RAJASHEKHAR Vs. KESARI D/O GURUSIDDAYYA RABAKAVIMATH

JUDGEMENT

(1.) This petition is filed by the first defendant in O.S. No.632 of 2012 on the file of the III Additional Civil Judge & JMFC, Hubballi (for short, 'the Civil Court'). The petitioner-first defendant is aggrieved by the Civil Court's order dated 19th January 2019 rejecting his application under Order VII Rule 11 of the Code of Civil Procedure.

(2.) The learned counsel for the petitioner-first defendant, the learned counsel for the first respondentplaintiff and the learned High Court Government Pleader for the third respondent are heard in the matter for final disposal with their consent.

(3.) It is submitted in unison by the learned counsel for the parties that the first respondent has filed the suit in O.S. No.632 of 2012 as the owner of the property bearing CTS Nos.1106 and 1107 situate at Anchatageri Oni, Hubbali for declaration that she, as the owner of such property, has a right to use and enjoy a common passage and a Well in the property bearing CTS No.1108 of Anchatageri Oni, Hubbali. The first respondent has sought for declaration of such right and for mandatory injunction to the petitioner to remove encroachment which is described as "illegal construction" and to facilitate her use of such passage and Well. The petitioner has filed his written statement denying the plaint averments. During the pendency of the suit, the plaintiff has executed a gift deed dated 20.04.2015 transferring the immoveable property in CTS Nos.1106 and 1107 of Anchatageri Oni, Hubballi, in favour of her daughter. Thereafter, the petitioner has filed an application under Order VII Rule 11 of the CPC for rejection of the plaint contending that upon transfer of the property vide the gift deed dated 20th April 2015 in favour of the daughter, the plaintiff has lost the cause of action, and because the cause of action for the suit is lost, the plaint is liable to be rejected under Order VII Rule 11 of CPC. This application has not found favour with the Civil Court and therefore, by the impugned order, the Civil Court has rejected the application.