- 1 - NC: 2025:KHC:7938-DB RFA No. 1690 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF FEBRUARY, 2025 PRESENT THE HON'BLE MR JUSTICE K.SOMASHEKAR AND THE HON'BLE MR JUSTICE VENKATESH NAIK T REGULAR FIRST APPEAL NO.1690 OF 2018 (PAR) BETWEEN: 1. SMT. YASHODAMMA D/O. LATE SRI DODDCHANNAPPA AGED ABOUT 50 YEARS R/AT GALIBIKOTE VILLAGE TIPPUR POST, DODDABALLAPURA TALUK BENGALURU RURAL DISTRICT - 561 203. 2. SMT. CHANDRAKALA D/O. PAPAMMA W/O. RAVIKUMAR AGED ABOUT 37 YEARS R/AT JALAGERE VILLAGE SASALU HOBLI, DODDABALLAPURA TALUK BENGALURU RURAL DISTRICT - 561 204. …APPELLANTS (BY SRI SUMANTH, ADVOCATE, FOR; SRI MADHUKUMAR M. DESHPANDE, ADVOCATE) AND: 1. SMT. RATHNAMMA W/O. LATE VENUGOPALAMURTHY AGED ABOUT 55 YEARS R/AT ANTHARAHALLI VILLAGE THUBAGERE HOBLI DODDABALLAPURA TALUK BENGALURU RURAL DISTRICT - 561 203. Digitally signed by MOUNESHWARAPPA NAGARATHNA Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:7938-DB RFA No. 1690 of 2018 2. SMT. CHANDRAMMA D/O. LATE VENUGOPALAMURTHY AGED ABOUT 37 YEARS R/AT ANTHARAHALLI VILLAGE THUBAGERE HOBLI DODDABALLAPURA TALUK BENGALURU RURAL DISTRICT - 561 203. 3. SMT. SHASHIKALA D/O. LATE VENUGOPALAMURTHY AGED ABOUT 30 YEARS R/AT ANTHARAHALLI VILLAGE THUBAGERE HOBLI DODDABALLAPURA TALUK BENGALURU RURAL DISTRICT - 561 203 4. SHILPA D/O. LATE VENUGOPALAMURTHY AGED ABOUT 28 YEARS R/AT ANTHARAHALLI VILLAGE THUBAGERE HOBLI DODDABALLAPURA TALUK BENGALURU RURAL DISTRICT - 561 203 5. SRI HARISH S/O. LATE VENUGOPALAMURTHY AGED ABOUT 24 YEARS R/AT ANTHARAHALLI VILLAGE THUBAGERE HOBLI DODDABALLAPURA TALUK BENGALURU RURAL DISTRICT - 561 203 6. MISS VINUTHA D/O. LATE VENUGOPALAMURTHY AGED ABOUT 20 YEARS R/AT ANTHARAHALLI VILLAGE THUBAGERE HOBLI DODDABALLAPURA TALUK BENGALURU RURAL DISTRICT - 561 203 7. SMT. KEMPAMMA W/O. LATE NARAYANASWAMY AGED ABOUT 85 YEARS R/AT MITTAGANAHALLI BIDARAHALLI HOBLI - 3 - NC: 2025:KHC:7938-DB RFA No. 1690 of 2018 BENGALURU EAST TALUK BENGALURU - 560 067. …RESPONDENTS (VIDE COURT ORDER DATED 02-01-2020 R-1 TO R-6 ARE SERVED AND UNREPRESENTED) * * * THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 READ WITH ORDER XLI RULES 1 AND 2 OF THE CPC.,1908 AGAINST THE ORDER DATED 04.09.2018 PASSED ON I.A. NO.V IN O.S.NO.93/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE, AND JMFC., DODDABALLAPUR ALLOWING THE I.A.NO.V FILED UNDER ORDER 7 RULE 11[A] [B] & [C] OF R/W.SEC.151 OF CPC., FOR REJECTION OF PLAINT. THIS REGULAR FIRST APPEAL IS COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE K.SOMASHEKAR and HON'BLE MR JUSTICE VENKATESH NAIK T ORAL JUDGMENT (PER: HON'BLE MR JUSTICE VENKATESH NAIK T.) This appeal is filed by the appellants/plaintiffs challenging the judgment and decree dated 04.09.2018 passed by learned Senior Civil Judge and JMFC, Doddaballapur in O.S.No.93/2013. For the purpose of convenience, the parties are referred to as per their ranking before the trial Court. The appellants are 'plaintiffs' and respondents are the 'defendants'. - 4 - NC: 2025:KHC:7938-DB RFA No. 1690 of 2018 2. The brief facts of the case are that the plaintiffs instituted a suit in O.S.No.93/2013 before the trial court against defendant Nos.1 to 6 for partition and separate possession and to determine 2/3rd share in favour of the plaintiffs in respect of the suit schedule properties. Subsequently, defendant No.7 impleaded herself as respondent No.7 in the suit. Defendant No.7 had filed an interlocutory application I.A.No. V under Order 7 Rule 11 (a, b) r/w Section 151 CPC, to reject the plaint contending that there was no cause of action for the suit and the suit was barred by law. It was specific case of defendant No.7 that she had purchased suit schedule Item No.1 in the year 1971 and therefore there is no cause of action for the suit filed by the plaintiffs. Further, there is no allegation made in the affidavit of defendant No.7 accompanying the application for rejection of plaint with respect to Item Nos.2 and 3 of the suit schedule properties. Being aggrieved by the order dated 04.09.2018 and decree dated 04.09.2018 passed by the trial court, the appellants have preferred this appeal. - 5 - NC: 2025:KHC:7938-DB RFA No. 1690 of 2018 3. Heard Sri Sumanth, learned counsel representing Sri Madhukar M. Deshpande, learned counsel for the appellants. 