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2025 DIGILAW 1718 (KAR)

S. Ningappa, S/O Late Siddegowda v. N. Sheela

2025-12-09

V.SRISHANANDA

body2025
ORDER : V. SRISHANANDA, J. Heard learned counsel for the parties. 2. Defendant Nos.1 to 3 in O.S.No.89/2024 are the revision petitioners challenging the dismissal of the application under Order VII Rule 11(d) of Code of Civil Procedure (hereinafter ‘CPC’ for short) by the impugned order. 3. Facts of the case which are utmost necessary for disposal of the revision petition are as under: 3.1. A suit for partition came to be filed by N. Sheela – respondent No.1 with the following prayer and in respect of following properties: PRAYER “Wherefore, the plaintiff most respectfully prays that this Hon'ble court may be pleased to pass en Judgment and Decree for partition and separate share in respect of all the schedule properties in items No.1 to 13 as follows :- a Direct the first defendant and with 3rd defendant to division/partition/effect 1/6th share by way of fresh partition in relating to plaintiff share in respect of all the schedule properties in Sl. No.1 to 13, by failing this Hon'ble court may be directed concerned authorities to do the needful in respect of plaintiff 1/6th share by metes and bounds. b. For cancellation/set-aside the registered partition deed dated: 01.01.2015 executed by plaintiff and the defendants before the sub registrar office Periyapatna, Mysore District, reference No.PYP-1- 08014/2014-15 in C.D. No.PYD 181 as null and void illegal, in operative and having no force in law same is executed by fraud and further direct above said concerned registrar to remove the said registration references/or any from the concerned register books. C. An order for mesne profits in respect of all the schedule properties from 09.09.2005 as Amended by Amendment Act, 39/2005 by virtue of Hindu Succession Act 1956, related to all the schedule properties. d. And grant any relief as this Hon'ble court grant deems fit to the facts and circumstances of the case. e. And legal cost of the suit with justice and equity. SCHEDULE PROPERTIES Item No.1:- All that piece and parcel of immovable land property Sy. No.214/2, measuring 1-08.00.00 guntas (1 Acre 08 guntas) and same is situated at Kirnalli Village, Ravandur Hobli, Periyapatna Taluk, Mysore District and bounded on:- Direction Landowner(s) East Kaverappa's land West S. Ningappa and Ramegowdas & others land North Rajegowda’s land South Somaiah and K.P. Sannegowda land Item No.2:- All that piece and parcel of immovable land property Sy. No.214/2, measuring 1-08.00.00 guntas (1 Acre 08 guntas) and same is situated at Kirnalli Village, Ravandur Hobli, Periyapatna Taluk, Mysore District and bounded on:- Direction Landowner(s) East Kaverappa's land West S. Ningappa and Ramegowdas & others land North Rajegowda’s land South Somaiah and K.P. Sannegowda land Item No.2:- All that piece and parcel of immovable land property Sy. No.223/1, measuring 0-28.00.00 guntas (28 guntas) and same is situated at Kirnalli Village, Ravandur Hobli, Periyapatna Taluk, Mysore District and bounded on:- Direction Adjacent Landowner East Kaverappa's land West S. Ningappa and Ramegowda's & others land North Rajegowda's land South Somaiah and K.P. Sannegowda land Item No.3:- All that piece and parcel of immovable land property Sy. No.223/2, measuring 4-27.00.00 guntas (4 Acre 27 guntas) and same is situated at Kirnalli Village, Ravandur Hobli, Periyapatna Taluk, Mysore District and bounded on:- Direction Boundary East Kaverappa's land West S.Ningappa and Ramegowdas & others land North Rajegowda’s land South Somaiah and K.P.Sannegowda land Item No.4:- All that piece and parcel of immovable land property Sy. No.215/1, measuring 1-04.08.00 guntas (1 Acre 04.08 guntas) and same is situated at Kirnalli Village, Ravandur Hobli, Periyapatna Taluk, Mysore District and bounded on:- Direction Description East S. Ningappa’s land and Government Kaluve land West Veerabandra Sheety’s land North Government Road South K.P. Ningappa, K.P. Sannegowda land and Annaiah Shetty’s lands Item No.5:- All that piece and parcel of immovable land property Sy. No.216/2, measuring 1-02.00.00 guntas (1 Acre 02 guntas) and same is situated at Kirnalli Village, Ravandur Hobli, Periyapatna Taluk, Mysore District and bounded on:- Direction Description East S. Ningappa’s land and Government Kaluve land West Veerabandra Sheety’s land North Government Road South K.P. Ningappa, K.P. Sannegowda land and Annaiah Shetty’s lands Item No.6:- All that piece and parcel of immovable land property Sy. No.217, measuring 1-19.00.00 guntas (1 Acre 19 guntas) and same is situated at Kirnalli Village, Ravandur Hobli, Periyapatna Taluk, Mysore District and bounded on:- Direction Adjacent Land East S. Ningappa’s land and Government Kaluve land West Veerabandra Sheety’s land North Government Road South K.P. Ningappa, K.P. Sannegowda land and Annaiah Shetty’s lands Item No.7:- All that piece and parcel of immovable