- 1 - HC-KAR NC: 2025:KHC:28410 CRP No. 59 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE M.NAGAPRASANNA CIVIL REVISION PETITION NO. 59 OF 2025 (IO-) BETWEEN: 1. SRI. C.P. SUNDRESH, S/O LATE PUTTANANJALAH, AGED ABOUT 49 YEARS, R/AT CHIKKANARAVANGALA, BELLAVI HOBLI, TUMAKURU TALUK, TUMKRUR DISTRICT-572 107. …PETITIONER (BY SRI. MANU SHANKAR S S., ADVOCATE) AND: 1. SRI. NIRANJANAMURTHY, S/O LATE LINGAPPA, AGED ABOUT 52 YEARS, 2. SRI. SAMPATHKUMAR, S/O LATE LINGAPPA, AGED ABOUT 46 YEARS, 3. SRI. NATARAJU, S/O LATE SIDDALINGAIAH, AGED ABOUT 46 YEARS, RESPONDENTS NO.1 TO 3 ARE ALL R/AT CHIKKANARAVANGALA, BELLAVI HOBLI, TUMAKURU TALUK, TUMKRUR DISTRICT-572 107. Digitally signed by NAGAVENI Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:28410 CRP No. 59 of 2025 4. SRI. PRABHUDEVA, S/O LATE PUTTANANJAIAH, AGED ABOUT 54 YEARS, R/AT CHIKKANARAVANGALA, BELLAVI HOBLI, TUMAKURU TALUK, TUMKRUR DISTRICT-572 107. …RESPONDENTS (BY SRI. SUNIL S RAO, ADVOCATE FOR SRI.T SESHAGIRI RAO., ADVOCATE FOR R1 TO R3) THIS CRP FILED UNDER SECTION 115 OF CPC, AGAINST THE ORDER DATED 09.12.2024 PASSED ON I.A.NO.8 IN OS.NO.285/2020 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE AND CJM, TUMAKURU, DISMISSING THE IA.NO.8 FILED UNDER ORDER 7 RULE 11(a) AND (d) OF CPC FOR REJECTION OF PLAINT AND ETC. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA ORAL ORDER Petitioner-defendant No.1 is before this Court calling in question an order dated 09.12.2024 rejecting an application in I.A.No.8 filed by the petitioner Order VII Rule 11(a) and (d) read with Section 151 of the Code of Civil Procedure. - 3 - HC-KAR NC: 2025:KHC:28410 CRP No. 59 of 2025 2. Heard Sri.Manu Shankar S.S., learned counsel appearing for the petitioner Sri.Sunil S Rao, learned counsel appearing for respondent Nos.1 to 3. 3. Facts in brief germane are as follows: (a) The petitioner and the respondent-plaintiffs are members of the same family. It is the averment in the petition that on 20.03.1998, an oral partition took place between children of Sri.Narasimhaiah and Sri.Puttananjaiah by way of panchayath palupatti concerning all ancestral properties. On 27.08.2020, after the death of the father of the plaintiffs and defendants, the plaintiffs institutes a suit in O.S.No.285/2020 seeking partition and separate possession on the score that revenue documents were not changed in the name of the plaintiffs in terms of the aforesaid partition. (b) After service of summons, the defendant No.1 files an application under Order VII Rule 11(a) and (d) read with Section 151 of CPC seeking rejection of the plaint on the score that there is no cause of action and the suit is barred by limitation. Objections are filed by the plaintiffs and the - 4 - HC-KAR NC: 2025:KHC:28410 CRP No. 59 of 2025 concerned Court rejects the application on the score that the limitation is mixed question of law and fact. It is therefore the petitioner-defendant No.1 is before this Court in the subject partition. 4. Learned counsel appearing for the petitioner would vehemently contend that partition of the property has already happened in the year 1998 through panchayath palupatti. It therefore becomes a second suit for partition notwithstanding the oral partition and would submit that the second partition is barred in law as there can be no cause of action. 5. Per contra, learned counsel appearing for the respondent-plaintiffs would contend that the plaint averments clearly indicate the cause of action and the reason for instituting the suit in the year 2020. It is his submission that to consider an application under Order VII Rule 11(a) or (d) of CPC seeking rejection of the plaint, what should be looked into is only the plaint averment and not the objections or the application averments seeking rejection of the plaint. He would - 5 - HC-KAR NC: 2025:KHC:28410 CRP No. 59 of 2025 submit the plaint on the face of it discloses the cause of action. He would seek dismissal of the petition. 6. I have given my anxious consideration to the submissions made by learned counsel for the parties and have perused the material on record. 7. The afore-narrated facts are not in dispute. 