Thopamma vs K S Hanumantharayappa
2024 Latest Caselaw 15705 Kant

Karnataka High Court

Thopamma vs K S Hanumantharayappa on 4 July, 2024

Author: H.P.Sandesh

Bench: H.P.Sandesh

                                             -1-
                                                          NC: 2024:KHC:25319
                                                         RSA No. 243 of 2019




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 4TH DAY OF JULY, 2024

                                           BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                         REGULAR SECOND APPEAL NO.243 OF 2019 (SP)

                   BETWEEN:

                   1.    THOPAMMA
                         AGED ABOUT 80 YEARS,
                         W/O LATE NANJAPPA

                   2.    HANUMAIAH
                         AGED ABOUT 60 YEARS,
                         S/O LATE NANJAPPA

                   3.    K N GANGADHARAIAH
                         AGED ABOUT 50 YEARS,
                         S/O LATE NANJAPPA
Digitally signed
by DEVIKA M        4.    K N GOPALA
Location: HIGH           AGED ABOUT 47 YEARS,
COURT OF                 S/O LATE NANJAPPA
KARNATAKA
                         ALL ARE R/AT KAIDALA VILLAGE,
                         GULUR HOBLI
                         TUMAKURU TALUK-572102
                                                              ...APPELLANTS
                   (BY SRI KARUMBAIAH T A, ADVOCATE)
                   AND:

                   1.    K S HANUMANTHARAYAPPA
                         AGED ABOUT 58 YEARS,
                         S/O LATE SOOLAPPA
                            -2-
                                       NC: 2024:KHC:25319
                                      RSA No. 243 of 2019




2.   RAVIKUMAR @ RAVINDRA
     AGED ABOUT 33 YEARS,
     S/O HANUMANTHARAYAPPA

3.   SATHYAMURTHY
     AGED ABOUT 31 YEARS,
     S/O HANUMANTHRAYAPPA

     RESPONDENTS 1 TO 3 ARE
     R/AT HETHENAHALLI VILLAGE, GULUR HOBLI
     TUMKUR TALUK & DISTRICT-572102

                                         ...RESPONDENTS

(BY SRI M B CHANDRACHOODA, ADVOCATE)


    THIS RSA IS FILED UNDER SEC.100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 28.08.2018
PASSED IN R.A.NO.96/2017 ON THE FILE OF THE II ADDL.
SENIOR CIVIL JUDGE AND JMFC, TUMAKURU AND ETC.

     THIS APPEAL, COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                    JUDGMENT

This second appeal is filed against the concurrent

finding of both the Courts passed on IA filed under Order

VII Rule 11(d) of CPC wherein a prayer is sought to reject

the plaint on the ground that the suit is barred by law of

limitation.

NC: 2024:KHC:25319

2. Heard the learned counsel appearing for the

respective parties.

3. On perusal of the records, it discloses that the

Trial Court taking into note of the material available on

record, allowed the IA and rejected the plaint. Being

aggrieved by the said order of the Trial Court, an appeal

was preferred in R.A.No.96/2017 and the First Appellate

Court also having reassessed the material available on

record, confirmed the order of the Trial Court. Being

aggrieved by the said concurrent finding of both the

Courts, the present second appeal is filed before this

Court.

4. The counsel appearing for the appellants would

vehemently contend that both the Courts have committed

an error in passing the said order by allowing the

application filed under Order VII Rule 11(d) of CPC on the

ground that the suit is barred by limitation since the

question of considering the fact on limitation is also mixed

NC: 2024:KHC:25319

question of fact and law when the parties have disputed

the fact of cause of action. Under such circumstances,

both the Courts ought not to have dismissed the plaint.

The counsel for the appellants also reiterated the grounds

urged in the second appeal.

5. Per contra, the learned counsel appearing for

the respondents would vehemently contend that this Court

in R.S.A.No.523/2020 already comes to a conclusion that

there is no merit in the appeal when the similar facts and

circumstances were raised in that appeal. In that appeal

also challenge was made to the application filed under

order VII Rule 11(d) of CPC in O.S.No.1360/2011 wherein

the Trial Court allowed the said application and against

that order, an appeal was preferred in R.A.No.72/2016

and the said regular appeal was also dismissed and

confirmed the order of the Trial Court and against that

concurrent finding, second appeal was filed in

R.S.A.No.523/2020 and this Court while considering the

facts and circumstances of the case, comes to the

NC: 2024:KHC:25319

conclusion that both the Courts having taken note of

Article 54 of the Limitation Act held that there was a sale

agreement and there was also a stipulation in the sale

agreement hence, the Fragmentation Act is prevailing and

hence, the plaintiff cannot execute the document and the

sale deed would be executed after repealement of the

Fragmentation Act. Admittedly, the Fragmentation Act

repealed in the year 1991 itself but the suit was filed in

the year 2011. All these facts have been taken note of by

the Trial Court as well as the First Appellate Court and this

Court also found that there is no ground made out to

entertain the second appeal.

6. In the present case also, the suit is filed in the

year 2011 and same is also based on the sale agreement.

When this Court already considered similar set of facts and

comes to the conclusion that the suit is barred by

limitation in view of Fragmentation Act which was repealed

in the year 1991 itself and the suit is filed in the year

2011, in this case also, similar circumstances are arisen.

NC: 2024:KHC:25319

Hence, I do not find any grounds to entertain the second

appeal.

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

the following:

ORDER

The regular second appeal is dismissed.

Sd/-

JUDGE

SN