Karnataka High Court
Shivabasappa vs Shivamma on 26 July, 2023
Bench: H.P.Sandesh
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MSA No. 73 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS SECOND APPEAL NO. 73 OF 2021 (RO)
BETWEEN:
1. SHIVABASAPPA
S/O LT. K.B DODDAVEERAPPA
AGED ABOUT 56 YEARS,
RESIDING AT KUNDAKERE VILLAGE,
TERAKANAMBI HOBLI,
GUNDLUPETE TALUK
GUNDLUPETE DISTRICT.
PIN CODE - 571111.
...APPELLANT
(BY SRI. SHARATH S. GOWDA, ADVOCATE)
AND:
1. SHIVAMMA
Digitally signed
by SHARANYA T W/O LT. D. SHIVANANJAPPA,
Location: HIGH AGED 49 YEARS,
COURT OF
KARNATAKA
2. VIJAYAKANTA
W/O LT. D. SHIVANANJAPPA,
AGED 27 YEARS,
3. BELLAMMA
W/O LT K.B DODDAVEERAPPA,
AGED 73 YEARS,
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4. D. MAHESHA
S/O LT K.B DODDAVEERAPPA,
AGED 58 YEARS,
5. PARVATHAMMA
D/O LT K.B DODDAVEERAPPA,
AGED 63 YEARS,
6. LATHA
D/O LT K.B DODDAVEERAPPA,
AGED 53 YEARS,
7. SHIVANANJAPPA
S/O LT KONGALLAPPA,
AGED 58 YEARS,
8. PRAKASH
S/O LT KONGALLAPPA,
AGED 56 YEARS,
9. LOKESHA
S/O LT KONGALLAPPA,
AGED 53 YEARS,
ALL ARE RESIDING AT
KUNDAKERE VILLAGE,
TERAKANAMBI HOBLI,
GUNDLUPETE TALUK,
GUNDLUPETE DISTRICT.
PIN CODE - 571111.
...RESPONDENTS
(BY SRI. P. MAHESHA, ADVOCATE FOR R1 AND R2
R.3 TO R.9 ARE SERVED)
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MSA No. 73 of 2021
THIS MSA IS FILED UNDER ORDER 43I RULE 1(u) R/W
SEC.104 OF CPC, AGAINST THE JUDGMENT AND DECREE
DATED 18.03.2021 PASSED IN RA.No.44/2018 ON THE FILE OF
THE SENIOR CIVIL JUDGE AND JMFC, GUNDLUPET, ALLOWING
THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE
DATED 20.11.2018 PASSED IN OS.No.121/2014 ON THE FILE
OF THE PRINCIPAL CIVIL JUDGE AND JMFC, GUNDLUPET,
REMANDING BACK THE MATTER TO TRIAL COURT.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the appellant's counsel and also the counsel
appearing for the respondents.
2. This appeal is filed challenging the order passed in RA
No.44/2018 wherein, the appellate Court has set aside the
order passed by the trial Court dated 20.11.2018 allowing the
application filed under Order 7 Rule 11 and directed the parties
to appear before the trial Court and issue summons to the
defendant Nos.6 to 8 and trial Court also directed to dispose of
the case as early as possible.
3. The main contention of the counsel appearing for the
appellant before this Court that the trial Court has committed
an error in setting aside the order passed by the first appellate
Court and when the respondents have admitted the partition
dated 30.10.2000 and also in the plaint specifically pleaded
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that schedule 3 properties are allotted in favour of the
respondent herein, question of filing one more suit does not
arise and also the trial Court fails to take note of the fact that
in item No.4 also sought for relief of partition in respect of 4B
of the suit schedule properties without seeking for partition in
respect of all the joint family properties which are in part of the
suit schedule. The counsel also vehemently contend that the
plaintiffs are not seeking for re-partition on the ground that
partition dated 30.10.2000 is not an equitable partition are bad
in law or for such other reason. Admitting the partition dated
30.10.2000, the only case of the plaintiff is that she is not in
possession of the properties which were allotted to her husband
share and she is also making the claim in respect of the
properties purchased by defendant No.3 subsequent to the said
partition and this fact also not been considered by the appellate
Court and appellate Court committed an error in even allowing
the amendment of plaint neither remanded the matter on a
preliminary point as contemplated under Order 41 Rule 23,
whereas considered the appeal on merits and thereafter
reversed the finding of the trial Court coming to the conclusion
that it warrants the remand of the matter as required under
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Order 41 Rule 23-A of CPC that too after recording of the
evidence of plaintiffs, the appellate Court ought not to have
remitted the matter on a preliminary point holding rejection of
plaint is bad in law. The very approach of the appellant Court is
erroneous.
