- 1 - NC: 2025:KHC:15323 RFA NO.1789 OF 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 09TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR REGULAR FIRST APPEAL NO.1789 OF 2023 (PAR / INJ) BETWEEN: SRI P. BHOOPAL S/O LATE MUNIPOOVANNA, AGED 50 YEARS, R/AT NO.109, MUNIPOOVANNA LAYOUT, MANARAYANA PALYA, R.T. NAGAR POST, BENGALURU - 560 032. …APPELLANT (BY SMT. NAYANA TARA B.G., ADVOCATE) AND: 1. SRI. P. GOVINDAPPA S/O LATE MUNIPOOVANNA, AGED ABOUT 50 YEARS. 2. SRI. P. NARAYANA S/O LATE MUNIPOOVANNA, AGED ABOUT 45 YEARS. RESPONDENTS 1 AND 2 ARE R/AT NO.109, MUNIPOOVANNA LAYOUT, MANARAYANA PALYA, R.T. NAGAR POST, BENGALURU - 560 032. 3. MRS. MARY LESSAMMA K. W/O MR. U. EASUDASS, AGED ABOUT 49 YEARS, R/AT NO.98, MUNIPOOVANNA LAYOUT, MANARAYANA PALYA, R.T. NAGAR POST, BENGALURU - 560 032. Digitally signed by ARUNKUMAR M S Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:15323 RFA NO.1789 OF 2023 4. SRI. A. ASHOK KUMAR S/O LATE ARMUGAM, AGED ABOUT 30 YEARS, R/AT NO.27, 2ND CROSS, MANARAYANA PALYA, R.T. NAGAR POST, BENGALURU - 560 032. 5. SRI. G. MUNIRAJU S/O GUTTAPPA, AGED ABOUT 42 YEARS, R/AT MUNIPOOVANNA LAYOUT, MANARAYANA PALYA, R.T. NAGAR POST, BENGALURU - 560 032. 6. SRI. RENUKAPPA A.S. S/O SHIVANNA, AGED ABOUT 42 YEARS, R/AT MUNIPOOVANNA LAYOUT, MANARAYANA PALYA, R.T. NAGAR POST, BENGALURU - 560 032. 7. SRI, K.T. JOSE S/O LATE THOMAS, AGED ABOUT 48 YEARS, R/AT NO.16/47, POOVANNA BLOCK, MANARAYANA PALYA, R.T. NAGAR POST, BENGALURU - 560 032. 8. SMT. CECILY JOSEPH W/O J. JOSEPH, AGED ABOUT 48 YEARS. 9. SRI. KOODI PINTO S/O S.J. PINTO, AGED ABOUT 22 YEARS. RESPONDENTS 8 AND 9 ARE R/AT NO.105, MUNIPOOVANNA LAYOUT, MANARAYANA PALYA, R.T. NAGAR POST, BENGALURU - 560 032. - 3 - NC: 2025:KHC:15323 RFA NO.1789 OF 2023 10. SMT. MOLI JOSH W/O M.C. JOSH, AGED ABOUT 56 YEARS, MUNIPOOVANNA LAYOUT, MANARAYANA PALYA, R.T. NAGAR POST, BENGALURU - 560 032. 11. SMT. RAJESHWARI W/O RAMACHANDRA, AGED ABOUT 26 YEARS, MUNIPOOVANNA LAYOUT, MANARAYANA PALYA, R.T. NAGAR POST, BENGALURU - 560 032. 12. SRI. MEER KHUDRATHULLA SHA S/O MEER YUSUF SHA, AGED ABOUT 45 YEARS, NO.96, MUNIPOOVANNA LAYOUT, MANARAYANA PALYA, R.T. NAGAR POST, BENGALURU - 560 032. 13. SMT MANGALA BAI W/O RAO, AGED ABOUT 68 YEARS, C/O NAGARAJ, MUNIPOOVANNA LAYOUT, MANARAYANA PALYA, R.T. NAGAR POST, BENGALURU - 560 032. 14. SRI. N. MANJUNATH S/O NARAYANAPPA, AGED ABOUT 34 YEARS, NO.86, 1ST MAIN, 5TH CROSS, MOTHI NAGAR, R.T. NAGAR POST, BENGALURU - 560 032. 15. SRI. MARIMUTHU S/O GOWRAPPAN, - 4 - NC: 2025:KHC:15323 RFA NO.1789 OF 2023 AGED ABOUT 56 YEARS, MUNIPOOVANNA LAYOUT, MANARAYANA PALYA, R.T. NAGAR POST, BENGALURU - 560 032. 16. SRI S. MANJUNATH S/O K. SRINIVASAMURTHY, AGED ABOUT 43 YEARS, NO.636, 3RD CROSS, NEAR VIJAYABHARATHI SCHOOL, BHUVANESHWARI NAGAR, R.T. NAGAR POST, BENGALURU - 560 032. 17. SMT. SARASAMMA S/O MURTHY, AGED ABOUT 41 YEARS. 18. SMT. YELTHAMMA HUSBAND NAME NOT KNOWN, AGED ABOUT 66 YEARS. 19. SRI. KRISHNAPPA S/O MUNISWAMY, AGED ABOUT 42 YEARS. 20. SRI. SATHYAPPA C/O Y. KRISHNAPPA, AGED ABOUT 50 YEARS. 21. SMT. HAMSAMMA HUSBAND NAME NOT KNOWN, AGED ABOUT 45 YEARS. 22. KRISHNAMURTHY S/O THORA MANIKYAM, AGED ABOUT 40 YEARS. 23. SRI. R. KRISHNAN S/O A. RAMAN, AGED ABOUT 44 YEARS. RESPONDENTS 17 TO 23 ARE R/AT MUNIPOOVANNA BLOCK, - 5 - NC: 2025:KHC:15323 RFA NO.1789 OF 2023 MANARAYANA PALYA, R.T. NAGAR POST, BENGALURU - 560 032. 24. SHARUN KUMAR N. S/O SRI. NEELAKANTAN, AGED ABOUT 29 YEARS, R/AT AMBIKA NILAYAM, NO.46/7, THULASAMMA LAYOUT, MANARAYANA PALYA, R.T. NAGAR POST, BENGALURU - 560 032. 25. SRI. M. MURTHY S/O SRI. MUNISWAMY, AGED ABOUT 44 YEARS, R/AT NO.13, SEETHAPPA LAYOUT, 4TH CROSS, MANARAYANA PALYA, R.T. NAGAR POST, BENGALURU - 560 032. 26. SRI. ZIA FATHER NAME NOT KNOWN, AGED ABOUT 52 YEARS, R/AT MUNIPOOVANNA BLOCK, MANARAYANA PALYA, R.T. NAGAR POST, BENGALURU - 560 032. 27. SMT. PANDARI BAI FATHER NAME NOT KNOWN, AGED ABOUT 40 YEARS, R/AT POOVANNA BLOCK, MANARAYANA PALYA, R.T. NAGAR POST, BENGALURU - 560 032. 