I
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 30?" DAY OF SEPTEMBER 2019
BEFORE
THE HON'BLE MR.JuST1cE JAWAE) RA:FiIM.:I:.A:"' A
C.R.P. NO.5OzE2EO19_"
BETWEEN:
1.
SMT M.C. MANJULA,
W/O SR1 K.GOPALAIAH
AGED ABOUT 52 YEARS '
R/A NO.251, 2ND_Bi;OCK _ ,
3RD STAGE, BASAVESHWA:R£\NA£3AR_
BANGALORE -- 56OVV_O79, I ' ',
SR1 M.C.:S REAiATH;;--_ S,?'0"'i3.CEE!:A'N'NAP}'5A
AGED§.ABO_UT..€{4"Y.EA_RS_
R/A NOE-'E2 . *
8TH CROSS,.j'1..5H.VMA.__IN '
J CNA'GAR,-}<U..RiJBARfi*.HALLI
BANGA_VLO.RE- 560 085
M.C..A}AGA_i\!PdATH, S/O B.CHANNAPPA
AGEDABOUT 60 YEARS
" ~ ,R,AfA*HES'sE~8~29225
cELa,E", WE_ST GERMANY
'=~THRO"uG':»a HIS ATTORNEY
Sm Mi'K.vC.MANJULA
SM.*%'M.c.uRM1LA,
V D/O B CHANNAPPA
_.--AGED ABOUT 49 YEARS
W/O DAKSHINA MURTHY
R/A NO.5Lf.1, SAPTHAGIRI NILAYA
NAZAR MOHALLA,
d'
GAYATHRIPURAM
MYSORE-S70 021
' PETITIONERS
(BY SR1 N.R.NAGARAJ, AOv.,)
AN
E...'
AGED ABOUT 62 YEARS
R/A NO.18, 11TH MAIN ROAD-'
VRISHABHAVATHI NAGAR A A'
KAMAKSHIPALYA
BANGALORE~560 079
Ex}
SRI M.C.GOPINATH, S/O LATE B CHANNA'PPAg
AGEO ABOUT 62 YEARS --
R/A NO.B~4/2, SENIOR WORK INS_PECTOR
7TH MAIN ROAD, 40TH CROSS
BWSSE STAFF QUAR.TERSfi_ "
STH BLOCT<,aJA_YANAGAT;.
BANGALC}RE;é'560.v084g_
SMT M.C;_SARASw'ATH'I;. D,'/O«.CH_ANNAPPA
AGED ABOUT 69 YEARS _ '
R/A NO.373{_707 HO_USE--S)"---..__
IST "E" MAIN ;..5T':.--! CROSS
4TH PHASE, YELAHANKANEW TOWN
.-'wBANGA~E:;OERE--560 O57. OOOOO
V"SMT'I\1..,C.--uNADEv1, D/O B.CHANNAPPA
AG Ea .A'SO'uT"7QT~ -YEA RS
W/0. B';V.KRiSH[\EAMURTHY
A R/A NO.9__2?0,.9*"" BLOCK,
_ T 'NAGARABHAVI 11 STAGE
<1A"-._3ANGALO:2.E~560 072
'TLS'MTML_C.vA1OEHI, E)/O B.C:-TANNAPPA
__"AG:ED ABOUT 56 YEARS
V j -R/.A.' No.88, VENKATADRI NILAYA
"4TH BLOCK, 6TH MAIN
SR1 M.C.SRIKANTHA, S/O LATE B.CHANNi'\':Ij':'PA~.AL:VV:
NANDINI LAYOUT
BANGALORE 560 096
5. SMT M.C.SHANTHI, D/O B.CHANNAPPA
AGED ABOUT 50 YEARS
R/A NO.37/1, TRILOK
8TH CROSS, AzAD NAGAR, CHAMARAIE-ET§jj-, A
BANGALORE--56O O18
7. SMT M.C.MANJUNATH, S/O B.CHA'N_NAPPA«. ~. 2
AGED ABOUT 47 YEARS.' "
R/A NO.135
8TH CROSS, II STAGE, II Bi.;O_CE»(u
BASAWESHWARAN-AGAR --
BANGALORE--56O O..79; 'A I
. iiESi$O:~i'DENTS
(BY SRI T.SIIV1.AH/-%.:'NTE$£H, FOR R1 & R2)
THIS C.RPii._i-QLECI' .u/S; .115 OF cpc, AGAINST THE
ORDER.iDATED:: Oii;;:O'2,.2OO9 PASSED IN O.S.7432/2008 ON
THE F1LE,.O'F«,TH'E., ')(XI~I.__ ADDL. CITY CIVIL JUDGE,
BANGA1;O_R'E., ' REJECTIANG-~.,,',.THE LA. FILED BY THE
DEFENDANT NO.7',-- THEf?.EI--N 'O/O 7 R--11 OF cpc.
