Sri N Kempaiah Vs Sri a v Srinivas

4 . T NARAYANA SWAMY S/O LATE SRI THIMMA SHETTY AGED ABOUT 72 YEARS R/O GODUR VILLAGE HAROHALLI VILLGE KANAKAPURA TALUK RAMANAGARA DISTIRICT – 562 112

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…….RESPONDENTS

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(BY SRI. B C VENKATESH., ADVOCATE FOR R1 TO R3 V/O/D. 24.04.2024, NOTICE TO R4 IS D/W)

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THIS CRP IS FILED UNDER SEC.115 OF CPC., AGAINST THE ORDER DATED 09.01.2024 PASSED ON I.A. IN OS.NO.148/2019 ON THE FILE OF THE 1ST ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, RAMANAGARA, REJECTING THE I.A. FILED UNDER ORDER 7 RULE 11(a) AND (d) R/W SEC.151 OF CPC FOR REJECTION OF PLAINT.

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IN CRP NO.434/2024

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BETWEEN

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1 . SRI A V SRINIVAS

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SINCE DECEASED BY HIS LRS

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1(a) SMT. M KALPANA W/O LATE A.V.SRINIVAS AGED ABOUT 54 YEARS

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1(b) SRI. A.S.PUNEET KUMAR

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S/O LATE A.V.SRINIVAS AGED ABOUT 35 YEARS

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1(c) SRI. A.S. SUNIL KUMAR S/O LATE A.V.SRINIVAS AGED ABOUT 33 YEARS ALL ARE R/ANO.26, KAPASHREE NILAYA, 1^ST MAIN, L.V.ENCLAVE ABBIGERE, B’LORE-90.

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2 . SRI A SOMASHEKAR S/O LATE VENKATARAMANA SETTY, AGED ABOUT 64 YEARS

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3 . SRI A V PRAKASH S/O LATE VENKATARAMANA SETTY, AGED ABOUT 62 YEARS

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BOTH ARE R/A ANKANAHALLI VILLAGE, KAILANCHA HOBLI, RAMANAGARA 562159

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...PETITIONERS

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(BY SRI. B C VENKATESH., ADVOCATE)

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AND

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1 . SRI N KEMPAIAH

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SINCE DECEASED BY HIS LRS

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SMT. M. BHAGYALAKSHMI

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1(a) W/O LATE N.KEMPAIAH AGED 67 YEARS

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SRI.K.B.DURGAPRASAD

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1(b) S/O LATE N.KEMPAIAH AGED 45 YEARS

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SMT. K.B. SUPRIYA

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1(c) D/O LATE N. KEMPAIAH W/O SRI. RAMESH L

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AGED 42 YEARS

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ALL ARE R/ANO.43, 1^ST MAIN SARASWATHINAGAR VIJAYANAGAR, BENGALURU-40.

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2 . SRI N NANJUNDAIAH S/O LATE NANJEGOWDA AGED ABOUT 82 YEARS R/A ANKANAHALLI VILLAGE, KAILANCHA HOBLI, RAMANAGARA 562159

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3 . SRI N RAJANNA S/O LATE NANJEGOWDA AGED ABOUT 66 YEARS NO 42, MATRUKRUPA NILAYA, 5TH CROSS, KALIDASA LAYOUT, SRINAGARA, BENGALURU 560050

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4 . SRI T NARAYANA SWAMY S/O LATE THIMMASHETTY, AGED ABOUT 72 YEARS, RESIDING GODURU VILLAGE, HAROHALLI HOBLI, KANAKAPURA TALUK RAMANAGARA DISTRICT 562112

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…….RESPONDENTS

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(BY SRI. R B SADASIVAPPA., ADVOCATE FOR R1 TO R3 V/O/D.10.09.2024 NOTICE TO R4 IS D/W)

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THIS CRP FILED UNDER SECTION 115 OF CPC, AGAINST THE ORDER DATED 13.02.2024 PASSED ON IA IN OS NO. 148/2019 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND JMFC,

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RAMANAGARA, DISMISSING THE IA FILED UNDER ORDER XXIII RULE 1(3) R/W SEC. 151 OF CPC FOR WITHDRAWAL OF THE SUIT.

