Karnataka High Court

Smt Jayalakshmamma vs Smt. Venkatamma on 22 February, 2024

Author: Chief Justice

Bench: Chief Justice

                            1
                                              RFA 1491/2016

       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 22ND DAY Of FEBRUARY, 2024

                         PRESENT

THE HON'B LE MR.P .S. DINES H KUMA R, C HIEF J U ST ICE

                           AN D

     THE HON'BLE MR. JUSTICE T.G.SHIVASHANKARE GOWDA

               RFA NO.1491 OF 2016 (PAR)
BETWEEN:

1.      SMT JAYALAKSHMAMMA
        D/O. LATE. MUNIRAMASWAMAPPA
        W/O. LATE. SRINIVAS MURTHY
        AGED ABOUT 66 YEARS
        R/AT NO. 1/A, YELLACHENAHALLI
        KANAKAPURA MAIN ROAD
        BANGALORE 560 078

2.      SMT. RATHNAMMA
        W/O. LATE. CHANDRASHEKHAR
        AGED ABOUT 45 YEARS

3.      SMT. RASHMI
        D/O. LATE. CHANDRASHEKHAR
        R/AT VAJARAHALLI VILLAGE

4.      SRI. CHETAN KUMAR
        S/O. LATE. CHANDRASHEKHAR
        AGED ABOUT 29 YEARS

5.      SRI. SUNIL KUMAR
        S/O. LATE. CHANDRASHEKHAR
        AGED ABOUT 29 YEARS

6.      SRI. BYRANNA
        S/O. LATE. MUNIRAMASWAMAPPA
        SINCE DECEASED BY LR'S
        BROUGHT ON RECORD AS PER
        ORDER DATED 01.07.2022

6(a)    SMT.RAJAMMA
                              2
                                            RFA 1491/2016

       W/O LATE. BYRANNA
       AGED 55 YEARS

6(b)   SRI. SAMPATH KUMAR
       S/O LATE BYRANNA
       AGED MAJOR

6(c)   BHAVANESH KUMAR
       S/O LATE BYRANNA
       AGED MAJOR

       APPELLANTS NO. 2 TO 6, 6(a) TO (c)
       ARE R/AT VAJARAHALLI VILLAGE
       UTTARAHALLI HOBLI
       BANGALORE SOUTH TALUK
       BENGALURU - 560 062

       [AMENDED AS PER COURT
       ORDER DATED 01.07.2022]

7.     SMT. SHARADHAMMA
       D/O. LATE MUNIRAMASWAMAPPA
       W/O. R. NARSIMHA MURTHY
       AGED ABOUT 62 YEARS,
       R/AT NO. 125/2, DR. AMBEDKAR
       MEDICAL COLLEGE ROAD
       OPP. GOVERNMENT SCHOOL
       KAVAL BYRASANDRA
       R.T. NAGAR POST
       BANGALORE 560 032

8.     SMT. BHAGYAMMA
       W/O. LATE. GOPAL
       AGED ABOUT 44 YEARS

9.     SRI. YOGESH KUMAR
       S/O. LATE. GOPAL
       AGED ABOUT 25 YEARS


10.    SMT. RAJINI
       D/O. LATE. GOPAL
       W/O. SUBRAMANI
       AGED ABOUT 23 YEARS
                           3
                                          RFA 1491/2016

11.   SRI. MANJUNATH GOWDA
      S/O. LATE. MUNIRAMASWAMAPPA
      AGED ABOUT 56 YEARS

      APPELLANT NOS.8 TO 11 ARE
      VAJARAHALLI VILLAGE
      UTTARAHALLI HOBLI
      BANGALORE SOUTH TALUK
      BANGALORE - 560 062

12.   SRI. NAGESH
      S/O. LATE. MUNIRAMASWAMAPPA
      AGED ABOUT 54 YEARS
      R/AT AT NO.259, BALAJI LAYOUT
      VAJARAHALLI VILLAGE
      UTTARAHALLI HOBLI
      BANGALORE SOUTH TALUK
      BANGALORE - 560 062

