Karnataka High Court
Ms. K Pavithra vs M Kumar on 6 January, 2023
Bench: H T Prasad
-1-
RFA No. 89 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
REGULAR FIRST APPEAL NO. 89 OF 2020 (PAR/INJ)
BETWEEN:
1. MS. K PAVITHRA
D/O KUMAR
AGED ABOUT 25 YEARS
RESIDING AT CHIKKABELAGONDANAHALLI
HOSUR TALUK
KRISHNAGIRI DISTRICT
TAMILNADU-635109
Digitally PRESENTLY RESIDING AT NO.365
signed by C NEARS MUTHYALAMMA TEMPLE
MALATHI HEBBAGODI
BENGALURU SOUTH
Location:
BENGALURU-560099
High Court
of 2. MR SHIVARAJ
Karnataka S/O KUMAR
AGED ABOUT 21 YEARS
RESIDING AT CHIKKABELAGONDANAHALLI
HOSUR TALUK
KRISHNAGIRI DISTRICT
TAMILNADU-635109
PRESENTLY RESIDING AT NO.365
NEARS MUTHYALAMMA TEMPLE
HEBBAGODI
-2-
RFA No. 89 of 2020
BENGALURU SOUTH
BENGALURU-560099
...APPELLANTS
(BY SRI. GOPALAKRISHNAMURTHY C, ADVOCATE)
AND:
1. M KUMAR
S/O LATE MUNIYAPPA
AGED ABOUT 47 YEARS
R/AT C/O ANNAYAPPA
HUSKUR VILLAGE AND POST
NEAR MADDURAMMA TEMPLE
SARJAPURA HOBLI
ANEKAL TALUK
BENGALURU-560099
ALSO R/AT PANATHUR VILLAGE AND POST
VARTHUR HOBLI
BENGALURU EAST TALUK
BENGALURU-560 103
2. SARASWATHAMMA
W/O P M NAGARAJU
AGED ABOUT 60 YEARS
R/AT PANATHUR VILLAGE AND POST
VARTHUR HOBLI
BENGALURU EAST TALUK
BENGALURU-560103
3. P M MUNIRAJU
S/O LATE MARIYAPPA
AGED ABOUT 66 YEARS
R/AT PANATHUR VILLAGE AND POST
VARTHUR HOBLI
-3-
RFA No. 89 of 2020
BENGALURU EAST TALUK
BENGALURU-560103
4. P N ASHOK KUMAR
S/O LATE P N NARAYANASWAMY
AGED ABOUT 52 YEARS
R/AT PANATHUR VILLAGE AND POST
VARTHUR HOBLI
BENGALURU EAST TALUK
BENGALURU-560103
5. VIJAYALAKSHMI
W/O K N NARAYANASWAMY
AGED ABOUT 68 YEARS
R/AT DOOR NO.119
16TH B MAIN ROAD
4TH BLOCK
KORAMANGALA
BENGALURU-560034
6. CHETHAN
S/O K N NARAYANASWAMY
AGED ABOUT 39 YEARS
R/AT DOOR NO.119
16TH B MAIN ROAD
4TH BLOCK
KORAMANGALA
BENGALURU-560034
7. D MUNIYAPPA
S/O LATE DODDANARAYANAPPA
AGED ABOUT 66 YEARS
R/AT DOOR NO.119
16TH B MAIN ROAD
4TH BLOCK
KORAMANGALA
-4-
RFA No. 89 of 2020
BENGALURU-560034
8. RATHNAMMA
S/O LATE DODDANARAYANAPPA
AGED ABOUT 51 YEARS
R/AT DOOR NO.119
16TH B MAIN ROAD
4TH BLOCK
KORAMANGALA
BENGALURU-560034
9. ERROL FERNANDES
S/O C V FERNANDES
AGED ABOUT 57 YEARS
PROPRIETOR
FERNS ESTATES
AND DEVELOPERS
OFFICE AT NO.95
AMAR JYOTHI LAYOUT
OPP.AIRPORT ROAD
INTERMEDIATE RING ROAD
DOMLUR
BENGALURU-560071
...RESPONDENTS
(BY SRI. S.N.HATTI AND SRI V.S.VENKATESHA GOWDA,
ADVOCATES FOR R2: SRI VIR ANTHONY BRITTO, ADVOCATE
FOR R9: NOTICE TO R1, 3 AND 4 SERVED AND
UNREPRESENTED: NOTICE TO R5 TO R8 DISPENSED WITH)
RFA FILED UNDER SECTION 96 R/W ORDER XLI RULE 1
OF CPC, AGAINST THE ORDER DATED 01.06.2019 PASSED IN
OS.NO.2266/2014 ON THE FILE OF THE XII ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BENGALURU CITY, DISMISSING
THE SUIT FOR PARTITION AND SEPARATE POSSESSION AND
PERMANENT INJUNCTION.
