Sri. Anand Kumar Vs Sri. Chandrashekhar P M

5 . SRI. S. B. MAHADEVAIAH S/O. LATE BORAIAH AND MANGALAMMA, AGED ABOUT 49 YEARS, ALL RESIDING AT SHIVANAHALLI, GARDEN HOUSE, HOSAKERE POST, HAGALAVADI HOBLI, GUBBI TALUK, TUMKUR DISTRICT - 572 222.

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...APPELLANTS

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(BY SRI. K.G.RAGHAVAN, SENIOR COUNSEL FOR SRI. SIDDAPPA V D., ADVOCATE)

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AND:

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1 . SRI. CHANDRASHEKHAR P M S/O. LATE MUDDAGANGAPPA. P. N., AGED ABOUT 67 YEARS,

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2 . SRI. GANGADHAR. P. M. S/O. LATE MUDDAGANGAPPA. P. N., AGED ABOUT 54 YEARS,

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3 . SRI. JADADESHA. P. M. S/O. LATE MUDDAGANGAPPA. P. N., AGED ABOUT 49 YEARS,

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4 . SRI. KUMARASWAMY. P. M. S/O. LATE MUDDAGANGAPPA. P. N., AGED ABOUT 46 YEARS,

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SL. NO.1 TO 4 ARE R/AT NO. 2603, 6TH MAIN, WARD NO. 133, HAMPINAGAR, VIJAYANAGAR, BENGALURU - 560 040.

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5 . SRI. BASAVARAJU S/O. LATE BORANNA, AGED ABOUT 58 YEARS,

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6 . SRI. HARISH KUMAR. B S/O. LATE BORANNA, AGED ABOUT 53 YEARS,

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7 . SMT. SHIVAMMA D/O. LATE BORANNA, AGED ABOUT 64 YEARS,

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8 . SMT. VANAJAKSHI D/O. LATE BORANNA, AGED ABOUT 62 YEARS,

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SL. NO.5 TO 8 ARE R/AT NEAR CIRCLE MARAMMA DEVASTHANA

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PATTANAGERE, BHEL BADAVANE, R.R. NAGAR POST BENGALURU - 560 098.

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9 . SRI. PANCHAKSHARAIAH S/O. LATE SHIVANNA AND DEVIRAMMA, AGED ABOUT 68 YEARS,

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10 . SMT. GIRIJAMMA D/O. LATE SHIVANNA AND DEVIRAMMA, AGED ABOUT 65 YEARS,

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11 . SRI. RENUKAARADHYA S/O. LATE SHIVANNA AND DEVIRAMMA, AGED ABOUT 61 YEARS,

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D9 TO D11/R9 TO 11 ARE R/AT VADALURU AT POST, NITTUR HOBLI, GUBBI TALUK, TUMKUR DISTRICT - 572 223.

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12 . SRI. S. GANGANNA S/O. LATE SIDDAPPA, AGED ABOUT 79 YEARS,

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13 . SRI. SOMSHEKHAR. G S/O. S. GANGANNA, AGED ABOUT 60 YEARS,

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14 . SRI. G. PRAKASH S/O. S. GANGANNA, AGED ABOUT 53 YEARS,

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15 . SMT. SHARADAMMA D/O. S. GANGANNA, AGED ABOUT 62 YEARS,

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16 . SMT. NAGARATHNA. G D/O. S. GANGANNA, AGED ABOUT 48 YEARS,

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SL.NO.12 TO 16 ARE R/AT "SIDDALINGESHWARA NILAYA", GARDEN HOUSE, PATTANAGERE, BHEL BADAVANE, R.R. NAGAR POST, BENGALURU - 560 098.

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17 . SMT. SHIVAMMA W/O. LATE MAHADEVAIAH, AGED ABOUT 75 YEARS,

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18 . SMT. SHWETHA. B. C. W/O. LATE SRI. SURESH. M, AGED ABOUT 38 YEARS,

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19 . KUM. AKSHATHA. S D/O. LATE SURESH. M, AGED ABOUT 09 YEARS,

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20 . MASTER PRANAV. S S/O. LATE SURESH. M, AGED ABOUT 07 YEARS,

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(SL. NO. 19 AND 20 ARE MINORS, REPRESENTED BY THEIR MOTHER AND NATURAL GUARDIAN HEREIN D-18/R-18)

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21 . SMT. KALPANA D/O. LATE B. MAHADEVAIAH, AGED ABOUT 42 YEARS,

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22 . SMT. SUSHEELA. M D/O. LATE B. MAHADEVAIAH, AGED ABOUT 40 YEARS,

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D21 & 22/R21 & 22 ARE R/AT NO. 20, NEAR BASAVANNA TEMPLE, PATTANGERE, R.R. NAGAR POST, BENGALURU - 560 098.

