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Judgment
This Civil First Appeal under sec.96 CPC was filed against
order dated 01.10.2012 passed by Additional District Judge (FT)
No.3, Jodhpur Metropolitan in Civil Original Suit No.14/2012
whereby application of respondent-defendants filed under Order 7
rule 11 CPC was allowed.
This appeal was earlier dismissed by order of this Court
dated 02.11.2015. Being aggrieved by the order passed in appeal,
the appellant preferred a Special Leave to Appeal before Hon''ble
Supreme Court. Hon''ble Supreme Court vide its order dated
12.08.2016 passed in Civil Appeal No.7376/2016 while allowing
the appeal partly, remanded the matter back to this Court with
direction to dispose of the same as early as possible on merits,
preferably within period of 8 weeks from the date of
communication of this order.
Thereafter, this appeal was listed for hearing on merits of
application filed by respondent-defendants under Order 7 rule 10
CPC. Learned counsel for the parties took several adjournments
and record of original Civil Suit No.14/2012 was also called for and
the matter was heard.
Brief facts of the case arising in the controversy are that
appellant''s land, named Devisagar Krishi Farm situated at village
Bichadli, Teshil & District Jodhpur, where the appellant is said to
be residing and is in exclusive possession of said land; it was
stated that this land was originally belonging to appellant''s
grandfather Colonel Mohan Singh, who remained in possession till
his death and then his son, appellant''s father, Shri Narendra Singh
and since death of appellant''s father on 08.07.2010, the appellant
is in exclusive possession of the land.
It was stated that the appellant started raising construction
and collected construction material at the site in February-March
2012, then the respondent-defendant No.1 raised an objection by
saying that entire land belongs to respondents and asked the
appellant to hand-over possession to them. The respondent
claimed their title in the property on the basis of 03 sale deeds
and one partnership-deed, alleged to have been executed by
Krishan Kak, Kamla Bhalla and appellant''s father on different
dates. The appellant submitted that the documents on which they
are relying do not create any right in the property and if they
consider that they have any right arising out of those documents,
they should approach a court of law.
When the appellant refused to recognize said title as shown
by respondent No.1 and refused to hand over possession,
respondents No.1 to 3 on 16.04.2012 tried to take possession of
the land by force. Under these circumstances, appellant-plaintiff
filed a civil suit on 30.07.2012 before District Judge, Jodhpur
Metropolitan for permanent injunction and declaration to the effect
that the documents shown by the defendants are void documents
and if the defendants have any other documents which they might
have prepared in consequence of these documents, they may also
be declared void. It was also stated that the appellant also filed an
application for temporary injunction along with the suit.
The suit was transferred for disposal to the court of
Additional District Judge (FT) No.3, Jodhpur Metropolitan. The suit
was registered as Civil Suit No.14/2012 and the temporary
injunction application as Civil Misc. Application No.32/2012. Reply
to the temporary injunction application was filed by respondents
No.1 & 4 on 08.08.2012 and on 22.08.2012 by respondents No.2
& 3. Thereafter, an application under Order 7 rule 11 CPC was filed
on 07.09.2012. Virtually this application was nothing but in the
shape of written statement of respondents. Learned trial court
allowed the application under Order 7 rule 11 CPC of the
respondents and rejected the plaint vide order dated 01.10.2012
and being aggrieved by order dated 01.10.2012, the appellant
preferred this appeal on various grounds.
It was contended that the trial court has no jurisdiction to
consider facts as alleged in an application under Order 7 rule 11
CPC but plaint can only be rejected by seeing plaint itself by
taking all the facts stated in the plaint to be true, however, the
trial court has taken the facts narrated in application under Order
7 rule 11 CPC into consideration and also influenced by the aspect
that the plaintiff has not filed reply to the application. When the
defendant can not plead at this stage or refer any facts outside
the plaint, question of filing reply to the application contending
such facts is not required by law. Thus, the order passed by the
trial court is without jurisdiction.
It was also contended that the trial court has taken into
consideration irrelevant facts while considering scope of Order 7
rule 11 CPC and also not properly appreciated the plaint itself. The
plaintiff has prayed that if there are other documents besides the
false and forged documents shown by the defendants to the
plaintiff and prepared on the basis of those documents then they
may also be declared as void. The appellant prayed with abundant
caution that if any document is produced during trial by the defendants then occasion may not arise for amendment of the
plaint and relief can also be granted without amendment of the
plaint. The observation of the learned trial court that he has not
disclosed those documents, is totally untenable and irrelevant so
far as scope of Order 7 rule 11 CPC is concerned.
