Issues of limitation and sale deed validity require full trial; defenses are not assessed at the preliminary dismissal stage under CPC.

ORDER :

V.SRISHANANDA, J.

Heard Sri Gopala Gowda and Sri R.S.Ravi, learned Senior Counsel for the respondent.

2. Defendants in OS No.58/2022 are the revision petitioners challenging the dismissal of the application filed under Order VII Rule 11 CPC.

3. Facts in the nutshell which are utmost necessary for the disposal of the present revision petition are as under:

A suit came to be filed in OS No. 58/2022 with the following prayer in respect of the following immovable property (hereinafter referred to as the ‘suit property’):

“Wherefore, the plaintiff humbly prays that this Hon'ble Court be pleased to pass judgment and decree for the relief to declare that the plaintiff is the absolute owner of the suit schedule property in pursuance of Registered Sale Deed dated. 24/11/1971 stands in the name of his father Dasegowda, with consequential relief of permanent injunction restraining the defendant No.1 to 6 agents or anybody acting on behalf from interfering with grant the schedule property in manner whatsoever and such other Court cost and relief 's in the interest of justice.

SCHEDULE

All that piece and parcel of alienated land bearing Sy.No.145/8, measuring 0.08 guntas of Hommaragalli Vilalge, Hampaura Hobli, H.D. Kote Taluk Mysuru District which includes the building bound bounded on;

East by: House and vacant site of children of Bojegowda

West by: Remaining site and House, measuring 0.08 guntas in Sy No.145/8 belongs to children of Ningegowda

North by: Layout formed by Bogagnanjappa now by Subbanna

South by: Mysuru-Manandawadi Main Road.

4. Plaint averments would reveal that suit property earlier belonged to H.M.Shivanne Gowda, S/o.late Muddumade Gowda of Hombaragahalli Village. Said Shivanne Gowda is none other than the husband of the second defendant and father of defendant Nos. 3 to 6. He died about 10 years earlier leaving behind defendant Nos. 2 to 6 as his legal representatives.

5. It is further contended that Shivanne Gowda, for his legal necessity and for the benefit of the family, said to have sold 0.08 guntas of land in Sy.No.145/8 of Hombaragahally Village in favour of Dasegowda of Gundathur Village under the registered sale deed in the year 1971.

6. The said Dasegowda is the son of plaintiff and he died about one and half years earlier leaving behind plaintiff and others as his legal representatives. Father of the plaintiff was in possession and enjoyment of the land measuring 0.08 guntas as aforesaid which are the subject matter of the sale deed dated 24.11.1971.

7. It is further contended that defendants unnecessarily interfered with the suit property. Therefore, suit for declaration came to be filed.

8. Pursuant to the suit summons, defendants entered appearance and filed an application under Order VII Rule 11 CPC seeking rejection of the plaint on the ground that the plaintiffs filed the suit seeking perpetual injunction and consequential reliefs and also seeking the relief of declaration and possession by way of an amendment, which specifically shows that the plaintiff has not approached the court with clean hands and suit is barred by limitation.

9. It is also contended that the alleged cause of action in the suit is illusory and imaginary in nature and therefore sought for rejection of the plaint.

10. Learned trial judge after entertaining the objections of the plaintiff on the said application, dismissed the application, inter alia holding as under:

“10. G. NAGARAJ vs B.P. MRUTHU