land property Sy. No.259/1, measuring 0-19.00.00 guntas (19 guntas) and same is situated at Kirnalli Village, Ravandur Hobli, Periyapatna Taluk, Mysore District and bounded on:- Direction Boundaries East S. Ningappa’s land and Government Kaluve land West Veerabandra Sheety’s land North Government Road South K.P. Ningappa, K.P. Sannegowda land and Annaiah Shetty’s lands Item No.8:- All that piece and parcel of immovable land property Sy. No.259/2, measuring 0-21.00.00 guntas (21 guntas) and same is situated at Kirnalli Village, Ravandur Hobli, Periyapatna Taluk, Mysore District and bounded on:- Direction Description East S. Ningappa’s land and Government Kaluve land West Veerabandra Sheety’s land North Government Road South K.P. Ningappa, K.P. Sannegowda land and Annaiah Shetty’s lands Item No.9:- All that piece and parcel of immovable land property Sy. No.259/4, measuring 1-22.00.00 guntas (1 Acre 22 guntas) and same is situated at Kirnalli Village, Ravandur Hobli, Periyapatna Taluk, Mysore District and bounded on:- Direction Boundary Description East S. Ningappa’s land and Government Kaluve land West Veerabandra Sheety’s land North Government Road South K.P. Ningappa, K.P. Sannegowda land and Annaiah Shetty’s lands Item No.10:- All that piece and parcel of immovable land property Sy. No.259/5, measuring 0-15.00.00 guntas (15 guntas) and same is situated at Kirnalli Village, Ravandur Hobli, Periyapatna Taluk, Mysore District and bounded on:- Direction Adjacent Land East S.Ningappa’s land and Government Kaluve land West Veerabandra Sheety’s land North Government Road South K.P.Ningappa, K.P.Sannegowda land and Annaiah Shetty’s lands Item No.11:- All that piece and parcel of immovable land property Sy. No.259/6, measuring 0-22.00.00 guntas (22 guntas) and same is situated at Kirnalli Village, Ravandur Hobli, Periyapatna Taluk, Mysore District and bounded on:- Direction Description East S. Ningappa’s land and Government Kaluve land West Veerabandra Sheety’s land North Government Road South K.P. Ningappa, K.P. Sannegowda land, and Annaiah Shetty’s lands Item No.12:- All that piece and parcel of immovable land property Sy. No.259/7, measuring 0-17.00.00 guntas (17 guntas) and same is situated at Kirnalli Village, Ravandur Hobli, Periyapatna Taluk, Mysore District and bounded on:- Direction Adjacent Land East S.Ningappa’s land and Government Kaluve land West Veerabandra Sheety’s land North Government Road South K.P.Ningappa, K.P.Sannegowda land and Annaiah Shetty’s lands Item No.13:- All that piece and parcel of immovable land property Sy. No.259/7, measuring 0-17.00.00 guntas (17 guntas) and same is situated at Kirnalli Village, Ravandur Hobli, Periyapatna Taluk, Mysore District and bounded on:- Direction Adjacent Land East S.Ningappa’s land and Government Kaluve land West Veerabandra Sheety’s land North Government Road South K.P.Ningappa, K.P.Sannegowda land and Annaiah Shetty’s lands Item No.13:- All that piece and parcel of immovable land property Sy. No.259/8, measuring 0-28.00.00 guntas (28 guntas) and same is situated at Kirnalli Village, Ravandur Hobli, Periyapatna Taluk, Mysore District and bounded on:- Direction Description East S. Ningappa’s land and Government Kaluve land West Veerabandra Sheety’s land North Government Road South K.P. Ningappa, K.P. Sannegowda land and Annaiah Shetty’s lands 3.2. Plaint averments would reveal that suit properties are the ancestral properties having been acquired by Sidde Gowda who is none other than father of defendant No.1 and grandfather of defendant Nos.4 to 6. 3.3. It is further contended that plaintiff and defendant Nos.4 to 6 deposed great confidence and trust on behalf of defendant Nos.1 to 3 as they are father and brothers. 3.4. Taking advantage of the same, defendant Nos.1 and 3 called plaintiff No.1 and defendant Nos.4 to 6 to defendant No.1 house on 28.12.2014 and misrepresented that defendants had entered into mortgage deed relating to some of the lands of the schedule properties to a person in the year 2013 and without naming the said persons, defendant Nos.1 and 3 informed and told that to redeem and said mortgage deed, signatures of the said plaintiffs are necessary and created the deed of partition and for which the plaintiff gullibly subscribed her signature and said document would not bind and therefore, sought for the plaint relief. 4. Defendant Nos.1 to 3 entered appearance and filed written statement denying the plaint averments and also filed an application under Order VII Rule 11(d) of CPC to reject the plaint. 5. Learned Trial Judge after entertaining the objections of the plaintiffs, dismissed the said application. 