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IN WP NO.19689/2024

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BETWEEN

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1 . SRI N KEMPAIAH

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SINCE DECEASED BY HIS LRS

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1(a) SMT. M. BHAGYALAKSHMI W/O LATE N.KEMPAIAH AGED 67 YEARS

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1(b) SRI.K.B.DURGAPRASAD S/O LATE N.KEMPAIAH

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AGED 45 YEARS

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1(c) SMT. K.B. SUPRIYA D/O LATE N. KEMPAIAH

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W/O SRI. RAMESH L AGED 42 YEARS

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ALL ARE R/ANO.43, 1^ST MAIN SARASWATHINAGAR

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VIJAYANAGAR, BENGALURU-40.

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2 . SRI N NANJUNDAIAH AGED ABOUT 82 YEARS,

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3 . SRI N RAJANNA AGED ABOUT 65 YEARS,

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BOTH ARE S/O LATE SRI NANJEGOWDA, R/O ANKANAHALLI VILLAGE, KAILANCHA HOBLI, RAMANAGARA TALUK AND DISTRICT,

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RAMANAGARA 562159

...PETITIONERS

(BY SRI. R B SADASIVAPPA., ADVOCATE)

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AND

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1 . SRI A V SRINIVAS SINCE DECEASED BY HIS LRS

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1(a) SMT. M KALPANA W/O LATE A.V.SRINIVAS AGED ABOUT 54 YEARS

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1(b) SRI. A.S.PUNEET KUMAR S/O LATE A.V.SRINIVAS AGED ABOUT 35 YEARS

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1(c) SRI. A.S. SUNIL KUMAR S/O LATE A.V.SRINIVAS AGED ABOUT 33 YEARS ALL ARE R/ANO.26, KAPASHREE NILAYA, 1^ST MAIN, L.V.ENCLAVE ABBIGERE, B’LORE-90.

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2 . SRI A SOMASUNDAR AGED ABOUT 49 YEARS,

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3 . SRI A V PRAKASH AGED ABOUT 45 YEARS,

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BOTH ARE SONS OF LATE SRI A V VENKATARAMANA SHETTY, R/O ANKANAHALLI VILLAGE, KAILANCHA HOBLI, RAMANAGARA TALUK AND DISTRICT, RAMANAGARA 562159

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……RESPONDENTS (BY SRI. B C VENKATESH., ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 08/07/2024 PASSED BY THE 1ST ADDL. SENIOR CIVIL JUDGE AND JMFC, RAMANAGAR ON IA NO.7 IN OS NO. 148/2019 VIDE ANNEXURE-A AND GRANT AN INTERIM ORDER TO STAY THE IMPUGNED ORDER DATED 08/07/2024 PASSED BY THE 1ST ADDL. SENIOR CIVIL JUDGE AND JMFC, RAMANAGAR ON IA NO. 7 IN OS NO. 148/2019 PENDING DISPOSAL OF THE ABOVE WP.

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THESE PETITIONS HAVING BEEN HEARD AND RESERVED ON 04.03.2025 AND COMING ON FOR PRONOUNCEMENT OF ORDERS, THIS DAY, THIS COURT MADE THE FOLLOWING:

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CORAM: HON'BLE MR JUSTICE R DEVDAS

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CAV ORDER

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(PER: HON'BLE MR JUSTICE R DEVDAS)

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These two Civil Revision Petitions and the writ petition arise out of O.S.No.27/2019, on the file of learned I Addl. Senior Civil Judge & JMFC, Ramanagara. Therefore, all the three matters were clubbed, heard together and are being disposed of by this common order.

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For the purpose of convenience, the parties shall be referred to in terms of their ranking before the trial court.

