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IN THE HIGH COURT OF DHARWAD BENCH

DATED THIS THE 21 ST DAY OF AUGUST, 2014

BEFORE

THE HON’BLE MR. JUSTICE H.BILLAPPA

CRP. No.100022/2014

BETWEEN

1. RAMAPPA S/O. BHIMAPPA SINCE DECEASED BY HIS LRS:

1A) SMT MALAPRABHA, W/O RAMAPPA KULLUR, AGE 62 YEARS, OCC: AGRICULTURE, R/O.NALLANATTI, TQ: DIST: .

1B) SHRI.RAJU RAMAPPA KULLUR, AGE: 42 YEARS. OCC: AGRL. & BUSINESS. R/O NALLANATTI, TALUKA: GOKAK. DIST: BELGAUM.

1C) SHRI. VIJAYA RAMAPPA KULLUR AGE: 39 YEARS, OCC: AGRICULTURE R/O.NALLANATTI, TQ: GOKAK DIST: BELGAUM. : 2 :

1D) SMT.PUSHPAWATI W/O. BASAPPA HUBBALLI AGE: 46 YEARS, OCC: AGRICULTURE R/O. KARAVINAKOPPA, TQ: BAILHONGAL DIST: BELGAUM.

1E) SMT. MANGAL W/O.VIJAY IDAGAL AGE: 44 YEARS, OCC: AGRICULTURE R/O. KARAVINAKOPPA, TQ: BAILHONGAL DIST: BELGAUM. ... PETITIONERS

(BY SMT. P. G. NAIK, ADV.)

AND

SHRI.RAYAPPA BHIMAPPA KULLUR AGE: 59 YEARS, OCC: AGRICULTURE R/O. NALLANATTI, TQ: GOKAK DIST: BELGAUM. ... RESPONDENT

(BY SRI. RAVI S BALIKAI, ADV.)

THIS CRP IS FILED UNDER SEC.115 OF CPC, AGAINST THE ORDER DATED:23.01.2014 PASSED IN OS NO.85/2010 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE, GOKAK, REJECTING THE PETITION FILED U/O 7 RULE 11(a) OF CPC., AND ETC.

THIS CRP COMING ON FOR ORDERS, THIS DAY, THE COURT, MADE THE FOLLOWING: : 3 :

O R D E R

This revision is directed against the order dated

23.01.2014 passed by the Principal Senior Civil Judge, Gokak, in O.S.No.85/2010 vide Annexure-A.

2. By the impugned order at Annexure-A, the trial court has rejected the plaint under Order VII Rule 11(a) of

CPC.

3. Aggrieved by that, the petitioners have filed this revision petition.

4. The petitioners are the LRs of the original plaintiff

Sri R.B.Kullur. The original plaintiff filed suit in

O.S.No.85/2010 for declaration that he is the owner in possession of the suit property and for consequential injunction. It was averred in the plaint that the suit property bearing R.S.No.194/1 measuring 1 acre situated at

Basaligundi village was owned by the respondent. The original plaintiff was the owner of the land bearing : 4 :

R.S.No.194/2. The respondent agreed to sell the suit property to the original plaintiff Sri.Ramappa Bhimappa Kullur for a sale consideration of Rs.3,20,000/-. It is stated, as the original plaintiff and the respondent were full brothers instead of executing a registered sale deed it was agreed that the name of the original plaintiff be mutated in the revenue records in respect of the suit property by executing a partition deed. Accordingly, partition deed was executed and submitted before the revenue officials. The name of the original plaintiff came to be mutated vide M.E.No.35 by virtue of the Waradi dated 8.9.2005. It was duly certified on

10.10.2005. Possession of the suit property was handed over to the original plaintiff and he has been in actual possession and enjoyment of the suit property.

5. It is stated, the original plaintiff developed the suit property by investing huge amount and he was raising crops in the suit property. During 2008 the relationship among the women folk of the original plaintiff and the respondent was strained. Therefore, the respondent : 5 :

challenged the entry in the revenue records in case

No.RTC.AP.122/2007-2008. The original plaintiff requested the respondent to withdraw the appeal. The respondent did not pay heed to it. The respondent denied the title of the original plaintiff to the suit property. Therefore, the plaintiff has filed O.S.No.85/2010 for declaration and consequential injunction.