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23 . SMT. PUTTAMANI. H. S. W/O. LATE PANCHAKSHARI @ B. PANCHALINGAIAH, AGED ABOUT 72 YEARS,

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24 . SRI. PRAVEEN. P S/O. LATE PANCHAKSHARI @ B. PANCHALINGAIAH, AGED ABOUT 44 YEARS,

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25 . SRI. TEJAVATHI W/O. PRAVEEN. P, AGED ABOUT 42 YEARS,

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D-23 TO 25/R-23 TO R-25 ARE R/AT NO. 1106, 17TH CROSS, 30TH MAIN, NEAR RAGHAVENDRASWAMI TEMPLE, BANASHANKARI 2ND STAGE, BENGALURU - 560 070.

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26 . MASTER JEEVAN. P S/O. PRAVEEN. P,

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AGED ABOUT 15 YEARS,

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(R26/R-26 IS MINOR, REPRESENTED BY HIS FATHER AND NATURAL GUARDIAN HEREIN, D26/R-24)

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27 . SMT. UMADEVI W/O. LATE SHANTHARAJU @ SHANTHAPPA. B, AGED ABOUT 64 YEARS,

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28 . SMT. NANDINI. P. S. D/O. LATE SHANTHARAJU @ SHANTHAPPA. B, AGED ABOUT 35 YEARS,

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29 . SRI. CHETHAN. P. S. S/O. LATE SHANTHARAJU @ SHANTHAPPA. B, AGED ABOUT 37 YEARS,

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30 . SMT. SAHANA. B. M. W/O. CHETHAN. P. S., AGED ABOUT 29 YEARS,

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31 . SIR. NAGARAJU. B S/O. LATE BASAPPA, AGED ABOUT 65 YEARS,

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32 . SMT. SUMITHRA. R W/O. NAGARAJU. B, AGED ABOUT 63 YEARS,

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33 . SRI. SACHIN NAGARAJU S/O. NAGARAJU. B, AGED ABOUT 35 YEARS,

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34 . SMT. GEETHANJALI W/O. SACHIN NAGARAJU, AGED ABOUT 30 YEARS,

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35 . SMT. KAVYA D/O. NAGARAJU. B, AGED ABOUT 34 YEARS,

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36 . SRI. PRAKASH S/O. LATE BASAPPA, AGED ABOUT 62 YEARS,

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37 . SMT. NANJUNDAMMA W/O. LATE GANGANNA, AGED ABOUT 65 YEARS,

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38 . SRI. SOMASHEKHAR S/O. LATE GANGANNA, AGED ABOUT 38 YEARS,

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39 . SRI. LOKESH S/O. LATE GANGANNA, AGED ABOUT 40 YEARS,

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40 . SMT. SHASHIKALA D/O. LATE GANGANNA, AGED ABOUT 45 YEARS,

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41 . SMT. GUNAVATHI D/O. LATE GANGANNA, AGED ABOUT 43 YEARS,

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D27 TO 41/R27 TO 41 ARE R/AT DURGAPARAMESHWARI LAYOUT, HALAGEVADERAHALLI, R. R. NAGAR BENGALURU - 560 098.

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42 . SMT. PARVATHAMMA W/O. LATE SHADAKSHARI, AGED ABOUT 76 YEARS,

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43 . SRI. SIDDALINGAIAH S/O. LATE SHADAKSHARI, AGED ABOUT 53 YEARS,

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D42 & D43/R42 & R43 ARE R/AT NO. 67, 7TH MAIN, 1ST CROSS, SUBHASH NAGAR, KENGERI NEW TOWN, BENGALURU - 560 060.

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44 . SMT. DRAKSHANAMMA W/O. LATE SHANMUKAPPA, D/O. LATE SHIVANNA, AGED ABOUT 82 YHEARS, R/AT IRAKASANDRA VILLAGE AND POST, CHELURU HOBLI, GUBBI TALUK, TUMKUR DISTRICT - 572 117.

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45 . SMT. MARIBASAVAMMA @ BASAMMA W/O. LATE R. JAYANNA, D/O. LATE SHIVANNA, AGED ABOUT 83 YEARS, R/AT R.J. CYCLE SHOP, HESARAGHATTA, BENGALURU - 560 088.

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46 . SMT. SHIVAMMA W/O. LATE VARAPRASADA, AGED ABOUT 69 YEARS,

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47 . SRI. MALLIKARJUNA S/O. LATE VARAPRASADA, AGED ABOUT 38 YEARS,

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48 . SRI. MRUTHYUNJAYA S/O. LATE VARAPRASADA, AGED ABOUT 36 YEARS,

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49 . SMT. CHANDRAKALA D/O. LATE VARAPRASADA, AGED ABOUT 41 YEARS,

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50 . SMT. SHOBHA D/O. LATE VARAPRASADA, AGED ABOUT 31 YEARS,

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D46 TO 50/R46 TO 50 ARE

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R/AT IRAKASANDRA VILLAGE AND POST, CHELURU HOBLI, GUBBI TALUK,

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TUMKUR DISTRICT - 572 117.