4. The counsel would vehemently contend that there are
substantive question of law, the judgment of the first appellate
Court in remanding the matter is contrary to Order 41 Rule 23A
of CPC and also whether reading of plaint averment makes out
any cause of action for continuation of suit and whether the
plaintiff is entitled for the relief as sought for in the light of the
plaint averments and whether part partition in respect of the
portion of the suit schedule property is permissible in law.
5. The counsel also in support of his argument relied
upon the judgment of the Apex Court in the case of SAYYED
AYAZ ALI Vs. PRAKASH G.GOYAL AND OTHERS reported in AIR
Online 2021 SC 375 wherein the Apex Court discussed in detail
regarding rejection of plaint. Trial Court while allowing the
application under Order 7 Rule 11 (d) granted liberty to plaintiff
to amend the plaint by seeking appropriate reliefs and paying
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court fee and proviso of Order 7 Rule 11 deals with situation
where time has been fixed by Court for correction of valuation
or for supplying of requisite stamp paper, proviso evidently
covers cases falling within the ambit of clauses (b) and (c) and
has no application to rejection of plaint under Order 7 Rule
11(d). Further, direction of amendment of plaint issued by trial
Court not justified.
6. The counsel also vehemently contend that the
appellate Court committed an error in allowing even
amendment application filed for seeking the amendment of
prayer in the suit and when the issue involved between the
parties with regard to only Order 7 Rule 11, the appellate Court
within its scope would have considered the case and even
considered the amendment, that is erroneous. The counsel also
would vehemently contend that, when the partition is admitted,
the suit is also barred by law under Article 110 by a person
excluded from a joint family property to enforce a right to share
therein and the limitation is only 12 years and also suit is
barred by limitation. The counsel would vehemently contend
that under Order 7 Rule 13 where rejection of the plaint does
not preclude the presentation of fresh plaint and rejection of
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the plaint on any of the grounds mention shall not of its own
force preclude the plaintiff from presenting the fresh plaint in
respect of the same cause of action and also no bar even to file
a fresh suit. But in the case on hand allowed for amend the
prayer and hence the very order passed by the trial Court in
setting aside the order passed under Order 7 Rule 11 is
erroneous and fails to consider the factual aspects of the case
in a proper perspective and even the trial Court also discussed
with regard to framing of additional issues and framed
additional issue No.1 and the additional issue No.2 along with
point No.1 and the trial Court ought not to have discussed the
same as additional issue No.1 as well as additional issue No.2
along with point No.1 and the very approach of the appellate
Court is erroneous and hence it requires interference.
7. Per contra, the counsel for the respondent would
vehemently contend that we are not disputing the fact that
there was a partition and the same is admitted, in the very
same partition the properties are allotted to the share of the
husband of the plaintiff is mentioned in Schedule-3 of the
plaint, but the fact is that when the partition was taken place in
2000, within a span of one month her husband passed away
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and hence in terms of the partition, parties have not acted
upon and properties were continued with the 3rd defendant and
the plaintiff rush back to her parents house on account of death
of her husband and out of the property which was allotted in
favour of her husband, the 3rd defendant had purchased i.e.
