- 1 - HC-KAR NC: 2025:KHC:31642 MSA No. 199 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA MISCELLANEOUS SECOND APPEAL No.199 OF 2024 (RO) BETWEEN: 1. GAYATHRI W/O LATE LAKSHMIPATHY, AGED ABOUT 51 YEARS, R/AT JAGADENAHALLI VILLAGE, LAKKUR HOBLI, MALUR TALUK, KOLAR DISTRICT-563160 2. L. SAHANA W/O RAJU.B, D/O LATE LAKSHMIPATHY, AGED ABOUT 30 YEARS, R/AT DOOR NO.52, ALI BOMMASANDRA, HANUMAN TEMPLE ROAD, MUTHANALLUR POST, ANEKAL TALUK, BENGALURU-560099. 3. L. NAYANA D/O LATE LAKSHMIPATHY, AGED ABOUT 26 YEARS, R/AT JAGADENAHALLI VILLAGE, LAKKUR HOBLI, MALUR TALUK, KOLAR DISTRICT …APPELLANTS (BY SRI. VISHWAS S. REDDY, ADVOCATE) AND: 1. MANJULA W/O. ANANDA AGED ABOUT 40 YEARS, Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:31642 MSA No. 199 of 2024 R/O. YELAVAGULI VILLAGE, TEKAL HOBLI, MALUR TALUK, KOLAR DISTRICT-563137 2. PREMALATHA W/O. PRAKASH, D/O. VENKATESHAPPA, AGED ABOUT 31 YEARS, R/O. DODDANALLUR VILLAGE AND HOBLI, HOSUR TALUK, KRISHNAGIRI DISTRICT, TAMIL NADU-635 001 3. ROOPA W/O VENKATESHA, D/O VENKATESHAPPA, AGED ABOUT 29 YEARS, R/O. BANTAHALLI VILLAGE, LAKKUR HOBLI, MALUR TALUK, KOLAR DISTRICT-563139 4. VENKATESHAPPA S/O. LATE CHIKKAMUNIYAPPA, AGED ABOUT 68 YEARS R/AT BANTAHALLI VILLAGE, LAKKUR HOBLI, MALUR TALUK, KOLAR DISTRICT-563139 5. NAGESH S/O VENKATESHAPPA, AGED ABOUT 37 YEARS R/AT BANTAHALLI VILLAGE, LAKKUR HOBLI, MALUR TALUK, KOLAR DISTRICT-563139 …RESPONDENTS THIS MSA IS FILED UNDER ORDER 43 RULE 1(u) OF CIVIL PROCEDURE CODE, AGAINST THE JUDGMENT AND DECREE DATED 11.09.2024 PASSED IN R.A.NO.29/2023 ON THE FILE OF THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, KOLAR, ALLOWING THE APPEAL AND SETTING ASIDE THE ORDER DATED 19.01.2023 PASSED ON IN OS NO.484/2021 ON THE FILE OF THE SENIOR CIVIL - 3 - HC-KAR NC: 2025:KHC:31642 MSA No. 199 of 2024 JUDGE AND JMFC, MALUR, ALLOWING THE I.A.NO.3 FILED UNDER ORDER 7 RULE 11 (a) AND (d) R/W SECTION 151 OF CPC FOR REJECTION OF PLAINT. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT Heard Sri Vishwas S. Reddy, learned counsel for the appellants. 2. Appellants are defendant Nos.3 to 5 in O.S.No.484/2021 on the file of the Senior Civil Judge & JMFC, Malur. The appellants/defendant Nos.3 to 5 filed an application under Order VII Rule 11(a) and (d) of the Code of Civil Procedure which came to be allowed by the Trial Court and the plaint was rejected. The plaintiffs in the said suit are the respondent Nos.1 to 3 and defendant Nos.1 and 2 are the respondent Nos.4 and 5 in the present appeal. 3. Being aggrieved by the Order passed by the Trial Court, plaintiffs filed an appeal on the file of the Prl. District and Sessions Judge, Kolar, in R.A.No.29/2023. - 4 - HC-KAR NC: 2025:KHC:31642 MSA No. 199 of 2024 4. The learned Judge in the First Appellate Court, taking note of the principles of law enunciated by the Hon’ble Apex Court in the case of Kum.Geetha and others vs. Nanjundaswamy and others passed in Civil Appeal No.7413/2023 and Shakti Bhog Food Industries Ltd. Vs. Central Bank of India and another reported in AIR 2020 SC 2721, came to the conclusion that the suit of the plaintiffs needs to be adjudicated on the merits and application under Order VII Rule 11 of the Code of Civil Procedure could not have been allowed by the learned Trial Judge at the threshold for want of cause of action, inasmuch as according to the defendants who are the appellants before this Court, there is collusion between father of the plaintiffs who is party defendant to the suit of the plaintiffs only to nullify the decree of specific performance granted by the duly constituted Court and thus sought for rejection of the plaint. 5. The same is considered by the learned Judge in the First Appellate Court in the light of the principles of law enunciated by the Hon’ble Apex Court. - 5 - HC-KAR NC: 2025:KHC:31642 MSA No. 199 of 2024 6. Learned Judge in the First Appellate Court also took into consideration the contentions urged on behalf of the appellants that O.S.No.252/2016 was decreed on 05.03.2018. Therefore, the present suit is only an attempt to nullify the fruits of the decree and thereafter held that the defendants are at liberty to urge the same as defence in the suit and set-aside rejection of the plaint by the Trial Court and directed the Trial Court to frame appropriate issues and proceed with the suit, in accordance with law. 7. Correctness of the said Order is called in question in this appeal on the following grounds:  The judgment and decree passed by the first appellate court suffers from factual as well as legal infirmities. Hence the same is liable to be set aside by this Hon'ble Court.  