Karnataka High Court
Smt Vishalakshi vs Smt Vajramma on 11 July, 2025
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
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RFA No. 1184 of 2016
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JULY, 2025
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
REGULAR FIRST APPEAL NO. 1184 OF 2016 (PAR)
BETWEEN
1. SMT. VISHALAKSHI
D/O SMT. KRISHNAMMA,
W/O RAJENDRA,
AGED ABOUT 29 YEARS,
2. SMT. USHA
D/O SMT. KRISHNAMMA
AND W/O SRI.VASANTHA,
AGED ABOUT 26 YEARS,
3. SRI. SRINIVASAMURTHY
S/O SMT. KRISHNAMMA
AND NANJUNDAPPA,
AGED ABOUT 43 YEARS,
Digitally signed by ALL ARE RESIDENTS OF
THEJAS KUMAR N KOWDENAHALLI VILLAGE,
Location: HIGH DOORAVANINAGAR POST,
COURT OF
KARNATAKA K.R.PURAM HOBLI,
BENGALURU-560 016.
...APPELLANTS
(BY SRI. G.B.MANJUNATHA., ADVOCATE)
AND
1. SMT. VAJRAMMA
D/O LATE MUNIRAMAIAH
AND KEMPAMMA,
AGED ABOUT 69 YEARS,
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2. SMT. KRISHNAMMA
D/O LATE MUNIRAMAIAH
AND KEMPAMMA,
AGED ABOUT 54 YEARS,
RESPONDENTS NO.1 AND 2 ARE
R/AT KOWDENAHALLI VILLAGE,
DOORAVANINAGAR POST,
K.R.PURAM HOBLI,
BENGALURU-560 016.
3. SRI. VAJRAPPA
S/O LATE MUNIRAMAIAH
AND KEMPAMMA,
AGED ABOUT 54 YEARS,
R/O N.S.PALYA,
BANNERGHATTA ROAD,
3RD CROSS, ANJANEYA
SWAMY TEMPLE ROAD,
BENGALURU-560 076.
4. SRI. RAJANNA
S/O LATE MUNIRAMAIAH
AND KEMPAMMA,
AGED ABOUT 52 YEARS,
R/O N.S.PALYA,
BANNERGHATTA ROAD,
3RD CROSS, ANJANEYA SWAMY TEMPLE ROAD,
BENGALURU-560 076.
5. SMT. LAKSHMAMMA
D/O LATE MUNIRAMAIAH AND KEMPAMMA,
AGED ABOUT 50 YEARS,
R/A KOWDENAHALLI VILLAGE,
DOORAVANINAGAR POST,
K.R.PURAM HOBLI,
BENGALURU-560 016.
6. HANUMANTHAPPA
SINCE DEAD BY HIS LR'S,
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RFA No. 1184 of 2016
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6(a) SMT. AMMAYYAMMA
W/O LATE T.HANUMANTHAPPA,
AGED ABOUT 64 YEARS,
R/A NO.14, 11TH MAIN ROAD,
4TH BLOCK, JAYANAGAR,
BYRASANDRA,
BENGALURU-560 011.
6(b) SRI. MURALI
S/O LATE T.HANUMANTHAPPA,
AGED ABOUT 40 YEARS,
R/A NO.437, 38TH 'B' MAIN ROAD,
9TH BLOCK, BENGALURU.
...RESPONDENTS
(BY SRI.K.SRINIVASA., ADVOCATE FOR R1 TO 5 [ABSENT];
SRI. NAGESHA.B.S., ADVOCATE FOR
SRI. VIJAY., ADVOCATE FOR R6(a & b)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 OF THE CODE OF CIVIL PROCEDURE.
THIS REGULAR FIRST APPEAL IS LISTED FOR HEARING,
THIS DAY, THE JUDGMENT WAS DELIVERED AS UNDER:
ORAL JUDGMENT
Sri. G. B. Manjunatha, counsel for the appellants, and
Sri.Nagesha. B.S., counsel on behalf of Sri. Vijay, for
respondents 6(A and B), have appeared in person.
There is no representation on behalf of respondents 1 to
5, either personally or through video conferencing. As could be
seen from the daily order sheet, the appeal was listed on
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08.07.2025; on that day, there was no representation on behalf
of respondents 1 to 5. The appeal is listed today. Today also,
there is no representation on behalf of respondents 1 to 5.
Hence, this Court deems it proper to pass an appropriate order
on the merits of the case.
