Allowed

Smt Jayalakshmamma v. Smt. Venkatamma

Karnataka HC22 Feb 2024RFA/1491/2016

Case brief

AI extract

What is this about?

Partition suit challenging 1961 and 1978 sale deeds; the Trial Court had rejected the plaint under Order VII Rule 11 as time-barred. The High Court held limitation was a mixed question of law and fact requiring trial, set aside the rejection, allowed the appeal and remitted the suit to the Trial Court.

What did the court decide?

Impugned rejection order set aside; suit remitted to Trial Court from pleadings stage to be decided on merits expeditiously.

Smt Jayalakshmamma Vs Smt. Venkatamma — Partition | Karnataka HC (2024)

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RFA 1491/2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22^ND DAY Of FEBRUARY, 2024

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PRESENT

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THE HON’BLE MR.P.S.DINESH KUMAR, CHIEF JUSTICE

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AND

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THE HON’BLE MR. JUSTICE T.G.SHIVASHANKARE GOWDA

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RFA NO.1491 OF 2016 (PAR)

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BETWEEN:

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1 . SMT JAYALAKSHMAMMA D/O. LATE. MUNIRAMASWAMAPPA W/O. LATE. SRINIVAS MURTHY AGED ABOUT 66 YEARS R/AT NO. 1/A, YELLACHENAHALLI KANAKAPURA MAIN ROAD BANGALORE 560 078

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SMT. RATHNAMMA W/O. LATE. CHANDRASHEKHAR AGED ABOUT 45 YEARS

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SMT. RASHMI D/O. LATE. CHANDRASHEKHAR R/AT VAJARAHALLI VILLAGE

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SRI. CHETAN KUMAR S/O. LATE. CHANDRASHEKHAR AGED ABOUT 29 YEARS

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SRI. SUNIL KUMAR S/O. LATE. CHANDRASHEKHAR AGED ABOUT 29 YEARS

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SRI. BYRANNA S/O. LATE. MUNIRAMASWAMAPPA SINCE DECEASED BY LR'S

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BROUGHT ON RECORD AS PER ORDER DATED 01.07.2022

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6(a) SMT.RAJAMMA

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W/O LATE. BYRANNA AGED 55 YEARS

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6(b) SRI. SAMPATH KUMAR S/O LATE BYRANNA AGED MAJOR

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6(c) BHAVANESH KUMAR S/O LATE BYRANNA AGED MAJOR APPELLANTS NO. 2 TO 6, 6(a) TO (c) ARE R/AT VAJARAHALLI VILLAGE UTTARAHALLI HOBLI BANGALORE SOUTH TALUK BENGALURU - 560 062 [AMENDED AS PER COURT ORDER DATED 01.07.2022]

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SMT. SHARADHAMMA D/O. LATE MUNIRAMASWAMAPPA W/O. R. NARSIMHA MURTHY AGED ABOUT 62 YEARS, R/AT NO. 125/2, DR. AMBEDKAR MEDICAL COLLEGE ROAD OPP. GOVERNMENT SCHOOL KAVAL BYRASANDRA R.T. NAGAR POST BANGALORE 560 032

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SMT. BHAGYAMMA W/O. LATE. GOPAL AGED ABOUT 44 YEARS

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SRI. YOGESH KUMAR S/O. LATE. GOPAL AGED ABOUT 25 YEARS

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SMT. RAJINI D/O. LATE. GOPAL W/O. SUBRAMANI AGED ABOUT 23 YEARS

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SRI. MANJUNATH GOWDA S/O. LATE. MUNIRAMASWAMAPPA AGED ABOUT 56 YEARS APPELLANT NOS.8 TO 11 ARE VAJARAHALLI VILLAGE UTTARAHALLI HOBLI BANGALORE SOUTH TALUK BANGALORE - 560 062 12. SRI. NAGESH S/O. LATE. MUNIRAMASWAMAPPA AGED ABOUT 54 YEARS R/AT AT NO.259, BALAJI LAYOUT VAJARAHALLI VILLAGE UTTARAHALLI HOBLI BANGALORE SOUTH TALUK BANGALORE - 560 062 13. SMT. GIRIJAMMA D/O. LATE. MUNIRAMASWAMAPPA W/O. ASHWATHAPPA AGED ABOUT 53 YEARS R/AT NO. 42, KUNDANA VILLAGE DEVANAHALLI TALUK BANGALORE RURAL TALUK BANGALORE - 562 110 14. SMT. BHAGYAMMA D/O. LATE. MUNIRAMASWAMAPPA W/O. APPANNA, AGED ABOUT 51 YEARS R/AT NO.1, OPP. CANARA BANK VISWANATHA PURAM DEVANAHALLI TALUK BANGALORE RURAL TALUK BANGALORE - 562 110 15. SRI. VENUGOPAL S/O. LATE. MUNIRAMASWAMAPPA AGED ABOUT 48 YEARS R/AT VAJARAHALLI VILLAGE UTTARAHALLI HOBLI BANGALORE SOUTH TALUK BANGALORE - 560 062