8. The link in the chain of events and the dates narrated are also not in dispute. The plaintiffs institutes suit in O.S.No.285/2020 seeking partition and separate possession. The averments with regard to cause of action in the plaint is as follows: "8) The Plaintiffs submits that, the Plaintiff No.1 and 2 and his brother deceased Yatheeskumar by his minor childrens are in possession and enjoyment of the suit schedule property Sy.No.42/3A measuring 0-33 guntas, bounded on East-Land of Mahadevaiah West: Land of Somashekaraiah and North: Government Voni, South: Land of Siddalingaiah. 9) The Plaintiffs submits that, the plaintiffs have planted coconut trees in their share and are living peacefully, but the defendant No.1 by and in vengeance is making attempts to alienate the property by disturbing their possession. The defendant No.1 has no any exclusive - 6 - HC-KAR NC: 2025:KHC:28410 CRP No. 59 of 2025 right, title, interest, muchless possession over the suit schedule property, other than his share 0-34 guntas. The defendant No.1 without making arrangements to get the joint katha and pahani into the name of the plaintiffs and defendants No.1 and 2 is attempting the suffering of the plaintiffs for no fault of the plaintiffs, Hence this suit. 10) The cause of action for this suit arose since 2018 since the filing of R.R.T Appeal before the Assistant Commissioner, Tumakuru, challenging the Mutation and subsequently when the defendant No.1 made his attempts to alienate the suit schedule property including the share of the plaintiffs taking advantages of the entries of suit property in his name and further is making attempts to exchange the suit schedule property with other property belongs to Rajanna.P of the same Village and the defendant No.1 has denied the rights over the suit property of the plaintiff as per the Panchayathi Palu patti dated 20-03-1998 at Chikkanaravangala Village, Bellav Hobli, Tumakuru Taluk, within the jurisdiction of this Hon'ble Court." 9. The averment in the plaint is that the cause of action arose in the year 2018 as the RRT Appeal before the Assistant Commissioner challenging the mutation and the attempts of defendant No.1 to alienate the suit schedule property includes the share of the plaintiffs. Taking advantage of the entries of the suit property in his name and further attempt to exchange the suit schedule property that other property belonging to one Sri.Rajanna of the same village, the rights of the plaintiffs were sought to be taken away. This is the averment in the plaint. After issuance of notice, comes the - 7 - HC-KAR NC: 2025:KHC:28410 CRP No. 59 of 2025 application under Order VII Rule 11(a) and (d) of CPC. The sole reason for filing the application is that it is barred by time on the score that the plaintiffs have filed a suit against the defendants seeking partition and separate possession without divulging the actual facts. Actual facts according to the defendants is about the partition that took place in the year 1998. These factors with regard to limitation in a suit for partition, particularly, is a mixed question of law and fact. The averment in the plaint as narrated herein above would become a triable issue with regard to cause of action. There can be no rejection of a plaint in a suit for partition on the ground that there has been delay in instituting the suit for partition. The plaint averment clearly indicates the cause of action. Therefore, it is the issue that has to be tried. It becomes apposite to refer to the judgment of the Apex Court in P.KUMARAKURUBARAN vs. P.NARAYANAN, reported in 2025 SCC OnLine SC 975. The Apex Court holds that the question of law, particularly in a suit for partition, is always a mixed question of law and fact. The exercise of jurisdiction under Order VII Rule 11(a) or (d) of CPC would not be appropriate for the concerned Court. - 8 - HC-KAR NC: 2025:KHC:28410 CRP No. 59 of 2025 In the light of the judgment of the Apex Court and the facts as narrated herein above, the petition deserves to be rejected and is accordingly rejected. Sd/- (M.NAGAPRASANNA) JUDGE CBC List No.: 1 Sl No.: 33