13.   SMT. GIRIJAMMA
      D/O. LATE. MUNIRAMASWAMAPPA
      W/O. ASHWATHAPPA
      AGED ABOUT 53 YEARS
      R/AT NO. 42, KUNDANA VILLAGE
      DEVANAHALLI TALUK
      BANGALORE RURAL TALUK
      BANGALORE - 562 110

14.   SMT. BHAGYAMMA
      D/O. LATE. MUNIRAMASWAMAPPA
      W/O. APPANNA, AGED ABOUT 51 YEARS
      R/AT NO.1, OPP. CANARA BANK
      VISWANATHA PURAM
      DEVANAHALLI TALUK
      BANGALORE RURAL TALUK
      BANGALORE - 562 110

15.   SRI. VENUGOPAL
      S/O. LATE. MUNIRAMASWAMAPPA
      AGED ABOUT 48 YEARS
      R/AT VAJARAHALLI VILLAGE
      UTTARAHALLI HOBLI
      BANGALORE SOUTH TALUK
      BANGALORE - 560 062
                              4
                                          RFA 1491/2016

16.    SMT. PUSHPAVATHI
       D/O. LATE. MUNIRAMASWAMAPPA
       W/O. PRABHU REDDY
       AGED ABOUT 46 YEARS
       R/AT NO. 10, KHM ROAD,
       R.T. NAGAR, BANGALORE-560 032

17.    SMT. JANAKI
       D/O. LATE. MUNIRAMASWAMAPPA
       W/O. LATE. K. NAGRAJ
       AGED ABOUT 44 YEARS
       R/AT DODDAGATHIKENABE
       HOSKOTE TALUK, BANGALORE
       RURAL DISTRICT
       BANGALORE - 562 114

18.    SRI. PRAKASH
       S/O. LATE. MUNIRAMASWAMAPPA
       SINCE DECEASED BY LR.
       BROUGHT ON RECORD AS PER
       COURT ORDER DATED 01.07.2022

18(a) SMT.ASHA PRAKASH
      W/O LATE PRAKASH, AGED MAJOR
      R/AT VAJARAHALLI VILLAGE
      UTTARAHALLI HOBLI
      BANGALORE SOUTH TALUK - 560 062

       [AMENDED AS PER ORDER
       DATED 01.07.2022]                ...APPELLANTS

(BY SRI.G.S.KANNUR, SR. ADV. FOR
    SRI. K. NATARAJ, ADV.)

AND:

SMT.VENKATAMMA
W/O. LATE. MUNIRAMASWAMAPPA

SINCE DEFENDANT NO. 01 IS DEAD
HER LEGAL HEIRS ARE ARRAYED
AS PARTIES AS PLAINTIFFS

1.     SMT. PISTA BAI
       W/O. H. BHAVARLAL
       AGED ABOUT 50 YEARS
                           5
                                               RFA 1491/2016

     R/AT NO. 12, MUTHYALAMMA
     COIL STREET, CIVIL STATION
     BANGALORE

2.   SMT. GEETHA DEVI SHAH
     W/O. K. K. SHAH
     AGED ABOUT 71 YEARS
     R/AT NO. 17/1A
     ALI ASKER ROAD CROSS
     BANGALORE 560 052                ... RESPONDENTS

(BY SRI.SRINIVASAN RAGHAVAN V., SR. ADV. FOR
    SRI. PRASHANTH V. G., ADV. FOR R2;
    VIDE ORDER DATED 31.07.2023 SERVICE OF
    NOTICE TO R1 IS DISPENSED WITH)

       THIS RFA IS FILED UNDER SECTION 96 OF CPC.,
AGAINST THE ORDER DATED 12.4.2016 PASSED ON IA NO.2
IN OS NO.8205/2013 ON THE FILE OF THE III ADDL. CITY
CIVIL AND SESSIONS JUDGE, BENGALURU CITY (CCH NO.25).
ALLOWING THE IA NO.2 FILED UNDER ORDER 7 RULE 11
(b)(c) OF CPC., TO REJECT THE PLAINT.

