Dr. Vasantha Kumar Mallar and Others v. N. Vyjayanthi Prabhu and Others

_**CRP.725/14**_ 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 15[TH] DAY OF MARCH 2022 / 24TH PHALGUNA, 1943** **CRP NO. 725 OF 2014** **AGAINST THE ORDER/JUDGMENT IN OS 52/2001 OF SUB COURT, HOSDRUG** ## **REVISION PETITIONER/S:** 1 DR.VASANTHA KUMAR MALLAR AGED 49 YEARS S/O.LATE SREEDEVI SREENIVAS MALLAR @ SAKKU BAI,RESIDING BEHIND RADHA CLINIC, PAYYANNUR. 2 BHAGYANATHA MALLAR AGED 56 YEARS 3 RAJESH MALLAR AGED 52 YEARS P2 AND 3 ARE THE CHILDREN OF SREEDEVI SREENIVASMALLAR @ SAKKU BAI, BOTH ARE R/AT MALLER'S HOUSE,P.O.KOVVAPPURAM, KUNHIMANGALAM, PAYYANNUR (VIA)KANNUR DISTRICT. 4 VITTAIDAS KAMATH AGED 58 YEARS HUSBAND OF SUHASINI KAMATH WHO IS THE DAUGHTER OF(LATE) SREEDEVI SREENIVAS MALLAR @ SAKKU BAI. 5 ANANTH KAMATH AGED 31 YEARS 6 AJITH KAMATH AGED 28 YEARS 7 AJAY KAMATH AGED 25 YEARS P5 TO P7 ARE CHILDREN OF (LATE) SUHASINI KAMATHP4 TO P7 ARE RESIDING AT THALIPADAPPU,KASARAGOD TALUK. BY ADVS. SRI.P.S.SREEDHARAN PILLAI SRI.ARJUN SREEDHAR _**CRP.725/14**_ 2 SRI.ARUN KRISHNA DHAN SRI.JOSEPH GEORGEMULLAKKARIYIL SRI.T.K.SANDEEP ## **RESPONDENT/S:** |1|N.VYJAYANTHI PRABHU| |---|---| ||AGED 51 YEARS| |2|N.GOPALAKRISHNA PRABHU DIED| |3|N.VISHWANATHA PRABHU| ||AGED 47 YEARS| |4|SUREKHA PRABHU| ||AGED 49 YEARS| |5|SUPRABHA| ||AGED 16 YEARS| |6|SUDHEER| ||AGED 14 YEARS| |7|RAJESHWARI| ||AGED 48 YEARS| |8|ARUN A.PRABHU| ||AGED 18 YEARS| |9|AMRUDHA A.PRABHU| ||AGED 16 YEARS| ||(R1 TO 3 ARE THE CHILDREN OF LATE N.KESHAVA PRABHUAND| ||RADHA BAI, R4 IS THE WIDOW AND R5 AND 6 ARECHILDREN OF| ||LATE N.PRABHAKARA PRABHU, R7 IS THEWIDOW AND R8 AND 9| ||ARE THE CHILDREN OF LATEN.ANANTHA PRABHU, R5, 6 AND 9| ||ARE MINORS REPRESENTEDBY THEIR NEXT FRIEND, MOTHER,| ||THE 7TH RESPONDENT,RAJESHWARI. ALL ARE HINDUS,| ||CULTIVATORS RESIDING ATPEROLE IN NILESHWAR VILLAGE,| ||HOSDURG TALUK,P.O.NILESHWAR).| |10|SREEDEVI SREENIVAS MALLIA SAKKU BAI DEAD| |11|MEERA BAI| _**CRP.725/14**_ 3 AGED 65 YEARS D/O.LATE RAMARAYA PRABHU, R/AT BANGRA MANJESHWARMANJESHWAR VILLAGE OF KASARAGOD TALUK, P.O.MANJESHWAR (DIED). 12 BABY BAI (DEAD) 13 SHOBHA N AGED 36 YEARS D/O.LATE N.NARAYANA PRABHU & N.SANTHA BAI,W/O.LAKSHMANA, RESIDING NEAR GROTEC I.T.IDEVAN ROAD, BALLA VILLAGE OF HOSDURG TALUK. 14 VIJAYA N AGED 28 YEARS D/O.LATE N.NARAYANA PRABHU & N.SANTHA BAIR/AT PEROLE IN NILESHWAR VILLAGE OF HOSDURGTALUK, P.O.NILESHWAR. 15 A.AMBA BAI RUKMINI AMMA (DEAD) 16 SURENDRA SHENOY (DEAD) 17 RATNA MADHAVA PAI AGED 34 YEARS 18 DEVADAS SHENOY AGED 36 YEARS (R17 AND 18 ARE THE CHILDREN OF (LATE) SAROJINI AND(LATE) SURENDRA SHENOY, BOTH THE HINDUS, CULTIVATORSR17 IS RESIDING AT "VALSALA", BEHIND TRIKKAL SHIVATEMPLE, A.V.K.NAIR ROAD, P.O.TELLICHERY, KANNUR DISTRICT. R18 IS CLOTH MERCHANT, RESIDING AT MATHAMANGALAM, P.O.KANNUR, KANNUR DISTRICT. 19 VIDYA SAGAR PRABHU N AGED 61 YEARS 20 VINOD KUMAR PRABHU DEAD 21 JANARDHANA PRABHU AGED 53 YEARS 22 VIMALA KINI AGED 56 YEARS _**CRP.725/14**_ 4 ||W/O.RAGHUNATHA KINI| |---|---| |23|VARADA PRABHU (DEAD)| |24|GANESH PRABHU| ||AGED 49 YEARS| ||(R19 TO 24 ARE THE CHILDREN OF LATE NARASIMHA| ||PRABHUR19 AND 24 ARE RESIDING AT PEROLE IN| ||NILESHWARVILLAGE OF HOSDURG TALUK, P.O.NILESHWAR,R21| ||R/AT PLOT NO.202, 2ND FLOOR, KUSHA BUILDINGS,LAV-KUSHA| ||APARTMENTS, BHAGAVATH NAGAR, BALLAL BAGH,MANGALORE,| ||P.O.MANGALORE. R22 RESIDING NEAR AYYAPPAGARAGE AND| ||KRISHNA MANDIR, KRISHNA MANDIR ROAD,HOSDURG VILLAGE OF| ||HOSDURG TALUK, P.O.KANHANGAD.| |25|N.GANESH PRABHU| ||AGED 29 YEARS| ||S/O.LATE THRIVIKRAMA PRABHU, R/AT I.O.C. PETROLBUNK,| ||NILESHWAR IN NILESHWAR VILLAGE OF HOSDURGTALUK.