,"e;'hiS..petiti"O-niViceming on for admission this day, the
= .,,(;0ua.~'§;"in.:~_Ir:{e the foliiowiflg
ORDER
.7_””ThiS.’i:évi.SiOn under Section 115, C.P.C. is directed
‘x_cfagainSL~~ Order dated 1.2.2010 passed in O.S.7432/O8 on
5_’t’hAe;tfi’i~e of Addl. City Civii Judge, Bangaiore, rejecting the
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application filed under Order VII Rule 11, C.P.C. The
petition is admitted and taken up for final disposal.
2. Respondents 1 and 2 herein filed
O.S.7432/08 seeking the following reliefs: V
1)
2)
3)
for partition and sepa=rate-~ipiossessio-nl’of.__ the
schedule property by alio__tti–ng 1/1_-1″‘.s’hate’–~.to~_
each of the plaintiffs-and the defei’ida’rjts_,,,an_d pu’-:._>
the plaintiffs in possession of’t.heir “respective
shares, ” E
declare that the seti;:’e’mejnt deed dated 19.4.1978
which is registe*’ed’_as;,*~dot:ume~nt no.1169/78~79,
Book no.1, Volume 3-Dii;’as__ hu_il,and void and not
bindingon the…p.i.a_intiff,g ‘ ‘
consedtgentlyi,decl_a:re..,Vth’at_Vthe sale deed dated
11._2._.g20,€J5_. re*gis’t,ered,_ as document no.BDA~1~
1359$,/2dda~o<5_;–.stored in co No.BDA–BDAD 75
rr~rd.ate*d";'i:1,»,2.2bo.S "al~.d.riithe sale deed dated
29.A12.._–.2QO35 –wh~i.ch_is registered as document
no.RJN?1?04557?/’2OO5–O6 stored in CD.No.R3i\lD
133′ dated ~-2’9.i2,.2{3″O5 as null and void and not
binding on the plaintiffs,
_ order. formesne profits under Order 20 Rule 12,
” ~. V. …..
5):”‘”col’nsequently for permanent injunction restraining
–, “7””a_ defendant
her men, her agents, her
V.:'”«::e’pr,es,e~ntatives or any person or persons acting
‘u’r[ideir or
v_.~en(:’umbering or creating any charge on the
”,schedule property and
‘grant such other relief or reliefs as this court
through her from alienating,
deems fit under the facts and circumstances of
the case in the interest of justice and equity.
ARV
U
6
submits 0.5.1159/06 was disposed of rejecting the plaint
under Order VII Rule 1:, C.P.C. as there was no cause of
action and barred by limitation. He submits rejectiVon.::of..the
plaint was to the knowledge of respondents
despite such knowledge, after two years, suit”is..
filed. He contents the present suit be:.l.l’lg:.bEll’iiiE:d=:byl.E-1t¢i5tAlg_0i’!
11, C.P.C. i.e. principles of,.res judicat’a, it,is3
rejected for want of cause of and Vastime barred.
6. Learned counsel’..fo«r the resisted both the
grounds contending that 1 and 2) are
proximately” “petitioner who is their
brother. theywlived together when their
father “acgui.redfthVe-properties through his ancestors in
MEilLii’~Eii’id aifteir”sale”-ofvcertain properties in Maiur, sqme
paidvvlllfor allotment of a site in favour their
n’iothier;[“~i§anfia,lamma, investing the money received from
the.._salV_e- ~o’fifthle joint property. The then City Improvement
Trust.8.o’ard (B.D.A. presentiy) had allotted the schedule
–..pr0_oerty to her by accepting the amount paid by ali farriiiy
…_.members. He submits since allotment of the site in her
(;9\Qr/
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favour was on the basis of amount paid by other
coparceners, the property was not the exclusive prvopertv of
Kamaiarnma. Respondents herein and 2″” petiti’o’ner..:weVre«_
entitled to equai share, However, the 2?”–.p4et~itiofnerA hadf
received an assignment in :=,Germaf’ny-r_”a.n’dVwanteo
documentation in his favour in resp_e’ct of.*’the:_sch_edule”‘H.
property to enable him to job resident
permit. Only to enabledtsim-‘_V:to§V.’get.._su’crh_job,xKama|amma
executed the deed of above. The
signature of t’h4ef’:g:~§l’aint*iff{was’.:_obta.i’ned:«under duress and
misrepreseht.atii_4o’rri.itff” document styled as
settlenzjent on the plaintiff. He
submits”respondefnlitse.ha’d:_:’:gri«ot fiied any other suit and this
was jtneigr fifrstslitigfationivi Referring to the proceedings in
. if°’Oy.VS;’*3jiSr9/O’6,yA_ he fsubrnits they were defendants and not
~.pVla_intiiffse”-andV”i-hence, there is no question of res judicata
aga-i.nstV_.thenm§f Any order passed in that suit would not
K””‘.__VV’*»aAmount,to an order suffered by them and hence they did
if jleuestion the same. He further submits that the
.,,sF§ttlement deed referred to in the prayer column executed
atilv
8
by Kamalamma was without authority as she was not the
absoiute owner of the property and therefore, theldeed
does not bind the plaintiff.
