- 1 - NC: 2025:KHC-D:3773-DB RFA No. 100658 of 2022 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 24TH DAY OF FEBRUARY, 2025 PRESENT THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA REGULAR FIRST APPEAL NO. 100658 OF 2022 (DEC/INJ) BETWEEN: 1. SHANTAVVA W/O MAHADEVAPPA KARAMADI AGE. 60 YEARS, OCC. HOMEMAKER R/O. PATIL GALLI, YELLAPUR ONI, TQ. HUBBALLI, DIST. DHARWAD-580032. 2. CHENNAVVA W/O BASAVARAJ CHAKALABBI AGE. 58 YEARS, OCC. HOMEMAKER R/O. EESHWARNAGAR, BHARIDEVARAKOPPA TQ. HUBBALLI, DIST. DHARWAD-580032. 3. GIRIJAVVA W/O CHANDRASHEKHAR CHAKALABBI AGE. 56 YEARS, OCC. HOMEMAKER R/O. EESHWAR NAGAR, BHARIDEVARAKOPPA TQ. HUBBALLI, DIST. DHARWAD-580032. 4. PARAVVA @ PARVATI W/O RAVI ELAVATTI AGE. 50 YEARS, OCC. HOMEMAKER R/O. RENUKA NAGAR, BHARIDEVARAKOPPA TQ. HUBBALLI, DIST. DHARWAD-580032. …APPELLANTS (BY SRI. GIRISH V BHAT, ADV) AND: 1. NINGAPPA S/O CHANNABASAPPA KORI AGE. 61 YEARS, OCC. RETIRED KSRTC EMPLOYEE R/O. BHANDIWAD, HUBBALLI TQ. HUBBALLI, DIST. DHARWAD-580032. MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Date: 2025.03.01 11:02:01 +0530 - 2 - NC: 2025:KHC-D:3773-DB RFA No. 100658 of 2022 2. BASAVAR S/O MAHADEVAPPA KORI AGE. 47 YEARS, OCC. PVT. SERVICE R/O. EESHWAR NAGAR, BHAIRIDEVARAKOPPA TQ. HUBBALLI, DIST. DHARWAD-580034. 3. BASAPPA S/O CHANNABASAPPA KORI AGE. 58 YEARS, OCC. AGRICULTURE, R/O. BHANDIWAD, HUBBALLI TQ. HUBBALLI, DIST. DHARWAD-580032. 4. NINGAMMA W/O HANUMANTAPPA KORI AGE. 45 YEARS, OCC. HOMEMAKER R/O. BHANDIWAD, HUBBALLI TQ. HUBBALLI, DIST. DHARWAD-580032. 5. ESHWAR S/O HANUMANTAPPA KORI AGE. 18 YEARS, OCC. STUDENT R/O. BHANDIWAD, HUBBALLI TQ. HUBBALLI, DIST. DHARWAD-580032. 6. AISHWARYA D/O HANUMANTAPPA KORI AGE. 15 YEARS, OCC. STUDENT, R/O. BHANDIWAD, HUBBALLI TQ. HUBBALLI, DIST. DHARWAD-580032. (SINCE MONOR R/BY HER MOTHER MINOR GUARDIAN AT RESPONDENT NO.4) …RESPONDENTS (BY SRI. S.S. NIRANJAN, ADV FOR R1, R3 TO R5 NOTICE TO R2 IS SERVED R6 IS MINOR R/BY R4) THIS RFA IS FILED UNDER SECTION 96 CPC., PRAYING TO, ADMIT THE APPEAL AND CALL FOR THE RECORDS AND ALLOW THE APPEAL BY SETTING ASIDE THE ORDER AND DECREE PASSED IN O.S NO. 198/2021 DATED 25.07.2022 PASSED BY THE LEARNED II ADDITIONAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, HUBBALLI. - 3 - NC: 2025:KHC-D:3773-DB RFA No. 100658 of 2022 THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) This Regular First Appeal is filed by the appellants challenging the order dated 25.07.2022 passed on I.A.No.4 in O.S.No.198/2021 by the II Additional Senior Civil Judge and JMFC, Hubballi. 2. For convenience, the parties are referred to, based on their ranking before the trial court. The appellants were the plaintiffs, and the respondents were the defendants. 3. Brief facts leading rise to the filing of this regular first appeal are as follows: 4. The plaintiffs filed a suit against the defendants for declaration, to declare that the sale deed dated 19.06.2004 is not binding on the plaintiffs, to the extent of - 4 - NC: 2025:KHC-D:3773-DB RFA No. 100658 of 2022 their share, and defendant No.1 be directed to cause partition of the shares of the plaintiffs, and separate possession of 1/6th share each to the plaintiffs and permanent injunction restraining defendant No.1 from alienating or creating encumbrance on the suit properties to the extent of the share of the plaintiffs. It is contended that the plaintiffs’ father and defendant No.2 executed a registered sale deed in favour of defendant No.1. It is contended that the plaintiffs’ father had no right to execute the registered sale deed in favour of defendant No.1. It is contended that the suit schedule properties are the ancestral joint family properties of the plaintiffs and defendant No.2. The plaintiffs and defendant No.2 are the members of the Hindu joint family, and no partition is effected. The sale deed executed by the plaintiffs’ father and defendant No.2 is not binding on the share of the plaintiffs. 