| |26|SHIVADASAN| ||AGED 29 YEARS| ||S/O.RAGHAVAN MASTER, R/AT PATHILA KANDATHILVEEDU IN| ||NILESHWAR IN PEROLDE VILLAGE OF HOSDURGTALUK.| |27|ANASOOYA PRABHU| ||AGED 59 YEARS| ||WIDOW OF THRIVIKRAMA PRABHU, RESIDING NEAR| ||I.O.C.PETROL BUNK, NILESHWAR IN NILESHWAR OF| ||HOSDURGTALUK.| |28|NISHA P.V.| ||AGED 25 YEARS| ||D/O.P.K.KARUNAKARAN, R/AT CHITHIRA, PEROLE| ||VILLAGE,HOSDURG TALUK.| |29|VINOD KUMAR| ||AGED 38 YEARS| ||S/O.CHANDRASEKHARAN NAIR, KIZHAKKAN KOZHUVAL,NILESHWAR| ||VILLAGE.| |30|SUDHA BAI.N| ||AGED 43 YEARS| ||D/O.GOPALAKRISHNA PRABHU, R/AT PEROLE IN| ||NILESHWARVILLAGE.| _**CRP.725/14**_ 5 31 O.T.MADHAVAN NAMBIAR (DEAD) 32 SAROJINI FALGUNAN AGED 50 YEARS D/O.PALLIKKARA KRISHNAN, RAJA ROAD, NILESHWARVILLAGE. 33 KALAPPURAYIL SARAMMA AGED 48 YEARS W/O.CYRIAC TEACHER, R/AT PADANNAKKAD, KANHANGADVILLAGE. 34 CHITHRA AGED 55 YEARS 35 SEEMA V AGED 31 YEARS 36 SHEELA.V. AGED 22 YEARS (R34 IS THE WIFE OF AND R35 AND 36 ARE CHILDRENOF (LATE) VINOD KUMAR PRABHU. ALL THE RESIDING AT83/MADHAVA MUTHALIYAR STREET, ULSOOR, MANGALORE560 008). 37 LEENA AGED 50 YEARS 38 LATHA S.MALIYA AGED 47 YEARS (R37 AND 38 ARE CHILDREN OF (LATE SREEDEVISREENIVASAN MALIAR @ SAKKU BAI, R37 IS THE W/O.RADHAKRISHNA PRABHU, R/AT VIRMALA NIVAS, AMBIKAROAD, PALLIKKUNNU, KANNUR. R38 IS THE WIFE OFSRIDHAR MALIYA, R/AT 3-12/7 RAJIV NILAYA, BEHINDB.G.S.KAVOOR, KUNJATHBAIL, MANGALORE - 5. 39 KASTHURI PRABHU N AGED 60 YEARS 40 PRADEEP PRABHU B AGED 32 YEARS 41 DILEEP PRABHU B. AGED 30 YEARS (R39 IS THE WIFE AND R40 AND 41 ARE THE CHILDRENOF _**CRP.725/14**_ 6 DECEASED VARADA PRABHU, ALL ARE RESIDING ATPEROLE IN NILESHWAR VILLAGE OF HOSDURG TALUK,P.O.NILESHWAR). 42 RAJARATHNAM, AGED 78 YEARS 43 VENUGOPAL, AGED 55 YEARS 44 SETHUMADHAVAN AGED 50 YEARS (R42 IS WIFE AND R43 AND 44 ARE CHILDREN OF (LATE)ODAYAMMADATH THAZHATHA VEETTIL MADHAVAN NAMBIARALL ARE HINDUS. AGRICULTURIST, R/AT PALAKKAD ROAD,PEROLE VILLAGE OF HOSDURG TALUK, P.O.NILESHWAR. 45 N.SHANTHA BAI D4, AGED 65 YEARS 46 N.RAMANATHA PRABHU DO. AGED 37 YEARS (R45 IS THE W/O.(LATE) N.NARAYANA PRABHU AND R46IS THE S/O.(LATE) N.NARAYANA PRABHU, BOTH ARERESIDING AT PEROLE IN NILESHWAR VILLAGE OF HOSDURGTALUK, P.O.NILESHWAR). 47 C.NARAYANAN D45 AGED 57 YEARS S/O.KUMARAN, P.W.D.CONTRACTOR, NEAR MOTHER ALEXIAENGLISH MEDIUM SCHOOL (CBSE) CHAYYOTH, NILESHWAR671 314, KINANOOR VILLAGE, HOSDURG TALUK. DHATREYA SHENOY, S/O.LATE MEERA BAI, BANGRA MANJESWAR, MANJESWAR VILLAGE, MANJESWAR P.O., KASARGODE-671 323. ADDL.48 ADDL. R48 IS IMPLEADED AS PER ORDER DATED 31.8.2021 IN I.A.NO.2 OF 2019 IN CRP.725 OF 2014. BY ADVS. SMT.NEETHU PREM SRI.G.KRISHNAKUMAR SRI.RAHUL SASI THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: _**CRP.725/14**_ 7 ## **V.G.ARUN, J.** **----------------------------------------------C.R.P.No. 725 of 2014 ----------------------------------------------Dated this the 15[th] day of March, 2022** ## **JUDGMENT** The revision petitioners are defendant Nos. 30 to 32 and 35 to 38 in O.S.No.52 of 2001 on the files of the Subordinate Judges Court, Hosdurg. The suit is filed by respondents 1 to 9, in their capacity as legal heirs of deceased N.Kesava Prabhu. According to the plaintiffs, Annappa Prabhu, father of Kesava Prabhu, had acquired the plaint schedule items and after his demise, the properties were in the joint possession of his sons, Ramaraya Prabhu, Narasimha Prabhu and Kesava Prabhu. In the year 1950, the three brothers entered into an oral agreement, whereby Ramaraya Prabhu