Sri Rajaram Sanne Vs Sri Nandish

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NC: 2026:KHC:25821 RFA No. 936 of 2022

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2^ND DAY OF JUNE, 2026

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BEFORE

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THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR REGULAR FIRST APPEAL NO.936 OF 2022 (RES)

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BETWEEN:

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SRI. RAJARAM SANNE S/O T.S.LAKSHMINARAYAN, AGED ABOUT 74 YEARS, RESIDING AT NO.1912, GREEN MOUNTAIN, APARTMENT NO.208, LITTLE ROCK, AF 7212, AIRPORT 501 302 5791, U.S.A.

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Digitally signed by THEJAS KUMAR N Location: HIGH COURT OF KARNATAKA

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SRI. MURULIDHAR SANNE S/O. T.S. LAKSHMINARAYAN, AGED ABOUT 72 YEARS, RESIDING AT CARLISLE DRIVE ARLINGTON TX, U.S.A. PIN 501 302 5791

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SRI. SREEMUKH SANNE S/O. T.S. LAKSHMINARAYAN, AGED ABOUT 70 YEARS, RESIDING AT NO.679, COUNTRY PALACE, DRIVE JACKSON, MS 392208, U.S.A. PIN 501 302 5791

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V SRIKANTHA SHARAMA @ V SRIKANTA SHARMA S/O VENKATARAMAIAH, AGED ABOUT 67 YEARS, RESIDING AT NO.684, 38^TH CROSS,

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HC-KAR

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16^TH MAIN, 4^TH ‘T’ BLOCK, JAYANAGARA, BENGALURU – 560 011.

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APPELLANTS 1 TO 3 ARE REPRESENTED BY THEIR GENERAL POWER OF ATTORNEY HOLDER MR. V SRIKANTHA SHARAMA, THE 4^TH APPELLANT HEREIN.

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…APPELLANTS

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(BY SRI. M S VARADARAJAN, ADVOCATE FOR SRI. M RAMA MOHAN, ADVOCATE FOR SRI. ABHILASH H S, ADVOCATE)

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AND:

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SRI. NANDISH S/O. NANJUNDAPPA, AGED ABOUT 43 YEARS,

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SRI. NANJUNAGOWDA S/O. NANJUNDAPPA, AGED ABOUT 41 YEARS,

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BOTH ARE RESIDENTS OF ANNESHWARA VILLAGE, KASABA HOBLI, DEVANAHALLI TALUK, BENGALURU RURAL DISTRICT – 562 114.

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…RESPONDENTS

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(BY SRI. SHYAME GOWDA H.V, ADVOCATE FOR R1 AND R2; SRI. M MURALI BABU, ADVOCATE FOR C/R2)

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THIS RFA IS FILED UNDER SECTION 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 31.01.2022 PASSED ON THE FILE OF THE II ADDL. SENIOR CIVIL JUDGE AND JMFC, DEVANAHALLI AND ETC.,

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NC: 2026:KHC:25821 RFA No. 936 of 2022

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HC-KAR

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

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CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

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ORAL JUDGMENT

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Though the appeal is listed for admission, with

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

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This Regular First Appeal is filed by the appellants/plaintiffs calling in question the order dated 31.01.2022 passed on I.A.No.II filed under Order VII Rule 11 (a) (b) and (d) read with Section 151 of CPC in O.S.No.924/2015 by the II Additional Senior Civil Judge and JMFC, Devanahalli¹ , thereby, the plaint filed by the plaintiffs was rejected.

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For the sake of convenience and easy reference, the parties are referred to as per their rankings before the Trial Court.

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1 hereinafter referred to as ‘the Trial Court’ for short.

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NC: 2026:KHC:25821 RFA No. 936 of 2022

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The plaintiffs have filed a suit for declaration to declare that they are the owners in possession of the suit schedule property and for permanent injunction by pleading that one Srinivasaiah was the absolute owner and in possession of the suit schedule land and he died issueless. His wife is Sundramma. Plaintiff Nos.1 to 3 are the sons of brother of the said Srinivasaiah; therefore, it is contended that the plaintiffs succeeded to the suit schedule land as Class-II legal heirs as per the provisions of the Hindu Succession Act, 1956 (‘H.S.Act, 1956’ for short). Hence, with these pleadings, the suit is filed for the above said relief. It is also stated in the plaint that the mother of plaintiff Nos.1 to 3 namely Jayalakshmi had earlier filed a suit in O.S.No.597/2007 claiming to be as Class-II legal heir and the said suit was dismissed for default. Plaintiff No.4 was the General Power of Attorney (GPA, for short) of plaintiff Nos.1 to 3 in O.S.No.597/2007. Hence, the sum and substance of the pleadings in the

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NC: 2026:KHC:25821 RFA No. 936 of 2022

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plaint that the plaintiffs have become owners of the property as Class-II legal heirs of Srinivasaiah.

