Sanjeeva Marakala Vs Girija Marakalthi

SANJEEVA MARAKALA 57 YEARS, S/O KOOSA MARAKALA, R/AT NEAR SURGIKATTE HEGGUNJE VILLAGE AND POST - 576 223, BRAHMAVARA TALUK UDUPI DISTRICT. …PETITIONER

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(BY SRI. VYASA RAO K.S, ADVOCATE)

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AND:

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Digitally signed by SHARADAVANI B Location: High Court of Karnataka

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GIRIJA MARAKALTHI 61 YEARS D/O BACHI MARKALATHI R/AT NEAR SURGIKATTE HEGGUNJE VILLAGE AND POST - 576 223 BRAHMAVARA TALUK UDUPI DISTRICT REPTD. BY GPA HOLDER, GOPAL MARAKALA, 48 YEARS S/O KOOSA MARKALA R/AT NEAR SURGIKATTE HEGGUNJE VILLAGE AND POST - 576 223 BRAHMAVARA TALUK UDUPI DISTRICT.

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GULABI MARAKALTHI, 49 YEARS W/O SANJEEVA MARAKALA

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HC-KAR

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NISHANTH MARAKALA S/O SANJEEVA MARAKALA 23 YEARS

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SHAMBU MARAKALA 49 YEARS

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S/O KOOSA MARAKALA

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VANAJA MARAKALATHI 52 YEARS W/O SHAMBU MARAKALA R/AT NEAR SURGIKATE HEGGUNJE VILLAGE AND POST - 576 223, BRAHMAVARA TALUK UDUPI DISTRICT.

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…RESPONDENTS

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(BY SRI. AJITH A. SHETTY, ADVOCATE)

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THIS CRP IS FILED UNDER SECTION 115 OF CPC AGAINST THE ORDER DATED 28.02.2022 PASSED ON IA No.X IN OS No.251/2020 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE AND JMFC, KUNDAPURA, UDUPI DISTRICT REJECTING THE IA No.X FILED UNDER ORDER VII RULE 11(a) OF CPC FOR REJECTION OF PLAINT.

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE V SRISHANANDA

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ORAL ORDER

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Heard Sri.Vyasa Rao K. S., learned counsel for the

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revision petitioner and Sri.Ajith A. Shetty, learned counsel

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for respondent No.1.

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HC-KAR

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Defendant No.1 in O.S.No.251/2020 is the

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revision petitioner challenging the dismissal of the application filed by him vide I.A.No.10 under Order VII Rule 11(a) of Code of Civil Procedure (hereinafter ‘CPC’ for short).

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Facts in the nutshell which are utmost

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necessary for disposal of the present revision petition are as under:

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3.1. A suit came to be filed by respondent No.1 against the revision petitioner and others in O.S.No.251/2020 with the following prayer in respect of following immovable property:

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PRAYER

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Therefore, the plaintiff pray for a judgment and decree in her favour and against defendants:

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1. Restraining the defendants, their servants, their agents, their relatives and anybody else claiming through them by means of a permanent injunction from trespassing into the ‘A’ schedule

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HC-KAR

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property, from committing any waste or damage to it, from constructing any building or structures over it and.or in any other manner interfering with the peaceful possession and enjoyment of the ‘A’ schedule property by the plaintiff and her people. (This relief is valued at Rs.1000/- for purposes of Court fees and jurisdiction and a CF of Rs.25.00 is paid on the plaint under Section 26(c) KCF and S.V. Act).

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2. Restraining the defendants, their servants, their agents, their relatives and anybody else claiming through them by means of a permanent injunction from blocking ‘XY’ road of the width of 20 links connecting PWD road and the plaint ‘A’ schedule property, situated over portion of land bearing S.No.162-1 of Heggunje village, Brahmavara Taluk, U.D., i.e., over portion of ‘B’ schedule property from diminishing the width of the said ‘XY’ road, dumping anything over the said road and/or in any other manner obstructing the plaintiff and her people in making use of ‘XY’ road (This relief is valued at Rs.1000/- for purposes of Court Fees and Jurisdiction and C.F. of Rs.25-00 is paid on the plaint under Section 26(c) of KCF and SV Act).

