Research › Search › Judgment

Karnataka High Court · body

2025 DIGILAW 1774 (KAR)

G. NARSIMHA MURTHY v. B. S. NARASIMHAIAH

2025-12-11

V.SRISHANANDA

body2025
ORDER : V SRISHANANDA, J. Sri B.J.Mahesh, learned counsel on behalf of respondent Nos.5 and 6 is present. There is no possibility of amicable settlement having regard to the differences between the parties. Hence matter is taken up for consideration on merits. 2. Heard Sri C.M.Nagabushana, learned counsel for the revision petitioners, Sri B.J.Mahesh, learned counsel for respondent Nos.5 and 6, Sri Raja.R, learned counsel for the respondent Nos.1 to 4 and 7. 3. Defendant No.9 is the revision petitioner challenging the dismissal of the application filed under Order VII Rule 11 of the Code of Civil Procedure in OS No.221/2013 on the file of the II Addl. Senior Civil Judge and JMFC, Devanahalli. 4. Facts in the nutshell which are utmost necessary for disposal of the present revision petition are as under: 5. Defendant No.9 is the revision petitioner challenging the dismissal of the application filed under Order VII Rule 11 of the Code of Civil Procedure in OS No.221/2013 on the file of the II Addl. Senior Civil Judge and JMFC, Devanahalli. 4. Facts in the nutshell which are utmost necessary for disposal of the present revision petition are as under: 5. A suit in O.S No.221/2013 came to be filed with the following prayer in respect of following immovable properties (hereinafter referred as ‘suit properties’): “Wherefore the plaintiffs above named most humbly pray that this Hon'ble Court be pleased to pass Judgment & Decree against the defendants:- a) for the relief of partition and separate possession of the plaintiffs' joint and legitimate 3/9 th share in the schedule properties; b) for an enquiry into the future mesne profits; c) to effect partition under Sec.54 of the CPC and to put the plaintiffs of their legitimate share in the schedule properties by metes and bounds; d)for the relief of declaration to declare that the alleged partition dated 8.7.2004 entered into between the defendants 8 & 9 in respect of the schedule properties is not binding on the plaintiffs or the plaintiffs' share and also to declare further that the defendants 8 & 9 does not derive any right, title, interest or possession of any kind over the schedule properties based on the alleged partition deed dated 8.7.2004; e) to declare that the alleged sale deed dated 4.8.2005 alleged to have been executed by the 9 th defendant in favour of 12 th defendant in respect of the land bearing Sy.No.3/5 measuring 1 Acre 15 Guntas situated at Begur village, Jala Hobli, Bangalore North Taluk in favour of 12 th defendant is not binding on the plaintiffs or their share and also to declare further that the 12 th defendant does not derive any right, title, interest or possession of any kind over the said property based on the alleged sale deed dated 4.8.2005; f) for the relief of permanent injunction restraining the defendants, their agents, GPA Holders or anybody acting on their behalf from alienating or encumbering the schedule properties in favour of third persons; g) Pass such other suitable order/s deems fit to grant under the circumstances of the case including the orders as to the costs of this suit, in the interest of justice.” SCHEDULE PROPERTIES 1. All that piece and parcel of the land bearing Sy.No.7/2 measuring 2 Acres 38 Guntas and bounded on the:- Direction Description East Land bearing Sy.no.6 belongs to B. Narahari Sastry & his children West Gramatana North Land bearing Sy.No.7/1 belongs to Matadappa & his children South Land bearing Sy.No.7/3 & 10 belongs to B. Narayanaswamy and his children 2. All that piece and parcel of the land bearing Sy.No.14/1 measuring 2 Acres 25 Guntas and bounded on the: Direction Description East Land bearing Sy.No.30 - Kere Angala West Land belongs to Narayanappa and his children North Land belongs to Patalappa South Kere Angala 3. All that piece and parcel of the land bearing Sy.no.3/5 measuring 1 Acre 15 Guntas and bounded on the: Direction Description East Land bearing Sy.No.4 belongs to Smt.Vasanthamma West Land bearing Sy.No.2 belongs to Narayanappa North Land bearing Sy.No.3/4 belongs to Lakshminarasimaiah South Road 4. All that piece and parcel of the land bearing Sy.No.12 measuring 2 Acres 5 guntas and bounded on the: Direction Description East Kere Angala West Land bearing Sy.No.13 belongs to Sri Patellappa North Land bearing Sy.No.11 belongs to Sri Gangadhara Sastry South Land bearing Sy.No. 14/1 All the lands situated at Begur village, Jala Hobli, Bangalore North Taluk.” 