Dismissed

Sri. D. v. Somasundaram v Sri. Narasimhaiah. a

Karnataka HC19 Dec 2023CRP/483/2022

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a civil revision petition filed against an order rejecting an application for rejection of a partition suit plaint. The revisionist argued the suit was time-barred and without cause of action. The court held the trial court was right in rejecting the application as plaintiffs were not parties to the 1971 sale deed.

What did the court decide?

Civil revision petition dismissed with direction to expedite the suit to trial within six months.

Sri. D. v. Somasundaram Vs Sri. Narasimhaiah. a — Partition | Karnataka HC (2023)

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1 - NC: 2023:KHC:46375 CRP No. 483 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 19^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ

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CIVIL REVISION PETITION NO. 483 OF 2022 (IO)

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BETWEEN:

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SRI. D.V. SOMASUNDARAM S/O. D.S. VENKATESHAIAH, AGED ABOUT 86 YEARS, SINCE DECEASED REPRESENTED BY HIS LEGAL HEIRS

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1(a) SRI. D.V. KRISHNA S/O LATE D.S. VENKATESHAIAH, AGED ABOUT 69 YEARS,

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1(b) SRI. D.V. VIJAYA KUMAR S/O LATE D.S. VENKATESHAIAH, AGED ABOUT 67 YEARS,

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1(c) SRI. D.V. ANAND S/O LATE D.S. VENKATESHAIAH, AGED ABOUT 57 YEARS,

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Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA

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PETITIONER NO.1(a) to 1(c) ARE RESIDING AT ARASHINAKUNTE VILLAGE, KASABA HOBLI, NELAMANGALA TALUK, BENGALURU RURAL DISTRICT-562123.

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LEGAL REPRESENTATIVES BROUGHT ON RECORD VIDE COURT ORDER DATED 02.11.2023

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…PETITIONERS

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(BY SRI. HARSHA D JOSHI, ADVOCATE)

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AND:

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SRI. NARASIMHAIAH. A SON OF LATE ARUVAPPA, AGED ABOUT 69 YEARS, RESIDING AT VINAYAKANAGAR, ARISHINAKUNTE POST,

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2 - NC: 2023:KHC:46375 CRP No. 483 of 2022

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NELAMANGALA TALUK, BANGALORE RURAL DISTRICT-562 123.

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SRI. HANUMANTHARAJU S/O. LATE ARUVAPPA, AGED ABOUT 59 YEARS, RESIDING AT BASAVESHWARANAGAR, ARISHINAKUNTE POST, NELAMANGALA TALUK, BANGALORE URBAN DISTRICT-562 123.

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SMT. LAKSHMAMMA WIFE OF RANGAPPA, AGED ABOUT 79 YEARS, RESIDING AT KALYA, KALYA POST, MAGADI TALUK, RAMANAGARA DISTRICT-562 120.

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SRI. GARUDAPPA SON OF PUTTANARASAIAH, AGED ABOUT 74 YEARS, RESIDING AT BASAVESHWARANAGAR, ARASHINAKUNTE POST, NELAMANGALA TALUK, BANGALORE RURAL DISTRICT-562 123.

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SMT. GALAMMA WIFE OF JAGADISH, DAUGHTER OF LATE ARUVAPPA, AGED ABOUT 67 YEARS, RESIDING AT VINAYAKANAGAR, ARISHINAKUNTE POST, NELAMANGALA TALUK, BANGALORE RURAL DISTRICT-562 123.

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SMT. CHIKKAMMA WIFE OF LATE KRISHNAPPA, AGED ABOUT 67 YEARS,

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MUNILAKSHMAMMA DAUGHTER OF LATE KRISHNAPPA, AGED ABOUT 51 YEARS,

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SRI. PUTTANARASAIAH SON OF LATE KRISHNAPPA,

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3 - NC: 2023:KHC:46375 CRP No. 483 of 2022

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AGED ABOUT 49 YEARS,

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SMT. GOWRAMMA DAUGHTER OF LATE KRISHNAPPA, AGED ABOUT 47 YEARS,

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RESPONDENT NO.6 TO 9 ARE RESIDING AT VINAYAKANAGAR, ARISHINAKUNTE POST, NELAMANGALA TALUK, BANGALORE RURAL DISTRICT-562 123.