     THIS RFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT   ON 09.01.2024 AND COMING ON FOR
PRONOUNCEMENT      OF    JUDGMENT    THIS   DAY,
T.G.SHIVASHANKARE     GOWDA   J., DELIVERED  THE
FOLLOWING:


                     JUDGMENT

In this appeal, the plaintiffs have challenged

the order dated 12.04.2016 passed on I.A.No.2

dated 12.04.2016 filed by defendant No.3 under

Order VII Rule 11(b) and (c) of CPC in

O.S.No.8205/2013 on the file of the III Additional

City Civil and Sessions Judge, Bengaluru City (CCH

No.25) (for brevity 'the Trial Court').

2. For the sake of convenience, parties shall be

referred as per their status before the Trial Court.

3. Brief facts of the case are, the lands bearing

Sy.Nos.49 and 50/2 measuring 9 acres 3 guntas

situated at Vajarahalli village also known as

Byannapalya, Uttarahalli Hobli, Bangalore South

Taluk, is the suit schedule property.



        3.1.    One     Munibyregowda              and     his     wife

Venkatamma            have        two       sons         by      name

M.Muniramaswamappa                and     M.Lakshmanamurthy.

The     suit    schedule     property           was     acquired    by

Munibyregowda in the year 1944. After his demise,

the property was succeeded to his wife and two

sons. Muniramaswamappa was married to

Venkatamma (defendant No.1); they begot children

by name Jayalakshmamma (plaintiff No.1),

M.Chandrashekar, Sharadamma (plaintiff No.4),

M.Byranna (plaintiff No.3), M.Gopal, M.Manjunatha

Gowda (plaintiff No.6), M.Nagesh (plaintiff No.7),

Girijamma (plaintiff No.8), Bhagyamma (plaintiff

No.9), Venugopal (plaintiff No.10), Pushpavathi

(plaintiff No.11), Janaki (plaintiff No.12) and

M.Prakash (plaintiff No.13). M.Chandrashekhar and

M.Gopal are dead and represented by plaintiff

No.2(a) to (d) and plaintiff No.5(a) to (c). Plaintiff

No.13 is dead and represented by his legal

representatives.

3.2. The plaintiffs have prayed for the following

reliefs:

"a) Directing the defendant No.1 to effect partition by metes and bounds with respect to suit schedule property by delivering and putting the plaintiffs in possession of their 1/13th share each;

b) Declaring that the sale deed 1-08-1961 registered 8 NOV 2013 as registered as Document No. 2370/61 - 62 of Book-1,

Volume No. 252 at pages 182-186, in the office of the Sub-Registrar, Bangalore South Taluk as illegal and hence not binding on the share of the Plaintiffs in the suit schedule property;

c) Declaring that the sale deed dated 22-09-

1978 registered as Document No. 3651/78- 79 in the office of the Sub-Registrar, Bangalore South Taluk as illegal and non-est in the eye of law and hence not binding on the share of the Plaintiffs in the suit schedule property;

d) Grant such other order/s that this Hon'ble Court be pleased to grant including the costs of the above suit in the facts and circumstances of the case, in the interest of justice and equity."

3.3. It is further case of plaintiffs that their

grand-mother Venkatamma and their father

Muniramaswamappa have executed a sale deed on

01.08.1961 in favour of defendant No.2 in respect of

11 acres 33 guntas of land in Sy.Nos.49/1, 49/2,

49/3 and 50/1 to purchase a Chevrolet car. At the

time of alienation, plaintiff Nos.1 to 7 were born.

Plaintiff Nos.8 to 13 were born on 01.08.1961. The

sale was not for the benefit of joint family or for the

legal necessity. Hence, it is not binding on the

plaintiffs.

