Savita Devi And ORS v. Sandeep Kewat And ORS

IN THE HIGH COURT OF JUDICATURE AT PATNA

CIVIL REVISION No.136 of 2018 ====================================================== 1.

Savita Devi and Ors W/o Sri Krishna Sao @ Krishna Prasad 2.

Krishna Sao @ Krishna Prasad S/o Late Bhola Sao Both are resident of Malahi Pakari, P.O.- Lohia Nagar, P.S.- Kankarbagh, District- Patna. 3.

Bhim Sao S/o Late Bhola Sao, resident of Mohalla- Rajendra Nagar Gumti, P.O.- Lohia Nagar, P.S. Kankarbagh, District- Patna. ... ... Petitioner/s

Versus

1.

Sandeep Kewat 2.

Pawan Kumar 3.

Krishna Kumar minor All are sons of Sri Kevi Kewat and Gudiya Devi, minor son under the guardianship of his father Kevi all are resident of Mohalla- Malahi Pakri, P.S. Kankarbagh, P.O. Lohianagar, District Patna and Mohalla- East Indira Nagar, P.O.- Lohia Nagar, P.S. Kankarbagh, District Patna.

4.

Amit Sahani 5.

Rakesh Kumar 6.

Sonu Kumar 7.

Manish Kumar All are sons of Late Bhura Sahani and resident of MohallaMalahi Pakri, P.S. Kankarbagh, P.O. Lohianagar, District Patna. 8.

Shyam Kishore 9.

Pappu Sahani 10.

Upendra Sahani 11.

Mohan Sahani All are sons of Late Jhangru Mahto and resident of MohallaMalahi Pakri, P.S. Kankarbagh, P.O. Lohianagar, District Patna. 12.

Bhagwan Das Sahani 13.

Ramjee Sahani 14.

Lal Babu Sahani All are sons of Late Ram Dahin Mahto and resident of Mohalla- Malahi Pakri, P.S. Kankarbagh, P.O. Lohianagar, District Patna. 15.

Ashok Sao S/o Late Nand Lal Sao resident of Mohalla- Malahi Pakri, P.S. Kankarbagh, P.O. Lohianagar, District Patna.

... ... Opposite Party/s ====================================================== Appearance :

For the Petitioner/s :

Mr. Sanjay Kumar, Advocate For the Opposite Party/s :

Mr. Sudhir Kumar, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE KHATIM REZA ORAL ORDER 12-05-2023 Heard Mr. Sanjay Kumar learned counsel for the petitioners and Mr. Sudhir Kumar learned counsel for the

2/23 opposite parties.

2. This Civil Revision application has been filed against the order dated 11.04.2018 passed by learned Sub-Judge X, Patna in Title Suit No. 491 of 2016 whereby petition filed by the petitioner under Order VII Rule 11 of the Code of Civil Procedure for rejection of the plaint has been dismissed.

3. Learned counsel for the petitioners submits that the title suit has been filed for declaration of title and possession of the suit land and also to declare that defendants have no right, title and interest in the suit property and the defendants have also no right to interfere in the peaceful possession of the plaintiffs and further to declare that sale deeds dated 28.01.1971, 07.05.1983 and 17.04.1984 with respect to lands of branch of Jagdhari Mahto measuring an area of about 15 dhur mentioned in the Schedule IV of the plaint are illegal, fraudulent, completely forged, fabricated and void in the eyes of law whereby no title has been passed or accrued in favour of ancestors of defendant nos. 16 to 20 in respect of the Schedule IV land and these sale deeds are not binding on the plaintiffs and further sought a relief that if the oral partition of Plot No. 175 is not be proved then alternatively, a preliminary decree for partition of one-third share in the property described in Schedule I of the plaint be passed. And after appointment of

3/23 Pleader Commissioner a separate Takhta of the plaintiffs with regard to one-third share in the suit property described in Schedule I of the plaint be carved out and also temporary injunction i.e., ad interim injunction be granted and the defendants be restrained from alienating encumbering any portion of the suit land and also from interfering in peaceful possession and enjoyment of the plaintiffs over the suit land till the disposal of the suit.

