IN THE COURT OF THE CIVIL JUDGE (JD) AT XXXXXXXXXXX OS XXXXXXX/2010
PLAINTIFFS VS DEFENDANTS XXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXX
Written Statement filed under order VIII Rule 1 of CPC by Defendant 1,3,5:-
1. At the out-set, the suit filed by the Plaintiffs is prima facie not m aintainable either in law or on the facts of the case and the same is liable to be dismissed in-limine.
2. It is humbly submitted that, The para 1 of the plaint is not in dispute.
3. It is humbly submitted that, The averments’ avermen ts’ made in para 2 of t he plaint is incomplete as to daughters of Venkatanarasegowda, apart from alleged three sons there were three daughters Kenchamma, Vambamma, Venkatamma all are dead but as per plaint averments plaintiff has to disclose true facts and take steps to implead all necessary parties tallying with plaint averments.
4. It is humbly submitted that, The averments’ made in para 2 of the plaint is incomplete as to when exactly the daughters of Thimmaiah died and who are all class one heirs of the daughters o f Thimmaiah present as on the date of death of daughters and who are all now not alive, and who are all entitled t o share that rights as per plaint averments. Without disclosing all such material particulars the instant suit is not maintainable. The plaintiffs claims that they are the only legal r epresentatives of deceased Thimmaiah is disputed. Except this all other averments regarding relationship in para 2 are not disputed.
5. It is humbly submitted that, The averments’ in para 3 is also incomplete incomplete as to when exactly the alleged persons were dead and what type of succession went in the family. The date of death is important under Hindu Law to open mode of succession among Hindus. Without disclosing the material facts in the pleadings there will be no facts constituting the cause of act ion and hence plaint is barred
under Order VII Rule 11(a). Rest of the averment’s in para 3 of the plaint as to re lationship is not disputed.
6. It is humbly submitted that, Regar ding the averment’s in para 4 of of the plaint the relationship pleaded is not in dispute, however party in plaintiff position is duty bound to disclose all material particulars before the court and stand on their own pleadings rather than any weakness on ot her side. The starting point of when the alleged persons are dead is very important to decide mode o f succession among Hindus.
7. It is humbly submitted that, the averments in para 5 of the plaint that plaint schedule pr operty belongs to Venkatanarasaiah s/o Thimappa of Arkere village, kasaba hobli, kunigal taluk, tumkur district is again incomplete. The item number 1 of suit schedule property is still standing in the name of Venkatanarasaiah s/o Thimappa and possession got to him through Paternal succession (Pitrarjitha) is the entry in revenue records. Without pleading such material particulars, plaintiff wants to hide many things before court. In that respect plaint schedule properties are not held by venkatanarasaiah as self acquired property it is his ancestral property. The exact date of death of Venkatanarasaiah is needed to decide whether succession started to his heirs or survivors as prevailing law as on the date of death of venkatanarasaiah. Without pleading such better particulars suit is not maintainable.
8. It is humbly submitted that, The plaintiff is liable to strictly prove with cogent evidence when ex actly the date of death of alleged ancestors. It is false to say that after the death of venkatanarasaiah suit schedule properties have been inherited by the three sons of him. And its is also false to say that after death of above three sons their heirs have inherited the schedule properties. The suit schedule properties are held as Hindu Mitakshara Co-parcenary property and survivors of the family inherited as co-parceners before 17-06-1956 and late r succession as per the Hindu Succession Act.
9. It is humbly submitted that, The plaintiff have not disclosed when marriage of daughters of the family took place and when their date of birth to decide whether they have the right to property by birth. Without disclosing such material particulars suit is not maintainable, since it does not disclose exact cause of action.
10. It is humbly submitted that, The averments in para 5 of the plaint that 2nd plaintiff and mother o f plaintiff no.1 are sisters is not disputed. But they are neither co-parceners nor co-sharers in respect of suit schedule property. The plaintiff’s have to exactly plead in what w ay they want to succeed to suits schedule property. To plead to come under women right to property the exact e xact date of birth and exact
date of marriage is necessary since both 2nd plaintiff and mother of plaintiff no.1 are born before 17 -061956 and also married before such date. Such married daughters neither come in as co-parceners of Hindu Coparcenary nor they are survivors of male Hindu co-parcener. For deciding all such facts plaintiff is liable to prove with co-gent co- gent eveidence. There is no division between V enkatanarasaiah’s decendents is disputed already there is oral partition and each is enjoying their own share only due to ignorance khatha’s still stand in ancesters. But physically every real sharer enjoying their share through unity in diversity. The oral partition is reduce to memorandum of writing after many days. Without disclosing such identity of family affairs and without showing that the plaintiff’s are being ousted from any joint possession before 1956 itself, the plaintiff seeks relief based on misleading, incomplete, hidden facts. This is abuse of process of court.
