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IN THE HIGH COURT OF KARNATAKA, BENGALURU

DATED THIS THE 25TH DAY OF MARCH 2015

PRESENT

THE HON'BLE MR. JUSTICE N. KUMAR

AND

THE HON'BLE MR. JUSTICE B. SREENIVASE GOWDA

R.F.A. No. 1612/2014 BETWEEN: 1. D N PRAVEEN

S/O LATE NAGARAJ AGED ABOUT 33 YEARS

2. D N NAVEEN KUMAR S/O LATE NAGARAJ AGED ABOUT 37 YEARS

3. D N CHITRA W/O T P DEVARAJ R/AT NO. 23, 17TH MAIN ROAD, SRINAGAR BANGALORE-560050.

4. YASHODA

W/O LATE N NAGARAJ AGED ABOUT 58 YEARS APPELLANTS 1 TO 4 ARE R/AT NO. 3, 6TH CROSS, 13TH MAIN, SRINAGAR BANGALORE-560050

... APPELLANTS (BY SRI M. SUBRAMANYA JOIS, SR. COUNSEL FOR SRI P H VIRUPAKSHAIAH, ADV.)

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AND 1. N BASAVARAJ

S/O V NARASIMHAIAH AGED ABOUT 56 YEARS R/AT NO. 123, III MAIN, NAGENDRA BLOCK, BANASHANKARI III STAGE BANGALORE-560050

2. M/S ARUNACHALAM PROPERTY

CONSULTANTS AND PROMOTER PVT LTD HAVING ITS OFFICE AT 201, ROYAN CORNER 1 & 2 LALBAGH MISSION ROAD JUNCTION K H ROAD, BANGALORE-560027 REPRESENTED BY ITS CHAIRMAN R ARUNACHALAM AGED ABOUT 60 YEARS S/O LATE RANGASWAMY MUDALIAR R/AT NO. 275, RAJARAJESHWARINAGAR BANASHANKARI 3RD STAGE (NEAR BEML COMPLEX) BANGALORE-560098

3. S S A KHADER S/O SULTAN MOHAMMED ROWTHAR AGED ABOUT 68 YEARS NO.E-32, MANISH COMPLEX CONVENT ROAD BANGALORE-560025

4. SIVAKUMAR AGARWAL S/O KIRORIMAL AGARWAL AGED ABOUT 51 YEARS R/A NO. 32, CONVENT ROAD BANGALORE-560025

5. H P VENKATARAYAPPA

S/O C PILLAPPA AGED ABOUT 68 YEARS R/A NO. 52, 2ND CROSS T P VENUGOPAL LAYOUT

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R T NAGAR BANGALORE-560032

6. M/S UDAYA ASSOCIATE

A PARTNERSHIP FIRM HAVING ITS OFFICE AT NO. 29 WHITE HOUSE, 3RD FLOOR ST MARKS ROAD BANGALORE-560001 REPRESENTED BY ITS PARNTER SRI ANURAG JAIN

7. KALPESH

S/O SHAMSUNDAR AGED ABOUT 36 YEARS R/A NO. 91/33, ANUGRAHA 14TH MAIN, 23RD "B" CROSS JAYANAGAR 3RD BLOCK BANGALORE-560001

8. B S KESHAVA MURTHY

AGED ABOUT 49 YEARS R/A NO.9, 5TH CROSS SRIDHARA GOUDD VIDYA PETTA POST KENGERI BANGLAORE-560060

9. A V RAVISHANKAR

S/O LATE A K VISHWESHWARAIAH AGED ABOUT 32 YEARS R/AT NO. 18 WATER TANK ROAD GOATTIGERE, BEML 3RD STAGE RAJARAJESHWARAI NAGAR, BANGALORE-560093

10. SMT URMILA J PATEL

W/O JAYANTILAL J PATEL AGED ABOUT 45 YEARS R/AT NO. 1388, 4TH A CROSS, 9TH MAIN, RPC LAYOUT VIJAYANAGAR BANGALORE-560040

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11. SMT PRIYANKA P PATEL W/O PURSHOTAM J PATEL AGED ABOUT 37 YEARS R/AT NO. 1388, 4TH A CROSS, 9TH MAIN, RPC LAYOUT, VIJAYANAGAR, BANGALORE-560040