3.4. Defendant No.2 has sold the suit schedule

property in favour of defendant No.3 on 22.09.1978.

Munibyregowda died intestate leaving behind his

legal representatives and no member of the family

has any individual or separate right over the suit

properties. The suit schedule property has been

jointly enjoyed by all the members of the family.

They were always informed that they have a share in

the property and at right time, they will be given

their legitimate share. Whenever the issue

regarding sharing of the property to the plaintiffs

was brought up, defendant No.1 kept on postponing

on one or the other pretext. The plaintiffs were kept

in dark regarding alienation of the suit schedule

property and in the month of August 2013, when

they visited the suit schedule property, found

presence of some people. After obtaining copies of

revenue records and they learnt about illegal

alienation and execution of the sale deeds. The sale

deed dated 01.08.1961 is not for legal necessity, but

it was for buying a Chevrolet car, hence, such

alienation is illegal, void and subsequent sale deed

dated 22.09.1978 in favour of defendant No.3 is

nonest and will not confer any right in favour of the

purchaser. Accordingly, the plaintiffs have filed the

instant suit.

4. Defendant Nos.1 and 2 have remained

exparte. Defendant No.3 has contested the suit by

filing written statement on 07.04.2015. Defendant

No.3 also filed I.A.No.2 under Order VII Rule 11(b)

and (c) of CPC seeking rejection of the plaint on the

ground that suit is barred by limitation. The

application was opposed by the plaintiffs. The Trial

Court after considering the arguments of both sides

allowed the application and rejected the plaint on the

following grounds:

(i) Munibyregowda purchased the property on

30.11.1944 and allegedly, died in the year 1943; a

person died in the year 1943 cannot acquire the

property in the year 1944;

(ii) M.Lakshmanamurthy, second son of

Munibyregowda is not arrayed as party to the suit.

(iii) The land purchased in the year 1944 was

11 acres 33 gutnas, whereas the suit is filed in

respect of 9 acres 3 guntas, there is no pleading

regarding the remaining extent of land;

(iv) There is no pleading in the plaint that

plaintiffs are and were in possession and enjoyment

of the suit schedule property on the date of suit;

(v) Hand-written RTCs produced by the

plaintiffs are much earlier to the date of suit. The

computerized RTC extracts produced by them

indicate that 7 acres 39 guntas in Sy.No.49 and 1

acre 4 guntas in Sy.No.50/2 were already converted

and shown as 'Niveshana';

(vi) Plaintiff No.13/Prakash was aged 39 years

as on the date of suit; the alienation was in the year

1961 and 1978; even after attaining the age of

majority, he could have filed the suit within three

years. The suit filed in the year 2013 is barred by

limitation;

(vii) The suit schedule property was purchased

by Munibyregowda and his wife Venkatamma; after

their death, it becomes separate property of his two

sons viz., M.Muniramaswamappa and

M.Lakshmanamurthy. The plaintiffs will not inherit

the property after enactment of the Hindu

Succession Act, 1966;

(viii) The plaint pleading is a clever drafting

creating illusion of cause of action and it has to be

nibbed at the bud in the first hearing itself; and

(ix) There is no real cause of action for the suit.

5. Aggrieved by the order of rejection of the

plaint, plaintiffs have filed this appeal on various

grounds.

6. We have heard the arguments of

Sri.G.S.Kannur, learned Senior Counsel appearing on

behalf of Sri.K.Nataraj, learned Counsel for the

plaintiffs and Sri.V.Srinivasan Raghavan, learned

Senior Counsel on behalf of Sri.V.G.Prashanth,

learned Counsel for defendant No.3.

7. It is the contention of the learned Senior

Counsel for the plaintiffs that the suit schedule

property was acquired by Munibyregowda, it

becomes the ancestral property of the plaintiffs; his

wife Venkatamma and two of her sons will not get

any independent rights. In order to create a third

party interest, plaintiff Nos.1 to 7 were necessary

party as they are the members of the joint family.