28. SRI. S. NANDAKUMAR S/O LATE R. SHANKAR, AGED ABOUT 41 YEARS. 29. SRI. S. SRINIVAS S/O LATE R. SHANKAR, AGED ABOUT 45 YEARS. - 6 - NC: 2025:KHC:15323 RFA NO.1789 OF 2023 30. SRI. S. SHARAVANA S/O LATE R. SHANKAR, AGED ABOUT 47 YEARS. 31. MRS. SUJATHA W/O MADHURACHARI P, AGED ABOUT 33 YEARS. RESPONDENTS 28 TO 31 ARE R/AT NO.47/1, SEETHAPPA LAYOUT 4TH CROSS, MANARAYANA PALYA, R.T. NAGAR POST, BENGALURU - 560 032. 32. SMT. K. SAROJA W/O SRI. KRISHMAMURTHY, AGED ABOUT 69 YEARS, R/AT LAKSHMAIAH BUILDING, ADI KABIR ASHRAM ROAD, MATADAHALLI, BENGALURU - 560 032. 33. MRS. S. SANDHYA RANI W/O DR. SATYANARAYANA, AGED ABOUT 47 YEARS, R/AT NO.520, 19B CROSS, 1ST BLOCK, R.T. NAGAR, BENGALURU - 560 032. 34. SMT. PREMA KUMARI V. W/O SRI. R. RAVI, AGED ABOUT 49 YEARS, R/AT NO.64, RAMA TEMPLE ROAD, NEW THIPPASANDRA, BENGALURU - 560 075. …RESPONDENTS (BY SRI. M.R. RAJAGOPAL, SENIOR ADVOCATE FOR SRI. RAVINDRA PRASAD B., ADVOCATE FOR R1 AND R2; NOTICE TO R3, R4, R6 TO R33 IS DISPENSED WITH V/O DATED 02.11.2024; NOTICE TO R5 AND R34 IS DISPENSED WITH V/O DATED 09.04.2025) - 7 - NC: 2025:KHC:15323 RFA NO.1789 OF 2023 THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF THE CODE OF CIVIL PROCEDURE AGAINST THE ORDER DATED 20.06.2023 PASSED ON I.A. IN O.S.NO.6484/2012 ON THE FILE OF THE XXIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY (CCH-6), ALLOWING THE I.A. FILED UNDER ORDER VII RULE 11 OF THE CODE OF CIVIL PROCEDURE FOR REJECTION OF PLAINT. THIS APPEAL COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR ORAL JUDGMENT This appeal is filed by the plaintiff in O.S. No.6484/2012, challenging the order dated 20.06.2023 on the file of the XXIV Additional City Civil and Sessions Judge, Bengaluru (for short, 'Trial Court'), wherein the application filed by defendants 1 and 2 under Order VII Rule 11 of the Code of Civil Procedure for rejection of plaint came to be allowed culminated in dismissal of the suit. 2. A perusal of the material on record will indicate that the appellant/plaintiff is none other than the brother of defendants 1 and 2, all of them being the children of late Munipovanna. Defendants 3 to 22 are said to be the alienees in relation to the suit schedule properties in respect of which, the appellant/plaintiff instituted the aforesaid suit for partition and separate possession of his alleged share in the suit schedule properties comprising of - 8 - NC: 2025:KHC:15323 RFA NO.1789 OF 2023 plaint 'A', 'B' and 'C' schedule properties. The said suit was contested by respondents 1 and 2 herein, who not only filed the written statement but also an application under Order VII Rule 11 of the Code of Civil Procedure for rejection of plaint inter alia contending that there was a earlier suit in O.S.No.4430/1987 between the appellant, respondents 1 and 2 and other relatives of late Munipoovanna, which culminated in an order dated 13.11.2006 passed in S.L.P. No.17889/2006 and consequently, the entire branch of Munipoovanna having lost their alleged share in the suit schedule properties, the question of present plaintiff once again re- agitating his claim in the instant suit does not arise. 3. The said application having been opposed by the appellant/plaintiff, the Trial Court came to the conclusion that, in the light of the earlier round of litigation between the appellant and respondents 1 and 2 on one hand and the remaining relatives of Munipoovanna on the other hand having attained finality in O.S. No.4430/1987 and confirmed in R.F.A. No.268/2003 dated 30.06.2006 and S.L.P. No.17889/2006 dated 13.11.2006, the present suit is not maintainable since neither the appellant nor the respondents 1 and 2 have any right, title, interest or possession - 9 - NC: 2025:KHC:15323 RFA NO.1789 OF 2023 over the suit schedule property. Being aggrieved by the impugned order passed by the Trial Court, allowing the application filed by the defendants 1 and 2 under Order VII Rule 11 of the Code of Civil Procedure for rejection of plaint, the appellant/plaintiff is before this Court by way of present appeal. 