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2008(4) Supreme 204
SUPREME COURT OF INDIA
(From Karnataka High Court)
S.B. Sinha & V.S. Sirpurkar, JJ.
Kamala & Ors. — Petitioners
versus
K.T. Eshwara Sa & Ors. — Respondent
Appeal (civil) 3038 of 2008
[Arising out of SLP (Civil) No. 9222 of 2007]
Decided on : 29-04-2008
(b) Code of Civil Procedure, 1908 – Order VII, rule 11(d) – The question what would be the effect of a partition suit which had not been taken to its logical conclusion by getting the properties partitioned by metes and bounds cannot be gone into in a proceeding under Order VII, Rule 11(d). (Para 21)
(c) Code of Civil Procedure, 1908 – Section 11 – Even for deciding applicability of the principles of res judicata, questions of fact cannot be gone into – Only averments in the plaint are to be seen. (Para 21)
(d) Code of Civil Procedure, 1908 – Order VII, rule 11(d) – The identity of the properties which were the subject matter of the earlier suit vis-à-vis the properties which were subsequently acquired and the effect thereof is beyond the purview of Order VII, Rule 11(d). (Para 24)
(e) Code of Civil Procedure, 1908 – Order VII, rule 11(d) – The effect of suppression of fact will have to be determined. (Para 25)
AIR 1994 SC 853 – Relied upon.
(f) Code of Civil Procedure, 1908 – Order VII Rule 11(d) – Scope – An application for rejection of the plaint can be filed if the allegations made in the plaint even if given face value and taken to be correct in their entirety appear to be barred by any law. (Para 26)
(2004) 9 SCC 512; 2007 (12) SCALE 163; (2005) 7 SCC 510; (2006) 5 SCC 662; (2006) 5 SCC 658; (1977) 4 SCC 467; AIR 1961 SC 1077 – Relied upon.
AIR 1952 Calcutta 579; (1977) 4 SCC 467; (1982) 1 SCC 447 – Referred.
Facts of the case:
1. Allegedly, the eldest son of Kabadi Gopalsa went out of the joint family by executing a registered Deed of Release upon taking his share in the ancestral property on or about 10.03.1918.
2. A partition is said to have taken place between two sons of Chinnusa, i.e., Kabadi Giddusa and Kabadi Gopalsa on or about 1.05.1926. Kabadi Gopalsa died in 1947.
3. There exists a dispute as to whether the properties in suit were divided amongst the four sons of Kabadi Gopalsa. However, admittedly, a suit was filed by Ramusa (son of Gopalsa) against his mother and three brothers in respect of three house properties being Item Nos. 1, 2 and 3 and the Revenue land (Item No. 4). Defendant No. 3 in the said suit was the grand father of the deceased husband of the appellant No. 1 in the present case.
4. It is not in dispute that on or about 11.11.1952, the properties which allegedly fell to the share of Chikka Chinnusa was auction sold in favour of one Moolchand Sharma in execution of a decree passed against him in OS No. 311 of 1948-49 being Execution No. 421 of 1950-51.
5. A preliminary decree was passed by the Trial Court declaring 2/9th share of the plaintiff. However the said decree was rectified declaring the share of the plaintiff to be 1/4th in the joint family property. During pendency of the final decree proceedings, Moolchand Sharma sold his land in Survey Nos. 22 and 23 admeasuring 1 acre 0.38 guntas, Survey No. 48/2 admeasuring 0.32 guntas and Survey No. 48/5 admeasuring 0.13 = guntas to Munimarappa.
6. A final decree was said to have been passed on 11.06.1955. Yet again, Ramusa executed a registered deed of sale on 30.08.1956 in favour of R. Vittal Sa and Dodda Chinnusa executed a registered deed of sale on 2.09.1956 in favour of K.G. Daktappa.
7. An order of injunction was passed in the said suit being OS No. 15 of 1953 by an order dated 20.03.1963 restraining the defendant No. 2 from transferring the suit schedule properties on the premise that the joint family property had not been divided by metes and bounds.
8. The final decree proceeding was, however, dismissed for default on or about 03.09.1974.
9. Respondent No. 1 thereafter filed a partition suit against which was dismissed as not pressed.
10. Appellant has filed a suit which was marked as OS No. 6352 of 2004 claiming partition in the properties, being the same as were described as Item Nos. 1, 2, 3 and 4 of the schedule appended to the plaint in OS No. 15 of 1953.
11. In the said suit, an application for rejection of the plaint was filed by the respondents which has been allowed by the learned trial Judge and affirmed by the High Court by reason of the impugned judgment.
