Karnataka High Court
Sri. B G Chandra Shekar vs Sri. B L Manjunath on 22 February, 2024
Author: Chief Justice
Bench: Chief Justice
1
RFA 2358/2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR.P. S.D INES H KUMA R, C HIEF J UST ICE
AN D
THE HON'BLE MR. JUSTICE T.G.SHIVASHANKARE GOWDA
RFA NO. 2358 OF 2023 (PAR)
BETWEEN:
SRI. B. G. CHANDRA SHEKAR
AGED ABOUT 44 YEARS
S/O LATE B.N.GANGADHARAPPA
R/AT NO.BEGUR VILLAGE
B.K.HALLI POST, JALA HOBLI
YELAHANKA TALUK
BENGALURU - 562 149 ...APPELLANT
(BY SRI.S.SREEVATSA, SR. ADV. FOR
SRI. S. D. N. PRASAD, ADV.)
AND:
1. SRI. B. L. MANJUNATH
AGED ABOUT 47 YEARS
S/O LATE B. N. LAKSHMAIAH
2. SRI. B. L. SUDESH
AGED ABOUT 42 YEARS
S/O LATE B. N. LAKSHMAIAH
BOTH ARE R/AT NO.BEGUR VILLAGE
B.K. HALLI POST, JALA HOBLI
YELAHANKA TALUK
BENGALURU - 562 149 ...RESPONDENTS
(BY SRI.AMIT ANAND DESHPANDE, ADV. FOR
SRI.E.VENKATARAME REDDY, ADV. FOR C/R1 & R2)
THIS RFA IS FILED UNDER SECTION 96 OF CPC, AGAINST
THE ORDER DATED 10.11.2023 PASSED ON I.A.NO.5 IN
2
RFA 2358/2023
OS.NO.812/2022 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE AND JMFC, DEVANAHALLI, ALLOWING THE I.A.NO.5
FILED UNDER ORDER 7 RULE 11(a) AND (d) READ WITH
SECTION 151 OF CPC, FOR REJECTION OF 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 10.11.2023 passed on I.A.No.5 dated
24.08.2023 filed by defendants under Order VII Rule
11(a) and (d) of CPC in O.S.No.812/2022 on the file of
the Prl. Senior Civil Judge and J.M.F.C, Devanahalli
(for brevity 'the Trial Court').
2. For the sake of convenience, parties shall be
referred as per their status before the Trial Court.
3. Plaintiff has filed the instant suit against the
defendants seeking declaration that he and
defendants are the joint owners of the property
bearing Sy.No.103, new Sy.No.103/3 to an extent of
35 guntas situated at Begur Village, Jala Hobli,
Yelahanka Taluk, Bangalore ('the suit schedule
property' for brevity) and for partition and possession
of half share on the ground that his father
B.N.Gangadharappa and father of the defendants viz.,
B.N.Lakshmaiah are the brothers; they were in joint
family; on 12.03.1991, there was a Panchayat Parikat
executed and the parties were enjoying their
respective shares. Thereafter, the registered Partition
Deed came into existence on 01.02.2016. Plaintiff's
father died on 31.12.2005 and defendants' father died
on 12.07.2020. The plaintiff is an advocate by
profession, he was forced to come back to the family
business after the death of his father. Plaintiff is
managing the family affairs under the supervision of
his uncle B.N.Lakshmaiah. The suit schedule property
is the adjoining land of plaintiff's land. The owner
expressed willingness to sell portion of the said
property. Plaintiff and his uncle B.N.Lakshmaiah have
equally contributed for sale consideration. Owner of
the suit property executed agreement and also the
Power of Attorney in favour of plaintiff, his mother and
B.N.Lakshmaiah jointly. Due to inconvenience, the
sale deed was obtained in the name of
B.N.Lakshmaiah on 12.10.2017. Thereafter, they
continued in joint possession of the suit schedule
property. After the death of B.N.Lakshmaiah, the
defendants being his children taking advantage of the
sale deed standing in the name of their father tried to
deny the share of the plaintiff. A Panchayat was
convened on 30.04.2022, where the defendants
refused to transfer half share in the suit schedule
property in favour of plaintiff. Feeling aggrieved,
plaintiff has filed the instant suit.
