Karnataka High Court
Ashok S/O Gurappa Parutabadi vs Smt. Sumitrabai W/O R Somshekhar on 26 July, 2023
Bench: Rajendra Badamikar
-1-
CRP No.100008/2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 26TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
CIVIL REVISION PETITION NO.100008 OF2023
BETWEEN
1 . ASHOK S/O GURAPPA PARUTABADI
AGE. 63 YEARS, OCC. AGRICULTURE,
R/O. OPPOSITE SUVARNA TALKIES,
JAMKHANDI, TQ. JAMAKHANDI
DIST. BAGALKOT-587301
2 . JAGADISH S/O GURAPPA PARUTABADI
AGE. 59 YEARS, OCC. AGRICULTURE,
R/O. MAREGUDDI, TQ. JAMAKHANDI
DIST. BAGALKOT-587301
...PETITIONERS
Digitally
signed by
YASHAVANT
NARAYANKAR
(BY SRI. GIRISH A YADAWAD, ADVOCATE)
YASHAVANT
NARAYANKAR Date:
2023.07.26
16:55:14 -
0700
AND
1. SMT. SUMITRABAI W/O R. SOMSHEKHAR
AGE. 65 YEARS, OCC. RETD. GOVT. SERVANT
R/O.MAREGUDDI, TQ. JAMAKHANDI
NOW AT NEAR RTO OFFICE, VIJAYAPUR
DIST.VIJAYAPUR-586101
2. KUMAR GURAPPA ALIAS R.SUNIT
S/O RAMESH PARUTABADI
AGE. 20 YEARS, OCC. STUDENT,
R/O. C/O. N.VIJAYMURTHY,
NEAR SHIRA GATE TUMKUR,
DIST. TUMKUR-572101.
3. KUMARI NAMITA D/O RAMESH PARUTABADI
-2-
CRP No.100008/2023
AGE. 25 YEARS, OCC. STUDENT,
R/O. C/O. N.VIJAYMURTHY
NEAR SHIRA GATE TUMKUR
DIST. TUMKUR-572101
4. SMT. LAKKAWWA W/O ASHOK INAMADAR
AGE. 72 YEARS, OCC. HOUSEHOLD WORK,
R/O. GANG BAWADI,
NEAR POLICE PARADE GROUND,
VIJAYPUR, DIST. VIJAYPUR-586101
5. SMT. REKHA W/O TAMMANNA KEMBHAVI
AGE. 42 YEARS, OCC. HOUSEHOLD WORK,
R/O. MANUR, TQ. SINDAGI
DIST. VIJAYPUR-586128
6. SMT. SIDDAMMA ALIAS SUDHA
CLAIMIMNG TO BE THE WIFE OF
LATE RAMESH PARUTABADI
AGE. 38 YEARS,
OCC. HOUSEHOLD WORK,
R/O. MAREGUDDI, TQ.JAMKHANDI,
DIST. BAGALKOT-587301.
...RESPONDENTS
(BY SRI. A. R. PATIL, ADV., FOR R1;
R4 & R5 - SERVICE HELD SUFFICIENT;
R2, R3 AND R6 -DISPENSED)
THIS CRP IS FILED U/S 115 OF CPC PRAYING TO SET ASIDE
THE ORDER DATED 15.12.2022 PASSED BY THE ADDITIONAL
SENIOR CIVIL JUDGE, JAMKHANDI, ON I.A.NO.1 IN
O.S.NO.154/2021 AND ALLOW IA NO. 1 FILED BY THE
PETITIONERS BY REJECTING THE PLAINT IN O.S.NO.154/2021, IN
THE INTEREST OF JUSTICE.
THIS CRP HAVING BEEN HEARD AND RESERVED ON
20.07.2023 COMING ON FOR PRONOUNCEMENT, THIS DAY
COURT MADE THE FOLLOWING.
-3-
CRP No.100008/2023
ORDER
This revision petition is filed by defendants 1 and 2
under Section 115 of the Code of Civil Procedure, 1908 (for
short "CPC") challenging the order passed on I.A.No.1 in
O.S.No.154/2021 dated 15.12.2022 by the Additional Senior
Civil Judge, Jamakhandi.
2. The brief facts leading to the case are that the
plaintiff has filed a suit for partition and separate possession
of suit schedule properties. She has also sought for
declaration that she is the exclusive owner of suit schedule-A
property and it is her self-acquired property and sought for
cancellation of entries in the revenue records and also for
partition and separate possession of Schedule-B and
Schedule-C properties.