4. A perusal of the material on record will indicate that the main ground relied upon by the Trial Court in rejecting the plaint is by coming to the conclusion that, in the aforesaid earlier round of litigation between the appellant and respondents 1 and 2 on one hand and remaining relatives of their father Munipoovanna on the other hand, had culminated before the Apex Court and consequently, neither the appellant nor the respondents 1 and 2 had any right, title or interest over the suit schedule properties which was capable of being partitioned and consequently, the suit was not maintainable. In this context, the Trial Court failed to consider and appreciate the well settled position of law that for the purpose of considering an application for rejection of plaint, it is only the plaint averments and documents produced along with plaint that can be looked into. The averments made by the plaintiff in the plaint reads as under: - 10 - NC: 2025:KHC:15323 RFA NO.1789 OF 2023 "2. That the Plaintiff and Defendant No. 1 & 2 are the children of one Late. Munipoovanna and grand children of Late. Narayanappa. The plaintiff and defendants 1 and 2 are the brothers. The plaintiff and Defendants 1 & 2 have constituted Hindu undivided joint family and governed by Hindu Succession Act. The other defendants are the strangers and subsequent purchasers. 3. That the grandfather of plaintiff and Defendant No. 1 & 2 Late Narayanappa owned properties. The property in Sy.No.47, measuring acre situated at Cholanayakanahalli Village, Kasaba Hobli, Bangalore North Taluk and morefully 'described in the schedule below and herein after is called as suit schedule 'A' property. 4. The another property is also owned by the joint family of the plaintiff and defendants. The property in Sy.No.49/6, Khatha NO. 76(c), measuring 5 guntas out of 9 guntas situated at Cholanayakanahalli Village, Bangalore North Taluk and morefully described in the schedule below and herein after called as suit schedule 'B' property and another property is also owned by the joint family of the plaintiff i.e., the property bearing Khatha No. 38, Sy. No. 44/2, Cholanayakanahalli Village, Munipoovanna Layout, Manarayana Palya, Bangalore North Taluk measuring 50 X 42 feet consisting of a house and herein after called as suit schedule "C" property. 5. The plaintiffs father had another wife and certain properties were allotted to her and the 1st defendant challenged their rights which were confirmed by the Supreme Court against the 1st defendant. The suit schedule properties are not subject matter of - 11 - NC: 2025:KHC:15323 RFA NO.1789 OF 2023 that dispute. The defendants have created certain documents without the concerned of plaintiff. 6. That the suit schedule properties are the ancestral properties stood in the name of grandfather of plaintiff. The grandfather of the plaintiff Late. Narayanappa died intestate leaving behind his son Sri. Munipoovanna. Subsequently Sri. Munipoovanna died intestate leaving behind the plaintiff and Defendant No. 1 & 2. After the death of Sri. Munipoovanna his wife and mother plaintiff Late. Muniyamma was managing the property. Smt. Muniyamma passed away on 22.01.2007 and subsequent to death of mother of plaintiff the 1st Defendant is managing the property. The death certificate of Smt. Muniyamma is herewith produced and is marked as DOCUMENT NO.1. The RTC's and Mutation Extracts in respect of the suit schedule properties are herewith produced and is marked are DOCUMENT NO. 2 TO 6. 