It was further contended that the learned trial court has
observed that by reading the plaint it can be said that the plaintiff
had knowledge of the sale deeds, mutation proceedings,
resumption order, gift-deeds much earlier and that he himself and
through his family took proceedings for cancellation, which is
without any basis and it is self-contradictory, as the learned trial
court itself stated in para 15 that the appellant-plaintiff got
knowledge of the documents only when defendants informed him.
Entire order is based on facts narrated in the application filed
under Order 7 rule 11 CPC in the shape of written statement. As
such, the order under challenge is without jurisdiction.
It was also argued that the observation of the learned trial
court that the plaintiff has not disclosed whether he has filed the
suit in the capacity of his independent rights or as an heir, is
based on misconception on account of contentions raised in the
application under Order 7 rule 11 CPC. The appellant-plaintiff
clearly stated in the plaint that the property belonged to his
grandfather and the appellant is in possession of the property as
grandson. Not only this, the trial court has acted without
jurisdiction by considering facts which can be pleaded in written
statement or facts which can be put to the plaintiff in cross-
examination. While considering objections referred in Order 7 rule
11 CPC, learned trial court has no jurisdiction to take into
consideration the defence or what questions can be asked in the
cross-examination, as there can not be cross-examination of the
plaint, as the learned trial court is required to consider only the
plaint as it is and take it as genuine document and take the facts
stated in the plaint to be true but the learned trial court decided to
cross-examine the plaint, which is not permissible under law.
It was also contended that the trial court has further
observed that the plaintiff has not stated as to whether his father
has made any Will or not. A bare perusal of the plaint shall reveal
that the appellant came with the case that he is in exclusive
possession of the property of his grandfather and the defendant-
respondents have threatened his possession, so they may be
restrained from taking law in their own hands. In such a suit,
execution of any Will or not by father of plaintiff is totally
irrelevant fact, as the plaintiff filed the suit to protect his
possession. Thus, entire order of the trial court is based on
irrelevant considerations.
It was also contended that the trial court has further
observed that the documents filed with the plaint do not show
right of the plaintiff whereas the plaintiff has claimed that the
documents filed by defendants are void and the defendants are
claiming right on the basis of those documents, admitting that the
property originally belonged to grandfather of plaintiff. This observation clearly shows that the trial court has not properly read
the plaint and so also the documents.
It was also contended that the trial court has observed that
necessary parties have not been impleaded but failed to
appreciate as to how on reading of the plaint, those persons can
be said to be necessary party and how other heirs of father of
plaintiff can be necessary party. When plaintiff says that he is in
exclusive possession of the property and the defendants are
threatening his possession, then no other person else than the
defendants can be said to be necessary party for the present suit.
In a suit for injunction, only person who is threatening
dispossession is necessary party and no one else. The person who
threatens dispossession if claims his right to take law in own
hands on the basis of certain documents then the plaintiff can
definitely say those documents are null & void and for that, no
other person can be said to be necessary party.
It was also contended that the trial court has further
observed that the plaintiff has not prayed for cancellation of sale
deeds but failed to appreciate how the plaintiff can file a suit for
cancellation of a document when he is not party to said document.
Entire judgment of trial court is based on totally irrelevant
considerations. Only thing that the trial court was to consider is
whether the plaintiff, who being in exclusive possession of the
property, can file present suit and material facts as per provisions
of Order 6 rule 2 and Order 7 rule 1 CPC have been pleaded in the
plaint. Thus, the order under challenge is without jurisdiction.
It was also contended that the trial court has further
observed that the plaintiff has not stated facts for claiming
extension of limitation but failed to appreciate that the plaintiff is
not claiming any extension of limitation. Law on the point of
limitation is that the limitation starts when person''s right is
infringed or threatened. In the present case, respondent-
defendants threatened dispossession by force on 16.04.2012 and
present suit was filed on 30.07.2012, then in no circumstance it
can be said that the suit for injunction is time-barred. In a suit for
declaration for any document as void, limitation starts when on
the basis of such document plaintiff''s right is threatened. Whether
before February March 2012 plaintiff''s possession was threatened,
only to be pleaded in the written statement and that will be
decided by framing an issue but at this stage, it is taken to be
admitted that plaintiff''s right was threatened on 16.04.2012.
It was also contended that learned trial court rejected the
plaint under Order 7 rule 11 (a) & (d) CPC but there is no finding
in entire order that the plaint does not disclose cause of action nor
in the entire order any finding is recorded by the trial court that
the present suit is barred by any law of limitation nor that the
cause of action arose on a particular date different than pleaded in
the plaint. A bare perusal of the order reveals that it is perverse.
