SMT M PRABHAKUMARI v. PRAKASH N

To call for records and allow the revision petition by setting aside the impugned order dated 18.08.2023 passed by the Addl. Senior Civil Judge & JMFC, Doddaballapura, in O.S.No.170 of 2023 on I.A.No.3 filed under VII Rule 11 (a) & (d) of CPC, consequentially, allow the application filed under Order VII Rule 11 (a) & (d) of CPC by the defendant no.8 and reject the plaint, in the interest of justice and equity. - 4 - NC: 2024:KHC:35213 CRP No. 620 of 2023

2. The petitioner defendant No.8 OS No.170/2023, filed by respondent No.1, seeking for the following reliefs; a. b. c. Direct the defendants to effect partition of the suit schedule joint family property and put the plaintiff in separate possession of him in respective 1/6th share of the schedule property the same through meets and bounds. Order enquiry in manse profits of the joint family income and direct the defendants to pay the manse profits out of the joint family income. Grant such other relief which this Hon’ble Court deems fit under the facts and circumstances of the case and to award cots of the proceedings, to meet the ends of justice & equity.

3. Respondent No.1-plaintiff in the said suit had sought for partition and separate possession of his alleged 1/6th share in the plaint schedule property. The petitioner was defendant No.8, on appearance had filed an application in IA No.3 under Clause (a) and (b) of Rule 11 of Order 7 of the Code of Civil Procedure, seeking for rejection of the plaint on the ground that there is no cause of action and that the suit is barred by limitation. The said application came to be dismissed by the impugned order dated

18.8.2023. It is challenging the same, that the - 5 - NC: 2024:KHC:35213 CRP No. 620 of 2023 petitioner is before this Court seeking for the aforesaid reliefs.

4. Sri.Somshekar.K.M., learned counsel petitioner, would submit that;

4.1. The suit has been filed for partition, and the plaintiff admits that the property is a joint family property. The property was acquired by plaintiff's grandfather, Sri.Channigappa alias Papaya, after the death of Sri.Channigappa. The plaintiffs defendants succeeded property. Defendants Nos. 1 to 5 are stated to be addicted to vices.

4.2. Despite several requests allegedly made by the plaintiffs, the defendants did not accede to the request for partition, and background that the suit for partition was filed.

4.3. He refers to paragraph 9 of the plaint and contends that Sri.Channigappa and his brother had alienated the suit schedule property in - 6 - NC: 2024:KHC:35213 CRP No. 620 of 2023 favour of defendants No.6 and 7, out of the said 9 acres 21 guntas, 6 acres 14 guntas was in turn sold by defendants No.6 and 7 in favour of defendants No.8 on 31.8.1990. Hence, the question of filing the suit for partition in the year 2023 after a lapse of nearly 33 years, as regards only 6 acres 14 guntas without seeking for partition of the balance land which is available with defendants No.6 and 7, is an abuse of the process at Court, the suit is hopelessly barred by limitation having been filed 33 years after the sale and as such the suit being barred by limitation, the trial Court ought to have rejected the plaint.

4.4. He relies on the decision of Hon’ble Apex Court in Janardhanam Prasad v. Ramdas1 more particularly para 14 thereof, which reproduced hereunder for easy reference;

14. The 1st defendant was a friend of the 2nd defendant. Admittedly, the usual stipulations were 1 (2007)15 SCC 174 - 7 - NC: 2024:KHC:35213 CRP No. 620 of 2023 knowingly not made in the agreement of sale dated 11- 4-1983. The 1st defendant may or may not be aware about the agreement entered by and between the respondent herein. But he cannot raise a plea of absence of notice of the deed of sale dated 4-9-1985, which was a registered document. Possession of the suit land by the appellant also stands admitted. Registration of a document as well as possession would constitute notice, as is evident from Section 3 of the Transfer of Property Act, 1882, which is in the following terms: “ ‘a person is said to have notice’ of a fact when he actually knows that fact, or when but for wilful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it. Explanation I.—Where any transaction relating to immovable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or, where the property is not all situated in one sub-district, or where the registered instrument has been registered under sub-section (2) of Section 30 of the Indian Registration Act, 1908 (16 of 1908) from the earliest date on which any memorandum of such registered instrument has been filed by any Sub- Registrar within whose sub-district any part of the property which is being acquired, or of the property wherein a share or interest is being acquired, is situated: Provided that— (1) the instrument has been registered and its registration completed in the manner prescribed by the Indian Registration Act, 1908 (16 of 1908) and the rules made thereunder, (2) the instrument or memorandum has been duly entered or filed, as the case may be, in books kept under Section 51 of that Act, and (3) the particulars regarding the transaction to which the instrument relates have been correctly entered in the indexes kept under Section 55 of that Act. Explanation II.—Any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof. - 8 - NC: 2024:KHC:35213 CRP No. 620 of 2023 Explanation III.—A person shall be deemed to have had notice of any fact if his agent acquires notice thereof whilst acting on his behalf in the course of business to which that fact is material: Provided that, if the agent fraudulently conceals the fact, the principal shall not be charged with notice thereof as against any person who was a party to or otherwise cognizant of the fraud.”