item No.4B out of the said income and also there is a specific
averment in the plaint with regard to the said fact and counsel
also brought to notice of this Court paragraph Nos.2, 3 and 4 of
the plaint, wherein categorically admitted the partition dated
30.10.2000, but claims that on account of death, properties
were not given to the plaintiff and also contend that they were
not separated on account of death of her husband from the
joint family and they continued as joint family members and
also in paragraph No.6 specific averment also made with regard
to valuing of property for seeking the relief and hence Court
has to look into the contents of the plaint, but trial Court
committed an error in not considering the plaint averment and
only taking note of the fact that there is an admission on the
part of the plaintiff that there was a partition rejected the plaint
and hence an appeal was filed and the appellate Court also has
rightly considered the averments made in the plaint and though
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discussed with regard to the additional issue Nos.1 and 2 along
with considering point No.1 not committed an error and comes
to the conclusion that matter requires to be tried and hence set
aside the order and remitted back the matter to consider the
same.
8. The counsel in support of his argument relies upon the
order passed by this Court in Civil Revision Petition
No.397/2019, wherein this Court discussed in detail with regard
to the very scope of Order 7 Rule 11 of CPC and Court has to
look into the material available on record particularly the
pleadings and also in paragraph No.20 taken note of the Court
has to look into the documents available on record and hence
the appellate Court has not committed an error and the
judgment is applicable to the case on hand.
9. Having heard the appellant's counsel and also the
counsel appearing for the respondents, it is not in dispute that
the appellant herein had filed an application under Order 7 Rule
11 on the ground that there was no cause of action, since
already there was a partition in the year 2000 and also brought
to the notice of the trial Court that there was a pleading in
paragraph No.2 itself that there was a partition in the year
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2000 and once they admitted that there was a partition,
question of filing one more suit for the relief of partition does
not arise. It is also case of the counsel that even the properties
which were allotted in favour of the husband of the plaintiff also
a document was executed and counsel also produced additional
document before this Court i.e. document of sale deed dated
12.7.2023, even after filing of the suit document was registered
and also counsel submits that relinquishment deed is also
executed on 2.1.2023 and when the parties have executed the
document even during the pendency of the suit, now they
cannot contend that they are also entitled for a share in respect
of 4B of the property and it is nothing but a greediness on the
part of the respondent herein.
10. Having considered the contention of the respondents
counsel that they have also not disputed the partition, while
considering an application filed under Order 7 Rule 11, the
Court has to look into the averments of the plaint and on
perusal of the plaint averments in paragraph No.2 plaintiff
specifically pleaded that in the presence of the panchayathdars
a partition was effected on 30.10.2000 and also details of
schedule in terms of the partition is also stated in paragraph
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No.2 and in paragraph No.3, pleaded with regard to the item
No.1 of the property in Schedule-3 and also reference was
made with regard to the dispute between the parties before the
Assistant commissioner and khata was not transferred. In
paragraph No.4 also specifically pleaded that immediately after
the partition dated 30.10.2000 her husband passed away on
25.11.2000 and hence they have not taken the possession of
the property which was allotted in favour of her husband but
specifically pleaded in the plaint that third defendant took the
possession of the said property and plaintiff started to live in
her parents house and out of the income of the said property,
the third defendant has purchased the property and hence
claimed the share in respect of 4B of item No.4 that she is also
entitled for the relief of partition in respect of the said property,
but also specifically pleaded that on account of death of her
husband, she has not been separated from the joint family and
the same is pleaded in paragraph No.5. When such averments
are made in the plaint, the trial Court ought not to have carried
away with the admission that there was a partition on
30.10.2000 and what happened subsequent to the partition has
been narrated in the plaint in paragraph Nos.3, 4 and 5 and
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appellate Court also having considered the reasoning, no doubt
the appellate Court discussed with regard to the amendment as
well as non joinder of necessary parties and the same was not
warranted while considering the application filed under Order 7
Rule 11 of CPC. But scope of an appeal when the application
was filed under Order 7 Rule 11 is limited, whether the
impugned order passed by the trial Court allowing the
application under Order 7 Rule 11 of CPC is correct or not and
instead of both counsel submits that an application is filed for
amendment, but in the order impugned though mentioned in
paragraph No.12 of the order of the trial Court with regard to
seeking of an amendment in the order, but that amendment
was not allowed in setting aside the order impugned and
counsel for the respondents submits that amendment was
allowed by passing a separate order and contention of the
appellant's counsel that ought not to have allowed that
amendment, but that order was not challenged before this
Court and the same has attained its finality and only grounds
urged in this appeal that amendment was allowed is erroneous
and only question before this Court in a Miscellaneous Second
appeal is with regard to raising of substantial question of law,
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the appellate Court ought not to have remanded the matter and
the same is contrary to Order 41 Rule 23A of CPC and reading
of the plaint averments makes out any cause of action for
continuation of suit and entitled for relief and when the scope
under Order 7 Rule 11 is limited, the Court has to look into the
averments of the plaint and when the plaint averments are
specific with regard to what happened after the said partition
and also possession was not delivered and possession was
continued with the other defendants and out of the said
income, the other property was purchased. These are all the
aspects of disputed facts and the same cannot be decided in an
application filed under Order 7 Rule 11 of CPC. Hence, I do not
find any error committed by the appellate Court in setting aside
the order passed by the trial Court in allowing the application
filed under Order 7 Rule 11 of CPC and only considering the
admission that there was a partition, the trial Court committed
an error.