11. It is humbly submitted that, The plaint averments in para 6 of the plaint that joint nucleus in the form of suit schedule properties passed on to present defendant no.1 to 3, 5 and 6 is not disputed. The persons included in creation claim and maintenance of such jo int nucleus hold it as their exclusive property from long standing ousting all others from before 1956. The averments of plaint itself discloses that plaintiffs were ousted with possession and plaint shall be valued by the market value of property. The suit is improperly valued by plaintiffs. The other averments as to katha revenue entry in revenue record is not disputed.
12. It is humbly submitted that, The plaint averments in para 7 of the plaint once again incomplete as to date of birth, marriage and deat h of Akkamma and it is material to note that Akkamma died in 1950 itself. Even if succession is claimed on her rights it is long after 60 years which is barred by law of limitation. Without disclosing exact dates plaintiff wants to surpass law of limitation and non-disclosure of exact cause of ac tion. Which is abuse of process of court.
13. It is humbly submitted that, The plaint averments in para 7 of the plaint is not c lear as to what are all the properties of 1st plaintiff’s mother as on the date of death of her. Since 2nd plaintiff has already left her father as survivor as per the law existed as on the date of death of her father. The succession opened as coparcener can only be claimed after severing the status of j oint family. Here plaintiff’s are are not coparceners, they are pleading as intestate successors of Thimmaiah. When such succession opened is not pleaded, but ouster of possession is pleaded, the ouster is from the date of death de ath of Thimmaiah accepting the custom prevailed over among t he family. Now such succession cannot be claimed after waiver of it from these decades, The succession opened as intestate shall be claimed within law of limitation and not beyond it. The plaintiff’s plaint is barred by law of limitation.
14. It is humbly submitted that, The averments in the plaint para 7 that plaintiffs demanded defendants two months back to effect partition between all the legal heirs of Venkatanarasaiah by metes and bounds is absolute false. There is no demand, notice, or communication of such demand by plaintiff has ever reached this defendants and plaintiff’s are liable to strictly prove such averments. It is false to say that such demand is being made and it is false to say that such demand is being dragged, it is false to say that such demand demand is being refused. The plaintiff’s are not having any legitimate share in all the suit schedule properties. Even if they had any intestate successor rights they have abandoned and waived their rights after having accepted defendants long possession and ouster of them. Now without disclosing exact cause and delay in claiming their any available rights they are estopped under law of limitation and hence suit is liable to be dismissed.
15. It is humbly submitted that, After t he death of Thimmaiah no member of his family is there as coparcener in the family. Neither Thimmaiah claimed his share in the family nor any of his heirs claimed their share in the notional share of Thimmaiah. After abandoning their claim through their conduct now they are claiming share after lapse of time, which is not maintainable as per law.
16. It is humbly submitted that, It is falsely pleaded in plaint para 7 that defendants are canvassing in the locality to alienate the suit schedule properties to defraud the rights of plaintiffs. It is false to say that plaintiffs convened the panchayath in the presence of elders, well wishers and relatives and demanded their legitimate share in the suit schedule properties. These false averments are made to c reate a fake cause of action, plaintiffs are put to strict proof of the same. There is no demand made by plaintiffs before instituting the suit and hence suit is bad for lack of cause of action. The demand made in the plaint does not amount to cause of action and hence suit is liable to be dismissed.
17. It is humbly submitted that, The defendants have given incomplete Genological Tree, that even created for the instant suit. The Genology submitted is fully disputed and necessary parties for plaint averments are not included in plaint. The women heirs and t heir all class-1 heirs are not included in the plaint and hence suit is bad for non- joinder non- joinder of necessary parties that is all the heirs/ Lr’s/ Co-parceners/ Co-parceners/ intestate successors/ as per the date of birth, marriage, and death of women heirs.
