Karnataka High Court
Yesumithra Sabanna vs Francis And Ors on 8 August, 2024
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NC: 2024:KHC-K:5803
CRP No. 200033 of 2024
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 8TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
CIVIL REVISION PETITION NO.200033 OF 2024
BETWEEN:
YESUMITHRA S/O SABANNA GURU,
AGE: 62 YEARS, CHANDULAL CHS LTD.,
WING-B, ROOM NO-13, 1ST FLOOR,
GOLD FIELD, DHARAVI, MUMBAI-400017.
...PETITIONER
(SRI YESUMITHRA SABANNA (PARTY-IN-PERSON)
AND:
1. FRANCIS S/O SABANNA GURU,
Digitally signed by AGE: 52 YEARS, R/O CHINTHNALLI,
RENUKA TQ. GURUMITKAL-585214,
Location: HIGH DIST. YADGIRI.
COURT OF
KARNATAKA
2. LALITHA W/O DAVID,
AGE: 64 YEARS,
R/O BEHIND AYUSH HOSPITAL,
M. HOSHALLI ROAD,
TQ. AND DIST. YADGIRI-585202.
3. ANAND S/O SABANNA GURU,
AGE: 58 YEARS,
R/O ROOM NO.004,
KANAMWAR NAGAR NO-4,
VIKHROLI (E), MUMBAI-400083.
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CRP No. 200033 of 2024
4. SHATHRAJ S/O SABANNA GURU,
AGE: 55 YEARS, ROOM NO.513,
MUKUND NAGAR, 'A' WARD,
DHARAVI, MUMBAI-400017.
5. SUGNYAN S/O SABANNA GURU,
AGE: 48 YEARS,
ROOM NO.504, SHASTHRI NAGAR,
CHS LTD., ''B'' WING, 5TH FLOOR,
DHARAVI, MUMBAI-400017.
...RESPONDENTS
(R1, R2 AND R5 ARE SERVED)
THIS CIVIL REVISION PETITION IS FILED UNDER
SECTION 115 OF THE CPC, 1908 PRAYING TO SET ASIDE THE
ORDER DATED 15.04.2024, PASSED IN O.S.NO.45/2022, BY
THE CIVIL JUDGE AND JMFC, YADGIR AND ALLOW THE
APPLICATION IA NO.3 OF 2022.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
ORAL ORDER
(PER: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE)
Heard the learned counsel appearing for the
petitioner.
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2. The petitioner is aggrieved by the rejection of
the application under Order 7 Rule 11(a) read with Section
151 of Code of Civil Procedure filed by defendant
No.2/petitioner. The suit is filed by the brother of the
present petitioner seeking partition and separate
possession. There is no dispute relating to the relationship.
The other siblings of the plaintiff are also made parties to
the suit proceedings. The suit is filed on the premise that
the property belongs to the father of the parties to the
proceedings.
3. One of the defendants took a stand that there is
a family settlement in the year 2013 to which the plaintiff
is a party to the said settlement. He submits that the
plaintiff being a signature to the family settlement, cannot
maintain a suit unless the family settlement is questioned.
He further submits that the suit is barred by limitation.
There is no cause of action to file a suit.
4. The Trial Court has rejected the application. The
Trial Court has concluded that the plaint cannot be
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rejected at this stage as the defence relating to the alleged
family settlement is to be adjudicated after the trial.
5. The petitioner who is a party-in-person before
this Court contended that the Trial Court has not
considered the judgments cited by the petitioner in the
proper perspective. He would submit that the suppression
of the family settlement by the plaintiff is abuse of the
process of the Court and because of the clever plaint
drafting, the plaint has not been rejected.
6. This Court has considered the contentions
raised at the bar.
7. Admittedly, the suit is filed for partition and
separate possession. The relationship of the parties is not
in dispute. Admittedly, the property belonged to father of
the petitioner and the respondents. The plaintiff in his
plaint has not disclosed anything about the alleged family
settlement. The alleged family settlement is not
registered. Defendant No.2/petitioner has set up a defence
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that the alleged family settlement is reduced into writing
and duly notarized before the notary and the plaintiff and
other defendants are signatories to the family settlement.
The Hon'ble Supreme Court has held that the family
settlement under certain circumstances does not require
registration. Whether the family settlement referred to by
the defendant is duly signed by the plaintiff or other
defendants or whether the family settlement does require
registration or not are the matters to be adjudicated at the
time of the trial.
8. The plaint averments do not disclose anything
about the family settlement. The suit is one for partition
and separate possession. The principle of law governing
rejection of the plaint is well settled. The Court has to look
into the averments made in the plaint alone and nothing
else to decide whether the suit is in time or barred by any
other law or whether the suit discloses cause of action or
not. Having gone through the averments made in the
plaint, this Court is of the view that the suit cannot be said
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to be barred by time or without cause of action as
contended by the petitioner. The Trial Court has
considered the application in proper perspective. It is
noticed that the Trial Court has imposed cost of Rs.500/-.
The order imposing cost is set aside. Under these
circumstances, this Court does not find any merit in this
petition. Hence, this Court passed the following:
ORDER
(i) The Civil Revision Petition is dismissed.
(ii) However, it is made clear that the dismissal of
the petition should not be construed as a finding
on the validity or otherwise of the alleged family
settlement. Whether the family settlement has
really taken place or not or whether the suit is
in time or not are to be adjudicated after
considering the evidence on record without
being influenced by the order passed by this
Court as well as the order rejecting the
application i.e., I.A.No.3 before the Trial Court.
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(iii) The parties shall co-operate for early disposal of
the suit.
(iv) All contentions are kept open.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
RSP
CT:PK
