Vasanthi Ramanand vs N. Jayarame Gowda and Others

B.S. Patil, J—This revision petition is filed by the 1st defendant in O.S. No. 6198/2010 aggrieved by the dismissal of her application filed under Order 7 Rule 11(a) and (d) read with Section 151 of CPC.

Respondents 1 to 10 are the plaintiffs in the Court below. They have filed the suit seeking the following relief:

"Wherefore, the plaintiffs most respectfully prays that this Hon''ble Court be pleased to grant separate partitions among three shares 1/3rd each as per their fathers jointly and the alleged sale deed dated 16.10.1987 vide registered document No. 3216/1987-88, Book-I Volume- 3330 Pages 429-434 at Chennai, State of Tamil Nadu obtained by fraud by the defendant is not binding on the plaintiffs".

Suit schedule property is land bearing Sy. No. 6/6 situated at Thindlu Village, Yelahanka Hobli, Bangalore North Taluk, measuring 22 guntas. What can be discerned from the vague prayer made in the plaint, as extracted above, is that plaintiffs are seeking their 1/3rd share each in the 22 guntas of land comprised in Sy. No. 6/6. They are also seeking a declaration that the sale deed dated 16.10.87 had been obtained by fraud by the 1st defendant and therefore, the same was not binding on the plaintiffs.

Careful perusal of the plaint averments disclose that plaintiffs are the members of joint family; they are cultivating the land from the date of their elders and have been in possession and enjoyment of same; the property had been mutated in favour of their biological fathers. As can be seen from the cause title of the Memorandum of Plaint and the Genealogy (plaintiffs 1 to 3 are the sons of late Nanjunde Gowda. Plaintiff No. 4 is the daughter of late Bandappa Gowda. Plaintiffs 7 to 10 are the sons of Govinde Gowda. Govinde Gowda is arrayed as defendant No. 2. Plaintiff No. 5 is the son of Venkata Ramaiah, who is arrayed as defendant No. 3. Plaintiff No. 4 is the sister of defendants 2 and 3) Bandappa Gowda was the propositor. He had three sons and a daughter. The three sons are late Nanjunde Gowda (father of plaintiff 1 to 3), Govinde Gowda - defendant No. 2 (father of plaintiffs 7 to 10) and Venkata Ramaiah defendant No. 3 (father of plaintiffs 5 and 6). Plaintiff No. 4 is the daughter of late Bandappa Gowda.

According to the plaint averments, joint family consisting of the three brothers owned land bearing Sy. No. 6/6. The total measurement of the land comprised in Sy. No. 6/6 is not shown in the plaint averments. However, it is clear from paragraph 6 of the plaint that suit schedule land measuring 22 guntas was mutated in favour of the respective fathers of all the plaintiffs as per M.R. Nos. 5/86-87 and 8/95-96. Therefore, they contend that title of the property was vested in the plaintiffs'' fathers jointly.

Plaintiffs'' main assertions are that though there was prohibition for alienation of small bits of agricultural land as per the Karnataka Prevention of Fragmentation and Consolidation of Holdings Act, 1966, by illegally getting the sale deed registered at Chennai, Tamil Nadu, the property was sought to be purchased by the 1st defendant under a registered sale deed dated 16.10.1987. Plaintiffs further contended that they had issued a legal notice to the 1st defendant on 28.07.2010 through registered post for which the defendant gave an untenable reply on 11.08.2010.

In paragraph 15 of the plaint, it is contended by the plaintiffs that khata of the land had been obtained jointly from the Tahsildar with amicable settlement of the coparceners on 23.01.1987. In paragraph 19, it is stated that cause of action to the suit arose on 28.07.2010 (date on which the legal notice was issued) and until then, plaintiffs were not aware of the illegal sale transaction which had been obtained by fraud by the 1st defendant. It is also alleged that 1st defendant not being an agriculturist had no right to purchase the agricultural land in view of the prohibition contained under Section 79(A) and 80 of the Karnataka Land Reforms Act.

It is important to notice that in paragraph 22 of the plaint it is urged that except the suit schedule property, all other properties had been partitioned among coparceners. Thus, they have sought for 1/3rd share in the suit schedule property.

