Karnataka High Court
Sri Y Puttanna vs Sri Nagaraju on 13 July, 2023
Bench: H.P.Sandesh
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NC: 2023:KHC:24290
CRP No. 452 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CIVIL REVISION PETITION NO. 452 OF 2022 (IO)
BETWEEN:
SRI Y PUTTANNA
AGED ABOUT 71 YEARS
S/O LATE YELE NIRVANASHETTY
R/O NO.321, 14TH CROSS
2ND BLOCK, JAYANAGAR
BENGALURU -11
SINCE DEAD BY LR.
CHANDRIKA HONNAPPA
AGED ABOUT 66 YEARS
W/O DR H. HONNAPPA
NO.330 15TH CROSS
2ND BLOCK JAYANAGAR
BENGALURU -560 011
Digitally signed ...PETITIONER
by SHARANYA T
Location: HIGH (BY SRI. RAMESH CHANDRA.,ADVOCATE)
COURT OF
KARNATAKA AND:
1. SRI NAGARAJU
AGED ABOUT 70 YEARS
S/O LATE GULLAPPA
2. SRI MUNIRAMAIAH
AGED ABOUT 59 YEARS
S/O LATE GULLAPPA
3. SMT MUNIRATHNAMMA
AGED ABOUT 46 YEARS
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CRP No. 452 of 2022
W/O LATE GOVINDA
S/O LATE GULLAPPA
RESPONDENT No.1 TO 3 ARE
R/AT KURUDU
SONNENAHALLI GRAMA
BIDARAHALLI HOBLI
BENGALURU EAST TALUK
BENGALURU -560 049
4. THAYAPPA
AGED ABOUT 65 YEARS
S/O MUNIYAPPA
R/O KURUDU SONNENAHALLI VILLAGE
BIDARAHALLI HOBLI
BENGALURU EAST TALUK
5. SRI KRISHNAMURTHY
AGED ABOUT 46 YEARS
S/O VENKATANARAYANA
6. SMT SUBBALAKSHMI
AGED ABOUT 40 YEARS
W/O K BHASKAR
7. SMT PADMAVATHI
AGED ABOUT 36 YEARS
W/O K PRASAD
8. SRI N SATHYANARAYANA
AGED ABOUT 55 YEARS
S/O BULLABBAYE
9. SMT ANANTHALAKSHMI
AGED ABOUT 50 YEARS
W/O N SATHYANARAYANA
10. SRI RAMAKRISHNA
AGED ABOUT 38 YEARS
S/O N SATHYANARAYANA
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CRP No. 452 of 2022
11. SRI N VENKATESHWARA RAO
AGED ABOUT 34 YEARS
S/O N RAMA RAO
12. SRI N SUBBA RAO
AGED ABOUT 34 YEARS
S/O N RAMA RAO
13. SRI N SATHYANARAYANA
MAJOR IN AGE
S/O N VISHWANATHAN
14. SRI N VENKATESHWARA RAO
S/O N VISHWANATHAM
R/AT HOSKOTE CAMP
GANGAVATHI TALUK
RAICHUR DISTRICT
15. SMT SATHYAVATHI
W/O LATE N VISHWANATHAM
MAJOR IN AGE
16. RAMALAKSHMI
D/O LATE VISHNATHA
MAJOR IN AGE
17. SUNDARAMMA
D/O LATE N N VISHWANATHAM
MAJOR IN AGE
18. PADMAVATHI
D/O N VISHWANATHAM
MAJOR
RESPONDENTS 5 TO 18 ARE
R/AT HOSAKERE CAMP
GANGAVATHI TALUK
KOPPAL DISTRICT
19. K. SATHYANARAYANA
S/O K VENKATANARAYANA
AGED ABOUT 43 YEARS
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CRP No. 452 of 2022
HOSAKERE CAMP
GANGAVATHI TALUK
KOPPAL DISTRICT
...RESPONDENTS
(BY SRI. RAMESH CHANDRA, ADVOCATE)
THIS CRP IS FILED UNDER SECTION 115 OF CPC,
AGAINST THE ORDER DATED 11.08.2022 PASSED ON IA No.VII
IN OS No.512/2021 ON THE FILE OF THE IV ADDL. SR. CIVIL
JUDGE, BENGALURU RURAL DISTRICT, BENGALURU,
REJECTING THE IA No.VII FILED UNDER ORDER VII RULE 11(d)
OF CPC FOR REJECTION OF PLAINT.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This petition is filed challenging the order dated
11.08.2022 passed on I.A.No.VII in O.S.No.512/2021 by
the IV Additional Senior Civil Judge, Bangalore.
2. This matter is listed for admission. Heard the
learned counsel for the petitioner.
3. The challenge made in this revision petition is
for rejection of an application filed under Order VII Rule
11(d) of C.P.C. and the prayer made in rejection of plaint
under Order VII Rule 11(d) of C.P.C. and the same is
dismissed. Hence, the present revision petition is filed.