5. Defendant No.1 filed an application in I.A.No.4 to reject the plaint on the ground that the suit is barred by - 5 - NC: 2025:KHC-D:3773-DB RFA No. 100658 of 2022 law. In support of the application, an affidavit is filed contending that the sale deed was executed by the plaintiffs’ father and defendant No.2 in favour of defendant No.1 on 19.06.2004, and the suit was filed in 2021. The suit filed by the plaintiffs is barred by limitation under Article 109 of the Limitation Act. 6. The plaintiffs objected the said application, by filing their objections, contending that the application filed by defendant No.1 is not maintainable. The said application is filed with an intention to protract the proceedings. Hence, prays to reject the application. 7. The trial court, after hearing the learned counsel for the parties, allowed the application vide order dated 25.07.2022 and rejected the plaint with costs. The plaintiff, aggrieved by the order passed on I.A.No.4, filed this Regular First Appeal. 8. Heard the learned counsel for the plaintiffs and the learned counsel for the defendants. - 6 - NC: 2025:KHC-D:3773-DB RFA No. 100658 of 2022 9. Learned counsel for the plaintiffs submits that while considering an application filed under Order 7 Rule 11 of CPC, the court is required to see the contents of the plaint, and the court cannot entertain an application filed under Order 7 Rule 11, for dismissing the suit on the ground of limitation. He submits that the limitation is a mixed question of law and fact, and not a pure question of law. He submits that the trial court without considering the well established principles of law has committed an error in allowing I.A.No.4. Hence, on these grounds prays to allow the appeal. 10. Per contra, the learned counsel for defendant No.1 submits that the sale deed was executed in 2004 and the suit was filed in 2021. Hence, the suit filed by the plaintiffs is barred by law, as per Article 109 of the Limitation Act. He submits that the plaintiffs should have filed a suit within 12 years from the date of the sale transaction. The trial court was justified in passing the - 7 - NC: 2025:KHC-D:3773-DB RFA No. 100658 of 2022 impugned order. Hence, on these grounds prays to dismiss the appeal. 11. Perused the records and considered the submissions of the learned counsel for the parties. 12. The points that would arise for our consideration are; 1) Whether the trial court was justified in entertaining an application in I.A.No.4 without considering the Limitation as a mixed question of law and fact, and the plaint cannot be rejected? 2) What order? Point No.1. 13. The plaintiffs filed a suit for declaration, partition and separate possession, etc. contending that the suit schedule properties are the ancestral joint family properties of the plaintiffs and the defendants, and no - 8 - NC: 2025:KHC-D:3773-DB RFA No. 100658 of 2022 partition is effected between the members of the family. The plaintiffs’ father and defendant No.2 had no right to execute the registered sale deed in favour of defendant No.1. It is contended that the plaintiffs are not aware of the sale deed executed by the plaintiffs’ father and defendant No.2 in favour of defendant No.1. Immediately after coming to know about the sale deed executed by their father and defendant No.2 