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SMT. ARUVAMMA DAUGHTER OF LATE PUTTANARASAIAH, WIFE OF VENKATASWAMY, AGED ABOUT 65 YEARS, RESIDING AT ARASHINAKUNTE, NELAMANGALA TALUK, BANGALORE RURAL DISTRICT-562 123.

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SRI. NARASIMHAIAH SON OF LATE PUTTANARASAIAH, AGED ABOUT 61 YEARS, RESIDING AT VINAYAKANAGAR, ARASHINAKUNTE POST, NELAMANGALA TALUK, BANGALORE RURAL DISTRICT-562 123.

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SRI. MUNIRAJU SON OF LATE ARUVAPPA, AGED ABOUT 56 YEARS, RESIDING AT BEHIND GOVERNMENT LOWER PRIMARY SCHOOL, ARASHINAKUNTE, NELAMANGALA TALUK, BANGALORE RURAL DISTRICT-562 123.

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SRI. C. CHOWDAIAH SON OF CHOWDEGOWDA, AGED ABOUT 57 YEARS, RESIDING AT (4 ST) AB, HMT COLONY, BANGALORE-560 013. (DELETED FROM THE PETITION

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NC: 2023:KHC:46375 CRP No. 483 of 2022

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V/O DATED.02-11-2023).

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…RESPONDENTS

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(BY SRI. MANJUNATH M. HEGDE, ADVOCATE FOR SRI. T.SESHAGIRI RAO, ADVOCATE FOR RESPONDENT NOS.1 AND 2;

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SRI. M.S.MOHAN, ADVOCATE FOR RESPONDENT NOS.3 AND 10; RESPONDENT NOS.4 TO 9, 11 AND 12 ARE SERVED;

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VIDE ORDER DATED 02.11.2023 RESPONDENT NO.13 IS DELETED)

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THIS CRP IS FILED UNDER SECTION 115 OF CPC AGAINST THE ORDER DATED 13.07.2022 PASSED ON IA No.II IN OS No.451/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, NELAMANGALA, REJECTING THE IA No.II FILED UNDER ORDER VII RULE 11(a), (b) AND (d) R/W SEC.151 OF CPC FOR REJECTION OF PLAINT.

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner has challenged an order dated 13.07.2022 passed by the Senior Civil Judge, Nelamangala in O.S.No.451/2013 by which, an application filed under Order VII Rule 11(a), (b) and (d) read with Section 151 of Civil Procedure Code was rejected.

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The suit in O.S.No.451/2013 was filed for the following reliefs:

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5 - NC: 2023:KHC:46375 CRP No. 483 of 2022

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"a) direct the defendants 1 to 8 to effect partition of the schedule property by metes and bounds and to put the plaintiffs in separate possession and enjoyment of their half share;

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b) hold that, the sale deed dated 10.5.1971, registered as No.589/71-72, Book I, Volume 1221, pages 202 - 203, in the office of the Sub-Registrar of Nelamangala, executed by the 2^nd defendant, deceased Krishnappa, husband of the 4^th defendant and father of 5^th to 7^th defendants, deceased Puttaiah, and the 9^th defendant, in favour of the 11^th defendant as not binding on the plaintiffs;

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c) hold that, the sale deed dated 23.10.1983, registered as No.1433/83-84, Book I, Volume 1440, in the office of the subRegistrar of Nelamangala, executed by the 11^th defendant in favour of the 12^th defendant is not binding on the plaintiffs;

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d) pass an order of permanent injunction, restraining the 12^th defendant from in any way alienating or encumbering the schedule property in favour of third parties, either by himself or through his men, agents or any

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6 - NC: 2023:KHC:46375 CRP No. 483 of 2022

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other person or persons claiming through him or on his behalf."

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The suit was in respect of the land bearing

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Sy.No.212 situated at Arashinakunte village, Kasaba Hobli, Nelamangala Taluk, Bengaluru Rural District.