They were assured of partition of the properties by

defendant No.1. Only in the month of August 2013,

when they insisted defendant No.1 to part with the

property, it was denied, which led the plaintiffs to

verify the revenue records, they learnt about the

sale deed dated 01.08.1961 in favour of defendant

No.2 and also sale deed dated 22.09.1978 in favour

of defendant No.3. Challenging both the alienations,

the plaintiffs are seeking their share of the

properties. The Trial Court has erroneously held that

the cause of action pleaded is illusionary. The second

son of Munibyregowda was not made as party even

though an application is filed to implead him and his

family members as one of the defendants. Whether

they were aware of the alienation and what is the

effect of filing of the suit in the year 2013

challenging the alienation of 1961 and 1978 is a

mixed question of law and facts, which cannot be

considered without framing of issues and then to

decide the case on merits.

7.1. To buttress his arguments, learned Senior

Counsel has relied upon the following judgments of

the Hon'ble Apex Court:

(i) (2001) 6 SCC 110 - Nawal Kishore Tulara -vs- Dinesh Chand Gupta and Others;

(ii) (2006) 5 SCC 658 - Balasaria Construction (P) Ltd. -vs- Hanuman Seva Trust and others;

(iii) AIR 2023 SC 5516 - Kum.Geetha, daughter of late Krishna and Others -vs- Nanjundaswamy and Others.

8. Per contra, learned Senior counsel for

defendant No.3 has contended that the alienation in

favour of defendant No.1 was on 01.08.1961 by the

father of the plaintiffs viz., Muniramaswamappa. His

mother Venkatamma, represented her minor son

M.Lakshmana Murthy. Defendant No.3 has

purchased the suit property from defendant No.2 on

22.09.1978. After alienation, the sale deed dated

01.08.1961 was not challenged by either of them.

There is no pleading in the plaint that the plaintiffs

are in possession of the suit schedule property being

the members of the joint family till filing of the suit.

Contrary material is placed by them indicating that

the suit schedule property was converted for non-

agricultural purpose and defendant No.3 is in

possession and enjoyment of the property since

1978. The suit is filed in the year 2013 i.e., after 35

years of alienation, in favour of defendant No.3 and

after 53 years of alienation in favour of defendant

No.2 is hopelessly barred by time. There is no proof

to show that the plaintiffs learnt about the alienation

in the year 2013. The property was acquired by

Munibyregowda, who died intestate; his wife and two

sons have acquired property under Section 8 of the

Hindu Succession Act, 1966, which becomes their

individual properties. The plaintiffs have no legal

right to seek partition. The Trial Court has rightly

taken into consideration these aspects and allowed

the application filed by defendant No.3 rejecting the

plaint and he supported the impugned order.

8.1. In support of his arguments, learned

counsel has relied upon the following judgments:

1) Raghwendra Sharan Singh VS. Ram Prasanna Singh (Dead) by LRs. (2020) 16 SCC 601

2) M/s. Durga Projects and Infrastructure Pvt.

Ltd., VS. Sri S. Rajagopala Reddy and Others (ILR 2019 KAR 4739)

3) Patil Automation Private Limited and Ors. VS. Rakheja Engineers Private Limited ( AIR 2022 SC 3848)

4) Smt. D. Rani VS. Sri. Krishnappa and Others. (CRP 284/2020) (Karnataka High Court)

5) Mallamma and Others VS. Mallegowda and others (ILR 2022 Karnataka 992)

6) Dilboo (Smt) (Dead) LRs and Others versus Dhanraji (Smt) (Dead) and Others ((2000) 7 SCC 702.

7) Commissioner of Wealth Tax, Kanpur and Others VS. Chander Sen and Others ((1986) 3 SCC 567)

8) Yudhishter Vs. Ashok Kumar ((1987) 1 SCC

9) Mallika and Others Vs. Chandrappa and Others (ILR 2007 KAR 3216)

9. We have given our anxious consideration to

the arguments addressed on behalf of both parties

and perused the records.