6. The respondent has filed his written statement denying the plaint averments and title of the plaintiff. The documents referred to in the plaint are also disputed.

7. At the stage of framing issues the trial Court has noticed that the plaint suffers for want of cause of action.

Therefore, the matter has been heard regarding rejection of the plaint. By order dated 23.1.2014 the trial court has rejected the plaint under Order VII Rule 11(a) of CPC.

Therefore, this revision petition.

8. The learned Counsel for the petitioner contended that the impugned order cannot be sustained in law. She also : 6 :

submitted that the plaint averments disclose cause of action.

The original plaintiff claims that he is the owner of the property based on the document dated 13.07.2005 and also the understanding that instead of executing the sale deed the parties can execute partition deed and based on that mutation has been effected. The original plaintiff was in possession and enjoyment of the suit property. After his death his LRs are in possession and enjoyment of the suit property. Therefore, the plaint discloses cause of action and the trial court was not justified in rejecting the plaint under

Order VII Rule 11(a) of CPC.

9. As against this, the learned Counsel for the respondent submitted that the impugned order does not call for interference. He also submitted that the original plaintiff claims title based on the alleged document dated 13.7.2005.

It is not a document of title and it is an unregistered document and therefore, it does not convey any right, title or interest in the suit property. The plaintiff cannot claim any right, title, interest or possession based on the document : 7 :

dated 13.07.2005. He also submitted that the partition pleaded is false as the plaint averments clearly disclose that the original plaintiff was the owner of Sy.No.194/2 and the respondent was the owner of Sy.No.194/1. Therefore, the plea that the parties instead of executing sale deed agreed to execute partition deed and based on that mutation has been effected is illegal. The trial court has considered this aspect and has held that the plaint averments do not disclose cause of action. Therefore, the trial court has rejected the plaint under Order VII Rule 11(a) of CPC. Therefore, the impugned order does not call for interference.

10. I have carefully considered the submissions made by the learned Counsel for the parties.

11. The point that arise for my consideration is:

Whether the impugned order calls for interference?

12. It is relevant to note, the suit in O.S.No.85/2010 has been filed by the original plaintiff for declaration and : 8 :

consequential injunction. A careful reading of the plaint

averments disclose the following:

(a) The original plaintiff was the owner of Sy.No.194/2

situated towards Southern side of Sy.No.194/1. The

respondent was the owner of Sy.No.194/1 measuring 1

acre situated at village.

(b) The respondent agreed to sell the suit property in

favour of the original plaintiff for a sale consideration of

Rs.3,20,000/-.

(c) Thereafter, the respondent and the original plaintiff

have prepared a partition deed and based on that

mutation has been effected.

(d) The original plaintiff was put in possession of the suit

property. Based on the document dated 13.7.2005 the

original plaintiff claims that he is the owner in

possession of the suit property and has prayed for

declaration and consequential injunction.

From the plaint averments, it is clear, the claim is based on the document dated 13.7.2005. It is not a document of : 9 :

title. It is an unregistered document. In so far as the plea regarding partition is concerned, the plaint averments disclose that there was a division and the original plaintiff was the owner of R.S.No.194/2 and respondent was the owner of

R.S.No.194/1. It is clear, the original plaintiff could not have claimed the relief of declaration. The contents of the document dated 13.7.2005 show that possession was delivered. It is pleaded that mutation was effected and the original plaintiff was in possession and enjoyment of the suit property. Therefore, the plaint averments disclose cause of action for the relief of injunction. In so far as the relief of declaration is concerned, the plaint averments do not disclose the cause of action. To that extent the impugned order needs to be modified.

13. Accordingly, the revision petition is allowed in part and the impugned order passed by the trial court is modified holding that the plaint does not disclose the cause of action for the relief of declaration. The suit needs to be tried only for the relief of injunction. The contention of the parties are : 10 :

left open. The trial court shall decide the matter on merits

without being influenced by the observations made in the

course of this order.

I.A.Nos.2 and 3/2014 do not survive for consideration

and accordingly, they are rejected.

Sd/- JUDGE

Sub/