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SMT. PUSHPAVATHI D/O. LATE. MUNIRAMASWAMAPPA W/O. PRABHU REDDY AGED ABOUT 46 YEARS R/AT NO. 10, KHM ROAD, R.T. NAGAR, BANGALORE-560 032 17. SMT. JANAKI D/O. LATE. MUNIRAMASWAMAPPA W/O. LATE. K. NAGRAJ AGED ABOUT 44 YEARS R/AT DODDAGATHIKENABE HOSKOTE TALUK, BANGALORE RURAL DISTRICT BANGALORE - 562 114 18. SRI. PRAKASH S/O. LATE. MUNIRAMASWAMAPPA SINCE DECEASED BY LR. BROUGHT ON RECORD AS PER COURT ORDER DATED 01.07.2022 18(a) SMT.ASHA PRAKASH W/O LATE PRAKASH, AGED MAJOR R/AT VAJARAHALLI VILLAGE UTTARAHALLI HOBLI BANGALORE SOUTH TALUK - 560 062 [AMENDED AS PER ORDER DATED 01.07.2022] …APPELLANTS (BY SRI.G.S.KANNUR, SR. ADV. FOR SRI. K. NATARAJ, ADV.)

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AND:

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SMT.VENKATAMMA W/O. LATE. MUNIRAMASWAMAPPA

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SINCE DEFENDANT NO. 01 IS DEAD HER LEGAL HEIRS ARE ARRAYED AS PARTIES AS PLAINTIFFS

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1 . SMT. PISTA BAI W/O. H. BHAVARLAL AGED ABOUT 50 YEARS

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R/AT NO. 12, MUTHYALAMMA COIL STREET, CIVIL STATION BANGALORE

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2 . SMT. GEETHA DEVI SHAH W/O. K. K. SHAH AGED ABOUT 71 YEARS R/AT NO. 17/1A ALI ASKER ROAD CROSS BANGALORE 560 052 … RESPONDENTS

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(BY SRI.SRINIVASAN RAGHAVAN V., SR. ADV. FOR SRI. PRASHANTH V. G., ADV. FOR R2; VIDE ORDER DATED 31.07.2023 SERVICE OF NOTICE TO R1 IS DISPENSED WITH)

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THIS RFA IS FILED UNDER SECTION 96 OF CPC., AGAINST THE ORDER DATED 12.4.2016 PASSED ON IA NO.2 IN OS NO.8205/2013 ON THE FILE OF THE III ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY (CCH NO.25). ALLOWING THE IA NO.2 FILED UNDER ORDER 7 RULE 11 (b)(c) OF CPC., TO REJECT THE PLAINT.

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THIS RFA HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 09.01.2024 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, T.G.SHIVASHANKARE GOWDA J. , DELIVERED THE FOLLOWING:

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J U D G M E N T

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In this appeal, the plaintiffs have challenged

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the order dated 12.04.2016 passed on I.A.No.2 dated 12.04.2016 filed by defendant No.3 under Order VII Rule 11(b) and (c) of CPC in O.S.No.8205/2013 on the file of the III Additional

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City Civil and Sessions Judge, Bengaluru City (CCH No.25) (for brevity 'the Trial Court').

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

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Brief facts of the case are, the lands bearing

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Sy.Nos.49 and 50/2 measuring 9 acres 3 guntas situated at Vajarahalli village also known as Byannapalya, Uttarahalli Hobli, Bangalore South Taluk, is the suit schedule property.

