Karnataka High Court
Sri. Doddakempaiah vs Smt. Sharadamma on 5 July, 2023
Bench: H.P.Sandesh
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NC: 2023:KHC:23077
CRP No. 245 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CIVIL REVISION PETITION NO. 245 OF 2023 (IO)
BETWEEN:
1. SRI. DODDAKEMPAIAH
S/O LATE VENKATAPPA
AGED ABOUT 74 YEARS
R/AT NO.2, VADAHALLI
MANCHANABELE DAM
TAVAREKERE HOBLI
BENGALURU SOUTH TALUK
BENGALURU-562 128
2. SMT. VARALAKSHMI
W/O THAYAPPA
D/O. DODDA KEMPAIAH
AGED ABOUT 54 YEARS
R/AT No.35, 4TH MAIN
GOPI SCHOOL ROAD
Digitally signed
by SHARANYA T MEENAKSHINAGAR
Location: HIGH KAMAKSHIPALYA
COURT OF BASAVESHWARA NAGARA
KARNATAKA
BENGALURU-560 079
...PETITIONERS
(BY SRI. SURESH S. LOKRE, SENIOR COUNSEL A/W.
SRI SHARAN N. MAJAGE, ADVOCATE)
AND:
1. SMT. SHARADAMMA
W/O RAMANJANEYA
D/O LATE CHIKKATHIMMAIAH
AGED ABOUT 61 YEARS
R/AT. GANGONDANAHALLI VILLAGE
SHANTHINAGARA
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DASANAPURA HOBLI
BENGALURU NORTH TALUK,
BENGALURU-562 123
2. SRI SHANATHARAJU
S/O LATE CHIKKATHIMMAIAH
AGED ABOUT 57 YEARS
R/AT SHANTHINAGARA VILLAGE
CHIKKANAHALLI DHAKLE
TAVAREKERE HOBLI
BENGALURU SOUTH TALUK
BENGALURU-562 130
3. SMT. SARASWATHI
W/O SRINIVASA
D/O LATE CHIKKATHIMMAIAH
AGED ABOUT 49 YEARS
R/AT VENKATARAYANAPURA
KORAMANGALA
BENGALURU-560 034
4. SRI PUTTESHA
S/O LATE CHIKKATHIMMAIAH
AGED ABOUT 57 YEARS
R/AT SHANTHINAGARA VILLAGE
CHIKKANAHALLI DHAKALE
TAVAREKERE HOBLI
BENGALURU SOUTH TALUK
BENGALURU-562 130
5. SMT. LAKSHMAMMA
W/O SRI BYLAPPA
D/O CHIKKATHIMMAIAH
AGED ABOUT 41 YEARS,
R/AT VASANTHAPURA VILLAGE
UTTARAHALLI HOBLI
BENGALURU SOUTH TALUK
BANGALURU-560 062
...RESPONDENTS
(BY SRI. N.SRIDHAR, ADVOCATE FOR R1 TO R5)
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CRP No. 245 of 2023
THIS CRP IS FILED UNDER SECTION 115 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 06.03.2023
PASSED IN O.S.NO.686/2022 ON THE FILE OF THE
ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, MAGADI,
REJECTING I.A.NO.2 FILED UNDER ORDER VII RULE 11(a) AND
(d) R/W. SECTION 151 OF CPC FOR REJECTION OF PLAINT.
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This matter is listed for admission. Heard the learned
senior counsel appearing for the petitioners/defendants and the
learned counsel appearing for the respondents/plaintiffs.
2. In this revision petition, the petitioners have
challenged the order of rejection dated 06.03.2023 passed on
I.A.No.II filed under Order 7, Rule 11(a) and (d) of CPC, in
O.S.No.686/2022 on the file of Additional Senior Civil Judge &
JMFC., at Magadi, Ramanagar District.
