MANJUNATH C. M. Vs. RASHMI N.

JUDGEMENT

(1.) The present appeal is filed challenging the judgment and decree dtd. 12/1/2026 in Original Suit No.4389 of 2025 passed by the XI Additional City Civil and Sessions Judge, Bengaluru City (CCH-8) and consequently, to set- aside the orders passed on I.A. Nos.3 and 4 filed by defendant Nos.1 and 7, respectively, under Order VII, Rule 11 read with Sec. 151 of the Code of Civil Procedure, 1908 (for short, 'CPC') and to restore the plaint and continue the trial proceedings in the suit. By impugned judgment, the suit filed for partition and separate possession of the suit schedule property was dismissed by the trial Court holding that, there is no cause of action for the suit and the suit is barred by law of limitation.

(2.) For the sake of convenience, the parties herein are referred to as per their rankings before the trial Court. The appellants are plaintiff Nos.1 and 2 and the respondents are defendants Nos.1 to 7.

(3.) Briefly, the facts of the case are that, the plaintiffs and defendant Nos.2 to 4 and 6 are the joint owners in possession of the property bearing Municipal Site No.66/7, Khaneshumari Old No.73/173/2, Present No.73/66-7, PID No.96-239-66/7, morefully described in the Schedule (hereinafter referred to as 'suit schedule property'). The suit schedule property is the ancestral property of the plaintiffs and defendant Nos.2 to 4 and 6 as referred to in Jubane Vibhaga Patra dtd. 9/2/1980, as such, the plaintiffs and defendant Nos.2 to 4 and 6 formed Hindu Undivided Joint Family. On 20/11/1999, Sri C.M. Munikrishna (defendant No.3) got registered release deed in his favour from other family members. On 22/9/2010, Sri C.M. Munikrishna (defendant No.3) along with his wife, Smt. Gowramma (defendant No.2) and their children, namely, Sri Mohan Kumar (defendant No.4), Anjanamurthy (defendant No.6) and Sri Manjunath (plaintiff No.1) entered into registered partition deed. In terms of the said partition deed, the suit schedule property was allotted towards the share of Smt. Gowramma (defendant No.2). On 21/12/2012, 3/5/2019 and 19/3/2021, Smt. Gowramma mortgaged the suit schedule property in favour of defendant No.7 by executing registered equitable mortgage by deposit of title deeds. Plaintiffs and defendant Nos.2 to 4 and 6 had affixed their signature as consenting witnesses to the mortgage deeds. On 16/5/2025, Smt. Gowramma sold the suit schedule property in favour of Smt. Rashmi N. (defendant No.1) under registered sale deed. On the same day, defendant No.1 mortgaged the suit schedule property in favour of The Bangalore City Co-operative Bank (defendant No.7) by executing registered equitable mortgage by deposit of title deeds. Later, defendant No.1 committed default in payment of loan installments. Hence, defendant No.7 proceeded under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short 'SARFAESI Act') and took possession of the suit schedule property. Hence, the plaintiffs have brought the suit for partition and separate possession contending that the suit schedule property is the joint family property of themselves and defendant Nos.2 to 4 and 6. However, in order to knock off the suit schedule property, the defendants created a registered partition deed and the plaintiffs had no knowledge of the said transactions. In fact, plaintiff No.1 affixed his signature on the documents on assurance of other family members that, in order to raise loan on the suit schedule property, all the defendants obtained his consent and created a registered deed. Thus, said partition is not binding on the plaintiffs. Further, the defendants have created sale deed in favour of defendant No.1 and on the same day, she mortgaged the suit schedule property to defendant No.7. However, the plaintiffs are not aware of these transactions. Those transactions stated to be name sake and created documents. Hence, the plaintiffs orally requested the defendants to make partition in the suit schedule property, i.e. in the last week of May-2025. Thus, the cause of action arose to suit on 21/6/2025, when the plaintiffs approached the defendants and the defendants denied to make partition. Hence, the plaintiffs brought the suit for partition.