Smt Gangubai W/O Changappa Kakatikar Vs Ravindra S/O Kallappa Kamble

THIS MISCELLANEOUS SECOND APPEAL IS FILED UNDER ORDER 43 RULE 1(U) OF CIVIL PROCEDURE CODE, 1908, PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND ORDER DATED 14.12.2021 PASSED IN R.A.NO.89/2020, ON THE FILE OF THE LEARNED II ADDITIONAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, BELAGAVI AND RESTORE THE JUDGMENT AND DECREE DATED 17.03.2020 PASSED IN O.S.NO.103/2020 ON THE FILE OF LEARNED VI ADDITIONAL CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, BELAGAVI, TO MEET THE ENDS OF JUSTICE AND EQUITY.

¶28

THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT IS DELIVERED THEREIN AS UNDER:

¶29

ORAL JUDGMENT

¶30

(PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR)

¶31

Though the appeal is listed for admission, but with

¶32

consent of both the learned counsel appearing for the parties, the matter is taken up for final disposal.

¶33

This appeal is filed by the appellants/defendants questioning the order dated 14.12.2021 passed in R.A.No.89/2020 on the file of II Additional Senior Civil Judge and JMFC, Belagavi, thereby, the order dated

¶34

3 - NC: 2025:KHC-D:8821 MSA No. 100006 of 2022

¶35

HC-KAR

¶36

17.03.2020 passed on I.A.No.2 filed under Order VII Rule 11(a) and (d) read with Section 151 of CPC in O.S.No.103/2020 on the file of VI Additional Civil Judge and JMFC, Belagavi is set aside and remanded the matter to the Trial Court for fresh disposal.

¶37

For the sake of convenience and easy

¶38

reference, the parties are referred to as per their rankings before the Trial Court.

¶39

Heard the arguments from both the learned counsel appearing for the parties and perused the materials placed on record.

¶40

BRIEF FACTS OF THE CASE:

¶41

The plaintiff has filed suit for declaration and mandatory injunction stating that his father was the absolute owner and in possession and father of the plaintiff had executed a registered sale deed selling the suit schedule properties in favour of the father of the defendants on 22.04.2003, but it was by playing fraud.

¶42

4 -

¶43

NC: 2025:KHC-D:8821 MSA No. 100006 of 2022

¶44

HC-KAR

¶45

Therefore, the plaintiff filed a suit for declaration and mandatory injunction seeking relief to declare the

¶46

registered sale deed dated 22.04.2003 null and void.

¶47

The defendants have filed written statement

¶48

and also filed I.A.No.2 under Order VII Rules 11(a) and (d) read with Section 151 of CPC, contending that there is no cause of action to file the suit and also that the suit is barred limitation. Hence, prays to reject the plaint.

¶49

The Trial Court, after considering the application on I.A.No.2 has allowed the same and rejected the plaint by assigning reasons that there is no cause of action to file the suit and whatever cause of action is shown in the suit is an illusory one and the suit is barred by limitation.

¶50

Being aggrieved by this, the plaintiff has preferred the appeal in R.A.No.89/2020 before the First Appellate Court and the First Appellate Court has allowed the appeal and set aside the order of rejection of the plaint

¶51

5 - NC: 2025:KHC-D:8821 MSA No. 100006 of 2022

¶52

HC-KAR

¶53

and remanded the case to the Trial Court on the reason

¶54

that the plaintiff had shown cause of action to file the suit and this could be tried in the suit and also holding that the suit filed is within the period of limitation. Thus, the appeal

¶55

was allowed and set aside the order passed on rejection of plaint and remanded the case to the Trial Court for fresh consideration.