4.5. By relying on Janardhanam Prasad’s case he submits that a registered document is a notice in terms of Section 3 of the Transfer Property Act, 1882. There is deemed notice of the registration of the document and the possession of defendant No.8 as regards the plaint scheduled property. This constructive notice would come into being on the date on which the document was registered i.e., in the year 1990 and the suit having been filed in the year 2023 is hopelessly barred by limitation.

4.6. He relies on the decision of Hon’ble Apex Court in Deccan Paper Mills Co. Ltd. v. Regency Mahavir Properties2 more particularly para 29 2 (2021) 4 SCC 786 - 9 - NC: 2024:KHC:35213 CRP No. 620 of 2023 to 32, which are reproduced hereunder for easy reference:

29. When Sections 34 and 35 are seen, the position becomes even clearer. Unlike Section 31, under Section 34, any person entitled to any legal character may institute a suit for a declaration that he is so entitled. Considering that it is possible to argue on a reading of this provision that the legal character so declared may be against the entire world, Section 35 follows, making it clear that such declaration is binding only on the parties to the suit and persons claiming through them, respectively. This is for the reason that under Section 4 of the Specific Relief Act, specific relief is granted only for the purpose of enforcing individual civil rights. The principle contained in Section 4 permeates the entire Act, and it would be most incongruous to say that every other provision of the Specific Relief Act refers to in personam actions, Section 31 alone being out of step i.e. referring to in rem actions. 30. As a matter of fact, this Court in Razia Begum v. Sahebzadi Anwar Begum [Razia Begum v. Sahebzadi Anwar Begum, 1959 SCR 1111 : AIR 1958 SC 886] clarified that the predecessor to Section 35 of the 1963 Act, namely, Section 43 of the Specific Relief Act, 1877, made it clear that both Sections 42 and 43 of the Specific Relief Act, 1877 go together and refer only to an action that is in personam. This was felicitously stated by this Court as follows : (SCR p. 1131 : AIR pp. 894- 95, para 12) “12. … Sections 42 and 43, as indicated above, go together, and are meant to be co-extensive in their operation. That being so, a declaratory judgment in respect of a disputed status, will be binding not only upon the parties actually before the court, but also upon persons claiming through them respectively. The use of the word “only” in Section 43, as rightly contended on behalf of the appellant, was meant to emphasise that a declaration in Chapter VI of the Specific Relief Act, is not a judgment in rem. But even though such a declaration operates only in personam, the section proceeds further to provide that it binds not only the parties to the suit, but also persons claiming through them, respectively. The word “respectively” has been used with a view to showing that the parties arrayed on either side, are really claiming adversely to one another, so far as the declaration is concerned. This is another indication of the sound rule that the court, in a particular case where it - 10 - NC: 2024:KHC:35213 CRP No. 620 of 2023 has reasons to believe that there is no real conflict, may, in exercise of a judicial discretion, refuse to grant the declaration asked for oblique reasons.” 31. Also, in an instructive judgment of this Court in Suhrid Singh v. Randhir Singh [Suhrid Singh v. Randhir Singh, (2010) 12 SCC 112 : (2010) 4 SCC (Civ) 585] , in the context of the Court Fees Act, 1870 this Court held : (SCC p. 114, para 7) “7. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to A and B, two brothers. A executes a sale deed in favour of C. Subsequently A wants to avoid the sale. A has to sue for cancellation of the deed. On the other hand, if B, who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by A is invalid/void and non est/illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and court fee is also different. If A, the executant of the deed, seeks cancellation of the deed, he has to pay ad valorem court fee on the consideration stated in the sale deed. If B, who is a non-executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs 19.50 under Article 17(iii) of the Second Schedule of the Act. But if B, a non-executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad valorem court fee as provided under Section 7(iv)(c) of the Act.” 32. The reasoning in the aforesaid judgment would again expose the incongruous result of Section 31 of the Specific Relief Act being held to be an in rem provision. When it comes to cancellation of a deed by an executant to the document, such person can approach the court under Section 31, but when it comes to cancellation of a deed by a non-executant, the non-executant must approach the court under Section 34 of the Specific Relief Act, 1963. Cancellation of the very same deed, therefore, by a non-executant would be an action in personam since a suit has to be filed under Section 34. However, cancellation of the same deed by an executant of the deed, being under Section 31, would somehow convert the suit into a suit being in rem. All these - 11 - NC: 2024:KHC:35213 CRP No. 620 of 2023 anomalies only highlight the impossibility of holding that an action instituted under Section 31 of the Specific Relief Act, 1963 is an action in rem.