The appellate court failed to appreciate the facts/ pleadings of the case in OS No.484/2021 and set aside the order of the trial court without proper application of mind.  Whether the suit of the plaintiffs is maintainable or not can be made out from the pleadings of the plaint. In the Paragraph No.3 of the plaint, it is very much admitted by the plaintiffs itself that, the suit schedule - 6 - HC-KAR NC: 2025:KHC:31642 MSA No. 199 of 2024 property was acquired by their father as per section 8 of the Hindu Succession Act after their grandfathers death, followed by partition between their father Venkteshappa and his brother Kempanna.  As per the section 8 of the Hindu Succession Act and the law laid down by the Hon'ble Apex Court, the Joint Family property ceases to exist after the property is acquired as per section 8 by the legal heirs and the acquired property becomes the self- acquired property in the hands of the person acquiring it. In the present case, the Respondent No.4/ Venkteshappa has acquired the property as per section 8 followed by oral partition between himself and his brother and thus the suit schedule property becoming his self- acquired property. Court on the similar set of facts, has clearly held that, the property acquired 13. The law laid down by the Hon'ble Apex by the person as per section 8 of the Hindu Succession Act becomes the self-acquired property in his/her hands and Joint/ Hindu Undivided Family cease to exist and there is no automatic creation of Hindu Undivided Family. Hence, the claim of the plaintiffs as pleaded in the plaint at para no.4 that, suit schedule property is a Hindu Undivided Joint Family Property of the plaintiffs and Defendants no.1 and 2/ respondent No.4 and 5 does not sustain in accordance with law. - 7 - HC-KAR NC: 2025:KHC:31642 MSA No. 199 of 2024  The plain reading of the plaint clearly depicts that, there is no cause of action as the alleged one is false and created one in collusion with respondent no.4 and 5. The plaintiffs plead in para no.3 that, "Venkteshappaa/ Respondent No.4 and Kempanna had orally partitioned all other Joint family Property including Suit Schedule Property", but the suit for partition was filed only with respect to Suit Schedule Property purchased by the Appellants. The appellate court clearly turned blind eye while passing the impugned order of setting aside the order of the trial court.  The Respondent No.4 has sold the suit schedule property in his own capacity as the same is his self- acquired property and other respondents have no right, title interest over the suit schedule property to seek partition and separate possession of the suit schedule property.  The respondents no.4 and 5 executed registered sale agreement dated 21.10.2013 in favor of the Lakshmipathy the Husband of the 1st Appellant and father of the 2nd and 3rd Appellant herein. During his lifetime, he had issued Legal Notice dated 08.09.2015 for specific performance and later suit was filed in OS No.256/2016 and the suit came to be decreed On.05.03.2018. Based on the decree, EX Petition No.11/2018 was filed and the plaintiffs had filed their objectors application. During the pendency, the respondents in collusion to delay the - 8 - HC-KAR NC: 2025:KHC:31642 MSA No. 199 of 2024 execution petition have filed OS No.484/2021 by collusive cause of action against the appellants by making the respondents no.4 and 5 as defendants no.1 and 2.  The Appellants had filed Application Under Order 7 Rule 11 (a) and (d) and respondents no.1-3 had filed their objections. The Trial Court after ascertaining the pleadings of the suit in OS No.484/2021 had dismissed the suit of the plaintiffs for collusive cause of action by its order dated 19.01.2023.  