- 1 - HC-KAR NC: 2025:KHC-D:8402 CRP No. 100039 of 2025 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 4TH DAY OF JULY 2025 BEFORE THE HON'BLE MR. JUSTICE M.G.S. KAMAL CIVIL REVISION PETITION NO.100039 OF 2025 BETWEEN: SRI M. R. PARIHAR KUMAR S/O. LATE M. RAMAKRISHNAPPA, AGE: 77 YEARS, R/O: 28TH WARD, MRUTHYUNJAY NAGARA, 6TH CROSS, HOSPET CITY AND TALUK, VIJAYANAGAR DISTRICT – 583 201. …PETITIONER (BY SRI. OMKARA K. B., SRI. RAGHU KUMAR H. AND RAHUL D. BHOMBORE, ADVOCATES) AND: 1. SRI. M. R. ACHYUT KUMAR S/O. LATE M. RAMAKRISHNAPPA, AGE: 62 YEARS, R/O: KISHKIND ASHRAMA, AMARAVATHI, HOSPET, VIJAYANAGAR DISTRICT – 583 201. 2. SRI M. R. NAGAVARMA S/O. LATE M RAMAKRISHNAPPA, AGE: 72 YEARS, R/O: 28TH WARD, MRUTHYUNJAY NAGARA 6TH CROSS, HOSPET CITY AND TALUK, VIJAYANAGAR DISTRICT – 583 201. 3. SRI. K. GOPAL S/O. K. S. GADEPPA, Digitally signed by SAROJA HANGARAKI Location: High Court of Karnataka, Dharwad Bench, Dharwad - 2 - HC-KAR NC: 2025:KHC-D:8402 CRP No. 100039 of 2025 AGE: 60 YEARS, R/O: MUNIRABAD DAM, KOPPAL TQ & DIST – 583 231. 4. SRI. INDRA KUMAR S/O. VIJAY KUMAR, AGE: 47 YEARS, R/O: MUNIRABAD DAM, KOPPAL TQ & DIST – 583 231. …RESPONDENTS (BY SRI. SATISH M.S., ADVOCATE FOR C/R1) THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF CPC, PRAYING TO ALLOW THIS PETITION; CALL FOR RECORDS; SET ASIDE THE INTERIM ORDER PASSED BY THE ADDITIONAL SENIOR CIVIL JUDGE AN JUDICIAL MAGISTRATE FIRST CLASS, AT HOSAPETE IN IA NO. XI FILED UNDER ORDER 7 RULE 11 OF CPC IN O.S.NO 125/2022 ON 16.01.2025 IN DISMISSING THE SAME AS PER ANNEXURE-A IN THE INTEREST OF JUSTICE AND EQUITY. CONSEQUENTLY ALLOW IA. NO.XI FILED UNDER ORDER VII RULE 11 READ WITH 151 OF CPC IN O.S.NO. 125/022 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS AT HOSAPETE AND ETC., THIS CIVIL REVISION PETITION, COMING ON FOR ADMISSION THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC-D:8402 CRP No. 100039 of 2025 ORAL ORDER (PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL) 1. Defendant No.1 is before this Court being aggrieved by the order dated 16.01.2025 passed in O.S.No.125/2022 on the file of Additional Senior Civil Judge and JMFC, Hosapete rejecting the application filed by the petitioner/defendant No.1 under Order 7 Rule 11(a) and (d) read with Section 151 of CPC. 2. The above suit is filed by the plaintiff/respondent No.1 herein against the petitioner and others seeking relief of partition and separate possession of his 1/3rd share and for a declaration that the deed of sale dated 18.02.2005 executed in respect of Item No.5 of the suit schedule properties by defendant No.2 in favour of defendants No.3 and 4 as illegal and void and also for awarding mesne profit in respect of properties described in Item No.4 and 5 of suit schedule properties. 3. Written statement is filed by defendants No.1 and 2. Along with same an application is filed by - 4 - HC-KAR NC: 2025:KHC-D:8402 CRP No. 100039 of 2025 defendants No.1 and 2 under Order 7 Rule 11(a) and (d) seeking rejection of the plaint on the premise that the plaint do not disclose the cause of action and as also barred by limitation. Objection to the said application has been filed. The Trial Court on appreciation of the contentions urged by the parties, rejected the application. Being aggrieved, the petitioner/defendant No.1 is before this Court. 4. Learned counsel appearing for the petitioner taking this Court through the records more particularly the Will which is subject matter of the suit, submits that the whole case is premised on the Will that is executed by the father of the parties in terms of which Item No.1 and 4 of the suit schedule properties were bequeathed to be utilised for religious and charitable purpose. Administration, management and affairs of which exclusively left in the hands of defendant No.1 and the Will in question also declare that the said properties have to be managed and administered as per the instructions of - 5 - HC-KAR NC: 2025:KHC-D:8402 CRP No. 100039 of 2025 petitioner/defendant No.1 and in the event of any disagreement, the other parties to the Will may stay separately. He submits the said Will is not in dispute. In that view of the matter, the plaintiff cannot file a suit with respect to the alleged mismanagement against the defendant. He further submits that though the Will consist of only two properties namely Item No.1 and 2, petitioner also sought for relief in respect of other properties which are acquired independently and self-acquired properties of the defendant. 