6. Same is called in question, in this revision petition on the following grounds: The Trial Court while hearing application under Order VII Rule 11 of CPC ought to have exercised its inherent jurisdiction for the purposes acceptance of the plaint for issue of notice or otherwise for the purposes of adjudication of the case. 6. Same is called in question, in this revision petition on the following grounds: The Trial Court while hearing application under Order VII Rule 11 of CPC ought to have exercised its inherent jurisdiction for the purposes acceptance of the plaint for issue of notice or otherwise for the purposes of adjudication of the case. On reading of the plaint it is to be understood that the plaintiff has sought for Cancellation/set aside the registered Partition Deed dated 1.1.2015 registered in the Office of the Sub Registrar, Periyapatna, Mysore District, registered as No.PYP-1-08014/2014-15 in CD.No.PYD 181 as null and void illegal the registered Deed of Partition was produced as a Certified copy before the Trial Court, the plaint ought to have been read along with certified copy of the Deed of Partition, if the Deed of Partition is to be read in the context of the participation of the plaintiff and all the defendants in the present suit, if all of them have participated in the Deed of Partition and the Deed of Partition is acted upon it operates as an Estoppel as against the plaintiff and once it operates as an Estoppel a Suit for Partition is not maintainable. The Trial Court ought to have noticed that the application can also be read with Section 151 of the Code of Civil Procedure, if it is read including under Section 151 of the Code of Civil Procedure what it should have noticed is that the father, mother and the brother who are petitioners in the Revision Petition have gifted the properties by way of registered Gift Deeds, Smt.N.Shobha got properties by way of Gift Deed and accordingly got transferred to her name, likewise Smt.N.Kalavathi and Smt.N.Sunitha who are defendants No.5 and 6 got properties registered in their names on 15.10.2015, similarly Smt.N.Sheela the plaintiff got the Gift Deed executed in her name on 6.6.2017, thus those documents which are executed as Gift Deeds were suppressed, there is suppression of material fact in filing of the said suit. The Trial Court fail to notice that there no properties that were acquired by the 1st Petitioner or ancestral properties available and there were absolutely no existence of ancestral properties. The 1st Petitioner Sri.S.Ningappa had succeeded to the properties of his mother Smt.Chanamma, Smt.Chanamma left behind her only son by way of succession and Sri. Ningappa acquires the properties as self-acquisition. The 1st Petitioner Sri.S.Ningappa had succeeded to the properties of his mother Smt.Chanamma, Smt.Chanamma left behind her only son by way of succession and Sri. Ningappa acquires the properties as self-acquisition. Under the circumstances, Deed of Partition was a formal document for the self-acquisition between the family members so that there cannot be any interse difficulties of the document being executed. The Trail Court ought to have noticed that the reasons assigned in Para No.5 of the plaint which indicates a story of registered mortgage deed etc., as stated can only to maintain a false suit and nonetheless registered documents are a notice of execution of the said document, the document of Partition Deed is dated 1.1.2015 suit is filed on 1.4.2024 after a lapse of 9 years and the properties being vested with the petitioners the suit is barred by limitation, keeping in mind the registered Document of Partition Deed and registered Gift Deeds to which all daughters of Sri.S.Ningappa have acquired huge properties available within them the Trial Court has not even looked into the fact and maintainability of the suit at the threshold it ought to have rejected it. The reasons assigned the Trial Court while hearing the application passing the orders although was brought attention that the suit is not for reopening of the Partition after the Deed of Partition Dated 1.1.2015, however, the Trial Court formulated its points and has assigned reasons which reasons are absolutely unjustified reasons. Paragraph No.9 and 10 touches the name fact which is unrelated to the actual facts pertaining to the case that could not have been taken into consideration, the reasons is unjustified reasons, the Trial Court ought to have dismissed the suit instead it has rejected the application which is unjustified. The Trail Court ought to have followed the judgment in the case of Uma Devi Vs. Anand Kumar and others reported in 2025 SCC Online SC 703 where the Hon'ble Supreme Court has held that the Suit for Partition is not maintainable and the period of Limitation specifically is three years from the Deed of Registered Documents executed as a Deed of Partition applying Section 3 of the Transfer of Property Act and pertaining to constructive notice. The Trial Court ought to have followed the judgment in the case of Madanuri Sri Rama Chandra Murthy Vs. The Trial Court ought to have followed the judgment in the case of Madanuri Sri Rama Chandra Murthy Vs. Syed Jalal reported in (2017) 13 SCC 174 and (2004) 7 SCC 166 in the case of S.J.S.Business Enterprises (P) Ltd., Vs. State of Bihar. More over what was essential to be