Smt Gowramma Vs Smt Susheelamma

SMT GOWRAMMA W/O SRI TYAGARAJAREDDY, D/O LATE SRI K.T NARAYANA REDDY, AGED ABOUT 61 YEARS, R/AT FLAT NO.35, SRI. VENKATESHWARA NILAYA, DODDAKANNALLI, SARJAPUR MAIN ROAD, BENGALURU-560 035

¶13

…APPELLANT

¶14

(BY SRI. YESHU BABA R MISHRA, ADVOCATE)

¶15

Digitally signed by PANKAJA S Location: HIGH COURT OF KARNATAKA

¶16

AND:

¶17

SMT. SUSHEELAMMA AGED ABOUT 82 YEARS, W/O LATE SRI. K.T NARAYANA REDDY, R/AT DODDA KANNALI GRAMA KARMALARAM POST, VARTUR HOBLI, BENGALURU SOUTH TALUK, BENGALURU-560 087

¶18

SRI. N. SWAMY S/O LATE SRI NAINA, AGED ABOUT 87 YEARS, R/AT NO 66/2, VIVIYANI ROAD,

¶19

2 - NC: 2025:KHC:35666-DB RFA No. 456 of 2023

¶20

HC-KAR

¶21

FRAZER TOWN, BENGALURU-560 005

¶22

SRI PAPA REDDY S/O LATE SRI APAYANNA, AGED ABOUT 68 YEARS, R/AT NO 59/2, APPA REDDY PALYA, INDIRANAGAR, BENGALURU-560 038

¶23

SRI. M. PRABHAKAR REDDY S/O SRI. P.M RAMESH, AGED ABOUT 70 YEARS, R/AT NO.150, 16^TH CROSS, INDIRANAGAR, II STAGE, BENGALURU-560 038

¶24

SRI. M.R SATISH S/O SRI. M.R RAMESH, AGED ABOUT 51 YEARS, R/AT SY NO 83/4, DODDAKONNALI, NEXT TO HDFC BANK, SARJAPURA MAIN ROAD, OPPOSITE STAR BAZAR, BENGALURU-560 035

¶25

…RESPONDENTS

¶26

(BY SRI. ARJUN P.K, ADVOCATE FOR C/R5)

¶27

THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41 RULE 1 OF CPC AGAINST THE ORDER DATED 29.11.2022 PASSED ON IA No. II/2018 IN OS No.4609/2018 ON THE FILE OF THE XXXIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, ALLOWING THE IA FILED UNDER ORDER VII RULE 11(a) AND (d) R/W SEC.151 OF CPC FOR REJECTION OF PLAINT.

¶28

THIS APPEAL HAVING BEEN RESERVED FOR JUDGMENT ON 03.09.2025 COMING ON FOR PRONOUNCEMENT THIS DAY, RAJESH RAI K, J., DELIVERED THE FOLLOWING:

¶29

CORAM: HON'BLE MRS. JUSTICE ANU SIVARAMAN and

¶30

HON'BLE MR. JUSTICE RAJESH RAI K

¶31

3 -

¶32

NC: 2025:KHC:35666-DB RFA No. 456 of 2023

¶33

HC-KAR

¶34

CAV JUDGMENT

¶35

(PER: HON'BLE MR. JUSTICE RAJESH RAI K)

¶36

This Regular First Appeal is filed by the appellant-plaintiff challenging the order dated 29.11.2022 passed on I.A.No.II/2018 filed by defendant No.5 i.e., respondent No.5 under Order VII Rule 11 (a) & (d) of CPC in O.S.No.4609/2018 before the learned XXXIV Additional City Civil and Sessions Judge, Bengaluru (" the Trial Court ", for short) whereby, the Trial court allowed I.A.No.II/2018 with costs and consequently, rejected the plaint for want of cause of action and as barred by limitation.

¶37

For the sake of convenience, the parties are referred to by their ranks before the Trial Court.

¶38

The abridged facts of the case are as under:

¶39

The plaintiff filed a suit for partition and separate possession of her 1/2 share in the agricultural land bearing survey No. 83/4 measuring 0.22 guntas situated at Dodakannelli Village, Varthur Hobli, Bengaluru South Taluk (" the suit schedule property ", for short) and to declare the

¶40

4 - NC: 2025:KHC:35666-DB RFA No. 456 of 2023

¶41

HC-KAR

¶42

Sale Deeds executed with respect to suit schedule property as not binding on her and such other reliefs.