was to be in possession and enjoyment of item No.2 and 4 to 6, Narasimha Prabhu, of item No.7 and Kesava Prabhu, item Nos. 1 to 3. In spite of the oral agreement, the properties continued to be in the joint possession and enjoyment of all three brothers. While so, Ramaraya Prabhu applied for janmam right over item Nos.1 to 6 and after his death, his son Narayana Prabhu obtained Purchase Certificate in his name. Similarly, the 8[th] defendant, wife of Narayana Prabhu, obtained Purchase _**CRP.725/14**_ 8 Certificate with respect to item No.7. According to the plaintiffs, the purchase certificates were obtained fraudulently and even otherwise, the certificate holders are possessing the properties for and on behalf of all co-owners. 2. Defendants 1 to 3, 6 and 12 filed written statement, contending that Narayana Prabhu, son of Ramaraya Prabhu had been issued with purchase certificate for item Nos. 1 to 6 by virtue of S.M proceedings Nos.864, 865 and 866 of 1976. The mother of plaintiffs 1 to 3, along with some of the plaintiffs challenged the 'Patta” before the Land Reforms Appellate Authority after ten years and ten months of issuance of the Purchase Certificate. The Appellate Authority refused to condone the delay and consequently, dismissed the appeal. Thereupon, C.R.P.Nos.2126 of 1987, 2350 of 1987 and 92 of 1988 were filed before this Court. The civil revision petitions were dismissed by a common order dated 11.10.1988. While dismissing the revision petitions it was observed that, if the contention of the petitioners is that the tenancy did not belong to Narayana Prabhu alone, that has to be decided by the civil court. It was also observed that the question whether the tenancy belonged to Narayana Prabhu alone or belong to all other members of the family, is a matter to be considered in a civil suit, if and when a suit is filed by the aggrieved party. The suit for _**CRP.725/14**_ 9 partition (O.S.No.52 of 2001) was filed twelve years after the order in the civil revision petitions. The petitioners, on being served with notice in the suit, questioned the maintainability of the suit, for reason of the relief being barred by limitation. In view of the objection, the trial court considered the issue with regard to limitation as the preliminary issue. The challenge against maintainability was repelled holding that the issue of maintainability is a mixed question of law and fact and could be answered only after adducing evidence. The finding of the trial court was upheld by this Court _vide_ order dated 11.2.2008 in C.R.P.No.113 of 2006. 3. Much later, the petitioners filed I.A.No.432 of 2014 praying for rejection of the plaint on the ground that there is no cause of action for filing the suit. The trial court rejected the application holding that the contention regarding lack of cause of action is also based on limitation, which stands answered against the petitioners. It is further held that the question whether cause of action pleaded in the suit is correct or not is a matter for evidence, to be decided after trial. Aggrieved, this civil revision petition is filed. 4. Heard Advocates Arun Krishna Dhan for the petitioners and G.Krishna Kumar for the 3rd respondent. 