Karnataka High Court
Smt P V Venkatalakshmamma vs Sri M Jayraj on 13 December, 2023
Author: V Srishananda
Bench: V Srishananda
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NC: 2023:KHC:45402
RFA No. 2015 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
REGULAR FIRST APPEAL NO. 2015 OF 2023 (RES)
BETWEEN:
SMT. P.V. VENKATALAKSHMAMMA,
D/O G.V. PAPAIAH,
AGED ABOUT 64 YEARS,
RESIDING AT NO. 72,
DODDAMUNNISWAMAPPA LAYOUT,
OPP: MANJUNATHA TEMPLE,
GARUDACHAR PALYA, MAHADEVAPURA,
BENGALURU - 560 048.
...APPELLANT
(BY SRI. S. KALYAN BASAVARAJ, ADVOCATE)
AND:
1. SRI. M. JAYRAJ,
Digitally S/O LATE MUNIKRISHNAPPA,
signed by R
MANJUNATHA AGED ABOUT 62 YEARS,
Location:
HIGH COURT RESIDING AT NO. 19,
OF
KARNATAKA LINGAYANNAPALYA, ULSOOR,
BANGALORE - 560 008.
2. SRI. M. ASHWATH RAJ,
S/O LATE MUNIKRISHNAPPA,
AGED ABOUT 59 YEARS,
RESIDING AT: NO. 14,
MUNISWAMAPA ROAD,
LINGAYANNAPALYA, ULSOOR,
BANGALORE - 560 008.
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RFA No. 2015 of 2023
3. SRI VENKATESH BABU,
(SINCE DEAD BY HIS LRS),
SMT. VEDAVATHY YESHWANTH,
W/O SRI. R.M.YESHWANTH,
D/O LATE VENKATESH BABU,
AGED ABOUT 29 YEARS,
RESIDING AT: NO. 659,
10TH CROSS, II STAGE,
MAHALAKSHMIPURA,
AKKA MAHADEVI COULTRY,
WEST OF CHORD ROAD,
BANGALORE - 560 086.
4. SMT. JAYASHREE. Y,
D/O LATE VENKATESH BABU,
AGED ABOUT 25 YEARS,
RESIDING AT: NO. 15, G 10 STREET,
JOGUPALYA, ULSOOR,
BANGALORE - 560 008.
5. SRI. VENKATESH MURTHY,
S/O MUNIKRISHNAPPA,
AGED ABOUT 49 YEARS,
RESIDING AT NO. 19,
MUNISWAMAPA ROAD,
LINGAYANNAPALYA, ULSOOR,
BANGALORE - 560 008.
6. SMT. VANITHA,
W/O LATE SRINIVASAMURTHY,
AGED ABOUT 45 YEARS,
RESIDING AT: NO. 20,
JOGUPALYA MAIN ROAD,
ULSOOR, BANGALORE - 560 008.
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RFA No. 2015 of 2023
7. SMT. GOWRAMMA @ PUSHPALATHA,
D/O LATE MUNIPILLAPPA,
AGED ABOUT 53 YEARS,
RESIDING AT: MUNISWAMAPPA ROAD,
BANGALORE - 560 008.
8. SMT. VIJAYALAKSHMI,
D/O LATE MUNIPILLAPPA,
AGED ABOUT 48 YEARS,
R/AT NEAR VIDYA GANAPATHI TEMPLE,
SARASWATHIPURAM,ULSOOR (JOGUPALYA),
BANGALORE - 560 008.
...RESPONDENTS
(BY SRI. H.M. VISHWANATH, ADVOCATE FOR C/R1;
SRI. M. VEERESH, ADVOCATE FOR C/R4;
SRI. G. RAGHUNANDAN, ADVOCATE FOR R6)
THIS RFA IS FILED UNDER SECTION 96 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 03.10.2023
PASSED ON IA NO. 2 IN OS NO. 2245/2020 ON THE FILE OF
THE C/C. XXXV ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, BENGALURU ALLOWING IA NO.2 FILED UNDER ORDER
7 RULE 11(a) AND (d) OF CPC FOR REJECTION OF PLAINT.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though the matter is listed for admission by consent of
the parties, the matter is taken up for final disposal.