7. Keeping in mind what is urged by =
examined the averments in o..4s.3;-3,59/Ca5_”‘-as “ais.o
O.S.7432/O8. It is apparent ‘from
plaints that Saraswatiii, Vaidefih’i’.’,Vai1d» had sought
cancellation of the M1978 and
consequentiy anorderjyoiminjunictiodn”‘.a’n’d:’:V’ap.”decree for grant
of mesne is further noticed
from the that the principai relief
soughttflfordi is second reiief sought is to
declare the«r..settieme’nt”ci:eed or 1978 as nuii and void and
V. n0ti’i:i’i.nd_iAr:gVvdon the .p_layi.ntiff.
_i;e..arn:ed::’counse| for the petitioners is right in pointing
outdhthat’tfuniéss the settlement deed executed by
Kamaemma in favour of the 2″” plaintiff in 1978 is fl set
out,
A X_”aAsiid”e«_, there is no question of considering whether the
‘ property is to be treated as own property of Kamalamma or
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joint famiiy property. Since the said deed is of 1978 and
respondents 1 and 2 are signatories to the said deed, they
could have challenged the same only within the statutory
period of 3 years prescribed under the Limitatio~n—Act__.’__i”1Tif_h’ey
piaintiff being aware of the document and it_s..natuvreA.l.:had
sought for a declaration against even j;in:_th’e’ieariiegr’
filed in 05.1159/06 or in any_4_othei”._p’roceed.ing’.s’; ” Fo’r”the”it»
first time seeking the reiieif=,fiof_ deVclar_ation.’TEthat the
settlement deed of nolt thelrnin the suit
filed in 2008 is hopeiesislybarredil Respondents 1
and 2 couid not’ ‘(He ground’ aga’ivn.st.5such proposition. I
am saitisfiedx”ujn.iess.Vltiieydneed iswfldeclared as null and void
and not”bVindeing,._.the’~gueistidn of considering whether they
havea _sharae».does not “arise. Besides, the averments in
of thenplaint indicate clearly they were not
i{n.o$vledge of the document, but were parties to
it.A “-4The__voniiy= ground against it is, it is vitiated by fraud and
migsrepmfsentation “of their signature. If it is so, they should
–..nai.rei”sought for a declaration that the document is null and
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void, within three years as prescribed under law. That they
have not done.
9. It is a settled principle of law tha_tf”i’ng’e.n:u:ii:y,’«_
iriteiligent drafting, use of phraseology just.to..A4cfrea”te: caus_e._
of action indirectly will not entitle the plaifntiff to mlaiiiiami
suit if it is noticed that by such intel.ligent
attempting to seek such relief _otherwiVse’:und,er Eaw is
barred. This is a c|ear.,_’case.”VAof§. respondent no.2 trying to
mislead the adversary t’h-e.”p..rini:ipal prayer as
partition but aw”aic}:t;”ally’–,eseeiéingj .,:a’*V.”‘declaration that the
settiemcnti ‘i’i’oit~’£binding, which relief is
barred by the plaintiff was liabie to be
rejected .tiVn1_Ve=barred. The Eearned trial judge
con’siti__eri.rig these aspects in the right
perspect_i’_ve,fi,s”carried away by the fact that the plaintiff is
nott~hAeV.pia’.lnti,ffV’in the earlier suit and was defendant and
Zthatutl1.e”question before him is a question of law and fact.
“..jiNotlici.ng the erroneous approach of the trial court, I am
satisfied the order requires interference and hence, the
K
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order dismissing the appiication filed under Order VII Rule
11, C.P.C. is set aside.
10. No worthy purpose wiil be served by renj.a’n:d”i-rigiwthe
case for consideration of the said appiication a«treéh:.:asidityfis
noticed on the basis of admitted f:ac’:’ts’*t4hat”_ythe.”rieiieftseiugxhit I
in the suit is dearly barred by time,_ It-ience,”‘t.he..pi.ain:t”hias.VV
to be rejected.
11. In the resuit, the_._”revis§Vion– “aivi»oiJved. In exercise of
power conferred gnder ‘and (d), C.P.C.,
the piaint in rejected. In the
Circumstances;.i’t.hereis–no~ord_er as to costs.