4.7. By relying on Deccan Paper Mills’ case, he submits that a mere suit for partition would not suffice, the plaintiff would also have to seek for the relief that the sale deed of the year 1990 executed in favour of defendant No.8 was not binding on him. No such relief having been sought for the suit is not maintainable.

4.8. He relies on the decision of this Court in Bhimasi Fakirappa Bijjur vs. Nagesh Bhimappa Waddar @ Maktedar3, more particularly para 13.7 and 13.8 thereof, which are reproduced hereunder for easy reference:

13.7 In the instant case, it is an undisputed fact that except seeking for a decree for partition simpliciter, the plaintiffs have not sought for any declaration that the alienations made by defendant No.1 prior to the suit during the years 1980-1985 are not binding upon them. It is well settled that Kartha of a Hindu undivided family is empowered to alienate joint family/ancestral properties for legal necessity or benefit of the estate of the joint family and the validity of such an alienation would have to be adjudicated depending on the facts of the case. In other words, there was no bar for defendant No.1 to alienate the suit schedule 3 RFA 23/2002 dated 22.12.2022 - 12 - NC: 2024:KHC:35213 CRP No. 620 of 2023 properties in favour of defendant Nos.2 to 11 including the alleged share of the plaintiffs and so long as the said alienations were affected prior to institution of the suit, it was incumbent upon the plaintiffs to seek a declaration that the said alienations by defendant No.1 were not binding upon the plaintiffs or their alleged share in the suit schedule properties.

13.8 This crucial aspect of the matter, which affects maintainability of the suit, in our considered opinion has not been considered or appreciated by the trial Court and consequently, the impugned judgment and decree passed by the trial Court decreeing the suit of the plaintiffs for partition simpliciter without seeking appropriate relief of declaration deserves to be set aside on this ground also.

4.9. By relying on the decision in Bhimasi Fakirappa Bijjur case, he submits that alienation has been made by the grandfather in the present case. The said grandfather having the right to make such a transfer, it was incumbent on the plaintiff to seek a declaration that the alienation made by the grandfather was not binding on the plaintiff or the alleged shares. This goes to the root of the maintainability of the suit, and as such, he submits that no such relief having been sought in terms of judgment rendered by this Court in - 13 - NC: 2024:KHC:35213 CRP No. 620 of 2023 the Bhimasi Fakirappa Bijjur case, the plaint was required to be rejected.

4.10. He relies on the judgment of the Hon’ble Apex Court in Dahiben v. Arvindbhai Kalyanji Bhanusali4, more particularly 23.6, 23.7, 23.8,

23.9, 29.17 and 29.18 which are reproduced hereunder for easy reference:

23.6. Under Order 7 Rule 11, a duty is cast on the court to determine whether the plaint discloses a cause of action by scrutinising the averments in the plaint [Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I, (2004) 9 SCC 512] , read in conjunction with the documents relied upon, or whether the suit is barred by any law. 23.7. Order 7 Rule 14(1) provides for production of documents, on which the plaintiff places reliance in his suit, which reads as under: “14. Production of document on which plaintiff sues or relies.—(1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint. (2) Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is. (3) A document which ought to be produced in court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the court, be received in evidence on his behalf at the hearing of the suit. (4) Nothing in this Rule shall apply to document produced for the cross-examination of the plaintiff's 4 2020(7) SCC 366 - 14 - NC: 2024:KHC:35213 CRP No. 620 of 2023 witnesses, or, handed over to a witness merely to refresh his memory.” (emphasis supplied) 23.8. Having regard to Order 7 Rule 14 CPC, the documents filed along with the plaint, are required to be taken into consideration for deciding the application under Order 7 Rule 11(a). When a document referred to in the plaint, forms the basis of the plaint, it should be treated as a part of the plaint. 23.9. In exercise of power under this provision, the court would determine if the assertions made in the plaint are contrary to statutory law, or judicial dicta, for deciding whether a case for rejecting the plaint at the threshold is made out. 29.17. The plaintiffs deliberately did not mention the date of the registered sale deed dated 2-7-2009 executed by them in favour of Respondent 1, since it would be evident that the suit was barred by limitation. The prayer however mentions subsequent sale deed i.e. 1-4-2013 when the suit property was Respondents 2 and 3. The omission of the date of execution of the sale deed on 2-7-2009 in the prayer clause, was done deliberately and knowingly, so as to mislead the court on the issue of limitation. 29.18. The delay of over 5 and ½ years after the alleged cause of action arose in 2009, shows that the suit was clearly barred by limitation as per Article 59 of the Limitation Act, 1963. The suit was instituted on 15- 12-2014, even though the alleged cause of action arose in 2009, when the last cheque was delivered to the plaintiffs. The plaintiffs have failed to discharge the onus of proof that the suit was filed within the period of limitation. The plaint is therefore, liable to be rejected under Order 7 Rule 11(d) CPC. further sold by Respondent 1 the date of