12. SMT CHANDRIKA H PATEL

W/O HEMANT J PATEL AGED ABOUT 29 YEARS, R/AT NO. 1388, 4TH A CROSS, 9TH MAIN, RPC LAYOUT, VIJAYANAGAR, BANGALORE-560040

13. DINESH R PATEL

S/O BHIMAJI M PATEL AGE MAJOR R/AT NO. 2913, 14TH MAIN RPC LAYOUT, ATTIGUPPE BANGALORE-560040

14. HARILAL B PATEL

S/O BHIMJI M PATEL AGED MAJOR R/A 2913, 14TH MAIN RPC LAYOUT, ATTIGUPPE BANGALORE-560040

15. NAVEEN R PATEL

S/O RAVI H PATEL AGED ABOUT 35 YEARS R/A NO. 2914, 124TH MAIN, RPC LAYOUT, ATTIGUPPE BANGALORE-560040

16. DILIP R PATEL

S/O RAVI H PATEL AGED ABOUT 35 YEARS R/A NO. 2914, 124TH MAIN, RPC LAYOUT, ATTIGUPPE BANGALORE-560040

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17. S N MUNIRATHNAM BABU S/O S NAGARAJ SETTY AGED ABOUT 31 YEARS R/A 315, SRI LAKSHMI NILAYA 3RD CROSS, CHIKKAMARANAHALLI MATHIKERE BANGALORE-560054

18. S S GAJENDRA

S/O S L SATHYANARAYANA SETTY AGED ABOUT 49 YEARS R/A NO. 16, H B SAMAJA LINK ROAD, GANDHI BAZAAR, BASAVANAGUDI BANGALORE-560004

19. SMT YASHODAMMA D W/O LATE K DURAVASALU NAIDU AGED ABOUT 58 YEARS R/A 65, SAIKRUPA LAYOUT KOMMAGHATTA ROAD NEAR KENGERI SATELLITE CLUB KENGERI, BANGALORE-560060

20. KUPENDRA S SHIVAPURAM

S/O S L SATHYANARAYANA SETTY AGED ABOUT 42 YEARS R/A 16, H B SAMAJA LINK ROAD GANDHI BAZAAR, BASAVANAGUDI BANGALORE-560004

21. VEERESH S M

S/O MAHARUDRAPPA AGED ABOUT 31 YEARS R/A 54, GOKULA NILAYA 12TH CORSS, MTS LAYOUT K S TOWN BANGALORE-560060

22. SHANKARAPPA KABUR

S/O MAHADEVAPPA KABUR AGED ABOUT 31 YEARS R/A 551, 6TH MAIN, 6TH CROSS

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NEAR KALIKAMBA TEMPLE, H S TOWN BANGALORE-560060

23. SMT S VASANTHA

W/O SHASHIDHAR D AGED ABOUT 31 YEARS R/A 1787, 23RD CROSS M C LAYOUT GOVINDRAJANAGAR BANGALORE-560079

24. VALLERU SUBBAIAHNAIDU

S/O SESHAIAH NAIDU AGED ABOUT 70 YEARS C/O SRI RAM BABU NO. 20, CHANDRA NIVAS 3RD MAIN ROAD, DOMLUR LAYOUT BANGALORE-560071

25. BHEEMA SHANKAR CHOUDARI

S/O NAGAPPA AGED ABOUT 32 YEARS NO. 11, 4TH CROSS OPP HARINIVAS APARTMENT M M ROAD, BYATARAYANAPURA MYSORE ROAD BANGALORE-26

26. R RAMAKRISHNAIAH S/O RANGASHAMAIAH AGED ABOUT 34 YEARS NO. 10, 7TH CROSS, KAMESWARA LAYOUT, KOMMAGATTE ROAD KENGERI UPANAGAR BANGALORE-560060

27. MAGANLAL R PATEL S/O LATE RAMJI PATEL AGED ABOUT 60 YEARS R/A PRAGATTI WOOD INDUSTRIES GOTTIGERE BANNERGHATTA MAIN ROAD BANGALORE-560083

