Arvind Bhuraji Gedam vs Smt. Shantabai & Ors.

By this Revision under Section 115 of the Code of Civil Procedure, 1908, the applicant/ defendant takes exception to the order dated 13.3.2026 passed by learned 11^th Joint Civil Judge Senior Division, Nagpur, below Exh. 12 in Special Civil Suit No. 169/2026 whereby, the said application filed by the applicant/Defendant under Order VII Rule 11 of the CPC, for rejection of plaint, came to be rejected.

Brief facts of the case can be summarized as under:-

Learned advocate for the applicant submitted that the plaintiffs and the defendant had jointly propounded the Will dated 07.01.2010 and that the same came to be probated by judgment and decree dated 21.06.2023 in Probate Case No.26 of 2022, which, not having been appealed, has attained finality and operates as a judgment in rem binding on the respondents. It is submitted that the present suit, insofar as it seeks to reopen the execution, genuineness and validity of the very same Will, is barred by the principle of res judicata, and the plaint is liable to be rejected under Order VII Rule 11(d) of the Code of Civil Procedure, 1908.

Learned Advocate for the applicant further submitted that the non-applicants and the applicant belong to the Gond community, a Scheduled Tribe, and that the suit also seeks cancellation of a registered Relinquishment Deed dated 05.10.2023, which is a mode of transfer of tribal land within the meaning of Sections 36 to 36-B of the Maharashtra Land Revenue Code, 1966, over which Section 36-C of the said Code bars the jurisdiction of the Civil Court. In this regard, reliance is placed on Vijay Anandrao Moghe and others Vs. The Additional Collector/Sub-Divisional Officer and others, (2022) 6 ALL MR 159 : (2022) 4 Bom CR 777 : (2022) 4 Mh LJ 634, wherein this Court, following Tulshiram Adku Marapa and another Vs. State of Maharashtra and others, (2011) 1 ALL MR 22, has held that in view of the plain language of Section 36(2) of the said Code, which makes no distinction based on the status of the transferee, a transfer of tribal land even as between two tribals is illegal in the absence of previous sanction of the Collector, and that such a construction alone subserves the legislative intent of protecting tribals from exploitation, including exploitation at the hands of a fellow tribal. Reliance is also placed on Atul Vs. Babu, (2011) 5 ALL MR 625, for the proposition that the word 'otherwise' occurring in Section 36-A takes within its fold other modes of transfer, including relinquishment, so that previous permission of the competent authority is required even for such a transfer. It is submitted that admittedly no such permission was obtained prior to execution of the Relinquishment Deed dated 05.10.2023, and therefore, the question of its validity falls within the exclusive domain of the Revenue Authorities under Section 36-C, and not the Civil Court. It is lastly prayed to allow the Civil Revision Application by setting aside the impugned order and rejecting the plaint.

On the other hand, learned advocate for the respondents/ plaintiffs submitted that at the stage of an application under Order VII Rule 11, only the averments of the plaint fall for consideration, and not the defence, and that the plea of res judicata cannot be decided at that stage. Reliance is placed on Srihari Hanumandas Totala Vs. Hemant Vithal Kamat, (2021) 9 SCC 99 : 2021 INSC 387, for the proposition that res judicata is a mixed question of law and fact which cannot be decided on an application under Order VII Rule 11 without examining the pleadings, the issues, and the judgment in the earlier proceeding. Reliance is further placed on Pandurangan Vs. T. Jayarama Chettiar and another, 2025 INSC 825 : 2025 SCC OnLine SC 1425, wherein it has been held that a plea of res judicata cannot be decided merely on the assertions made in an application seeking rejection of the plaint, without examining the pleadings, issues and judgment in the earlier proceeding.

Learned advocate for the respondents/ plaintiffs further submitted that Section 36-C of the Maharashtra Land Revenue Code, 1966, does not oust the jurisdiction of the Civil Court to try questions of fraud, coercion and want of free consent vitiating a registered document, that jurisdiction being exclusively vested in the Civil Court under Section 31 of the Specific Relief Act, 1963. It is submitted that, in any event, even if the challenge to the Will was assumed to be barred, the suit independently seeks cancellation of the Relinquishment Deed, injunction protecting possession of the non-applicants' remaining land, and damages, and that a plaint cannot be rejected in part; if even one cause of action survives, the plaint as a whole must remain. Reliance is placed on Kum. Geetha, D/o Late Krishna and others Vs. Nanjundaswamy and others, Civil Appeal No.7413 of 2023 (arising out of SLP(C) No.8147 of 2016), 2023 INSC 964, for the proposition that the Court deciding an application under Order VII Rule 11 CPC must not examine the truth or merits of documents relied upon, that being a matter for trial, and that a plaint cannot be rejected in part. Reliance is also placed on Vinod Infra Developers Ltd. Vs. Mahaveer Lunia and others, 2025 SCC OnLine SC 1208, to the same effect. It is lastly prayed to dismiss the Civil Revision Application.

