Dismissed

Sri. M.R. Gopal v. Sri Dharanesh

Karnataka HC8 Jan 2024CRP/120/2023

Case brief

AI extract

What is this about?

This revision petition challenges the trial court's dismissal of an application to reject the plaint in a partition suit. The High Court upheld the impugned order, finding the relief sought did not concern alienated properties and the conclusion reached regarding the burden of proof was within judicial discretion. The petition was dismissed subject to an undertaking.

What did the court decide?

Civil Revision Petition dismissed subject to undertaking that no relief is sought against properties already alienated via sale deeds, distinguishing the suit's subject matter from sold portions.

Sri. M.R. Gopal Vs Sri Dharanesh — Partition | Karnataka HC (2024)

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NC: 2024:KHC:844 CRP No. 120 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8^TH DAY OF JANUARY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE M.I.ARUN CIVIL REVISION PETITION NO.120 OF 2023

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BETWEEN:

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SRI. M.R. GOPAL, S/O LATE M. RAMALINGA SETTY, AGED ABOUT 83 YEARS, RESIDING AT M.G. ROAD, CHIKKAMAGALURU - 577 101.

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SRI. M.G. ASHWIN, S/O M.R. GOPAL, AGED ABOUT 47 YEARS, RESIDING AT M.G. ROAD, CHIKKAMAGALURU - 577 101.

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…PETITIONERS

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(BY SRI. NARAYANA KUMAR V.J, ADVOCATE)

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Digitally signed by H K HEMA Location: High Court of Karnataka

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AND:

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SRI. DHARANESH, S/O LATE CHOWDE GOWDA, AGED ABOUT 38 YEARS, RESIDING AT RAMANAHALLI EXTENSION, CHIKKAMAGALURU TOWN - 577 101.

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…RESPONDENT

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(BY SRI. MANJUNATH PRASAD H.N, ADVOCATE)

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THIS CRP IS FILED UNDER SECTION 115 OF CPC, AGAINST THE ORDER DATED 22.07.2022 PASSED ON IA NO.II IN OS NO.35/2020 ON THE FILE OF THE PRINCIPAL SENIOR

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NC: 2024:KHC:844 CRP No. 120 of 2023

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CIVIL JUDGE AND CJM, CHIKKAMAGALURU. DISMISSING THE IA NO.II FILED UNDER ORDER 7 RULE 11 OF CPC., FOR REJECTION OF PLAINT.

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

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ORDER

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Aggrieved by the order passed on the I.A. filed under Order 7 Rule 11 of CPC in O.S.No.35/2020, by the Principal Senior Civil Judge and CJM, Chikkamagaluru, defendant Nos.17 and 19 therein have filed this Civil Revision Petition.

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For the sake of convenience, parties are referred as per their status before the Trial Court.

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Plaintiff filed O.S.No.35/2020 for partition and separate possession of the suit schedule properties.

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Defendant Nos. 17 and 19 filed the application under

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Order 7 Rule 11 of CPC with a prayer to reject the plaint on the ground that father of defendant No.19 had purchased a portion of the suit schedule properties from the ancestors of the plaintiff by virtue of three sale deeds dated 11.04.1946, 15.11.1954 and 17.02.1964. However,

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NC: 2024:KHC:844 CRP No. 120 of 2023

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the Trial Court has rejected the application filed by defendant Nos.17 and 19. Aggrieved by the same, the present petition is filed by defendant Nos.17 and 19.

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Defendant Nos.17 and 19 contended that the plaintiff admits the said purchase in the plaint averments and has not prayed for any declaration to set aside the sale deeds or a prayer that the same is not binding on the plaintiff and under the said circumstances, the said application filed by them should have been allowed by the Trial Court and the Trial Court has not discussed the said contentions raised by the plaintiff in the impugned order. For the said reason, it is prayed that the application be allowed and the plaint should be rejected.

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Per contra , the learned counsel for the plaintiff submits that no relief is claimed against the property alienated in favour of the father of defendant No.19 by virtue of sale deeds dated 11.04.1946, 15.11.1954 and 17.02.1964. It is submitted that the case of the plaintiff is that defendant Nos.17 and 19, under the guise of having

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NC: 2024:KHC:844 CRP No. 120 of 2023

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purchased a portion of the properties, are trying to encroach and alienate other portions of the properties, which are actually joint family properties.

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Admittedly, the plaint averments reveal that the prayer is not in respect of the property is already alienated but the properties that are alleged to have been belonging to the joint family. The burden is cast on the plaintiff to establish the existence of a joint family and also the joint family property. It is a matter of evidence. Further, the plaintiff has categorically stated before this Court that the subject matter of the suit schedule property does not pertain to the property already sold in favour of the father of defendant No.19. Though the impugned order does not attribute the said reasons for rejecting the application filed by defendant Nos.17 and 19, the conclusion arrived at cannot be found fault with.

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For the aforementioned reasons, the Civil Revision Petition is hereby dismissed, subject to the undertaking given by the plaintiff / respondent that he is not seeking

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NC: 2024:KHC:844 CRP No. 120 of 2023

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any relief in respect of the properties already alienated by virtue of sale deeds dated 11.04.1946, 15.11.1954 and

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17.02.1964.

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Sd/JUDGE

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CH List No.: 1 Sl No.: 41 CT: BHK

Sri. M.R. Gopal v. Sri Dharanesh

Case brief

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Sri. M.R. Gopal v. Sri Dharanesh

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