Sri Suvalal Jain vs Sri K N Puneeth
2023 Latest Caselaw 4729 Kant

                            1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 21ST DAY OF JULY, 2023

                          BEFORE

          THE HON'BLE MR. JUSTICE H.P. SANDESH

               M.F.A. NO.2082/2023 (CPC)

BETWEEN:

1.   SRI SUVALAL JAIN
     S/O. LATE NATHULAL JAIN,
     AGED ABOUT 72 YEARS,
     RAJARAJESHWARI JEWELLERS,
     PAWN BROKERS, NO.349,
     KUVEMPU ROAD, KENGERI,
     BENGALURU-560 060.

2.   SRI SURESHCHAND JAIN
     S/O. ROSHANLAL JAIN,
     AGED ABOUT 59 YEARS,
     SREE RAJALAKSHMI BANKERS
     NO.167, KUVEMPU ROAD,
     KENGERI,
     BENGALURU-560 060.

     ALSO RESIDING AT
     "SANYAM KUNJ", NO.778,
     2ND MAIN, 2ND CROSS,
     OPP. WATER TANK PARK,
     SATELLITE TOWN, KENGERI,
     BENGALURU-560 060.
                                            ... APPELLANTS

            (BY SRI RAJESWARA P.N., ADVOCATE)
                                 2



AND:

1 . SRI K.N. PUNEETH
    S/O. LATE K. NARAYANAPPA,
    AGED ABOUT 33 YEARS,
    R/AT NO.563,
    "RUKMINI NILAYA",
    MEGHALA BEEDHI,
    ANJANEYA TEMPLE ROAD,
    BENGALURU-560 060.

2 . SRI K.V. VINAYKUMAR
    S/O. K.N. VIJAYAKUMAR,
    AGED ABOUT 32 YEARS,
    R/AT NO.563,
    MEGHALA BEEDHI,
    NEAR RAJKUMAR CIRCLE
    KENGERI,
    BENGALURU-560 060.

3 . SRI BHARATH K.N.
    S/O. K.A. NAGARAJ,
    AGED ABOUT 31 YEARS,
    R/AT NO.177/A,
    2ND 'F' CROSS, 2ND STAGE,
    NAGARABHAVI,
    BENGALURU-560 072.

4 . KUM. KEERTHANA K.R.
    D/O. K.A. RAVINDRAKUMAR,
    AGED ABOUT 23 YEARS,
    R/AT NO.565, KENGERI
    (HOLENKERI), MEGHALA BEEDHI,
    NEAR RAJKUMAR CIRCLE,
    BENGALURU-560 060.

5 . SRI K.N. RAGHAVENDRA
    S/O. K.N. NARAYAN,
                             3



   AGED ABOUT 22 YEARS,
   R/AT NO.565, KENGERI
   (HOLENKERI), MEGHALA BEEDHI,
   NEAR RAJKUMAR CIRCLE,
   BENGALURU-560 060.

6 . KUM. K.N. HARISHITHA
    D/O. K.N. NARAYAN,
    AGED ABOUT 20 YEARS,
    R/AT NO.565, KENGERI
    (HOLENKERI), MEGHALA BEEDHI,
    NEAR RAJKUMAR CIRCLE,
    BENGALURU-560 060.

7 . SRI ANJAN KUMAR
    S/O. LATE RAMAKRISHNAPPA K.A.,
    AGED ABOUT 49 YEARS,
    R/AT NO.565, KENGERI
    (HOLENKERI), MEGHALA BEEDHI,
    NEAR RAJKUMAR CIRCLE,
    BENGALURU-560 060.

8 . SRI RAMESH
    S/O. LATE RAMAKRISHNAPPA K.A,
    AGED ABOUT 45 YEARS,
    R/AT NO.565, KENGERI
    (HOLENKERI), MEGHALA BEEDHI,
    NEAR RAJKUMAR CIRCLE,
    BENGALURU-560 060.

9 . SRI K.A. KADARAPPA
    S/O. LATE ANJANAPPA,
    AGED ABOUT 74 YEARS,

10 . SRI K. KIRAN KUMAR
     S/O. K.A. KADARAPPA
     AGED ABOUT 41 YEARS,
                              4



11 . SRI K. HEMANTH KUMAR
     S/O. K.A. KADARAPPA,
     AGED ABOUT 39 YEARS,

   RESPONDENT NOS.9 TO 11
   ARE R/AT NO.533,
   "MATRUSHREE NILAYA"
   BEHIND SOMESHWARA
   TEMPLE, MARATHHALI,
   BENGALURU-560 037.

