- 1 - HC-KAR NC: 2025:KHC:25583 MSA No. 100 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH MISCELLANEOUS SECOND APPEAL NO.100 OF 2023 (RO) BETWEEN: 1. THAMBANNA Y., SINCE DEAD BY LRS. SMT. T. RADHAMMA, D/O LATE THAMBANNA, AGED ABOUT 61 YEARS. 2. SRI. T. LOKESH, S/O LATE THAMBANNA, AGED ABOUT 59 YEARS. 3. SRI. T. CHANDRASHEKAR, S/O LATE THAMBANNA, AGED ABOUT 57 YEARS. 4. SRI. T. ANAND, S/O LATE THAMBANNA, AGED ABOUT 55 YEARS. APPELLANTS NO.1 TO 4 ARE R/AT IMMADIHALLI VILLAGE, WHITEFIELD POST, K.R.PURAM, BENGALURU EAST TALUK, BENGALURU-560 066. 5. 5(a) GOVINDAPPA T.Y., S/O LATE YELLAPPA, SINCE DEAD BY LRS. GOWRAMMA C., AGED ABOUT 69 YEARS W/O LATE GOVINDAPPA T.Y. Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:25583 MSA No. 100 of 2023 5(b) KOMALA G., AGED ABOUT 49 YEARS, D/O LATE GOVINDAPPA T.Y. 5(c) JAYAPRABHU G., AGED ABOUT 47 YEARS, S/O LATE GOVINDAPPA T.Y. 5(d) KANTHARAJU G., AGED ABOUT 45 YEARS, S/O LATE GOVINDAPPA T.Y. 5(e) MAHENDRA G., AGED ABOUT 43 YEARS, S/O LATE GOVINDAPPA T.Y. APPELLANTS NO.5(a) TO 5(e) ARE R/AT IMMADIHALLI VILLAGE, WHITEFIELD POST, K.R.PURAM, BENGALURU EAST TALUK, BENGALURU-560 066. …APPELLANTS (BY SRI. VIJAYA SHEKARA GOWDA V., ADVOCATE) AND: 1. P. PRAKASH, S/O LATE Y. PAPANNA, AGED ABOUT 55 YEARS. 2. P. RAMESH, S/O LATE Y. PAPANNA, AGED ABOUT 52 YEARS. RESPONDENTS NO.1 AND 2 ARE R/AT NO.858, 4TH CROSS, CHOWDESHWARI EXTENSION, MARATHAHALLI, BENGALURU-560 037. MUNIKRISHNA, SINCE DEAD BY LRS. - 3 - HC-KAR NC: 2025:KHC:25583 MSA No. 100 of 2023 3. M. MURALI, S/O LATE MUNIKRISHNA, AGED ABOUT 30 YEARS. 4. M. SUNIL, S/O LATE MUNIKRISHNA, AGED ABOUT 27 YEARS. RESPONDENTS NO.3 AND 4 ARE R/AT NO.353, LAXMANA BUILDING, 2ND MAIN, 1ST CROSS, NEAR TRINITY SCHOOL, MARATHAHALLI, BENGALURU-560 037. …RESPONDENTS (BY SRI. M.J.ALVA, ADVOCATE FOR R1 AND R2; SRI. GURUPRASAD, ADVOCATE FOR R3 AND R4) THIS MSA IS FILED UNDER ORDER XLIII RULE 1(U) OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 14.12.2022 PASSED IN R.A.NO.97/2022 ON THE FILE OF THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, ALLOWING THE APPEAL FILED AGAINST THE ORDER DATED 28.07.2022 PASSED ON I.A.NO.V IN O.S.NO.37/2011 ON THE FILE OF THE C/C II ADDITIONAL SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, ALLOWING THE I.A.NO.V FILED UNDER ORDER 7 RULE 11(a) AND (d) OF CPC FOR REJECTING OF PLAINT REMAND THE MATTER BACK TO THE TRIAL COURT THE SUIT IS RESTORED ON THE FILE OF COURT OF II ADDITIONAL SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, AS ITS ORIGINAL NUMBER. THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 4 - HC-KAR NC: 2025:KHC:25583 MSA No. 100 of 2023 CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT Heard the learned counsel for the appellants, the learned counsel for respondent Nos.1 and 2 and the learned counsel for respondent Nos.3 and 4. 2. This appeal is filed challenging the order dated 14.12.2022 passed by the First Appellate Court in R.A.No.97/2022 allowing the appeal, wherein challenge was made against the allowing of the application filed under Order 7 Rule 11(a) and (d) of CPC, wherein prayer was sought for rejection of the plaint on the ground of want of cause of action and also the suit is barred by law. The Trial Court taken note of the grounds which have been urged both in respect of cause of action as well as the limitation and also discussed with regard to the limitation and Article 58 of the Limitation Act and also Article 109 for filing a suit and also discussion was made with regard to in a case of suit for partition, the suit is barred by limitation. The issue of limitation is a mixed question of fact and law and the same has to be considered after recording the evidence. The other issue is regarding want of jurisdiction is concerned and the - 5 - HC-KAR NC: 2025:KHC:25583 MSA No. 100 of 2023 Trial Court referred the earlier judgment that is set out in the written statement and considered the contents of the written statement and allowed the application. The same is challenged before the Appellate Court. 