2. This is an appeal from the Court of XL Addl. City
Civil and Sessions Judge (CCH-41), Bengaluru.
3. For convenience's sake, the parties are referred to
as per their status and rankings before the Trial Court.
4. The plaint averments are stated as under:
The plaintiffs are the children of defendant No.2.
Defendants 1 to 5 are children of late Sri.Muniramaiah and late
Smt.Kempamma. The suit schedule property was acquired by
the grandfather. They are the members of a Hindu Undivided
Family, and are in joint possession and enjoyment of the suit
schedule property, as there is no partition. After the death of
grandfather, the grandmother of the plaintiffs, and her children,
i.e., defendants 1 to 5, were in joint possession and enjoyment
of the suit schedule property. It has been specifically contended
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by the plaintiffs that their grandmother sold the property in
favor of Sri.T.Hanumanthappa - husband of defendant No.6(a)
and the father of defendant No.6(b) under a registered sale
deed dated 04.04.1974, representing their share without their
consent and legal necessity. Hence, they contended that the
sale deed is null and void and not binding on them.
Accordingly, they sought for following reliefs:
(a) To grant a decree of partition and separate
possession of 1/3rd each share out of 1/5th each
share of plaintiffs 1 to 3, in the suit schedule
property, by division by metes and bounds, under
Order 20 Rule 18 CPC;
(b) To enquire into mense profits from the date of
suit till the date of realization, in respect of the suit
schedule property;
(c) To declare that the alleged sale deed dated
04.04.1974, vide Registered document
No.135/1974-75, pages 175-177, Volume-1040, of
Book No. I, executed by late Kempamma, the
mother of defendants 1 to 5 and grandmother of
plaintiffs 1 to 3, and Smt.Late Kempamma as
natural guardian of minors representing defendants
1 to 5, in favor of late T.Hanumanthappa,
S/o.Thimmaiah @ Annaiahappa, the husband of
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Defendant No.6(a) and father of Defendant No.6(b)
herein, is not binding on the plaintiffs 1 to 3.
(d) To award costs of this suit.
(e) To grant all the ancillary and incidental reliefs,
as this Court deems fit to grant under the facts and
circumstances of the case, in the interest of justice
and equity.
After service of the suit summons, the suit was resisted
by the defendants by filing a written statement. Defendants 1
to 5 denied the plaint averments. Defendant No.6(b) filed a
detailed written statement and denied the plaint averments and
specifically contended that the scheduled property was sold on
04.04.1974 and the suit is barred by limitation. Among other
grounds, they prayed for dismissal of the suit.
Based on the above pleadings, the Trial Court framed
issues as under:
ISSUES
1. Whether the plaintiffs prove that the sale
deed dated 4.4.1974, executed by Late
Kempamma in favour of Late
Hanumanthappa, is null and void and not
binding upon them?
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2. Whether plaintiffs prove that the suit
property is the joint family property of
plaintiffs and defendants 1 to 5?
3. Whether the plaintiffs prove that they have
got 1/3rd share out of a 1/5th share in the
suit schedule property?
4. Whether the suit of the plaintiffs is barred
by Limitation?
5. Whether the suit of plaintiffs is not
maintainable as contended by defendants
6(a) and (b)?
6. What decree or order?
The Trial Court suo-moto tried issue No.4 as a preliminary
issue and dismissed the suit on the ground of limitation vide
order dated 16.04.2016. Hence, the plaintiffs have filed the
present appeal under Section 96 of the CPC.
5. Counsel Sri.G.B.Manjunath., for the appellants,
submits that the order passed by the Trial Court on the
preliminary issue (Issue No.4) is contrary to law.
Next, he submits that the Trial Court has failed to take
note of the fact that the issue of law may be tried as a
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preliminary issue, if it relates to the jurisdiction of the Court.
But the question of limitation is a mixed question of law and
fact; it cannot be tried as a preliminary issue.
A further submission is made that the Trial Court has no
jurisdiction to try the issue regarding limitation as a preliminary
issue.
Counsel vehemently contended that to dismiss the suit on
the point of limitation as a preliminary issue under Section 3 of
the Limitation Act, what is required to be considered is only the
plaint averments. He submitted that the plaint averments do
not disclose that the suit is barred by limitation. Hence, the
question of deciding the law of limitation as a preliminary issue
and dismissing the suit would not arise.