12 . SRI K.A. NAGARAJ
     S/O. LATE ANJANAPPA,
     AGED ABOUT 71 YEARS,

13 . SRI K.N. SWAMY
     S/O. K.A. NAGARAJ,
     AGED ABOUT 42 YEARS,

14 . SRI K.N. RAGHAVENDRA
     S/O. K.A. NAGARAJ,
     AGED ABOUT 36 YEARS,

   RESPONDENT NOS.12 TO 14 ARE
   R/AT NO.34, LIG KHB COLONY,
   NEAR GANAPATHY TEMPLE,
   KUNIGAL, TUMKUR-572 130.

15 . SRI K.A. PARTHASARTHY
     S/O. LATE ANJANAPPA,
     AGED ABOUT 66 YEARS,
     R/AT NO.533,
     "MATRUSHREE NILAYA",
     BEHIND SOMESHWARA
     TEMPLE, MARATHHALI,
     BENGALURU-560 037.
                                5



16 . SRI K.A. RAVINDRAKUMAR
     S/O. LATE ANJANAPPA,
     AGED ABOUT 61 YEARS,
     R/AT NO.565,
     MEGHALA BEEDHI,
     NEAR RAJKUMAR CIRCLE,
     KENGERI,
     BENGALURU-560 060.

17 . SMT. GOWRAMMA
     W/O. C. KRISHNAPPA,
     AGED ABOUT 71 YEARS,
     R/O. ADAKAWALA VILLAGE,
     BAKTHARAHALLI POST,
     BELAVANGALA HOBLI,
     DODDABALLAPURA TALUK-561 204.

18 . SMT. K.A. LAKSHMAMMA
     W/O. MYLARAPPA,
     AGED ABOUT 69 YEARS,
     R/AT NO.3, BEHIND NEW
     KRISHNA TEMPLE,
     DODDABOMMASANDRA,
     VIDYARAYAPURA POST,
     BENGALURU-560 097.

19 . SMT. K.A. SUNANDA
     W/O. P. VENKATESH,
     AGED ABOUT 53 YEARS,
     R/AT NO.2433/3, 6TH 'A' MAIN,
     III CROSS, VINAYAKANAGAR,
     NEAR ROBIN THEATRE,
     BENGALURU-560 060.

20 . SRI K.N. GANGADHAR
     S/O. LATE NARASIMHAIAH,
     AGED ABOUT 71 YEARS,
                                6



21 . SMT. K.G. BRAMARAMBHA
     W/O. NARASIMHA
     AGED ABOUT 41 YEARS,

22 . SMT. K.G. LEELAVATHI
     W/O. SRINIVAS
     AGED ABOUT 33 YEARS,

23 . SMT. K.G. MAHALAKSHMI
     W/O. RAMAKRISHNAPPA,
     AGED ABOUT 35 YEARS,

24 . SRI K.N. VIJAYAKUMAR
     S/O. LATE NARASIMHAIAH,
     AGED ABOUT 62 YEARS,

    RESPONDENT NOS.20 TO 24 ARE
    R/AT NO.565, MEGHALA BEEDHI,
    NEAR RAJKUMAR CIRCLE,
    BENGALURU-560 060.

25 . SRI K.N. NARAYAN
     S/O. LATE NARASIMHAIAH,
     AGED ABOUT 56 YEARS,
     R/AT NO.565,
     MEGHALA BEEDHI,
     NEAR RAJKUMAR CIRCLE,
     BENGALURU-560 060.

26 . SMT. K.N. KAMALAMMA
     W/O. KRISHNAPPA,
     AGED ABOUT 66 YEARS,
     R/AT "CHAITRA NILAYA",
     JANATHA SITE,
     KUMBALAGODU POST,
     BENGALURU-560 074.
                             7



27 . SMT. RUKMINI
     W/O. LATE NARAYANAPPA,
     AGED ABOUT 63 YEARS,
     R/AT NO.565, MEGHALA BEEDHI,
     NEAR RAJKUMAR CIRCLE,
     BENGALURU-560 060.

28 . THE COMMISSIONER
     KARNATAKA HOUSING BOARD,
     CAUVERY BHAVAN,
     BENGALURU-560 009.