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3.1. One Munibyregowda and his wife

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Venkatamma have two sons by name M.Muniramaswamappa and M.Lakshmanamurthy. The suit schedule property was acquired by Munibyregowda in the year 1944. After his demise, the property was succeeded to his wife and two sons. Muniramaswamappa was married to Venkatamma (defendant No.1); they begot children by name Jayalakshmamma (plaintiff No.1),

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M.Chandrashekar, Sharadamma (plaintiff No.4), M.Byranna (plaintiff No.3), M.Gopal, M.Manjunatha Gowda (plaintiff No.6), M.Nagesh (plaintiff No.7), Girijamma (plaintiff No.8), Bhagyamma (plaintiff No.9), Venugopal (plaintiff No.10), Pushpavathi (plaintiff No.11), Janaki (plaintiff No.12) and M.Prakash (plaintiff No.13). M.Chandrashekhar and M.Gopal are dead and represented by plaintiff No.2(a) to (d) and plaintiff No.5(a) to (c). Plaintiff No.13 is dead and represented by his legal representatives.

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3.2. The plaintiffs have prayed for the following

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reliefs:

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"a) Directing the defendant No.1 to effect partition by metes and bounds with respect to suit schedule property by delivering and putting the plaintiffs in possession of their 1/13th share each;

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b) Declaring that the sale deed 1-08-1961 registered 8 NOV 2013 as registered as Document No. 2370/61 - 62 of Book-1,

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Volume No. 252 at pages 182-186, in the office of the Sub-Registrar, Bangalore South Taluk as illegal and hence not binding on the share of the Plaintiffs in the suit schedule property;

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c) Declaring that the sale deed dated 22-091978 registered as Document No. 3651/7879 in the office of the Sub-Registrar, Bangalore South Taluk as illegal and non-est in the eye of law and hence not binding on the share of the Plaintiffs in the suit schedule property;

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d) Grant such other order/s that this Hon'ble Court be pleased to grant including the costs of the above suit in the facts and circumstances of the case, in the interest of justice and equity."

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3.3. It is further case of plaintiffs that their grand-mother Venkatamma and their father

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Muniramaswamappa have executed a sale deed on 01.08.1961 in favour of defendant No.2 in respect of 11 acres 33 guntas of land in Sy.Nos.49/1, 49/2,

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49/3 and 50/1 to purchase a Chevrolet car. At the

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time of alienation, plaintiff Nos.1 to 7 were born. Plaintiff Nos.8 to 13 were born on 01.08.1961. The sale was not for the benefit of joint family or for the legal necessity. Hence, it is not binding on the plaintiffs.

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3.4. Defendant No.2 has sold the suit schedule property in favour of defendant No.3 on 22.09.1978. Munibyregowda died intestate leaving behind his legal representatives and no member of the family has any individual or separate right over the suit properties. The suit schedule property has been jointly enjoyed by all the members of the family. They were always informed that they have a share in the property and at right time, they will be given their legitimate share. Whenever the issue regarding sharing of the property to the plaintiffs was brought up, defendant No.1 kept on postponing on one or the other pretext. The plaintiffs were kept in dark regarding alienation of the suit schedule

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property and in the month of August 2013, when they visited the suit schedule property, found presence of some people. After obtaining copies of revenue records and they learnt about illegal alienation and execution of the sale deeds. The sale deed dated 01.08.1961 is not for legal necessity, but it was for buying a Chevrolet car, hence, such alienation is illegal, void and subsequent sale deed dated 22.09.1978 in favour of defendant No.3 is nonest and will not confer any right in favour of the purchaser. Accordingly, the plaintiffs have filed the instant suit.

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Defendant Nos.1 and 2 have remained exparte. Defendant No.3 has contested the suit by filing written statement on 07.04.2015. Defendant No.3 also filed I.A.No.2 under Order VII Rule 11(b) and (c) of CPC seeking rejection of the plaint on the ground that suit is barred by limitation. The application was opposed by the plaintiffs. The Trial

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Court after considering the arguments of both sides allowed the application and rejected the plaint on the following grounds:

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(i) Munibyregowda purchased the property on 30.11.1944 and allegedly, died in the year 1943; a person died in the year 1943 cannot acquire the property in the year 1944;

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(ii) M.Lakshmanamurthy, second son of

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Munibyregowda is not arrayed as party to the suit.