5. Learned counsel for the petitioners contended that the trial _**CRP.725/14**_ 10 court committed a fundamental flaw in dismissing the application filed by the petitioner under Order VII Rule 11 of CPC, by holding that the contention in the present application is also based on limitation. It is contended that the application was filed on the premise that there was no cause of action for filing the suit. For raising such contention, the petitioners had relied on Article 101 of the Limitation Act as per which a suit on judgment has to be filed within three years of the judgment. The predecessor-in-interest of the petitioners had challenged the Patta issued to Narayana Prabhu before the Land Reforms Appellate Authority. Their appeal having been dismissed, civil revision petitions were filed before the High Court. Though the civil revision petitions were dismissed, the question whether the tenancy belonged to Narayana Prabhu alone or to all the other members of the family, was left open to be considered in a civil suit, if and when such suit is filed by the aggrieved party. According to the learned counsel, the instant suit is filed based on the finding in the earlier judgment. Hence, Article 101 of the Limitation Act will squarely apply. The order in the CRP having been rendered on 11.10.1988, the suit filed on 9.8.2001 is barred by limitation. In support of the contention, learned counsel relied on the decision in _**KSEB v Chacko Pillai**_ [1982 KHC 21], _**I.T.C Limited v. DRAT**_ [(1998) 2 SCC 70], _**S.J.S Business Enterprises (P) Limited v. State of Bihar**_ [(2004) 7 SCC 166], _**Balakrishnan Nair v.**_ _**CRP.725/14**_ 11 _**Radha Amma**_ [1987 (1) KLT 195] and certain other precedents. It is contended that, since a reading of the plaint reveals that the suit is manifestly vexatious and meritless and does not disclose a clear right to sue, the trial court was bound to exercise the power under Order VII Rule 11 CPC, even if no mention is made about the order in the CRP and the prior proceedings. When clever drafting creates the illusion of a cause of action, what is required is a meaningful reading of the plaint so as to ascertain the real cause of action. 6. Learned Counsel for the 3[rd] respondent contended that the trial court had correctly understood that the attempt of the petitioners was to circumvent the earlier order rejecting the contention regarding maintainability, which was confirmed by the High Court. Therein also the question of maintainability was raised on the ground of limitation. The present application filed under Order VII Rule 11(a), seeking rejection of the plaint for non-disclosure of a cause of action is also based on the contention regarding limitation. Article 101 of the Limitation Act would apply only to a suit based on judgment. Herein, the 3[rd] respondent is seeking partition on the strength of his co-ownership right over plaint schedule properties and no reliance is being placed on any previous judgment. It is contended that ‘cause of action’ is a bundle of facts, which, taken with the law applicable to the _**CRP.725/14**_ 12 plaintiff, gives them the right to seek relief against the defendant. Here, the cause of action is the refusal on the part of the defendants to part with the co-ownership properties in their possession, despite repeated requests for partition. Reliance is placed on the decision in _**P.V. Guru Raj Reddy v. P. Neeradha Reddy**_ [(2015) 8 SCC 331] to contend that rejection of the plaint is a drastic measure and at the stage of Order VII Rule 11 the consideration should be whether the averments in the plaint _ex facie_ do not disclose a cause of action or whether the suit appears to be barred under any law. 7. Under Article 101 of the Limitation Act, 1963, the time limit for filing suit upon a judgment is three years. The policy of the