Mahaveer @ Kushal S/O Bharthkumar ... vs Basavva @ Ratnavva W/O Padmappa ...
2022 Latest Caselaw 991 Kant

               IN THE HIGH COURT OF KARNATAKA
                       DHARWAD BENCH

           DATED THIS THE 21ST DAY OF JANUARY 2022

                            BEFORE

      THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                     CRP.NO.100012/2017
BETWEEN

SRI.MAHAVEER @ KUSHAL S/O BHARTHKUMAR ANEKAR
AGE: 29 YEARS, OCC: BUSINESS,
R/O: KARJAGI ONI, OLD HUBBALLI
DIST: DHARWAD

                                                  ... PETITIONER

(BY SRI.SRIKANT T.PATIL & SRI.ROHIT S.PATIL, ADVS.)


AND

1.    SMT.BASAVVA @ RATNAVVA W/O PADMAPPA PADAMOJI
      AGE: 34 YEARS, OCC: HOUSEHOLD,
      R/O: HOSUR, TQ: SHIGAON,
      DIST: HAVERI

2.    SMT.SUNDARAVVA @ NETRAVATI W/O SHIVAPPA
      KANANNANAVAR
      AGE: 32 YEARS, OCC: HOUSEHOLD
      R/O: NITAGINKOP, TQ: HANGAL,
      DIST: HAVERI

3.    JINNAPPA S/O MAHADEVAPPA JAYAPPANAVAR
      AGE: 70 YEARS,
      OCC: AGRICULTURE,
      R/O: TADAS, TQ: SHIGAON,
      DIST: HAVERI

      PADMAVVA W/O DHARMAPPA KALAGHATAGI
      DECEASED BY LRS
                              2




4.    YELLAPPA DHARMAPPA KALAGHATAGI
      AGE: 48 YEARS,
      OCC: AGRICULTURE, R/O: TADAS,
      TQ: SHIGGAON, DIST: HAVERI

5.    BASAPPA S/O DHARMAPPA KALAGHATAGI
      AGE: 46 YEARS,
      OCC: AGRICULTURE, R/O: TADAS,
      TQ: SHIGAON, DIST: HAVERI

6.    SMT.ASHABI W/O HAYATKHAN GAMANAKATTI
      AGE: 70 YEARS, OCC: HOUSEHOLD
      R/O: ASAR ONI, GAMAN OLD
      HUBBALLI, HUBBALLI,
      DIST: DHARWAD

7.    MAHAMMADALIKHAN S/O HAYATHKHAN GHAMANAKATTI
      AGE: 70 YEARS, OCC: HOUSEHOLD
      R/O: ASAR ONI, GAMAN OLD HUBBALLI, HUBBALLI,
      DIST: DHARWAD

8.    SMT.SAVANTREVVA W/O TIRUKAPPA BELAGATTI
      AGE: 40 YEARS, OCC: HOUSEHOLD
      R/O: TADAS, TQ: SHIGAON,
      DIST: HAVERI

                                            ... RESPONDENTS

(BY SRI.PRUTHVI K.S., ADV. FOR R1 & R2,
    SRI.B.M.PATIL, ADV. FOR R8,
    R3 HELD SUFFICIENT, R4 NOTICE DISPENSED WITH,
    R5 ABATED, R6 & R7 SERVED AND REMAIN UNREPRESENTED)

      THIS PETITION IS FILED UNDER SECTION 115 OF CPC
PRAYING THAT THE IMPUGNED ORDER PASSED ON I.A.NO.17 DATED
25.10.2016 IN O.S.NO.116/2010 ON THE FILE OF THE CIVIL JUDGE
(JR.DN.) & JMFC, SHIGAON VIDE ANNEXURE-A MAY BE SET ASIDE.
CONSEQUENTLY, I.A.NO.17 MAY BE ALLOWED REJECTING PLAINT IN
O.S.NO.116/2010 ON THE FILE OF THE CIVIL JUDGE (JR.DN.) &
JMFC, SHIGAON.

