MARIYAMMA Vs. N V SHINIVASA MURTHY

JUDGEMENT

(1.) THE appellants-defendants have presented this appeal praying for setting aside the judgment and decree passed by the Second Additional district Judge, Bangalore Rural Distnct, Bangalore in R. A. No. 15 of 1996, dated 28-2-1998.

(2.) THE plaintiffs (respondents 1 to 3) filed the suit for a declaration that they are the owners of the suit lands and for permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit lands by them. Plaintiffs filed the suit on the averments that the suit properties are their ancestral properties and their father late N. Venkatachalaiah in order to clear the family debts and for purposes of improving the land borrowed a sum of Rs. 2,000/-from one Doddaappaiah alias Munishamappa and executed a registered sale deed dated 5-5-1953 in his favour as security. There was an agreement to repay the above sum with interest thereon at 6% per annum and to return the above registered sale deed after discharge of the entire amount. Subsequent to the execution of the sale deed their father continued in possession of the suit lands and after his death the plaintiffs are in possession of the suit lands and are personally cultivating the lands. They were also paying the kandayam in respect of the schedule lands. On 30-7-1963 Munishamappa executed a receipt dated 30-7-1963 in favour of first plaintiff and his elder brother venkatadasappa for all the amounts received by him in respect of the loan transaction and promised to execute the registered sale deed in favour of the plaintiff in respect of the suit lands. In the meanwhile munishamappa died. The entire balance of the amount due to munishamappa was paid through Venkatappa Gowda and a receipt obtained in that behalf from 1st defendant. After the discharge of the entire sum, the original sale deed dated 5-5-1953 executed by plaintiffs father Venkatachalaiah in favour of Munishamappa was returned to the first plaintiff. Neither Munishamappa nor defendants 1 to 8 who are his legal heirs exercised the right of ownership of the schedule properties at any time. The cause of action for the suit arose on and from 24-8-1994 on which date the Assistant Commissioner, Doddaballapur sub-division passed order in R. A. No. 78 of 1989-90 and in the first week of July, 1995 when defendants attempted to interfere with plaintiffs' possession and enjoyment of the suit lands.

(3.) ON notice of the suit being served on the defendants, the defendants put in their appearance and filed LA. Nos. 3 to 6 under order 7, Rule 11 read with Section 151 of the CPC praying for rejection of the suit as not maintainable. The Trial Court allowed the interim appeals filed by the defendants and rejected the plaint under Order 7, rule 11 of the CPC on the ground that there was no cause of action and the cause of action as mentioned in the plaint is an illusory one created for the purpose of filing the suit.