Lastly, he submits that viewed from any angle, the order
passed by the Trial Court is untenable in law and the same is
liable to be set aside. Counsel, therefore, submits that the
appeal may be allowed. To substantiate the contentions, he
placed reliance on the following decisions.
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(1) BALASARIA CONSTRUCTION (P) LTD., VS.
HANUMAN SEVA TRUST AND OTHERS - (2006) 5
SCC 658
(2) MALLAPPA RAMAPPA NAIK AND OTHERS VS.
ITTAPPA KAMAPPA BANTI ALIAS HEGGANI AND
OTHERS - 2021 (4) KCCR 3610.
(3) SMT.NINGAWWA VS. SMT.BASAWWA AND
OTHERS - 2020 (3) KCCR 1846 (DB).
(4) JAGADISH POONJA VS. THE SOUTH CANARA
HOTEL COMPLEX PRIVATE LIMITED AND OTHERS -
LAWS (KAR) 2015-3-493.
(5) S.K. LAKSHMINARASAPPA SINCE DECEASED BY
HIS LRS VS. SRI.B. RUDRAIAH AND OTHERS -
2013 (1) KCCR 672 (DB).
6. Counsel Sri.Nagesh.B.S., for respondents 6(A & B),
justifying the order of the Trial Court, submits that the Trial
Court has ample powers to frame the question of limitation as a
preliminary issue. He places reliance on the decision in
SUKHBIRI DEVI AND OTHERS VS. UNION OF INDIA AND
OTHERS - 2022 LIVE LAW (SC) 810.
7. Heard the arguments and perused the appeal
papers with care.
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8. The short point that requires consideration is
whether the order of the Trial Court requires interference.
9. The issue falls within a narrow compass and relates
to the framing of a preliminary issue about limitation and
dismissal of the suit as barred by time. The detailed narration
of facts and contentions would not call for reiteration, except
highlighting the fact that a comprehensive suit in
O.S.No.7421/2012 was filed. The Trial Court framed as many
as six issues, and as far as Issue No.4 is concerned, the same
was about the issue of limitation.
Suffice it to note that only two issues can be decided as
preliminary issues, namely, (i) an issue relating to jurisdiction,
(ii) an issue relating to the bar of suit created by any law for
the time being in force. The law is well settled by the Apex
Court in MAJOR S.S.KHANNA VS BRIG. F.J.DILLON reported
in AIR 1964 SC 497 that no mixed question of law and fact
can be tried as a preliminary issue. The jurisdiction to try issues
of law apart from the issues of fact may be exercised only
where, in the opinion of the Court the whole suit may be
disposed of on the issues of law alone, but the Code of Civil
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Procedure confers no jurisdiction upon the Court to try a suit on
mixed issues of law and fact as preliminary issues. Normally, all
issues in the suit should be tried by the Court; not to do so,
especially when the decision of issues even on law depends
upon the decision of issues of fact, would result in a lop-sided
trial of the suit.
In the present case, the plaintiffs filed a suit seeking the
relief of partition and separate possession; consequently, they
have also prayed to declare that the alleged sale deed dated
04.04.1974 is not binding on them. This is not a case of a bar
to suit created by any law. The Trial Court has framed an issue
about limitation, and it is necessary to emphasize that the issue
of limitation is an issue of mixed question of law and fact. There
is a need for evidence to be let in to determine whether the suit
is barred by limitation. The approach of the Trial Court in that
regard is erroneous and an instance of short-circuiting of the
suit. When there is an issue regarding limitation, the same is a
triable issue, and the suit cannot be dismissed at the threshold.
The Trial Court has erroneously proceeded with the matter and
dismissed the suit. The Trial Court has overlooked this aspect of
the matter. The Trail Court has failed to have regard to relevant
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consideration and disregarded relevant matters. Therefore, the
order is liable to be set-aside.
Counsel for the respective parties placed reliance on
several decisions, but I do not think the law is in doubt. Each
decision turns on its facts. The present case is also tested in
light of the aforesaid decisions.
10. The Order dated 16.04.2016 passed by the Court of
XL Addl. City Civil and Sessions Judge, Bengaluru (CCH-41) on
preliminary issue No.4 in O.S.No.7421/2012 is set aside. The
suit is restored to the Registry. The Trial Court is directed to
consider the issue of limitation along with other issues. The suit
is of the year 2012, hence the Trial Court is directed to dispose
of the suit as expeditiously as possible.
11. Resultantly, the Regular First Appeal is allowed.
Sd/-
(JYOTI MULIMANI)
JUDGE
MRP