6. In the plaint, it is contented that common prepositus viz., B.Gundappa was the owner of the suit properties. After Inam Abolition Act came into force, he applied for re-grant and properties were granted in the name of B.Gundappa who died leaving behind his wife by name Kamalakshamma and nine children. Among them 7 are daughters and 2 are sons. 7. It is further contented that after the death of Gundappa and Kamalakshamma, all the children of Gundappa and Kamalakshamma are entitled for 1/9 th share which was denied by the sons and therefore suit came to be filed. 8. Defendant Nos.8 and 9 being the sons, contented that there is a partition between them as suit properties are ancestral properties. Therefore after the death of Gundappa, defendant Nos.8 and 9 alone are entitled for the share in the suit properties. Therefore, partition among them is just and proper and plaintiffs have no right. 9. An application under Order VII Rule 11 of the Code of Civil Procedure came to be filed seeking rejection of the plaint, by defendant No.9. 10. Therefore after the death of Gundappa, defendant Nos.8 and 9 alone are entitled for the share in the suit properties. Therefore, partition among them is just and proper and plaintiffs have no right. 9. An application under Order VII Rule 11 of the Code of Civil Procedure came to be filed seeking rejection of the plaint, by defendant No.9. 10. Plaintiffs opposed the same and by the impugned Order, learned Trial Judge dismissed the said application. 11. Being aggrieved by the same, it is defendant No.9 who approached this Court in this revision petition. 12. During pendency of the revision petition, defendant No.9 died and his legal representatives are brought on record. 13. Sri C.M.Nagabushana, learned counsel for the revision petitioners reiterating the grounds urged in the revision petition vehemently contented that the learned Trial Judge has misconstrued the scope of Order VII Rule 11 of the Code of Civil Procedure and wrongly dismissed the application on surmises and conjectures resulting in miscarriage of justice and sought for allowing the revision petition. 14. He further contended that suit properties are ancestral properties and therefore, the plaintiffs have no share in the suit properties which has been ignored by the learned Trial Judge while rejecting the application and sought for allowing the revision petition. 15. Per contra, Sri B.J.Mahesh and Sri R.Raja, learned advocates would support the impugned order. 16. Sri B.J.Mahesh, learned counsel would contend that it is the individual property of B.Gundappa inasmuch as, after the Inam Abolition Act came into force, Gundappa applied for re- grant. Gundappa having died intestate and mother of the parties namely Kamalakshamma also having died, all the children of Gundappa and Kamalakshamma are entitled for 1/9 th share in the suit properties and therefore, rejection of the application filed by defendant No.9 is just and proper and sought for dismissal of the revision petition. 17. Having heard the arguments of both sides, this Court perused the material on record meticulously. 18. On such perusal of the material on record, suit cannot be dismissed even assuming that the contentions of the defendant Nos.8 and 9 are to be accepted for the sake of argument inasmuch as, in a notional partition, share of father namely Gundappa should have been divided among wife and children and if wife has predeceased Gundappa, 1/3 rd share of Gundappa should have been divided among the nine children equally. 19. 19. Whether at all it was an ancestral property and whether at all the amended provisions of Section 6 of the Hindu Succession Act would apply in the facts and circumstances of the case or whether it is the Section 8 of the Hindu Succession Act that would operate in the facts and circumstances of the case, are all matters which are required to be adjudicated in the trial based on the rival pleadings of the parties. 20. A mini trial cannot be held at the time of considering the application under Order VII Rule 11 of Code of Civil Procedure. 21. Further, it is well settled principles of law and requires no emphasis that at the time of considering the application under Order VII Rule 11 of Code of Civil Procedure, Courts are required to consider the plaint averments and not the defence. 22. Therefore, from the perusal of the material on record, dismissal of the application by the Trial Court by the impound order is just and proper, which requires no interference in this revision petition. 23. Hence, the following: ORDER (i) Civil Revision Petition is dismissed (ii) All the contentions of the parties are kept open to be urged in accordance with law before the Trial Court.