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51 . SMT. K. B. SHANTHAMMA W/O. LATE P. S. MAHALINGAPPA, MAJOR IN AGE, R/AT NO.52/11, NEAR CIRCLE MARAMMA TEMPLE, BHEL LAYOUT, PATTANAGERE VILLAGE, R.R. NAGAR, BENGALURU - 560 098.

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52 . M/S. SRR INFRA HAVING ITS OFFICE AT NO. 759, 3RD FLOOR, 11TH MAIN ROAD, VINAYAKA LAYOUT, NAGARBHAVI 2ND STAGE, BENGALURU - 560 072.

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REPRESENTED BY ITS PROPRIETORS,

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SHRI. N. SUNIL REDDY,

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SHRI. YASHWANTH REDDY. G. N. 3. SMT. MEENAKSHI.

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53 . SMT. SUMANGALA W/O. LATE BASAVARAJ HALAGERI, AGED ABOUT 55 YEARS, R/AT SY. NO. 52/11, NEAR CIRCLE MARAMMA TEMPLE, BHEL LAYOUT, PATTANAGERE VILLAGE, R.R. NAGAR POST, KENGERI HOBLI, BENGALURU SOUTH TALUK.

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54 . SRI. K. H. MANJAPPA S/O. LATE HANUMANTHAIAH,

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AGED ABOUT 63 YEARS, R/AT NO. 66, 2ND CROSS, WARD NO. 125, MARENAHALLI WARD, CENTRAL EXCISE LAYOUT, VIJAYANAGAR, BENGALURU - 560 040.

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…RESPONDENTS

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(BY VIDE ORDER DATED:18/12/2024, NOTICE TO R1 TO R26, R29 TO R51, R53 & R54 ARE DISPENSED WITH;

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SRI. UDAYA HOLLA, SENIOR COUNSEL FOR SRI. C.V.KRISHNAN, ADVOCATE FOR C/R27 & R28; SRI. K.B.MONESH KUMAR, ADVOCATE FOR C/R52)

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THIS RFA IS FILED UNDER ORDER XLI RULE 1 OF CPC, AGAINST THE ORDER DATED 12.07.2024 PASSED ON IA NO.4 IN OS.NO.6768/2023 ON THE FILE OF THE XVII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE BENGALURU, ALLOWING THE IA NO. 4 FILED U/O VII RULE 11(A) AND (D) OF CPC FOR REJECTION OF PLAINT.

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THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 18.12.2024 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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RESERVED FOR ORDERS ON: 18.12.2024 PRONOUNCED ON : 08.01.2025

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CORAM: HON'BLE MR. JUSTICE K NATARAJAN

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CAV JUDGMENT

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This appeal is filed by the appellants under Order XLI Rule 1 of CPC for setting aside the order dated 12.07.2024 passed in O.S. No.6768/2023 by the XVII Additional City Civil and Sessions Judge, Bengaluru, whereby the trial Court has allowed I.A. No.4 filed by the respondents under Order VII Rule 11(a) and (d) of CPC for rejection of plaint.

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Heard the arguments of learned Senior Counsel appearing for the appellants' Counsel and learned Senior Counsel appearing for the respondents' Counsel.

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The appellants were the plaintiffs and the respondents

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were the defendants before the trial Court. Hence, the rank of the parties as before the trial Court is retained for the sake of convenience.

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The case of the appellants-plaintiffs is that they have filled

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the aforesaid suit for partition and separate possession of the suit

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schedule properties and for mesne profits, under Order XX Rule 12 of CPC, from the date of suit till the date of effecting partition.

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The claim of the plaintiffs in their suit is that, plaintiffs and defendants No.1 to 48 are the members of undivided Hindu joint family being the descendants of Boranna, who was their propositor and the Plaintiffs and Defendants are the successors and coparceners of Hindu Undivided joint family. The said Boranna died leaving behind four sons namely, Nanjundappa, Siddappa, Basappa and Shivanna. All the sons of Boranna died leaving behind their children as their survivors to their respective estate as legal heirs. Therefore, they are arrayed as defendants to the suit by the plaintiffs, as the plaintiffs and defendants together form a joint family under Hindu Mitakshara Law. A copy of genealogical tree is also produced before the Trial Court by the plaintiffs.