legislature is not to encourage a fresh suit for the purpose of enforcing a decision in an earlier suit. Only when the decree in the earlier suit is not executable does the law confirm a right to bring a fresh suit. Herein, some of the plaintiffs had approached the Land Reforms Appellate Authority with a prayer to set aside the Patta issued in favour of the predecessor-in-interest of the petitioners. These appeals were dismissed by the appellate authority. Thereupon, civil revision petitions were filed and this Court dismissed the civil revision petitions by order dated 11.10.1988 in C.R.P.No.2126 of 1987 and connected cases. While dismissing the revision petitions this Court observed that the revision _**CRP.725/14**_ 13 petitioners’ remedy was not to file appeal against issuance of Patta but to file a civil suit raising the question whether the tenancy belonged to Narayana Prabhu alone or to all the other members of the family. Section 2(9) of the Code of Civil Procedure defines ‘judgment’ as the statement given by the Judge on the grounds of a decree or order. The order of the Land Reforms Appellate Authority and for that matter, the order passed by this Court in the civil revision petition cannot be termed as judgment for the purpose of Article 101 of the Limitation Act. 8. Yet another relevant factor is that, even without placing reliance on the order in the CRP, the petitioners are entitled to raise the contention that the tenancy belongs to all the co-owners, irrespective of the Patta issued in the name of one co-owner. If so, the present suit cannot be termed as a suit on judgment. In this context, the following paragraph in _**P.V. Guru Raj Reddy**_ (supra) assumes relevance; _**“5.** Rejection of the plaint under Order 7 Rule 11 of CPC is a drastic power conferred in the court to terminate a civil action at the threshold. The conditions precedent to the exercise of power under Order 7 Rule 11, therefore, are stringent and have been consistently held to be so by the Court. It is the averments in the plaint that have to be read as a whole to find out whether it discloses a cause of action or whether the suit is barred under any law. At the stage of exercise of power under Order 7 Rule 11, the stand of the defendants in the written statement or in the application for rejection of the plaint is wholly immaterial. It is_ _**CRP.725/14**_ 14 _only if the averments in the plaint ex facie do not disclose a cause of action or on a reading thereof the suit appears to be barred under any law the plaint can be rejected. In all other situations, the claims will have to be adjudicated in the course of the trial.”_ The Apex Court in _**State of Orissa v. Klockner and Company**_ [(1996) 8 SCC 377], has exposited clear distinction between the plea of there being no cause of action for filing the suit and the plaint not disclosing a cause of action. Order VII Rule 11 would come into play only if the plaint does not disclose a cause of action. In my considered opinion, a reading of the plaint in the instant suit discloses a cause of action. The genuineness of the cause of action cannot be decided at the Order VII Rule 11 stage. The decisions cited by the learned Counsel for the petitioners would be applicable only if the suit is one based on judgment. As the instant suit is not based on judgment, the decisions are of no help to the petitioner. Hence, I find no reason to interfere with the impugned order. In the result, the civil revision petition is dismissed. Sd/- ## **V.G.ARUN, JUDGE** _vgs_