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Prior to the plaintiffs filing O.S.No.27/2019, the 1^st defendant Sri N.Kempaiah had filed O.S.No.124/2018 seeking permanent injunction in respect of the suit schedule properties, against the plaintiffs herein. It was the contention of Sri N.Kempaiah that he is the absolute owner of the suit schedule properties. Item No.1 of the suit schedule property bearing Sy.No.160/1, measuring 2 acres 1 gunta situated at Ankanahalli Village, Kilancha Hobli, Ramanagara Taluk and item No.2 bearing Sy.No.160/2 measuring 1 acre 39 guntas were purchased by the plaintiffs brother Sri N.Nanjundaiah under registered Sale Deed dated 03.06.1982. The sale deed was executed by Sri Thimmashetty, the uncle of the defendants. Subsequently, in a family partition that took place between Sri N.Nanjundaiah and his brothers, Sy.No.160/1 fell to the share of plaintiff and Sy.No.160/2 fell to the share of another brother Sri Rajanna. Sri Rajanna executed a Gift Deed dated 14.12.2017 in favour of the plaintiff and in that way, the plaintiff became the absolute

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owner of the suit schedule properties. The partition between the family members of Sri N.Nanjundaiah took place under registered partition deed dated 24.08.2001. Several documents such as mutation orders, mutation entries, RTCs and encumbrance certificates were produced by the plaintiff Sri N.Kempaiah, to substantiate his contention that the revenue entries were mutated pursuant to the sale deed dated 03.06.1982, partition deed dated 24.08.2001 and gift deed dated 14.12.2017 and no objection were raised at the hands of the defendants or their fathers. The trial court accepted the contention of the plaintiff and decreed the suit in O.S.No.124/2018, on 03.08.2020. The defendants were permanently restrained from interfering with the peaceful possession and enjoyment of the suit schedule properties at the hands of the plaintiff.

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In the meanwhile, the defendants filed O.S.No.27/2019 seeking declaration and injunction against N.Kempaiah and his two brothers N.Nanjundaiah and

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N.Rajanna. In the said suit, the plaint was returned for want of pecuniary jurisdiction. Thereafter, the plaint was represented before the competent civil court and was registered as O.S.No.148/2019, which is the present suit. The suit in O.S.No.124/2018 having been decreed, the plaintiffs herein challenged the same in R.A.No.22/2020 and the same was dismissed on 27.05.2021. The Regular Second Appeal No.2058/2021 filed by the plaintiffs herein was also dismissed on 13.04.2023. Thereafter, the defendants herein filed an application under Order VII Rule 11 to reject the plaint. The plaintiffs filed an application under Order XXIII Rule 1(3) of CPC seeking to withdraw the suit with liberty to file a fresh suit. Both the applications were rejected by the trial court. Aggrieved, the defendants have filed CRP No.204/2024, challenging the order passed by the trial court rejecting the applicant filed under Order VII Rule 11.

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After the trial court rejected the applications filed by the plaintiffs seeking permission to withdraw the suit, the

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plaintiffs filed an application under Order VI Rule 17 of CPC to amend the plaint and sought for a prayer for adverse possession. The said application being allowed, the defendants have filed W.P.No.19689/2024, assailing the same. In the meanwhile, the plaintiffs have also filed CRP No.434/2024, questioning the order of rejection of the application filed under Order XXIII Rule 1(3) of CPC.

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Learned counsel Sri R.B.Sadasivappa, appearing for the defendants contended that in the circumstances narrated hereinabove, the trial court has erred in allowing the application for amendment. It is pointed out that in the said application, the plaintiffs have sought for deletion of paragraphs No.2 to 5, 7 to 10 and 20 and to replace the same, thereby changing the nature of the suit. In reality, all the earlier pleadings and admission are permitted to be taken away, while bringing in new set of pleadings. Learned counsel also submitted that the application filed by the defendants under Order VII Rule 11 was required to be allowed while

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rejecting the plaint, since there is already a decree passed by the very same court, accepting the contention of the defendants herein that they were in lawful possession of the suit schedule properties and permanently restraining the plaintiffs from interfering with the suit schedule properties. In that view of the matter, the amended prayer for adverse possession could not have been allowed.