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The plaintiffs claimed that the suit property was granted to their grand father - Garudaiah under the Grow More Food Scheme on 12.10.1953 which was evident by a grant certificate dated 17.03.1964. They claimed that Garudaiah had three sons namely, Puttanarasaiah, Aruvappa and Narasimhaiah. The plaintiffs claimed that they are the children of Aruvappa. They claimed that the suit property was never partitioned and they demanded the defendant Nos.1 to 10 to partition and handover their separate share in the suit property on 05.07.2013, but they refused to do so. Thereafter, they came to know that the defendants had brought about a sale deed in favour of the 11^th defendant on 10.05.1971 conveying the entire property in favour of the 11^th defendant and that the 11^th defendant has sold the same to the 12^th defendant by executing a sale deed dated 23.10.1983, consequently, they sought for the reliefs mentioned above.

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NC: 2023:KHC:46375 CRP No. 483 of 2022

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The suit was contested by the 12^th defendant. He also filed an application under Order VII Rule 11(a), (b) and (d) of Civil Procedure Code, contending that there was no cause of action for the suit and that it was under valued and also barred by the law of limitation. This application was contested by the plaintiffs who contended that the they were not parties to the sale deed dated 10.05.1971 brought about in favour of the defendant No.11 and therefore, the right to sue for their share in the suit property existed, notwithstanding sale executed in favour of 11^th defendant. The Trial Court after considering the aforesaid, rejected the application in terms of the impugned order. Being aggrieved by the same, the defendant Nos.12 is before this Court.

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The learned counsel for the defendant No.12 contended that sale in favour of 11^th defendant was brought about in the year 1971 and the plaintiffs were aware of the said transaction. Therefore, the suit filed in the year 2013 is hopelessly barred by the law of limitation. He further contends that the suit is valued under Section 35(2) of the Karnataka Court Fees and Suits Valuation Act, 1958, though the plaintiffs had lost possession and therefore, the suit ought to have been

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8 - NC: 2023:KHC:46375 CRP No. 483 of 2022

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valued under Section 35(1) of the Karnataka Court Fees and Suit Valuation Act, 1958. He contends that since the family had lost the suit property in the year 1971 itself, there was no cause of action for filing the suit for partition and the one mentioned in the plaint, is the result of clever drafting and illusory.

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Per contra, the learned counsel for the plaintiffs contended that neither the plaintiffs nor their father - Aruvappa had joined in the execution of the sale deed in favour of 11^th defendant. He contends that since Garudaiah died intestate the suit property divided upon his three sons namely Puttanarsaiah, Aruvappa and Narasimhaiah and the plaintiffs being the children of Aruvappa had a vested right in the suit property and therefore, they are entitled to file suit for partition and to seek for a declaration that the sale deed executed in favour of the defendant No.11 does not bind their interest in the suit property.

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I have considered the submissions made by the learned counsel for the defendant No.12 and learned counsel for the plaintiff.

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NC: 2023:KHC:46375 CRP No. 483 of 2022

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A perusal of the plaint discloses that the plaintiffs claimed that they are the children of Aruvappa and that the suit property was granted to their grand father - Garudaiah. They claimed that after the death of Garudaiah, the property devolved upon his three sons, including Aruvappa. They contended that they demanded the defendants to partition the suit property, which was refused. Later, the plaintiffs came to know about a sale deed brought was about by the defendants in favour of the defendant No.11. Consequently, sought for the aforesaid reliefs.

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The suit cannot be held to be not based on any cause of action and also not barred by the law of limitation, as neither the plaintiff nor Aruvappa had joined in execution of the sale deed in favour of the defendant No.11. Consequently, the Trial Court was right in rejecting the application filed by the defendant No.12 and therefore, there is no need to interfere with the same.

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Hence, petition lacks merits and is dismissed.

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Since suit is filed in the year 2013, the Trial Court is directed to expedite the suit as early as possible at any rate,

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10 -

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NC: 2023:KHC:46375 CRP No. 483 of 2022

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within a period of six months from the date of receipt of certified copy of this order.

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It is stated at the bar by the learned counsel for defendant No.12 and learned counsel for the plaintiffs that the notice to the defendant No.11 is yet to be served. Since defendant No.11 has already disposed off the suit property in favour of the defendant No.12, notice to defendant No.11 is to be dispensed with. The Trial Court may take appropriate steps in this regard and dispose off the suit as directed.

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Sd/JUDGE

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List No.: 1 Sl No.: 31

Sri. D. v. Somasundaram v Sri. Narasimhaiah. a

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Sri. D. v. Somasundaram v Sri. Narasimhaiah. a

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