- 1 - HC-KAR NC: 2025:KHC-D:7658 CRP No. 100084 of 2018 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 13TH DAY OF JUNE 2025 BEFORE THE HON'BLE MR. JUSTICE M.G.S. KAMAL CIVIL REVISION PETITION NO.100084 OF 2018 BETWEEN: SHANTAKUMAR S/O. HANUMANTAPPA MALAGI, AGED ABOUT: 60 YEARS, OCC: ADVOCATE, R/O: PRESTIGE OASIS VILLA, NO.78, ADDEVISHWANATHAPURA, RAJANKKUNTE, BENGLAURU – 560 064. …PETITIONER (BY MIS. RANJITA RADDI, ADVOCATE FOR SRI. GANGADHAR J. M., ADVOCATE) AND: 1. SAHADEVAPPA MALAGI S/O. HANUMANTHAPPA MALAGI, AGED ABOUT: 79 YEARS, OCC: AGRICULTURIST, R/O: GUTTAL, NOWO R/AT: NO.525, 3RD - A MAIN, OMBR LAYOUT, BENGLAURU – 560 043. 2. GANGADHAR @ MANOHAR S/O. HANUMANTHAPPA AGED ABOUT: 50 YEARS, OCC: AGRICULTURIST, R/O: C/O. MICHAEL BIRNUR, OPP. HAVNUR ROAD, WALMIKI NAGAR, GUTTAL, HAVERI DISTRICT – 581 108. 3. SHIVANAND S/O. NANDIKOL @ NANDIKOLMATH, AGED ABOUT: 57 YEARS, Digitally signed by SAROJA HANGARAKI Location: High Court of Karnataka, Dharwad Bench, Dharwad - 2 - HC-KAR NC: 2025:KHC-D:7658 CRP No. 100084 of 2018 OCC: AGRICULTURIST, R/O: NEAR MOSQUE ON AGASIBAGALU ROAD, GUTTAL, HAVERI DISTRICT – 581 108. 4. SMT. VANITA S. MALAGI W/O. SHANTAKUMAR MALAGI, AGED ABOUT: 52 YEARS, OCC: HOUSEWIFE, R/O: PRESTIGE OASIS, VILLA NO.78, ADDEVISHWANATHAPURA, RAJANAKUNTE, BENGLAURU – 560 064. 5. SMT. CHETANA T. JANAMANE W/O. TEJARAJ JANANMANE, AGED ABOUT: 34 YEARS, OCC: AGRICULTURIST, R/O: NEGALUR ROAD, GUTTAL, HAVERI DISTRICT. …RESPONDENTS (BY SRI. H.M.DHARIGOND, ADVOCATE FOR R1; R2, R3 AND R5 ARE SERVED; SMT. VANITA MALAGI, ADVOCATE FOR R4) THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF THE CODE OF CIVIL PROCEDURE, 1908 PRAYING TO CALL FOR RECORDS IN O.S.NO.225/2016 ON THE FILE ADDITIONAL SENIOR CIVIL JUDGE AT HAVERI; SET ASIDE THE ORDER DATED 16.07.2018 PASSED BY ADDITIONAL INTERLOCUTORY APPLICATION NO.II/2017 IN O.S.NO.225/2016 UNDER THE PROVISIONS OF THE VII, RULE 11 OF C.P.C AND ALLOW THE I.A.NO.II/2017 FILED BY THE PETITIONER/DEFENDANT NO.1 IN O.S.NO.225/2016 AND ETC., THIS PETITION, COMING ON FOR ORDERS THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC-D:7658 CRP No. 100084 of 2018 ORAL ORDER (PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL) 1. JUSTICE M.G.S. KAMAL) 1. The present petition is filed by the defendant aggrieved by the order dated 16.07.2018 passed in OS No.225/2016 on the file of Additional Senior Civil Judge, Haveri (for short, ‘Trial Court’), by which the Trial Court has rejected the application filed by the petitioner herein under Order VII Rule 11 read with Section 151 of the Code of Civil Procedure, 1908 (for short, ‘CPC’). 2. The above suit in OS No.225/2016 is filed before the Trial Court by the plaintiff / respondent No.1 herein seeking partition and separate possession of his 1/3rd share in the suit schedule properties and for declaration to declare memorandum of partition dated 18.02.2005 is illegal and not binding on him. The plaintiff further contended that the deed of sale dated 06.01.2016 executed by defendant No.4 in favour of defendant No.5 in respect of suit schedule A1 property and also the deed of sale executed by defendant No.1 in favour of defendant No.5 in respect of suit schedule A2 property is illegal and - 4 - HC-KAR NC: 2025:KHC-D:7658 CRP No. 100084 of 2018 not binding on him. The plaintiff has contended that, one Hanumantappa Malagi is the father of the plaintiff and defendant Nos.1 and 2. The said Hanumantappa Malagi died on 24.08.1964 leaving behind plaintiff and defendant Nos.1 and 2 as his legal heirs. As such, they are entitled for equal share in the suit properties. That defendant Nos.1 to 3 had created and fabricated a Power of Attorney in the name of defendant No.3 with an intention of denying the plaintiff of his share in the suit properties. The plaintiff has neither executed Power of Attorney nor had appeared before the Notary Public. Based on the strength of the said fabricated General Power of Attorney, defendant Nos.1 and 3 had entered into a registered Memorandum of Partition deed dated 18.02.2005, deliberately stating that the plaintiff had relinquished his share in the suit schedule properties by receiving a sum of Rs.2,50,000/-. That he had never authorized defendant No.3 to enter into partition on his behalf. As such, the Memorandum of Partition was illegal and not binding on the plaintiff. That the consequent execution of deeds of - 5 - HC-KAR NC: 2025:KHC-D:7658 CRP No. 100084 of 2018 sale in favour of defendant Nos.4 and 5 was also illegal and not binding on the plaintiff. At paragraph No.9 of the plaint, it is specifically contended that the plaintiff learnt about the illegality committed by the defendant