18. It is humbly submitted that, The documents produced by plaintiff neither discloses plaintiff’s claims and rights, the true disclosure of their rights is only through Exact date of birth, marriage and death of parties by reliable and cogent evidentiary documents, mer e production of genology created without sufficient information and Revenue records the rights of plaintiff’s are not clear.
19. The plaintiff’s had the alternative to file declaratory suit for their claim within 12 years of t heir ouster from their rights or from the date of arousal of intestate succession. They being failed to do so not entitled to file suit for partition proclaiming themselves as c oparceners. Coparcenary is the creation of law and not parties. The plaintiff’s cannot claim coparcenary rights since they are not coparceners by birth in the family of Venkatanarasaiah. No man/woman can be co-parcener by birth in two families.
20. It is humbly submitted that, it is false to say that cause of action arose two months back when plaintiff demanded their legitimate share as disclosed in para 8 of the plaint. It is liable to strict proof. It is false to say that defendants are c anvassing in the locality to alienate the suit schedule properties to defraud the rights of plaintiffs. These false averments are made to create a fake cause of action, plaintiffs are put to strict proof of the same. There is no demand made by plaintiffs before instituting the suit and hence suit is bad for lack of cause of action. The demand made in t he plaint does not amount to cause of action and hence suit is liable to be dismissed for non-disclosure of exact cause o f action. The plaintiff’s claim relates back to intestate succession for Thimmaiah, without pleading exact nature of Thimmaiah’s family, when he died? When his wife died? When his daughters died? Who are survived as Lr’s to whom? Who succeeded on o n the date of death? The claim of plaintiff’s cannot be considered at such belated stage with many hidden material particulars. The exact case of plaintiff is not pleaded with material particulars and either suit shall be dismissed as not m aintainable or plaint shall be rejected for the same.
21. The suit is not valued properly as per pleadings taken in plaint. Plaint declares ouster of possession of plaintiffs in para 6 of the plaint and hence suit shall have to be valued properly under Sec tion 35(1) rather than Section 35(2).
22. It is humbly submitted that, plaintiff’s have abondened their right to intestate succession for more than 12 years and hence suit is barred by law of limitation. Suit is barred for non joinder of necessary parties. Suit is barred for non disclosure of e xact cause of action. Suit is barred for improper valuation. Suit is barred for non disclosure of mater ial facts. The Plaintiffs are are guilty of “suppressio vari and suggesstio falsi”. Hence, the suit is liable to be dismissed on this ground alone.
23. It is humbly submitted that, Without prejudice to the above contentions, this Defendants humbly submits, that, the Plaintiffs have deliberately made certain false averments to suit their case against this Defendants. This Defendants further submits, that, the averments which are not specifically denied or traversed hereby are deemed to be denied as false and Plaintiffs will be put to the strict proof of the same.
24. It is humbly submitted that, This Defendants craves for kind indulgence of this Hon’ble Court and this Hon’ble Court may be pleased to allow this Defe ndant to raise additional grounds, if any, at the time o f hearing the suit.
WHEREFORE, in the above facts and circumstances of the case, it is most respectfully prayed, that, this Hon’ble Court may be pleased to dismiss the suit filed by the Plaintiffs against this Defendants along with exemplary costs in the interest o f justice and equity.
ADVOCATE FOR 1st ,3rd , 5th DEFENDANT 1st ,3rd , 5th DEFENDANT
VERIFICATION
I XXXXXXXXXXXXXXX ., the 3rd Defendant herein above, do hereby verify and declare that, what is stated above is true and correct to the best of my knowledge, information and belief Iam also verifying on behalf of other defendants.
Place: XXXXXXXXXXXX Date: XXXXXXXXXXXXXXXXXXXX
3rd DEFENDANT
IN THE COURT OF THE CIVIL JUDGE (JD) AT KUNIGAL XXXXXXXXXXXXXX
PLAINTIFFS VS DEFENDANTS XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXX
VERIFYING AFFIDAVIT
I XXXXXXXXXXXXXs/o Late XXXXXXXXXXXXaged about 36 years Resident of XXXXXXXXXXXXXXXX XXXXXXXXX and 3rd defendant herein above solemnly affirm and state on oath as follows
1. I submit that, I am the 3rd defendant in the above case. I am well conversant with t he facts of the case. Hence, I am swearing to the contents of this t his affidavit. I also swear on behalf of 1st and 5th defendants.
