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2017 DIGILAW 910 (KAR)

H. VENKATASWAMY REDDY v. NARAYANNA REDDY

2017-06-07

ARVIND KUMAR

body2017
ORDER : Arvind Kumar, J. Petitioners are the defendants in O.S. No. 534/2016, which suit has been instituted by first respondent herein seeking partition and separate possession of suit schedule properties. 2. During the pendency of proceedings defendants 1 to 4 filed an application under Order 7, Rule 11 (d), CPC for rejection of plaint on the ground that suit is barred by law. In the affidavit supporting the application it was contended that earlier suit O.S.No.18/1987 filed for partition and separate possession had been dismissed on the ground of there being an earlier partition and said judgment and decree passed on 16.11.1993 in O.S.No.18/1987 had attained finality and as such, present suit is barred by principles of res judicata. Trial Court after considering the rival contentions has rejected the said application on the ground that rights of parties are not decided in the said suit and plaintiffs are seeking for partition of suit properties and as such, they are required to establish the existence of joint family and also the fact that property belongs to the joint family. It has also been rejected on the ground that limitation cannot be decided as an abstract principle of law, since, it is a mixed question of fact and law. 3. Having heard Sri. R. B. Sadashivappa, learned counsel appearing on behalf of Sri. Shankare Gowda V. N. for petitioners and Sri. Y. R. Sadashiva Reddy, learned Senior counsel appearing on behalf of Sri.V. Shivakumar for Caveator/first respondent/plaintiff. It is noticed by this Court that original propositus was Sri. Venkatappa had two sons namely, Sriyuths Chikka Arasappa and Pillaiah alias Pillappa. Even according to both parties and their pleadings would disclose there was a division of properties amongst Chikka Arasappa and Pillaiah and suit properties fell to the branch of Chikka Arasappa and he had 5 sons who are said to have made some family arrangements in the year 1980 under which plaintiffs claim that suit properties amongst other properties fell to the share of Sri. Obala Reddy and Sri. Narayana Reddy i.e., plaintiffs and father of defendants 1 to 4. On account of properties having not been divided amongst them subsequent to family arrangements, suit in question has been filed. 4. Obala Reddy and Sri. Narayana Reddy i.e., plaintiffs and father of defendants 1 to 4. On account of properties having not been divided amongst them subsequent to family arrangements, suit in question has been filed. 4. Defendants 1, 4 and 7 contended that in the family arrangements, which took place in the year 1980, there was already a division/partition earlier to it and as such, properties which had fallen to the share of Sri.Chikka Arasappa came to be divided amongst his sons and this has also been affirmed in O.S.No.18/1987, which suit had been filed by Sri. Rama Reddy, who is one of the sons of Sri. Chikka Arasappa and in the said judgment trial Court had recorded a finding about earlier partition and as such, present suit is barred by principles of res judicata. As to whether there was earlier partition/family arrangements and in the said family arrangements suit property had fallen exclusively to the share of Sri. Obala Reddy or not, is an issue which requires to be decided after recording of evidence. 5. Perusal of plaint averments would clearly disclose that plaintiff has specifically contended that there was no such division between Sri. Obala Reddy and Sri. Narayana Reddy in whose favour suit properties amongst other properties came to be allotted. Thus, any amount of plea raised by defendants either in written statement or in any other form of pleading, cannot form the basis on which plaint can be rejected under Order 7, Rule 11 (d), CPC. For this proposition judgment of the Apex Court in the case of Kamala and others v. K. T. Eshwara Sa and others, reported in AIR 2008 SC 3174 can be looked up. 6. On the ground of suit in question being hit by Order 2, Rule 2, CPC plaint cannot be rejected under Order 7, Rule 11 (d), CPC and this view is fortified by the law laid down by Apex Court in the case of Vaish Aggarwal Panchayat v. Inder Kumar and others, reported in AIR 2015 SC 3357 whereunder it has been held: "16. After so stating, the Division Bench opined that in the facts of the said case, the suit could not be dismissed as barred by limitation without proper pleadings, framing of issue on limitation and taking evidence, for question of limitation is a mixed question of fact and law and on ex facie reading of the plaint it could not be held that the suit was barred by time. 17. Coming to the case at hand we find that the allegations in the plaint are absolutely different. There is an asseveration of fraud and collusion. There is an assertion that in the earlier suit a decree came to be passed because of fraud and collusion. In such a fact situation, in our considered opinion, the High Court has fallen into error by expressing the view that the plea of res judicata was obvious from the plaint. In fact, a finding has been recorded by the High Court accepting the plea taken in the written statement. In our view, in the obtaining factual matrix there should have been a trial with regard to all the issues framed." ? Thus, in the instant case, trial Court will have to examine after recording of evidence as to whether property involved in the suit was the subject-matter of consideration in O.S.No.18/1987 and whether there was already a division between the members of family as pleaded by defendants 1 to 4 in the written statement and if so, had it become exclusive property of Sri. Obala Reddy i.e., father of defendants 1 to 4. As such, at this stage, by invoking Order 7, Rule 11 (d), CPC plaint cannot be rejected that too without there being any express admission on the part of plaintiffs in the plaint itself. 7. In that view of the matter, order passed by the trial Court rejecting the application, cannot be found fault with. Hence, writ petitions stands rejected. However, it is made clear that no opinion is expressed with regard to claim made in the writ petitions and trial Court shall expeditiously dispose of the suit keeping in mind the Karnataka (Case Flow Management in Subordinate Courts) Rules, 2005 and Order 17, CPC, subject to both parties co-operating with the trial Court.