4. Before the trial Court, defendant No.7 has taken the contention that plaintiffs have filed the suit in O.S.No.93/2013 for partition and separate possession of their share in the suit properties by suppressing the true facts and the suit was barred by law of limitation. The plaintiffs' grandmother Smt. Akkayamma, W/o. Doddachennappa along with her brother-in-laws Sri. Kempegowda, Sri. Chikkachennappa and Sri. Chennarayappa had sold suit schedule property in favour of husband of defendant No.7 by name Sri. Patel Narayanaswamy, S/o. Patel Munegowda under registered sale deed dated 30.06.1971 and the properties are situated at Thapasihalli village, Doddaballapur Taluk. After demise of the husband of defendant No.7, defendant No.7 continued with the possession and enjoyment of the suit schedule properties. The plaintiffs were not in possession of the suit schedule properties at any point of time. Therefore, the suit of the plaintiffs is barred by Section 6 of Hindu Succession(Amendment) Act, 2005 and the suit is also barred by law of limitation. - 6 - NC: 2025:KHC:7938-DB RFA No. 1690 of 2018 5. On the other hand, the plaintiffs have taken up the contention that no such sale deed was executed in favour of husband of defendant No.7 and thus her possession and title in respect of the suit schedule property has been denied by the plaintiffs. Considering the I.A. and objections filed by defendant No.7 and plaintiffs, the trial court allowed I.A.No.V filed by defendant No.7 and consequently, rejected the suit filed by the plaintiffs on the ground law of limitation and also hit by Section 6 of the Hindu Succession (Amendment) Act, 2005 and on the ground of no cause of action for the suit. Being aggrieved by the said order, the plaintiffs have preferred this appeal contending that the order passed by the trial court is contrary to material on record and opposed to the well established principles of law. It is contended that the suit was instituted for partition of Item Nos.1, 2 and 3 of the suit schedule properties. The case of defendant No.7 was that she purchased Item No.1 of the suit schedule property in the year 1971. Defendant Nos.1 to 6 have not filed written statement resisting the claim of the plaintiffs in respect of item Nos.2 and 3. Defendant No.7 is concerned with only Item No.1 of the suit schedule property, but the trial court without understanding the scope of the suit, - 7 - NC: 2025:KHC:7938-DB RFA No. 1690 of 2018 the property involved in the suit and misdirected by the statement made in the affidavit accompanying the application for rejection of the plaint, passed an erroneous order and rejected the plaint in its entirety. The trial court illegally and erroneously applied proviso to Section 6 of the Hindu Succession(Amendment) Act, 2005 in respect of Item Nos.2 and 3 of suit schedule properties and rejected the plaint in its entirety. The trial court failed to appreciate the fact that defendant No.7 in her interlocutory application has only pleaded about purchase of Item No.1 of the suit schedule properties in the year 1971. Infact defendant No.7 has not pleaded anything regarding item Nos.2 and 3 of suit