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The plaintiffs submit that the said Boranna along with his sons acquired ancestral and joint family properties both movable and immovable through joint labour and joint income derived out of joint family. Few properties were also granted in the name of elder family members by the Government of Karnataka which were also utilized as joint family property. The details of the property are described at para No.5 of the plaint, which are also described as

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schedule properties to the suit, are situated at Pattanagere Village, Kengeri Hobli, Bengaluru South Taluk. The gold, silver and bronze utensils are in the custody of defendant No.1. During the life time of Boranna, he performed marriages of his children and after the death of Boranna, his 1^st son Nanjundappa was taking care of the joint family and was looking after the revenue records of the joint family properties. During his life time, there was no partition and he died intestate. Thereafter, on his death, the 3rd son of Boranna i.e., Basappa took over management of joint family affairs and all the needs were met with the help of joint family funds. The female coparceners' marriages were performed with the help of joint family funds. Even after their marriages, the female co-parceners have continued joint possession, cultivation and enjoyment of suit schedule properties.

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The plaintiffs further stated in the plaint that after the

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death of late Basappa, his son Panchakshari, who being educated and well versed with revenue records, was looking after the management of joint family and the plaintiffs have reposed faith on him and were discharging their obligations as per instruction of the said Panchakshari. Till date, there is no partition between the children of Boranna, who died intestate.

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The grandfather of plaintiffs died on 10.05.1968 and the mother of Plaintiffs i.e., Smt. Mangalamma died on 20.07.2022 leaving behind them as her sole surviving legal heirs. After her death, Defendants No.1 and 12, being the eldest male members of joint family started showing hostile attitude towards the plaintiffs. Hence, a panchayath meeting was convened in the month of March 2023 at Pattanagere Village in the presence of all joint family members, during which time, plaintiffs sought for their legitimate share and separate possession over the joint family properties, but none of the joint family members came forward to allot plaintiffs' legitimate share over the joint family properties nor they provided any satisfactory reason to effect partition in the near future.

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The plaintiffs further stated that in view of non partitioning the joint family properties, they verified the entire revenue records with respect to the joint family properties which are the suit schedule properties to the suit, and came to know that the family members of Basappa, S/o Boranna have allegedly entered into partition deed amongst themselves with respect to suit schedule properties, without bringing to the knowledge of these plaintiffs, nor taking consent before partitioning amongst themselves. Hence, the said alleged partition deed becomes invalid in the eye of law and the same is not binding on these Plaintiffs. The plaintiffs are required to

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be made as parties to the said partition executed by family members of Basappa S/o Boranna, as they are the co-parceners of the Hindu undivided joint family.

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It has also stated in the plaint that, during verification of documents, the land bearing Sy. No.255, measuring 4 Acres 01 Gunta situated at Halage Vaderahalli Vilage, Kengeri Hobli, Bengaluru South has been acquired by Bengaluru Development Authority, to which, Nanjundappa S/o Boranna filed a claim petition in LAC No.36/1998 and received sum of Rs.10,66,131/-, which fact was not made known to any of these Plaintiffs nor their mother. By utilizing the said compensation amount, Nanjundappa S/o Boranna purchased properties mentioned as Item No.10 to 15 of Suit Schedule Properties. Therefore, the plaintiffs are also having legitimate right, title and interest over the same.

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It is further alleged that the plaintiffs also came to know that sons of late Sri. Siddappaa S/o Boranna have also executed Registered Sale Deed in respect of land bearing Sy. No.52/11 measuring 0.14.08 Guntas in favour of one, Smt. K.B. Shanthamma, and the same was executed without consent of these plaintiffs nor brought to their knowledge. Hence, the plaintiffs being the joint family members, their legitimate rights and share is

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involved over the said property, which has been sold by children of late Siddappa. In view of the aforesaid acts of execution of Sale Deeds by Nanjundappa and Siddappa, without notifying or taking consent before alienating the suit schedule property, and without partitioning the properties in favour of the plaintiffs even after convening a panchayath meeting, the plaintiffs issued a legal notice to the said purchaser K.B. Shanthamma narrating about the legitimate share and right over the said land purchased by her in Sy. No.52/11. Further, as per the partition made by Basappa without consent of these plaintiffs, his children also have entered into agreement of sale dated 07.09.2022 in respect of land bearing Sy.No.42/2 measuring 2 Acres 20 Guntas and Sy.No.42/1A measuring 6 guntas in favour of one, M/s. S.R.R. Infra, the Defendant No.52, Therefore, since the said agreement of sale is not binding on the plaintiffs, they got issued a legal notice dated 19.07.2023 to Defendant No.52 and sought for cancellation of said agreement.

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It is further submitted that the plaintiffs also came to know that few of the joint family members had already filed suits in O.S. No.25590/2015 and O.S. No.8105/2022, to which, these plaintiffs were not made as parties deliberately, which are pending for adjudication. Therefore, due to the aforesaid facts and

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circumstances of the case, the plaintiffs being co-parcenors having legitimate right, title and share over the joint family properties, have filed present suit seeking partition.