considered is false frivolous vexatious case suppression of true facts and ought to have undertaken to have a cursory review of the entire plaint its pleadings and considered the case in T.Arivandandam Vs.T.V.Satyapal and another reported in 1977 SC 2421, that apart the case on hand can be viewed from any angle that the registered documents are a primafacie suppression of facts, if it is primafacie suppression of facts when registered documents executed by the father gifting his person properties there cannot be another suit filed mentioning that no properties have been given to them and filing the case against the father for division of the properties, if a Deed of Partition is executed where plaintiff and other members of the family are signatories to the registered document. Under the circumstances, the suit ought to have been dismissed have been instead the application ought not dismissed. Therefore, the order of the Trial Court erroneous on the legal position, the Trial Court instead of dismissing the suit has dismissed the application. Having drawn to the contentions the Trial Court has committed an error in not considering the ratio of the rulings proceeded to reject the application instead of dismissing the suit. The order of the Trial Court is erroneous and is liable to be set aside.” 7. Learned counsel for the revision petitioner reiterating the grounds urged in the revision petition contended that the Trial Court while hearing the application filed under Order VII Rule 11 of CPC ought to have exercised its inherent jurisdiction for the purpose of considering the plaint averments as genuine and thereafter, should have proceeded with the matter. 8. He would further contend that when there is a registered partition deed of which plaintiff is a party, question of challenging the same, that too in a belated suit would be per se barred by limitation as well as the suit suffers for want of necessary cause of action. 9. 8. He would further contend that when there is a registered partition deed of which plaintiff is a party, question of challenging the same, that too in a belated suit would be per se barred by limitation as well as the suit suffers for want of necessary cause of action. 9. Trial Court ought to have considered the principles of law enunciated by the Hon'ble Apex Court in the case of Uma Devi and Others v. Anand Kumar and Others reported in 2025 SCC Online SC 703 while considering the application filed by the defendants seeking rejection of the plaint and without averting to the principles of law enunciated in the said decision, dismissing the application filed under Order VII Rule 11 of CPC has resulted in grave miscarriage of justice and sought for allowing the revision petition. 10. He would also contend that the suit properties are independent and self acquired properties of defendant No.1 – S.Ningappa and therefore, plaintiff has no right whatsoever to seek for partition ignoring the registered partition deed. 11. Per contra, learned counsel for the respondents files a memo with copy of the partition deed which was filed along with the plaint and submits that in the very same partition deed itself, it has been mentioned that the suit properties are the ancestral properties. Therefore, the learned trial judge was justified in dismissing the application. 12. He would further contend that in view of the principles of law enunciated by the Hon'ble Apex Court in the case of Vineeta Sharma v. Rakesh Sharma reported in (2020) 9 SCC 1 , plaintiff is having a right over the suit property and the alleged partition deed is not a proper document and it is sham document and therefore, same needs to be established by placing necessary evidence on record and therefore dismissal of the application is just and proper. 13. Having heard the arguments of both sides, this Court perused the material on record meticulously. 14. On such perusal of the material on record, it is crystal clear that in the very partition itself, which has been banked upon by the revision petitioner, it has been mentioned that the suit properties are the ancestral properties. Whether the partition was a genuine partition or not cannot be decided by holding a mini trial at the time of considering the application under Order VII Rule 11 of CPC. Whether the partition was a genuine partition or not cannot be decided by holding a mini trial at the time of considering the application under Order VII Rule 11 of CPC. 15. Suffice to say that when there are serious allegations of misrepresentation in the plaint, the trial has to proceed and the matter needs to be trashed out by considering the material evidence on record placed by the parties in a full-fledged trial. 16. Thus, this Court is of the considered opinion that the dismissal of the application does not warrant interference by this Court in this revision. 17. Accordingly, following: ORDER i. Revision petition is dismissed ii. All the contentions are kept open to be urged during the trial in accordance with law.