Mr. G.A. Suresh vs Smt. Rathnamma
2023 Latest Caselaw 3525 Kant

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                                                      NC: 2023:KHC:21193
                                                         CRP No. 151 of 2023




                          IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                              DATED THIS THE 20TH DAY OF JUNE, 2023

                                             BEFORE

                               THE HON'BLE MR JUSTICE H.P.SANDESH

                           CIVIL REVISION PETITION NO.151 OF 2023 (IO)

                   BETWEEN:

                   MR. G.A. SURESH,
                   AGED ABOUT 65 YEARS,
                   S/O LATE ANJINAPPA,
                   GARIDIGARAPALYA VILLAGE,
                   MADHURE HOBLI,
                   DODDABALLAPURA TALUK,
                   BANGALORE RURAL DISTRICT-561 203.
                                                                ...PETITIONER

                            (BY SRI MAHENDRA GOWDA C.R., ADVOCATE)

                   AND:

                   1.   SMT. RATHNAMMA,
                        AGED ABOUT 38 YEARS,
Digitally signed        D/O LATE MUNIYAPPA @ GADI MUNIYAPPA,
by SHARANYA T
Location: HIGH          R/AT KACHERIPALYA VILLAGE,
COURT OF                WARD NO 28, DODDABALLAPURA TOWN,
KARNATAKA
                        BANGALORE RURAL DISTRICT-561203.

                   2.   MR. SANJEEVA,
                        AGED ABOUT 45 YEARS,
                        S/O LATE MUNIYAPPA @ GADI MUNIYAPPA,
                        KANNAMANGALA VILLAGE,
                        MADHURE HOBLI,
                        DODDABALLAPURA TALUK,
                        BANGALORE RURAL DIST-561203.

                   3.   MR. RAJA @ RAJANNA,
                        AGED ABOUT 42 YEARS,
                        S/O LATE MUNIYAPPA @ GADI MUNIYAPPA,
                        KANANMANGALA VILLAGE,
                              -2-
                                      NC: 2023:KHC:21193
                                         CRP No. 151 of 2023




    MADHURE HOBLI,
    DODDABALLAPURA TALUK,
    BANGALORE RURAL DISTRICT-561203.
                                              ...RESPONDENTS

     THIS CRP IS FILED UNDER SECTION 115 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 18.01.2023
PASSED ON IA IN OS NO.74/2022 ON THE FILE OF THE
ADDITIONAL     SENIOR    CIVIL   JUDGE  AND    JMFC.,
DODDABALLAPURA DISMISSING THE IA FILED UNDER ORDER 7
RULE 11(d) R/W SECTION 151 OF CPC.

     THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:

                         ORDER

This matter is listed for admission today. Heard the

learned counsel for the petitioner.

2. In this revision petition, the order impugned is

rejection of the application filed under Order 7 Rule 11 of

CPC. The very contention of the learned counsel for the

petitioner is that this revision petitioner had purchased the

property vide sale deed dated 28.02.2004 and the very

contention before the Trial Court is that as per Section 6(1)

of the Hindu Succession Act, 1956, the daughter of

coparcener is barred from claiming share in any coparcener

property which is alienated before 20.12.2004. Hence,

invoked Order 7 Rule 11 of CPC to reject the plaint.

NC: 2023:KHC:21193 CRP No. 151 of 2023

3. This application was resisted by filing the

objection statement by the plaintiff contending that the suit

is filed for the relief of partition and separate possession in

respect of the suit schedule property. It is further

contended that without the trial, this application is not

maintainable. It is contended that the plaintiff had no

knowledge of the sale deed and the question of barred by

any law is mixed question of law and fact and the same has

to be considered during the course of trial.

4. The Trial Court having considered both the

grounds urged in the application and the statement of

objection, extracted the provision of Order 7 Rule 11 of

CPC and also taken note of the judgments reported in

(2018) 5 SCC 644 and (2020) 3 Indian Civil Cases

448 with regard to the factual aspects that when an

application is filed under Order 7 Rule 11 of CPC, the Court

has to look only into the averments of the plaint and not

the defence of the defendant. The Trial Court also taken

note of the Karnataka Amendment, which came into force

in 1994, wherein rights of the daughters are also protected

NC: 2023:KHC:21193 CRP No. 151 of 2023

and comes to the conclusion that the matter requires to be

tried and the same has to be determined at final stage and

not at the stage of considering the averments of the plaint

and rejected the application.

5. The main contention of the learned counsel for

the petitioner is that the amendment was brought in 2005

and the sale deed was made in 2004 i.e., prior to

Amendment Act 2005 and hence the very reasoning given

by the Trial Court is erroneous. The said contention cannot

be accepted. The learned counsel not disputes the fact that

Karnataka Amendment was made in 1994 and admittedly

the sale was taken place in 2004 and during the earlier

Karnataka Amendment, the rights of the daughters were

also protected. When such being the case, whether they

are entitled for share or not has to be adjudicated only

after trial. Hence, I do not find any error committed by the

Trial Court in rejecting the application filed under Order 7

Rule 11 of CPC. It is settled law that the Court has to look

only into the averments of the plaint and not the defence of

the defendant when an application is filed under Order 7

NC: 2023:KHC:21193 CRP No. 151 of 2023

Rule 11 of CPC and hence I do not find any merit in the

revision petition.

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

the following:

ORDER

The revision petition is dismissed.

Sd/-

JUDGE

MD