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28. PALAKALANU VENKATA REDDY

S/O P PEDDA VENKATA REDDY AGED ABOUT 62 YEARS MIDDELA VILLAGE, KASAINAINA MANDAL, KADAPA DISTRICT-516001 ANDHRA PRADESH

29. SMT B BHAGYAJYOTHI W/O BASAVARAJ B C AGED ABOUT 38 YEARS R/A 451, SREE SAI SADGURU NILAYA, 5TH MAIN, 6TH CROSS, K S TOWN BANGALORE-560060

30. MANJUNATH A

S/O A KRISHNA RAO AGED ABOUT 43 YEARS FLAT NO. 18, UMA APARTMENTS BALAJI COLONY, TIRUPATI-517502 ANDHRA PRADESH

31. SMT VIDYA GANESH W/O GANESHKUMAR AGED ABOUT 45 YEARS R/A 317/, KAVYASHREE 2ND A MAIN, MUTHYALANAGAR MATHIKERE POST BANGALORE-560054

32. B S SATHYACHANDAN

S/O SRINIVAS NAIDU AGED ABOUT 36 YEARS R/A 91/33, ANUGRAHA, 23RD B CROSS, 14TH MAIN JAYANAGAR 3RD BLOCK (E) BANGALORE-560011

33. SMT G SARVAMANGALA W/O R C SADASHIVAIAH AGED ABOUT 62 YEARS

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R/A 626, 3RD MAIN ROAD KENGERI SATELLITE TOWN BANGALORE-560060

34. SMT SARVAMANGALAMMA

W/O LATE G M MAHIMANNA AGED ABOUT 62 YEARS R/A BAGUR, HOSADURGA TALUK CHITRADURGA DISTRICT-577527

35. NARAHARI N

S/O M N NARAYANA AGED ABOUT 37 YEARS R/A NO. 1116, 42ND CROSS KUMARASWAMY LAYOUT 1ST STAGE BANGALORE-560078

36. AMBADAS S KARANE

S/O SADASHIV KARANE AGED ABOUT 33 YEARS R/A 62/2, 1ST D MAIN, 19TH CROSS, NEAR SMART GENIUS PUBLIC SCHOOL MTS LAYOUT, K S TOWN BANGALORE-560060

37. SRIDHAR P S/O PANDURANGA H AGED ABOUT 38 YEARS R/A 361, 1ST A MAIN ROAD 5TH CROSS, SBBHBCS LAYOUT NAGADEVANAHALLI JNANABHARATHI POST BANGALORE-560056

38. RAMESH

S/O SHIVANNA AGED ABOUT 48 YEARS R/A 881, 2ND CROSS 1ST MAIN, BEML LAYOUT RAJARAJESHWARI NAGAR BANGALORE-560098

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39. SHAMBULINGA M C S/O CHANDRAIAH AGED ABOUT 33 YEARS R/A 193, D 1ST A MAIN, 8TH CROSS, KENGERI SATELLITE TOWN BANGALORE-560060

40. SMT H D RAJESHWARI

W/O A M MAHESHA AGED ABOUT 47 YEARS R/A 106, 2ND MAIN, 7TH CROSS KENGERI SATELLITE TOWN BANGALORE-560060

41. RANJITH KUMAR

S/O POTHAI RAJ AGED ABOUT 36 YEARS R/A 1781, 23RD CROSS M C LAYOUT GOVINDARAJANAGAR BANGALORE-560079

42. M V RAMAJUJA RAO

S/O LATE M GOVINDA RAO AND M RAGHAVENDRA MANI KUMAR AGED ABOUT 63 YEARS R/A 177, SAI KRUPA BADAVANE APP, KENGERI SATELLITE TOWN KOMMAGATTA MAIN ROAD BANGALORE-560060

43. GURUNATH SHIDAGUNDI

S/O RUDRAPPA SHIDUGUNDI AGED ABOUT 31 YEARS R/A 31, 18TH CROSS, M T S ALYOUT KENGERI SATELLITE TOWN BANGALORE-560060

44. NAGARJUNA REDDY

S/O MALLA REDDY AGED ABOUT 59 YEARS R/A HIMAKUNTLA (VILLAGE POST)

