Kamala vs K. T. Eshwara Sa - 2008 Supreme(Raj) 545

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2008 Supreme(Raj) 545

[Citation : RLW 2009(1) RJ 170 (SC)]
(Supreme Court)
Kamala & Ors. Vs. K.T. Eshwara Sa & Ors. (Sinha, J.)
HON'BLE S.B. SINHA, J.
HON'BLE V.S. SIRPURKAR, J.
Kamala & Ors.
Versus
K.T. Eshwara Sa & Ors.
Civil Appeal No. 3038 of 2008, decided on 29.04.2008

Advocates Appeared
S.N. Bhat, for Appellants;
R. Venkataramani, Sr. Advocate, Shanmukhappa, S. Balaji, Mallikarjun S., Ms. E.R. Sumathy, S.R. Sharma, S. Srinivasan, Ms. Madhumita Bora, S. Balaji, P.R. Ramasesh, G.C. Bharuka, A. Mohan Sinha, Mrs. Hansa Bharuka, H.S. Somnath and Devashish Bharuka, for Respondents

Headnote:(a) C.P.C., Order 7 Rule 11(d) — Rejection of plaint — Essential for invoking Order 7 Rule 11(d) are that no amount of evidence can be looked into — Conclusion that suit is barred under any law must be drawn from averments made in plaint — Held — Different clauses in Order 7 Rule 11 should not be mixed. (Paras 15 & 16)
       For the purpose of invoking Order VII, Rule 11(d) of the Code, no amount of evidence can be looked into. The issues on merit of the matter which may arise between the parties would not be within the realm of the court at that stage. All issues shall not be the subject matter of an order under the said provision. (Para 16)
        ¼d½ fl-iz-la-] vknsk 7 fu;e 11¼?k½ & okn i= fujLr djuk & vknsk 7 fu;e 11¼?k½ ds izko/kkuksa dk voyEcu ysus dh eeZHkwr ckr ;g gS fd lk{; dh fdlh Hkh ek=k dk ijh{k.k ugha fd;k tk ldrk & ;g fu"d"kZ fd okn fdlh fof/k ds rgr oftZr gS] okn i= esa fd;s x;s izdFkuksa esa ls fudkyk tkuk pkfg;s & vfHkfu/kkZfjr & vknsk 7 fu;e 11 ds fofHkUu [k.Mksa dks ijLij feykuk ugha pkfg;sA ¼in la- 15 o 16½
       (b) C.P.C., Order 7 Rule 11 and Order 14 Rule 2 — Rejection of suit — Absence of jurisdiction on the part of a Court can be invoked at different stages and under different provisions of the Code — Order 7 Rule 11 of the Code is one and Order 14 Rule 2 is another. (Para 15)
       Appeal allowed.
       Order VII, Rule 11(d) of the Code has limited application. It must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averments made in the plaint. Different clauses in Order VII, Rule 11, in our opinion, should not be mixed up. Whereas in a given case, an application for rejection of the plaint may be filed on more than one ground specified in various sub-clauses thereof, a clear finding to that effect must be arrived at. What would be relevant for invoking clause (d) of Order VII, Rule 11 of the Code is the averments made in the plaint. For that purpose, there cannot be any addition or subtraction. Absence of jurisdiction on the part of a court can be invoked at different stages and under different provisions of the Code. Order VII, Rule 11 of the Code is one, Order XIV, Rule 2 is another. (Para 15)
        ¼[k½ fl-iz-la-] vknsk 7 fu;e 11 ,oa vknsk 14 fu;e 2 & okn fujLr djuk & U;k;ky; dh vf/kdkfjrk ds vHkko dk voyEcu fofHkUu voLFkkvksa esa lafgrk ds fofHkUu izko/kkuksa ds rgr fy;k tk ldrk gS & lafgrk ds vknsk 7 fu;e 11 muesa ls ,d gS vkSj vknsk 14 fu;e 2 nwljk gSA ¼in la- 15½

       vihy Lohdkj dhA

Judgment

Hon'ble SINHA, J.—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 pending till the final de

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2008 Supreme(Raj) 545

[Citation : RLW 2009(1) RJ 170 (SC)](Supreme Court)Kamala & Ors. Vs. K.T. Eshwara Sa & Ors. (Sinha, J.)HON'BLE S.B. SINHA, J.HON'BLE V.S. SIRPURKAR, J.Kamala & Ors.VersusK.T. Eshwara Sa & Ors.Civil Appeal No. 3038 of 2008, decided on 29.04.2008

Cases Referred (9)

Judicial Analysis

[Citation : RLW 2009(1) RJ 170 (SC)]
(Supreme Court)
Kamala & Ors. Vs. K.T. Eshwara Sa & Ors. (Sinha, J.)
HON'BLE S.B. SINHA, J.
HON'BLE V.S. SIRPURKAR, J.
Kamala & Ors.
Versus
K.T. Eshwara Sa & Ors.
Civil Appeal No. 3038 of 2008, decided on 29.04.2008