5. His other contention is even according to the plaintiff the cause of action had arose in the year 1988 when the Will was executed and that he has filed the suit only in the year 2022. Therefore, the same is barred in view of the provisions of Article 109 of the Limitation Act. He submits the averments of the plaint do not disclose any cause of action, as such the plaint is required to be rejected. - 6 - HC-KAR NC: 2025:KHC-D:8402 CRP No. 100039 of 2025 6. Per contra, learned counsel for the respondent/plaintiff submits that the plaintiff has essentially filed suit for partition and separate possession. The allegations made in the plaint are with regard to the mismanagement of the affairs of the properties which was subject matter of the Will and in addition acquisition of the properties and sale of the same is detriment to the interest of the family. He submits these are the averments made in the plaint which are required to be thrashed out in the trial. Therefore, the order passed by the Trial Court is justified. Hence, seeks for rejection of the petition. 7. Heard. Perused the records. 8. Perusal of the application would indicate that one M.Ramakrishnappa and Yallu Bai, parents of the plaintiff passed away leaving behind 7 children including plaintiff and others. It is contended that the father of the plaintiff M.Ramakrishnappa was running Yoga Classes under the name and style of Kishkinda Yogashrama at Amaravathi, Hosapete. He had no ancestral properties and - 7 - HC-KAR NC: 2025:KHC-D:8402 CRP No. 100039 of 2025 had earned the properties out of his self-earning as yoga teacher. Plaintiff and defendants No.1 and 2 being the sons of M.Ramakrishnappa were assisting their father in running the yoga classes. The father of the plaintiff and defendants No.1 and 2 passed away on 27.02.1989. During his lifetime, he had executed a Will dated 25.10.1988 bequeathing of his properties in favour of his three sons namely plaintiff, defendants No.1 and 2. In terms of the said Will, the elder brother of the plaintiff namely defendant No.1 was entrusted the management of the Yogashrama and plaintiff and defendant No.2 being the younger brothers were required to assist and adhere to the instructions of their elder brother defendant No.1. The Will is in the custody of the plaintiff. That the defendants No.1 and 2 went against the terms of the said Will and even they went out of the properties described at Item No.1 namely Kishkinda Yogashrama by shifting their residence to a new Ashrama constructed out of the joint funds of the family and started residing in the said - 8 - HC-KAR NC: 2025:KHC-D:8402 CRP No. 100039 of 2025 Ashrama. The said property is described as Item No.2 of the suit schedule properties. 9. It is contended that defendant No.1 obtained mutation of his name in the revenue records in respect of Item No.1 of the suit schedule properties without the knowledge of the plaintiff which is joint family property of the plaintiff and defendants No.1 and 2 in which plaintiff is having 1/3rd share. Item No.2 of the suit schedule properties consist of two plots which is stated to have been purchased out of the joint family funds derived out of selling plots in Item No.4. Item No.3 suit schedule properties consist of two residential open plots and house bearing plot No.34 and 35 and also purchased in the