Clear Right To Sue Is To Be Made Out In A Suit For Declaration Of Title: Karnataka High Court

The Karnataka High Court has reiterated that if the plaintiff in a suit for declaration of title fails to disclose a clear right to sue, the suit deserves to be rejected.A single judge bench of Justice Hemant Chandangoudar made the observation while allowing the petition filed by D N Bhagya challenging the order of the trial court rejecting the application filed under Order VII Rule 11 of the Civil Procedure Code, seeking rejection of the suit for declaration of title filed by the respondents who are legal heirs of Appajappa. The court said, “Order 6 Rule 2(1) CPC clearly stipulates that the pleading should contain the material facts. The plaintiffs have deliberately omitted to disclose a crucial fact that Appajappa, during his lifetime, faced adverse findings from the first appellate court which declared him as not the adopted son. This fact is significant because the plaintiffs are basing their claim to the suit property on Appajappa's supposed status as the adopted son of Chikkabasappa and Nanjappa.” It added “Since their claim hinges on the adoption, and since the adoption remains unproven, there exists no valid cause of action to initiate the suit. Therefore, allowing the suit to proceed would amount to an abuse of the court's process.” Mallikarjuna and others claimed that the suit schedule property was originally owned by Chikkabasappa and his wife Nanjamma, who had no biological children. They purportedly adopted Appajappa during their lifetime and after their demise, Appajappa allegedly inherited and enjoyed possession of the suit properties. The trial court had rejected the application made by the petitioner stating that the material available on record, prima facie, established that the plaintiffs' father was declared as adopted son of Chikkabasappa and Nanjamma in OS No.90/1960, and OS No.46/1993, the suit was dismissed holding that the plaintiffs' father was not the adopted son of Chikkabasappa and Nanjamma. Therefore, there is a dispute with regard to the question of facts and law, and that can be decided only after trial.The petitioners argued that the First Appellate Court had modified the decree holding that the father of the plaintiffs was not the adopted son of late Chikkabasappa. In another suit filed by the deceased father of the plaintiffs, the Trial Court held that the deceased father of the plaintiffs failed to prove that he was the adopted son of Chikkabasappa as per the adoption deed dated 16.5.1946, executed by Smt. Nanjamma as per the desire of her husband. The respondents claimed that contrary to earlier suits the properties in the present suit and the parties are different, and the causes of action to file the suits are also different. Therefore, the principles of res-judicata will not apply. In the present suit, the plaintiffs have also sought the consequential relief of permanent injunction. Even assuming the suit for declaration is not maintainable in view of the finding recorded in the earlier suits, the plaintiffs can still maintain the suit for permanent injunction based on possession.Allowing the petition, the court noted that Order 7 Rule 11(a) enables the rejection of a plaint if it fails to disclose a cause of action, which constitutes the basis for seeking legal remedy. It then observed “Order 7 Rule 11 entails considering its averments and attached documents without considering the defendants' pleas or merits of rejection applications. The plaint's content must stand alone without alteration. Furthermore, the doctrine of res judicata cannot be used to reject a plaint, as its determination necessitates an examination of pleadings, issues, and decisions in prior suits. Therefore, the current plaint's rejection cannot be based on res judicata principles.” Further it said “The suit property consists of vacant land, and it is well established that possession follows title. Given the absence of a cause of action for maintaining a suit for declaration, it can be inferred that the defendants, being the petitioners herein, are in possession of the suit property as its rightful owners, having acquired it through a registered sale deed. The plaintiffs' argument that a suit for permanent injunction remains maintainable even if the suit for declaration is not viable holds no merit and lacks substance.” Accordingly it allowed the application and rejected the suit for declaration. Appearance: Senior Advocate Gurudas Kannur for Advocate Nagaraja R.C for PetitionersAdvocate Sharath S Gogi FOR R1 TO R3, R5 & R6. Advocate N. Muralii FOR R8. Citation No: 2024 LiveLaw (Kar) 120Case Title: D N Bhagya AND D A Mallikarjuna & Others Case No: CIVIL REVISION PETITION NO.60 OF 2018Click Here To Read/Download Order

Clear Right To Sue Is To Be Made Out In A Suit For Declaration Of Title: Karnataka High Court

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