High Court Karnataka High Court

Smt M C Manjula W/O K Gopalaiah vs Sri M C Srikantha S/O Lt B Channappa on 30 September, 2010

Karnataka High Court
Smt M C Manjula W/O K Gopalaiah vs Sri M C Srikantha S/O Lt B Channappa on 30 September, 2010
Author: Jawad Rahim
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

4

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/

7
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

9
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

10
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

11
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.