2. I submit that, today I along with others have filed written statement in the above Suit. The suit is one for Partition and separate possession of filed by plaintiff’s against this Defendants. Further, I submit, that, the averments made in the W/s may kindly be read as part and parcel of this affidavit in order to avoid repetition of facts.
3. I submit that, the averments made in para 1 to 24 of the accompanying W/s are true and correct to the best of my knowledge, information and belief.
4. I submit that, the Documents Doc uments will be produced after plaintiff’s necessarily plead necessary material particulars in their incomplete pleadings.
I, the deponent herein, do hereby declare that this is our name, signature and that the contents of this affidavit are true and correct to the best of our knowledge, information and belief.
PLACE : XXXXXXXXXXX DATED : D E P O N E N T
Identified by me,
Advocate,
IN THE COURT OF THE CIVIL JUDGE (JD) AT KUNIGAL XXXXXXXXXXXXX
PLAINTIFFS VS DEFENDANTS XXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXX
OBJECTIONS TO INTERIM APPLICATION OF PLAINTIFFS.:-
1. The IA is not maintainable either on fac ts or on law.
2. The facts sworned in the affidavit are false and misleading without coming with clean hands plaintiff want’s to convey false set of allegations before the Hon’ble court.
3. The averments in affidavit are similar to t hat of plaint averments and the w/s contentions of facts may be read as part and parcel of this objections to IA.
4. The instant suit is one of partition and recovery of possession, the cause of action is different, herein the rights of plaintiff is under test. There is no test in regard to rights of defendant, there is no r elief sought by defendant. There will be no adjudication of rights of de fendant. In such a situation plaintiff cannot seek interim order without production of proper facts and documents as to his right.
5. The plaintiff will be unabled to prove their lawfull right if they file separate suit for intestate succession, hence they are taking bac kdoors in the form of coparcenary and joint family to do things which they cannot by law do in front doors.
6. With an illegal intention applicant wants to take some interim order from the court by not disclosing prime facts and law applicable to the c ase. Plaintiff’s want to deprive true owner from t he inherent rights annexed with ownership of the land. This cannot be allowed in t he interest of Justice.
7. There is no prima facie case or balance of convenience in favour of P laintiffs or applicant. No injury will be caused to Plaintiffs or applicant. If the IA is allowed, taking advantage of court order Plaintiffs or applicant may prolong the case, by black mailing this Defendants and may claim wrongfull damages by showing concocted causes and fake violation of interim orders.
8. It is settled principle of law that when there is no piece of document shown by the plaintiff to show the prima facie case of their legal rights and also the alleged cause of action for their filing of instant I.A and suit the question of considering the I.A does not arise. It is the applicants bounden duty to show prima facie case to obtain any inter im relief.
9. Injunction against the suit suit schedule property c annot be granted as stated under section 41(i) of the Specific Relief act when looked into the conduct of plaintiff by suppression of prime facts.
10. In support of written statement averments and objections to IA this defendants rely on t he decision of Supreme court to show balance of convenience on defendant side. In 2006(5) SCC 2 82. Seema Arshad
Zaheer & Ors. VS Municipal Corporation of Gre ater Mumbai & Ors. Exercise of discretion by granting a temporary injunction when there is ’no mate rial’, or refusing to grant a temporary injunction by ignoring the relevant documents produced, are instances of action which are termed as arbitrary, capricious or perverse. When we refer to acting on ’no material’ (similar to ’no evidence’), we refer not only to cases where there are total dearth of material, but also to cases where there is no relevant material or where the material, taken as a whole, is not reasonably capable of supporting the exercise of discretion. In this case, there was ’no material’ to make out a prima facie case and therefore, the High Court in its appellate jurisdiction, was justified in interfering in the matte r and vacating the temporary injunction granted by the trial court.
