Karnataka High Court
Sri.B.V.Govinda Rao vs Sri.Lakshmipathi on 30 June, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 1249 of 2022
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.1249 OF 2022 (DEC/INJ)
BETWEEN:
SRI. B.V.GOVINDA RAO
DEAD BY HIS LRS.
1. SMT. LAKSHMI B.G.,
W/O LATE B.V. GOVINDA RAO
AGED ABOUT 65 YEARS
2. SRI. B.G. PADMASHREE
W/O S.NAGENDRA
D/O LATE B.V.GOVINDA RAO
AGED ABOUT 48 YEARS
APPELLANTS NO.1 AND 2 ARE
R/AT NO.188, SPG COLONY
Digitally signed MAGADI MAIN ROAD,
by DEVIKA M
TAVAREKERE
Location: HIGH
COURT OF BENGALURU SOUTH-562 130.
KARNATAKA
3. SMT. JAYASHREE B.G.,
D/O LATE B.V.GOVINDA RAO
AGED ABOUT 45 YEARS
R/AT NO.85/1, 1ST FLOOR
MATHRUSHRI NILAYA
WATER TANK ROAD
CHINNAPPA LAYOUT
BEHIND SHARADA VIDYA MANDIR
VARTHURU
BENGALURU SOUTH.
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RSA No. 1249 of 2022
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4. SMT. PRATHIBA B.G.,
W/O A. MANJUNATH
D/O LATE B.V.GOVINDA RAO
AGED ABOUT 43 YEARS
R/AT NO.51, VARNA KAMALA
SUVARNA NAGAR
NEAR GRUHALAKSHMI LAYOUT PARK
BENGALURU NORTH-560 073.
5. SMT. SAHANA B.G.,
D/O LATE B.V. GOVINDA RAO
W/O GURURAJ C.R,
AGED ABOUT 35 YEARS
R/AT NO.649, 1ST FLOOR
6TH MAIN, 21ST CROSS
KANAKAPURA MAIN ROAD
NARAYA NAGARA
DODDAKALLASANDRA
BENGALURU.
...APPELLANTS
(BY SRI. SHIVASHANKAR K., ADVOCATE)
AND:
1. SRI. LAKSHMIPATHI
S/O LATE HANUMANTHARAYAPPA
AGED ABOUT 55 YEARS
2. SRI. RAMESH
S/O LATE HANUMANTHARAYAPPA
AGED ABOUT 52 YEARS
BOTH ARE
R/AT BALEPURA VILLAGE
CHANNARAYAPATNA HOBLI
DEVANAHALLI TALUK
BENGALURU RURAL DISTRICT
...RESPONDENTS
(BY SRI. KRISHNA REDDY R., ADVOCATE FOR C/R1 AND R2)
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RSA No. 1249 of 2022
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THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 11.07.2022
PASSED IN R.A.NO.15017/2020 ON THE FILE OF THE V
ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU
RURAL DISTRICT, SITTING AT DEVANAHALLI, DISMISSING THE
APPEAL AND CONFIRMING THE ORDER DATED 05.02.2020
PASSED ON IA No.2 IN O.S.NO.287/2019 ON THE FILE OF THE
SENIOR CIVIL JUDGE AND JMFC, DEVANAHALLI, ALLOWING
THE IA No.2 FILED UNDER ORDER VII RULE 11(a) AND (d) R/W
SECTION 151 OF CPC FOR REJECTION OF PLAINT.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
This matter is listed for admission and I have heard
learned counsel for the appellants and learned counsel for
caveator-respondent Nos.1 and 2.
2. This regular second appeal is filed against
concurrent finding of the Trial Court against the order passed
on I.A.No.2 filed under Order VII Rule 11(a) and (d) read with
Section 151 of CPC seeking rejection of the plaint. The said
application is resisted by learned counsel for the plaintiff by
filing statement of objections.
3. The Trial Court having considered the pleadings in
the plaint and also prayer sought in the plaint in paragraph
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No.9, comes to the conclusion that Tahsildar initiated the
proceedings in L.R.F.No.6/2005-06 and the possession of
defendants' father was shown to the extent of 4 acres 6 guntas
and the defendants' father during his life time had not
challenged the said entries until his death on 03.04.2010.
4. It is argued that Hanumantharayappa's daughter
Smt. Padmamma filed O.S.No.613/2009 before Senior Civil
Judge, Devanahalli for partition and separate possession of
Sy.No.39 measuring 4 acres 6 guntas, the measurement
mentioned in the plaint. It is further argued that the question of
jurisdiction, limitation and cause of action has to be adjudicated
only after full-fledged trial and not at this stage. The plaintiff at
this stage has made out he is in possession and enjoyment of
the suit property. The extent of possession of the defendants
over 5 acres is a triable issue and the same has to be
adjudicated at trial. The Trial Court also having considered the
material on record, in paragraph No.13 comes to the conclusion
that after death of Hanumantharayappa, the defendant Nos.1
and 2 have challenged M.R.No.2/2008-09 before the Assistant
Commissioner in R.A.No.176/2013-14 and also revision petition
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was filed by the plaintiff in Revision Petition No.95/2017.
Hence, the Trial Court comes to the conclusion that dispute was
in force in the year 2008 itself, but the suit for declaration is
filed in the year 2019 after lapse of 10 years and 38 years after
the decision of the Land Tribunal. Therefore, the suit is barred
by limitation and the same is taken note of and the Trial Court
taken note of prayer sought and allowed the application.