In the context of contentions raised by the appellant, heard
learned counsel for the parties. Perused the order dated
01.10.2012 whereby application filed by respondent-defendants
was allowed under Order 7 rule 11 (a) & (d) CPC as well as
statement of facts as contained in the plaint.
It was argued that the learned court below in its impugned
order dated 01.10.2012 has allowed application of respondents
contrary to settled legal propositions of law as enumerated in
various decisions of Hon''ble Supreme Court. The impugned order
is totally beyond the scope of Order 7 rule 11 CPC. It is, therefore,
necessary to examine as to what are relevant factors or scope of
Order 7 rule 11 CPC, upon which the application can be decided
and under what circumstances the trial court can exercise its
limited powers to reject the plaint. Provisions of Order 7 rule 11
CPC reads as follows:
"Order VII: Plaint.
Rejection of plaint.-The plaint shall be rejected in the following cases:-- (a) where it does not disclose a cause of action; (b) where the relief claimed is undervalued, and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the court, fails to do so; (c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law; (e) where it is not filed in duplicate; (f) where the plaintiff fails comply with the provision of Rule 9. Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature form correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff."
It is submitted that the plaint can be rejected by court only
on the grounds as mentioned under rule 11 of Order VII of the
Code. The court can not take into consideration any other ground
for deciding an application filed under Order 7 rule 11 CPC. In the
present case, clauses (a) and (d) of rule 11 are relevant, which
state that a suit can be rejected- (a) where it does not disclose a
cause of action and, (d) where suit appears, from the statement in
the plaint, to be barred by any law.
It was contended on behalf of the appellant that it is settled
proposition of law that at this stage, only averments mentioned in
the plaint are required to be considered. In this regard, the
appellant placed reliance on judgment rendered in Kuldeep
Singh Pathania v. Bikram Singh Jaryal : (2017) 5 SCC 345
wherein their Lordships considered principles to be followed and
material that may be considered while dealing with such
application for rejection of plaint due to absence of cause of action
and held that:
"... the plaint cannot be rejected based on allegations made by defendant in his written statement or in his application for rejection of plaint. Court has to read entire plaint as a whole to find whether it discloses cause of action or not. If plaint discloses cause of action then it can not be rejected under O.7 rule 11(a) CPC. Whether plaint discloses cause of action is a question of fact, which has to be gathered on the basis of averments made in the plaint in its entirety, taking those averments to be correct. As long as plaint discloses cause of action, mere fact that plaintiff may not succeed in suit, can not be a ground for rejection of the plaint."
Reliance was also placed on (2008) 12 SCC 661: Kamla &
others v. K.T. Eshwara & ors., in which the Apex Court
considered preconditions necessary for determination of
applicability of Order 7 rule 11 CPC and held that Order VII rule
11(d) CPC has limited application. For applicability thereof, it has
to be shown that suit is barred under any law. Such conclusion
had to be drawn on the basis of averments made in the plaint. For
invocation of Order 7 rule 11(d), no amount of evidence can be
looked into. At that stage, issues on merit of the matter would not
be within realm of the court.
Reliance was also placed on judgment of this Court reported
in 2012 (3) WLC (Raj) 289: Smt Dev Bai v. Additional Civil
Judge No .1, Kota & others, wherein it was held that whether
the suit was filed misusing process of law, can not be decided
under section 151 or Order VII rule 11 CPC, particularly when
these are disputed questions of fact and law, on which evidence
has to be taken. Plaint can be rejected only when it is apparent
from pleadings that the suit is barred under particular law.
Reliance was also placed on judgment of this Court reported
in 2012 (5) WLC (Raj) 305: Ranjithmal Chordiya v. Shivram
Singh & another wherein it was held that:
"The well settled legal position is that an application for rejection of plaint can be allowed if the averments made in the plaint even if given face value and taken to be correct in their entirety, the suit appears to be barred by any law including the limitation. The question as to whether a suit is barred by limitation or not would, therefore, depend upon the facts and circumstances of each case and for the said purpose only the averments made in the plaint are relevant. At this stage, the Court would not be entitled to consider the case of the defence. For the purpose of invoking Order 7 Rule 11 (d) CPC, no amount of evidence can be looked into and the issues on merit of the matter which may arise between the parties would not be within the realm of the Court at that stage. For the applicability of Order 7 Rule 11 (d) of the Code, it must be shown that the suit is barred under any law and to determine that question, the averments made in the plaint are to be considered without any addition or subtraction."