3. The Appellate Court while considering the grounds, which have been urged in the appeal, formulated the point whether the Trial Court was justified in rejecting the plaint. The Appellate Court in paragraph No.14 of the order, discussed that, the advertence to the decree passed in O.S.No.562/2002 and the consequential F.D.P.No.6/2017 also indicates that the Trial Court has taken into consideration the averments in the written statement. The Trial Court was not supposed to look into such contention of the written statement while exercising the jurisdiction under Order 7 Rule 11 of CPC. It further holds that the original decree and the compromise decree in FDP in said proceedings are remained unchallenged. It also refers to attempt made by the plaintiffs to get themselves impleaded in F.D.P.No.6/2017 and the Hon’ble High Court allowing the plaintiffs to get their rights adjudicated even in respect of properties included in O.S.No.562/2002. Having considered the same, comes to the - 6 - HC-KAR NC: 2025:KHC:25583 MSA No. 100 of 2023 conclusion that the Trial Court ought not to have considered the written statement while considering the application under Order 7 Rule 11 of CPC and also the Trial Court considered Article 58 of Limitation Act regarding limitation is concerned and also the same is an observation made in paragraph No.15 that the Trial Court ought not to have considered the plea of limitation and while considering the issue of limitation, the matter requires trial regarding question of fact and question of law when the mixed question of fact and law are involved. In paragraph No.16 discussed with regard to the contention of the Will is concerned and an observation is made that there are no disputed questions of fact and law when the Will is propounded and the same also requires to be considered during the trial and also relied upon the judgment of the Apex Court in the case of Bhau Ram v. Janak Singh and others reported in the AIR 2012 SC 3023 that in the said matter, it is very clear that the same has to be considered during the course of trial as well as without conducting the trial, there cannot be any finding on that issue and that too particularly taking the written statement contentions cannot be looked into while considering Order 7 Rule 11 of CPC and hence allowed the appeal and set aside the order passed on I.A.No.5 - 7 - HC-KAR NC: 2025:KHC:25583 MSA No. 100 of 2023 by the Trial Court and original suit was restored in view of the order. 4. The learned counsel for the appellants would vehemently contend that the order passed by the Appellate Court is erroneous and ought not to have reversed the finding of the Trial Court on issue No.5. The learned counsel also contend that the reasons are set out in the application under Order 7 Rule 11 of CPC rejecting the plaint and valid reasons are given by the Trial Court while allowing the application. It is contended that the Appellate Court ought not to have reversed the same making such an observation and hence this Court has to frame substantial question of law. 5. Per contra, the learned counsel for the respondents would vehemently contend that the Trial Court committed an error in discussing the written statement averments as well as the very defence taken with regard to the Will is concerned. The learned counsel contend that the Trial Court also committed an error in invoking the law of limitation and discussing Article 58 of the Limitation Act without recording any evidence and hence the Appellate Court has not committed any error. - 8 - HC-KAR NC: 2025:KHC:25583 MSA No. 100 of 2023 6. Having heard the learned counsel for the appellants and the learned counsel for the respondents, the points that would arise for the consideration of this Court are: (i) Whether the First Appellate Court committed an error in setting aside the order passed on I.A.No.5 filed under Order 7 Rule 11 of CPC, wherein grounds are set out for want of cause of action as well as the suit is barred by limitation? (ii) What order? Point No.