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(iii) The land purchased in the year 1944 was 11 acres 33 gutnas, whereas the suit is filed in respect of 9 acres 3 guntas, there is no pleading regarding the remaining extent of land;

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(iv) There is no pleading in the plaint that plaintiffs are and were in possession and enjoyment of the suit schedule property on the date of suit;

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(v) Hand-written RTCs produced by the

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plaintiffs are much earlier to the date of suit. The computerized RTC extracts produced by them indicate that 7 acres 39 guntas in Sy.No.49 and 1 acre 4 guntas in Sy.No.50/2 were already converted and shown as 'Niveshana';

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(vi) Plaintiff No.13/Prakash was aged 39 years as on the date of suit; the alienation was in the year 1961 and 1978; even after attaining the age of majority, he could have filed the suit within three years. The suit filed in the year 2013 is barred by limitation;

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(vii) The suit schedule property was purchased

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by Munibyregowda and his wife Venkatamma; after their death, it becomes separate property of his two

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sons viz., M.Muniramaswamappa and M.Lakshmanamurthy. The plaintiffs will not inherit the property after enactment of the Hindu Succession Act, 1966;

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(viii) The plaint pleading is a clever drafting

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creating illusion of cause of action and it has to be nibbed at the bud in the first hearing itself; and

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(ix) There is no real cause of action for the suit.

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Aggrieved by the order of rejection of the plaint, plaintiffs have filed this appeal on various grounds.

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We have heard the arguments of Sri.G.S.Kannur, learned Senior Counsel appearing on behalf of Sri.K.Nataraj, learned Counsel for the plaintiffs and Sri.V.Srinivasan Raghavan, learned Senior Counsel on behalf of Sri.V.G.Prashanth, learned Counsel for defendant No.3.

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It is the contention of the learned Senior Counsel for the plaintiffs that the suit schedule property was acquired by Munibyregowda, it becomes the ancestral property of the plaintiffs; his

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wife Venkatamma and two of her sons will not get any independent rights. In order to create a third party interest, plaintiff Nos.1 to 7 were necessary party as they are the members of the joint family. They were assured of partition of the properties by defendant No.1. Only in the month of August 2013, when they insisted defendant No.1 to part with the property, it was denied, which led the plaintiffs to verify the revenue records, they learnt about the sale deed dated 01.08.1961 in favour of defendant No.2 and also sale deed dated 22.09.1978 in favour of defendant No.3. Challenging both the alienations, the plaintiffs are seeking their share of the properties. The Trial Court has erroneously held that the cause of action pleaded is illusionary. The second son of Munibyregowda was not made as party even though an application is filed to implead him and his family members as one of the defendants. Whether they were aware of the alienation and what is the effect of filing of the suit in the year 2013

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challenging the alienation of 1961 and 1978 is a mixed question of law and facts, which cannot be considered without framing of issues and then to decide the case on merits.

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7.1. To buttress his arguments, learned Senior

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Counsel has relied upon the following judgments of the Hon'ble Apex Court:

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(i) (2001) 6 SCC 110 - Nawal Kishore Tulara -vsDinesh Chand Gupta and Others;

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(ii) (2006) 5 SCC 658 - Balasaria Construction (P) Ltd. -vs- Hanuman Seva Trust and others;

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(iii) AIR 2023 SC 5516 - Kum.Geetha, daughter of late Krishna and Others -vs- Nanjundaswamy and Others.

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Per contra, learned Senior counsel for defendant No.3 has contended that the alienation in favour of defendant No.1 was on 01.08.1961 by the father of the plaintiffs viz., Muniramaswamappa. His mother Venkatamma, represented her minor son

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M.Lakshmana Murthy. Defendant No.3 has

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purchased the suit property from defendant No.2 on 22.09.1978. After alienation, the sale deed dated 01.08.1961 was not challenged by either of them. There is no pleading in the plaint that the plaintiffs are in possession of the suit schedule property being the members of the joint family till filing of the suit. Contrary material is placed by them indicating that the suit schedule property was converted for nonagricultural purpose and defendant No.3 is in possession and enjoyment of the property since 1978. The suit is filed in the year 2013 i.e., after 35 years of alienation, in favour of defendant No.3 and after 53 years of alienation in favour of defendant No.2 is hopelessly barred by time. There is no proof to show that the plaintiffs learnt about the alienation in the year 2013. The property was acquired by Munibyregowda, who died intestate; his wife and two sons have acquired property under Section 8 of the Hindu Succession Act, 1966, which becomes their individual properties. The plaintiffs have no legal

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right to seek partition. The Trial Court has rightly taken into consideration these aspects and allowed the application filed by defendant No.3 rejecting the plaint and he supported the impugned order.