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On issuance of summons, the defendants entered appearance and on receipt of the summons, defendants No.27 to 30 filed their Vakalath and written statement and also an application in I.A. No.4 under Order VII Rule 11(a) and (d) read with Sec.151 of CPC on 27.11.2023 contending that the suit filed by the plaintiffs for the relief of partition and separate possession for share in the suit schedule properties, is not maintainable. It is contended that though the plaintiffs have stated that there is partition of suit schedule properties in the year 1968 by four sons of Boranna and same can be seen from RTCs from 1970-71, one Varaprasad has sold Item No.3 of Schedule Property by way of Sale Deed dated 25.04.1978, which is not challenged by the plaintiffs before the Court. The defendants contended that suit is barred by law and cannot seek for partition in the year 2023, which is filed after a lapse of 45 years. Item No.4 of Schedule Property bearing Sy. No.42/2 measuring 2 Acres and 20 Guntas excluding 2 guntas of kharab was partitioned at 1 Acre 10 guntas each. Further, after the death of Nanjundappa, Muddugangappa father of Plaintiffs succeeded to the said 1 Acre and 10 Guntas of land in Sy. No.42/2

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as per partition effected between Muddugangappa and his brother Boranna l.e., father of defendants No.5 to 8. The father of Defendants No.1 to 4 Muddugangappa sold said portion of 1 Acre and 10 guntas of land to Basappa, thus received entire land measuring 2 Acres 20 Guntas to his exclusive possession. After the death of said Basappa, his legal heirs, i.e., Ganganna, Panchalingaiah, Mahadevaiah, Shanthappa, Nagaraju and Prakash effected partition under the registered partition deed dated 01.04.2009. The plaintiffs have not challenged the said Sale Deed dated 07.02.1974 and hence, the plaintiffs cannot now seek the relief sought in the suit with respect to suit schedule property after a lapse of 45 years as there is a clear bar to file any suit. The defendants made allegations of fabrication of documents against the plaintiffs alleging that on false presumptions , the suit has been filed and the same is barred by law and sought for rejection of the plaint.

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The plaintiffs submit that after hearing the arguments by both the parties on I.A. No.4 filed by defendant No.27 to 30, the Trial Court passed order on 12.07.2024, which is impugned herein, by rejecting the suit of the plaintiffs and allowing the application 1.A. No.4. filed by defendants No.27 to 30 on 27.11.2023 under Order VII Rule 11(a) and (d) read with Sec.151 of CPC, opining that

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the cause of action is not properly forthcoming and that great grand-children have filed the suit for partition pertaining to suit schedule properties denying execution of Sale Deeds and that suit is not filed in time as per Article 109 of Limitation Act and the plaint is cleverly drafted with an intention to file the suit to make unlawful gain which requires to be curbed at the initial stage and that, as per Proviso to Sec. 6 of Amended Hindu Succession Act, nothing contained in sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of the property which had taken place before 20th of December 2024.

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The plaintiffs also filed statement of objections to I.A. No.4 filed by the defendants under Order VII Rule 11(a) and (d) of CPC, contending that para No.22 of the plaint clearly discloses the cause of action. The defendants have not stated any statement that the plaint is barred by limitation. Defendants No.27 to 30 have sought for rejection of plaint on the basis of written statement which is filed by them and they have not pointed out any defects in the plaint to seek for rejection of plaint, written statement cannot be looked into while adjudicating an application filed under Order VII Rule 11 of CPC. The plaintiffs have filed suit for partition and separate possession and issues are yet to be framed.

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On hearing the learned counsels for both sides, the trial Court passed the impugned order allowing the application filed under Order VII Rule 11 of CPC and rejected the plaint, which is under challenge.

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Learned senior counsel appearing for the appellantsplaintiffs has seriously contended that the trial Court has committed an error in allowing the I.A. and rejecting the plaint by looking into the contentions taken by the respondents-defendants in the written statement. The trial Court has not properly considered the provisions of Articles 109 and 110 of Limitation Act (hereinafter referred to as 'Limitation Act') by relying upon Article 58 of the Limitation Act, which is not correct. The plaintiffs who are the joint family members of the deceased Boranna, who is the propositus to the family of the plaintiffs, have been excluded the plaintiffs from partition, and there is mixed question of law and facts. It is contended that as per Article 109 of the Act, any claim if made for a share in joint property must be made within 12 years from the date when exclusion from the property becomes known to the aggrieved legal heir. Therefore, it cannot be said that there was partition prior to 45 years in the year 1968 itself. It is not the case of the plaintiffs that there was partition and sale deed. They came to know about the same when panchayath was held in March 2023. The plaintiffs