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CRP No. 452 of 2022
4. The main contention of the learned counsel
appearing for the revision petitioner is that originally the
property belongs to one Puttanna and he died on
30.09.2018 and subsequently a person claiming that he is
a GPA holder and he had sold the property vide sale deed
dated 13.09.1995. Hence, he has filed the suit in
O.S.180/2004, wherein he sought for the relief of
declaration to declare that the said sale deed was null and
void and after the trial, the trial Court decreed the suit.
Now, the plaintiff before the trial Court in
O.S.No.512/2021 seeking relief of declaration declaring
the impugned judgment dated 23.07.2018 and decree
dated 26.07.2018 passed by the II Additional Civil Judge,
Bangalore Rural District, Bangalore is nullity in the eye of
law as the said judgment was obtained by engine of fraud
and the same is not binding on these plaintiffs and
consequently, declared that the plaintiffs are the absolute
owners in possession and enjoyment of the suit schedule
property and also sought for the relief of permanent
injunction against the defendants. The defendants have
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filed an application before the trial Court under Order VII
Rule 11(d) of C.P.C. contending that suit is barred by
limitation. In support of the application, an affidavit was
filed contending that the plaintiffs are claiming right over
the property on the basis of alleged occupancy right in
LRF.No.2056/1961-62 and subsequent to alleged
occupancy right, the deceased - Puttanna and his brothers
have effected partition in the year 1971. When such being
the case in the year 1971, decree was granted and
declaring him as owner of the property. Admittedly, there
was a transaction during the year 1988 and the same was
not challenged in the present case. Hence, they cannot
maintain a suit as per Section 28 of the Limitation Act and
the rights are extinguished. The said application is resisted
by filing objection statements by the plaintiffs contending
that the decree obtained in O.S.No.180/2004 is fraud since
they are not parties to the said decree and said Puttanna
died on 30.09.2018. The very claim is based on the
decree. It is clear that the Court has already declared that
the sale deed executed on 13.09.1995 is not valid and
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when the plaintiffs are not parties to the sale deed. The
plaint is filed by the plaintiffs based on the occupancy right
which was granted in the year 1960-61 and the same has
to be adjudicated by conducting the trial. The trial Court
having heard the respective counsel based on the
pleadings under Order VII Rule 11(d) of C.P.C. and also
the statement of objections filed by the plaintiffs comes to
the conclusion that the Court cannot decide the issue
between the parties since both of them are claiming title.
The contention of the plaint in respect of the suit schedule
property the matter requires to be tried and without
conducting any trial in an application filed under Order VII
Rule 11(d) of C.P.C. cannot be decided and defence of the
defendants also cannot be considered in an application
under Order VII Rule 11(d) of C.P.C. It is settled law that
while considering an application under Order VII Rule
11(d) of C.P.C., the Court has to consider the averments
of the plaint and not the defence of the defendants and
the defence is immaterial. The Court has to look into the
averments of the plaint whether the same constitute the
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cause of action as well as whether the suit is barred by
limitation as contended by the defendants in the
application.
5. Having perused the plaint available in page
No.41, the specific averments are made in the plaint in
paragraph No.11 that upon filing of the application under
the provisions of Mysore Inams Abolition Act, 1954 (for
short 'the Act'), the Special Deputy Commissioner has
registered the case as No.2056/1961-62. In pursuant to
the fling of the said application, the Special Deputy
Commissioner for Inams Abolition taken the application for
hearing. On perusal of the material available on record The
Special Deputy Commissioner granted occupancy right
under Section 9(a) of the Act vide order dated 15.09.1961
in favour of Thoti Muniyappa @ Thoti Muneppa and the
copy of the said order is also produced before the Court
and also claims that the petitioner is none other than the
grandchildren of Muniyappa and based on the said grant
only they are claiming the right and when he specifically
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CRP No. 452 of 2022
pleaded in the plaint and no doubt also the defendants are
also filed suit in O.S.No.180/2004 and they also obtained
the decree and there is a decree of declaration in their
favour in respect of the property and also in the cause of
action specifically mentioned in paragraph No.19 with
regard to making an application and also mutation and
other revenue entries made and also categorically stated
that the decree is obtained fraudulently in
O.S.No.180/2004. The said aspect has to be decided only
after the trial and the disputed fact cannot be decided in
an application filed under Order VII Rule 11(d) of C.P.C.
and whether the suit is barred by limitation or not? and
the same is also mixed question of fact and law. Hence, I
do not find any merit in the revision to set aside the order
passed by the trial Court.
6. In view of the discussion made above, I pass
the following:
ORDER
The revision petition is dismissed.
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CRP No. 452 of 2022
Observation made by this Court shall not
influence the trial Court in considering the
matter on merits.
Sd/-
JUDGE
SSB
