Disputed issues of ownership and limitation must be resolved through trial; initial rejections based on plaint should consider potential evidence rather than mere allegations.

JUDGMENT :

(H.P. SANDESH, J.)

1. This matter was heard in part on the previous occasion and today, I have heard learned counsel for the appellants and learned counsel for the respondents in detail.

2. This appeal is filed by the appellants challenging the order dated 01.02.2021 in R.A.No.15023/2020 passed by the learned V Additional District Judge, Bangalore Rural District at Devanhalli, setting aside the order passed by the Trial Court on an application filed under Order VII Rule 11(a) and (d) read with Section 151 CPC seeking rejection of the plaint. While setting aside the order, the First Appellate Court comes to the conclusion that in an application filed under Order VII Rule 11(a) and (d) read with Section 151 CPC, the Court cannot consider the disputed issue and when the suit was also filed, the very contention was raised that earlier sale deeds are not challenged and the issue of limitation can be considered only after considering the evidence of the parties and the same is a mixed question of fact and law.

3. The counsel appearing for the appellants in his argument would vehemently contend that the very approach of the First Appellate Court is erroneous in setting aside the order of the Trial Court. The counsel would vehemently contend that the learned Appellate judge failed to notice that the veracity of the pleadings of plaint, if not from the angle of fair trial, but from the angle of preliminary issues of limitation, jurisdiction, cause of action and Court fee. Though, the Trial Court is able to come to conclusion by its scrupulous surveillance that cause of action is fundamental to a civil suit and no civil suit can exist without a cause of action taking place before it. The counsel also would vehemently contend that though law is settled that Court has to take note of the contents of the plaint while considering an application filed under Order 7 Rule 11 of CPC, and also counsel brought to notice of this Court that nowhere pleaded with regard to fraud in the plaint with regard to execution of earlier sale deeds and when the same has not been challenged before the Court and subsequent sale deed cannot be challenged and issue of limitation was also taken note of by the Trial Court while considering an application filed under Order 7 Rule 11(d) and the First Appellate Court ought not to have reversed the finding of the Trial Court.

4. The counsel also in support of his argument relied upon the judgment reported in ILR (KAR)-2019-0-4739 in case of Durga Projects and Infrastructure Pvt. Ltd Vs. S.Rajagopala Reddy , wherein discussed in detail in paragraph No.6 that in the background of well established principle that only plaint must be seen for deciding an application under Order 7 Rule 11 CPC, a question, whether these two transactions can be considered? would obviously arise. As has been pleaded by the plaintiff, if GPA was the only document that came into existence on 23.01.2002, definitely, the plaintiffs case that they are entitled to 1/3^rd share in the suit property becomes an issue to be decided after recording of evidence, if not they must fail at the threshold. Now if para 10 of the plaint is meaningfully read, what the plaintiffs have stated is that GPA is an independent transaction and no consideration was paid for execution of the said GPA. That means they do not want to state anything about agreement of sale and affidavit. The plaint appears to have been drafted cleverly suppressing the material facts. This court, in a situation like this, has already taken a view in the case of R.Satish Kumar Singh Vs. Sri. Ram Singh Another (R.F.A 653/2014