4. The defendants have opposed the suit by
filing the written statement. They have also filed
I.A.No.5 under Order VII Rule 11(a) and (d) read with
Section 151 of CPC seeking rejection of the plaint on
the ground that there was no cause of action and the
suit is barred by limitation. The said application is
opposed by the plaintiff.
5. The Trial Court has framed following points for
consideration:
1. Whether the defendants show that the plaint does
not disclose any cause of action and the suit is
barred by law and therefore, the plaint is liable to
be rejected as contended by them in their
I.A.No.5 dated 24.08.2023?
2. What order?
6. By the impugned order, the Trial Court has
recorded its findings in favour of the defendants and
allowed the application by rejecting the plaint.
Aggrieved, plaintiff has filed this appeal on various
grounds.
7. We have heard the arguments of
Sri.S.Sreevatsa, learned Senior Counsel appearing on
behalf of Sri.S.D.N.Prasad, learned Counsel for the
plaintiff and Sri Amit Anand Deshpande, learned
Counsel on behalf of Sri.E.Venkatarame Reddy,
learned counsel for the defendants.
8. It is the contention of the learned Senior
Counsel for the plaintiff that there was a Panchayat
Parikath on 12.03.1991, followed by a registered
Partition Deed on 01.02.2016. The suit schedule
property was acquired on 12.10.2017. The earlier
partition is nothing to do with the acquisition of the
suit property nor is it the case of the plaintiff that he
has acquired the property in the name of his uncle
B.N.Lakshmaiah by investing the entire amount so as
to attract the provisions of the Benami Transactions
(Prohibition) Act, 1988. The suit schedule property is
the adjoining property to plaintiff and his uncle's land.
For the convenience sake, sale deed was obtained in
the name of uncle of the plaintiff. During the life time
of his uncle, there was no difficulty, only after his
death, the defendants started troubling the plaintiff,
thereupon cause of action arose on 30.04.2022 and
the suit is filed for partition. Existence and non-
existence of joint family is immaterial. The question
of limitation is a mixed question of law and fact and
the Trial Court has wrongly held that the plaintiff is
required to challenge the earlier partition to seek
partition in the suit schedule property. Hence,
rejection of the plaint is erroneous and sought for
interference.
8.1. In support of said submissions relied the
following judgments in:
(i) Sri Marcel Martins -vs- M.Printer and Others -
(2012) 5 SCC 32;
(ii) Smt.M.Printer and Others -vs- Marcel Martins
- AIR 2002 KAR 191.
9. Per contra, learned counsel for the defendants
has contended that the suit schedule property was
acquired by the father of the defendants on
12.10.2017. The cause of action pleaded was on
30.04.2022. The plaintiff in order to file a suit for
partition, he ought to have filed within three years
from the date of sale deed, thereby the suit is barred
by time. The Trial Court has rightly rejected the plaint
and he supported the impugned order.
9.1. In support of his contentions, he has relied
the judgment of this Court in D.L.Kannan -vs-
Ambarish Reddy reported in KCCR-2023-4-3063.
10. We have given our anxious consideration to
the arguments addressed on behalf of both parties
and perused the records.
11. The points that arise for our consideration are:
(i) Whether the plaint is liable to be rejected
under Order VII Rule 11(a) and (d) read with Section
151 of CPC?
(ii) Whether the impugned order is perverse
and calls for our interference?
Reg. Point No.(i):
12. It is the specific case of the plaintiff that the
ancestral property was divided between his father and
father of the defendants. By virtue of Palu Patrike
dated 12.03.1991, later they entered into a registered
Partition Deed on 01.02.2016. The vendor of the suit
schedule property offered to sell the property, the
plaintiff and defendants father agreed to purchase the
property, they have paid consideration equally and an
agreement to sell and the General Power of Attorney
were obtained jointly in the name of plaintiff, his
mother, in the name of the father of the defendants.