3. The factual matrix of the case of the respondents,
who are the plaintiffs before the Trial Court is that the suit
schedule property originally granted in favour of
Chikkathimmaiah and the respondents are the children of
Chikkathimmaiah. After the land was granted in favour of
Chikkathimmaiah, they are all cultivating the property and even
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partitioned the property orally. The petitioners/defendants
made a false representation before the revenue authorities and
mutated the revenue entries with respect to the land behind by
Shri Patel Thimmaiah @ Chikkathimmaiah and without their
consent and knowledge the revenue entries are changed. It is
also stated in paragraph No.10, the same was questioned
before the Assistant Commissioner. The Assistant
Commissioner directed the mother of these respondents to
approach the Civil Court.
4. It is also stated in the plaint that the portion of the
property was sold in favour of Shri. S.A. Ajij for their legal and
family necessities and they have not disputed the said sale and
claimed the title in respect of the remaining extent of land.
Hence, they have sought for the relief of declaration that the
plaintiffs are the owners of the suit schedule property and
directed the defendants to deliver the vacant possession of the
suit schedule property in favour of the plaintiffs and also sought
for an order that they have created a gift deed dated
08.03.2018, executed by defendant No.1 in favour of defendant
No.2 and the same is not binding on the plaintiffs.
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5. The defendants appeared and filed an application
under Order 7, Rule 11(a) and (d) of CPC, contending that the
suit schedule property is the ancestral property of defendant
No.1. The revenue entries of the suit schedule property
measuring 2 acres 12 guntas was mutated in the name of
defendant No.1 in the year 1993 vide mutation bearing No.IHC
No.13/1993-94 and also produced the documents to that effect
and the revenue entries are also standing in the name of the
defendants. The very document produced by the plaintiffs
reflects that defendant No.1 has rights over the land measuring
2 acres 12 guntas and Chikkakempaiah has rights over the land
to an extent of 38 guntas in Sy.No.14 as per IHC No.13/1993-
94. The mother of the plaintiffs had challenged the said
mutation and the direction was given to approach the Civil
Court and no document was produced to show that the illness
of plaintiff No.2 that he took treatment at NIMHANS for mental
illness and he was not in a position to file the present suit. The
said contention has to be rejected. Hence, the very suit is
barred by limitation in view of Article 58 of the Limitation Act.
The very plaint averments disclose that the plaintiffs had
knowledge about the rights of defendant No.1 over the suit
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schedule property and the same is not questioned. The RTCs
disclose the rights of S.A.Ajij for an extent of 1 acre 35 guntas
and 38 guntas respectively and the rights of Doddakempaiah
for an extent of 2 acres 12 guntas. Though Smt. Papamma
along with plaintiff Nos.2 and 4 sold her share, still her name is
wrongly appearing in the RTCs. It is contended in the affidavit
that the suit is also barred by limitation and there is no cause
of action to file a suit and only taking the advantage of stray
entries in the RTC and with a malafide intention of grabbing the
suit schedule property, the present suit was filed and the suit is
frivolous.
6. The plaintiffs filed their objections contending that
without any title they got transferred the property by creating
the revenue entries and contended that the property originally
belongs to Patel Thimmaiah @ Chikkathimmaiah, who died in
the year 1986. After his death, Smt. Papamma and plaintiffs
are in possession of the property acquired by their father. The
suit is required to be adjudicated by full fledged trial
considering the questions of law and the same is to be decided
only on the trial.
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7. The Trial Court having considered the grounds
urged in the application as well as the objections filed by the
plaintiffs formulated the points that whether the defendants
have made out grounds to reject the plaint as sought in the
application that the plaint does not disclose any cause of action
and whether the defendants have made out grounds to reject
the plaint as it is barred by law of limitation. These two points
are answered in the negative and coming to the conclusion that
the matter requires a full fledged trial. The issue of limitation is
a mixed question of law and facts. The disputed questions
cannot be decided in an application filed under Order 7, Rule
11(a) and (d) of CPC. The plaintiffs have stated the cause of
action in the suit in paragraph No.14 of the plaint for having
executed the gift deed by defendant No.1 in favour of
defendant No.2. On coming to know about the same only, they
have filed the suit. Being aggrieved by the said order, the
present civil revision petition is filed before this Court.