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Learned counsel for the defendants has placed reliance on Shri Mukund Bhavan Trust and others /vs./ Shrimant Chhatrapati Udayan Raje Prathapsinh Maharaj Bhonsle and another – (2024) SCC OnLine SC 3844 , where it was held that though it is a settled position of law that limitation is a mixed question of fact and law and the question of rejecting the plaint on that score has to be decided after weighing the evidence on record, nevertheless in such cases, where it is glaring from the plaint averments that the suit is hopelessly barred by limitation, the court should not hesitate to reject the plaint at the threshold. Learned counsel

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would submit that the trial court having rejected the application filed by the plaintiffs to withdraw the suit, it was not justified in allowing the application for amendment. The trial court has not considered as to whether the nature of the suit could change if the application for amendment is allowed. The trial court has also not considered as to whether the fresh prayer would be barred by limitation. In this regard, reliance is placed on a very recent decision of the Apex Court in Mallavva and another /vs./ Kalsmmanavara Kalamma (since dead) by legal heirs and others –(2024) SCC OnLine SC 3846 . Reliance was also placed on a decision of a Division Bench of this Court in RFA No.460/2017 dated 14.08.2024, between M.S.Jagadeesh and others /vs./ B.J.Jayasanthosh and others , where under similar circumstances, the Division Bench found that there were many alienations with respect to the plaint schedule property and the plaintiffs did not raise a challenge within the period of limitation prescribed. It is pointed out from the amended

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prayer that the plaintiffs are now seeking to raise a challenge to the sale deed dated 03.06.1982; partition deed dated 24.08.2001 and gift deed dated 24.12.2017. The original sale transaction at the hands of the uncle of the plaintiffs happened in the year 1982 and the revenue entries were mutated commencing from the year 1982-83. Therefore, it is contended that the fresh prayer is clearly time barred.

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Per contra, learned counsel for the plaintiffs would contend that the decision in O.S.No.124/2018 cannot be looked into at this stage, while considering the application filed under Order VII Rule 11 of CPC. Reliance is placed on

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G.Nagaraj and another /vs./ B.B.Mruthyunjayanna and others- 2023 SCC OnLine SC 1270 , while contending that the position of law has been reiterated that only the averments made in the plaint and the documents produced along with the plaint are required to be seen. The defence of the defendants cannot be looked into. The Apex Court, in

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Keshav Sood /vs./ Kirti Pradeep Sood and others –

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(2025) SCC OnLine SC 398, has held that the plea of res judicata could not have been gone into on an application made under Order VII Rule 11 of CPC. The reason is that the adjudication on the issue involves consideration of the pleadings in the earlier suit, the judgment of the trial court and the judgment of the appellate courts.

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Heard the learned counsels for defendants and the plaintiffs and perused the petition papers.

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Insofar as the Civil Revision Petition filed by the plaintiffs in CRP No.434/2024 questioning the rejection of the application filed by the plaintiffs for withdrawal of the suit with liberty to file a fresh suit, the petition is rendered infructuous owing to the subsequent application for amendment being allowed by the trial court. Learned counsel for the plaintiffs has not made submission in that regard.

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Coming to the trial court allowing the application for amendment, it can be seen that the plaintiffs have sought for deletion of paragraphs No.2 to 5, 7 to 10 and 20, while

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seeking to replace the same in terms of the proposed amendment. It is significant to notice that although the application for amendment is filed on 02.04.2024, long after the suit in O.S.No.124/2018 filed by Sri N.Kempaiah was decreed on 30.08.2020 and confirmed by this Court in RSA No.2058/2021 dated 13.04.2023, permanently restraining the plaintiffs herein from interference with the suit schedule properties, it is stated in the proposed amendment at para 12 that the defendants have taken forcible possession, illegally without following due process of law, in collusion with revenue officials who uploaded the Hadbastu sketch on 02.11.2023. It is stated in the proposed para 20 that the cause of action for the suit arose on 03.06.1982, when the 2^nd defendant purchased the suit scheduled properties from Thimmashetty and his Son T.Narayanaswamy and subsequently on 24.08.2001 when defendants No. 1 and 3 had entered into a partition and on 14.12.2017 when 3^rd defendant executed registered gift deed in favour of the 1^st defendant. It is also

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stated that the cause of action arose when the 1^st defendant filed O.S.No.124/2018, without mentioning the judgment and decree passed on 30.08.2020. The plaintiffs has sought for deletion of prayer No.1 i.e., for declaration that the plaintiffs are the absolute owners and instead to replace prayer No.1 – to declare that the plaintiffs are the absolute owners in possession of the suit schedule ‘A’ and ‘B’ properties by way of adverse possession.