¶43

Further, it is the case of the plaintiff that her grandfather late Thimma Reddy @ Chikka Thimma Reddy was the absolute owner of the suit schedule property. The suit schedule property is the ancestral property of late Thimma Reddy @ Chikka Thimma Reddy who was married to Smt.Obakka and was succeeded by one son i.e., late K.T. Narayan Reddy, who is the father of the plaintiff and defendant No.1 is the mother of the plaintiff. The plaintiff's grandfatherThimma Reddy died intestate in the year 1958 and her fatherNarayan Reddy died intestate in the year 1962. Subsequently, her grandmother-Obakka has passed away intestate on 25.12.2016.

¶44

The plaintiff and defendant No.1 are the only legal heirs/successors succeeding to the suit schedule property. After the death of the plaintiff's grandmother, the plaintiff approached defendant No. 1 for partition of the suit schedule property. Defendant No.1 was continuously avoiding the plaintiff and subsequently, on 03.06.2018, when the plaintiff

¶45

5 - NC: 2025:KHC:35666-DB RFA No. 456 of 2023

¶46

HC-KAR

¶47

approached defendant No.1 seeking partition of the suit schedule property, she came to know that defendant No.1 without having exclusive right and title over the suit schedule property, had already sold the same to defendant No.2 through a registered Sale Deed dated 16.02.1993. The 2^nd defendant subsequently sold the schedule property in favour of defendant No.3 through a registered Sale Deed dated 20.10.1994, who in turn executed a registered Sale Deed dated 03.05.1995 in favour of defendant No.4. Further, defendant No.4 has sold the suit schedule property in favour of defendant No.5 through a registered Sale Deed dated 10.05.2000. Hence, the plaintiff filed the suit for partition and for a declaration that the aforesaid Sale Deeds were not binding on her.

¶48

After the service of suit summons, defendant Nos.1 to 4 were placed exparte and defendant No.5 appeared through his counsel and filed his written statement denying the plaint averments and also filed an application for rejection of plaint under Order VII Rule 11 (a) & (d) of CPC. However, the said application was opposed by the plaintiff by filing objections.

¶49

6 - NC: 2025:KHC:35666-DB RFA No. 456 of 2023

¶50

HC-KAR

¶51

The Trial Court, upon perusal of the pleadings of the parties as enumerated in the plaint, I.A.No.II/2018 and objections, framed the following point for consideration:

¶52

"Whether the defendant No.5 has made out the grounds to allow the application filed under order 7 rule 11(a) and (d) read with Section 151 of CPC to reject the plaint for want of cause of action and barred by limitation?"

¶53

On hearing the learned counsel for the parties and on assessment of oral submissions and documents placed by both the parties, the Trial Court answered the aforesaid point in the affirmative and allowed I.A.No.II/2018 filed by defendant No.5 and rejected the plaint for non-disclosure of cause of action and as barred by limitation. Aggrieved by the said order, the plaintiff preferred the instant appeal.

¶54

Heard the learned counsel Sri. Yeshu Baba R Mishra., for the plaintiff/appellant and the learned counsel Sri. Arjun P.K., for the defendant No.5/respondent No.5.

¶55

7 - NC: 2025:KHC:35666-DB RFA No. 456 of 2023

¶56

HC-KAR

¶57

The primary contention of the learned Counsel for the appellant/plaintiff is that the Trial Court has erroneously came to conclusion that there is no cause of action for the plaintiff to file the present suit and that the same is barred by law of limitation. Further, he contended that while considering an application under Order VII Rule 11 (a) and (d) r/w Section 151 of CPC, the averments in the plaint alone have to be examined and no other extraneous factors can be taken into consideration. In the instant case, the execution of the Sale Deeds and its genuineness has to be tested on the basis of evidence to be led by the parties. In support of this argument, he has relied upon the judgment in the case of H.S.DEEKSHIT

¶58

& ANOTHER Vs. METROPOLI OVERSEAS LIMITED & OTHERS - 2022 SCC Online SC 2024 .

¶59

He further contended that the Trial Court has failed to consider that as per the provisions of Hindu Succession Act, 1956, a Hindu female will be entitled to a share as a coparcener at the time of her birth and the question that she was a major when defendant No.1 sold the suit schedule property in favour of defendant No.2 through a registered Sale Deed dated

¶60

8 - NC: 2025:KHC:35666-DB RFA No. 456 of 2023

¶61

HC-KAR

¶62

16.02.1993, does not affect the right, title or interest of the plaintiff in any manner, whatsoever. The right to sue for partition arises when the plaintiff demands partition and she is denied of her rightful share, which could be at any time when she desires partition.

¶63

He further contended that the question of limitation exhausts in a suit for partition only if the defendant proves an ouster of the plaintiff from the joint family property. Since the said aspect is not pleaded, the Trial Court has erred by rejecting the plaint on the ground of limitation.