4. Learned counsel for the petitioner submits that on perusal of the plaint and reliefs sought for, it is apparent that the sale deeds of 1971, 1983 and 1984 are to be declared as null and void. It is submitted that for setting aside of the said registered sale deeds, limitation period is three years, whereas, the present suit has been filed in the year 2016 i.e., after lapse of about 35 years. Therefore, this suit is apparently time barred and reliance is placed on the decision of the Hon'ble Supreme Court in case of C.S. Ramaswami Vs V.K. Senthil and others and its analogous cases decided on 30.09.2022 in Civil Appeal No. 500 of 2022 reported in 2022 SCC online SC 1330. In the said decision, the Hon'ble Supreme Court had occasion to consider all earlier decisions on exercise of power under Order VII Rule 11 of the Code of Civil Procedure.

5. In the said judgment, reference of another judgment

4/23 of Hon'ble Supreme Court in the case of Raghwendra Sharan Singh Vs. Ram Prasanna Singh (Dead) by Legal Representatives reported in (2020) 16 SCC 601 was made in which at Paragraph No. 6.4 to 6.9, it has been held as under:- "6.4.

In T. Arivandandam [T.

Arivandandam v. T.V. Satyapal, (1977) 4 SCC 467], while considering the very same provision i.e. Order 7 Rule 11 CPC and the decree of the trial court in considering such application, this Court in para 5 has observed and held as under : (SCC p. 470) "5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful - not formal - reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7 Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has

5/23 created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order 10 CPC. An activist Judge is the answer to irresponsible law suits."

6.5. In Church of Christ Charitable Trust & Educational Charitable Society [Church of Christ Charitable Trust & Educational Charitable Society v.

Ponniamman Educational Trust, (2012) 8 SCC 706], this Court in para 13 has observed and held as under : (SCC p.

715) "13. While scrutinising the plaint averments, it is the bounden duty of the trial court to ascertain the materials for cause of action. The cause of action is a bundle of facts which taken with the law applicable to them gives the plaintiff the right to relief against the defendant.

Every fact which is necessary for the plaintiff to prove to enable him to get a decree should be set out in clear terms. It is worthwhile to find out the meaning of the words "cause of action". A cause of action must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue."

6.6. In ABC Laminart (P) Ltd. v. A.P.

Agencies [(1989) 2 SCC 163], this Court explained the meaning of "cause of

6/23 action" as follows : (SCC p. 170, para 12) "12. A cause of action means every fact, which if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything which if not proved would give the defendant a right to immediate judgment must be part of the cause of action. But it has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff."

6.7. In Sopan Sukhdeo Sable [Sopan Sukhdeo Sable v. Charity Commr., (2004) 3 SCC 137] in paras 11 and 12, this Court has observed as under : (SCC p.

146)

7/23 "11. In ITC Ltd. v. Debts Recovery Appellate Tribunal [ITC Ltd. v. Debts Recovery Appellate Tribunal, (1998) 2 SCC 70] it was held that the basic question to be decided while dealing with an application filed under Order 7 Rule 11 of the Code is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7 Rule 11 of the Code.

12. The trial court must remember that if on a meaningful and not formal reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise the power under Order 7 Rule 11 of the Code taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, it has to be nipped in the bud at the first hearing by examining the party searchingly under Order 10 of the Code. (See T. Arivandandam v. T.V.

Satyapal [(1977) 4 SCC 467].)"

6.8. In Madanuri Sri Rama Chandra Murthy [Madanuri Sri Rama Chandra Murthy v. Syed Jalal, (2017) 13 SCC 174], this Court has observed and held as under : (SCC pp. 178-79, para 7) "7. The plaint can be rejected under Order 7 Rule 11 if conditions enumerated

8/23 in the said provision are fulfilled. It is needless to observe that the power under Order 7 Rule 11 CPC can be exercised by the court at any stage of the suit. The relevant facts which need to be looked into for deciding the application are the averments of the plaint only. If on an entire and meaningful reading of the plaint, it is found that the suit is manifestly vexatious and meritless in the sense of not disclosing any right to sue, the court should exercise power under Order 7 Rule 11 CPC. Since the power conferred on the court to terminate civil action at the threshold is drastic, the conditions enumerated under Order 7 Rule 11 CPC to the exercise of power of rejection of plaint have to be strictly adhered to. The averments of the plaint have to be read as a whole to find out whether the averments disclose a cause of action or whether the suit is barred by any law. It is needless to observe that the question as to whether the suit is barred by any law, would always depend upon the facts and circumstances of each case.