No.4 recently. Immediately thereafter, they approached the defendant No.4 seeking partition and allotment of suit schedule property. The cause of action of the suit arose on 07.07.2016 when the defendants denied his legitimate share in the suit property, the plaintiff constraint to file the suit. 3. Written statement has been filed in the above suit. Defendants thereafter filed an application under Order VII Rule 11 read with Section 151 of CPC seeking rejection of plaint on the ground of the same having been barred by limitation and also the Court not having jurisdiction to entertain the suit. Plaintiff not paying the proper Court Fee and there being no cause of action to the suit. - 6 - HC-KAR NC: 2025:KHC-D:7658 CRP No. 100084 of 2018 4. Objection to the said application came to be filed by the plaintiff denying the averments made in the application and seeking rejection of the same. 5. The Trial Court by the impugned order rejected the said application. Being aggrieved by which the present petition is filed. 6. Miss. Ranjita Raddi, learned counsel appearing for the petitioner vehemently submits that the document in question which is sought to be nullified is registered deed of partition. The said document was executed on 18.02.2005 whereas, the present suit is filed in the year 2016 clearly barred by limitation. She further submits that, once a registered deed of partition is entered into there remains no cause of action to reopen the partition. As such, the cause of action pleaded in the plaint is unsustainable. She further submits that the Court Fee paid is also insufficient. As such, the plaint was required to be rejected as contemplated under Order VII Rule 11 read with Section 151 of CPC. - 7 - HC-KAR NC: 2025:KHC-D:7658 CRP No. 100084 of 2018 7. Per contra, Sri. H. M. Dharigond, learned counsel appearing for the respondents justifying the order passed with Trial Court submits that the plaintiff has specifically pleaded is with regard to fabrication of General Power of Attorney and consequent creation of partition deed by the defendants to which he was not a party and that no where in the plaint, the plaintiff has mentioned about he having had any knowledge of said documents and having kept quite allowing the period of limitation to expire. Therefore, he submits that, period of limitation commenced only on plaintiff learning about the same. The cause of action to the suit arose on 07.07.2016 immediately thereafter, he has filed the suit. Therefore, the allegation of suit lacking cause of action is unsustainable. Hence, seeks for rejection of the petition. 8. Heard and perused the records. 9. It is settled principle of law that for the purpose of consideration of application filed under Order VII Rule 11 read with Section 151 of CPC only the averments made in the plaint are required to be looked at and not the - 8 - HC-KAR NC: 2025:KHC-D:7658 CRP No. 100084 of 2018 defence sought to be pleaded by the defendant. The plaint averments briefly extracted herein above would indicate that the plaintiff has made allegation against the defendants of forging and fabrication of a Power of Attorney, based on which purported Memorandum of Partition Deed has been brought into existence by the defendants on 18.02.2005 showing the plaintiff having relinquished his share in the property by receiving Rs.2,50,000/-. Nowhere in the plaint as rightly pointed out by the learned counsel for the respondent is there any whisper of plaintiff having had the knowledge of execution of the said Power of Attorney or Memorandum of Partition to attribute knowledge and he not taking action within prescribed period. 10. At paragraph No.9 of the plaint, the plaintiff has specifically averred that he learnt about the illegal acts committed by the defendants recently and at paragraph No.10 he has pleaded that cause of action to the suit is arose on 07.07.2016 and the suit is filed on 21.11.2016. - 9 - HC-KAR NC: 2025:KHC-D:7658 CRP No. 100084 of 2018 In any case the grounds urged in the application involve mixed question of law and facts requiring trial. 11. The Trial Court having taken these aspects of the matter and also having referred to the precedents in the matter has by elaborate reasoning as found at paragraph Nos.31 to 44, rejected the application. 12. This Court do not see any reason to interfere with the same. The exercise of jurisdiction by the Trial Court in rejecting the application cannot be found to be illegal or irregular warranting interference of this Court. Accordingly, the petition is rejected. 13. Pending IAs., if any, are disposed off accordingly. Sd/- (M.G.S. KAMAL) JUDGE SMM/CT-ASC List No.: 1 Sl No.: 10