in favour of defendant No.1, they filed a suit for declaration, partition and separate possession etc. Defendant No.1 filed an application under Order 7 Rule 11(d) of CPC to reject the plaint on the ground that the suit is barred by limitation. The issue regarding limitation will depend upon the evidence about the issuance of service of notice and the knowledge of the plaintiffs. The rejection of the plaint under Order 7 Rule 11 is a drastic power conferred on the court to terminate a civil action at the threshold. Therefore, the condition precedent to the exercise of the power is stringent, and especially when rejection of the plaint is sought on the ground of limitation. When the - 9 - NC: 2025:KHC-D:3773-DB RFA No. 100658 of 2022 plaintiffs claim that they gained knowledge of the essential facts giving rise to the cause of action only at a particular point of time, the same has to be accepted at the stage of considering the application under Order 7 Rule 11 of CPC. The trial court has failed to consider the well established principles of law laid down by the Hon’ble Apex Court in the case of CHHOTANBEN AND ANOTHER VS KIRTIBHAI JALKRUSHNABHAI THAKKAR AND ANOTHER reported in (2018) 6 SCC 422, wherein it is held that the plea regarding the date on which the plaintiffs gained knowledge of the essential facts, is a crucial for deciding the question whether the suit is barred by limitation or not. It becomes a triable issue and hence, the suit cannot be thrown out at the threshold. Further, the Hon’ble Apex Court in the case of SALIM D.AGBOATWALA AND OTHERS VS SHAMALAJI ODDHAVJI THAKKAR AND OTHERS in CIVIL APPEAL NO.5641/2021, disposed of on 17.09.2021, in para 16 held as under: “16. But a defendant in a suit cannot pick up a few sentences here and there from the plaint and - 10 - NC: 2025:KHC-D:3773-DB RFA No. 100658 of 2022 contend that the plaintiffs had constructive notice of the proceedings and that therefore limitation started running from the date of constructive notice. In fact, the plea of constructive notice is raised by the respondents, after asserting positively that the plaintiffs had real knowledge as well as actual notice of the proceedings. In any case, the plea of constructive notice appears to be a subsequent invention.” 14. The trial court, ignoring the law laid down by the Hon’ble Apex Court, has committed an error in passing the impugned order. As observed, the limitation is a mixed question of law and fact, it is a triable issue and it cannot be decided at the threshold. The trial court has decided the said issue at the threshold and rejected the plaint. The said order passed by the trial court is arbitrary and erroneous. Based on the above discussion, we answer point No.1 in the affirmative. Point No.2. 15. Based on the above discussion, we proceed to pass the following: - 11 - NC: 2025:KHC-D:3773-DB RFA No. 100658 of 2022 ORDER i) The Regular First Appeal is allowed. ii) The order dated 25.07.2022 passed on I.A.No.4 in O.S.No.198/2021 by the II Additional Senior Civil Judge and JMFC, Hubballi is set aside. iii) The trial court is directed to consider the said issue along with the other issues and pass appropriate judgment, in accordance with law. iv) All the contentions of the parties are kept open. v) The parties are directed to appear before the trial court on 21.04.2025 without waiting for any further notice from the trial court. vi) The office is directed to return the records to the trial court along with a copy of this judgment. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (UMESH M ADIGA) JUDGE MBS CT: BSB List No.: 1 Sl No.: 10