For the sake of convenience, sale deed was obtained
in the name of father of the plaintiff on 12.10.2017;
till the death of the father of the defendants, there
was no dispute between the parties. Plaintiff and his
uncle B.N.Lakshmaiah being the co-owners of the
property are entitled to half share i.e., 17.8 guntas
each. The plaintiff pleaded cause of action on
30.04.2022 when the defendants denied his share of
property.
13. If the date of cause of action is taken into
consideration, the suit is filed on 08.07.2022 within
three months from the date of cause of action.
Whether the cause of action arises for the plaintiff to
seek partition was on 12.10.2017, from the date of
death of B.N.Lakshmaiah or it was from 30.04.2022,
is the matter to be considered on merits. In D.L
Kannan's case (supra), this Court referring to factum
of limitation at para 16, held as under:
"16. Although the plaintiffs contend that limitation
is a mixed question of law and facts and is
required to be adjudicated in the course of trial,
the applicability of Article 58 of Limitation Act and
the date when the right to sue first accrued being
clear and apparent from the material on record,
no useful purpose will be served in the trial of the
suit to be completed to adjudicate regarding the
aspect of limitation."
14. In view of peculiar facts and circumstances
of this case, said principles will not come to the aid of
the defendants. The question of limitation is a mixed
question of law and fact and it cannot be determined
at the preliminary stage of this suit. Hence, the plaint
cannot be rejected on the ground of limitation.
Whether there is a cause of action for the suit or not,
is also an issue to be decided on merits after framing
necessary issues. For resolving controversy, the Court
is not required to go into previous partition, which is
an admitted fact. We, accordingly, answer this point.
Reg. Point No.(ii):
15. We have perused the impugned order. The
Trial Court has expressed in clear terms that it has
difficulty to ascertain the cause of action for the
plaintiff to file the instant suit. Concept of co-
ownership and investment of funds for acquiring the
property is in question. The Trial Court has come to
an erroneous conclusion that the relief in respect of
earlier partition is not sought for and without seeking
declaration on the earlier partition, the present suit is
filed for re-opening the earlier partition. The suit
property was acquired subsequent to the said
partition, the previous partition is nothing to do with
the acquisition of the suit schedule property. The
question for consideration is, whether the suit
schedule property was acquired out of joint funds of
the plaintiff and his uncle, whether the plaintiff is
entitled to half share in the suit schedule property and
it has to be resolved only after the parties are put into
trial.
16. In Marcel Martins's case (supra), the
Hon'ble Apex Court referring to Section 45 of Transfer
of Property Act, 1882 held that the purchase of the
suit property in the name of one member of family
with contributions made by the remaining legal
representatives and the original owner did not amount
to a benami transaction. Since, the plaintiff pleaded
co-ownership to an extent of 50%, provisions of
Benami Transaction (Prohibition) Act, 1988 will not be
applicable to this case.
17. In M.Printer's case (supra), this Court held
that person is whose name property is purchased
cannot set up exclusive title in himself. All persons
who contributed fund for purchase of property would
be co-owners. Similar is the circumstance in this case
also. Hence, the facts pleaded has to undergo trial for
ultimate recording of findings. At the threshold, plaint
cannot be nibbed curtailing the right of the plaintiff to
agitate his right over the suit property for co-
ownership.
18. When the Trial Court itself is unable to
ascertain the cause of action, the Trial Court ought to
have framed necessary issues and proceeded with the
matter. Invoking the provisions of Order VII Rule
11(a) and (d) read with Section 151 of CPC is
erroneous. We are not persuaded to accept the
contention of the defendants in the reasoning
assigned by the Trial Court to sustain the impugned
order. 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 frame necessary issues,
provide opportunity to the parties to lead
evidence and to decide the case in
accordance with law without being
influenced by any of the observation made
supra.
iv) Without further notice, the parties shall
appear before the Trial court on
th
11 March, 2024.
No Costs.
Sd/-
CHIEF JUSTICE
Sd/-
JUDGE
KNM/-