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were not the parties in the said suit filed by the defendants. Even the trial Court by placing reliance upon the written statement averments, rejected the plaint which is not correct. It is further contended that as per Article 109 of Limitation Act, any claim if made for a share in joint property must be made within 12 years from the date when exclusion from the property becomes known to the aggrieved legal heir. As per Article 110 of the Limitation Act, exclusion of the family of the plaintiff in the partition of the suit shall be filed within 12 years from the date of knowledge of the plaintiff. Therefore, limitation is the mixed question of facts and law and the plaint cannot be rejected. The defendants have taken the contention that their names were entered in RTCs. Therefore, the partition was not correct. The RTCs do not confer any title over the property. It is contended that the sale deed is executed by the defendants and not by the father of the plaintiffs and therefore, how the suit is bad, is not mentioned by the trial court. The earliest partition deed was the oral partition. There are no written documents. Therefore, the same is to be proved by way of the trial. Hence, prayed for allowing the appeal and requested the matter to be reminded back to the trial court for the trial.

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During the pendency of the appeal, the plaintiffs also filed the I.As. for production of additional documents, for the grant of

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injunction against the defendants not to alienate or create third party rights until disposal of the suit and for stay.

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Per contra, learned senior counsel appearing for the respondents' counsel has supported the order passed by the trial court contending that the partition was held in the year 1968, when Nanjundappa was a beneficiary, and the four children of Boranna, i.e. Nanjundappa, Siddappa, Basappa and Shivanna have shared the properties. In the year 1978, Shivanna died, leaving their children. One of the sons Virupaksha sold properties under partition. The plaintiffs are the great grand children and they are not entitled for any share in the suit schedule property. The revenue record reveals that the name of the defendants entered in the RTC. One of the defendants have received compensation from BDA for having acquired the land by the BDA. There is no cause of action for filing the suit. The children of Virupaksha already filed the suits in O.S. No.25590/2015 and O.S. No.8105/2022 and therefore, the suit is not maintainable. There was a long gap in filing the suit and also there is delay in filing the suit. Therefore, the suit is barred by limitation and hence, prayed for dismissal of the appeal.

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Having heard the arguments of learned counsel for the parties, perused the records.

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The point that arises for consideration is :

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(i) Whether the order of the trial Court rejecting the plaint under Order VII Rule 11(a) and (d) r/w - 151 of CPC calls for interference?

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Perusal of the records reveals that the plaintiffs have filed

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the aforesaid suit against the defendants for partition and separate possession claiming that they are the legal heirs from propositus of Boranna, who had four children namely Nanjundappa, Siddappa, Basappa and Shivanna. The contention of the defendants is that there was partition in the year 1968, thereby the RTCs were effected in the respective names of four children of Boranna. Thereafter, one of the sons sold the property in the year 1978 and the said sale deed was not challenged by the plaintiffs before the trial court and hence, the suit is not maintainable. It is also contended that another sale deed was executed by Virupaksha was also not challenged by the plaintiffs in the suit. Therefore, the suit is not maintainable.

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On careful reading of the order of the trial court for rejection of the plaint, it clearly depicts that the entire order is based upon the averments made in the written statement by the defendants and it is not based upon the averments made in the

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plaint. Perusal of the plaint averments, states that the plaintiffs were not having Knowledge regarding the sale of the property and partition made by the sons of Boranna. It is their case that the separate possession and partition is claiming right from their ancestor Boranna. In March 2023, they demanded the share of property in the Panchayat held in the village, wherein the defendants have not given proper explanation for denying the share to the plaintiffs. Therefore, the notice was issued demanding their share and thereafter, the suit was filed. It is also stated that the plaintiffs came to know that one of the defendants i.e. son of Boranana namely Nanjundappa received compensation on behalf of the joint family in LAC No.36/1998 and the same was not having the knowledge to the plaintiffs.

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The main contention of the learned senior counsel for the plaintiffs is that the sale deed was not effected by the father of the plaintiffs for invoking the provision of Article 109 of the Limitation Act and 12 years limitation was available for the plaintiffs to challenge the partition from the date of their knowledge.

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Articles 109 and 110 of the Act reads as under:

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Article 109 of the Limitation Act

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109. By a Hindu Twelve years When the governed by alienee takes Mitakshara law to possession of set aside his father's the property. alienation of ancestral property.

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Article 110 of the Limitation Act

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110. By a Person Twelve years When the excluded from a exclusion joint family property becomes to enforce a right to known to the share therein: plaintiff.

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It is well settled by the Hon'ble Supreme Court that that for rejection of the plaint, the court is required to consider the plaint averments and not the averments made in the written statement by the defendants. The Supreme Court in a recent judgement in case of SARANPAL KAUR ANAND V/s PRADUMAN SINGH CHANDHOK AND OTHERS reported in (2022)8 SCC 401

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has held that the limitation is the mixed question of law and facts and the plaint cannot be rejected solely on the ground that it is barred by limitation.

