This revision petition is filed challenging the order

dated 06.04.2023 passed on I.A.No.5 in O.S.No.160/2020

on the file of the Principal Civil Judge and JMFC,

Chitradurga.

2.

This matter is listed for admission. Heard the

learned counsel appearing for the petitioners.

3.

The counsel for the revision petitioners would

vehemently contend that defendant Nos.1 to 5 who are

the revision petitioners herein have sold the property in

the year 1993 itself and the plaintiff kept quiet for a period

of 27 years and the grievance is only against defendant

No.6 who is the purchaser of the property and no cause of

action against the petitioners herein. It is also further

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contended that in plaint, at paragraph 4, described that

the owners of Sy.No.83/2 and 83/3 formed the layout and

some part of the land was reserved for playground and the

same was handed over to defendant No.6 and defendant

No.6 while laying the compound to the said playground

put up some part of said compound into the western part

of the suit ‘A’ schedule property and also in respect of ‘B’

schedule property, defendants claim to be as their

property as part of said playground in layout formed out of

Sy.No.83/2 and 83/3. When already there was a sale

deed of the year 1993, the suit is hopelessly barred by law

and no cause of action.

4.

The Trial Court having considered the grounds

urged in the application and also in the statement of

objections filed by the plaintiff comes to the conclusion

that the dispute is with regard to the cause of action and

when the plaint specifically mentioned with regard to the

defective title of defendant Nos.1 to 5 and they have sold

the property in favour of defendant No.6 and defendant

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No.6 only started construction in the year 2019 and

immediately notice was issued against defendant No.1 on

06.06.2019 and Trial Court having taken note of the

pleadings in the plaint particularly, paragraphs 4 and 5

with regard to the cause of action as well as the

averments with regard to the defective title of defendant

Nos.1 to 5 comes to the conclusion that that suit is not

barred by limitation and cause of action also mentioned

specifically that the same was arose in the year 2019 and

the suit was filed in the year 2020 and hence, the suit

cannot be rejected and rejected the application filed under

Order VII Rule 11 (a) and (d) of CPC.

5.

Having considered the grounds urged in the

revision petition and also in view of the submissions of the

counsel for the revision petitioners, it is clear that the

Court has to look into the averments made in the plaint

while invoking Order VII Rule 11(a) and (d) and on perusal

of paragraph 4 of the plaint wherein the plaintiff has

stated with regard to the formation of layout in

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Sy.No.83/2 and 83/3 and some part of the said survey

number was reserved for playground and the same was

handed over to defendant No.6. It is also not in dispute

that in ‘A’ schedule property it is mentioned as Sy.No.83/1

of Medehalli village bearing site No.53 measuring east to

west 40 feet and north to south 30 feet and also it is

mentioned that defendant No.6 started for putting up

construction in western part of ‘A’ schedule property to the

extent of 1840 square feet. When such specific allegation

is made in the plaint with regard to the starting up of

construction by defendant No.6 and when the specific

allegation is made that defendant Nos.1 to 5 have no title

and they are having defective title and an allegation is also

made against defendant No.1 to 5 that the legal notice

was issued on defendant No.1 on 06.06.2019 calling upon

the defendants to settle the dispute of ‘A’ and ‘B’ schedule

properties and cause of action is also mentioned, the Court

has to look into the averments of the plaint and not the

defence of the defendants. Only based on the averments

of the plaint, the Court can invoke Order VII Rule 11 (a)

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and (b) of CPC and specific averments are made with

regard to the allegations m