Karnataka High Court
Jaffersab @ Jaffer Ali S/O Abdul ... vs Mallikarjun S/O Lalappa Dankur on 28 February, 2024
Author: H.T.Narendra Prasad
Bench: H.T.Narendra Prasad
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NC: 2024:KHC-K:1805-DB
RFA No.200068 of 2023
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 28TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE K V ARAVIND
REGULAR FIRST APPEAL NO.200068 OF 2023 (DEC/INJ)
BETWEEN:
JAFFERSAB @ JAFFER ALI
S/O ABDUL RAHMANSAB
AGE: 55 YEARS,
OCC: AGRICULTURE & TEACHER
R/O: ITKAL, TQ: SEDAM
DIST: KALABURAGI - 585 222.
...APPELLANT
(BY SRI NARENDRA M. BETTAD, ADVOCATE FOR
SRI.CHAITANYAKUMAR CHANDRIKI, ADVOCATE)
AND:
Digitally signed by
VARSHA N MALLIKARJUN S/O LALAPPA DANKUR
RASALKAR
Location: HIGH
AGE: 42 YEARS, OCC: AGRICULTURE
COURT OF
KARNATAKA
R/O: ITKAL, TQ: SEDAM
DIST: KALABURAGI - 585 222.
...RESPONDENT
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 OF CIVIL PROCEDURE CODE, PRAYING TO SET ASIDE
ORDER DATED: 09.01.2023 PASSED BY THE SENIOR CIVIL
JUDGE AND J.M.F.C., AT SEDAM, IN O.S.NO.59/2021 AND
CONSEQUENTLY TO REMAND THE MATTER WITH A DIRECTION
TO CONSIDER AFRESH IN ACCORDANCE WITH LAW.
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NC: 2024:KHC-K:1805-DB
RFA No.200068 of 2023
THIS REGULAR FIRST APPEAL COMING ON FOR
ADMISSION, THIS DAY, H.T.NARENDRA PRASAD J.,
DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellant/plaintiff under
Section 96 of Civil Procedure Code (for short, 'CPC')
challenging the order dated 09.01.2023 passed by the
Senior Civil Judge and JMFC, Sedam, on I.A.No.4 in
O.S.No.59/2021, whereby the application in I.A.No.4 filed
by the defendant under Order 7 Rule 11 (a) and (d) read
with section 151 of CPC is allowed and the plaint is
rejected.
2. For the sake of convenience, the parties are
referred to as per their ranking before the Trial Court.
3. The plaintiff has filed a suit for declaration of
ownership and correction of survey number in the
registered sale deed dated 24.02.1995 and also sought for
consequential relief of injunction. On appearance of
defendant, the defendant filed an application in I.A.No.4
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under Order 7 Rule 11 (a) and (d) read with Section 151
of CPC for rejection of the plaint on the ground that no
cause of action arises for filing the suit and the suit is
hopelessly barred by limitation. The Trial Court after
considering the plaint averments allowed the application
rejecting the plaint. Being aggrieved by the same, the
plaintiff is before this Court.
4. Sri.Narendra M.Bettad, learned counsel
appearing on behalf of Sri.Chaitanyakumar Chandriki, for
the appellant has contended that the plaintiff came to
know that there is mistake in mentioning the survey
number in the registered sale deed dated 24.02.1995 only
in the year 2021, when the defendant tried to interfere
into the suit schedule property. Immediately thereafter, he
has filed the suit. The plaintiff has rightly explained the
cause of action for filing the suit as the suit has been filed
within three years from the date of cause of action. The
Trial Court without considering this aspect of the matter
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has erred in rejecting the plaint. Hence, he sought for
allowing the appeal.
5. Heard the learned counsel for the appellant.
The plaintiff has sold the suit schedule property by
executing the registered sale deed dated 24.02.1995 and
the suit is filed in the year 2021 seeking the following
reliefs:
i. "That a Decree be passed declaring that
the Plaintiff is owner and possessor of the
suit land described in Para 2 of the plaint.
ii. A Decree be passed restraining the
Defendant or anybody claiming through
him from interfering into the peaceful
possession of the Plaintiff over the suit
land.
iii. A Decree be passed directing the revenue
authorities to enter the plaintiff's name to
the 4 acre land in Sy.No.317/3 of Itkal, Tq.
Sedam standing in the name of the
Defendant.
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iv. A Decree be passed that the plaintiff is
entitled for correction of Sy.No.317/3 as
308/4 in the sale deed doct.No.950/1994-
95 dated 24/02/1995.
v. Costs of the suit be awarded.
vi. Any other relief for which the plaintiff is
found entitled be granted."
Admittedly, the suit schedule property belongs to the
plaintiff. He has sold the same by registered sale deed
dated 24.02.1995. The suit has been filed for rectification
of survey number in the year 2021. As per Article 58 of
the Limitation Act, suit for declaration has to be filed
within three years when the right to sue first accrues.
6. In the case on hand, the plaintiff himself has
executed the sale deed on 24.02.1995. The suit has been
filed for correction of the sale deed in the year 2021 after
lapse of 26 years. The suit is hopelessly barred by
limitation. Even the cause of action mentioned in the plaint
is just imaginary. The plaintiff created the imaginary cause
of action in order to file a suit. The Trial Court rightly
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exercised the power and allowed the application in
I.A.No.4 filed under Order 7 Rule 11 of CPC and rejected
the plaint. There is no error in the order passed by the
Trial Court. Hence, we decline to interfere with the order
passed by the Trial Court.
7. Accordingly, the appeal is dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
VNR