4.11. By relying on Dahiben’s case, he submits that the documents produced along with the plaint would also have to be read along with the plaint for the purpose of consideration of application under Rule 11 of Order 7. The contents of the sale deed executed in favour of defendant No.8, - 15 - NC: 2024:KHC:35213 CRP No. 620 of 2023 if taken into consideration, would establish the date on which the sale deed was executed and the starting period of limitation.

4.12. He relies on the decision of the Hon’ble Apex Court in C.S.Ramaswamy vs. V.K.Senthil and Ors5, more particularly 7.6, 7.7, 7.8 and

7.9, which are reproduced hereunder for easy reference:

7.6. From the aforesaid, it can be seen that most of the cause of actions alleged are much prior to /prior to the execution of the registered Sale Deeds. 7.7. Even the averments and allegations with respect to knowledge of the plaintiffs averred in paragraph 19 can be said to be too vague. Nothing has been mentioned on which date and how the plaintiffs had the knowledge that the document was obtained by fraud and/or misrepresentation. It is averred that the alleged fraudulent sale came to the knowledge of the plaintiffs only when the plaintiffs visited the suit property. Nothing has been mentioned when the plaintiffs visited the suit property. It is not understandable how on visiting the suit property, the plaintiffs could have known the contents of the sale deed and/or the knowledge about the alleged fraudulent sale. 7.8. Even the averments and allegations in the plaint with respect to fraud are not supported by any further averments and allegations how the fraud has been committed/played. Mere stating in the plaint that a fraud has been played is not enough and the allegations of fraud must be specifically averred in the plaint, otherwise merely by using the word “fraud”, the plaintiffs would try to get the suits within the limitation, 5 AIR 2022 SC 4724 - 16 - NC: 2024:KHC:35213 CRP No. 620 of 2023 to challenge which otherwise may be barred by limitation. Therefore, even if the submission on behalf of the respondents – original plaintiffs that only the averments and allegations in the plaints are required to be considered at the time of deciding the application under Order VII Rule 11 CPC is accepted, in that case also by such vague allegations with respect to the date of knowledge, the plaintiffs cannot be permitted documents after a period of 10 years. By such a clever drafting and using the word “fraud”, the plaintiffs have tried to bring the suits within the period of limitation invoking Section 17 of the limitation Act. The plaintiffs cannot be permitted to bring the suits within the period of limitation by clever drafting, which otherwise is barred by limitation. At this stage, a recent decision of this Court in the case of Raghwendra Sharan Singh (supra) is required to be referred to. In the said decision, this Court had occasion to consider all earlier decisions on exercise of powers under Order VII Rule 11 CPC, which are considered by this Court in paragraphs 6.4 to 6.9 as under:- “6.4. In T. Arivandandam [T. Arivandandam v. T.V. Satyapal, (1977) 4 SCC 467], while considering the very same provision i.e. Order 7 Rule 11 CPC and the decree of the trial court in considering such application, this Court in para 5 has observed and held as under: (SCC p. 470) “5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful — not formal — reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7 Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order 10 CPC. An activist Judge is the answer to irresponsible law suits.” 6.5. In Church of Christ Charitable Trust & Educational Charitable Society [Church of Christ Charitable Trust & Educational Charitable Society Ponniamman Educational Trust, (2012) 8 SCC 706], this Court in para 13 has observed and held as under: (SCC p. 715) v. - 17 - NC: 2024:KHC:35213 CRP No. 620 of 2023 “13. While scrutinising the plaint averments, it is the bounden duty of the trial court to ascertain the materials for cause of action. The cause of action is a bundle of facts which taken with the law applicable to them gives the plaintiff the right to relief against the defendant. Every fact which is necessary for the plaintiff to prove to enable him to get a decree should be set out in clear terms. It is worthwhile to find out the meaning of the words “cause of action”. A cause of action must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue.” 6.6. In ABC Laminart (P) Ltd. v. A.P. Agencies [(1989) 2 SCC 163], this Court explained the meaning of “cause of action” as follows: (SCC p. 170, para 12) “12. A cause of action means every fact, which if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything which if not proved would give the defendant a right to immediate judgment must be part of the cause of action. But it has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff.” 6.7. In Sopan Sukhdeo Sable [Sopan Sukhdeo Sable v. Charity Commr., (2004) 3 SCC 137] in paras 11 and 12, this Court has observed as under: (SCC p. 146) “11. In ITC Ltd. v. Debts Recovery Appellate Tribunal [ITC Ltd. v. Debts Recovery Appellate Tribunal, (1998) 2 SCC 70] it was held that the basic question to be decided while dealing with an application filed under Order 7 Rule 11 of the Code is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7 Rule 11 of the Code. 12. The trial court must remember that if on a meaningful and not formal reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise the power under Order 7 Rule 11 of the Code taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of - 18 - NC: 2024:KHC:35213 CRP No. 620 of 2023 v. Code. (See T. Arivandandam action, it has to be nipped in the bud at the first hearing by examining the party searchingly under Order 10 of T.V. Satyapal [(1977) 4 SCC 467].)” 6.8. In Madanuri Sri Rama Chandra Murthy [Madanuri Sri Rama Chandra Murthy v. Syed Jalal, (2017) 13 SCC 174], this Court has observed and held as under: (SCC pp. 178- 79, para 7) “7. The plaint can be rejected under Order 7 Rule 11 if conditions enumerated in the said provision are fulfilled. It is needless to observe that the power under Order 7 Rule 11 CPC can be exercised by the court at any stage of the suit. The relevant facts which need to be looked into for deciding the application are the averments of the plaint only. If on an entire and meaningful reading of the plaint, it is found that the suit is manifestly vexatious and meritless in the sense of not disclosing any right to sue, the court should exercise power under Order 7 Rule 11 CPC. Since the power conferred on the court to terminate civil action at the threshold is drastic, the conditions enumerated under Order 7 Rule 11 CPC to the exercise of power of rejection of plaint have to be strictly adhered to. The averments of the plaint have to be read as a whole to find out whether the averments disclose a cause of action or whether the suit is barred by any law. It is needless to observe that the question as to whether the suit is barred by any law, would always depend upon facts and circumstances of each case. The averments in the written statement as well as the contentions of the defendant are wholly immaterial while considering the prayer of the defendant for rejection of the plaint. Even when the allegations made in the plaint are taken to be correct as a whole on their face value, if they show that the suit is barred by any law, or do not disclose cause of action, the application for rejection of plaint can be entertained and the power under Order 7 Rule 11 CPC can be exercised. If clever drafting of the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage.” 6.9. In Ram Singh [Ram Singh v. Gram Panchayat Mehal Kalan, (1986) 4 SCC 364], this Court has observed and held that when the suit is barred by any law, the plaintiff cannot be allowed to circumvent that provision by means of clever drafting so as to avoid mention of those circumstances, by which the suit is barred by law of limitation.” 7.9 Applying the law laid down by this Court in the aforesaid decisions on exercise of powers under Order VII Rule 11 CPC to the facts of the case on hand and the averments in the plaints, we are of the - 19 - NC: 2024:KHC:35213 CRP No. 620 of 2023 opinion that both the Courts below have materially erred in not rejecting the plaints in exercise of powers under Order VII Rule 11(d) CPC. The respective suits have been filed after a period of 10 years from the date of execution of the registered sale deeds. It is to be noted that one suit was filed by the minor, which was filed in the year 2006, in which some of the plaintiffs herein were also party to the said suit and in the said suit, there was a specific reference to the Sale Deed dated 19.09.2005 and the said suit came to be dismissed in the year 2014 and immediately thereafter the present suits have been filed. Thus, from the averments in the plaint and the bundle of facts stated in the plaint, we are of the opinion that by clever drafting, the plaintiffs have tried to bring the suits within the period of limitation, which otherwise are barred by limitation. Therefore, considering the decisions of this Court in the case of T. decision Arivandandam (supra) of Raghwendra Sharan Singh (supra), and as respective suits are barred by the law of limitation, the respective plaints are required to be rejected in exercise of powers under Order VII Rule 11 CPC.