29 . THE COMMISSIONER
     BANGALORE DEVELOPMENT
     AUTHORITY
     KUMARA PARK (EAST)
     BENGALURU-560 020.
                                           ... RESPONDENTS
 (BY SRI M.SHIVAPRAKASH, ADVOCATE FOR C/R1 & R2 TO R6;
         NOTICE TO R7 TO R29 IS DISPENSED WITH)
      THIS M.F.A. IS FILED U/O.43, RULE 1(r) R/W. SECTION
151 OF CPC, AGAINST THE ORDER DT. 24.02.2023 PASSED ON
I.A.NO.1 IN O.S.NO.4731/2022 ON THE FILE OF THE LXVI
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
CCH-67, ALLOWING THE I.A.NO.1 FILED U/O.39, RULE 1 AND 2
OF CPC.
    THIS M.F.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT   ON    11.07.2023 THIS  DAY, THE   COURT
PRONOUNCED THE FOLLOWING:

                     JUDGMENT

Heard the learned counsel for the appellants-defendant

Nos.1 and 2 and learned counsel for the caveator-respondent

No.1 and 2 to 6.

2. The appellants, who are the defendant Nos.1 and 2

have filed this appeal challenging the order dated 24.02.2023

passed on I.A.No.1 in O.S.No.4731/2022 on the file of the LXVI

Additional City Civil and Sessions Judge, Bengaluru City, (CCH-

67), allowing I.A.No.1 filed under Order 39, Rule 1 and 2 of

C.P.C. and restraining them from encumbering or creating third

party interest or charge in respect of 50% of developed sites of

the schedule property.

3. The factual matrix of the case of the plaintiffs before

the Trial Court while seeking the relief of declaration is that

Sy.No.206 of Kengeri was owned by late Rangappa. The said

entire land was acquired under notification by Karnataka Housing

Board during 1998 and concluded on 22.04.2022. The father

and grand-father of plaintiffs' family have challenged the

acquisition notification before the High Court of Karnataka in

W.P.Nos.14063/1993, 17407/2000 and W.A.No.5533/1998 and

the matter was also taken before the Hon'ble Supreme Court of

India, at that time, defendant Nos.1 and 2 the pawn brokers and

local money lenders approached elder persons of the plaintiffs'

family with an assurance that they have contacts with advocates

and having knowledge about the Court proceedings and assured

to prosecute before the Hon'ble Supreme Court. The defendants

have collected amounts, litigation expenses and engaged

advocate in Hon'ble Supreme Court. Taking advantage of the

same, defendant Nos.1 and 2, in the interest of family members

of plaintiffs', played fraud and mischief and obtained General

Power of Attorney. Before the Hon'ble Supreme Court, an

application for withdrawal was filed by defendant Nos.1 and 2

and withdrawn the same by submitting Board Resolution dated

31.12.2021 on 50:50 rights. The defendant Nos.1 and 2 have

not brought the same to the notice of the family of plaintiffs and

the Government has taken decision as per the schedules offered

by BDA and KIDB, it is intensive document of scheme to the

owners, the plaintiffs' family is entitled to 50% of developed

land. In June 2022, the defendant No.24 started to disturb the

possession of undivided interest over the suit property.

Thereafter, the plaintiffs approached the Karnataka Housing

Board and on enquiry, they came to know the alleged

transaction that defendant Nos.1 and 2 by act of fraud against

the family members have created the transaction. The defendant

Nos.1 and 2 are making claim for allotment of developed 50%

share. The family of the plaintiffs is entitled to 50% of share

and it is necessary to restrain the defendant Nos.1 and 2 from

creating third party interest over the 50% developed sites.

4. This application was resisted by the defendant Nos.1

and 2 by filing objections contending that the suit itself is not

maintainable. It is contended that the plaintiffs cannot question

the sale deed executed by defendant Nos.3 to 23 in favour of

defendant Nos.1 and 2 on 02.03.2005 on the ground of fraud

and the executants of the sale deed have not questioned the

same. It is also contended that the suit of the plaintiffs is barred

by Limitation Act under Article 109. The plaintiffs have no right

over the suit schedule property, the frame of the suit is not

correct. Defendant Nos.1 and 2 based on sale deed dated

02.03.2005 as owners, who are in possession of the property

approached Karnataka Housing Board for securing benefit of

50:50 scheme and executed Memorandum of Agreement, the

defendant Nos.3 to 23 and plaintiffs have no right over the

schedule property and they did not claim any right under the

Board Resolution. The sale deed dated 02.03.2005 is binding on

defendant Nos.3 to 23 as well as plaintiffs. The reason for

execution of sale deed for 3 acres and power of attorney for 2

acres, 10 guntas have been explained. The plaintiffs have no

locus standi, the defendant Nos.1 and 2, who are entitled to

receive compensation even after acquisition of land, the plaintiffs

have not approached the Court with clean hands, they have not

made out prima facie case. The defendant No.24 also filed the

statement of objections reiterating that there was a sale deed

dated 02.03.2005.