7. That the Defendants No. 1 & 2 and the plaintiff are in joint possession ion and enjoyment of the suit property and Now the Defendants are acting hostile to interest of the plaintiff and not effecting partition with an intension to grab the plaintiff share. The plaintiff has been demanding for division of the property equally but the Defendants kept on postponing on one reason or the other. Hence this suit. 8. It is sübmitted that, the Plaintiff and the Defendants are entitled to equal share in the suit schedule property. The plaintiff is demanding his share in suit schedule property and the Defendants are not effecting partition and attempting to deprive the rights of Plaintiff. - 12 - NC: 2025:KHC:15323 RFA NO.1789 OF 2023 9. The cause of action for this suit arose on 14.01.2007 when the mother of plaintiff passed away and on 24.08.2012, when the plaintiff demanded for partition and other dates when the Defendants failed and neglected to effect partition. 10. The suit schedule Property is situated within the territorial Jurisdiction of this Hon'ble Court and Market value of the entire suit schedule property is more than 6,00,000/-. 11. The Plaintiff has filed this suit for the relief of Partition and Injunction. Therefore the Plaintiff valued the suit in terms of Sec- 35(2) & Sec-24(d) of the KCF &SV- Act. Accordingly the court fee is paid on the plaint as per the valuation slip enclosed herewith. 12. The plaintiff has not filed any other suit in respect of same relief and cause of action. No other proceedings are pending in respect of same subject matter before any other court or authority. WHEREFORE, the Plaintiff most humbly prays this Hon'ble Court that may be pleased to pass a judgment and decree in the following terms. a) To effect partition of SCHEDULE PROPERTY by metes and bounds and allot 1/3rd share to the Plaintiff and put him in exclusive possession. b) To grant Permanent Injunction restrain Defendants from alienating or encumbering the suit schedule Property in what so manner. c) And grant such other relief/s as may be deemed fit and proper in the circumstances of the case, in the interest of justice and equity. - 13 - NC: 2025:KHC:15323 RFA NO.1789 OF 2023 SCHEDULE-A All the piece and parcel of the property in Sy. No.47, measuring 1 acre situated at Cholanayakanahalli Village, Kasaba Hobli, Bangalore North Taluk and bounded on: East by : Property belongs to Muninagappa West by : Remaining portion of same Sy.No. North by : Channel South by : Property belongs to Pillappa SCHEDULE-B All the piece and parcel of the property in Sy.No.49/6, Khatha No.76 (c) measuring 5 guntas out of 9 guntas situated at Cholanayakanahalli Village, Bangalore North Taluk and bounded on: East by : Property belongs to Pillappa West by : Venkatashamappa's land North by : Sy. No.47 South by : Venkatashamappa property. SCHEDULE - C All the piece and parcel of the property in Sy.No.44/2, Khatha No.38 measuring 50 X 42 feet situated at Cholanayakanahalli Village, Muninayana Palya Bangalore North Taluk and bounded on: East by : Dhoopanahalli Muniyamma's House West by : Lakshmaiaha's property North by : Road South by : Munishamappa Reddy property. 5. As is clear from the plaint averments, it is the specific contention of the appellant/plaintiff that, he is none other than the brother of defendants 1 and 2 and that he was entitled to his legitimate share in the suit schedule properties. It is also - 14 - NC: 2025:KHC:15323 RFA NO.1789 OF 2023 significant to note that, merely because the respondents have taken-up the plea of lack of cause of action for the suit based on the earlier round of litigation culminating before the Apex Court in the light of the plaint avernments, the defence urged by respondents 1 and 2 in written statement and also in the application under Order VII Rule 11 of the Code of the Civil Procedure cannot be looked into for the purpose of rejection of the plaint and the Trial Court erred in relying upon the earlier round of litigation without appreciating that at paragraph 5 of the plaint, the appellant/plaintiff had stated that the suit schedule properties were not the subject matter of the earlier round of litigation. It follows there from that the question / issue as to whether the suit schedule properties were the subject matter of the earlier round of litigation is clearly a disputed question of fact, which requires adjudication only after a full fledged trial and not at the stage of an application under Order VII Rule 11 of the Code of Civil Procedure. 