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The Hon'ble Supreme Court in a recent judgment in the case of M/s SHAKTI BHOG FOOD INDUSTRIES LIMITED Vs. THE CENTRAL BANK OF INDIA AND OTHERS reported in AIR 2020 SC 2721 has held that the cause of action for filing the suit would consist the bundle of facts and the factum of the suit being barred by the limitation would be mixed question of facts and law and accordingly, has held that the rejection of plaint is improper. The court should read the entire averments together in respect of the cause of action. In this case, the plaintiffs have stated that in the plaint that they came to know about partition through the panchayat held in March 2023. While demanding their share, the defendants have denied and not given any proper explanation. Subsequently, the plaintiffs verified the documents and came to know that there was alienation by Nanjundappa, the son of Boranna and RTCs were showing the name of the children of Boranna. Subsequently, one of the sons of Shivanna sold the property to the third parties without the knowledge of the plaintiffs. The plaintiffs also came to know about name of the respondents-defendants in the RTC and the alienation only in March 2023. As per the plaint averments, it is also mentioned that there was two suits filed by the defendants IN O.S. No.25590/2015 and O.S. No.8105/2022 where the plaintiffs were not made the parties in both the suits. It is not the case of the defendants or the plaintiffs that they are the parties

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to the suits filed in 2015 or 2022. In order to show that the plaintiffs are having knowledge about the selling of the property by Virupaksha under the alleged oral partition claimed by the defendants and in order to show that the suit is for partition barred by limitation, the trial court has considered Article 58 of the Limitation Act that the suit is required to be filed within three years for cancellation of sale deed. Whereas, the learned senior counsel for the plaintiffs has contended that the sale deed was not made by the father of the plaintiffs in order to seek cancellation within 12 years as per Article 109 of the Limitation Act. As stated above, Article 109 clearly says that if the alienation was made by the father of the plaintiffs and then within 12 years, the suit should be filed for cancellation of the deed. Admittedly, the father of the plaintiffs is not the vendor of the suit schedule property or alienated the property. Therefore, Article 58 is not applicable and even Article 109 is also not applicable. Under, Article 110 of the Limitation Act, when the plaintiffs are excluded in the partition, the suit should be filed within 12 years from the date of the knowledge. Therefore, as per the averments, they came to know of the partition in March 2023. The plaintiffs were not the parties to the earlier suits in O.S. No.25590/2015 and O.S. No.8105/2022. Therefore, it cannot be said the suit is barred by limitation. As held by the Hon'ble Supreme Court, the factum of suit being barred by limitation is

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mixed question of law and facts. On some ground of limitation or part of it, the plaint cannot be rejected. Therefore, the order of the trial Court under Order VII Rule 11(a) and (d) R/w Sec 151 of CPC cannot be sustainable in law.

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It is also contended by the defendants in the defence that the sale deed made by Nanjudnappa in the year 1978 and the sale deed made by Virupaksha, are not challenged. In the written statement, the defendants have stated that the plaintiffs were brought to the notice before the court that there was sale deed made by one of the defendants and the plaintiffs are having an opportunity seeking amendment to the plaint under Order VI Rule 17 of CPC for impleading the purchaser or for seeking cancellation of the sale deed. Such being the case, the finding of the trial court that the sale deed was made in the year 1978 and that after 45 years, the suit cannot be filed, is not a ground for rejection of the plaint. There is no time limitation prescribed by the law to seek partition by the joint family members from the joint family properties.

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That apart, merely some reference was entered in RTC itself, is not a ground to show that there was partition made in the family. There is no registered partition among the family members

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or children of Boranna. The partition is required to be proved by the defendants or the plaintiffs in the trial. Therefore, the contention of the learned Senior Counsel for the respondents-defendants cannot be accepted that the partition was effected a long back and it was in the knowledge of the plaintiffs.

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On perusal of the records, it reveals that the plaintiffs have no knowledge of the partition among the family and they were not the parties in the earlier suits and they were not having any knowledge of the sale to seek cancellation of the deed. The trial court has considered the averments made in the written statement and also the reply given by the defendants and came to the conclusion that the suit is appalled by limitation. Therefore, the same is liable to be set aside.

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The learned counsels for both sides have relied upon the various judgements in support of their respective contentions. It is well settled by the Hon'ble Supreme Court regarding the principles for rejection of the plaint and limitation. The Hon'ble Supreme Court in the case of Kamala & Ors Vs. K.T.Eshwara SA & Ors reported in (2008) 12 SCC 661 has held that mixed questions of law and facts which may require not only examination of the plaint but also other evidence. It cannot be determined at the stage of

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proceedings under Order VII Rule 11 of CPC. The Co-ordinate Bench of this Court in KHIRASA Vs. SHANTA @ GEETHA in CRP No.100095/2021 decided on 21.07.2022 has held that the issue of limitation is a mixed question of law and facts and therefore, the same is required to be considered after looking into the evidence that could be adduced by the parties in a full dressed trial and the plaint cannot be rejected on the ground of limitation. The same was held in the case of SAJJAN SINGH Vs. JASVIR KAUR AND OTHERS reported in 2023 LiveLaw (SUPREME COURT) 517 .