3. The suit is contested by the defendants by filing
written statement. After filing of written statement,
defendants 1 and 2 have filed I.A.No.1 under Order VII Rule
11 of CPC for rejection of the plaint. The said application was
contested by the plaintiff and the learned I-Additional Senior
Civil Judge vide order dated 15.12.2022 dismissed I.A.No.1
CRP No.100008/2023
filed for rejection of the plaint. Being aggrieved by this order,
this revision petition is filed.
4. Heard the arguments advanced by the learned
counsel for the petitioners herein and the learned counsel for
respondent No.1. The respondents 4 and 5 did not appear.
However, notice to respondents 2, 3 and 6 is un-served but
since no relief is claimed against them, notice to them is
dispensed with.
5. The learned counsel for the revision petitioners
would contend that the suit is clearly barred by law of
limitation as earlier suit filed in O.S.No.57/2009 was
dismissed for default on 31.01.2013 wherein the title of the
plaintiff was denied and she has admitted that the
defendants are in possession of the suit schedule properties
and hence, the suit is not filed within limitation period and as
such, it is asserted that the suit is clearly barred by law of
limitation. He would further place reliance on decision
reported in AIR 2019 SC 1430 (Raghawendra Sharan
Singh v. Ram Prasanna Singh (Dead) by Lrs.) and
judgment of the Hon'ble Supreme Court in Civil Appeal
CRP No.100008/2023
No.2717/2023 dated 13.03.2019 in the case of Ramisetty
Venkatanna and another v. Nasyam Jamal Saheb and
others. He would further assert that the Trial Court has not
appreciated these aspects in proper perspective and
dismissed the application. Hence, he would seek for allowing
the revision by exercising the revisional jurisdiction.
6. Per contra, learned counsel for respondent No.1
would contend that for rejection of plaint, the pleadings in
plaint alone are required to be considered. He would contend
that specific cause of action is pleaded and when the
defendants have not put forward any case of ouster and
admittedly the other suit properties being joint family
properties, the question of suit being barred by law of
limitation does not arise at all it is being a mixed question of
law and facts requires to be heard in detail. Hence, he would
contend that the Trial Court has properly appreciated this
aspect and rejected the application, which does not call for
any interference. Hence, he would seek for rejection of the
plaint.
CRP No.100008/2023
7. Having heard the arguments and perusing the
records, it is evident that the suit is filed claiming that land
bearing R.S.No.182 is plaintiff's self-acquired exclusive and
absolute property and sought for deletion of entries made in
revenue records and also sought for partition and separate
possession of Schedule-B and Schedule-C properties. There
is no dispute of the fact that the plaintiff has filed earlier suit
in O.S.No.57/2009 which was dismissed for default on
31.01.2013, which is specifically pleaded in the plaint.
However, no evidence is forthcoming to show that it is
dismissed under Order IX Rule 8 of CPC so as to assert the
bar.
8. First prayer is regarding declaring entire suit
schedule A land as self-acquired property of the plaintiff and
second relief is regarding partition in other joint family
properties. Admittedly, the defendants have not pleaded
ouster and it is not their case that the plaintiff has been
ousted from the suit schedule properties. Further, the
allegations regarding limitation are mixed question of law
and facts and the plaintiff, in plaint paragraph 8, has
specifically pleaded the cause of action in the month of
CRP No.100008/2023
October 2020. As observed above, the dismissal of
O.S.No.57/2009 does not have any relevancy.
9. Apart from that, the relief of partition is also
sought and suit for partition can be filed at any time.
Admittedly, no specific plea of ouster is put forward. Even if
plea of ouster is pleaded, that cannot be considered for
rejection of the plaint since the averments made in the plaint
alone are required to be considered. As such, the principles
enunciated in the above cited decisions, referred by the
learned counsel for the petitioner in the Raghwendra
Sharan Singh's case (supra) and Ramisetty
Venkatanna's case (supra), cannot be made applicable to
the facts and circumstances of this case, since the said facts
are entirely different. The plaint allegations does not
establish that the plaint is barred by any law at this stage
and under these circumstances, the learned Civil Judge is
justified in rejecting the application. Under such
circumstances, the question of interfering with the said order
of the learned Senior Civil Judge, does not arise at all and as
such, the revision petition being devoid of any merits does
CRP No.100008/2023
not survive for consideration. Accordingly, I proceed to pass
the following:
ORDER
The revision petition stands dismissed.
In view of disposal of the petition, pending
interlocutory applications, if any, do not survive
for consideration and are disposed of
accordingly.
Send a copy of this order to the Additional
Senior Civil Judge, Jamakhandi for information.
Sd/-
JUDGE
YAN