¶56

Against the order passed by the First Appellate Court, the defendants have preferred this Miscellaneous Second Appeal by raising various grounds. The learned counsel Sri. Sourabh Mirji, appearing for the appellants submitted in consonance with the grounds raised in the memorandum of appeal that the suit filed is false and vexatious. There is no cause of action to file the suit. Upon bare perusal of the plaint itself, the cause of action, which is nothing but a bundle of facts, but upon perusing prima facie the plaint averments, there is no cause of action pleaded in the suit so as to maintain the suit and this was correctly observed by the Trial Court and accordingly,

¶57

6 - NC: 2025:KHC-D:8821 MSA No. 100006 of 2022

¶58

HC-KAR

¶59

rejected the plaint, but erroneously interfered with by the First Appellate Court.

¶60

Further submitted that the father of plaintiff had executed the registered sale deed in favour of father of defendants on 22.04.2003, but the suit was filed in the year 2020; at that time, the plaintiff was major and he knew the fact that his father had sold the property to defendants for valuable consideration prevailing at that point of time. Therefore, the suit filed is barred by limitation, which was correctly appreciated by the Trial Court but erroneously interfered with by the First Appellate

¶61

Court. Hence, prays to allow the appeal by confirming the order passed by the Trial Court and set aside the order passed by the First Appellate Court.

¶62

The respondents remained absent despite sufficient opportunities being given.

¶63

Upon hearing the arguments of both the learned counsel appearing for the parties and perusal of

¶64

7 -

¶65

NC: 2025:KHC-D:8821 MSA No. 100006 of 2022

¶66

HC-KAR

¶67

the records placed on record, the following substantial question of law that would arise for my consideration:

¶68

“Whether, under the facts and circumstances involved in the case, the defendants are able to establish that there is no cause of action to file the suit and the suit filed is barred by limitation?”

¶69

The plaintiff filed suit for declaration and for

¶70

mandatory injunction and the cause title in the suit shows that when the suit was filed in the year 2020, the plaintiff was 52 years old. It is the case of the plaintiff that the father of the plaintiff sold the suit schedule property in favour of father of defendants through a registered sale deed dated 22.04.2003, but it was by playing fraud. It is the case of the plaintiff that the total sale consideration amount of Rs.3,40,000/- and out of it, the defendants father had paid Rs.60,000/- and the remaining balance of Rs.2,80,000/- was to be paid at the time of registration of

¶71

sale but was not paid. Therefore, the suit was filed

¶72

8 - NC: 2025:KHC-D:8821 MSA No. 100006 of 2022

¶73

HC-KAR

¶74

pleading that this constitutes bundle of facts to arise the

¶75

cause of action to file the suit.

¶76

It is pleaded in the plaint that the plaintiff has sold the suit property which is a granted land to his father. The plaintiff’s father has executed a registered sale deed in favour of defendants. It is also pleaded that the plaintiff is in possession of the property. It is also pleaded that the defendants are strangers to the suit property. Hence, by pleading all these facts as made in the plaint has pleaded the following is the cause of action.

¶77

“The cause of action to file this suit arose when the defendants have not heeded the request of the plaintiff and same is continued to arose thereon.”

¶78

While considering the applications filed under Order VII Rule 11(a) and under Order VII Rule 11(d) of the Civil Procedure Code (CPC), the plaint averments can be looked into. As admitted by the plaintiff himself, the

¶79

9 - NC: 2025:KHC-D:8821 MSA No. 100006 of 2022

¶80

HC-KAR

¶81

registered sale deed is dated 22.04.2003. At that time as per the age of the plaintiff shown in the cause title of the plaint, it is proved to be the plaintiff was aged 35 years old. It is the case of plaintiffs that his father had sold the suit schedule property in favour of father of defendants for a sale consideration amount of Rs.3,40,000/-. It is the case of the plaintiff that the defendants father had paid only Rs.60,000/but has not paid Rs.2,80,000/-. Therefore, according to the plaintiff, this is the fraud played by the father of defendants.