Defendant No. 1 filed an application seeking rejection of the plaint. In the affidavit filed in support of the application, the 1st defendant has contended among other things that there was no whisper in the plaint regarding the details of fraud. It has been alleged that the suit suffered from serious infirmity inasmuch as there was no cause of action and hence, it was not maintainable either on facts or in law and that the relief sought in the plaint itself was incomprehensible and not maintainable. It is urged that the plaint averments in paragraph 22 disclosed that all other properties were partitioned among the coparceners which disclosed that they were aware that the suit property were available for partition, hence non-inclusion of the property in the partition was on account of non availability of the property to the family due to the sale deed dated 16.10.1987 under which the property was sold to the 1st defendant. Plaintiffs have also not disclosed as to when the earlier partition took place by excluding the suit property and as to why the suit property was excluded. In view of these circumstances among others, plaintiffs sought for rejection of the plaint Under Order 7 Rules 11(a) and (d) of CPC.

The Trial Court having heard both parties and on perusal of the plaint averments and documents enclosed has come to the conclusion that no case was made out for rejection of the plaint. It has held that facts and circumstances of the case and the plaint averments disclosed cause of action and the question of limitation being a mixed question of law and fact required evidence to be recorded. It has thus dismissed the application holding that it lacked bonafides and deserved to be dismissed.

Learned Senior counsel appearing for the revision petitioner - Sri S.S. Naganand contends that there is absolutely no cause of action to the suit for partition; no allegations of fraud are made against the vendors; therefore, declaration that the sale deed was not binding on the plaintiffs on the ground that the sale deed had been executed by playing fraud had no basis in the pleadings; allegation of violation of the provisions of the Karnataka Prevention of Fragmentation and Consolidation of Holdings Act, 1966 and the alleged violation of the provisions of Section 79(A) of the Karnataka Land Reforms Act cannot be subject matter of adjudication before the Civil Court as the power and jurisdiction to examine the same is not vested in the Civil Court and is indeed ousted. He urges that there is no averment in the plaint that any request was made for partition of the property, therefore, there was no cause of action for the suit instituted for partition.

Taking the Court through the plaint averments, learned Senior counsel for the revision petitioner points out that admittedly, there has been partition in the joint family and only a single property is now made the subject matter of partition, for which there is no foundation in the pleadings regarding the rights of the coparceners. Referring to the statement made in the legal notice that 1st defendant had obtained fraudulent sale deed in respect of suit property and got it registered at Chennai, State of Tamil Nadu and the sale deed itself was against the provisions of the Karnataka Prevention of Fragmentation and Consolidation of Holdings Act, 1966, and the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 and that the fathers of plaintiffs had no right to sell the property to a non-agriculturist as it was prohibited under the provisions of the Karnataka Land Reforms Act, learned counsel points out that even in the said legal notice, nothing is stated regarding the alleged joint family and the coparcenary rights of the plaintiffs. He has urged that the suit has been filed to virtually challenge the sale transaction that has taken place in the year 1987 after a lapse of nearly 23 years in the guise of seeking relief of partition. In support of his contention, he has placed reliance on the following judgments:

" T. Arivandandam Vs. T.V. Satyapal and Another, AIR 1977 SC 2421 : (1977) 4 SCC 467 : (1978) 1 SCR 742 : (1977) 9 UJ 697 ;

Hanumappa and Others Vs. Chikkannaiah and Others, (2008) ILR (Kar) 3993 : (2009) 1 KarLJ 269 : (2008) 5 KCCR 633 SN ."

Learned Senior counsel for the revision petitioner has further submitted that as per the provisions contained under Section 30 of the Registration Act, registration could be got effected in any of the presidency towns and therefore, it was not uncommon to have the registration of the property effected by having it registered in any of the presidency towns and hence, there was absolutely no illegality committed in the registration of the sale deed.

Sri Chikkappaji Gowda, learned counsel for respondents 1 to 10/plaintiffs strongly supports the order passed by the Court below. He has contended that plaintiffs have right by birth to seek partition in the suit schedule property; the suit has been filed soon after the plaintiffs got the knowledge of execution of sale deed; as the territorial jurisdictional was in Bangalore, registration of the document in Chennai was illegal. He has placed reliance on the judgment in the case of Atal Shrivastava Vs. Devprasad and Another, AIR 2012 Chh 117 : (2012) 1 CG.L.R.W. 503 : (2012) 1 CGBCLJ 411 to contend that plaintiffs have right by birth as per Section 6 of the Hindu Succession Act to seek partition. He has therefore sought for dismissal of the revision petition.