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SHIMADRI PURAM MANDALAM KADAPA DISTRICT-516001 AP

45. GANGADAS D PATEL

S/O LATE DEVIJI H PATEL AGED ABOUT 55 YEARS PROP SRI GANESH SAW MILL KOLLEGAL ROAD, MALAVALLI MANDYA DISTRICT-571430

46. SMT P ANURADHA

W/O RAVINDRA REDDY AGED ABOUT 43 YEARS R/A 1/393, BEHIND PT QUARTERS 1ST ROAD EXTENSION, DWARAKA NAGAR ANANTPUR-515001, A.P.

47. SATHYANARAYANA PRASAD

S/O P PARAMESHWARA BHAT AGED ABOUT 50 YEARS R/A 1098, 1ST FLOOR, 12TH MAIN 2ND A CROSS, RAGHAVENDRA BLOCK SRINAGAR, BANGALORE-560050

48. K M MOHAN NAIDU

S/O LATE GURUPPA NAIDU AGED ABOUT 53 YEARS R/A 62, 1ST FLOOR, 3RD MAIN GAURAVA NAGAR, J P NAGAR 7TH PHASE, BANGALORE-560078

49. SMT HEMA R

W/O NAGEGOWDA AND NAGEGOWDA R AGED ABOUT 31 YEARS S/O PAREGOWDA R/A 22/67, 2ND FLOOR, 1ST MAIN MARUTHI EXTENSION BANGALORE-560021

50. H UMAVATHI

W/O K S ANAND

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AGED ABOUT 50 YEARS R/A 7, 7TH CROSS, CANARA BANK COLONY NAGARABHAVI ROAD BANGALORE-560072

51. NARAYANA MURTHY D

S/O K DURUVASULU AGED ABOUT 40 YEARS R/A 64, SAIKRUPA LAYOUT KOMMAGUTTA ROAD NEAR KENGERI SATELLITE CLUB KENGERI, BANGALORE-560060

52. PRASAD REDDY

S/O NARAYANA REDDY AGEDA BOUT 48 YEARS FLAT NO. 19-12-140 KESHAVAYANAGUNTA TIRUPATHI CHITOOR DISTRICT ANDHRA PRADESH-517501

53. K H PATEL

S/O LATE HIRJI PATEL AGED ABOUT 58 YEARS PROP: MAHALAKSHMI SAW MILL NAGAMANGALA ROAD MANDYA DISTRICT-571401

54. HARILAL M PATEL

S/O MAJAGI PATEL AGED ABOUT 59 YEARS MAHESH TIMBER MART R/A 18/4, MYSORE ROAD OPP INDIAN OIL PETROL PUMP NAYANDAHALLI BANGLAORE-39

55. RAMESH M RAVANI

S/O MANJI K RAVANI AGED ABOUT 43 YEARS R/A 193/1, N S PALYA

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BANNERGHATTA MAIN ROAD BANGALORE-560076

56. KOLLU SUDHAKAR REDDY

S/O K KRISHNA REDDY AGED ABOUT 44 YEARS DINDUVALIPALLI (VIILLAGE) VAGELLA (POST) K V PALLI MANDAL CHITOOR DISTRICT-517001, A.P.

57. JAYANTILAL M CHAVAN S/O MULGI CHAVAN AGED ABOUT 43 YEARS R/A 57, POONAM TIMBERS UNKAL TIMBER YARD HUBLI-580020

58. SMT B S LATHA

AGED ABOUT 46 YEARS W/O V HARIHARAN AND ANANDA H AGED ABOUT 28 YEARS S/O V HARIHARAN R/A NO. 44 SAI KRUPA LAYOUT ARUNACHALAM PROPERTIES OPP K H B APARTMENTS NEAR SATELLITE CLUB, KENGERI SATELLITE TOWN BANGALORE-560060

59. B S SHIVAPRAKASH S/O B S SATHYANARAYANA AGED ABOUT 53 YEARS NO. 27/1, 1ST A CROSS MOUNT JOY ROAD, CORNER BUILDING HANUMANTHANAGAR BANGALORE-560019

