., 200 sq.ft is in possession of defendants.

Defendants claim that they were in possession of entire

520 sq.ft. of the residential building. That is the matter of

evidence.

18. Such disputed questions of fact regarding

possession and market value of the property cannot be

decided under Order VII Rule 11 of CPC. Therefore, the

trial Court has rightly held that both grounds raised did

not attract Order VII Rule 11 (a) (b) and (d) for rejection

of the plaint. This Court does not find any jurisdictional C.R.P.No.318/2021

error in the said order. Therefore, the petition is

dismissed.

Sd/-

JUDGE

pgg