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2023 DIGILAW 551 (KAR)

D. L. Kannan v. Ambarish Reddy

2023-03-31

C.M.POONACHA, P.S.DINESH KUMAR

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JUDGMENT 1. This first appeal is filed under Sec. 96 of the Code of Civil Procedure, 1908 (for short 'CPC') by the Plaintiffs challenging the order dtd. 22/4/2006 passed on IA.13 in OS No.2397/2005 by the I Additional Civil Judge (Sr.Dn), Bangalore Rural District, Bangalore, (hereinafter referred to as the 'Trial Court'), whereby the plaint has been rejected. 2. For the sake of convenience, the parties herein are referred to as per their rank before the Trial Court. 3. The Plaintiffs filed OS No.2397/2005 contending, inter alia that they are the children and grand children of late D.Lakshmana Das @ Kali s/o late Durgaiah and all the members of the family of late D.Lakshmana Das constituted a Hindu Undivided Joint Family. That the said Sri.D.Lakshmana Das owned various properties, one of which was Sy.No.67 of Thooberahalli village, Varthur Hobli, Bangalore South Taluk, measuring 9 acres 4 guntas, (hereinafter referred to as "suit property") having purchased the same vide registered Sale Deed on 30/10/1922 and that the revenue records of the said property stands in his name. That OS.No.88/72 was filed by D.L.Ramaswamy s/o Lakshmana Das from his first wife against the children of D.Lakshmana Das born to his second wife, which suit was decreed on 3/1/1979 holding that said D.L.Ramaswamy was entitled to 13/84th share in the suit property. That OS No.3853/1991, was filed by one Smt.Vaikundamma seeking 1/6th share out of the share of one of the co-sharers who was allotted 13/84th share in OS.No.88/72, which suit was dismissed for default. It is further contended by the Plaintiffs that various transactions have taken place behind the back of the Plaintiffs and Defendant Nos.1 to 8 have played fraud and alienated the suit properties. Hence the suit was filed seeking for the following reliefs: a) For a declaration that the Plaintiffs are the absolute owners of the agricultural land mentioned in the schedule to the plaint; b) For a declaration that the sale deed executed by the first defendant in favour of the second defendant dtd. Hence the suit was filed seeking for the following reliefs: a) For a declaration that the Plaintiffs are the absolute owners of the agricultural land mentioned in the schedule to the plaint; b) For a declaration that the sale deed executed by the first defendant in favour of the second defendant dtd. 14/9/1995 registered as document No.4956/95-96 before the Sub-Registrar Bangalore South Taluk is a fraudulent document and the same is not binding on the plaintiffs; c) For a declaration that the subsequent sale deeds executed interse between second, third, fourth, sixth and seventh defendants as well as sale deed executed by the 4th defendant in favour of the 6th defendant are fraudulent transactions and the same are not binding on the plaintiffs in respect of the property mentioned in the schedule to the plaintiffs; d) For a declaration that the conversion orders dtd. 26/3/1999 as well as 23/10/2003 obtained by the 2nd and 3rd defendants in respect of the agricultural land owned and possessed by the plaintiffs are not binding on the plaintiffs and the same are the result of the fraud played by the Revenue authorities; e) For a permanent injunction restraining the defendants 1 to 8 as well as 21st to 30th in alienating of any way creating any charge over the property or any portion there of in any manner morefully described in the schedule to the plaint; f) For a permanent injunction restraining the defendant 12 to 20 from issuing any no objection certificates, release order, katha certificate or any certificates affecting the right of the plaintiffs with regard to the property mentioned in the schedule to the plaint; g) For costs and such other reliefs as this Hon'ble court might deem meet." 4. The Defendant No.8 filed IA.13 under Order VII Rule 11(a) and (d) of the CPC to reject the plaint. The Plaintiffs filed their objections to the said IA. The Trial Court, vide order dtd. 22/4/2006 allowed the said IA and rejected the plaint by recording, inter-alia, the following findings: i) The plaint is manifestly vexatious and meritless and not disclosing a clear right to sue; ii) It is pleaded at paragraph 20 of the plaint that right to sue first accrued on 14/9/1995 and the suit is instituted on 11/10/2005 i.e., after a lapse of 10 years. Hence, the suit is hopelessly barred by limitation. Hence, the suit is hopelessly barred by limitation. iii) Defendants No.2 to 8 got converted the lands and have put up Apartments and construction work is already completed as on the date of the suit. iv) The suit schedule property has not remained as an agricultural land and the Plaintiffs are not in possession of the same; v) From the plaint averments itself it is clear that the Defendants are in possession of the suit property as on the date of the suit; vi) The plaintiffs have not sought for possession of the suit property and have merely claimed a declaration that they are the owners of the suit property. In view of proviso to Sec. 34 of the Specific Relief Act, the suit is not maintainable. 