6. In so far as the reliance placed by the Trial Court on the earlier round of litigation culminating before the Apex Court, the said defence of the respondents 1 and 2 essentially is a plea of res judicata which involves mixed question of fact and law and is - 15 - NC: 2025:KHC:15323 RFA NO.1789 OF 2023 impermissible in law to be decided at the stage of considering application under Order VII Rule 11 of the Code of Civil Procedure as held by the Apex Court in the case of SATYANATH AND ANOTHER vs. SAROJAMANI - (2022)7 SCC 644 and SRIHARI HANUMANDAS TOTALA vs. HEMANT VITHAL KAMATI - (2021)9 SCC 99. The Apex Court in the case of SRIHARI HANUMANDAS TOTALA (supra) at paragraph 25 held as under: 25. On a perusal of the above authorities, the guiding principles for deciding an application under Order 7 Rule 11(d) can be summarised as follows: 25.1. To reject a plaint on the ground that the suit is barred by any law, only the averments in the plaint will have to be referred to. 25.2. The defence made by the defendant in the suit must not be considered while deciding the merits of the application. 25.3. To determine whether a suit is barred by res judicata, it is necessary that (i) the " Previous suit" is decided , (ii) the issues in the subsequent suit were directly and substantially in issue in the former suit; (iii) the former suit was between the same parties through whom they claim, litigating under the same title; and (iv) that these issues were adjudicated and finally decided by a court competent to try the subsequent suit. 25.4. Since an adjudication of the plea of res judicata requires consideration of the pleadings, issues and decision in the "previous suit", such a plea will be beyond the scope of Order 7 Rule 11(d), where only the statements in the plaint will have to be perused. 7. As stated above, the various averments made by the plaintiff in the plaint having been specifically disputed and denied - 16 - NC: 2025:KHC:15323 RFA NO.1789 OF 2023 by the respondents 1 and 2, who specifically contend that the appellant/plaintiff is not entitled for any share in the suit schedule properties as sought for by the plaintiff, the said issue as regards re-adjudication and the entitlement of the share would necessarily require adjudication only after a full fledged trial especially when there are disputed factual issues to be decided by the Trial Court and not while considering an application under Order VII Rule 11 of the Code of Civil Procedure. 8. Under these circumstances, I am of the considered opinion that the impugned order passed by the Trial Court deserves to be set-aside and application filed by the respondents deserves to be disposed of leaving open all rival contentions. 9. In the result, I pass the following: O R D E R a) Regular First Appeal is allowed; b) Impugned order dated 20.06.2023 passed on application filed by defendants 1 and 2 under Order VII Rule 11 of the Code of Civil Procedure in O.S.No.6484/2023 on the file of the XXIV Additional City Civil and Sessions Judge, Bengaluru is hereby set-aside; - 17 - NC: 2025:KHC:15323 RFA NO.1789 OF 2023 c) Application filed by the defendants 1 and 2 under Order VII Rule 11 of the Code of Civil Procedure is disposed of by directing all rival contentions to be decided after a full fledged Trial; d) The Trial Court is directed to dispose of the suit as expeditiously as possible and preferably on or before the end of December-2025. e) All rival contentions between the parties including the maintainability of suit are kept open and no opinion is expressed on the same. SD/- (S.R. KRISHNA KUMAR) JUDGE ARK List No.: 1 Sl No.: 6