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This Court in case of MUNITHAYAMMA AND OTHERS

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Vs. BYANNA AND OTHERS in RSA No.1653/2021, has held that a person who is not a party to the alienation of coparcenery property need not seek cancellation of sale deed or a declaration that he is not bound by the alienation. The Hon'ble Supreme Court in SLP (C) No.26441/2014 in the case of SALIM D AGBOATWALA AND OTHERS Vs. SHAMALJI ODDHAVJI THAKKAR AND OTHERS has held that the plaint cannot be rejected, if the limitation is the mixed question of law and facts. It is further held by the Hon'ble Supreme Court in the case of H.S. DEEKSHIT AND ANOTHER Vs. M/S. MET ROPOLI OVERSEAS LIMITED AND OTHERS in Special Leave to Appeal (C) No.2177/2022 that for considering an application under Order VII Rule 11 of CPC, the averments made in

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the plaint alone are required to be examined and no other extraneous factor can be taken into consideration.

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In view of the above said judgements, it is clear that the trial Court has considered the averments made in the written statement for rejection of the plaint.

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Learned senior counsel for the defendant No.52 has relied upon the upon the judgement in K.C. LEELAVATHI Vs. RAMANJANAMMA AND OTHERS in R.F.A No.418/2017 decided on 08.08.2023, where the facts and circumstances of the said case is not applicable to the facts of the present case. In another case relied upon by the learned counsel for the respondent No.52 in case of RAGHWENDRA SHARAN SINGH Vs. RAM PRASANNA SINGH

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(DEAD BY LRS.) reported in (2019) AIR (SC) 1430 , the Hon'ble Supreme Court has held that the clever drafting by the plaintiff in order to overcome the limitation is not the part of the rejection of the plaint. Another judgement relied upon by the learned senior counsel for respondent in the case of DAHIBEN Vs. ARVINDBHAI

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KALYANJI BHANUSALI (GAJRA) DEAD THROUGH LEGAL REPRESENTATIVES AND OTHERS reported in (2020) 7 SCC 366 , the Hon'ble Supreme Court has held that under Order VII Rule 11(a) CPC, the Court has to find whether the plaint discloses real

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cause of action or illusory cause of action created by clever drafting, the Court must be vigilant against camouflage or suppression and if suit is found to be vexatious and an abuse of process of court, it shall exercise its drastic power under Rule 11 of CPC to reject the plaint. In the instant case, the facts of the case reveal that there is averment in plaint regarding the cause of action and they have not proved that there was sale deed by one of the joint family members and not sought for declaration to declare the sale deed as null and void or not binding on them. The plaint suit is a simple suit for partition and separate possession, claiming their share from the joint family members. Therefore, the order passed by the trial court for having rejected the plaintiffs' suit requires to be set aside and the matter requires to be remitted back to the trial court for trial by framing appropriate issues, and the parties are required to be allowed to lead their evidence after framing appropriate issues regarding the limitation and based upon the averments.

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The defendants are required to prove their contentions and the denial of plaint averments. Therefore, it is necessary for the trial Court to frame issues regarding the admitted facts and disputed facts, and the parties shall adduce evidence. The plaint cannot be rejected on the sole ground that it is barred by limitation as it is well settled that the issue of limitation would be mixed

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question of law and facts. Therefore, the order under challenge is required to be interfered by this Court. Accordingly, I answer point No.1 in the affirmative.

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As regards the I.A. No.2/2024 for temporary injunction, when the defendants are trying to alienate the property, it is necessary for this Court to protect the suit schedule property until disposal of the suit by the trial Court.

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Accordingly, the following order is passed:

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(i) The appeal is allowed.

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(ii) The order dated 12.07.2024 passed in O.S. No.6768/2023 by the XVII Additional City Civil and Sessions Judge, Bengaluru, on I.A. No.4 filed by the respondents under Order VII Rule 11(a) and (d) R/w sec. 151 of CPC, is here by set aside.

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(iii) The matter is remitted back to the trial Court for trial, allowing the parties to seek amendment and file the written statement.

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(iv) After framing the issues, the court shall dispose of the suit in accordance with law.

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(v) Both the parties are directed not to create any third party interest or alienate the suit schedule property or change the nature of the suit schedule property until disposal of the suit by the

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trial court. Accordingly, the I.A. for temporary injunction is disposed of.

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(vi) The other pending I.As. stand disposed of.

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(vii) No orders as to costs.

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Sd/(K.NATARAJAN)

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JUDGE