5. The Trial Court, having considered the grounds urged

in the application and also the statement of objections, taken

note of the fact that there was a sale deed and also taken note

of the fact that, admittedly, the plaintiffs are not parties to the

sale deed dated 02.03.2005 and the defendant Nos.3 to 23 are

the parties to the said sale deed and they have not filed a suit

questioning the sale deed. The very contention of the plaintiffs is

that sale deed was obtained by fraud and misrepresentation and

the relief sought by the plaintiffs is for partition of allotment of

50% developed sites by holding that the sale deed dated

02.03.2005 is not binding and the defendant Nos.1 and 2 are

claiming their counter claim and also taken note of the fact that

sale deed is subsequent to acquisition and the SLP which was

filed before the Hon'ble Supreme Court was withdrawn. It is also

observed by the Trial Court that the said sale deed was not

brought to the notice of the Hon'ble Supreme Court and the

power of attorney is dated 04.03.2005, whereas the sale deed is

dated 02.03.2005 and there is a discrepancy in mentioning the

date in the sale deed and power of attorney and the sale deed is

in respect of 3 acres, wherein the power of attorney is only in

respect of 2 acres, 10 guntas.

6. The Trial Court also taken note of the fact that the

very sale deed is questioned by the plaintiffs and the plaintiffs

claim their share in the suit schedule property. Whether the sale

deed is binding on the plaintiffs, whether the sale deed is for

legal necessity are all matters to be decided during trial.

Regarding limitation is concerned, as per Article 109 of

Limitation Act, 12 years is prescribed from the date of taking

possession by the purchaser. In the present case, the alleged

sale deed came into existence after acquisition and by that time,

the land had vested with the State. Hence, the question of

taking possession by the purchaser is doubtful and Article 109

of the Limitation Act has no application to the case on hand.

Having made such observation, the Trial Court comes to the

conclusion that, when the suit is filed questioning the fraud and

misrepresentation by the defendant Nos.1 and 2, it requires trial

and prima facie, the plaintiffs have made out a case to grant the

relief of injunction and accordingly, the Trial Court granted the

relief of temporary injunction restraining the defendant Nos.1

and 2 from creating any third party rights. Hence, the present

appeal is filed before this Court.

7. Learned counsel for the appellants-defendant Nos.1

and 2 in his argument would contend that there is no dispute

that the property belongs to one Rangappa and the said property

was acquired by Karnataka Housing Board. It is also not in

dispute that the same has been questioned before this Court and

thereafter, the matter was also taken before the Supreme Court

and the same was withdrawn. But, the counsel would contend

that, in view of the sale deed executed in favour of defendant

Nos.1 and 2, the matter was taken before the Karnataka

Housing Board and Memorandum of Agreement i.e., 50:50

scheme was entered into between the parties and after 17 years

of sale, the present suit is filed questioning the sale deed and

Article 109 of the Limitation Act applies and all the documents

are standing in the name of the defendant Nos.1 and 2. The

counsel also would vehemently contend that Section 8 of the

Hindu Succession Act attracts and not Section 6 and the property

is a separate property and not an ancestral property.

8. The learned counsel for the appellants-defendant

Nos.1 and 2, in support of his argument, relied upon the

judgment of this Court in SRI G. NAGARAJU VS. MR. RAMESH

AND OTHERS passed in R.S.A.NO.1837/2017 dated 26th May

2023 and brought to notice of this Court Para Nos.29 and 31,

wherein this Court has discussed with regard to limitation and

doctrine of acquiescence.

9. The counsel also relied upon the judgment of the

Apex Court in UTTAM VS. SAUBHAG SINGH AND OTHERS

reported in (2016) 4 SCC 68 and brought to notice of this Court

Para No.15, wherein the Apex Court has discussed with regard to

Section 8 of the Hindu Succession Act, 1956 considering the

judgment in CWT VS. CHANDER SEN reported in (1986) 3

SCC 567 and also brought to notice of this Court Para Nos.18

and 19 i.e., operative portion of the judgment and contend that

the very suit itself is not maintainable.