name of defendant No.2 during the lifetime of the father in which the plaintiff is entitled for 1/3rd share. Item No.4 of the suit schedule properties is land which was also acquired by the father during his lifetime and it was converted into non-agricultural purpose wherein residential plots were formed, out of which seven plots have been sold by the - 9 - HC-KAR NC: 2025:KHC-D:8402 CRP No. 100039 of 2025 plaintiff and defendants No.1 and 2 for family necessities and there are remaining vacant plots in which the plaintiff is entitled for 1/3rd share. Item No.5 of the suit schedule properties is agricultural land and is also joint family property purchased in the name of defendant No.2 during the lifetime of the father. In terms of which the plaintiff is also entitled for 1/3rd share. Item No.6 of the suit schedule properties is non-agricultural land purchased in the name of defendant No.1 in the year 1995 after the death of their father which is still standing in the name of defendant No.1 as manager of Kishkinda Adhyatimika Trust, Amaravathi. In the said property 93 residential plots have been formed and some of them are sold by defendants No.1 and 2 ignoring the rights of the plaintiff and misutilising the funds. Plaintiff is entitled for 1/3rd share even in the said property. 10. It is further alleged that in addition to acquiring the suit schedule properties, certain extent of land in Sy.No.531B/2 and 531A/2 of Amaravathi village were - 10 - HC-KAR NC: 2025:KHC-D:8402 CRP No. 100039 of 2025 given to Kishkinda Ashrama formed by the father and the income derived from the said lands were required to be utilised for Ashrama activities and Trust in this regard was registered on 15.11.1996. Defendants No.1 and 2 have earned huge income from the said land and have misused and misutilised without maintaining proper accounts and have deliberately avoided the plaintiff in the management and affairs of the said Trust. 11. It is also averred that the cause of action arose on 25.10.1988 when the Will was executed by the father and subsequent mutation entries effected in the name of defendants No.1 and 2 and when the properties were sold by defendants No.1 and 2 in favour of defendants No.3 and 4 and mutations were effected accordingly and when the plaintiff caused issuance of notice to defendants No.1 and 4 on 20.01.2021 and also subsequent dates when attempts were made by the plaintiff to seek his 1/3rd share averring and alleging as above, the plaintiff has filed the above suit. - 11 - HC-KAR NC: 2025:KHC-D:8402 CRP No. 100039 of 2025 12. Thus, on perusal of the contents of the plaint as narrated above, there is no doubt that the plaintiff apart from making allegation of mismanagement of the properties which were purportedly reserved by their father for the management of the Trust, has also alleged that the defendants No.1 and 2 acquired other properties narrated in the plaint out of the family income derived from the family business, in which plaintiff is having 1/3rd share. In view of the averments made in the plaint, the contention being urged by defendant No.1 denying the same cannot be the ground for rejection of the plaint. It cannot be therefore said that there is no cause of action. It is not about the veracity of the cause of action but the facts narrated above would give raise the requirement of conducting trial. Settled principle of law is that the purpose of consideration of the application under Order 7 Rule 11, only the averments made in the plaint needs to be looked into and not the defence set up in the written statement. In that light of the matter, the grounds urged in the application seeking rejection of the plaint are in the - 12 - HC-KAR NC: 2025:KHC-D:8402 CRP No. 100039 of 2025 nature of defence which cannot be countenance. Hence, no grounds are made out. Accordingly, the petition is dismissed. Sd/- (M.G.S. KAMAL) JUDGE SH/CT-ASC List No.: 1 Sl No.: 7