With the assistance of the learned advocates for the parties, I have perused the impugned order, the pleadings, and the citations relied upon by the parties. The learned Trial Court has, in the impugned order, held that the question of res judicata could not be decided at the Order VII Rule 11 stage, and this view is squarely supported by Pandurangan Vs. T. Jayarama Chettiar and another, 2025 INSC 825, wherein it has been held that res judicata "cannot be decided merely on assertions made in the application seeking rejection of plaint," even where the earlier decree is unappealed and final. While a probate decree ordinarily operates as a judgment in rem, as held in Ishwardeo Narain Singh Vs. Kamta Devi and others, AIR 1954 SC 280. However, the effect and binding nature of the earlier probate proceedings, including the questions as to the jurisdiction of the probate court, the applicability of the personal law governing the parties, and the allegations concerning the manner in which the respondents participated in the said proceedings, are matters which cannot be conclusively determined merely on the basis of the averments made in the application under Order VII Rule 11 of the Code. The respondents/ plaintiffs having specifically pleaded that the probate court lacked jurisdiction over them as members of a Scheduled Tribe are governed by custom, to whom, neither the Indian Succession Act, 1925, nor the Hindu Succession Act, 1956, applies and that their own participation in the probate proceeding was procured by coercion. Thus, these are matters requiring evidence, and cannot be shut out at the threshold.

As regards Section 36-C of the Maharashtra Land Revenue Code, 1966, the applicant has placed heavy reliance on Vijay Anandrao Moghe Vs. The Additional Collector/Sub-Divisional Officer, (2022) 6 ALL MR 159, and Tulshiram Adku Marapa Vs. State of Maharashtra, (2011) 1 ALL MR 22, in order to support his contention that previous sanction of the Collector is mandatory even for a transfer of tribal land as between two tribals. However, that does not conclude the matter in favour of the applicant as in this case, the question of whether previous sanction was obtained or not, and the consequence of transfer made in its absence, is the matter that Section 36(2) and (3) of the said Act specifically provides for an inquiry by the Collector, whether suo motu or on an application. What the respondents seek to agitate in the present suit is not confined to want of sanction, but it is a substantive plea that their execution of the Relinquishment Deed was procured by coercion, undue influence and want of free consent. For such reliefs, the statutory inquiry contemplated under Section 36 does not provide a remedy, and adjudication whereof and that remedy remains within the jurisdiction of the Civil Court. Reliance on Atul Vs. Babu, (2011) 5 ALL MR 625, for the word 'otherwise' in Section 36-A, does not assist the applicant further in this regard, since it speaks only to the width of the transfers requiring sanction, and not to the ouster of the Civil Court's jurisdiction to try a plea of coercion vitiating the transferor's consent.

In this case, the plaint does not rest solely on the challenge to the Will, but it independently seeks cancellation of the Relinquishment Deed dated 05.10.2023 on the ground of coercion and it also seeks permanent injunction protecting the respondents’ possession of the remaining suit land. It is well settled that a plaint cannot be rejected under Order VII Rule 11 CPC in part, and that if even one of several causes of action or reliefs survive scrutiny, the plaint as a whole must be permitted to proceed to trial. Even assuming, for the sake of argument, that the challenge to the Will may ultimately be found not maintainable, the remaining reliefs concerning the Relinquishment Deed and consequential reliefs would still require examination on their own legal footing. Therefore, the plaint cannot, at this stage, be rejected in its entirety merely on the ground urged by the applicant. In view of the judgment of this Court in Tikaram Lakhu Dhurve v. Santosh Tukaram Dhurve, Second Appeal No.657/2004, Nagpur Bench, decided 19.12.2022, Section 36-C does not automatically oust Civil Court jurisdiction where the very execution/consent underlying the document is challenged on fraud/coercion grounds.

It is well settled that the power under Order VII Rule 11 of the Code of Civil Procedure, 1908, is a drastic power to be exercised only where the plaint, on a meaningful reading, is manifestly vexatious or barred by law. It is equally well settled that only the averments in the plaint are germane, and the pleas of the defendant are immaterial at this stage. Where the ground urged is a mixed question of law and fact, such as res judicata, it ordinarily cannot be decided on a bare reading of the plaint. The pleadings, issues and judgment in the earlier proceeding must be examined and that can be an exercise which can be undertaken more properly during trial.

On the scope of revisional jurisdiction itself, it is well settled that this Court would interfere under Section 115 of the Code of Civil Procedure, 1908, only where the subordinate Court has exercised a jurisdiction not vested in it by law, has failed to exercise a jurisdiction so vested, or has acted illegally or with material irregularity in the exercise of its jurisdiction, and not merely because another view is possible.

For the reasons discussed above, the ultimate conclusion reached by the learned trial Court, that the application under Order VII Rule 11 CPC is rejected, is correct, even though this Court has not accepted in entirety the reasoning of the trial Court on the applicability of Section 36-C. No jurisdictional error or material irregularity is made out. The Civil Revision Application is devoid of merit and deserves to be dismissed. Accordingly, the Civil Revision Application is dismissed. The pending Civil Application, if any, stands disposed of.

No order as to costs.

After pronouncement of this judgment, the learned advocate for the applicant submits that vide order dated 17.03.2026, this Court had granted interim relief and the said relief has been continued from time to time. He, therefore, prays for continuation of interim relief for further period of four weeks.

The request is accepted. Interim relief granted vide order dated 17.03.2026, is continued for further period of four weeks.