5. Learned Counsel for the Appellants/Plaintiffs, Sri.Jose Sebastian assailing the findings recorded by the Trial Court, vehemently contended: a) that the plaint could not have been rejected as being barred by limitation since, limitation is a mixed question of law and facts; b) that cause of action is a bundle of facts which is required to be adjudicated after a full-fledged trial; c) that during the pendency of the suit, the Plaintiffs have lost possession of the suit property; d) that the Trial Court erred in considering the defence of the Defendants and ought to have considered only the plaint averments while adjudicating upon the IA filed under Order VII Rule 11 of the CPC; e) that the case putforth by the Plaintiffs is required to be adjudicated after a full-fledged trial and that the Trial Court ought not to have rejected the plaint at the threshold. 6. Hence, he seeks for allowing of the above Appeal and remanding the case to the Trial Court for disposal in accordance with law. In support of his contentions, learned Counsel relied upon the following decisions: 1. Udhav Singh v. Madhav Rao Scindia, AIR 1976 SC 744 ; 2. Ram Sarup Gupta v. Bishun Narain Inter college and others, AIR 1987 SC 1242 ; 3. P.V. Guru Raj Reddy and another v. P.Neeradha Reddy and others, (2015) 8 SCC 331 ; 4. Chhotanben and another v. Kiritbhai Jalkrushnabhai Thakkar and others, (2018) 6 SCC 422 ; 5. Salim D Agboatwala and others v. Shamalji Oddhavji Thakkar and others, AIR 2021 SC 5212 ; 6. P.V. Guru Raj Reddy and another v. P.Neeradha Reddy and others, (2015) 8 SCC 331 ; 4. Chhotanben and another v. Kiritbhai Jalkrushnabhai Thakkar and others, (2018) 6 SCC 422 ; 5. Salim D Agboatwala and others v. Shamalji Oddhavji Thakkar and others, AIR 2021 SC 5212 ; 6. Razia Begum v. Sahebzadi Anwar Begum and others, AIR 1958 SC 886 ; 7. M/s Raptakos Brett and Co. Ltd v. Ganesh Property, AIR 1998 SC 3085 ; 8. M/s. Crescent Petroleum Ltd v. M.V. "Monchegorsk" and another, AIR 2000 BOMBAY 161 ; 9. M/s Om Builders Pvt. Ltd v. M/s Edward Keventer( Successors) Pvt Ltd and others, AIR 1996 DELHI 330 ; 10. Secretary, Ministry of Works and Housing Govt. of India and others v. Mohinder Singh Jagdev and others, (1996) 6 SCC 229 11. Smt P. Vasanthi v. Smt Vimala Martin and another, ILR 1997 KAR 1127 12. Khaja Quthubullah v. Govt. of A.P. and others, AIR 1995 ANDHRA PRADESH 43 13. Ram Saran and another v. Smt Ganga Devi, AIR 1972 SC 2685 14. T Arivandandam v. T.V. Satyapal and another, (1977) 4 SCC 467 7. We have considered the submissions made and perused the material on record. The question that arises for our consideration is: i. Whether the suit filed by the Plaintiffs is liable to be rejected under Order VII Rule 11 of the CPC ? 8. It is forthcoming from para 3 of the plaint where the Plaintiffs have averred regarding the relationship that the porpositus was one late D Lakshmana Das @ Karli s/o late Durgaiah and he had two wives i.e., late Marimuthamma (hereinafter referred to as 'first wife') and late Sampangiammal (hereinafter referred to as 'second wife'). That D.L.Ramaswamy was the first son of the propositus born to his first wife, who is also deceased and the eighth Plaintiff is one of the sons of late D.L.Ramaswamy who allegedly represents the family. That the propositus had five sons and one daughter from his second wife and the seventh Plaintiff is the said daughter's son. The Plaintiffs No.1, 3, 4 and 5 are four sons and another son of D.L.Sadagopalan who is deceased and the sixth Plaintiff is the eldest son of the said Sadagopalan who is managing the family. The second Plaintiff is the son of the first Plaintiff. The Plaintiffs No.1, 3, 4 and 5 are four sons and another son of D.L.Sadagopalan who is deceased and the sixth Plaintiff is the eldest son of the said Sadagopalan who is managing the family. The second Plaintiff is the son of the first Plaintiff. The genealogical tree of the family produced as Annexure-A to the plaint is as follows: 9. It is forthcoming from the averments made in para 3 that all the members of the family of late D.Lakshmana Das @ Karli have not been made as parties to the suit. 10. At para 7 of the plaint, the Plaintiffs have pleaded that fraud and stratagem has been played inter se between Defendants Nos.1 to 8. Although the words "fraud and stratagem" has been mentioned, there is no averment as to the manner of fraud that is allegedly played in respect of the transactions pertaining to the suit property. Order VI Rule 4 of the CPC stipulates that particulars regarding fraud, misrepresentation or undue influence are to be pleaded with dates and items, if necessary. No such details are pleaded in the plaint. 11. It is clear from the averments made at paras 11 to 19 that the Plaintiffs are aware of the fact that construction activities were being undertaken by the Defendants in parts of the suit property and multi storied residential Apartments were being constructed on the same. However, the Plaintiffs have not averred as to the date of knowledge of the Defendants asserting their right, title and interest in the suit property. 