4.13. By relying on C.S.Ramaswamy’s case, he submits that only by clever drafting, a suit cannot be stated to be within the period of limitation. The Court would have to take into consideration the actual date of commencement of the period of limitation and in this case, if not for the date on which the grandfather sold the property, it definitely would be the date on which defendants No.6 and 7 sold portion of the property to defendant No.8 and as such that date has taken into consideration, the suit has - 20 - NC: 2024:KHC:35213 CRP No. 620 of 2023 been filed after 33 years which is ex-facie barred by law of limitation.

4.14. He relies on the decision of the Hon’ble Apex Court in Sopan Sukhdeo Sable v. Charity Commr6, more particularly paragraph 5.2, 6,

7.1 and 8, which are reproduced hereunder for easy reference:

5.2. In the case of Sopan Sukhdeo Sable v. Charity Commr., (2004) 3 SCC 137 in paras 11 and 12, this Court has observed and held as under: “11. In ITC Ltd. v. Debts Recovery Appellate Tribunal [ITC Ltd. v. Debts Recovery Appellate Tribunal, (1998) 2 SCC 70] it was held that the basic question to be decided while dealing with an application filed under Order 7 Rule 11 of the Code is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7 Rule 11 of the Code. taking care

12. The trial court must remember that if on a meaningful and not formal reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise the power under Order 7 Rule 11 of the Code the ground to see mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, it has to be nipped in the bud at the first hearing by examining the party searchingly under Order 10 of the Code. (See T. Arivandandam v. T.V. Satyapal [(1977) 4 SCC 467].)” 6. Applying the law laid down by this Court in the aforesaid decisions on the applicability of Order VII Rule XI to the facts of the case on hand, we are of the 6 AIR online 2023 SC 459 - 21 - NC: 2024:KHC:35213 CRP No. 620 of 2023 opinion that the plaint ought to have been rejected in exercise of powers under Order VII Rule XI(a) and (d) of CPC being vexatious, illusory cause of action and barred by limitation. By clever drafting and not asking any relief with respect to partition deed dated 11.03.1953, the plaintiffs have tried to circumvent the provision of limitation act and have tried to maintain the suit which is nothing but abuse of process of court and the law. 7.1. Now so far as the reliance placed upon the decision of this Court in the case of Nusli Neville Wadia (supra) is concerned, again there cannot be any dispute with respect to the proposition of law laid down by this Court that while deciding the application under Order VII Rule XI, mainly the averments in the plaint only are required to be considered and not the averments in the written statement. However, averments in the plaint as they are, we are of the opinion that the plaint is ought to have been rejected being vexatious, illusory cause of action and barred by limitation and it is a clear case of clever drafting. 8. In view of the above and for the reasons stated, the impugned judgment and order passed by the High Court and that of the learned Trial Court rejecting the application under Order VII Rule XI are unsustainable and the same deserve to be quashed and set aside and are accordingly, quashed and set aside. Consequently, application submitted by the appellants - original defendant Nos. 9 and 10 to reject the plaint in exercise of powers under Order VII Rule XI(a) and is hereby allowed and (d) of consequently, the plaint of Civil Suit (O.S.) No. 35/2014 is ordered to be rejected. considering the CPC

4.15. By relying on Sopan Sukhdeo Sable case, his submission was the plaintiff has deliberately not sought any relief as regards the sale deed of the year 1990, and it is by not seeking such a relief that it is now sought to be - 22 - NC: 2024:KHC:35213 CRP No. 620 of 2023 contended that the suit is within the period of limitation, when in fact it is not. His submission is that if proper reliefs had been sought, which would indicate that what is under challenge is the sale deed of the year 1990, the suit being hopelessly barred by limitation ought to have been taken into consideration by the trial Court.

4.16. Lastly, he relies upon the decision of this Court in Durga Projects and Infrastructure Pvt. Ltd.7, more particularly paragraph 6, 7 and 8 thereof, which are reproduced hereunder for easy reference:

6. If the plaint is subjected to scrutiny, it appears that the plaintiffs have reliefs mainly founded contending that the GPA dated 23.01.2002 was the only document executed by them and their father in favour of defendants 1 & 2. They say that they had to join in execution of the GPA with their father on the insistence by the defendants 1 & 2. The argument of petitioners the plaintiffs have deliberately Counsel suppressed transactions namely important execution of an agreement of sale and an affidavit, which were transactions. The petitioners Counsel has produced these documents. In the background of well established principle that only plaint must be seen for deciding an application under Order 7 Rule 11 CPC, a question, whether these two transactions can be considered? would obviously arise. As has been pleaded by the plaintiffs, if GPA was the contemporaneous 7 ILR 2019 Karnataka 4739 - 23 - NC: 2024:KHC:35213 CRP No. 620 of 2023 only document that came into existence as 23.01.2002, definitely, the plaintiffs case that they are entitled to ⅓rd share in the suit property becomes an issue to be decided after recording evidence, if not they must fail at the threshold. Now if para 10 of the plaint is meaningfully read, what the plaintiffs have stated is that GPA is an independent transaction and no consideration was paid for execution of the said GPA. That means they do not want to state anything about agreement of sale and the affidavit. The plaint appears to have been drafted cleverly suppressing the material facts. This Court, in a situation like this, has already taken a view in the case of R. Satishkumar Singh v. Sri. Ram Singh [ RFA 653/2014.] , that suppression of facts by the plaintiff may be a ground for rejection of plaint. The High Court of Patna in the case of Bhagirathprasad Singh @ Bachcha Babu v. Ram Narayan Rai @ Ram Narayan Singh [2010 SCC OnLine Pat 737, AIR 2010 Pat 189.] , has held as below: framing “9. I find no force in the submission raised on behalf of the plaintiffs - opposite parties. No doubt, as per the provisions of Order VII Rule 11 of the Code of Civil Procedure, for the purposes of determining the question of rejection of plaint on the other grounds mentioned therein, it is the plaint that has to be looked into, but the question is that if the plaintiffs have deliberately suppressed the material facts, the disclosure of which is required bylaw to be made in terms of Order VI Rule 2 of the Code of Civil Procedure, whether it was open for the court concerned to proceed with the trial and decide the suit after issues. The order dated 20.11.2006 was challenged by the plaintiffs-judgment debtors themselves before this Court and the civil revision was dismissed by a reasoned order dated 1.5.2008. Thus, this fact was well known to the plaintiffs and they were duty bound in law to disclose the same which they have not done. Order VI Rule 2(1) of the Code of Civil Procedure clearly stipulates that the pleadings should contain the material facts. It has been observed by the Apex Court in Sopan Sukhdeo Sable v. Assistant Charity Commissioner, (2004) 3 SCC 137 that omission of a single material leads to an incomplete cause of action and the statement or plaint becomes bad. Order VII Rule 11 of the Code of Civil Procedure lays down an independent remedy made available maintainability of the suit itself irrespective of his right to contest the same on merits. The real object of Order VII Rule 11 of the Code of Civil Procedure is to keep out of courts irresponsible law suits and in case Court is the defendant challenge - 24 - NC: 2024:KHC:35213 CRP No. 620 of 2023 priina facie persuaded of the view that the suit is an abuse of the process of the court, in the sense that it is a bogus and irresponsible litigation, the jurisdiction under Order VII Rule 11 of the Code of Civil Procedure can be exercised”. (emphasis supplied) 7. Therefore, in this case it is apparent that material facts are suppressed and the cause of action that the plaintiffs have claimed can be said to be illusionary and there by Order VII Rule 11(a) of CPC can be invoked. 8. As regards limitation, in Para 38 of the plaint it is clearly stated that the cause of action arose on 18.03.2005, 29.03.2007 and 15.06.2016. 18.03.2005 is the date when the first defendant executed a sale deed in favour of third defendant. That means, the cause of action first arose on 18.03.2005. This is a suit for declaration and possession. Just because possession is claimed, 12 years period of limitation is not available. Unless the sale deeds are set aside and the plaintiffs' title is declared, they are not entitled to possession. Declaration is the main relief in the circumstances pleaded. Article 58 of the Limitation Act is applicable and therefore the limitation is to be reckoned from the first date; the subsequent dates pleaded do not extend the limitation period. In the case of Khatri Hotels Private Limited v. Union Of India [(2011) 9 SCC 126.] , it is held as below. “30. While enacting Article 58 of the 1963 Act, the legislature has designedly made a departure from the language of Article 120 of the 1908 Act. The word ‘first’ has been used between the words ‘sue’ and ‘accrued’. This would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. To put it differently, successive violation of the right will not give rise to fresh cause and the suit will be liable to be dismissed if it is beyond the period of limitation counted from the day when the right to sue first accrued.

4.17. By relying on Durga Projects’ case, he submits that the cause of action claimed is completely illusory. The actual cause of action is of the year 1980, and it is the date on which - 25 - NC: 2024:KHC:35213 CRP No. 620 of 2023 the cause of action first accrued, which would have to be taken into consideration in terms of Article 58 of the Limitation Act and on that basis he submits that, if first cause of action has been arising in the year 1990, the suit filed in the year 2023 is barred by limitation.

5. Sri.Srinivas Murthy.S.P., learned counsel respondents No.1 to 3 & 6, being the plaintiff, would support the judgment passed by the trial Court and submit that the judgment is proper and correct.