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It is nothing but, clever drafting at the hands of the plaintiffs. Having suffered a judgment and decree in O.S.No.124/2018 that Sri N.Kempaiah is in lawful possession of the suit schedule properties and a permanent injunction being granted by a competent court, the plaintiffs herein cannot be permitted to raise a contention that they are in lawful possession. Therefore, the trial court has erred in allowing the application for amendment where the plaintiffs are now seeking a declaration that they have perfected their title by way of adverse possession. In fact, the trial court

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having rejected the earlier application filed by the plaintiffs for withdrawing the suit, should have been careful in considering such application for amendment where directly conflicting prayer regarding possession is sought to be made, although the plaintiffs have mentioned O.S.No.124/2018 in paragraph No.12 and 20 of the proposed amendment. It is also crystal clear that the plaintiffs are now seeking to delete the earlier prayer No.1 for declaration of title and are now seeking a declaration of adverse possession by way of prescription, invariably because a competent court has already declared that the defendants are in lawful possession and the plaintiffs herein are permanently injuncted from interference of the suit schedule properties.

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Coming to the application filed under Order VII Rule 11 at the hands of defendant No.5, the trial court should have considered the fact that the plaintiffs have admitted that the cause of action originally arose on 03.06.1982, when Sri Thimmashetty, the uncle of the plaintiffs, sold the properties

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in favour of Sri Nanjundaiah, defendant No.2. In paragraph No.14 and 16, the plaintiffs have admitted that the revenue entries are mutated in favour of Sri Nanjundaiah and thereafter in favour of Sri Rajanna and Sri N.Kempaiah. The plaintiffs have sought to contend that they had no knowledge of the sale transaction, other registered documents and the revenue entries. In this regard, it would be relevant to notice that it is a settled position of law that a registered instrument shall be to the knowledge of entire world. In Suraj Lamps and Industries (P) Ltd., /vs./ State of Haryana and another (2009) 7 SCC 363 , it was held that registration of document gives notice to the world that such a document has been executed. Registered documents enable people to find out whether any particular property with which they are concerned, has been subjected to any legal obligation or liability and who is or are the person presently having right, title and interest in the property. It gives solemnity of form and perpetuate documents which are of legal importance or

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relevance by recording them, where people may seek the record and enquire and ascertain what the particulars are and as far as land is concerned what obligations exist with regard to them. That being the position, the learned counsel for defendant No.5 is right in placing reliance on Mallavva and antoher (supra), where it was held that if a suit is based on multiple causes of action, the period of limitation would began to run from the date when the right to sue first accrue. In otherwords, the court held that successive violation of right would not give fresh cause and the suit would be liable to be dismissed if it was beyond the period of limitation counted from the day when the right to sue first accrue. Further, in Sri Mukund Bhavan Trust (supra) the Apex Court has held that although it is a settled position of law that a limitation is a mixed question of fact and law and the question of rejecting the plaint on that score has to be decided after weighing the evidence on record, nevertheless, in glaring cases, like the one on hand, when it is clear from the plaint averments that the

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suit is hopelessly barred by limitation, the courts should not be hesitant in granting relief, in rejecting the plaint, instead of driving the parties back to the trial court.

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This Court is therefore of the considered opinion that the defendants should succeed in both the petitions/applications regarding amendment of the plaint and the rejection of the plaint. Accordingly, this Court proceeds to pass the following:

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ORDER

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(i) CRP No.434/2024 is dismissed . (ii) W.P.No.19689/2024 is allowed and the impugned order dated 08.07.2024 on I.A.No.7 in O.S.No.148/2019, on the file of the learned I Addl. Senior Civil Judge and JMFC, Ramanagara is quashed and set aside.

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(iii) CRP No.204/2024 is allowed. Consequently, IA filed by the defendants under Order VII Rule 11 of CPC is allowed and the plaint in

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O.S.No.148/2019, on the file of the learned I

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Addl. Senior Civil Judge and JMFC, Ramanagara, stands rejected.

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Ordered accordingly.

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Sd/(R DEVDAS) JUDGE