Findings of the Court :
The scope of Order VII, rule 11(d) is very limited. Questions of fact cannot be gone into that stage.
Result : Appeal allowed.
Key Points: - Questions of fact cannot be examined at the stage of Order VII, Rule 11(d) (!) (!) (!) (!) . - Only the averments made in the plaint are relevant; the court cannot consider evidence or disputed facts at this stage (!) (!) (!) . - An application for rejection of plaint can be filed if allegations, even taken as correct, appear barred by any law (!) . - Principles of res judicata, when attracted, bar another suit under Section 12, but cannot be determined at this stage (!) (!) . - Whether the suit is barred by law must be determined from the plaint alone, without adding or subtracting facts (!) (!) (!) .
JUDGMENT
S.B. Sinha, J. —
1. Leave granted.
2. Application of Order VII, Rule 11(d) of the Code of Civil Procedure (for short “the Code”) in the facts and circumstances of this case, is involved in this appeal which arises out of a judgment and order dated 13.02.2007 passed by a Division Bench of the High Court of Karnataka at Bangalore.
3. The relationship between the parties is not in dispute, as would appear from the genealogical tree:
Allegedly, the eldest son of Kabadi Gopalsa went out of the joint family by executing a registered Deed of Release upon taking his share in the ancestral property on or about 10.03.1918.
4. A partition is said to have taken place between two sons of Chinnusa, i.e., Kabadi Giddusa and Kabadi Gopalsa on or about 1.05.1926. Kabadi Gopalsa died in 1947.
5. There exists a dispute as to whether the properties in suit were divided amongst the four sons of Kabadi Gopalsa. However, admittedly, a suit was filed by Ramusa (son of Gopalsa) against his mother and three brothers in respect of three house properties being Item Nos. 1, 2 and 3 and the Revenue land (Item No. 4). Defendant No. 3 in the said suit was the grand father of the deceased husband of the appellant No. 1 in the present case.
6. It is not in dispute that on or about 11.11.1952, the properties which allegedly fell to the share of Chikka Chinnusa was auction sold in favour of one Moolchand Sharma in execution of a decree passed against him in OS No. 311 of 1948-49 being Execution No. 421 of 1950-51.
7. A preliminary decree was passed by the Trial Court declaring 2/9th share of the plaintiff. It is, however, conceded at the Bar that the said decree was rectified declaring the share of the plaintiff to be 1/4th in the joint family property. A final decree proceedings was initiated. During the pendency of the said proceedings, Moolchand Sharma sold his land in Survey Nos. 22 and 23 admeasuring 1 acre 0.38 guntas, Survey No. 48/2 admeasuring 0.32 guntas and Survey No. 48/5 admeasuring 0.13 = guntas to Munimarappa.
A final decree was said to have been passed on 11.06.1955. Yet again, Ramusa executed a registered deed of sale on 30.08.1956 in favour of R. Vittal Sa in respect of 2 acres and 1 > guntas in Survey Nos. 22 and 23, 0.29 > guntas in Survey No. 47/2 and 0.13 = guntas in Survey No. 48/5. Dodda Chinnusa executed a registered deed of sale on 2.09.1956 in favour of K.G. Daktappa in respect of 2 acres and 1 > guntas in Survey Nos. 22 and 23, 0.29 > guntas in Survey No. 47/2 and 0.13 = guntas in Survey No. 48/5.
8. By an order dated 18.06.1956, the Trial Court directed the Commissioner to demarcate the lands falling in the share of the plaintiff and allot to him. Various interlocutory proceedings were initiated and several orders were passed thereupon. As noticed hereinbefore, the preliminary decree was amended declaring 1/4th share of the plaintiff and the defendant Nos. 1 to 3 with respect to all the properties by reason of an order dated 27.02.1963. Whereas according to the respondents, the parties had taken possession of the properties fallen in their respective shares and had been enjoying and even alienating them to the third parties, the appellant strenuously denied and disputed the same.
An order of injunction was passed in the said suit being OS No. 15 of 1953 by an order dated 20.03.1963 restraining the defendant No. 2 from transferring the suit schedule properties on the premise that the joint family property had not been divided by metes and bounds. However, while setting aside the said interim order of injunction, the learned Court by an order dated 7.07.1967 observed as under:
(i) On 27.02.1963, the preliminary decree was amended and 1/4th share of Plaintiff and Defendants 1 to 3 was defined.
(ii) Item No. 4 of the suit property is revenue property.
(iii) Defendant No. 3 (grandfather of deceased husband of Plaintiff Appellant herein) has sold its share in Item No. 4 of the plaint schedule property.
(iv) ‘The suit is
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