The averments in the written statement as well as the contentions of the defendant are wholly immaterial while considering the prayer of the defendant for rejection of the plaint. Even when the allegations made in the plaint are taken to be correct as a whole on their face value, if they

9/23 show that the suit is barred by any law, or do not disclose cause of action, the application for rejection of plaint can be entertained and the power under Order 7 Rule 11 CPC can be exercised. If clever drafting of the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage."

6.9. In Ram Singh [Ram Singh v. Gram Panchayat Mehal Kalan, (1986) 4 SCC 364], this Court has observed and held that when the suit is barred by any law, the plaintiff cannot be allowed to circumvent that provision by means of clever drafting so as to avoid mention of those circumstances, by which the suit is barred by law of limitation."

6. After considering the aforesaid paragraphs the Hon'ble Supreme Court in the case of C.S. Ramaswamy (Supra) has held as under:-

7. Applying the law laid down by this Court in the aforesaid decisions on exercise of powers under Order VII Rule 11 CPC to the facts of the case on hand and the averments in the plaints, we are of the opinion that both the Courts below have materially erred in not rejecting the plaints in exercise of powers under Order VII Rule 11(d) CPC. The respective suits have been filed after a period of 10 years

10/23 from the date of execution of the registered sale deeds. It is to be noted that one suit was filed by the minor, which was filed in the year 2006, in which some of the plaintiffs herein were also party to the said suit and in the said suit, there was a specific reference to the Sale Deed dated 19.09.2005 and the said suit came to be dismissed in the year 2014 and immediately thereafter the present suits have been filed. Thus, from the averments in the plaint and the bundle of facts stated in the plaint, we are of the opinion that by clever drafting, the plaintiffs have tried to bring the suits within the period of limitation, which otherwise are barred by limitation.

Therefore, considering the decisions of this Court in the case of T.

Arivandandam (supra) and other decision of Raghwendra Sharan Singh (supra), and as the respective suits are barred by the law of limitation, the respective plaints are required to be rejected in exercise of powers under Order VII Rule 11 CPC.

7. After scrutinizing the pleadings made in the plaint, some relevant paragraphs of the plaint are required to be seen. It has been contended in Paragraph Nos. 3, 4, 5, 6, 7, 8, 9 and 10 which are as follows:-

3. That Bhundar Mahto died before

11/23 Survey and the names of Devi Mahto, Pokhan Mahto and Jagdhari Mahto were recorded in cadestral Survey Khatiyan in respect of the entire joint family properties and in which the share of each son of Bhunder Mahto was 1/3rd. The properties mentioned in Schedule No. I at the foot of the plaint along with other land was the joint family property of heirs of Bhundhar Mahto.

4. That Devi Mahto died in the year 1942-43 in State of jointness with his brothers leaving behind his two sons namely Mahadeo Mahto and Nanhak Mahto and after death of Devi Mahto, partition took place amongst the heirs of Devi Mahto on one side and Pokhan Mahto on the other side and Jagdhari Mahto on the third side and the property mentioned in Schedule II at the foot of the plaint along with other property was allotted to Mahadeo Mahto and Nanhak Mahto and the property mentioned in Schedule III at the foot of the plaint alongwith other properties was allotted to Pokhan Mahto and the property mentioned in Schedule IV at the foot of the plaint along with other

12/23 property was allotted to Jagdhari Mahto.

5. That after partition one pattidar has got no concern with the property allotted to the other pattidars.

6. That thereafter Pokhan Mahto sold his share of survey plot no. 175 fully mentioned in Schedule V at the foot of the plaint alongwith other property to Jatahi Devi W/o Late Ram Lakhan Malah and after purchase she came in possession of Middle portion of land of survey plot no. 175.