10. The point that arises for our consideration

is:

(i) Whether the impugned order in rejecting the plaint is erroneous and calls for our interference?

11. The relationship between the plaintiffs and

defendant No.1 is not in dispute. It is the specific

case of the plaintiffs that they are in joint possession

and enjoyment of the suit schedule property, no

doubt was created for them as the suit schedule

properties are vacant lands and defendant No.1 was

promising to part with the property as and when

demanded; only in the month of August 2013, when

defendant No.1 denied the partition, plaintiffs have

verified the records and learnt about the alienation in

favour of defendant Nos.2 and 3. Therefore, they are

before this Court.

12. The contention of defendant No.3 is that

the suit property was acquired by Munibyregowda in

the year 1944. After his death, his wife and two

sons acquired the property under Section 8 of the

Hindu Succession Act. The alienation in favour of

defendant No.2 on 01.08.1961 was in the individual

capacity of the wife and children of Munibyregowda.

During their life time, they did not challenge the said

alienation. Plaintiff Nos.8 to 13 were not born when

alienation took place. Plaintiff Nos.1 to 7 even

though were born, they have not challenged the

alienation within three years after attaining the age

of majority. The suit being filed in the year 2013

i.e., after 53 years of alienation, is hopelessly barred

by time and clever drafting is made to circumvent

the point of limitation and cause of action is

illusionary in nature.

13. It is an undisputed fact that while

considering the application under Order VII Rule 11

of CPC, the Court has to read only the averments

made in the plaint in order to ascertain whether

there is any cause of action for the suit or the suit is

barred under any provision of law. If the Court is of

the impression that such reading of plaint creates

any cause of action and the question of limitation is

a bundle of mixed question of law and facts, the

Court has to decide whether the plaint is to be

retained or rejected.

14. In Nawal Kishore Tulara (supra), the

Hon'ble Apex Court while considering insufficiently

stamped document being admitted in evidence laid

own the manner in which the impounding of the

document under the Stamps Act and the correctness

of exercise of jurisdiction. This judgment will not

come to the aid of the plaintiffs.

15. In Balasaria's case (supra), the Hon'ble

Apex Court while considering the matter with regard

to rejection of plaint where suit appears from the

statement in the plaint to be barred by any law has

distinguished the concept of rejecting the plaint as

barred by law and also barred by limitation. The

Hon'ble Apex Court has also considered the dismissal

of the suit by the High Court by referring the merits

of the case. At para-4 of the said judgment, the

Apex Court referring to the judgments in (i)

N.V.Srinivasa Murthy -vs- Mariyamma- (2005)

5 SCC 548 (ii) Popat and Kotecha Property -vs-

State Bank of India Staff Assn. - (2005) 7 SCC

510 has discussed about the proposition that Order

VII Rule 11 of CPC is not applicable in a case where

question has to be decided on the basis of fact that

the suit was barred by limitation. The point as to

whether the words "barred by law" occurring in

Order VII Rule 11 of CPC cannot include the suit

being "barred by limitation" was not specifically dealt

with in either of these two judgments cited above.

15.1. The Hon'ble Apex Court has also

discussed that the statement made in the plaint

without addition or subtraction must show that it is

barred by any law to attract the application under

Order VII Rule 11 of CPC. The Hon'ble Apex Court

has also considered whether 'barred by law' under

Order VII Rule 11 of CPC would also include the

ground that it is barred by law of limitation. At para-

8 it has specifically held as under:

"8. After hearing counsel for the parties, going through the plaint, application under Order 7 Rule 11(d) CPC and the judgments of the trial court and the High Court, we are of the opinion that the present suit could not be dismissed as barred by limitation without proper pleadings, framing of an issue of limitation and taking of evidence. Question of limitation is a mixed questions of law and fact. Ex facie in the present case on the reading of the plaint it cannot be held that the suit is barred by time. The findings recorded by the High Court touching upon the merits of the dispute are set aside but the conclusion arrived at by the High Court is affirmed. We agree with the view taken by the trial court that a plaint

cannot be rejected under Order 7 Rule 11(d) of the Code of Civil Procedure."

