Allowed

Sri Venkatappa @ Venkataiah v. Smt Akkanagamma

Karnataka HC9 Jan 2020RFA/432/2014

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed an appeal against the rejection of a plaint under Order VII Rule 11 CPC. The court held that a discrepancy between survey numbers (Sy. No.15 in sale deed vs. Sy. No.6/2 in suit) due to resurvey cannot justify summary dismissal, as substantive facts must be adjudicated at trial.

What did the court decide?

The impugned order rejecting the plaint was set aside and the suit was restored to file.

Sri Venkatappa @ Venkataiah Vs Smt Akkanagamma — Land Acquisition | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9^TH DAY OF JANUARY, 2020

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BEFORE

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THE HON’BLE MR. JUSTICE NATARAJ RANGASWAMY

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R.F.A.NO.432 OF 2014 [DEC/INJ]

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BETWEEN

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SRI VENKATAPPA @ VENKATAIAH, S/O LATE VENKATANARASAPPA, SINCE DEAD BY LRS

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SMT. RANGAHANUMAKKA W/O LATE VENKATAPPA, AGED ABOUT 68 YEARS, R/AT GIRIYANAPALYA, SOMPURA HOBLI, NELAMANGALA TALUK, BENGALURU RURAL DISTRICT-562123.

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SMT. KARIYAMMA W/O LATE RUDRAIAH, AGED ABOUT 53 YEARS, R/AT KUNTABOMMANAHALLI VILLAGE, SOMPURA HOBLI, NELAMANGALA TALUK, BENGALURU RURAL DISTRICT-562123.

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SMT. THIMMAKKA, W/O UGRAPPA, AGED ABOUT 51 YEARS, R/AT KALLUPALYA, GULURU HOBLI, TUMKUR TALUK & DISTRICT-572129.

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SMT. GANGAMMA, W/O UGRAIAH, AGED ABOUT 48 YEARS, R/AT KALLUPALYA, GULURU HOBLI, TUMKUR TALUK & DISTRICT-572129. 5. SMT. SHIVAMMA, W/O LATE GOVINDARAJU, AGED ABOUT 33 YEARS, R/AT GIRIYANAPALYA SOMPURA HOBLI, NELAMANGALA TALUK, BENGALURU RURAL DISTRICT-562123. 6. SMT. NARASAMMA, W/O LATE RANGAIAH, AGED ABOUT 43 YEARS, GIRIYANAPALYA, SOMPURA HOBLI, NELAMANGALA TALUK, BENGALURU RURAL DISTRICT-562123. 7. SMT. RANGAMMA, W/O CHIKKANNA, AGED ABOUT 40 YEARS, R/AT HANUMANAHALLI VILLAGE, HOLUVANAHALLI HOBLI, KORATAGERE TALUK TUMKUR TALUK & DISTRICT-572129. 8. SMT. MANJAMMA, W/O RAJANNA, AGED ABOUT 38 YEARS, R/AT NO.139, 6^TH CROSS, KUVEMPU COLLEGE, MALLASANDRA, T. DASARAHALLI, BENGALURU-560057. ...APPELLANTS (BY SRI. VASANTHAPPA, ADVOCATE)

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AND:

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SMT AKKANAGAMMA, W/O LATE HANUMATHAIAH, AGED ABOUT 68 YEARS, R/AT MARALAKUNTE GRAMA, SOMPURA HOBLI, NELAMANGALA TALUK, BENGALURU RURAL DISTRICT-562123.

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SMT. GANGAMMA, W/O LATE RAMAIAH, AGED ABOUT 55 YEARS, R/AT GIRIYANAPALYA, SOMPURA HOBLI, NELAMANGALA TALUK, BENGALURU RURAL DISTRICT-562123.

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SMT. SIDDAMMA, W/O LATE NAGARAJU, AGED ABOUT 50 YEARS, R/AT MARALAKUNTE GRAMA, SOMPURA HOBLI, NELAMANGALA TALUK, BENGALURU RURAL DISTRICT-562123.

