IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 9^TH DAY OF AUGUST 2021

BEFORE

THE HON9BLE MR.JUSTICE ASHOK S. KINAGI

WRIT PETITION NO.15638 OF 2018 (GM-CPC)

BETWEEN:

1.

SMT. KALAMMA,

W/O MARISWAMYGOWDA

AGED ABOUT 64 YEARS, SADOLALU VILLAGE

KASABA HOBLI, MADDUR TALUK

MANDYA DISTRICT 3 571 428.

2.

K.B. NAGESH

S/O SANNA SIDDAIAHNA BORAIAH

AGED ABOUT 45 YEARS

KUDARAGUNDI VILLAGE

GEJJALAGERE POST, KASABA HOBLI

MADDUR TALUK,

MANDYA DISTRICT 3 571 428.

&PETITIONERS

(BY SRI. HEGDE V. S., ADVOCATE)

AND:

1.

SMT. K.N. PRABHAVATHI

W/O M.S. NANDISH AND

D/O P. NARAYANAGOWDA

AGED ABOUT 32 YEARS

2.

K.N. DHANANJAYA

2

S/O P. NARAYANAGOWDA

AGED ABOUT 31 YEARS

3.

GOWTHAM K.N.

S/O P. NARAYANAGOWDA

AGED ABOUT 27 YEARS

ALL ARE RESIDENTS OF KANNALI VILLAGE

KASABA HOBLI, MANDYA TALUK

MANDYA DISTRICT 3 571 401.

... RESPONDENTS

(BY SRI. S.N. BHAT FOR R-1 TO R-3)

THIS WRIT PETITION IS FILED UNDER 227 OF

CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE

ORDER DATED 15.02.2018 PASSED BY THE II ADDITIONAL

CIVIL JUDGE AND JMFC, MANDYA ON I.A. FILED UNDER

ORDER

7

RULE

11(a)

AND

(d)

OF

CPC

IN

O.S.NO.158/2014

AS

PER

ANNESURE-A

AND

CONSEQUENTLY ALLOW THE ABOVE SAID APPLICATION.

THIS WRIT PETITION COMING ON FOR ORDERS

THIS DAY, THE COURT MADE THE FOLLOWING:

O R D E R

The petitioners aggrieved by the order dated

15.02.2018, passed in O.S.No.158/2014 by the II

Addl. Civil Judge & JMFC, Mandya, have filed the

present writ petition.

3

2. Brief facts leading rise to filing of this petition

are as under:

The

respondents

have

filed

a

suit

in

O.S.No.158/2014 on the file of II Addl. Civil Judge &

JMFC, Mandya seeking for partition and separate

possession of their 3/5^th share in the suit schedule

properties by metes and bounds, by considering the

alienations made by defendant No.1 in favour of

defendant Nos.2, 4 and 5 as not binding over their

legitimate shares. The petitioners have filed a written

statement denying the allegations made in the plaint

and contended that the suit is liable to be dismissed.

In the said suit, the petitioners have filed an

application under Order VII Rule 11(a) & (d) of CPC

contending that suit is barred by limitation and there

is no legal cause of action against the petitioners in

respect of suit items 6, 8 to 10 in the schedule

properties. The respondents opposed the said

4

application by filing objections. The Trial Court, after

hearing the parties, passed an order dismissing the

application filed by the petitioners vide order dated

15.02.2018. Hence this writ petition.

3. Heard learned counsel for petitioners and

learned counsel for respondents.

4. Learned counsel for the petitioners submits

that the defendant No.1 executed a registered sale

deed dated 15.07.2004 in favour of defendant No.4 in

respect of suit items 6, 9 and 10 and in turn the

defendant No.4 sold items 9 and 10 in favour of

defendant No.5 under a document dated 27.02.2013.

He further submits that the execution of a sale deed

by defendant No.1 in favour of defendant No.4 is prior

to the amendment of Section 6 of the Hindu

Succession Act which came into force on 09.09.2005.

The said alienation is being saved by the amended

5

provisions of Section 6 of Hindu Succession Act. He

further submits that the respondents have no right

whatsoever upon the properties. On the said grounds,

the petitioners have filed an application under Order

VII Rule 11(a)&(d) of CPC. The Trial Court dismissed

the application. He further submits that the Trial

Court has committed an error without considering the

amended provisions of the Hindu Succession Act. He

further submits that there is no cause of action to file

a suit against the present petitioners. Hence, on

these grounds, prayed to allow the writ petition.

5.

Per

contra,

learned

counsel

for

the

respondents submits that suit is filed by the petitioner

and brothers for partition an