2. Heard Sri S.Kalyan Basavaraj and
Sri H.M.Vishwanath, learned counsels for the parties.
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3. The present appeal is directed against the order passed
by the learned Trial Judge on I.A.Nos.2 and 4, which are filed
under Order 7 Rule 11(a) and (d) read with Section 151 of the
Civil Procedure Code ('the CPC' for short) and I.A.No.4 is also
filed for the similar relief by defendant Nos.1 to 3, 6 and 7,
respectively.
4. Both the applications are supported by affidavits. The
learned trial judge after entertaining the objections of the
plaintiff on the applications, came to the conclusion that there
is no cause of action for the suit and the suit is also barred by
the limitation and rejected the plaint.
5. Being aggrieved by the same, the plaintiff has preferred
the present appeal.
6. Sri S.Kalyan Basavaraj, learned counsel for the appellant,
reiterating the grounds in the appeal memorandum, contended
that the Trial Court ought not to have rejected the plaint on the
ground of want of cause of action and the question of limitation
for the simple reason that both the grounds were mixed
question of law and facts. Therefore, the impugned order has
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resulted in the miscarriage of justice and sought for allowing
the appeal.
7. Sri H.M.Vishwanath, Sri G.Raghunandan and
Sri M.Veeresh, learned counsels for the contesting respondents,
support the impugned order by contending that the cause of
action paragraph in the plaint in paragraph No.8 is vague and
the suit is filed belatedly in respect of the sale deed that has
been executed in the year 1956. Therefore, the learned Trial
Judge was justified in rejecting the plaint on the ground of want
of cause of action and as well as perse barred by limitation.
8. They also contend that the property mentioned in the 'B'
schedule to the plaint, is a non-existing property and therefore,
the grant of injunction by the learned Trial Judge for the entire
'A' and 'B' schedule property in the suit has resulted in
miscarriage of justice and the same has been taken note of by
the learned Trial Judge while passing the impugned order and
thus, sought for dismissal of the appeal.
9. Having heard the parties in detail, this court has perused
material on record. On such perused record it is seen that the
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question of limitation is mostly a mixed question of law and
facts.
10. In the case on hand, according to the plaint averments,
the sale deed executed by the Grand-Father of the plaintiff on
29.11.1956, did not convey the entire land in Survey No.89/1.
Even after all the alienations made by the Grand-Father of the
plaintiff, is taken into consideration, there remains 5 guntas of
land in Survey No.89/1 possessed by the joint family as is
mentioned in 'B' schedule property. Therefore, the plaint could
not have been rejected in respect of the land which has not
been sold.
11. Further, the cause of action paragraphs does make out a
case that what has been sold is 3 acres 30 guntas. Total extent
of the land in Survey No.89/1 measured more than 4 acres.
Even after all the alienations and encroachment, there remains
5 guntas of land according to the plaintiff. Therefore, an
enquiry is necessary by entertaining the written statement and
the parties are required to lead evidence to form a definite
opinion as to whether there was any remaining land in Survey
No.89/1 or not.
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12. Thus, question of cause of action and limitation being the
mixed question of law and facts, without holding an enquiry,
passing an order only on the averments made in the affidavits
and the objections in support of the applications and the
counter objections filed by the plaintiff has thus resulted in
miscarriage of justice seeking interference of this Court by
resorting into the power vested in this Court and Section 96 of
the CPC.
13. Accordingly, order is passed:
ORDER
i. Appeal is allowed.
ii. The impugned order on I.A.No.2 dated
08.07.2020 and I.A.No.4 dated
27.05.2022 are hereby set aside.
iii. The matter is remitted to the Trial Court
for fresh disposal in accordance with law.
iv. Parties are directed to appear before the
Trial Court without further notice on
20.01.2024.
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v. Having regard to the fact that the sale
deed is of the year 28.11.1956 and by
virtue of the present suit, the plaintiff is
laying claim, the Trial Court may expedite
the hearing of the suit and the parties
shall cooperate for the same.
vi. It is further made clear that this Court
has not expressed any opinion on the
merits of the case.
Sd/-
JUDGE
CH
CT: BHK