-5-
RFA No. 89 of 2020
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the plaintiffs under Order XLI
Rule 1 of Civil Procedure Code challenging the order dated
01.06.2019 passed by the XII Additional City Civil Judge,
Bengaluru City, in O.S.No.2266/2014, whereby the plaint
has been rejected under Order 7 Rule 11 of Civil Procedure
Code. Consequently, the suit is also dismissed.
2. For the sake of convenience, the parties are
referred to as per their rankings before the trial court.
3. The brief facts of the case are that the plaintiffs
are the daughter and son of defendant No.1. Defendant
Nos. 2 to 9 are the subsequent purchasers of the suit
schedule property. One Kumarappa was the propositus of
the family and he died leaving behind two sons by name
Munishamappa and Muniyappa. Munishamappa died
without any issues and Muniyappa died leaving behind his
only son, i.e., defendant No.1. Plaintiff Nos. 1 and 2 are
RFA No. 89 of 2020
the daughter and son of defendant No.1 through his wife
Nirmala. The said Munishamappa and Muniyappa
purchased the suit schedule property under the registered
sale deed dated 06.07.1969. The said property was
purchased out of the joint family nucleus and as such the
suit schedule property is a joint family property amenable
for partition. Munishamappa and first defendant have sold
6 guntas each of the land to defendant No.2 under a
registered sale deed dated 17.09.2003.
4. It is the further case of the plaintiffs that since the
suit schedule property is a joint family property, the
plaintiffs are entitled to a share in the suit schedule
property and despite repeated requests of the mother of
the plaintiffs, defendant No.1 has not effected partition.
Hence, they seek for 2/3rd share in the suit schedule
property.
RFA No. 89 of 2020
5. After service of summons, defendants appeared
before the Court and defendant Nos. 2, 3 and 9 have filed
written statements denying the plaint averments.
6. On the basis of the pleadings of the parties, four
issues were framed and issue No.3 is framed in respect of
the cause of action, which reads as under:
"3. Whether there is cause of action to file the suit?"
7. After framing the issues, the trial court has felt
that issue No.3 can be decided as a preliminary issue.
8. After considering the arguments of both the parties
the trial court has dismissed the suit on the ground that
there is no cause of action. Being aggrieved by the same,
plaintiffs have filed this appeal before this Court.
9. Learned counsel appearing for the plaintiffs has
contended that the specific case of the plaintiffs is that
Munishamappa and Muniyappa have purchased the suit
RFA No. 89 of 2020
schedule property out of the joint family nucleus and the
suit schedule property is available for partition. When the
plaintiffs demanded for partition of their share and the first
defendant has refused to give their share in the joint
family property, hence the cause of action arises to file the
suit.
10. He further contended that when they had claimed
that Munishamappa and Muniyappa have purchased the
suit schedule property on 06.07.1969 by joint family
nucleus, it is a question of fact which is to be decided by
adducing evidence. The trial court, only on the basis that
there is no recital in the sale deed regarding securing the
suit schedule property out of the joint family income, has
erred in coming to the conclusion that the suit schedule
property is not an ancestral property and plaintiffs have no
right over the property, hence cause of action arises. In
support of his contention, he relied on the judgment of this
Court in the case of SMT.PRAMEELA N. vs.
RFA No. 89 of 2020
L.MAHADEVAIAH reported in 2017 (5) KCCR 473.
Hence, he sought for allowing the appeal.
11. Per contra, learned counsel appearing for
defendant No.9 has contended that Munishamappa and
Muniyappa have purchased the suit schedule property by
registered sale deed dated 06.07.1969, nowhere in the
sale deed it is mentioned that they have acquired this
property out of the joint family income. Since it is a self
acquired property for Muniyappa, after his death
defendant No.1 has the absolute right over the suit
schedule property. Munishamappa and first defendant
have sold 6 guntas each of the land to defendant No.2
under a registered sale deed dated 17.09.2003.