(i): 7. Having heard the learned counsel for the appellants and the learned counsel for the respondents, admittedly the suit is filed for the relief of partition and separate possession and in the suit, the relief is claimed wherein also effected the partition of the suit schedule property, allotting the share in each schedule of the schedule properties and consequential relief of injunction. In the said suit, an application is filed under Order 7 Rule 11 of CPC, wherein grounds are set out that for want of cause of action, the suit is liable to be dismissed as well as the same is barred by limitation. The issue of limitation in a suit for partition does not arise. The Trial Court committed an error in - 9 - HC-KAR NC: 2025:KHC:25583 MSA No. 100 of 2023 exercising the power under Order 7 Rule 11 of CPC and even the issue regarding limitation is involved and the same is a mixed question of fact and law. The Apex Court in its judgment in the case of P. KUMARAKURUBARAN v. P. NARAYANAN AND OTHERS reported in 2025 SCC Online SC 975, has clearly held that when the limitation issue arises, it involves the mixed question of fact and law and hence the trial is required to come to a conclusion of limitation. 8. The learned counsel for the respondents would vehemently contend that when there was a Will, the issue of Will also to be considered during the course of trial only when there are disputed facts and the same cannot be decided in an application filed under Order 7 Rule 11 of CPC and the contention that there is no cause of action also to be considered during the trial. Having considered the factual aspects, the Appellate Court made an observation that the Trial Court taken note of the defence, which was taken in the written statement and it is settled law that while considering the application filed under Order 7 Rule 11 of CPC, the Court cannot look into the defence, which was taken in the written statement and only to see that the averments made in the - 10 - HC-KAR NC: 2025:KHC:25583 MSA No. 100 of 2023 plaint whether it discloses the cause of action or not. If the plaint discloses the cause of action and suit is filed for the relief of the partition and separate possession, direct the defendant to put the plaintiffs in possession of their respective shares in the suit schedule property and ought not to have considered the written statement contentions. Hence, the Appellate Court rightly discussed the material on record, particularly the ground which has been urged before the Trial Court and the same is discussed in paragraph Nos.14 and 16 of the judgment of the Appellate Court regarding Will as well as scope of Order 7 Rule 11 of CPC. In paragraph No.17 discussed the judgment of the Apex Court and the authorities are very clear that there cannot be any decision with regard to law of limitation as well as while considering Order 7 Rule 11 of CPC, the Court cannot look into the defence and whatever grounds which have been set out in the application is nothing but defence set out in the application for rejection of the plaint and hence rightly set aside the order of the Trial Court and remitted the matter for consideration by restoration of the suit and hence no grounds are made out to entertain the appeal and hence I answer the point in the negative. - 11 - HC-KAR NC: 2025:KHC:25583 MSA No. 100 of 2023 Point No.(ii): 9. In view of the discussions made above, I pass the following: ORDER (i) The miscellaneous second appeal is dismissed. (ii) The parties are directed to appear before the Trial Court on 12.08.2025, without expecting any notice from the Trial Court. (iii) The Trial Court is directed to dispose of the matter within six months from 12.08.2025. (iv) Both the plaintiffs’ counsel and the defendants’ counsel are directed to assist the Trial Court to dispose of the matter within a time bound period and not to seek any unnecessary adjournment. (v) The Registry is directed to send the records to the Trial Court, forthwith to take up the matter on 12.08.2025 Sd/- (H.P.SANDESH) JUDGE MD List No.: 1 Sl No.: 71