     THIS PETITOIN COMING ON FOR ADMISSION THIS DAY, THE
COURT MADE THE FOLLOWING:
                                 3




                           ORDER

The captioned civil revision petition is filed by

defendant No.5 questioning the rejection of the application

filed under Order 7 Rule 11(a) r/w Section 151 of CPC.

2. Respondent Nos.1 and 2 filed a suit for partition

and separate possession in O.S.No.116/2010. The present

petitioner/defendant No.5 contended that defendant Nos.1

and 2 who constitute a joint family along with respondent

Nos.1 and 2 have sold Schedule-B property in favour of

one Hayatkhan under a registered sale deed dated

01.06.2000. The said Hayatkhan in turn sold Schedule-B

property in favour of grandmother of present

petitioner/defendant No.5 herein. Therefore, the contention

of the present petitioner/defendant No.5 is that since

alienation has taken place much prior to 2005 Amendment

to the Hindu Succession Act, the suit is not maintainable

insofar as Schedule-B property is concerned. On these set

of grounds, the present petitioner/defendant No.5 filed an

application seeking rejection of plaint. The learned Judge

having examined the rival contentions of the parties was of

the view that since the present suit is one for partition and

separate possession, all controversies are to be dealt and

decided in a full-fledged trial. The trial court having

examined the averments made in the plaint has come to

the conclusion that para-11 of the plaint clearly reveals the

cause of action against defendant No.5. On these set of

reasoning, the learned Judge proceeded to reject the

application.

3. Heard the learned counsel for the petitioner,

learned counsel for the respondens and perused the order

under challenge.

4. It is a trite law that while considering rejection

of plaint, it is only averments made in the plaint which are

germane and the courts while examining an application

under Order 7 Rule 11 cannot traverse and venture into

the defences raised by the defendant. The contention of

the present petitioner is that since Schdule-B property is

already sold by the joint family members way back in

2000, there is no cause of action to file the present suit. He

placed reliance on the judgment rendered by a Co-ordinate

Bench of this court in the case of Smt.Lakshmi and

Others Vs. Smt.Neelamma and Others1. Placing

reliance on the said judgment, he would submit to this

court that since defendant Nos.1 and 2 have meddled with

Schedule-B property, the same is sold way back in 2000,

the present suit for partition by including Schedule-B

property is not maintainable. He would also submit to this

court that alienation pertaining to Schedule-B property was

effected much prior to 2005 amendment to Hindu

Succession Act. Therefore, the trial court ought to have

rejected the plaint insofar as Schedule-B property is

concerned. The said contention raised by the petitioner in

the present civil revision petition cannot be acceded to. In

a partition suit, the controversy that has to be decided by

2016 (1) KCCR 1311

the court is, as to whether plaintiffs and defendants do

constitute an undivided joint family and whether the

properties which are subject matter of the partition suit are

joint family ancestral properties. The preset petitioner

admittedly is a purchaser. Therefore, his role is limited.

While drawing up of a preliminary decree, the court is

required to determine the quantification. The right of a

purchaser, if any, is to be worked out only in a final decree

proceedings and he has no say in a partition suit. The

question as to whether the alienated property can be

exclusively allotted to the purchaser is also a question that

has to be decided in the final decree proceedings. While

working out feasibility of a partition, all equities are to be

determined and examined by final decree court. All that is

required to be done in a partition suit is only to ascertain

whether there is a nucleus, whether family constitute

undivided Hindu joint family and if so, what would be the

entitlement of share of the plaintiffs.

5. In that view of the matter, the contention of the

present petitioner/defendant No.5 that since alienation is

before Amendment to 2005 Act, the suit is not

maintainable is misconceived. The said contention is not

sustainable. I do not find any illegality or infirmity in the

order under challenge. Accordingly, the civil revision

petition is dismissed.

Sd/-

JUDGE MBS/-