On careful consideration of the plaint averments and the impugned order, the only point that arises for consideration is whether the Court below has acted illegally or has committed any error of jurisdiction in passing the impugned order.

I find from the pleadings that the sale transaction in favour of the 1st defendant has been effected on 16.10.1987. Even as per the plaint averments found in paragraph 15, there was an amicable settlement between the coparceners on 23.01.1987. It is further reiterated in paragraph 22 of the plaint that properties except suit property had been partitioned among the coparceners. There is no averment in the plaint to show that as to why the suit property had been kept out of partition that had taken place earlier. Indeed, relationship between the plaintiffs and defendants 2 and 3 and as also late Nanjunde Gowda discloses that plaintiffs claim their right as legal heirs being sons and daughters of these three persons, namely, Nanjunde Gowda, Govinde Gowda and Venkata Ramaiah. It is these three persons who have jointly sold the property during the year 1987 in favour of the 1st defendant. If the father of 1st defendant/petitioner herein had indulged in any fraudulent act in order to deprive the share of plaintiffs in the ancestral property, necessary pleadings alleging such fraud should have been made in the plaint. Absolutely no such imputation of fraud is made against the vendors of the 1st defendant. There is no pleading regarding the plaintiffs asking their share in the property or their respective fathers denying it or disclosing about the sale deed dated 16.10.1987. Therefore, there is no cause of action in the suit either for seeking partition or for declaration that the sale deed was executed fraudulently in order to deprive the legitimate share of plaintiffs. Intention of plaintiffs is quite clear that they want to lay challenge to the sale deed executed in the year 1987 by their respective fathers by filing a suit after 23 years in the guise of seeking partition.

As rightly contended by the learned Senior counsel - Sri S.S. Naganand, such an action on the part of the plaintiffs would be gross abuse of the process of the Court. A meaningful and careful reading of the plaint would certainly and manifestly disclose the vexatious and meritless claim that the plaintiffs have sought to make without disclosing any clear right on their part to seek partition without making any imputation of fraud against the vendors or for that matter even against the 1st defendant. The suit has been instituted only to make an untenable claim after lapse of 23 years from the date of execution of the registered sale deed.

Learned Senior counsel is right and justified in contending that question whether the purchaser was not entitled to purchase the property as per the provisions of the Karnataka Land Reforms Act or whether the land was a fragment, not permitted to be sold, are not matters which provide any cause of action to the plaintiff. They cannot be subject matter of adjudication before the Civil Court as the special legislation enacted provide for different mechanisms for adjudication of such disputes and at any rate, such violations would not vest any right in the plaintiffs to claim the property. Learned Senior counsel for the petitioner has rightly placed reliance on the judgment of this Court in the case of Hanumappa and Others Vs. Chikkannaiah and Others, (2008) ILR (Kar) 3993 : (2009) 1 KarLJ 269 : (2008) 5 KCCR 633 SN to urge that plaintiffs have only come up with an illusion of a cause of action and a meaningful reading of the plaint and as also the facts pleaded therein disclose that suit had absolutely no cause of action.

Regarding registration of the document at Chennai, if the registered sale deed executed has been illegally executed and if the same has been fraudulently executed then by narrating the details of fraud, plaintiffs could have challenged the sale deed within the period of limitation and not after the lapse of 23 years. Therefore, such litigation if encouraged would certainly undermine the faith and trust of the litigants in the process of adjudication by the Civil Courts. Therefore, in my view, the Court below has failed to scrutinize the plaint averments and ascertain whether the plaintiffs had any cause of action to file the suit and whether the relief sought had any basis in the averments made in the plaint. Therefore, the order suffers from serious illegality warranting interference. Hence, I am of the view that revision petitioner is entitled to succeed.

The revision petition is allowed. Application filed under Order 7 Rule 11(a) and (d) of CPC by the 1st defendant is allowed and the plaint is rejected.