60. M MOHAN S/O S MADHUSUDAN

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AGED ABOUT 35 YEARS REPRESETNED BY GPA HOLDER S MADHUSUDAN, R/A NO. 9A, 5TH CROSS VINAYAKANAGAR, B SK ISTAGE BANGALORE-560050

61. L RAMACHANDRA NAIDU

AGED ABOUT 44 YEARS R/A 6/1/216 VARADHANAGAR TIRUPATHI, CHITTOOR DISTRICT-517501 ANDHRA PRADESH

62. SMT SHYLAJA S W/O HULAPPA M ALAGUR AGED ABOUT 42 YEARS R/A NO.5, MUNIYAPPA COMPOUND KAMMAGATHA ROAD KENGERI UPANAGAR BANGALORE-560060

63. SURESH TULLURI

REPRESENTED BY GPA HOLDER SRINIVASULU NAIDU AGED ABOUT 68 YEARS S/O LATE S C NAIDU R/A FLAT NO.981 JALVAYU TOWERS NGEF LAYOUT, NEAR SADANANDA NAGAR INDIRANAGAR POST BANGALORE-560038

64. SMT PERI NAGAPADMASRI W/O PERI VENKATA SURYA AGE ABOUT 42 YEARS SATHYA SUBRAMANYA SHARMA R/A 16, 2ND FLOOR, I MAIN ROAD 4TH CROSS ROAD, ITTAMADU, BSK 3RD STAGE BANGALORE-560085.

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65. AJAY BABU

S/O KOTAIAH AGED ABOUT 39 YEARS R/A 37-1-419/16, RAMNNAGAR II LINE ONGOLE-523001 PRAKASHAM DISTRICT, AP REPRESENTED BY GPA HOLDER GATTINENI KOTAIAH AGED ABOUT 56 YEARS

66. S R BALASUBRAMNIAM S/O LATE S N SHASTRI AGED ABOUT 66 YEARS R/A FLAT NO.405, SAI MADURA ENCLAVE 9TH CROSS, IST PHASE, J P NAGR BANGALORE-560078

67. B P RAGHUNATH NAIDU S/O PAPAIAH AGED ABOUT 44 YEARS R/A 20, 2ND CROSS, 2ND MAIN NEAR SRINIVASA KALYANA MANTAPA BEGUR ROAD, HONGASANDRA BANGALORE-560056

68. SMT G M BHARATHI

W/O LATE V K GIRISH AGED ABOUT 33 YEARS R/A NAGARAJ BUILDING RAGHAVENDRA SAW MILL ROAD GAYATHRI EXTENSION CHENNARAYAPATNA-573116

69. SMT M CHAYAMMA

W/O VIRUPAKSHAPPA AGED ABOUT 32 YEARS R/A 1816, 3RD CROSS, F BLOCK DATTAGALLI 3RD STGE, KANAKADASANAGAR MYSORE-570001

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70. CHIKKANNA NAYAKA S/O CHIKKANAYAKA AGED ABOUT 41 YEARS R/A NAGARATHALLI VILLAGE RAYANAKERE POST JAYAPURA HOBLI MYSORE TALUK-570008

71. SMT SHEELAVATHI K

W/O M KYATHA SETTY AGED ABOUT 32 YEARS R/A 311, BRINDAVANA 7TH MAIN, 3RD CROSS, ALLANAHALLY LAYOUT MYSORE-570011

72. MANJUANTH S/O RAMANNA AGED ABOUT 34 YEARS R/A NO.1046, DEVAPARTHIVA RAOD C H MOHALLA, CHAMARAJAPURAM MYSORE-570001

73. VINJAMOORI SRIDHAR

S/O V TATACHARYULU AGED ABOUT 47 YEARS R/A S-3, SWAGATA PRASHANTH NIVAS 8TH CROSS, NO.11, PRASHANTH NAGAR BANGALORE-560079

74. NITHYANANDA

S/O DATHRAYA @ DATHATHREYA GAYATHUNDE AGED ABOUT 51 YEARS R/A NAGARATHALLI VILLAGE RAYANAKERE POST JAYAPURA HOBLI MYSORE TALUK-570008

75. GAYATHRI N G W/O NITHYANANDA AGED ABOUT 44 YEARS

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R/A NO.17, 3RD MAIN KUMARAVYASA ROAD SRINGAR BANGALORE 560050.

