The High Court
Case Details
- 1 - NC: 2025:KHC:25404 RFA No. 1184 of 2016 HC-KAR IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF JULY, 2025 BEFORE THE HON'BLE MS. JUSTICE JYOTI MULIMANI REGULAR FIRST APPEAL NO. 1184 OF 2016 (PAR) BETWEEN 1. SMT. VISHALAKSHI D/O SMT. KRISHNAMMA, W/O RAJENDRA, AGED ABOUT 29 YEARS, 2. SMT. USHA D/O SMT. KRISHNAMMA AND W/O SRI.VASANTHA, AGED ABOUT 26 YEARS, 3. SRI. SRINIVASAMURTHY S/O SMT. KRISHNAMMA AND NANJUNDAPPA, AGED ABOUT 43 YEARS, Digitally signed by THEJAS KUMAR N Location: HIGH COURT OF KARNATAKA ALL ARE RESIDENTS OF KOWDENAHALLI VILLAGE, DOORAVANINAGAR POST, K.R.PURAM HOBLI, BENGALURU-560 016. (BY SRI. G.B.MANJUNATHA., ADVOCATE) ...APPELLANTS AND 1. SMT. VAJRAMMA D/O LATE MUNIRAMAIAH AND KEMPAMMA, AGED ABOUT 69 YEARS, - 2 - NC: 2025:KHC:25404 RFA No. 1184 of 2016 HC-KAR
Legal Reasoning
2. SMT. KRISHNAMMA D/O LATE MUNIRAMAIAH AND KEMPAMMA, AGED ABOUT 54 YEARS, RESPONDENTS NO.1 AND 2 ARE R/AT KOWDENAHALLI VILLAGE, DOORAVANINAGAR POST, K.R.PURAM HOBLI, BENGALURU-560 016. 3. SRI. VAJRAPPA S/O LATE MUNIRAMAIAH AND KEMPAMMA, AGED ABOUT 54 YEARS, R/O N.S.PALYA, BANNERGHATTA ROAD, 3RD CROSS, ANJANEYA SWAMY TEMPLE ROAD, BENGALURU-560 076. 4 . SRI. RAJANNA S/O LATE MUNIRAMAIAH AND KEMPAMMA, AGED ABOUT 52 YEARS, R/O N.S.PALYA, BANNERGHATTA ROAD, 3RD CROSS, ANJANEYA SWAMY TEMPLE ROAD, BENGALURU-560 076. 5 . SMT. LAKSHMAMMA D/O LATE MUNIRAMAIAH AND KEMPAMMA, AGED ABOUT 50 YEARS, R/A KOWDENAHALLI VILLAGE, DOORAVANINAGAR POST, K.R.PURAM HOBLI, BENGALURU-560 016. 6 . HANUMANTHAPPA SINCE DEAD BY HIS LR’S, - 3 - NC: 2025:KHC:25404 RFA No. 1184 of 2016 HC-KAR 6(a) SMT. AMMAYYAMMA W/O LATE T.HANUMANTHAPPA, AGED ABOUT 64 YEARS, R/A NO.14, 11TH MAIN ROAD, 4TH BLOCK, JAYANAGAR, BYRASANDRA, BENGALURU-560 011. 6(b) SRI. MURALI S/O LATE T.HANUMANTHAPPA, AGED ABOUT 40 YEARS, R/A NO.437, 38TH ‘B’ MAIN ROAD, 9TH BLOCK, BENGALURU. (BY SRI.K.SRINIVASA., ADVOCATE FOR R1 TO 5 [ABSENT]; SRI. NAGESHA.B.S., ADVOCATE FOR SRI. VIJAY., ADVOCATE FOR R6(a & b) …RESPONDENTS THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF THE CODE OF CIVIL PROCEDURE. THIS REGULAR FIRST APPEAL IS LISTED FOR HEARING, THIS DAY, THE JUDGMENT WAS DELIVERED AS UNDER: ORAL JUDGMENT Sri. G. B. Manjunatha, counsel for the appellants, and Sri.Nagesha. B.S., counsel on behalf of Sri. Vijay, for respondents 6(A and B), have appeared in person. There is no representation on behalf of respondents 1 to 5, either personally or through video conferencing. As could be seen from the daily order sheet, the appeal was listed on - 4 - NC: 2025:KHC:25404 RFA No. 1184 of 2016 HC-KAR 08.07.2025; on that day, there was no representation on behalf of respondents 1 to 5. The appeal is listed today. Today also, there is no representation on behalf of respondents 1 to 5. Hence, this Court deems it proper to pass an appropriate order on the merits of the case. 2. This is an appeal from the Court of XL Addl. City Civil and Sessions Judge (CCH-41), Bengaluru. 3. For convenience's sake, the parties are referred to as per their status and rankings before the Trial Court. 4. The plaint averments are stated as under: The plaintiffs are the children of defendant No.2. Defendants 1 to 5 are children of late Sri.Muniramaiah and late Smt.Kempamma. The suit schedule property was acquired by the grandfather. They are the members of a Hindu Undivided Family, and are in joint possession and enjoyment of the suit schedule property, as there is no partition. After the death of grandfather, the grandmother of the plaintiffs, and her children, i.e., defendants 1 to 5, were in joint possession and enjoyment of the suit schedule property. It has been specifically contended - 5 - NC: 2025:KHC:25404 RFA No. 1184 of 2016 HC-KAR by the plaintiffs that their grandmother sold the property in favor of Sri.T.Hanumanthappa - husband of defendant No.6(a) and the father of defendant No.6(b) under a registered sale deed dated 04.04.1974, representing their share without their consent and legal necessity. Hence, they contended that the sale deed is null and void and not binding on them. Accordingly, they