5. Being aggrieved by the said order, an appeal is filed
in R.A.No.15017/2020 before the First Appellate Court and the
First Appellate Court having considered the grounds urged in
the appeal memo, reversed the findings of the Trial Court in
paragraph No. No.19 with regard to the prayer No.(b) of the
plaint. However, in detail discussion was made in paragraph
No.22 with regard to the proceedings between the parties and
also taken note of service of notice in the appeal in paragraph
No.24 and in paragraph Nos.25 and 26 observed regarding
starting point of limitation and comes to the conclusion that if
the date of cause of action between the parties in the Revenue
Department is taken as the basis in respect of five years, then
the suit is barred by limitation.
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6. The main contention of learned counsel for the
appellants is that when the First Appellate Court reversed the
findings with regard to prayer No.(b) is concerned, but
committed an error in coming to the conclusion that suit is
barred by limitation and the same is erroneous, unless the Trial
Court records evidence, since the issue of limitation is a mixed
question of fact and law and the Trial Court cannot decide the
said question only on the basis of pleadings and evidence of
parties ought to have been recorded. Hence, committed an
error.
7. Per contra, learned counsel for the caveator-
respondent Nos.1 and 2 would vehemently contend that both
the Courts have not committed any error and taken note of
issue involved between the parties and when the issue was
taken before the Revenue Authorities and challenge was made,
taken note of the same and passed an order that suit is barred
by limitation. Hence, this Court cannot interfere with the same.
8. Having heard learned counsel for the appellants and
learned counsel for caveator-respondent Nos.1 and 2 and
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having considered the reasoning given by both the Courts, the
substantial question of law that arise for consideration of this
Court are:
(1) Whether both the Courts have committed an
error in dismissing the suit only on the
ground of limitation invoking Order VII Rule
11(a) and (d) read with Section 151 CPC?
(2) What order?
Substantial question of law No.(1)
9. This Court has already secured the records of the
Trial Court and the First Appellate Court. Having considered the
reasoning given by both the Courts, the main issue involved
between the parties is with regard to whether suit is barred by
limitation. No doubt, Trial Court allowed the application under
Order VII Rule 11(a) and (d) read with Section 151 CPC, it is
settled law that while considering an application under Order
VII Rule 11(a) and (d) read with Section 151 CPC, the Court
has to look into only the averments of the plaint and not the
defense of the defendants. It is also important to note that
when grounds are urged on the point of limitation and the same
involves mixed question of fact and law, the Court has to
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record the evidence and then decide the issue of limitation. In
the case on hand, no such evidence is recorded before the Trial
Court and only on the basis of pleadings, the Trial Court comes
to the conclusion that suit is barred by limitation.
10. The Apex Court also in the recent judgment
reported in 2025 SCC Online SC 975 in the case of P.
Kumarakurubaran Vs. P. Narayanan and Others in
paragraph No.12.1, observed that at this preliminary stage,
while dealing with Order 7 rule 11 application, the averments
made in the plaint must be taken at their face value and
assumed to be true. Once the date of knowledge is specifically
pleaded and forms the basis of the cause of action, the issue of
limitation cannot be decided summarily. It becomes a mixed
question of law and fact, which cannot be adjudicated at the
threshold stage under Order VII Rule 11 CPC. Therefore,
rejection of the plaint on the ground of limitation without
permitting the parties to lead evidence, is legally unsustainable.
11. The First Appellate Court also while considering the
grounds which have been urged, rightly comes to the
conclusion in paragraph No.19 regarding prayer (b) of the
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plaint, but committed an error while considering the issue
involved between the parties in the appeal before the Assistant
Commissioner and also the appeal before the Deputy
Commissioner and only considered the pleadings of the parties
and failed to take note of the fact that no evidence was
recorded before the Trial Court on the point of limitation. It is
settled law that when mixed question of law and fact is
involved, the Court cannot entertain the application filed under
Order VII Rule 11(a) and (d) read with Section 151 CPC and
has to record the evidence on the point of limitation, but
committed an error in coming to the conclusion that suit is
barred by limitation only on the pleadings of the parties. When
such being the case, the First Appellate Court committed an
error in confirming the order of the Trial Court passed under
Order VII Rule 11(a) and (d) read with Section 151 CPC.
Hence, it requires interference of this Court. Therefore, I
answer substantial question of law No.(1) framed by this Court
as 'affirmative' that both the Courts committed an error in
allowing the application filed under Order VII Rule 11(a) and
(d) read with Section 151 CPC without recording the evidence
and when the issue between the parties involves both the
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question of fact and law and it requires recording of evidence,
ought not to have invoked Order VII Rule 11(a) and (d) read
with Section 151 CPC and the Court has to record the evidence
and consider all the issues involved in the matter and consider
the issue of limitation as one of the issue for consideration of
the relief sought in the suit.
Substantial question of law No.(2)
12. In view of the discussion made above, I pass the
following:
ORDER
(i) The regular second appeal is allowed.
(ii) The impugned judgment passed by the Trial
Court and the First Appellate Court are set
aside.
(iii) The Trial Court is directed to consider the
matter on merits, including the law of
limitation.
Sd/-
(H.P.SANDESH)
JUDGE
ST