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SMT. VEERANAGAMMA, W/O LATE HULIYAPPA, AGED ABOUT 60 YEARS, R/AT GIRIYANAPALYA, SOMPURA HOBLI, NELAMANGALA TALUK, BENGALURU RURAL DISTRICT-562123.

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SMT. LAKSHMI, W/O SRI. PARAMESHWARA BYRI, AGED ABOUT 42 YEARS, R/AT NO.92, 2^ND MAIN ROAD, B/W, 7^TH & 8^TH CROSS, CHAMARAJAPET, BENGALURU-560018. …RESPONDENTS

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(BY SRI. H.S.SATISH KUMAR, ADVOCATE FOR R1 TO R4; SRI. RAVISHNKAR.S., ADVOCATE FOR R5)

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THIS RFA FILED U/SEC. 96 R/W XLI R-1 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 22.11.2013 PASSED IN O.S.170/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC., NELAMANGALA, ALLOWING IA NO.2 FILED U/ORDER 7 RULE 11 OF CPC FOR REJECTING THE PLAINT, AND CONSEQUENTLY THE PLAINT IS REJECTED.

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THIS REGULAR FIRST APPEAL IS COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is filed by the plaintiffs calling in question the order dated 22-11-2013 passed in O.S.No.170/2011 by the Senior Civil Judge and JMFC, Nelamangala, whereby the suit filed by the plaintiffs is rejected on an application filed by the defendant No.5 under Order VII Rule 11 of CPC, on the ground that there was no cause of action for the plaintiffs to file the

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present suit.

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It is seen from the plaint filed in O.S.No.170/2011 that the plaintiffs claimed title in

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respect of Sy.No.15 of Giriyanapalya Village, Somapura Hobli, Nelamangala Taluk, having purchased in terms of a sale deed dated 26.04.1955. It is claimed that the earlier suit filed by the plaintiffs in O.S.No.512/2009 before the Civil Judge and JMFC., Nelamangala, in respect of Sy.No.6/2 of Giriyinapalya against defendant Nos.1 to 4 for declaration of title was decreed in terms of the judgment and decree dated 03.12.2010. In gross contempt of the Decree in O.S.No.512/2009, the defendant Nos.1 to 4 have sold the land bearing Sy.No.6/2 of Giriyanapalya Village, Sompura Hobli, Nelamangala Taluk to defendant No.5 in terms of a sale deed dated 24.01.2011.

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The application filed by the defendant No.5

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under Order VII Rule 11 of CPC., essentially discloses that the plaintiffs claim to have purchased Sy.No.15 of Giriyanapalya under the sale deed dated 26.04.1955 but the present suit is filed in respect of Sy.No.6/2 of

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Giriyanapalya. It is stated that the defendant No.5 had purchased Sy.No.6/2 from the defendant Nos.1 to 4. The plaintiffs filed their objections to the application. The trial Court took note of the survey number mentioned in the sale deed dated 26.04.1955 as well as the decree in O.S. No.512/2009, the RTC extract concerning Sy.No.6/2 which stood in the name of defendant No.1 and thus, held that while the sale deed dated 26.04.1955 related to Sy. No.15 of Giriyanapalya, the plaintiffs could not lay a claim to the land in Sy. No.6/2 and thus, felt that there was no cause of action for the plaintiffs to file the present suit.

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The plaintiffs are therefore, in appeal before this Court.

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The plaintiffs claim that the land that was purchased by them in terms of the sale deed dated 26.04.1955 was Sy.No.15, but the same was resurveyed

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and new Sy.No.6/2 is assigned. It is stated that when

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the boundaries of the suit schedule are compared with the boundaries of the property mentioned in the sale deed dated 26.04.1955, they correspond to each other. Therefore, it is claimed that there is cause of action for

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the plaintiffs to file the suit and that they would produce substantive material before the trial Court to indicate that Sy.No.15 of Giriyanapalya Village, Sompura Hobli, Nelamangala Taluk was resurveyed and assigned Sy.No.6/2.

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Heard the learned counsel for the appellants

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and the learned counsel for the respondent.

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The following questions arise for our

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consideration:

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i. Whether the trial Court was justified in rejecting the plaint on an application filed under Order VII Rule 11 of CPC ?