11. In support of written statement averments and objections to IA this defendants rely on t he decision of Supreme court to show balance of convenience on defendant side. In Wander Ltd. v. Antox India P. Ltd. [1990 Supp SCC 727] in regard to grant of temporary injunction and interference by appellate courts in regard to such discretionary order : "Usually, the prayer for grant o f an interlocutory injunction is at a stage when the existence of the legal right asserted asserte d by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. The court, at this stage, acts on certain well settled principles of administration of this form o f interlocutory remedy which is both temporary and discretionary. The object of the interlocutory injunction, it is stated : "... is to protect the plaintiff against injury by violation of his rights for which he could not adequately be compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such prot ection must be weighed against the corre sponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he c ould not be adequately compensated. The court must weigh one need against another and determine where the 'balance of convenience' lies."
12. In support of written statement averments and objections to IA this defendants re ly on the decision of Supreme court to show balance of convenience on defendant side. In 2007(6) SCC 1 20 -> He who comes into equity must come with clean hands. A court of equity refuses relief to a plaintiff whose conduct in regard to t he subject matter of the litigation has been improper. This was formerly expressed by the maxim "he who has committed iniquity shall not have equity", and relief was refused where a transaction was based on the plaintiff’s fraud or misrepresentation, or where where the plaintiff sought to enforce a security improperly obtained, or wher e he claimed a remedy for a breach of trust which he had himself procured and whereby he had obtained money. Later it was said that the plaintiff in equity must come with perfect propriety of conduct, or with clean hands.
13. In support of written statement averments and objections to IA this defendants rely on t he decision of Supreme court to show balance of convenience on defendant side. In 2006 (5) SCC 282 -> The discretion of the court is exercised to grant a temporary injunction only when the following requirements are made out by the t he plaintiff : (i) existence of a prima facie c ase as pleaded, necessitating protection of plaintiff’s rights by issue of a temporary injunction; (ii) (i i) when the need for protection of plaintiff’s rights is compared with or weighed against the need for protection of defendant’s rights or likely infringement of defendant’s rights, the balance of convenience tilting in favour of plaintiff; and (iii) clear possibility of irreparable injury being caused to plaintiff if the t emporary injunction is not granted. In addition, temporary injunction being an equitable relief, t he discretion to grant such relief will be exercised only when the plaintiff’s conduct is free from blame and he approaches the court with clean hands.
14. In support of written statement averments and objections to IA this defendants rely on t he decision of Supreme court to show balance of convenience on defendant side. In 2008(11) SCC 1 -> While considering an application for grant of injunction, the court will not only take into consideration the basic elements in relation thereto, viz., e xistence of a prima facie case, balance of convenience and irreparable injury, it must also take into c onsideration the conduct of the parties. Grant of injunction is an equitable relief. A person who had ke pt quiet for a long time and allowed another t o deal with the properties exclusively, ordinarily would not be entitled to an or der of injunction. The court will not interfere only because the property is a very valuable one.
15. In support of written statement averments and objections to IA this defendants rely on t he decision of Supreme court to show balance of convenience on defendant side. In 2008 (10) SCC 97 -> It is trite that the rule of pleadings postulate that a plaint must contain material facts. When the plaint read as a whole does not disclose material facts giving rise t o a cause of action which can be entertained by a civil court, it may be rejected in terms of Order 7, Rule 11 of the Code. Similarly, a plea of bar to jurisdiction of a civil court has to be considered having regard to the co ntentions raised in the plaint.
16. In support of written statement averments and objections to IA this defendants rely on the decision of Supreme court to show balance of convenience on defendant side. In Chandra Shashi v. Anil Kumar Verma, (1995) 1 SC C 421, held that nobody should be permitted to indulge in immoral acts like perjury, prevarication and motivated falsehoods in the judicial proceedings and if someone does so, it must be dealt with appropriately. In case the re course to a false plea is taken with an oblique motive, it would definitely hinder, hamper or impede the flow of justice and prevent the courts from performing their legal duties.
17. In support of written statement averments and objections to IA this defendants rely on t he decision of Supreme court to show balance of convenience on defendant side. In Dr. Buddhi Kota Subbarao v. K . Parasaran & Ors. AIR 1996 SC 2687, Supreme Court has observed as under:- “No litigant has a right to unlimited drought on the Court time and public money in o rder to get his affairs settled settle d in the manner he wishes. However, access to justice should not be misused as a licence to file misconceived and frivolous petitions.”