(emphasis supplied)

16. In Kum.Geetha's case (supra), the Hon'ble

Apex Court while considering the principle underlying

the 'rejection of plaint' under Order VII Rule 11 of

CPC and also legality of the rejection of the plaint in

part, referring to the suit filed for declaration and

partition that the possession of joint family

properties was never barred and the defendants

filing an application under Order VII Rule 11 of CPC,

four years after the institution of the suit and the

property was sold way back in 1919 and no

declaratory relief was sought against such alienation,

plaint rejection by the High Court under Order VII

Rule 11 of CPC was held to be erroneous by referring

to the judgment in Dahiben -vs- Arvindbhai

Kalyanji Bhasusali (2020) 7 SCC 366.

16.1. The Hon'ble Apex Court has laid down

that the plaint has to be construed as it stands,

without addition or subtraction of words. If the

allegations in the plaint prima facie show a cause of

action, the Court cannot embark upon an enquiry

whether the allegations are true in fact. If on a

meaningful reading of the plaint, it is found that the

suit is manifestly vexatious, without any merit and

does not disclose a right to sue, the Court would be

justified in exercising the power under Order VII

Rule 11 of CPC. The Hon'ble Apex Court in simple

terms held that the true test is first to read the plaint

meaningfully and as a whole, taking it to be true,

upon such reading, if the plaint discloses a cause of

action, then the application under Order VII Rule 11

of CPC must fail.

16.2. At para-10 of the judgment, the Hon'ble

Apex Court has held as under:

"10. The High Court committed an error by examining the merits of the matter. It pre-judged

the truth, legality and validity of the sale deed under which the Defendants No. 4 to 14 claim title. This is not to say that the Plaintiffs have any less burden to prove their case or even that their case is probable. Simply put, the High Court could not have anticipated the truth of the averments by assuming that the alleged previous sale of the property is complete or that it has been acted upon. The approach adopted by the High Court is incorrect and contrary to the well-entrenched principles of considering an application under Order VII Rule 11, CPC. Under these circumstances, we set aside the judgment and the order passed by the High Court and dismiss the application under Order VII Rule 11, CPC, and restore the suit even with respect to properties mentioned under Schedule A of the Plaint."

17. Now adverting to the authorities relied

upon on behalf of defendant No.3 in Raghwendra

Sharan Singh's case (supra), the Hon'ble Apex

Court while dealing with gift deed, which is not

denied nor challenged, held that the averments

made in the plaint and the bundle of facts stated in

the plaint is a clever drafting and the plaintiff has

tried to bring the suit within the period of limitation

which, otherwise is barred by limitation and upheld

the rejection of the plaint. In the case on hand, the

plaintiffs have made a clear statement that the cause

of action arises in the month of August 2013, they

are in joint possession of the suit schedule property,

they were not aware of the alienation of the year

1961 or 1978, they sought a declaratory relief that

such alienation is not binding on their rights and

sought for partition. Hence, the settled law which

refers to the gift deed is not helpful to the

defendants.

18. In M/s. Durga Projects and

Infrastructure Pvt. referred supra, this Court with

reference to the cause of action pleaded in the plaint

in the year 2005 and suit was filed in the year 2017

held that under such circumstances, since the suit is

not filed within three years from the date of cause of

action, plaint can be rejected under Order VII Rule

11 of CPC. In the instant suit, the cause of action

pleaded and suit filed is in the same year and

therefore, the said principle is not helpful to

defendant No.3.