10. Per contra, learned counsel for the caveator-

respondent No.1 and 2 to 6 would vehemently contend that the

sale deed is of the year 2005 and no dispute with regard to the

fact that already acquisition proceedings was initiated in the year

1998 by issuing 4(1) and 6(1) notification on 12.10.1990 and

the alleged sale deed is dated 02.03.2005 and power of attorney

is dated 04.03.2005. The counsel also would vehemently

contend that, it is not in dispute that very acquisition was

questioned before this Court and matter was pending before the

Hon'ble Supreme Court and the same was withdrawn. The

counsel would vehemently contend that the Trial Court also while

allowing the application given the reason that plaintiffs are not

the parties to the sale deed and allegation is also made that said

sale deed came into existence by playing fraud and

misrepresentation and whether the property is a joint family

property or not has to be decided only during trial and the very

contention that Section 8 of the Hindu Succession Act, 1956

attracts and not Section 6 cannot be decided in an application

filed under Order 39, Rule 1 and 2 of C.P.C. and the Court has to

see whether there is a prima facie case or not. It is also

contended that the Trial Court appreciated the facts and granted

the relief and the citations which have been relied upon by the

learned counsel for the appellants is on merits and not on

interlocutory application and in the appeal in

R.S.A.No.1837/2017 also, the evidence on record was

appreciated and the other judgment of the Apex Court is with

regard to merits of the case and the Court has to see whether

there is a prima facie case and balance of convenience in favour

of the defendants.

11. In reply to the arguments of the learned counsel for

the caveator-respondent No.1 and 2 to 6, learned counsel for the

appellants would vehemently contend that the very finding of the

Trial Court that property vested with the State is not correct. No

doubt, the acquisition proceedings was questioned, the very SLP

filed before the Hon'ble Supreme Court was withdrawn, in view

of the resolution passed by the Karnataka Housing Board. The

counsel would vehemently contend that Article 109 of the

Limitation Act squarely applies and the order passed in the writ

petition will not come to the aid of the respondents herein.

12. Having heard the respective counsel and also

considering grounds urged and the principles laid down in the

judgment (supra) relied upon by the learned counsel for the

appellants, the points that would arise for consideration of this

Court are:

(1) Whether the Trial Court has committed an error in granting an order of injunction allowing I.A.No.1 filed under Order 39, Rule 1 and 2 of C.P.C. and whether it requires interference of this Court?

(2) What order?

Point No.(1)

13. Having heard the respective counsel, it is not in

dispute that property bearing Sy.No.206 of Kengeri was owned

by late Rangappa. It is also not in dispute that the said entire

land was acquired under notification by Karnataka Housing Board

in the year 1998 and concluded on 22.04.2022, in view of

settlement arrived between the Karnataka Housing Board and

the original owners. It is also not in dispute that earlier in the

writ petition, the very acquisition was set aside by the learned

Single Judge and in writ appeal, the order of the Single Judge

was set aside and the same was questioned before the Hon'ble

Supreme Court and during the pendency of SLP, an arrangement

was made between the parties under 50:50 scheme with regard

to the property and withdrew the SLP. It is also the claim of the

plaintiffs that they are not the parties to the said sale deed and

the same is not disputed by defendant Nos.1 and 2 and the sale

deed is executed by defendant Nos.3 to 23 in favour of

defendant Nos.1 and 2.

14. It is the claim of the plaintiffs that they are also

entitled for a share and the relief sought in the plaint is also for

declaration to declare that the sale deed is not binding and the

same is obtained by defendant Nos.1 and 2 by playing fraud and

misrepresentation. In the plaint, it is also sought to pass the

judgment and decree against defendant No.24-Karnataka

Housing Board to apportion and allot 50% of the developed

property in land bearing Sy.No.206 and to pass permanent

injunction against defendant Nos.1 and 2 not to interfere or to

cause any act of interference with plaintiffs' undivided interest

and possession in the plaint schedule property.

15. Having perused the plaint, in Para No.3 it is

specifically pleaded that suit is for comprehensive relief of

declaration and partition and it is also pleaded with regard to the

fact that property originally belongs to Rangappa and he is no

more and his legal heirs are entitled for share. However,

defendant Nos.1 and 2 claim that defendant Nos.3 to 23 have

executed power of attorney in 2005 and the sale deed came into

existence subsequent to acquisition of the property. It is also

important to note that, in the plaint, it is also pleaded with

regard to limitation with regard to the date of knowledge i.e.,

date of knowledge is June 2022 and hence, the suit presented

for adjudication that the sale deed obtained by fraudulent

method and perpetuated fraud is well within the period of

limitation and the same is pleaded in the plaint.