Defendant No.9 is the subsequent purchaser. Since the
suit schedule property is not a joint family property, the
plaintiffs have no right in the said property. Hence the
suit for partition is not maintainable and there is no cause
of action for filing the suit.
- 10 -
RFA No. 89 of 2020
12. He further contend that in the plaint there is no
specific pleading regarding when the right to sue has
occurred. The cause of action mentioned in the suit is
very bald. It is to harass the defendant they have filed
the suit. Therefore, the trial court has rightly rejected the
plaint. When the suit is manifestly vexatious and without
any merit and does not disclose the right to sue, the court
has the power to dismiss the suit under Order VII Rule XI
of Civil Procedure Code. In support of his contention, he
has relied on the judgment of the Hon'ble Apex Court in
the case of DAHIBEN vs. ARVINDBHAI KALYANJI
BHANUSALI (GAJRA) (D) THE LRs. & OTHERS (CIVIL
APPEAL No.9519/2019 dated 09.07.2020). Hence, he
sought for dismissal of the appeal.
13. Heard the learned counsel for the parties.
Perused the impugned order and the original records.
14. There is no dispute in respect of relationship of
the parties. It is not in dispute that Munishamappa and
- 11 -
RFA No. 89 of 2020
Muniyappa have purchased the suit schedule property by a
registered sale deed dated 06.07.1969. It is also not in
dispute that Kumar - defendant No.1 is the son of
Muniyappa and he sold the part of the suit schedule
property to defendant No.2 and defendant No.9 is the
subsequent purchaser.
15. The specific case of the plaintiffs is that
Munishamappa and Muniyappa have purchased the suit
schedule property out of the joint family nucleus and as
such the suit schedule property is a joint family property.
In paragraph 24 of the plaint the plaintiffs have specifically
pleaded that the plaintiffs' mother Nirmala on behalf of the
plaintiffs was demanding the partition and called upon the
defendant No.1 to effect the partition. Since he has
denied, the plaintiffs have filed the suit. The specific
pleading in the plaint is that Munishamappa and
Muniyappa have purchased the suit schedule property by a
registered sale deed dated 06.07.1969 out of a joint family
- 12 -
RFA No. 89 of 2020
nucleus. These facts have to be proved by adducing
evidence at the threshold, the suit cannot be dismissed.
On the basis of the sale deed, it cannot be decided that
the property is not purchased from the joint family
nucleus. The trial court has erred in coming to the
conclusion that it is a self acquired property for Muniyappa
without any evidence and it is unsustainable. The
plaintiffs have also pleaded in the plaint that defendant
No.1 has denied the share to plaintiff Nos. 1 and 2.
Therefore, they have filed the suit. Under these
circumstances, the matter requires to be decided after the
parties have adduced their evidence. This issue cannot be
decided as a preliminary issue. When the plaintiffs have
pleaded that Munishamappa and Muniyappa have
purchased the property by a registered sale deed dated
06.07.19679 with a joint family nucleus and the property
is sold by Kumar - defendant No.1 in favour of defendant
No.2, it is not binding upon the plaintiffs. The court can
dismiss the plaint under Order VII Rule 11 of Civil
- 13 -
RFA No. 89 of 2020
Procedure Code only when the court has come to the
conclusion that the suit filed is manifestly vexatious and
without any merit and it does not disclose a right to sue.
In the case on hand, there is a specific pleading that the
property purchased by Munishamappa and Muniyappa by a
registered sale deed dated 06.07.1969 by joint family
nucleus. This has to be proved by adducing evidence.
Therefore, the trial court has erred in dismissing the plaint
under Order VII Rule 11(a).
16. In view of the above, the appeal is allowed. The
order dated 01.06.2019 passed in O.S.No.2266/2014 is
seta side. The matter stands remitted back to the trial
court with a direction to dispose of the suit in accordance
with law.
It is made clear that the trial court is directed to
decide the suit without being influenced by the
observations made in the course of this order.
- 14 -
RFA No. 89 of 2020
Since the suit is of the year 2014, in the interest of
justice, the trial court is directed to dispose of the suit as
expeditiously as possible, at any rate, not later than eight
months from the date of receipt of a certified copy of this
order.
The parties are directed to co-operate for speedy
disposal of the matter.
In view of disposal of the main matter all pending
applications stand disposed of.
Sd/-
JUDGE
CM