18. In support of written statement averments and objections to IA this defendants rely on t he decision of Supreme court to show balance of convenience on defendant side. In Anil Kumar Jain v. Maya Jain (2009) 10 SCC 415, Supreme Court held that an order of waiving the statutory requirements can be passed only by Supreme Court in exerc ise of its powers under Article 142 of the Constitution. The said power is not vested with any other court.
19. The importance of pleadings and non existence of material pleadings in the above case, is a major ground of objection in the above suit when main suit itself is not maintainable, the IA is also not maintainable. In this regard In support of written st atement averments and objections to IA this defendants rely on the decision of Supreme court to show balance of convenience on defendant side. In THE SUPREME COURT OF INDIA Decision in a case of election matter, in Kalyan Singh Chouhan vs C.P.Joshi Decided on 24 January, 2011, Justice P. SATHASIVAM & Justice Dr. B.S. CHAUHAN observed following principles of case law on “Importance of pleadings” as also applicable to c ivil court proceedings is discussed with following citations:- This Court in Ram Sarup Gupta (dead) by L.Rs. v. Bishun Narain Inter College & Ors., AIR 1987 SC 1242 held as under: "It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled t hat no party should be permitted to t ravel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object o bject and purpose of pleading is to enable the adversary party to know the case it has to meet........ mee t........ In such a case it is the duty of the court to ascertain the substance of the pleadings to determine the question." This Court in Bachhaj Nahar v. Nilima Mandal & Ors. , AIR 2009 S C 1103, held as under: "The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. Its object is also to ensure that each side is fully alive to the questions that are likely to be raised or c onsidered so that they may have an opportunity of placing the relevant evidence appropriate to the issues before the court for its consideration. The object of issues is to identify from the pleadings the questions or points required to be decided by the c ourts so as to enable parties to let le t in evidence thereon. When the facts necessary to make out a particular claim, or to seek a particular relief, are not found in the plaint, the court cannot focus the atte ntion of the parties, or its own attention on that claim or relief, by framing an appropriate issue........ issue........ Thus it is said that no amount of evidence, on a plea that is not put forward in the pleadings, can be looked into to grant any relief. The jurisdiction to grant r elief in a civil suit necessarily depends on the pleadings, prayer, court fee paid, evidence let in, etc."
20. In this regard I n support of written statement averments and objections to IA this defendants rely on the decision of Supreme court to show balance of convenience on defendant side. I n Ritesh Tewari & Anr. vs State Of U.P.& Ors. (2010) JUSTICE P Sathasivam, B Chauhan “It is settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It wo uld be beyond the competence of any authority to validate such an order. It would be ironical to permit a person to rely upon a law, in violation of which he has obtained the benefits.”
21. In this regard I n support of written statement averments and objections to IA this defendants rely on the decision of Supreme court to show balance of convenience on defendant side. In AIR 2006 SC 1786, The suit land was gifted to the m other of appellant-plaintiff by `S'. Suit by widow of `S' resulted in compromise to the effect that widow of `S' would enjoy the suit property during her life time and after her death, the same could be inherited by mother of appellant. Thereafter widow of `S' adopted respondent-defendant and executed a gift deed in his favour. The adoption and gift deed were challenged by filing a suit which was decreed. W idow of `S' died in 1967. The decree was challenged in Letters Patent Appeal, which was dismissed in 1981. Mother of appellant filed the present suit in 1982 for recovery of possession of the suit land. It was dismissed as barred by limitation by trial court. The judgment of trial court was upset in first appeal. In second appeal, High Court held that the suit was barred by limitation as the same was not filed within 12 years from the date of death of widow of `S'. Hence the present appeal. Held that “High Court has rightly held that the suit should have been filed by the plaintiff within 12 years of the death of the Hindu female, and the same having not been filed within 12 years was barred by limitation. Article 65 of the Limitation act, 1963 presc ribes the period of limitation for possession of immovable property or any interest based on t itle where the suit is by a Hindu or Muslim entitled to possession of immovable property on the death of a Hindu or Muslim female. Article 65(b) in express terms provides that "the possession of the defendant shall be deemed to become adverse only when female dies". The limitation prescribed is 12 years beginning from the date when the possession of the defendant becomes adverse to the plaintiff. Article itself provides that the possession of the defendant