5.1. His submission is that the aspect of limitation is a mixed question of law and fact, which should require a trial to be conducted, and it is only after such trial could it be ascertained if the suit is within time or not, and, therefore, the trial Court has rightly come to a conclusion that at this stage, it cannot be said that the suit is barred by limitation. On this basis, he submits that the order passed by the trial Court being - 26 - NC: 2024:KHC:35213 CRP No. 620 of 2023 proper and correct, the above petition is required to be dismissed.

6. Heard Sri. Somashekara K.M., learned counsel appearing for the petitioner and Sri. Srinivasa Murthy S.P., learned counsel appearing for respondents No.1 to 3 & 6. Perused papers.

7. Admittedly, the suit is one for partition. In the said suit, in Para 9 there is a categorical assertion made by the plaintiff that there is a sale which has occurred on 31.08.1990 as regards 6 acres 14 guntas by defendants No.6 and 7 in favour of defendant No.8. No relief in so far as this sale has been sought for in the prayer column but the fact remains that the suit has been filed for partition in respect of 6 acres 14 guntas, which is the subject matter of the registered sale deed dated 31.08.1990. A copy of the said sale deed has been produced along with the plaint. - 27 - NC: 2024:KHC:35213 CRP No. 620 of 2023

8. In view of the decision in Janardhanam Prasad’s case, it is clear that the registration of the sale deed would amount to a constructive notice on all members of the family in terms of Section 3 for the Transfer of Property Act. Thus, it cannot now lie for the plaintiff to contend that the plaintiff was not aware of the executed and registered sale deed on

31.08.1990. As held by the Hon’ble Apex Court in Deccan Paper Mills’s case and by this Court in Bhimasi Fakirappa Bijjur’s case, it is required for the plaintiff to seek for reliefs in respect of the sale deed registered in the year 1990, since without the said sale deed being set aside the question of partition being granted would not arise.

9. The plaintiff having knowledge of the execution of the sale deed in the year 1990 and not having challenged the said sale deed in terms of the above judgments which have been cited, the suit itself is not maintainable. - 28 - NC: 2024:KHC:35213 CRP No. 620 of 2023

10. Insofar as limitation is concerned, the Hon’ble Apex Court in Dahiben’s case has come to a conclusion, that if ex-facie a suit is barred by limitation, then the powers under Rule 11 of Order 7 has to be exercised.

11. The Hon’ble Apex Court in T. Arvindan's case has come to a categorical conclusion that whenever a reading of the plaint would indicate that it is manifestly, vexatious and frivolous, the Court should exercise powers under Rule 11 of Order 7 and nip the matter at the bud at the first hearing itself. The Hon’ble Apex Court has gone on to hold that a suit which is filed belatedly and is ex-facie barred by limitation, the powers under Rule 11 of Order 7 ought to be exercised. Since when the suit is barred ex-facie by the law of limitation, the question of it being a mixed question of fact and law would not arise.

12. In the present case, the sale deed having been executed in the year 1990 and the suit having been filed in the year 2023. There is a gap of nearly 33 - 29 - NC: 2024:KHC:35213 CRP No. 620 of 2023 years in filing a suit for partition and as such the same is ex-facie and hopelessly barred by limitation.

13. Similar is the effect of the decision of the Hon’ble Apex Court in Ramisetty’s case and this Court in M/s Durga project case. The trial Court has completely misconstrued itself to come to a conclusion that the aspect of limitation is a mixed question of fact and law, that the plaint cannot be rejected in all circumstances.

14. If on the face of the documents, it is clearly seen that the suit is barred by limitation which is so in the present case, in as much as the sale deed having been executed in the year 1990, the suit having been filed in the year 2023 after 33 years. There is no law which would permit such a delayed filing of any proceedings. This delayed filing of 33 years would make the suit ex-facie barred by limitation requiring the plaint to be rejected.

15. In that view of the matter, I pass the following; ORDER - 30 - NC: 2024:KHC:35213 CRP No. 620 of 2023 i. ii. The Civil Revision Petition is allowed. The order dated 18.08.2023 passed by the Addl. Senior Civil Judge & JMFC, Doddaballapura, in O.S.No.170 of 2023 dismissing the application under IA No.3 filed under Order 7 Rule 11 (a) and (d) of the Code of Civil Procedure, 1908 is set aside. iii. Consequently, IA No.3 filed under Order 7 Rule 11 (a) and (d) of the Code of Civil Procedure, 1908 is allowed, the plaint is rejected. Sd/- (SURAJ GOVINDARAJ) JUDGE List No.: 19 Sl No.: 4