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8.1. In support of his arguments, learned

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counsel has relied upon the following judgments:

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1) Raghwendra Sharan Singh VS. Ram Prasanna Singh (Dead) by LRs. (2020) 16 SCC 601

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2) M/s. Durga Projects and Infrastructure Pvt. Ltd., VS. Sri S. Rajagopala Reddy and Others (ILR 2019 KAR 4739)

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3) Patil Automation Private Limited and Ors. VS. Rakheja Engineers Private Limited ( AIR 2022 SC 3848)

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4) Smt. D. Rani VS. Sri. Krishnappa and Others. (CRP 284/2020) (Karnataka High Court)

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5) Mallamma and Others VS. Mallegowda and others (ILR 2022 Karnataka 992)

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6) Dilboo (Smt) (Dead) LRs and Others versus Dhanraji (Smt) (Dead) and Others ((2000) 7 SCC 702.

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7) Commissioner of Wealth Tax, Kanpur and Others VS. Chander Sen and Others ((1986) 3 SCC 567)

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8) Yudhishter Vs. Ashok Kumar ((1987) 1 SCC 204

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9) Mallika and Others Vs. Chandrappa and Others (ILR 2007 KAR 3216)

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We have given our anxious consideration to

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the arguments addressed on behalf of both parties and perused the records.

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The point that arises for our consideration

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is:

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(i) Whether the impugned order in rejecting the plaint is erroneous and calls for our interference?

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The relationship between the plaintiffs and defendant No.1 is not in dispute. It is the specific case of the plaintiffs that they are in joint possession and enjoyment of the suit schedule property, no doubt was created for them as the suit schedule properties are vacant lands and defendant No.1 was promising to part with the property as and when demanded; only in the month of August 2013, when defendant No.1 denied the partition, plaintiffs have verified the records and learnt about the alienation in

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favour of defendant Nos.2 and 3. Therefore, they are before this Court.

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The contention of defendant No.3 is that the suit property was acquired by Munibyregowda in the year 1944. After his death, his wife and two sons acquired the property under Section 8 of the Hindu Succession Act. The alienation in favour of defendant No.2 on 01.08.1961 was in the individual capacity of the wife and children of Munibyregowda. During their life time, they did not challenge the said alienation. Plaintiff Nos.8 to 13 were not born when alienation took place. Plaintiff Nos.1 to 7 even though were born, they have not challenged the alienation within three years after attaining the age of majority. The suit being filed in the year 2013 i.e., after 53 years of alienation, is hopelessly barred by time and clever drafting is made to circumvent the point of limitation and cause of action is illusionary in nature.

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It is an undisputed fact that while considering the application under Order VII Rule 11 of CPC, the Court has to read only the averments made in the plaint in order to ascertain whether there is any cause of action for the suit or the suit is barred under any provision of law. If the Court is of the impression that such reading of plaint creates any cause of action and the question of limitation is a bundle of mixed question of law and facts, the Court has to decide whether the plaint is to be retained or rejected.

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In Nawal Kishore Tulara (supra), the

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Hon'ble Apex Court while considering insufficiently stamped document being admitted in evidence laid own the manner in which the impounding of the document under the Stamps Act and the correctness of exercise of jurisdiction. This judgment will not come to the aid of the plaintiffs.

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In Balasaria 's case (supra), the Hon'ble Apex Court while considering the matter with regard to rejection of plaint where suit appears from the statement in the plaint to be barred by any law has distinguished the concept of rejecting the plaint as barred by law and also barred by limitation. The Hon'ble Apex Court has also considered the dismissal of the suit by the High Court by referring the merits of the case. At para-4 of the said judgment, the Apex Court referring to the judgments in (i) N.V.Srinivasa Murthy -vs- Mariyamma- (2005) 5 SCC 548 (ii) Popat and Kotecha Property -vsState Bank of India Staff Assn. - (2005) 7 SCC

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510 has discussed about the proposition that Order VII Rule 11 of CPC is not applicable in a case where question has to be decided on the basis of fact that the suit was barred by limitation. The point as to whether the words " barred by law" occurring in Order VII Rule 11 of CPC cannot include the suit

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being "barred by limitation" was not specifically dealt with in either of these two judgments cited above.