8. The learned senior counsel appearing for the
petitioners before this Court brought to the notice of this Court
that paragraph No.14 of the plaint, wherein, the very plaintiffs
have stated with regard to the direction given by the Assistant
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Commissioner to challenge the change of entry in the name of
the defendants and they have categorically stated that they
have sold the property to the extent of 1 acre 35 guntas in
favour of Shri. S.A. Ajij for their legal and family necessities.
The learned senior counsel would vehemently contend that
when they are having the knowledge of endorsement given by
the Assistant Commissioner ought to have filed a suit within
time and the same has not been considered. The Court has to
look into the very averments made in the plaint while
exercising the powers under Order 7, Rule 11(a) and (d) of
CPC, and there is no cause of action to file a suit.
9. Per contra, the learned counsel appearing for the
respondents would vehemently contend that no doubt they
have pleaded in paragraph No.10 of the plaint with regard to
issuance of endorsement and the mother died in the year 2021
and this suit was filed in the year 2022 after the death of the
mother. It is specifically pleaded with regard to the cause of
action and the cause of action arose when the gift deed was
executed by defendant No.1 in favour of defendant No.2. The
suit is not barred by limitation and the same is also a mixed
question of facts and law and the same has to be decided only
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after recording the evidence with regard to the knowledge and
when the same comes to the knowledge of the plaintiffs and
when defendant No.2 claims based on the gift deed executed
by defendant No.1, filed the suit.
10. Having heard the respective counsel and on perusal
of the material available on record and also the grounds urged
in the application as well as the statement of objections filed by
the plaintiffs, it is the claim of the plaintiffs that the property
was granted in favour of Patel Thimmaiah @ Chikka Thimmaiah
and they are the legal representatives of the said Thimmaiah.
The learned senior counsel for the petitioners disputes the
same that Patel Thimmaiah @ Chikka Thimmaiah is not one
and the same. The defendants in the application claim that the
suit schedule property is an ancestral property of defendant
No.1. They mainly relied upon IHC No.13/1993-94. There is a
dispute with regard to whether the grant was in favour of Patel
Thimmaiah or Chikka Thimmaiah, since the defendants also
disputes the same. When the relationship is disputed between
the parties, the same cannot be decided in an application filed
under Order 7, Rule 11(a) and (d) of CPC. No doubt, in
paragraph No.10, they have pleaded with regard to the mother
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had approached the revenue authorities and an endorsement
was given and not filed the suit immediately. The suit is filed in
the year 2022. Again, the question with regard to when the
plaintiffs come to know about the said endorsement and the
matter requires to be adjudicated by examining the witnesses
with regard to the knowledge of the plaintiffs regarding the
endorsement is concerned. Only they have stated an
endorsement was issued and also produced the document No.5,
and nothing is mentioned with regard to when it comes to their
knowledge and the mother is not a plaintiff before the Trial
Court and the Trial Court also while considering the said fact
into consideration come to the conclusion that it requires a
trial. The limitation point is also a mixed question of facts and
law.
11. The other contention is that there is no cause of
action. The plaintiffs in paragraph No.14, they have
categorically stated that they have sold the portion of the
property in favour of one Shri S.A. Ajij i.e., to the extent of 1
acre 35 guntas and they are claiming declaration in respect of
remaining properties. When they sought for an order of
declaration and possession, again, it is a disputed question.
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When the possession was disturbed i.e., also a mixed question
of facts and law. When such being the material available on
record, I do not find any error committed by the Trial Court in
dismissing the application in coming to the conclusion that the
matter involves the disputed facts and question of law. When
the issue involved between the parties is a mixed question of
facts and law, I do not find any error committed by the Trial
Court in dismissing the application filed under Order 7, Rule
11(a) and (d) of CPC and the matter requires to be tried.
12. In view of the discussions made above, I pass the
following:
ORDER
(i) The revision petition is dismissed.
(ii) The observations made in this order while
considering the petition shall not influence the
Trial Court in considering the matter on merits.
(iii) The Trial Court is directed to dispose of the
matter as expeditiously as possible.
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In view of dismissal of the petition, IA-1/2023 for stay
does not survive for consideration, the same stands disposed
of.
Sd/-
JUDGE
CP