11. I have already pointed out that the appellant has also
claiming right based on subsequent document and the
respondents dispute the very first document produced by the
appellant herein document dated 9.10.2022 and the same is in
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respect of one of the item of the property allotted in favour of
the husband of the plaintiff and when there is a dispute with
regard to the said fact, the appellant can raise contention
regarding document of 9.10.2002, whether the document is
executed or not, since the respondents are also disputed the
same and the same is also a disputed fact and the same cannot
be decided in an application filed under Order 7 Rule 11 of CPC.
12. The other contention that suit is barred under Article
110 of Limitation Act. No doubt on perusal of Article 110 by a
person excluded from a joint family property to enforce a right
to save therein, 12 years limitation is prescribed. But in the
plaint averment is very specific that though partition was taken
place, it has continued as joint family property and property
was also continued with the third defendant and out of that the
property which was allotted in favour of husband and the
income derived from the said property, property is purchased
and it is specific case of the plaintiff that though partition was
taken place and immediately after her husband passed away
within a span of one month and then she went to her parental
house. When such averments are made, the limitation starts
only when the exclusion becomes known to the plaintiff and the
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very exclusion is disputed in the plaint averments. Hence,
Article 110 will not comes to the aid of the appellant.
13. The counsel also relied upon the judgment of the
Supreme Court AIR Online 2021 SC 375 and no doubt the Apex
Curt in this judgment discussed with regard to the allowing of
an application under Order 7 Rule 11 amounts to a decree and
when an appeal is filed, amendment ought not to have been
allowed. But in the facts of the case on hand, it is very clear
that an application under Order 7 Rule 11 was considered only
based on the admission given by the plaintiff in the plaint that
there was a partition, but other averments with regard to
paragraph Nos.4, 5 and 6 in the plaint that parties have not
acted upon, has not been considered by the trial Court and
when such being the case and also I have already pointed out
that amendment has not been challenged in the Miscellaneous
Second Appeal allowing the amendment. When such being the
case, the judgment of the Apex Court also not comes to the aid
of the appellant. The appellate Court has not committed an
error in setting aside the order passed under Order 7 Rule 11
and remitted the matter to consider the same in view of the
averments made in the plaint with regard to whether entitled
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for a share as pleaded in paragraph Nos.4 and 5, since he
claims that he has not separated from the joint family and the
same also a disputed fact since she pleaded that immediately
after the death of her husband, she went and resided in her
parental house and not continued in the said joint family and
she is not excluded from the joint family and all disputed facts
has to be considered by the trial Court and hence, I do not find
any error committed by the trial Court in remitting the matter
for fresh consideration in view of the averments made in the
plaint particularly in paragraph Nos.3 to 7 of the plaint and
hence no merit in the Miscellaneous Second Appeal to set aside
the order passed by the trial Court.
14. In view of the discussions made above, I pass the
following
ORDER
The Miscellaneous Second Appeal is dismissed.
Sd/-
JUDGE
AP