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ii Whether the order of the trial Court calls for interference ?

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8. My findings are as follows:

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The suit in O.S. No.170/2011 is filed for relief of

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perpetual injunction restraining the defendant No.5 from interfering with the possession of the plaintiffs and to set aside the sale deed dated 24.01.2011 executed by the defendant Nos.1 to 4 in favour of the defendant No.5. This suit is in respect of Sy. No.6/2 of Giriyanapalya measuring 03 Acres 22 guntas. It is found from the plaint that the plaintiffs had filed an earlier suit in O.S. No.512/2009 against the defendant Nos.1 to 4 for declaration of their title concerning Sy.No.6/2 of Giriyanapalya measuring 03 Acres 22 guntas. The said suit was decreed. Though it is contended before this Court that the plaintiffs had purchased Sy.No.15 in terms of the sale deed dated 26.04.1955 and this land after being resurveyed is renumbered as Sy. No.6/2, but yet such an averment is not found in either the plaint or in the objections filed to the application under Order VII Rule 11 of CPC.

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Be that as it may, it is evident that the plaintiffs have obtained a declaratory decree against defendant Nos.1 to 4 in respect of Sy.No.6/2 of Giriyanapalya and the suit in O.S. No.170/2011 is filed pursuant to the decree passed in O.S. No.512/2009.

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The gravamen of the case of the plaintiffs seems to be that they have purchased the land in Sy.No.15 of Giriyanapalya which corresponds to land in Sy.No.6/2 of the said village and that the defendant Nos.1 to 4 taking advantage of this have ventured to transfer the very same land to the defendant No.5. In order to verify whether the boundaries of Sy.No.6/2 and Sy.No.15 correspond to each other, I have compared the schedule mentioned in O.S. No.512/2009 and the schedule mentioned in the sale deed dated 26.04.1955. It is seen that the boundaries correspond to each other. At any rate, if the vendor of the plaintiffs possessed the land in Sy.No.6/2 and while conveying the same, the

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survey number was wrongly mentioned as Sy.No.15, the plaintiff is entitled to sue the defendants in respect of the property which lies within the boundaries mentioned in the sale deed dated 26.04.1955 or such other revenue documents which explain the resurvey of Sy.No.15 and reassignment as Sy.No.6/2. This discrepancy, at any rate, could not be a ground to reject the plaint at the threshold in exercise of power under Order VII Rule 11 of CPC. The plaint as filed in O.S. No.170/2011 did disclose a cause of action which was triable in nature. It is for the defendant No.5 to make out a case at the trial of the suit that Sy.No.15 and Sy.No.6/2 are two separate, independent survey numbers and that the plaintiffs have no right to the said suit and or that the plaintiffs have not purchased Sy.No.6/2 of Giriyanapalya. These are all questions of fact that have to be adjudicated upon in a trial before the Trial Court.

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It is open to the plaintiffs to produce

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substantial material before the Trial Court to indicate that Sy.No.15 of Giriyanapalya was either resurveyed / reassigned as Sy.No.6/2 or that the vendor of the plaintiffs had in fact sold Sy.No.6/2. Since the suit is filed to set aside the sale deed executed by the defendant Nos.1 to 4 in favour of defendant No.5 and for injunctive relief against defendant No.5 which are substantive in nature, in order to do substantial justice between the parties, the impugned order is to be set aside.

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This appeal is therefore allowed and the impugned order dated 22.11.2013 passed in O.S. No.170/2011 is set aside and the suit in O.S. No.170/2011 is restored to file. The trial Court is requested to dispose of the said suit within a period of one year from the date of receipt of certified copy of this order.

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Any observations made in this order are for

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the limited purpose of determining this appeal.

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Therefore all questions are left open to be adjudicated before the trial Court.

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The parties are directed to appear before the trial Court on 31.01.2020.

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No order as to cost.

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Sd/JUDGE

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SMJ / sma

Sri Venkatappa @ Venkataiah v. Smt Akkanagamma

Case brief

What is this about?

What did the court decide?

Sri Venkatappa @ Venkataiah v. Smt Akkanagamma

Case brief

What is this about?

What did the court decide?

What the court decided

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