sought for following reliefs: (a) To grant a decree of partition and separate possession of 1/3rd each share out of 1/5th each share of plaintiffs 1 to 3, in the suit schedule property, by division by metes and bounds, under Order 20 Rule 18 CPC; (b) To enquire into mense profits from the date of suit till the date of realization, in respect of the suit schedule property; (c) To declare that the alleged sale deed dated 04.04.1974, vide Registered document No.135/1974-75, pages 175-177, Volume-1040, of Book No. I, executed by late Kempamma, the mother of defendants 1 to 5 and grandmother of plaintiffs 1 to 3, and Smt.Late Kempamma as natural guardian of minors representing defendants 1 to 5, in favor of late T.Hanumanthappa, S/o.Thimmaiah @ Annaiahappa, the husband of - 6 - NC: 2025:KHC:25404 RFA No. 1184 of 2016 HC-KAR Defendant No.6(a) and father of Defendant No.6(b) herein, is not binding on the plaintiffs 1 to 3. (d) (e) To award costs of this suit. To grant all the ancillary and incidental reliefs, as this Court deems fit to grant under the facts and circumstances of the case, in the interest of justice and equity. After service of the suit summons, the suit was resisted by the defendants by filing a written statement. Defendants 1 to 5 denied the plaint averments. Defendant No.6(b) filed a detailed written statement and denied the plaint averments and specifically contended that the scheduled property was sold on 04.04.1974 and the suit is barred by limitation. Among other grounds, they prayed for dismissal of the suit. Based on the above pleadings, the Trial Court framed issues as under: ISSUES 1. Whether the plaintiffs prove that the sale deed dated 4.4.1974, executed by Late Kempamma in favour of Late Hanumanthappa, is null and void and not binding upon them? - 7 - NC: 2025:KHC:25404 RFA No. 1184 of 2016 HC-KAR 2. Whether plaintiffs prove that the suit property is the joint family property of plaintiffs and defendants 1 to 5? 3. Whether the plaintiffs prove that they have got 1/3rd share out of a 1/5th share in the suit schedule property? 4. Whether the suit of the plaintiffs is barred by Limitation? 5. Whether the suit of plaintiffs is not maintainable as contended by defendants 6(a) and (b)? 6. What decree or order? The Trial Court suo-moto tried issue No.4 as a preliminary issue and dismissed the suit on the ground of limitation vide order dated 16.04.2016. Hence, the plaintiffs have filed the present appeal under Section 96 of the CPC. 5. Counsel Sri.G.B.Manjunath., for the appellants, submits that the order passed by the Trial Court on the preliminary issue (Issue No.4) is contrary to law. Next, he submits that the Trial Court has failed to take note of the fact that the issue of law may be tried as a - 8 - NC: 2025:KHC:25404 RFA No. 1184 of 2016 HC-KAR preliminary issue, if it relates to the jurisdiction of the Court. But the question of limitation is a mixed question of law and fact; it cannot be tried as a preliminary issue. A further submission is made that the Trial Court has no jurisdiction to try the issue regarding limitation as a preliminary issue. Counsel vehemently contended that to dismiss the suit on the point of limitation as a preliminary issue under Section 3 of the Limitation Act, what is required to be considered is only the plaint averments. He submitted that the plaint averments do not disclose that the suit is barred by limitation. Hence, the question of deciding the law of limitation as a preliminary issue and dismissing the suit would not arise. Lastly, he submits that viewed from any angle, the order passed by the Trial Court is untenable in law and the same is liable to be set aside. Counsel, therefore, submits that the appeal may be allowed. To substantiate the contentions, he placed reliance on the following decisions. - 9 - NC: 2025:KHC:25404 RFA No. 1184 of 2016 HC-KAR (1) BALASARIA CONSTRUCTION (P) LTD., VS. HANUMAN SEVA TRUST AND OTHERS - (2006) 5 SCC 658 (2) MALLAPPA RAMAPPA NAIK AND OTHERS VS. ITTAPPA KAMAPPA BANTI ALIAS HEGGANI AND OTHERS - 2021 (4) KCCR 3610. (3) SMT.NINGAWWA VS. SMT.BASAWWA AND OTHERS - 2020 (3) KCCR 1846 (DB). (4) JAGADISH POONJA VS. THE SOUTH CANARA HOTEL COMPLEX PRIVATE LIMITED AND OTHERS - LAWS (KAR) 2015-3-493. (5) S.K. LAKSHMINARASAPPA SINCE DECEASED BY HIS LRS VS. SRI.B. RUDRAIAH AND OTHERS - 2013 (1) KCCR 672 (DB). 