12. At para 20 of the plaint the Plaintiffs have stated as follows: "The Cause of Action for this suit arose at the inception on 14/9/1995 and subsequently on 14-09- 2005 and subsequently on 2/10/2005 and de die in diem within the jurisdiction of this Hon'ble Court." (emphasis supplied) 13. It is forthcoming from the averments made in the plaint as well as the reliefs sought (as extracted at para 3 above) that the Plaintiffs were aware that the suit property had been converted from agriculture to nonagricultural use, despite which the Plaintiffs have described the suit property in the schedule to the plaint as agricultural land. The averments in the plaint clearly demonstrate that the Plaintiffs were aware that construction activities were being carried out in the suit property. The averments in the plaint clearly demonstrate that the Plaintiffs were aware that construction activities were being carried out in the suit property. Hence, it is clear that the Plaintiffs are not in possession of the suit property, despite which the Plaintiffs have not sought for the relief of possession. The Plaintiffs have averred that the cause of action first arose on 14 9.1995 and the suit has been filed on 11/10/2005, i.e., after lapse of 10 years. 14. Part III of the Schedule to the Limitation Act provides for the period of limitation in respect of suits relating to declaration. Articles 56, 57 and 58 states as follows: 15. While it is the contention of the Plaintiffs that Article 56 of the Limitation Act applies, it is relevant to note that it is not the case of the Plaintiffs that any specific document has been forged nor have the Plaintiffs pleaded as to when the issue of forgery or the registration of the document became known to the Plaintiffs. Articles 56 and 57 do not apply in the present case. The limitation prescribed under Article 58 is three years when the right to sue first accrues. As per the averments made in the plaint, the right to sue first accrued on 14/9/1995. Hence, the suit of the Plaintiffs, having been filed after a lapse of more than ten years, is clearly beyond the period of limitation. 16. Although the Plaintiffs contend that limitation is a mixed question of law and facts and is required to be adjudicated in the course of trial, the applicability of Article 58 of the Limitation Act and the date when the right to sue first accrued being clear and apparent from the material on record, no useful purpose will be served in the trial of the suit to be completed to adjudicate regarding the aspect of limitation. 17. Sec. 34 of the Specific Relief Act, 1963, states as follows: "34. 17. Sec. 34 of the Specific Relief Act, 1963, states as follows: "34. Discretion of Court as to declaration of status or right.- Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so." (emphasis supplied) 18. It is clear that the relief of declaration is a discretionary one and the Plaintiffs while seeking for the relief of declaration are admittedly not being in possession of the property, ought to have sought for a further relief of possession which they have failed to do. The relief of declaration in respect of the alienations made and conversion orders as also the relief of injunction sought to prevent the alienations and issue No Objection Certificates, etc., will not aid the case of the Plaintiffs, inasmuch as, without the relief of possession, no effective relief can be granted to the Plaintiffs. The proviso to Sec. 34 of the Specific Relief Act is squarely applicable in the present case. 19. The judgments relied upon by the learned Counsel for the Appellants are considered as follows: 19.1 In the case of Udhav Singh, the Hon'ble Supreme Court while considering a case under the Representation of People Act has held that a plaint is required to be read as a whole to ascertain its true import and it is impermissable to read any portion out of context and in isolation. 19.2 In the case of Ram Sarup Gupta the Hon'ble Supreme Court has held that the pleadings should receive a liberal construction and no pedantic approach should be adjudicated to defeat justice and on hair splitting technicalities. 19.3 In the case of P.V.Guru Raj Reddy, the Hon'ble Supreme Court held that the power under Order VII Rule 11 of CPC is a drastic one and that the averments made in the plaint are to be read as a whole. 19.3 In the case of P.V.Guru Raj Reddy, the Hon'ble Supreme Court held that the power under Order VII Rule 11 of CPC is a drastic one and that the averments made in the plaint are to be read as a whole. 