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The defendants have entered appearance and filed a written statement and have also filed an application I.A.No.II under Order VII Rule 11 (a) (b) and (d) read with Section 151 of CPC, praying for rejection of the plaint. In the written statement, on merits, it is pleaded that the defendants are the owners of the suit schedule property and are in possession thereof. In support of the application, the defendants have contended that the mother of plaintiff Nos.1 to 3 had filed a suit in O.S.No.597/2007, which was dismissed for default; hence, the present suit is not maintainable. It is also contended that in the present suit, there is no cause of action and whatever cause of action pleaded is only illusory.

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Further, it is contended that the suit is barred by limitation and that if the right to file the suit accrued for the first time on the date of filing of O.S.No.597/2007,

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then the filing of the suit itself barred by limitation. Therefore, with these contentions, an application was filed for rejection of the plaint.

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Upon hearing, the Trial Court has allowed the application and rejected the plaint. The reasons assigned by the Trial Court are that on earlier occasion, the mother of plaintiff Nos.1 to 3 had filed a suit in O.S.No.597/2007 and the cause of action arose on 15.06.2007, whereas the present suit was filed in the year 2015. Hence, the suit is barred by limitation as per Article 58 of the Limitation Act, 1963. Therefore, the Trial Court has ordered for rejection of the plaint as the suit is barred by limitation.

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Upon hearing the arguments from both the

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learned counsels appearing for the parties and upon perusal of the materials produced by both the sides, the following point that would arise for my consideration:

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HC-KAR

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“Whether, under the facts and circumstances involved in the case, the Trial Court is correct in rejecting the plaint as it is barred by limitation?”

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Learned counsel appearing on behalf of the appellants/plaintiffs submitted that the plaintiffs are seeking relief of declaration that the plaintiffs have become owners of the suit schedule property being Class-II legal heirs of Srinivasaiah, but not through the mother of plaintiff Nos.1 to 3; therefore, the plaintiffs have an independent right to claim ownership over the property directly through Srinivasaiah as Class-II legal heirs, but not through Jayalakshmi. Hence, as per Clause IV of Class II of the schedule of the H.S. Act, 1956, the plaintiffs have become owners of the property and have precedence over Clause VI of Class II of the schedule of H.S. Act, 1956; therefore, Order VII Rule 11 of CPC is not applicable.

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It is further submitted that the suit filed by the mother of plaintiff Nos.1 to 3 namely Jayalakshmi is legally non est; therefore, there was no occasion for the plaintiffs

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to seek setting aside of the order dismissing the suit for

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default since the plaintiffs have right over the suit schedule property as per Clause IV of Class II of schedule of the H.S. Act, 1956, which has precedence over Clause VI of Class II of schedule of the H.S. Act, 1956. Hence, the present suit is filed not claiming ownership through the mother of plaintiff Nos.1 to 3, but claiming ownership through Srinivasaiah as Class-II legal heirs. Therefore, a fresh cause of action arose for filing the suit and hence, filed the suit for declaration and injunction by pleading that there is a threat from the respondents/defendants; therefore, prays to allow the appeal and remand the case to the Trial Court for fresh consideration.

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On the other hand, learned counsel appearing on behalf of the respondents/defendants submitted that the finding of the Trial Court that the suit is barred by limitation is well appreciated. The mother of plaintiff Nos.1 to 3 namely Jayalakshmi filed a suit in O.S.No.597/2007 and the said suit was dismissed for default and in respect

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of the very same property as against the very same defendants, the plaintiffs have filed suit once again for the same relief based on the same cause of action as in O.S.No.597/2007. Therefore, there is no cause of action

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for the plaintiffs to file the suit in the year 2015 and hence, the suit is not maintainable unless the order dismissing the previous suit for default is set aside. Hence, the suit filed by the plaintiffs is not maintainable as per Order IX Rule 9 of CPC.

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Further submitted that as per Article 58 of the Limitation Act, 1963, the suit is barred by limitation. Plaintiff Nos.1 to 3 are none other than the sons of Jayalakshmi, who filed a suit in O.S.No.597/2007; therefore, the cause of action pleaded by the plaintiffs in the present suit is the same as stated in O.S.No.597/2007 and therefore, the right to sue accrued for the first time in the year 2007 and the same cause of action continued even in filing the instant suit in the year 2015. Hence, it is

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submitted that the suit is barred by limitation as per Article 58 of the Limitation Act, 1963.