76. SOMASHEKAR

S/O SHIVANNA AGED ABOUT 28 YEARS R/A NO.9/1, 4TH CROSS, 80 FEET ROAD MARUTHINAGAR, CHANDRA LAYOUT BANGALORE-560040

77. SUJATHA T W/O LAKSHMANA GOWDA AGED ABOUT 38 YEARS R/A NO.955, 3RD CROSS, 7TH MAIN ROAD, BSK II STAGE RAGHAVENDRA BLOCK SRINAGAR BANGALORE-560050.

78. K R NIRAMALA

W/O K RAMESH BABU AGED ABOUT 50 YEARS R/A HOUSE NO.5/1, 16TH CROSS, 4TH TEMPLE STREET, MALLESWARAM BANGALORE-560003

79. SUMATHI S TALLAM W/O SUNIL TALLAM AGED ABOUT 47 YEARS R/A HOUSE NO.29, SUNESHA 3RD CROSS ROAD, BANK OF BARODA COLONY, NANJAPPA COMPOUND, J P NAGAR, VII PHASE, PUTTENAHALLI, BANGALORE-560078.

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80. K P NAGENDRA PRASAD S/O K S PRASAD AGED ABOUT 23 YEARS R/A NO.96, NAGENDRA SADANA KOMMAGHATTA, SULIKERE POST KENGERI HOBLI BANGALORE-60

81. P MAHESH

S/O E PUTTASWAMY, AGED ABOUT 41 YEARS, R/A NO.881, 2ND CROSS,

IST MAIN, 5TH STAGE, BEML LAYOUT, RAJARAJESHWARINAGAR BANGALORE-560098

82. SWARNA B REDDY W/O JAGANNADGA B REDDY AGED ABOUT 47 YEARS C/O HEMA SUNDAR REDDY NO.26, VIVEKANANDA COLONY 2ND MAIN, 3RD CROSS, KANKAPURA ROAD SARAKKI BANGALORE-560078

83. N CHANDRASHEKAR S/O P S NINGEGOWDA AGED ABOUT 56 YERS R/A NO.328, 66TH CROSS 5TH BLOCK, RAJAJINAGAR BANGALORE-560010

84. P R RADHAKRISHNA

S/O LATE M S RANGASWAMY AGED ABOUT 62 YEARS R/A NO.1265/B, 5TH CROSS ASHOKNAGAR MANDYA-571401

85. G SUKANYA

W/O MANDA REDDY AGED ABOUT 69 YEARS

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R/A NO.301, GIRISHIKARA ENCLAVE HILL TOP COLONY YENAMANZIL HYDERABAD-500082

86. G THULASI DEVI

W/O G C S REDDY AGED ABOUT 61 YEARS R/A AGADUR VILLAGE PULIVENDLA TALUK KADAPA DISTRICT ANDHRA PRADESH-516390

87. G NARASHIMHA REDDY

S/O G ANKI REDDY AGED ABOUT 52 YEARS R/A AGADUR VILLAGE PULIVENDLA TALUK KADAPA DISTRICT ANDHRA PRADESH-516390

88. G MANDA REDDY

S/O G THIPPA REDDY AGED ABOUT 73 YEARS R/A AGADUR VILLAGE PULIVENDLA TALUK KADAPA DISTRICT ANDHRA PRADESH-516390

89. G VENKATESWARA RAO

S/O GUNGARAJU AGED ABOUT 43 YEARS R/A NO.337, 4TH BLOCK, HBR LAYOUT BANGALORE-560043.

... RESPONDENTS (BY SRI J M RAJANNA SETTY, ADV. FOR C/R5, 7, 9, 10-22, 24-28, 30, 32-35, 37-40, 42-59, 61, 62, 64, 65, 67-77, 79, 81, 82, 84 SRI RAJU BHAT, ADV. FOR R83)

THIS RFA IS FILED U/SEC.96, O-XLI, RULE-1 OF CPC, AGAINST THE ORDER DATED: 17.10.2014 PASSED ON I.A.NO.20

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IN O.S.395/2013 ON THE FILE OF THE X-ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU, ALLOWING THE I.A.NO.20 FILED U/O-VII, RULE-11(d) OF CPC AND REJECTING PLAINT.

