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2025 DIGILAW 1920 (KAR)

Jacob, S/o. Aralappa v. Antharaju, S/o. Aralappa

2025-12-16

V.SRISHANANDA

body2025
ORDER : V. SRISHANANDA, J. Heard Sri.M.H.Prakash, learned counsel for the revision petitioner. None appears for the respondents. 2. Defendant No.2 is the revision petitioner challenging the dismissal of the application filed in O.S.No.344/2010 under Order VII Rule 11 of Code of Civil Procedure (hereinafter ‘CPC’ for short). 3. Facts in the nutshell which are utmost necessary for disposal of the present revision petition are as under: 3.1. A suit came to be filed by respondent Nos.1 to 5 with the following prayer in respect of the following immovable properties (hereinafter referred to as suit properties): PRAYER The plaintiffs therefore prays that this Hon’ble Court may be pleased to pass a judgment and decree against the defendants; a. To declare that the plaintiff No.1 is the absolute owner of the schedule A property and plaintiffs 2 and 3 together are the absolute owners of the schedule B property. b. To declare that the so called release deed dated 31.12.1992 registered number 7413 of 1992-93 registered at the office of the Sub Registrar, Kengeri,. Bangalore South Taluk, Bangalore, is not binding on the plaintiffs; c. To declare that the so-called sale deed dated 08.03.1994 registered number 9636 of 93-94 registered at the office of the Kengeri Sub Registrar, Bangalore is not binding on the plaintiffs; d. For permanent injunction restraining the defendants 3 and 10 from alienating the suit schedule properties. e. To grant such other appropriate relief or relief’s to the plaintiffs, including the award of costs, as this Hon’ble Court deems fit and proper in the facts and circumstances of the case, in the interest of justice and equity. SCHEDULE A The land bearing Sy.No.15 of Sommanahalli village, Uttarahalli Hobli, Bangalore South Taluk, measuring to an extent of 1 acre 3 guntas, bounded on the East by: River (Hole) West by: Property of Kumbara Siddaiah North by: Property of Mangappa South by: Share allotted to Jacob i.e., the3 rd defendant SCHEDULE B i. Land bearing Sy.No.49/2 of Sommanahalli village, Uttarahalli Hobli, Bangalore South Taluk, measuring to an extent of 0.15 guntas and bounded on the East by: Land of Anthonappa West by: Land of Yagappa North by: Share of Sandagappa South by: Property of Natamiyagappa ii. Land bearing Sy.No.48/2 of Sommanahalli village, Uttarahalli Hobli, Bangalore South Taluk, measuring to an extent of 0.21 guntas and bounded on the East by: Property of Balamma West by: River (Hole) North by: Property of Sirli South by: Property of Balamma 3.2. In the plaint, it is contented that land bearing Sy.No.15 measuring to an extent of 5 acres 7 guntas and land in Sy.No.48/2 to an extent of 1 acre 16 guntas and land in Sy.No.49/2 measuring 30 guntas and land in Sy.No.49/6 measuring 20 guntas situated at Somanahalli village, Uttarahalli Hobli, Bangalore South Taluk belonged to Sri.Aralappa. 3.3. Sri.Aralappa being the absolute owner was in possession and enjoyment of the suit properties. 3.4. Survey documents placed on record would establish that Sri.Aralappa was the owner in possession of the suit properties. Copy of the hissa and other necessary documents were also placed on record to prima facie establish that Sri.Aralappa was the owner of the suit properties. 3.5. It is contented that Smt.Jayamariamma, without there being any right over the suit properties, executed a gift deed on 04.10.1961 in favour of Sri.Yagappa, son of Sri.Mariyappa, who is none other than the brother of Sri.Aralappa. Smt.Jayamariamma did not possess any right to execute the gift deed in favour of Sri.Yagappa and based on the gift deed, revenue records were mutated and transactions have taken place in respect of the suit properties by Sri.Yagappa including the sale deeds executed by Sri.Yagappa. 3.6. Plaintiff further contended that Sri.Aralappa was an illiterate and did not notice the transfer of entries and therefore, Sri.Yagappa went on transacting with the suit property. 3.7. Further, it is contented that husband of defendant No.6, defendant Nos.7 and 8 created a release deed on 31.12.1992 in respect of the suit properties and therefore, a suit was filed earlier in O.S.No.334/2007. However, since there were technical defects in filing the said suit and all the sharers to the suit properties are not arraigned as parties and said suit was withdrawn by filing a memo and thereafter, present suit came to be filed. 4. However, since there were technical defects in filing the said suit and all the sharers to the suit properties are not arraigned as parties and said suit was withdrawn by filing a memo and thereafter, present suit came to be filed. 4. Cause of action paragraph for filing of the present suit is in paragraph No.27 of the plaint which reads as under: “The cause of action arose for filing of the suit on 01.11.2008 when Sri.Aralappa S/o Mariyappa died and on subsequent date when the 2 nd defendant denied to partition the suit schedule properties by metes and bounds all within the jurisdiction of this Hon’ble Court.” 5. Learned Trial Judge after registering the suit, issued summons to the defendants. 6. Pursuant to the suit summons, defendant No.2 appeared and filed written statement and also filed an application under Order VII Rule 11(d) of CPC by contending that suit is not only barred by res judicata but also hopelessly barred by time and sought for rejection of the plaint. 7. After entertaining the objections filed by the plaintiffs, learned Trial Judge heard the arguments of the parties and dismissed the application by impugned order. 8. Being aggrieved by the same, defendant No.2 is before this Court in this revision. 9. Learned counsel for the revision petitioners reiterating the grounds urged in the revision petition vehemently contented that learned Trial Judge did not understand the scope and ambit of the relief of application filed under Order VII Rule 11 of CPC and wrongly dismissed the application filed by defendant No.2 resulting in miscarriage of justice. 10. He would also contend that the earlier suit being withdrawn by filing a memo without seeking liberty, second suit on the same cause of action is per se not maintainable besides the suit is being barred by limitation and sought for admitting the revision petition for further consideration. 11. None appears for the respondent. Therefore, this Court perused the material on record meticulously in the light of the arguments put forth on behalf of the revision petitioners. 12. On such perusal of the material on record, it is crystal clear that a suit was filed earlier in O.S.No.334/2007. The same was withdrawn by filing a memo. The cause of action paragraph referred to supra makes it clear that to file the second suit, the plaintiffs did possess the cause of action. 13. 12. On such perusal of the material on record, it is crystal clear that a suit was filed earlier in O.S.No.334/2007. The same was withdrawn by filing a memo. The cause of action paragraph referred to supra makes it clear that to file the second suit, the plaintiffs did possess the cause of action. 13. The principles of res judicata would not be per se applicable to the case on hand in view of the fact that the earlier suit was not decided on the merits but it was withdrawn. 14. Insofar as the plea of limitation is concerned, in the attendant facts and circumstances of the case, the plea of limitation is a mixed question of law and fact to be decided during the trial. 15. Suffice to say that learned Trial Judge has taken into consideration all relevant aspects and passed the impugned order which requires no interference by this Court in this revision. 16. Having said thus, it is expected that the learned Trial Judge would raise an issue with regard to limitation in the suit. If no such issue is framed by the Trial Court, the defendant No.2 is at liberty to file an application under Order XIV Rule 5 of CPC requesting the Court to raise the issue with regard to limitation. 17. With that observation, following: ORDER Revision petition is dismissed.