Karnataka High Court
Smt. Netra W/O Basavaraj Kamatar vs Fakkiravva W/O Kenchappa Kamatar on 13 November, 2024
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NC: 2024:KHC-D:16616
CRP No. 100001 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 13TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
CIVIL REVISION PETITION NO.100001 OF 2023
BETWEEN:
1. SMT. NETRA,
W/O BASAVARAJ KAMATAR,
AGE: 33 YEARS, OCC: HOUSEHOLD,
2. KUMARI KRUTHIKA,
D/O BASAVARAJ,
AGE: 4 YEARS, OCC: STUDENT,
SINCE PETITIONER NO.2 IS MINOR
SHE IS R/BY HER NATURAL GUARDIAN
MOTHER I.E. PETITIONER NO.1,
BOTH ARE R/O: KARIKATTI,
TQ: SAVADATTI, DIST: BELAGAVI.
Digitally signed
by V N BADIGER ...PETITIONERS
Location: HIGH
VN COURT OF
KARNATAKA
(BY SRI. R.H. ANGADI, ADVOCATE)
BADIGER DHARWAD
BENCH
Date: 2024.11.25
11:30:31 +0530 AND:
SMT. FAKKIRAVVA,
W/O KENCHAPPA KAMATAR,
AGE: 78 YEARS, OCC: HOUSEHOLD,
R/O: KARIKATTI, TQ: SAVADATTI,
DIST: BELAGAVI.
...RESPONDENT
(BY SRI. P.G. CHIKKANARAGUND, ADVOCATE FOR C/R)
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NC: 2024:KHC-D:16616
CRP No. 100001 of 2023
THIS CRP IS FILED UNDER SECTION 115 OF CPC, 1908,
PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED
17/09/2022, IN O.S. NO.240/2019 ON I.A. NO.6, FILED U/O.7
RULE 11 R/W SECTION 151 C.P.C. ON THE FILE OF
ADDITIONAL CIVIL JUDGE AND JMFC BAILHONGAL VIDE
ANNEXURE-E AND CONSEQUENTLY ALLOW I.A. NO.6, FILED
U/O.7 RULE 11 R/W SECTION 151 C.P.C. VIDE ANNEXURE-C
DATED 09/11/2021.
THIS PETITION IS COMING ON FOR ADMISSION, THIS
DAY, THE COURT MADE THE FOLLOWING:
CORAM: THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
ORAL ORDER
Aggrieved by the order dated 17.09.2022 passed on
I.A. No.6 in O.S. No.240/2019 by the Additional Civil Judge
and JMFC, Bailhongal, the defendants are before this Court.
2. The respondent herein has filed the suit for
declaration that the gift deed executed by husband of
defendant No.1 from the plaintiff on 04.08.2016 in respect of
the suit property is null and void and also sought for
injunction against the defendants not to obstruct peaceful
possession and enjoyment of the suit property. It is her case
that the plaintiff is an old lady and she is having two sons,
and one son died on 04.11.2019, she purchased land in the
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year 1983 by selling the land given to her father and
brother. The suit property is the self-acquired property of the
plaintiff. The husband of defendant No.1 giving assurance
that for sanction of old age pension, brought her before the
Sub-Registrar's office and got created a gift deed in his
favour. Taking undue advantage of illiteracy and old age of
the plaintiff, he got created the gift deed. It is her case that
she is in possession of the property. When the defendants
tried to interfere with her possession and evict her, she
obtained a certified copy of the revenue records and gift
deed on 25.09.2019, she came to know about the alleged
gift deed and came up with the present suit.
3. The petitioners herein, who are the defendants in
the suit, filed I.A.No.6 in the aforesaid suit under Order VII
Rule 11 read with Section 151 of the Code of Civil Procedure,
seeking rejection of the plaint. The grounds urged before the
Court are that on the date of execution of the gift deed the
possession of the suit land has been handed over and the
names were mutated, and the suit is bared by limitation as
the gift deed is executed on 04.08.2016 and the suit came to
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be filed on 25.11.2019. Requested the Trial Court to reject
the plaint.
4. The application is dismissed by the Trial Court by
the order impugned. While dismissing the same, the Court
has considered the judgments of this Court and of the
Hon'ble Apex Court and has come to the conclusion that
question of limitation is a mixed question of fact and law and
it has to be decided at the time of trial and at this stage, it
cannot be held that suit is barred by limitation.
5. Learned counsel for the petitioners/defendants
submits that from the plaint averments, it can be
demonstrated that the suit is barred by limitation and not
necessary that it is a mixed question of law and fact and the
Trial Court without any basis has rejected the application.
6. Learned counsel appearing for the respondent/
plaintiff submits that the Trial Court has rightly dismissed the
application. He further submits that it is the case of the
plaintiff that by playing fraud on the plaintiff, the document
is got executed. He submits that fraud vitiates everything
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and also rightly held that the limitation is mixed question of
fact and law and dismissed the application. He submits that
there are no grounds to interfere with the well considered
order of the Trial Court.
7. Having heard the learned counsel on either side,
perused the material on record.
8. A gift deed is executed by the plaintiff on
04.08.2016 and she has filed the present suit seeking
cancellation of the same on 25.09.2019. The clear averments
of the plaint that she was taken to Sub-Registrar's office that
she will be getting the pension and this document came to
be executed. She is alleging fraud and, according to her,
fraudulently such a gift deed came into existence. Apart from
the fact that the issue of limitation is a mixed question of law
and fact, this is a case where fraud is alleged by the plaintiff.
In view of the above discussion, this Court of the considered
opinion that the order passed by the Trial Court is perfectly
legal and valid and this Court find no reason to interfere with
the same. Hence, this Court is passing the following:
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ORDER
i) Accordingly, this petition is dismissed.
ii) All pending I.As., in this petition shall stand
closed.
Sd/-
JUSTICE LALITHA KANNEGANTI
KMS
CT:BCK