7. That in the year 1955 Pokhan Mahto died issueless and Jagdhari Mahto also died in the year 1983 leaving behind his only daughter Shanti Devi who inherited the property left by her father by rule of survivorship and after some times Shanti Devi also died leaving behind her only daughter Gudiya Devi who married with Keri Kewat and she inherited the property left by her mother by rule of survivorship Gudia Devi also died in the year 2004 leaving behind her husband Kevi Kewat and her three sons namely Sandeep Kumar, Pawan Kumar and Krishna Kumar, the plaintiffs. The

13/23 sons of Gudia Devi inherited the property left by her mother by rule of survivorship.

8. That after death of Gudiya Devi the plaintiffs are in possession over the property mentioned in Schedule IV at the foot of the plaint.

9. That subsequently in the month of August 2016 the plaintiffs got knowledge that some persons have created false document in respect of the land of the plaintiffs. It is submitted that Devi Mahto had 1/3rd share in plot no. 175, but the branch of Devi Mahto had sold 35 dhur land of survey plot no.175 in place of about 15 dhur land. Ram Dahin created sale deed in respect of 20 dhur land in place of his share 71⁄2 dhur and Nanhak Mahto sold 14 dhur 16 dhurki land in place of his share 71⁄2 dhur hence the aforesaid sale deeds should be declared null and void document as they have no right to sell the land of Jagdhari Mahto. It is further submitted that Pokhan Mahto sold his share to Jatahi Mahto through sale deed dated 5.2.2015 and Ram Dahin Mahto sold 1 katha land to Shashi Prabha Devi in place of his share only

14/23 7 dhur in Survey Plot no. 175 and Jatahi sold 10 dhur land to Jadu towards Eastern side in place of his middle portion of land through sale deed dated 28.1.1971 Nanahak and Suresh also created false document on 7.5.83 in respect of 9 dhur 16 dhurki land of plot no.175 as they have no right to create any document in respect of share of other person and also came to learn that the some defendants have illegally mutated their name balabala in respect of the lands of the plaintiffs on the basis of forged and fabricated and illegal document and after knowledge the plaintiffs made several demands from the defendants to give up false claim over 1/ 3rd Eastern Portion of land of Survey Plot No.

15/23 suit.

10. That the cause of action for the suit arose in the month of August 2016 when the plaintiffs came to know about the fraudulent sale deeds in respect of the lands of the plaintiffs and lastly on 17.9.2016 when the defendants refused to give up their claim and to give bazidava in favour of the plaintiffs over the property in suit. The cause of action arose at Mauza-Malahi Pakari, P.S.- Kankarbagh, District-Patna within the jurisdiction of this Court.

8. On the basis of pleadings, the plaintiffs prayed for following reliefs:- (i). On adjudication the title of the plaintiffs and want of title of the defendants be declared that the plaintiffs have got absolute and perfect title on the land in suit fully mentioned in Schedule No. IV at the foot of the plaint in which the defendants have got no right, title and interest at all and the defendants have also no right to interfere in peaceful possession of the plaintiffs.

(ii). On adjudication of the facts stated above it be declared that the alleged sale deeds dated 28.01.1971,

16/23 17.04.1984 and 07.05.1983 in respect of the lands of the branch of Jagdhari Mahto measuring an area of about 15 dhur fully mentioned in Schedule no.

IV at the foot of the plaint are illegal, unlawful, fraudulent and completely forged and fabricated, without jurisdiction, without compliance, nullity and void in the eye of law whereby no title has passed on or accrued in favour of the ancestors of defendant nos. 16 to 20 in respect of the land detailed in Schedule IV at the foot of the plaint or any part thereof and whereby the title of the plaintiffs to the land in suit has not been affected in any manner whatsoever, nor the said sale deeds binding on the plaintiffs and nor the plaintiff's possession on the land in suit is liable to be disturbed.

(iii). If the oral partition of Plot No.