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Further submitted that regarding the cause of action, the plaintiffs have clearly averred in the plaint at Paragraph No.5 regarding the filing of the earlier suit; therefore, the cause of action pleaded in the instant suit is illusory one and in this regard, the finding given by the Trial Court that the suit is barred by limitation and hence barred by law is correct. Hence, prays to dismiss the appeal.

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In support of the arguments, the learned counsel appearing on behalf of the

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respondents/defendants places reliance on the following judgments:

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a. MAYANDI VS. PANDARACHAMY AND ANOTHER² (Mayandi’s Case)

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b. KHATRI HOTELS PRIVATE LIMITED AND ANOTHER VS. UNION OF INDIA AND

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2 (2021) 20 SCC 585

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NC: 2026:KHC:25821 RFA No. 936 of 2022

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ANOTHER³ (Khatri Hotels Private Limited and another Case)

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c. NAM ESTATES PRIVATE LIMITED AND ANOTHER VS. KULABANDHU RAM ADARSH SHARMA⁴ (Nam Estates Private Limited and Another Case)

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d. RAGHWENDRA SHARAN SINGH VS. RAM PRASANNA SINGH (DEAD) BY LEGAL REPRESENTATIVES⁵ (Raghwendra Sharan Singh Case)

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e. MADHAV ATMARAM SAHAKARI AND OTHERS VS. SUMITRA GOIND PANSHIKAR AND OTHERS⁶ (Madhav Atmaram Sahakari and others Case)

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In the plaint, the plaintiffs are claiming right

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over the suit schedule property being Class-II legal heirs of the deceased Srinivasaiah as Srinivasaiah and his wife

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Sundramma, who died issueless. Plaintiff Nos.1 to 3 are the sons of brother of Srinivasaiah; therefore, the plaintiffs asserting their right as per Clause IV of Class II of schedule of the H.S. Act, 1956. Earlier, Jayalakshmi, the

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3 (2011) 9 SCC 126

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4 Civil Revision Petition No.649 of 2023 dated 23.08.2024

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5 (2020) 16 SCC 601

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6 Civil Rev. Appln. No.24 of 2018 decided on 29-10-2018

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wife of the brother of the deceased, who is the mother of plaintiff Nos.1 to 3 had filed a suit in O.S.No.597/2007, but in the year 2010 she died. Hence, without contest, the said suit in O.S.No.597/2007 came to be dismissed for default.

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Considering the status of the Jayalakshmi, her

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claim of right is as per Clause VI of Class II of schedule of the H.S. Act, 1956. Clause IV of Class II of schedule of the H.S. Act, 1956 has precedence over Clause VI of Class II of the schedule of the H.S. Act, 1956. Though the suit in O.S.No.597/2007 was dismissed for default, the plaintiffs are claiming their right of ownership being Class-II legal heirs of Srinivasaiah, but not through Jayalakshmi. Hence, when the plaintiffs are asserting ownership over the suit schedule property as Class-II legal heirs of Srinivasaiah, there was no necessity for plaintiff Nos.1 to 3 to come on record as legal representatives of Jayalakshmi in the suit in O.S.No.597/2007 as the plaintiffs are claiming their right through Srinivasaiah, but

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NC: 2026:KHC:25821 RFA No. 936 of 2022

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not through Jayalakshmi. Hence, non-filing of application for setting aside the order of dismissal of the suit for default is not fatal to the plaintiffs and for this reason, Order IX Rule 9 of CPC is not applicable.

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If the plaintiffs are claiming their right through

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the mother, namely Jayalakshmi and if they have not filed an application for recalling the order setting aside the order of dismissal of the suit for default, then the defendants are correct; but here, the suit filed by Jayalakshmi is legally non est as her claim is under Clause VI of Class II of schedule of the H.S. Act, 1956, whereas the plaintiffs are asserting their right as per Clause IV of Class II of schedule of the H.S. Act, 1956 and therefore, they have an independent right of assertion claiming ownership as Class-II legal heirs of Srinivasaiah and also having precedence over Clause VI of Class II of schedule of the H.S. Act, 1956. Hence, the suit filed by the plaintiffs in the present case is maintainable even without seeking setting aside of the order of dismissal of the suit for

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default in O.S.No.597/2007. Therefore, with this difference in factual matrix, the judgment in the case of MADHAV ATMARAM SAHAKARI AND OTHERS CASE (Supra) is not applicable.