19. In Patil Automation Pvt.Ltd. (supra),

the Hon'ble Apex Court was considering the rejection

of the plaint under Order VII Rule 11 of CPC for non-

compliance of Section 12A of the Commercial Courts

Act, 2015. Section 12A of the said Act is a

mandatory provision, unless it is complied, plaint is

not maintainable. The said principle is not applicable

to the case on hand.

20. Defendant No.3 has also relied upon the

judgment of this Court in C.R.P.No.284/2020 dated

09.12.2021, wherein a Co-ordinate Bench of this

Court has held that a person who is born after

alienation of the property has no legal right to

challenge the same. This judgment is relied as

against plaintiff Nos.8 to 13, who were not born at

the time of alienation; in respect of plaintiff Nos.8 to

13, plaint cannot be rejected in part in the light of

the settled principle in the case of Kum.Geetha

(supra).

21. In Mallamma (supra), a Co-ordinate

Bench of this Court held that in a suit for partition

though the settled legal proposition that issue of

limitation is normally a mixed question of law and

fact, in the said case, the averments made in the

plaint and the documents annexed, ex-facie show

that the suit is barred by limitation, hence, plaint

was rejected in that case. In the present case, the

plaintiffs have sought declaratory relief that the

alienation is not binding on them. Hence, the

principle laid down cannot be applied to the case on

hand.

22. In Dilboo's case (supra), the Hon'ble Apex

Court while considering the suit filed for recovery of

possession, the knowledge of alienation and

mortgagee created an interest in excess of the right

enjoyed by the parties held that period of limitation

attracts. In the present case, the plaintiffs have

specifically averred that they were not aware of the

alienation until 2013. Under such circumstances,

this judgment will not assist the defendant No.3.

23. The other judgments relied upon by

defendant No.3 pertain to tax issue in respect of a

Hindu Undivided Family and also rent control

proceedings and they are of no assistance to

defendant No.3.

24. We have referred supra the facts of the

case and contentions of the plaintiffs and defendant

No.3. The principle laid down in the case of

Kum.Geetha (supra) is aptly applicable to the case

on hand. The plaintiffs have specifically pleaded the

cause of action arose in the month of August 2013;

they were unaware of the alienation. On a plain

reading of the plaint, it discloses the cause of action

and also the knowledge of the plaintiffs. Whether

truth or otherwise of such allegation, is a matter of

evidence and it cannot be adversely assumed or

presumed on the basis of alienation in the year 1961

and 1978. Hence, the facts pleaded by the plaintiffs

is a bundle of law and facts for which the parties

have to go for trial.

25. We have carefully considered ten grounds

recorded by the Trial Court. As we see from the

plain reading of the plaint, cause of action as well as

the limitation is a bundle of law and facts and the

Trial Court has made a pre-judgment on the strength

of written statement allegations made by defendant

No.3. The Trial Court has assumed certain facts that

plaintiff Nos.1 to 7 were aware of the alienation,

M.Lakshmana Murthy was not arrayed as party.

Out of 11 acres 37 guntas, the only issue regarding

9 acres 3 guntas is a matter of evidence. Whether

plaintiff Nos.1 to 13 were aware of the alienation in

order to challenge the same within three years are

the facts to be determined at the trial. Apart from

this, how the alienation affects the rights of minor

plaintiff Nos.1 to 7 and also whether the plaintiffs

have inherited the suit property under Section 6 or 8

of Hindu Succession Act, cannot be decided at this

stage. The Trial Court has passed the impugned

order referring the written statement and without

plain reading of the plaint. The impugned order

influenced by the averments made in the written

statement will not stand to its reasons and calls for

our interference. The appeal merits consideration.

In the result, the following:

ORDER

(i) The appeal is allowed;

(ii) The impugned order is set aside;

(iii) The matter is remitted to the Trial Court from the stage of pleadings. The Trial Court is required to provide opportunity to the parties to urge their claim, frame necessary issues, place evidence and to decide the case on merits in accordance with law without

being influenced by any of the observations made supra;