THIS RFA COMING ON FOR ADMISSION THIS DAY,

N. KUMAR J DELIVERED THE FOLLOWING:

JUDGMENT

This is the plaintiffs’ regular appeal challenging the

judgment and decree of the Trial Court dismissing the suit of the

plaintiffs while allowing the application filed under Order VI Rule

11(d) of CPC.

2. Plaintiffs have filed a suit for partition and separate

possession of their legitimate share in the plaint schedule

property. They have also sought for cancellation of several sale

deeds executed in respect of the schedule property to which they

are not parties and they have also sought for other consequential

reliefs.

3. The subject matter of the suit is a land bearing Sy.

No.94 measuring 10 acres and 8 guntas of karab land situated at

Kengeri Village, Kengeri Hobli, Bangalore South Taluk. After

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service of notice, defendants entered their appearance and filed

written statement. Thereafter, they have filed an application under

Order VI Rule 11(d) of CPC requesting the Court to reject the

plaint for want of cause of action. In the affidavit filed in support

of the application, they have set out entire prayer column in the

plaint. Then, they contend as the plaintiffs have not filed a suit

within three years from the date of attaining majority, the suit is

barred by limitation and hence, liable to be dismissed under Order

VI Rule 11(d) of CPC. Further, it is stated that the plaintiffs being

the sons and daughter-in-law of Nagaraju, who is the son of

Narasimhaiah - original owner of the property, when he sold the

property during his lifetime they have no locus standi to maintain

the suit. Plaintiffs are seeking a declaration that the suit schedule

property is their joint family property but it is the self acquired

property of Narasimhaiah and therefore, they are not entitled to

challenge the sale deeds. Suit ought to have been valued under

Section 35(1) of the Karnataka Court Fees and Suits Valuation

Act and therefore, the suit is liable to be rejected for non-payment

of proper Court fee. They are also seeking a declaration in respect

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of power of attorney executed on 11.09.1996 seventeen years

thereafter and therefore, the same is barred by time. For the

aforesaid reasons, they wanted the plaint to be rejected.

Objections have been filed by the plaintiffs.

4. The Trial Court on consideration of the rival

contentions held, the suit is barred by time. The plaintiffs have no

right in the self acquired property of their grand father and

therefore, there is no cause of action. The suit has not been filed

within three years from the date of attaining majority and

therefore, the suit for cancellation of the sale deeds are barred by

time. While coming to such a conclusion, it has relied upon

several judgments relied upon by the parties. Aggrieved by the

said order, the present appeal is filed.

5. Learned Senior Counsel appearing for the plaintiffs

contend, it is not in dispute that Narasimhaiah acquired the

schedule property under a registered sale deed dated 30.01.1963.

It is stated that he executed a power of attorney on 11.09.1996.

He died on 22.07.2001. His son Nagaraju died on 26.02.2004 and

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the sale deeds which are sought to be annulled are all executed on

16.11.2004 and subsequently, after the death of Narasimhaiah and

Nagaraju. Even if the power of attorney is executed by

Narasimhaiah, on his death on 22.07.2001 it comes to an end.

Therefore, all the alienations made subsequent to his death on the

basis of power of attorney are nullity in law and therefore, the

plaintiffs being the grand children and daughter-in-law of the said

Narasimhaiah are entitled to the schedule property, which is the

subject matter of the said alienations. Therefore, they were

entitled to maintain a suit for partition in respect of their half

share. As the suit filed is one for partition and as no period of

limitation is prescribed under law, the findings of the Trial Court

that the suit is barred by time is illegal and therefore, he submits

the Trial Court was not justified in rejecting the plaint.