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The cause of action pleaded in the present suit is that the defendants tried to interfere with the possession of the plaintiffs on 28.10.2015, when the cause of action arose to file the suit. The question of inheritance of the property is a recurring cause of action. If the plaintiffs are claiming their right as Class-II legal heirs through their mother Jayalakshmi, then the defendants are correct in stating that the suit is barred by limitation as per Article 58 of the Limitation Act, 1963, but that is not so in the present case. The plaintiffs are claiming ownership over the property as Class-II legal heirs through Srinivasaiah, but not through Jayalakshmi; therefore, the wordings in Article 58 of the Limitation Act, 1963, that “when the right to sue first accrues” has to be interpreted.

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19. If the plaintiffs are asserting their right through

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Jayalakshmi and in O.S.No.597/2007, then Article 58 of the Limitation Act, 1963 is applicable under the facts and circumstances involved in the case, but the plaintiffs are claiming or asserting their right independent of the earlier suit in O.S.No.597/2007; therefore, the right to sue first accrues for the first time what is pleaded in the plaint is to be reckoned. Under these differences in facts and circumstances, the judgment in KHATRI HOTELS

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PRIVATE LIMITED AND ANOTHER CASE (Supra) is not applicable.

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Further, as discussed above, the plaintiffs are not asserting their right through the mother Jayalakshmi, but they are claiming as Class-II legal heirs of Srinivasaiah; therefore, the judgment of MAYANDI CASE (Supra) is not applicable in the present case on difference of facts between the cases.

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Where the plaintiffs are asserting their right through their mother and merely executing or bequeathing, then unless the order of dismissal of the suit for default is set aside, the suit is not maintainable; but that is not same in the present case. Hence, where the plaintiffs have independent right of assertion to claim ownership through Srinivasaiah being Class-II legal heirs, but not through Jayalakshmi in O.S.No.597/2007, there is no occasion for the plaintiffs to get the order of dismissal of the suit for default set aside as per Order IX Rule 11 of CPC. Therefore, under the difference in factual matrix in the present case and in the cited judgments relied upon by the counsel for the respondents/defendants, the said judgments are not applicable in the present case.

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Though the application is filed under Order VII Rule 11 (a) (b) and (d) of CPC, the Trial Court discussed only on the point of limitation. Therefore, there is no occasion to hold that Clause (b) of Rule 11 of Order VII of CPC is not applicable to the present case. Further, while

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discussing the cause of action, the suit in O.S.No.597/2007 and in the present suit are different and independent cause of action. Hence, the defendants failed to show how the cause of action shown in the present case is illusory or that there is no cause of action at all to file the suit, but the Trial Court has relied entirely on the discussion regarding the limitation and held that the suit is barred by limitation.

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As discussed above, the plaintiffs have filed the suit independently by making a claim through Srinivasaiah, but not through Jayalakshmi and are not claiming their right through the suit in O.S.No.597/2007. Hence, the suit cannot be said to be barred by limitation. Therefore, the Trial Court is not correct in rejecting the plaint.

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Though both plaintiffs and defendants are claiming their right of title independently that can be a matter for adjudication in the Trial Court and that cannot

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be considered at this stage and it is left open to the parties to establish their title in the suit. Therefore, the Trial Court is not correct in rejecting the plaint as barred by limitation. The aspect of limitation is a mixed question of fact and law and that can be adjudicated in the trial unless it is clearly seen that the suit is barred by limitation apparently on the face of the record; unless receiving the evidence on limitation, the plaint cannot be rejected in toto by holding that the plaint is barred by limitation. Hence, in this regard, the Trial Court is not correct in dismissing the suit as barred by limitation. Accordingly, I answer point in the Negative . Therefore, the order passed by the Trial Court is liable to be set aside and the matter is remanded to the Trial Court for adjudication on its merits.

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Hence, I proceed to pass the following order:

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ORDER

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i. The Regular First Appeal is allowed-inpart .

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ii. The order dated 31.01.2022 passed on I.A.No.II in O.S.No.924/2015 by the II Additional Senior Civil Judge and JMFC, Devanahalli, is hereby set aside.

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iii. The matter is remanded to the Trial Court for fresh disposal in accordance with law.

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iv. Since the suit is of the year 2015, both parties are directed to make every endeavor to co-operate with the Trial Court for disposal of the suit as early as possible, within a period of one year from the date of receipt of copy of this order.

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v. No order as to costs.

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vi. All the contentions on merits are kept open.

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vii. If any party is unnecessarily indulging in seeking adjournments without any reasons, then the Trial Court is at liberty to impose heavy costs on the party who seeks unnecessary adjournments.

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Sd/(HANCHATE SANJEEVKUMAR) JUDGE

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SRA

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List No.: 1 Sl No.: 40

Sri Rajaram Sanne v. Sri Nandish

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Sri Rajaram Sanne v. Sri Nandish

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