¶64

Additionally, he contended that the Trial Court has failed to appreciate the law laid down by the Hon'ble Apex Court that rejection of plaint under Order VII Rule 11 of CPC is a drastic power conferred on the court to terminate a civil action at the threshold. Therefore, the conditions precedent to the exercise of power are stringent and it is especially so when rejection of plaint is sought on the ground of limitation. When a plaintiff claims that she gained knowledge of the essential facts giving rise to the cause of action only at particular point in time, the same has to be accepted at the stage of considering

¶65

9 - NC: 2025:KHC:35666-DB RFA No. 456 of 2023

¶66

HC-KAR

¶67

the application under Order VII Rule 11 of CPC. Accordingly, he prays to allow the appeal by setting aside the order of the Trial Court and restoring the suit.

¶68

Per contra , the learned counsel for the respondent/defendant No.5 contended that the plaintiff filed the suit after lapse of more than 25 years from the date of execution of the registered Sale Deed dated 16.03.1993 by the mother of the plaintiff i.e., defendant No.1 in favour of defendant No.2. Nevertheless, the plaintiff was one of the attesting witnesses to the said registered Sale Deed. Thereafter, the multiple sale transactions have been effected and ultimately, defendant No.5 purchased the suit schedule property through the registered Sale Deed dated 10.05.2000. Since the plaintiff was the witness to the Sale Deed executed by her mother in the year 1993 itself, the plaintiff would have filed the suit within three years from the date of execution of Sale Deed dated 16.02.1993 as per Article 58 of the Limitation Act, or otherwise, she would have filed the suit within twelve years from the date of said Sale Deed as per Article 136 of the Limitation Act to maintain a suit for partition. In such

¶69

10 - NC: 2025:KHC:35666-DB RFA No. 456 of 2023

¶70

HC-KAR

¶71

circumstances, the suit is hopelessly barred by limitation. Accordingly, he prays to dismiss the appeal.

¶72

Having heard the learned counsel for the parties, the sole point that arises for our consideration is:

¶73

"Whether the Trial Court is justified in allowing I.A.No.II/2018, thereby rejecting the plaint in O.S.No.4609/2018?"

¶74

It could be gathered from the records that

¶75

defendant No.1, mother of the plaintiff executed the registered Sale Deed dated 16.02.1993 in favour of defendant No.2. Thereafter, multiple Sale Deeds have been executed in respect of suit schedule property and ultimately defendant No.5 purchased the suit schedule property vide Sale Deed dated 10.05.2000. The claim of the plaintiff that she had no knowledge about the execution of the said Sale Deed does not hold much water for the reason that the Sale Deed dated 16.02.1993 was a registered one and the plaintiff being the daughter of defendant No.1, the vendor, affixed her signature as a witness on the said Sale Deed. Nevertheless, the Sale

¶76

11 - NC: 2025:KHC:35666-DB RFA No. 456 of 2023

¶77

HC-KAR

¶78

Deed dated 16.02.1993 primarily amounts to constructive notice to all the members of the joint family as the same is a registered document. Explanation I to Section 3 of the Transfer of Property Act states that the transaction relating to an immovable property needs to be effected by a registered instrument under law, then the registration of document will be deemed as a constructive notice. The notice of such instrument will be deemed from the date of registration of such instrument. As such, in the instant case, the plaintiff being the signatory to the Sale Deed as a witness cannot claim that she was unaware of the said sale transaction.

¶79

The other argument advanced by the learned counsel for the appellant that the question of limitation can be considered in a suit for partition, only if the defendant proves an ouster of the plaintiff from the joint family property is concerned, the prayer sought by the plaintiff for partition cannot be considered without declaring the Sale Deed dated 16.02.1993 and the subsequent Sale Deeds as null and void. In such circumstances, the limitation arose for filing the suit either under Article 58 of the Limitation Act in the year 1996 i.e.,

¶80

12 - NC: 2025:KHC:35666-DB RFA No. 456 of 2023

¶81

HC-KAR

¶82

three years from 16.02.1993 or under Article 136 of the Limitation Act in the year 2005 i.e., twelve years from 16.02.1993.

¶83

The Hon'ble Apex Court in the case of SHRI MUKUND BHAVAN TRUST & OTHERS Vs. SHRIMANT CHHATRAPATI UDAYA RAJE PRATAPSINGH MAHARAJ BHONSLE & ANOTHER - 2024 SCC Online SC 3844 has held in paragraphs 16 and 18 as under:

¶84

"16. When a portion of the property has been conveyed by court auction and registered in the first instance and when another portion has been conveyed by a registered sale deed in 1952, there is a constructive notice from the date of registration and the presumption under Section 3 of the Transfer of Property Act, comes into operation. The possession, in the present case, also has been rested with the appellant before several decades, which operates as notice of title. This Court in R.K. Mohd. Ubaidullah v. Hajee C. Abdul Wahab22, held as follows:

¶85

“15. Notice is defined in Section 3 of the Transfer of Property Act. It may be actual where the party has actual knowledge of the fact or constructive. “A person is said to have notice” of a fact when he actually knows that

¶86

13 - NC: 2025:KHC:35666-DB RFA No. 456 of 2023

¶87

HC-KAR

¶88

fact, or when, but for wilful abstention from an inquiry or search which he ought to have made, or gross negligence, he would have known it. Explanation II of said Section 3 reads:

¶89

“Explanation II.—Any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof.”