6. Per contra, learned counsel for the defendants

submits the power of attorney executed on 11.09.1996 is a

registered power of attorney. In pursuance of the registered

power of attorney, alienations have been made. The plaintiffs

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have not moved their little finger to challenge any of these

alienations. In fact, as per the averments in the plaint, it is clear

that Income Tax Authorities initiated proceedings in the year

2009 in respect of these alienations and immediately the plaintiffs

have not taken any steps. They waited till 2013 and have filed the

present suit. It is their case that in pursuance of the power of

attorney a layout was formed. Sale deeds are executed. Purchasers

have put up construction and they are in settled possession and

the suit filed in the year 2013 is only to harass these bonafide

purchasers and therefore, the Trial Court was justified in rejecting

the plaint. In support of his contentions, several judgments of the

Apex Court have been relied upon by him.

7. In the light of the aforesaid facts and rival

contentions, the point that arises for consideration is:

“Whether the Trial court was justified in rejecting

the plaint under Order VI Rule 11(d) of CPC?”

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8. The law on the point is well settled, that on an

application filed under Order VI Rule 11(a),(b),(c) and (d) of CPC,

what the Court has to look into is the averments in the plaint. It

is precluded from looking into what is stated in the written

statement. It is also precluded from looking into the correctness

of the allegations made in the plaint. If by reading the averments

in the plaint, it is demonstrated there is no cause of action in the

suit and the court fee paid is not sufficient or the deficit court fee

ordered to be paid is not paid and the suit is barred by any law,

the plaint can be rejected.

9. In this background by looking at the averments in

the plaint, plaintiffs have categorically stated in the plaint that the

land was purchased by the grand father of plaintiffs 1 and 2 under

a registered sale deed on 30.01.1963. They have also referred to

the registered power of attorney executed by Narasimhaiah and

his son Nagaraju on 11.09.1996. In fact, they are seeking for its

cancellation. Their grievance is the said Narasimhaiah died on

22.07.2001. His son Nagaraju died on 26.02.2004. The alienations

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are made subsequent to the death on 16.11.2004 and

subsequently. Even if the power of attorney executed is valid and

legal, with the death of the executant, the power of attorney

comes to an end. The power of attorney holder could not have

alienated the property after the death of the executant of the

power of attorney. Therefore, the said alienations made are nonest

and void. They cannot take away the right of the plaintiffs in the

schedule property. Therefore, they have sought for partition and

separate possession of their half share and also sought for

cancellation of the sale deeds. They also sought for cancellation of

the power of attorney.

10. Therefore, the question to be gone into by the Court

is, whether the alienations made in pursuance of the power of

attorney are valid or not. It is a matter to be decided after trial.

Similarly, whether the power of attorney executed on 11.09.1996

is to be cancelled or not, is also a matter to be gone into after trial.

When it is alleged that the alienations are made by the power of

attorney holder fraudulently by misrepresentation on the basis of

26

power of attorney, which was not valid, there is cause of action in

the suit.

11. Insofar as the limitation is concerned, it is a mixed

question of law and fact. Section 3 of the Limitation Act provides,

subject to the provisions contained in sections 4 to 24 (inclusive),

every suit instituted, appeal preferred and application made after

the prescribed period shall be dismissed, although limitation has

not been set up as a defence. Therefore, it is not mere calculating

the period of limitation as prescribed under the law. The Court

also has to find out whether the suit can be saved under any of

the provisions from sections 4 to 24. For these reasons, it is held

limitation is a mixed question of law and fact. It cannot be

decided at the stage of rejecting the plaint. In fact, barred by any

law provided under Order VI Rule 11 (d) does not include the law

of limitation. In that view of the matter, the Court below

exceeded its limits and did not appreciate the facts set out in the

plaint properly. Therefore, the order requires to be set aside.

27

12. Hence, we pass the following:

ORDER

Appeal is allowed. Impugned judgment and decree passed

by the Trial Court is hereby set aside. Application filed by the

defendants under Order VI Rule 11(d) of CPC is dismissed. The

Trial Court shall frame issues and after recording evidence shall

dispose of the suit in accordance with law. The Trial Court shall

proceed to decide the case on merits without in any manner being

influenced by the observations made in the impugned order or by

the observations made by this Court.

Parties to bear their own costs.

Sd/- JUDGE

Sd/- JUDGE

VP