¶82

Upon considering this fact, if this is recognized

¶83

as cause of action, this is illusory one. According to the pleadings in the plaint, the plaintiff’s father died on 03.11.2018. Even after execution of registered sale deed in the year 2003, the father of plaintiff was still alive for more than 15 years, but there is no pleading that if the defendants’ father had not paid the remaining balance sale consideration amount, then what the plaintiff’s father has taken action against the defendants and defendants’

¶84

10 - NC: 2025:KHC-D:8821 MSA No. 100006 of 2022

¶85

HC-KAR

¶86

father. Admittedly the suit is filed after the death of father of plaintiff. Therefore, this is bundle of facts pleaded in the plaint which shows that the cause of action to file the suit is illusory one and just to file the suit, these facts are conveniently pleaded. This is correctly observed by the trial Court, but the First Appellate Court has failed to consider this fact upon the principles of law laid down while considering the application under Order VII Rule 11(a) of CPC.

¶87

The another pleading that the land was granted to the father of plaintiff, but the plaintiff has not made any averments in the plaint that who has granted the land to the father of plaintiff and when was granted, whether there was any prohibition to alienate the suit schedule property, if it is granted land. But, to this aspect, there is no pleading at all. Therefore, this fact pleaded also does not constitute cause of action.

¶88

11 -

¶89

NC: 2025:KHC-D:8821 MSA No. 100006 of 2022

¶90

HC-KAR

¶91

The plaintiff pleaded that he is in possession

¶92

over the suit schedule property, but when the registered sale deed is dated 22.04.2003, then it is presumed that the vendor would lose possession and vendee could be in possession. Therefore, this fact pleaded in the plaint also does not constitute cause of action to file a suit.

¶93

The other pleading in the plaint is that the defendants are strangers to the family of plaintiff. It is also case of defendants that the defendants are not at all related to the family of plaintiff. This also does not constitute cause of action to file the suit for the relief claimed. Therefore, the trial Court is correct in holding that the suit is false, vexatious, as there is no cause of action properly pleaded in the plaint and thus, rejection of plaint is correct, but the First appellate Court has committed error.

¶94

Regarding considering application under Order VII Rule 11(d) of CPC, as plaint is barred by limitation

¶95

12 - NC: 2025:KHC-D:8821 MSA No. 100006 of 2022

¶96

HC-KAR

¶97

according to the defence of the defendants, admittedly the registered sale deed is dated 22.04.2003 as discussed above, at that time the plaintiff was aged 35 years old. According to the plaintiff, the father of plaintiff died on 03.11.2018. There is no averment that during the lifetime of father of plaintiff, what the father of plaintiff has taken recourse to cancel the sale deed is not forthcoming in the pleadings. Admittedly the suit is filed on 13.01.2020 after death of the father of plaintiff. Therefore, after 17 years from the date of execution of registered sale deed, the suit is filed.

¶98

Here, at this stage the submission made by the learned counsel for appellants is to be considered though it may not be a ground to interfere with the order passed by the First Appellate Court that now the value of the property is increased over the period of time and therefore, the plaintiff has filed this suit, there is force found in the said submission made by the learned counsel for appellants. Hence the suit filed by the plaintiff is barred

¶99

13 -

¶100

NC: 2025:KHC-D:8821 MSA No. 100006 of 2022

¶101

HC-KAR

¶102

by limitation as per the provisions of Limitation Act. Hence, the trial Court has correctly considered the plaint averments and rightly rejected the plaint. But these facts are not at all considered by the First Appellate Court, but blindly set aside the order of the trial Court and remanded the case to the trial Court.

¶103

Therefore, the judgment and order passed by the First Appellate Court is not correct. Thus, it is liable to be set aside by confirming the order passed by the trial Court. Accordingly, I answer the point for consideration in the affirmative. Resultantly, I proceed to pass the following:

¶104

ORDER

¶105

i) The appeal is allowed.

¶106

ii) The judgment and order dated

¶107

14.12.2021, passed by the II Additional Senior

¶108

Civil Judge and JMFC, Belagavi, in R.A.No.89/2020, is set aside.

¶109