16. The main contention of the learned counsel for the

appellants-defendant Nos.1 and 2 is that suit is barred by

limitation since, suit is filed after 17 years and Article 109 of the

Limitation Act applies and the same is a mixed question of fact

and law and whether the sale deed is obtained by playing fraud

and misrepresentation also to be considered by the Trial Court.

Admittedly, the plaintiffs are not parties to the sale deed and

property belongs to one Rangappa is also not in dispute.

Learned counsel appearing for the appellants would vehemently

contend that the plaintiffs are not entitled for share since,

Section 8 of the Hindu Succession Act, 1956 applies and not

Section 6 and the same is also a mixed question of fact and law

and the nature of property also to be decided after trial and in an

application filed under Order 39, Rule 1 and 2 of C.P.C., whether

the plaintiffs are entitled to a share cannot be determined but,

the fact that property belongs to one Rangappa is not in dispute.

The Trial Court also, while considering the application, taken

note of the fact that the plaintiffs are not the parties to the sale

deed and when the plaintiffs have pleaded with regard to fraud

and misrepresentation, the same is also a disputed fact which be

considered by the Trial Court while considering the matter on

merits.

17. The Trial Court also taken note of the fact that

before the Hon'ble Supreme Court, the defendant Nos.1 and 2

have not stated anything about the sale deed dated 02.03.2005

executed in favour of defendant Nos.1 and 2 by defendant Nos.3

to 23 and whether the sale deed is binding on the plaintiffs or

not is also a matter of trial and whether the sale is for legal

necessity or not are all matters to be considered by the Trial

Court during trial. Admittedly, the writ appeal was allowed and

the order of the learned Single Judge was set aside and the

notification of the Karnataka Housing Board was upheld and the

same was questioned before the Hon'ble Supreme Court. Hence,

the Trial Court comes to the conclusion that Article 109 of the

Limitation Act has no application and the same is also a mixed

question of fact and law and the same requires trial and

possession also to be ascertained when possession was

delivered.

18. Having considered the material on record, the Trial

Court comes to the conclusion that when the plaintiffs have

sought for the relief of declaration and partition, whether

plaintiffs are entitled to a share or not once again is a matter of

trial and hence, held that the plaintiffs have made out a prima

facie case since, defendant Nos.1 and 2 have not disputed the

fact that property originally belongs to the propositus of the

family one late Rangappa. When such being the case, I do not

find any error committed by the Trial Court in granting the relief

of temporary injunction restraining the defendant Nos.1 and 2

not to create any third party right in respect of the property

during the pendency of the suit. In other words, if the order of

temporary injunction is not granted and if any third party rights

are created, it would lead to multiplicity of proceedings, creating

right in favour of prospective purchasers. The Trial Court also

taken note of the fact that during the pendency of the suit,

defendant No.24 has executed the sale deed in respect of some

of the developed sites in favour of defendant Nos.1 and 2 and

the same is continued, it leads to multiplicity of proceedings.

19. No doubt, the learned counsel appearing for the

appellants-defendant Nos.1 and 2 relied upon the judgment of

the Apex Court with regard to whether Section 8 of the Hindu

Succession Act, 1956 attracts or Section 6 attracts, I have

already pointed out that the same is also to be considered during

the course of trial as to whether any right accrues in favour of

the plaintiffs and they are entitled to a share in the property has

to be decided only after considering the matter on merits by the

Trial Court analyzing the nature of the properties. No doubt, this

Court also in the judgment in R.S.A.No.1837/2017 held with

regard to law of limitation and doctrine of acquiescence, the

same is also a mixed question of fact and law and the same has

to be considered after trial and the judgments relied upon by the

learned counsel for the appellants are on merits and not with

regard to considering interlocutory application. Hence, the very

contention of the learned counsel for the appellants that suit is

barred by law cannot be decided at this stage. Therefore, I do

not find any error committed by the Trial Court in allowing the

application in I.A.No.1 and there is no merit in the appeal.

Accordingly, I answer point No.(1) as 'negative'.

Point No.(2)

20. In view of the discussions made above, I pass the

following:

ORDER

The appeal is dismissed.

Sd/-

JUDGE

ST