6. Counsel Sri.Nagesh.B.S., for respondents 6(A & B), justifying the order of the Trial Court, submits that the Trial Court has ample powers to frame the question of limitation as a preliminary issue. He places reliance on the decision in SUKHBIRI DEVI AND OTHERS VS. UNION OF INDIA AND OTHERS - 2022 LIVE LAW (SC) 810. 7. Heard the arguments and perused the appeal papers with care. - 10 - NC: 2025:KHC:25404 RFA No. 1184 of 2016 HC-KAR 8. The short point that requires consideration is whether the order of the Trial Court requires interference. 9. The issue falls within a narrow compass and relates to the framing of a preliminary issue about limitation and dismissal of the suit as barred by time. The detailed narration of facts and contentions would not call for reiteration, except highlighting the fact that a comprehensive suit in O.S.No.7421/2012 was filed. The Trial Court framed as many as six issues, and as far as Issue No.4 is concerned, the same was about the issue of limitation. Suffice it to note that only two issues can be decided as preliminary issues, namely, (i) an issue relating to jurisdiction, (ii) an issue relating to the bar of suit created by any law for the time being in force. The law is well settled by the Apex Court in MAJOR S.S.KHANNA VS BRIG. F.J.DILLON reported in AIR 1964 SC 497 that no mixed question of law and fact can be tried as a preliminary issue. The jurisdiction to try issues of law apart from the issues of fact may be exercised only where, in the opinion of the Court the whole suit may be disposed of on the issues of law alone, but the Code of Civil - 11 - NC: 2025:KHC:25404 RFA No. 1184 of 2016 HC-KAR Procedure confers no jurisdiction upon the Court to try a suit on mixed issues of law and fact as preliminary issues. Normally, all issues in the suit should be tried by the Court; not to do so, especially when the decision of issues even on law depends upon the decision of issues of fact, would result in a lop-sided trial of the suit. In the present case, the plaintiffs filed a suit seeking the relief of partition and separate possession; consequently, they have also prayed to declare that the alleged sale deed dated 04.04.1974 is not binding on them. This is not a case of a bar to suit created by any law. The Trial Court has framed an issue about limitation, and it is necessary to emphasize that the issue of limitation is an issue of mixed question of law and fact. There is a need for evidence to be let in to determine whether the suit is barred by limitation. The approach of the Trial Court in that regard is erroneous and an instance of short-circuiting of the suit. When there is an issue regarding limitation, the same is a triable issue, and the suit cannot be dismissed at the threshold. The Trial Court has erroneously proceeded with the matter and dismissed the suit. The Trial Court has overlooked this aspect of the matter. The Trail Court has failed to have regard to relevant - 12 - NC: 2025:KHC:25404 RFA No. 1184 of 2016 HC-KAR consideration and disregarded relevant matters. Therefore, the order is liable to be set-aside. Counsel for the respective parties placed reliance on several decisions, but I do not think the law is in doubt. Each decision turns on its facts. The present case is also tested in light of the aforesaid decisions. 10. The Order dated 16.04.2016 passed by the Court of XL Addl. City Civil and Sessions Judge, Bengaluru (CCH-41) on preliminary issue No.4 in O.S.No.7421/2012 is set aside. The suit is restored to the Registry. The Trial Court is directed to consider the issue of limitation along with other issues. The suit is of the year 2012, hence the Trial Court is directed to dispose of the suit as expeditiously as possible. 11. Resultantly, the Regular First Appeal is allowed. Sd/- (JYOTI MULIMANI) JUDGE MRP List No.: 1 Sl No.: 15