¶90

Section 3 was amended by the Amendment Act of 1929 in relation to the definition of “notice”. The definition has been amended and supplemented by three explanations, which settle the law in several matters of great importance. For the immediate purpose Explanation II is relevant. It states that actual possession is notice of the title of the person in possession. Prior to the amendment there had been some uncertainty because of divergent views expressed by various High Courts in relation to the actual possession as notice of title. A person may enter the property in one capacity and having a kind of interest. But subsequently while continuing in

¶91

14 - NC: 2025:KHC:35666-DB RFA No. 456 of 2023

¶92

HC-KAR

¶93

possession of the property his capacity or interest may change. A person entering the property as tenant later may become usufructuary mortgagee or may be agreement holder to purchase the same property or may be some other interest is created in his favour subsequently. Hence with reference to subsequent purchaser it is essential that he should make an inquiry as to the title or interest of the person in actual possession as on the date when the sale transaction was made in his favour. The actual possession of a person itself is deemed or constructive notice of the title if any, of a person who is for the time being in actual possession thereof. A subsequent purchaser has to make inquiry as to further interest, nature of possession and title under which the person was continuing in possession on the date of purchase of the property. In the case on hand Defendants 2 to 4 contended that they were already aware of the nature of possession of the plaintiff over the suit property as a tenant and as such there was no need to make any inquiry. At one stage they also contended that they purchased the property after contacting the plaintiff, of course, which contention was negatived by

¶94

15 - NC: 2025:KHC:35666-DB RFA No. 456 of 2023

¶95

HC-KAR

¶96

the learned trial court as well as the High Court. Even otherwise the said contention is self-contradictory. In view of Section 19(b) of the Specific Relief Act and definition of “notice” given in Section 3 of the Transfer of Property Act read along with Explanation II, it is rightly held by the trial court as well as by the High Court that Defendants 2 to 5 were not bona fide purchasers in good faith for value without notice of the original contract.”

¶97

Continuing further with the plea of limitation, the Courts below have held that the question of the suit being barred by limitation can be decided at the time of trial as the question of limitation is a mixed question of law and facts. Though the question of limitation generally is mixed question of law and facts, when upon meaningful reading of the plaint, the court can come to a conclusion that under the given circumstances, after dissecting the vices of clever drafting creating an illusion of cause of action, the suit is hopelessly barred and the plaint can be rejected under Order VII Rule 11. In the present case, we have already held that 02.03.2007 is a fictional date. It is not a case where a fraudulent document was created by the appellant or his predecessors. The title of the suit property as observed by us earlier was conveyed in

¶98

16 - NC: 2025:KHC:35666-DB RFA No. 456 of 2023

¶99

HC-KAR

¶100

1938 and 1952, and what transpired later by way of compromise was only an affirmative assertion by the State. While so, the prayer (a) made in the suit relates to declaration to the effect that the Respondent No. 1 is the owner of the suit properties."

¶101

Applying the ratio laid down by the Apex Court in

¶102

Shri Mukund Bhavan 's case cited supra to the facts and circumstances of this case, we are of the view that the Trial Court has rightly passed the impugned order, which does not call for any interference. Accordingly, we answer the point raised above in the 'affirmative'. Consequently, the appeal is

¶103

dismissed .

¶104

All pending I.As. stand disposed of.

¶105

SD/(ANU SIVARAMAN) JUDGE

¶106

SD/(RAJESH RAI K) JUDGE

¶107

PKS

¶108

List No.: 1 Sl No.: 1

Smt Gowramma v. Smt Susheelamma

Case brief

What is this about?

What did the court decide?

Smt Gowramma v. Smt Susheelamma

Case brief

What is this about?

What did the court decide?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Adyah Solar Energy Private Limited Vs Smt. Vyshali.M.L

Thippeshappa Dead by His Lrs Kalamma Vs the Assistant Commissioner / Land Acquisition Officer

The Assistant Executive Engineer Vs B S Umapathi

Jayanthi Ramesh Vs Subramani

Smt. Anguri Khatun Biswas Vs the State of Karnataka

Sri. Chikkaraju B Vs the State of Karnataka