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15.1. The Hon'ble Apex Court has also discussed that the statement made in the plaint without addition or subtraction must show that it is barred by any law to attract the application under Order VII Rule 11 of CPC. The Hon'ble Apex Court has also considered whether 'barred by law' under Order VII Rule 11 of CPC would also include the ground that it is barred by law of limitation. At para8 it has specifically held as under:

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"8. A fter hearing counsel for the parties, going through the plaint, application under Order 7 Rule 11(d) CPC and the judgments of the trial court and the High Court, we are of the opinion that the present suit could not be dismissed as barred by limitation without proper pleadings, framing of an issue of limitation and taking of evidence. Question of limitation is a mixed questions of law and fact. Ex facie in the present case on the reading of the plaint it cannot be held that the suit is barred by time. The findings recorded by the High Court touching upon the merits of the dispute are set aside but the conclusion arrived at by the High Court is affirmed. We agree with the view taken by the trial court that a plaint

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cannot be rejected under Order 7 Rule 11(d) of the Code of Civil Procedure."

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(emphasis supplied)

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In Kum.Geetha 's case (supra), the Hon'ble Apex Court while considering the principle underlying the 'rejection of plaint' under Order VII Rule 11 of CPC and also legality of the rejection of the plaint in part, referring to the suit filed for declaration and partition that the possession of joint family properties was never barred and the defendants filing an application under Order VII Rule 11 of CPC,

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four years after the institution of the suit and the property was sold way back in 1919 and no declaratory relief was sought against such alienation, plaint rejection by the High Court under Order VII Rule 11 of CPC was held to be erroneous by referring to the judgment in Dahiben -vs- Arvindbhai

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Kalyanji Bhasusali (2020) 7 SCC 366.

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16.1. The Hon'ble Apex Court has laid down

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that the plaint has to be construed as it stands, without addition or subtraction of words. If the allegations in the plaint prima facie show a cause of action, the Court cannot embark upon an enquiry whether the allegations are true in fact. If on a meaningful reading of the plaint, it is found that the suit is manifestly vexatious, without any merit and does not disclose a right to sue, the Court would be justified in exercising the power under Order VII Rule 11 of CPC. The Hon'ble Apex Court in simple terms held that the true test is first to read the plaint meaningfully and as a whole, taking it to be true, upon such reading, if the plaint discloses a cause of action, then the application under Order VII Rule 11 of CPC must fail.

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16.2. At para-10 of the judgment, the Hon'ble Apex Court has held as under:

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"10. The High Court committed an error by examining the merits of the matter. It pre-judged

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the truth, legality and validity of the sale deed under which the Defendants No. 4 to 14 claim title. This is not to say that the Plaintiffs have any less burden to prove their case or even that their case is probable. Simply put, the High Court could not have anticipated the truth of the averments by assuming that the alleged previous sale of the property is complete or that it has been acted upon. The approach adopted by the High Court is incorrect and contrary to the well-entrenched principles of considering an application under Order VII Rule 11, CPC. Under these circumstances, we set aside the judgment and the order passed by the High Court and dismiss the application under Order VII Rule 11, CPC, and restore the suit even with respect to properties mentioned under Schedule A of the Plaint."

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Now adverting to the authorities relied

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upon on behalf of defendant No.3 in Raghwendra

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Sharan Singh's case (supra), the Hon'ble Apex Court while dealing with gift deed, which is not denied nor challenged, held that the averments made in the plaint and the bundle of facts stated in the plaint is a clever drafting and the plaintiff has tried to bring the suit within the period of limitation

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which, otherwise is barred by limitation and upheld the rejection of the plaint. In the case on hand, the plaintiffs have made a clear statement that the cause of action arises in the month of August 2013, they are in joint possession of the suit schedule property,

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they were not aware of the alienation of the year 1961 or 1978, they sought a declaratory relief that such alienation is not binding on their rights and sought for partition. Hence, the settled law which refers to the gift deed is not helpful to the defendants.