In view of the above settled position of law, it would
necessary to examine the averments of the plaint. On examiantion
of pleadings, it is admitted fact that the suit was filed by the
plaintiff claiming as follows:
"VERNACULAR MATTER OMITTED"
On examining contents of para 2 of the plaint, Sale Deeds
executed and registered on 11.11.2003, 08.12.2003, 26.12.2003,
and 04.03.2005 are sought to be cancelled. Suit for cancellation of
these sale deeds was submitted in August 2012. In para 11 of the
plaint, it was written that the cause of action arose on
16.04.2012. There was no pleading as to date of knowledge about
execution of aforesaid sale deeds. In para 10 of the plaint, it was
specifically mentioned that in the month of February-March 2012,
the appellant started raising construction then defendant No.1
tried to stop them from proceeding with the construction by
saying that the disputed land belongs to defendant No.1. In whole
of the plaint, nothing has been mentioned that he had no prior
knowledge of execution of sale deeds between period 2003 to
2005 nor anything has been mentioned as to why any suit for
cancellation of sale deeds executed between years 2003 to 2005
has not been filed within period of three years. How the present
suit is within limitation, no such fact has been pleaded. Prima
facie, the suit appears to be barred by Article 59 of Limitation Act .
So far as cause of action is concerned, it was pleaded that
cause of action arose on 16.04.2012 but no such fact has been
pleaded, which may show that cause of action arose on that day.
The plaintiff in paras 8 and 9 of the plaint has mentioned that the
defendants and late Narendra Singh Bhati proceeded for
conversion of the land in khasras No.4/36 to 4/47 totaling 256.10
bighas before erstwhile Urban Improvement Trust, Jodhpur. The
proceedings and order passed under sec.90B of the Rajasthan
Land Revenue Act has mentioned in para 5 of the plaint.
Resumption proceedings were completed on 06.04.2005 and the
land was resumed under sec.90B read with sec.63(1) of the
Rajasthan Land Revenue Act and by virtue of these proceedings,
the land stood resumed and vested in erstwhile Urban
Improvement Trust, Jodhpur. No further proceedings were taken
to challenge aforesaid resumption of the land by way of
proceedings under sec.90B read with sec.63(1) of the Rajasthan
Land Revenue Act.
The plaintiff in para 9 of the plaint has mentioned these
documents as ancillary documents and prayed for cancellation of
these documents also. It is settled position of law that civil court
has no jurisdiction to decide the legality of such resumption order
passed under sec.90B read with sec.63(1) of the Rajasthan Land
Revenue Act. In this way, after resumption, rights of all erstwhile
khatedars came to end. Now by way of present suit, the plaintiff
has no legal right to challenge under secs.132 to 135 of the
Rajasthan Land Revenue Act before the civil court.
It is also important to note that after considering the facts
mentioned in paras 2 & 8 of the plaint, it emerges that the plaintiff
has sought injunction in respect of 256.10 bighas and claims it
possession through late Narendra Singh Bhati after his death
whereas even as per documents namely, Gift Deed, Sale Deeds
and Partnership Deed executed by Shri Narendra Singh Bhati and
late Shri Narendra Singh himself was in possession of the
property/subject matter of the suit, in view of detail summarized
below:
Sale Deeds and Partnership Deed, executed by Narendra Singh Bhati,
as mentioned in paras 2 & 8 of the plaint
S. No. Khasra No. Area in Bigha Sale Deed registered on Vendor Purchaser
1 4/36/1 66.10 26.12.2003 Krishna Kaak Sohan Raj Surana
4/36/1 20.00 04.04.2005 Krishna Kaak Sohan Raj Surana
4/36 45.10 09.12.2003 Ms Kamla Bhalla Shreyansh Daga
4/36 1.00 11.11.2003 Ms Kamla Bhalla Abhinav Kumbhat
4/37 50.00 11.11.2003 Late Narendra Bhati Abhinav Kumbhat
4/38 to 4/47 73.10 Land remaining with Shri Narendra Singh Bhati after execution of Sale Deeds/Gift Deeds aforesaid. This 73.10 bighas land was put in partnership firm by contribution, vide Partnership Deed dated 02.04.2005. Shri Narendra Singh Bhati retired from partnership on 17.09.2007, after obtaining money, which stood in his capital account as per Retirement Deed.