schedule properties. The trial court ought to have considered the fact that item Nos.2 and 3 of the suit schedule properties have not been alienated and it is in joint possession and enjoyment of the plaintiffs and defendant Nos.1 to 6. But, without appreciating this material fact, the trial court erroneously came to the conclusion that suit is barred by law of limitation and hit by Section 6 of Hindu Succession (Amendment) Act, 2005. Further, the trial court has not appreciated the fact that Item Nos.2 and 3 of the suit schedule properties are not hit by - 8 - NC: 2025:KHC:7938-DB RFA No. 1690 of 2018 Section 6 of Hindu Succession(Amendment) Act, 2005 and the suit is not barred by law of limitation. When there is no allegation that Item Nos.2 and 3 of suit schedule properties are alienated prior to 20.12.2004, rejection of plaint by the trial court is contrary to law. Further, the trial court failed to appreciate the fact that Section 8 of Hindu Succession Act, 1956 is always applicable and the plaintiffs are entitled for shares in the suit schedule properties as the plaintiffs are the legal heirs of Doddachennappa, but without appreciating this material fact, the trial court mechanically and erroneously passed the impugned order, hence, learned counsel prayed to set aside the order passed by the trial Court and prayed to allow the appeal. 6. In the light of the above submissions, the following point which would arise for our consideration is:- "Whether the trial Court is right in rejecting I.A.No.V filed by defendant No.7 under Order VII Rule 11(a) and (d) of CPC for rejection of plaint?" - 9 - NC: 2025:KHC:7938-DB RFA No. 1690 of 2018 7. From the perusal of the material available on record, it is not in dispute that both the parties to the suit i.e., plaintiff Nos.1 and 2 and defendant Nos.1 to 6 are family members. The original propositus Doddachennappa and his wife Akkayamma had three children by name Venugopala Murthy, Papamma and Yashodamma. Venugopala Murthy died long back and his legal heirs are defendant Nos.1 to 6 i.e., wife and children. Papamma also died long back, hence, she is survived by her daughter Chandrakala i.e., plaintiff No.2 herein. The third daughter of Doddachennappa and Akkayamma is Yashodamma, who is none other than plaintiff No.1. It is not in dispute that the father of plaintiff No.1 Sri. Doddachennappa had three brothers viz., Chikkachennappa, Chennarayappa and Kempegowda and the grandmother of plaintiff No.1 Smt. Akkayamma along with her brother-in-laws viz., Chikkachennappa, Chennarayappa and Kempegowda alienated suit schedule properties in favour of husband of defendant No.7- Late Patel Narayanaswamy under the registered sale deed dated 30.06.1971. Infact, it is the case of the plaintiffs that such sale deed is only nominal sale deed created for the purpose of security of - 10 - NC: 2025:KHC:7938-DB RFA No. 1690 of 2018 payment of loan amount of the family and it was not acted upon and thus the possession of the schedule properties were not handed over to the purchaser Late Narayanaswamy and as such, no consideration amount was passed between the parties to the alleged sale deed and therefore, such sale deed is not binding on the plaintiffs. Infact, defendant No.7 had produced the certified copy of the sale deed dated 30.06.1971 before the trial court, wherein, it is recited that the grandmother of plaintiff Smt. Akkayamma alienated the schedule properties in favour of husband of defendant No.7 on 30.06.1971 for family necessity and towards discharge of family debt and thus handed over possession of the schedule properties to defendant No.7. The sale deed dated 30.06.1971 is a registered instrument. The plaintiffs could have