Research › Search › Judgment

Karnataka High Court · body

2019 DIGILAW 78 (KAR)

Ashwathamma v. Girijamma

2019-01-07

ALOK ARADHE

body2019
JUDGMENT : Alok Aradhe, J. Heard Mr. K. Gurudhatta, learned counsel appearing on behalf of Mr. Balaraj A.C., for the petitioners. 2. Petitioners have assailed the validity of the order dated 28/04/2018, by which an application filed by the petitioners under Order 7, Rule 11(a) and (d) of the Civil Procedure Code, 1908 (CPC) has been rejected. 3. Facts giving rise to filing of this petition briefly stated that the respondents herein filed the suit in O.S.No.84/2017 seeking the relief of partition and separate possession against the petitioners herein. The petitioners entered appearance and filed a detailed written statement which inter alia stated that the suit is not maintainable as the suit properties are self-acquired properties of petitioner No.1 and hence, the suit seeking the relief of partition and separate possession is liable to be dismissed. Thereafter, the petitioners filed an application under Order 7, Rule 11(a) and (d) of the Civil Procedure Code, 1908, (herein after referred as 'Code' for short) seeking rejection of plaint on the ground that the suit properties are self-acquired properties and that the suit is not maintainable. The trial Court has rejected the aforesaid application inter alia on the ground that the question whether the suit properties are the self-acquired properties or they belong to the joint family is the question which can be decided only after the full fledged trial in the suit. In the aforesaid factual background, this writ petition is filed. 4. Learned counsel for the petitioners, while drawing the attention of this Court to para No.3 of the order submitted that the suit properties are self-acquired properties of the petitioners. 5. I have considered the submission made by the petitioners and perused the material on record. 6. For the purpose of deciding an application under Order 7, Rule 11(a) and (d) of the Code, only the averments made in the plaint have to be seen. In this connection, reference may be made to the case in Saleem Bhai & others vs. State of Maharashtra & others [ (2003) 1 SCC 557 ]. In light of the aforesaid decision of the Hon'ble Supreme Court, the averments made in the plaint may be seen. Paragraph Nos.3 and 4 of the plaint read as under: "3. The plaintiffs further submit that one Byranna is the molapurusha and he had a wife by name Bachamma she is no more. In light of the aforesaid decision of the Hon'ble Supreme Court, the averments made in the plaint may be seen. Paragraph Nos.3 and 4 of the plaint read as under: "3. The plaintiffs further submit that one Byranna is the molapurusha and he had a wife by name Bachamma she is no more. The Byranna and Bachamma couples have two children namely, B.Krishnappa and Ashwathamma (Defendant No.1). The Ashwathamma is none other than the mother of the plaintiffs. The Ashwathamma had three children, namely Narasimaswamy (dead), Girijamma Narasimaswamy deceased left behind his wife Manjula and two children namely Anusha and Poorvik Gowda (Defendant No.2). In order to know the relationship of the parties the G-tree is produced along with this plaint and the same may be read as part and parcel of the plaint. 4. The plaintiffs further submit that the suit schedule properties are the ancestral and joint family properties of the plaintiffs and the defendants and the 1st defendant having no absolute right to deal with the suit schedule properties according to her whims and fancies. The plaintiffs being the daughters of the 1st defendant is entitled for 1/4th share in the suit schedule properties." Thus, if paragraph Nos.3 and 4 of the plaint are read and noticed that the plaintiff has claimed that the suit schedule property is ancestral and joint family properties of the plaintiffs and defendants, the burden is on the plaintiff to prove whether the suit properties are the joint family properties or not. At this stage, on considering of the application under Order 7, Rule 11(a) and (d) of the Code, the plaint filed by respondent Nos.1 and 2 cannot be rejected as the question whether or not the properties belong to a joint family or self-acquired properties is a question of fact which require adjudication. The order passed by the trial Court does not suffer from any jurisdictional infirmity nor any error apparent on the face of record warranting interference to the revisional jurisdiction. 7. In the result, I do not find any merit in the revision petition and the same is hereby dismissed.