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In M/s. Durga Projects and

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Infrastructure Pvt. referred supra, this Court with reference to the cause of action pleaded in the plaint in the year 2005 and suit was filed in the year 2017 held that under such circumstances, since the suit is not filed within three years from the date of cause of

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action, plaint can be rejected under Order VII Rule 11 of CPC. In the instant suit, the cause of action

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pleaded and suit filed is in the same year and therefore, the said principle is not helpful to defendant No.3.

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19. In Patil Automation Pvt.Ltd. (supra),

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the Hon'ble Apex Court was considering the rejection of the plaint under Order VII Rule 11 of CPC for noncompliance of Section 12A of the Commercial Courts Act, 2015. Section 12A of the said Act is a mandatory provision, unless it is complied, plaint is not maintainable. The said principle is not applicable to the case on hand.

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Defendant No.3 has also relied upon the judgment of this Court in C.R.P.No.284/2020 dated 09.12.2021, wherein a Co-ordinate Bench of this Court has held that a person who is born after alienation of the property has no legal right to challenge the same. This judgment is relied as against plaintiff Nos.8 to 13, who were not born at the time of alienation; in respect of plaintiff Nos.8 to

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13, plaint cannot be rejected in part in the light of the settled principle in the case of Kum.Geetha (supra).

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In Mallamma (supra), a Co-ordinate

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Bench of this Court held that in a suit for partition though the settled legal proposition that issue of limitation is normally a mixed question of law and fact, in the said case, the averments made in the plaint and the documents annexed, ex-facie show that the suit is barred by limitation, hence, plaint was rejected in that case. In the present case, the plaintiffs have sought declaratory relief that the alienation is not binding on them. Hence, the principle laid down cannot be applied to the case on hand.

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In Dilboo 's case (supra), the Hon'ble Apex Court while considering the suit filed for recovery of possession, the knowledge of alienation and mortgagee created an interest in excess of the right

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enjoyed by the parties held that period of limitation attracts. In the present case, the plaintiffs have specifically averred that they were not aware of the alienation until 2013. Under such circumstances, this judgment will not assist the defendant No.3.

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The other judgments relied upon by defendant No.3 pertain to tax issue in respect of a Hindu Undivided Family and also rent control proceedings and they are of no assistance to defendant No.3.

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We have referred supra the facts of the case and contentions of the plaintiffs and defendant No.3. The principle laid down in the case of Kum.Geetha (supra) is aptly applicable to the case on hand. The plaintiffs have specifically pleaded the cause of action arose in the month of August 2013; they were unaware of the alienation. On a plain reading of the plaint, it discloses the cause of action and also the knowledge of the plaintiffs. Whether

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truth or otherwise of such allegation, is a matter of evidence and it cannot be adversely assumed or presumed on the basis of alienation in the year 1961 and 1978. Hence, the facts pleaded by the plaintiffs is a bundle of law and facts for which the parties have to go for trial.

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We have carefully considered ten grounds

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recorded by the Trial Court. As we see from the plain reading of the plaint, cause of action as well as the limitation is a bundle of law and facts and the Trial Court has made a pre-judgment on the strength of written statement allegations made by defendant No.3. The Trial Court has assumed certain facts that plaintiff Nos.1 to 7 were aware of the alienation, M.Lakshmana Murthy was not arrayed as party. Out of 11 acres 37 guntas, the only issue regarding 9 acres 3 guntas is a matter of evidence. Whether plaintiff Nos.1 to 13 were aware of the alienation in order to challenge the same within three years are

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the facts to be determined at the trial. Apart from this, how the alienation affects the rights of minor plaintiff Nos.1 to 7 and also whether the plaintiffs have inherited the suit property under Section 6 or 8 of Hindu Succession Act, cannot be decided at this

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stage. The Trial Court has passed the impugned order referring the written statement and without plain reading of the plaint. The impugned order influenced by the averments made in the written statement will not stand to its reasons and calls for our interference. The appeal merits consideration. In the result, the following:

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ORDER

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(i) The appeal is allowed ;

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(ii) The impugned order is set aside;

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(iii) The matter is remitted to the Trial Court from the stage of pleadings. The Trial Court is required to provide opportunity to the parties to urge their claim, frame necessary issues, place evidence and to decide the case on merits in accordance with law without

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being influenced by any of the observations made supra;

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