challenged the same within three years from the date of execution of the sale deed or within three years from the date of plaintiff No.1 attaining her majority. But, neither plaintiff No.1 nor plaintiff No.2 challenged the same within the period of limitation nor filed any suit for partition. Therefore, the trial court has rightly come to the conclusion that the suit is barred by law of limitation and dismissed the suit of the plaintiffs. - 11 - NC: 2025:KHC:7938-DB RFA No. 1690 of 2018 8. The trial court also recorded a finding that as per Section 6 of the Hindu Succession (Amendment) Act, 2005, if any Hindu undivided Joint family property is alienated by the ancestors of Hindu joint family prior to 20.12.2004 for family necessity, the same is binding on other family members and such sale deed, cannot be challenged and therefore, the sale deed, which was executed on 30.06.1971, the same was challenged in the year 2013, thus, it is barred by law and as such, there was no cause of action for the suit. 9. We have perused the material available on record. The fact that the grandmother of plaintiff Smt. Akkayamma and her brother-in-laws by name Chikkachennappa, Chennarayappa and Kempegowda sold the suit schedule properties in favour of husband of defendant No.7 Late Patel Narayanaswamy under registered sale deed dated 30.06.1971. Said sale deed was not challenged by the father of the plaintiffs by name Doddachennappa nor challenged by the eldest son of said Doddachennappa by name Venugopala Murthy. Admittedly, the legal representatives of deceased Venugopala Murthy has also not challenged said sale deed. It is only the daughter of - 12 - NC: 2025:KHC:7938-DB RFA No. 1690 of 2018 Doddachennappa and grand daughter of Doddachennappa instituted the present suit for partition. It also establishes that as on the date of the suit, suit schedule properties were not available for partition. Thus, there is no cause of action for the suit and it does not disclose any right to sue and barred by law of limitation. Thus the trial court passed the impugned order by exercising power under Order 7 Rule 11(a) and (d) of CPC. 10. The Hon'ble Apex Court in the case of DAHIBEN -vs- ARVINDBHAI KALYANJI BHANUSALI (GAJRA) DEAD THROUGH LEGAL REPRESENTATIES AND OTHERS reported in (2020) 7 SCC 366, has held at paragraph Nos.23.2 and 23.3 as under: ''23.2. The remedy under Order 7 Rule 11 is an independent and special remedy, wherein the court is empowered to summarily dismiss a suit at the threshold, without proceeding to record evidence, and conducting a trial, on the basis of the evidence adduced, if it is satisfied that the action should be terminated on any of the grounds contained in this provision. 23.3. The underlying object of Order 7 Rule 11(a) is that if in a suit, no cause of action is disclosed, or the suit is barred by limitation under Rule 11(d), the court would not permit the plaintiff to unnecessarily protract the proceedings in the suit. In such a case, it would be necessary to put an end to the sham litigation, so that further judicial time is not wasted.'' - 13 - NC: 2025:KHC:7938-DB RFA No. 1690 of 2018 11. Whereas in this case, the ownership of the plaintiffs' grandfather was lost in the year 1971. Therefore, there was no existing right to sue. Thus the trial court has rightly rejected the plaint under Order VII Rule 11 of CPC. Hence, no interference is called for. Accordingly, we proceed to pass the following:- ORDER 1. The appeal is dismissed. 2. The judgment and decree dated 04.09.2018 passed by learned Senior Civil Judge and JMFC, Doddaballapura in O.S.No.93/2013 stands confirmed. Sd/- (K.SOMASHEKAR) JUDGE Sd/- (VENKATESH NAIK T) JUDGE MN/- List No.: 1 Sl No.: 1