The Appellate failed to look into the pleadings of the suit in OS No.484/21 along with the order passed on the application under Order 7 Rule 11 (a) and (d) side by side to determine if the plaintiffs really had a cause of action and lawful right to seek partition or not. The suit of the plaintiff clearly discloses that, there is no cause of action to file the suit for partition as the right to sue never accrued as the plaintiffs never had any rights. Therefore, the appellate court was wrong in setting aside the order of the trial court on the basis that, the trial court was wrong in coming to conclusion that, there is no cause of action.  The appellant has not filed any other appeal or revision before this Hon'ble court or any other court and pending on the same subject matter. If the appeal is allowed no injustice and hardship would be caused to the respondents, if not allowed great injustice and hardship would be caused to the appellant herein.” - 9 - HC-KAR NC: 2025:KHC:31642 MSA No. 199 of 2024 8. Learned counsel for the appellants, reiterating the grounds urged in the appeal memorandum, contended that the father of the plaintiffs derived the suit property at a partition. Therefore, it is his self acquisition and there is no existence of Hindu Undivided Family in the vendor of the appellants and as such, the suit was not maintainable, as there was no cause of action to the suit and the alleged cause of action is only illusory in nature. 9. Therefore, application filed under Order VII Rule 11 of the Code of Civil Procedure was rightly considered by the Trial Court and rightly rejected the plaint. 10. He would further contend that the learned Judge in the First Appellate Court failed to note that the decree was already obtained in the year 2018 and the suit is an afterthought by the father of the plaintiffs who having not been able to digest the decree of specific performance got filed a belated suit through plaintiffs who are none other than his children. - 10 - HC-KAR NC: 2025:KHC:31642 MSA No. 199 of 2024 11. As such, a collusive suit came to be filed and setting aside the order of rejection of the plaint has thus resulted in miscarriage of justice. 12. Therefore, he sought for admitting the appeal for further consideration. 13. This Court bestowed its attention to the contentions urged on behalf of the appellants. 14. What is to be noted in the entire case of the parties is that according to the defendants there is active collusion between plaintiffs and their father who is party defendant in O.S.No.484/2021. 15. The said aspect of the matter is factual aspect which needs to be adjudicated and after adjudication, collusion, if any, is to be established. 16. It is for the Trial Court to frame appropriate issue in that regard having regard to the decreeing of the suit in O.S.No. 252/2016 and also taking note of the contents of the written statement. - 11 - HC-KAR NC: 2025:KHC:31642 MSA No. 199 of 2024 17. Rejecting the plaint at the threshold has thus resulted in the miscarriage of justice is the opinion recorded by the learned Judge in the First Appellate Court. 18. While so recording the opinion, learned Judge in the First Appellate Court did consider the principles of law enunciated in the judgments referred to supra in the impugned judgment which would establish the scope of the Trial Court while considering an application filed under Order VII Rule 11 of the Code of Civil Procedure and rightly set-aside the Order of the learned Trial Judge and directed the suit to continue by framing appropriate issues. 19. The Order of the First Appellate Court is passed on 11.09.2024 and by this time, trial would have progressed. 20. The defendants can very well establish before the Trial Court by placing such necessary evidence on record to establish that suit property is not the joint family property and father of the plaintiffs had every right to alienate the suit property and therefore, decree passed in O.S.No.252/2016 is a valid decree and get the suit dismissed. - 12 - HC-KAR NC: 2025:KHC:31642 MSA No. 199 of 2024 21. Defendants can also pray for imposing necessary costs for making him to defend a frivolous suit. 22. With that liberty this Court is of the considered opinion that the grounds urged in the appeal are not sufficient to interfere with the Order passed by the First Appellate Court. 23. Accordingly, the following: ORDER Appeal is meritless and dismissed. Sd/- (V SRISHANANDA) JUDGE kcm List No.: 1 Sl No.: 34