19.4 In the case of Chhotanben, the Hon'ble Supreme Court was dealing with a case where the Trial Court, adjudicating an application under Order VII Rule 11(d) of the CPC, dismissed the same by opining that the factum of limitation was a triable issue, which judgment was reversed by the High Court. The Hon'ble Supreme Court upon noticing the facts of the said case upheld the order of the Trial Court. The said judgment will not aid the case of the Plaintiffs as the fact situation is different from the facts of the present case. 19.5 In the case of Salim D.Agboatwala, the Hon'ble Supreme Court was considering a suit for administration of estate and the case of the Plaintiffs is that notices were never issued to them nor served on them. Hence, it was held that issue regarding limitation will depend upon the evidence with regard to issuance and service of notice and the knowledge of the Plaintiffs. The said judgment will not aid the case of the Plaintiffs as the same is not applicable to the facts of the present case. 19.6 In the case of Razia Begum, the Hon'ble Supreme Court was considering a case of addition of parties under Order 1 Rule 10 of CPC and hence, the same is not applicable to the facts of the present case. 19.7 In the case of M/s. Raptakos Breett, the Hon'ble Supreme Court held that the pleadings are required to be read as a whole and it is impressible to read a single line or a passage out of context, in isolation. 19.8 In the case of M/s Crescent Petroleum Ltd., the Hon'ble Supreme Court held that dismissal of a suit on the ground of absence of cause of action has to be exercised sparingly and cautiously and the benefit of doubt must be given to the Plaintiff. 19.9 In the case of M/s. Om Builders Pvt. Ltd., the Hon'ble Supreme Court, in the absence of a binding and concluded contract, upheld the dismissal of a suit for non-disclosure of cause of action. 19.9 In the case of M/s. Om Builders Pvt. Ltd., the Hon'ble Supreme Court, in the absence of a binding and concluded contract, upheld the dismissal of a suit for non-disclosure of cause of action. 19.10 In the case of Secretary, Ministry of Works & Housing, Government of India, the Hon'ble Supreme Court was considering a case of termination of service and held that the said suit was governed under Article 58 of the Limitation Act and that the suit was barred by limitation. 19.11 In the case of Smt.P.Vasanthi, this Court was considering a case where a suit for specific performance was filed and it was contended that the said suit was barred by limitation and the plaint was liable to be rejected under Order VII Rule 11(d) of the CPC. This Court, considering the facts of the said case held that the limitation is a mixed question of law and facts and set aside the order rejecting the plaint and directed that the point of limitation be decided as a preliminary issue. 19.12 In the case of Khaja Quthubullah, the Andhra Pradesh High Court was considering a case where a suit for recovery was filed and in the facts of the said case, held that the question of limitation cannot be decided as a preliminary issue and that would be a mixed question of law and facts. 19.13 In the case of Ram Saran, the Hon'ble Supreme Court has held that where the Defendant is in possession of some of the suit properties and the Plaintiff in the suit does not seek possession of the suit properties, but merely claims a declaration of title, the suit is not maintainable. 19.14 In the case of T.Arivandandam, the Hon'ble Supreme Court has held that on a meaningful and not formal reading of the plaint, if it is manifestly vexatious and meritless and not disclosing a clear right to sue, exercise of power under Order VII Rule 11 of CPC could be resorted to and where clever drafting has created an illusion of a cause of action, the same is required to be nipped in the bud. 20. The aforementioned judgments do not aid the case of the Appellants/Plaintiffs in any manner. The ratio laid down in the said judgments are settled propositions of law and there is no dispute with regard to the same. 21. 20. The aforementioned judgments do not aid the case of the Appellants/Plaintiffs in any manner. The ratio laid down in the said judgments are settled propositions of law and there is no dispute with regard to the same. 21. As rightly recorded by the Trial Court, the manner in which the plaint is drafted, it is clear that the same is manifestly vexatious and meritless and not disclosing a clear right to sue. The Trial Court was justified in recording a finding that the suit of the Plaintiffs is clearly barred by time and is also not maintainable in view of the proviso to Sec. 34 of the Specific Relief Act. The present suit is also a classic one, which is required to be "nipped in the bud" as held by the Hon'ble Supreme Court in the case of T Arivandandam14 . 22. The Trial Court has in detail considered the case of the Plaintiffs and upon noticing the settled propositions of law, rejected the plaint filed by the Plaintiffs. Upon a re-appreciation of the material on record, we are unable to come to a different conclusion from what has been arrived at by the Trial Court. 23. The Appellants have failed in demonstrating that the order of the Trial Court is required to be interfered with in the present Appeal. Hence, the question framed for consideration is answered in the affirmative. 24. In view of the aforementioned, we pass the following: ORDER i. The above Appeal is dismissed; ii. The order dtd. 22/4/2016 passed on IA.13 in OS.No.2397/2005 on the file of the I Additional Civil Judge (Sr.Dn), Bangalore Rural District, Bangalore, is affirmed. No costs.