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3. Directing the defendant to pay the plaintiff the costs of the suit.

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HC-KAR

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4. To grant such other and further reliefs which the Hon’ble Court deems fit to grant.

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SCHEDULE ‘A’

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Description of immovable property situated at Heggunje village, Brahmavara Taluk, Udupi District.

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Item No.1	Survey No.	Ext	ent
		Acre	Cents
1	162-1	0	05
	(Portion)

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House site bearing No.A/37 as shown in the layout plan and 162-1A37 as shown in the Hakku Pathra)

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Boundaries:

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East: Layout approached road of the width of 20 links diverting Southwards from PWD Road.

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South: Portion of SD

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West: Site No.A/36 or 36 occupied by Chandra Achari.

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North: House site No.F.

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SCHEDULE ‘B’

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Description of immovable property situated at Heggunje village, Brahmavara Taluk, Udupi District

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HC-KAR

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Item No.1	Survey No.	Ext	ent
		Acre	Cents
1	162-1	501	77

East: S.D. Line

South: S.D. Line

West: S.D. Line

North: S.D. Line

To substantiate prayer No.2, there is no proper

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averment made in the plaint whereby the suit is to be rejected was the prayer before the Trial Court by filing an application under Order VII Rule 11(a) of CPC by defendant No.1.

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Learned Trial Judge while appreciating the arguments put forth on behalf of defendant No.1 in respect of plaint prayer No.2, has no doubt, opined that even in the absence of pleading, plaintiff can lead evidence to substantiate prayer No.2 and dismissed the application.

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Being aggrieved by the same, defendant No.1 is before this Court in this revision.

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HC-KAR

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Learned counsel for the revision petitioner reiterating the grounds urged in the petition contented that without there being a pleading, there cannot be any further proof by way of evidence. Therefore, the opinion expressed by the learned Trial Judge with regard to prayer No.2 while dismissing the application filed by defendant No.1 has resulted in miscarriage of justice and sought for allowing the revision petition.

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Per contra, learned counsel for the plaintiff supports the impugned order.

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Having heard the arguments of both sides, this Court perused the material on record meticulously.

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On such perusal of the material on record, there is a slight force in the argument put forth on behalf of the revision petitioner.

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HC-KAR

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However, there is no total lack of pleadings with

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regard to the second prayer of the plaint. In paragraph No.4 of the plaint, the plaintiff has made averments to reach the public road; ‘XY’ road is to be used.

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How he can make use of the ‘XY’ road is a matter of evidence and if the defendants establish the fact that plaintiff has no right to make use of the ‘XY road’, suit will have to be only rejected insofar as this prayer No.2 is concerned.

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At any rate, the rival contentions with regard to the usage of ‘XY’ road to reach the public PWD road is a matter of evidence and that cannot be decided at the time of deciding the application filed under Order VII Rule 11 of CPC by holding a mini trial.

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Suffice to say that the parties are at liberty to place necessary evidence on record to oppose the plaint prayer effectively and an issue will definitely be raised before the Trial Court with regard to the right of the

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HC-KAR

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plaintiff to use ‘XY’ road to reach the PWD road so as to grant the relief as prayed for by the plaintiff or not.

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If no such issue is raised, defendants are at

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liberty to request the Court to raise necessary issues by

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resorting to Order XIV of CPC.

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With that observation, this Court is of opinion that the impugned order does not require any further interference that too in the revisional jurisdiction.

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Accordingly following:

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ORDER

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Revision petition is dismissed .

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Sd/- (V SRISHANANDA) JUDGE

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KAV/List No.: 1 Sl No.: 39

Sanjeeva Marakala v. Girija Marakalthi

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Sanjeeva Marakala v. Girija Marakalthi

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