shall be deemed to become a dverse only when the female dies. It cannot be said that limitation does not run from the date on which the Hindu female died and that it would start running from some other date. ………………… It cannot be said that in view of t he pending litigation relating to the adoption and gift deed executed in favour of the defandant, in the Letters Patent Appeal till 1981, the appellant- plaintiff could not have filed the present suit. In the litigation which was pending before the High Court the plaintiff had not claimed possession of the suit land. High Court has rightly pointed out that even if the plaintiff had sought amendment of the pleadings in the pending matter and claimed decree for possession, the legal position would have been different. He having not done so, he should have filed the suit for possession of the suit lands within 12 years of the death, which he failed to do. ………………………………..Limitation Act, 1963-Article 1963-Article 65-Suit for possession of immovable property on death of Hindu female-Limitation for-Suit filed after 12 years fr om the death of the female-Held: female -Held: Such
suit if not filed within 12 years of the death of the Hindu female, would be barred by limitation-In such case possession of the defendant shall be deemed to become adverse only from the date when the f emale emale dies and not from some other date…………………… “
22. In this regard I n support of written statement averments and objections to IA this defendants rely on the decision of Supreme court to show balance of convenience on defendant side. In Subbanna vs Kamaiah Kamaiah ILR 1988 KAR 786 Karnataka High court observed: “In a suit for partition of the property of a Hindu joint family, necessary parties to the suit are : (a) heads of all branches ; (b) females who are entitled to a share on partition ; (c) purchaser of the portion of the plaintiff's share in a case where the plaintiff himself is a coparcener; (d) if the plaintiff himself is a purchaser from a coparcener, his alienor and (e) in case the devolution of interest in Mithakshara coparcenary property has taken place as per Section 6 of the Hindu Succession Act, all those persons on whom the interest in the property has devolved. In a case where the devolution of interest in the property of a male Hindu has taken place in accordance with Section 8 of the Hindu Succession Act, all those heirs on whom the interest in the property has devolved upon.”
23. In this regard I n support of written statement averments and objections to IA this defendants rely on the decision of Supreme court to show balance of convenience on defendant side. In Mahadeorao Sukaji Shivankar Vs. Ramaratan Bapu & Ors (2004) 7 SCC 181"material facts" are facts upon which the plaintiff's cause of action or defendant's defence depends. Broadly speaking, all primary or basic facts which are necessary either to prove the cause of action by the plaintiff or defence by the defendant are "material facts". Material facts are facts which, if established, would give the petitioner the relief asked for. But again, what could be said to be material facts would depend upon the facts of each case and no rule of universal application can be laid down. In this regard In support of written statement averments and objections to IA this defendants r ely on the decision of Supreme court to show balance of convenience on defendant side. In Harkirat Singh v. Amrinder Singh (2005) 13 SCC 511, Supreme Court again reiterated the distinction between `material facts' and `material particulars' and observed as under: "51. A distinction between "material facts" and "particulars", however, m ust not be overlooked. "Material facts" are primary or basic facts which must be pleaded by the plaintiff or by the defendant in support of the case set up by him either to prove his cause of action or defence. "Particulars", on the other hand, are details in support of material facts pleaded by the party. They amplify, refine and embellish material facts by giving distinctive touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative. "Particulars" thus ensure conduct of fair t rial and would not take the opposite party by surprise. 52. All "material facts" must be pleaded by the party in support of the case set up by him. Since the object and purpose is to enable the opposite party to know the case he has to meet with, in the absence o f pleading, a party cannot be allowed to lead ev idence. Failure to state even a single material fact, hence, will entail dismissal of the suit or petition. Particulars, on the other hand, are the details of the case which is in the nature of evidence a party would be leading at the time of trial."
24. A cause of action which w hich is manifestly vexatious and meritless, in the sense of not disclosing a clear rights to sue and taking care that the grounds mentioned in Order 7 Rule 11 of the Code of Civil Procedure are attracted, would require such IA to be thrown out at the threshold for the reason no person would be entitled to inconvenience through the medium of the process of law.
Wherefore the Hon’ble court may be pleased pleased to dismiss application of applicant in the interest of justice.
Place: XXXXXXXXXXXXXXXX Date:
ADVOCATE FOR 1st ,3rd , 5th DEFENDANT 1st ,3rd , 5th DEFENDANT