Total
256.10
In view of the above facts mentioned in paras 2 & 8 of the
plaint, the plaint does not contain necessary detail giving rise to
the cause of action. In a suit for possession, burden to prove
disputed title over the property is on the person claiming
possession. The plaintiff has not specifically pleaded who was
owner of the property, how did the title transfer to him and on
what date he entered into possession. Unless such pleadings are
contained in the plaint, it can not be said that cause of action
arose to the petitioner. The appellant has miserably failed to show
either his title or possession over the property. Entire pleading of
the plaintiff does not disclose relevant facts constituting cause of
action.
In the present case, the appellant-plaintiff is claiming that
his grandfather Colonel Mohan Singh was in possession of the
disputed property and after his death, Shri Narendra Singh Bhati
i.e. father of the appellant came in possession of disputed
property and after death of Shri Narendra Singh, he being heir is
in possession of the disputed property. From the pleadings, it is
abundantly clear that between years 2003 to 2005, various sale
deeds were executed by Shri Narendra Singh in favour of Ms
Krishna Kaak, Ms Kamla Bhalla and Abhinav Kumbhat. These facts
were not denied and they are forming part of the plaint. The
recitals by the plaintiff in his plaint clearly show that Shri Narendra
Singh by way of aforesaid sale deeds, out of disputed 256.10
bighas, had sold 182.20 bighas to the present respondents during
years 2003-2005 and thereby only 73.10 bighas land was
remained with late Narendra Singh.
A partnership was constituted in the year 2005 in the name
M/s Paradise Villa, having four partners viz. Narendra Singh and
present respondents. All the partners contributed their share of
land, as their contribution to capital of partnership, which means
Shri Narendra Singh contributed 73.10 bighas as his contribution
into partnership. Once a property is contributed to form a
partnership firm, it becomes property of the firm, in which all
partners have joint and common interest. Subsequently, in the
year 2007, a Deed of Retirement of Shri Narendra Singh from
partnership of M/s Paradise Villa was executed and he closed his
business, on the terms mutually agreed between partners. The
equity contribution of the property brought in by Shri Narendra
Singh remained with the firm and the firm with other partners
continued its operation. Thereafter, in the year 2010 aShri
Narendra Singh Bhati passed away.
In the year 2010, at the time of death of Shri Narendra
Singh Bhati, he was holding no land in his title or possession.
When Shri Narendra Singh himself was not holding any title or
possession of the disputed land then how the concerned land be
transferred in favour of Shri Mrigendra Singh, present appellant-
plaintiff, either by inheritance or by any mode of transfer from Shri
Narendra Singh Bhati.
So far as question of limitation is concerned, the plaintiff has
not specified in the pleadings as to exact date on which he came
to know about documents, for cancellation whereof he has sought
relief. The respondents contended that under Article 58 of the
Limitation Act, right to seek declaration would accrue when right
to sue first accrues. In the present matter, where the plaintiff has
not stated exact date of his knowledge i.e. date on which he came
to know about execution of said documents, it shall be presumed
the date of knowledge is date of execution of sale document, since
they are registered documents.
In the present case, the appellant-plaintiff has demanded
cancellation of documents registered between years 2003 to 2005,
however, said suit was filed in the year 2012. In the entire
pleadings, the plaintiff has nowhere mentioned exact date on
which he came to know about said documents nor anything has
been said as to why suit could not be filed within three years of
the execution of said documents.
In support of their contentions, learned counsel for the
respondents placed reliance on 2012 (2) CCC 415 (Karnataka):
Mohammad Ghayasulla & anr v. H. Asadulla Shariff & anr,
wherein it was considered that Articles 58 & 59 of Limitation Act
apply in a suit for declaration. It was held that where plaintiff not
specified as to exact date on which he came to know about sale of
property by defendant No.2 in favour of defendant No.1, it can be
inferred that as on date of execution of sale deed itself plaintiff was
aware of said fact. Sale deed executed on 28.2.1994 and the suit ought
to be filed within three years from date of execution of sale deed. The
suit filed on 26.09.1997 was held to be barred by limitation.
In the present case, learned trial court has rightly observed,
after thoroughly discussing in paras 20 and 21 of the judgment,
that when the plaintiff-appellant does not have any legal right or
khatedari right in the disputed property then how the appellant-
plaintiff could acquire any right in the property. The appellant-
plaintiff has not mentioned as to what are ancillary documents,
regarding which relief in para 14(1) of the plaint has been sought.
Learned trial court has rightly allowed application under
Order 7 rule 11 CPC for rejecting plaint of the appellant-plaintiff by
holding that the plaint does not disclose cause of action and the
suit is barred by limitation. The appeal is devoid of merit. The
same is dismissed.