175 be not proved then in the alternative a preliminary decree for partition of 1/3rd share in the property in suit described in Schedule I at the foot of the plaint be passed in favour of the plaintiffs and against the defendant and after an appointment of Advocate Commissioner a separate

17/23 takhta in lieu of the plaintiff's 1/3rd share in the property described in Schedule I at the foot of the plaint be carved out and a final decree accordingly be prepared and the plaintiffs be put in khas possession over the same through the process of the court.

(iv). By an order of temporary ad interim injunction the defendant be restrained from selling, transferring, alienating and incumbering any portion of the suit land mentioned in Schedule IV at the foot of the plaint in any manner and also from interfering in peaceful possession and enjoyment of the plaintiffs over the suit land in any manner till disposal of this suit.

(v). Cost of the suit be awarded to the plaintiffs and against the defendants.

(vi). Any other relief or reliefs to which the plaintiffs be entitled to be granted to the plaintiffs.

9. From perusal of the plaint, it is apparent that the suit has been filed for declaration of title and alternatively a relief for preliminary decree for partition of one-third share in the property in suit described in Schedule I. Moreover, a relief was also sought for to declare that the sale deeds dated 28.01.1971, 17.04.1984 and 07.05.1983 in respect of the lands of the branch

18/23 of Jagdhari Mahato measuring an area of about 15 dhur as mentioned in Schedule IV of the plaint are illegal, unlawful, fraudulent, forged and fabricated and the said sale deeds are not binding on the plaintiffs.

10. From plain reading of the plaint, it is manifest that the plaintiffs claimed for declaration of title of the suit land mentioned in the Schedule IV of the plaint and also alternatively for partition of one-third share in the property in suit described in Schedule I of the plaint and further ad interim injunction for restraining the defendants from alienating and encumbering any portion of the suit land mentioned in the Schedule IV of the plaint and the cause of action for the suit arose in the month of August, 2016, when the plaintiffs came to know about the fraudulent sale deeds in respect of lands of the plaintiffs and lastly on 17.09.2016, when the defendants refused to give up their claim as stated in the plaint.

11. Now, so far as the issue whether the suit can be said to be barred by limitation or not at this stage what is required to be considered is the averments made in the plaint. This Court feels necessary to deal with the case of P.V. Guru Raj Reddy and another Vs P. Neeradha Reddy and others reported in 2015 (8) SCC 331.

12. The Hon'ble Supreme Court has held in Paragraph

19/23 Nos. 5 & 6 which are as follows:- "5. Rejection of the plaint under Order 7 Rule 11 of the Code of Civil Procedure is a drastic power conferred in the Court to terminate a civil action at the threshold.

The conditions precedent to the exercise of power under Order 7 Rule 11, therefore, are stringent and have been consistently held to be so by the Court. It is the averments in the plaint that have to be read as a whole to find out whether it discloses a cause of action or whether the suit is barred under any law. At the stage of exercise of power under Order 7 Rule 11, the stand of the defendants in the written statement or in the application for rejection of the plaint is wholly immaterial. It is only if the averments in the plaint ex facie do not disclose a cause of action or a reading thereof the suit appears to be barred under any law the plaint can be rejected. In all other situations, the claims will have to be adjudicated in the course of the trial".

"6. In the present case, reading the plaint as a whole and proceeding on the basis that the averments made therein are correct, which is what the Court is required to do, it cannot be said that the said pleadings ex facie disclose that the suit is barred by limitation or is barred under any other provision of law. The

20/23 claim of the plaintiffs with regard to the knowledge of the essential facts giving rise to the consideration of the application under Order 7 Rule 11 the stand of the defendants in the written statement would be altogether irrelevant".

13. In another judgment of Hon'ble Supreme Court in the case of G. Nagaraj & another Vs B.P. Muruthunjayanna & others reported in 2023 LiveLaw (SC) 311 the Hon'ble Supreme Court has held at Paragraph Nos. 6 to 9 as under:- "6. The law is well settled. For dealing with an application under Rule 11 of Order VII of CPC, only the averments made in the plaint and the documents produced along with the plaint are required to be seen. The defence of the defendants cannot be even looked into.

When the ground pleaded for rejection of the plaint is the absence of cause of action, the Court has to examine the plaint and see whether any cause of action has been disclosed in the plaint.

7. A perusal of the judgments of the Trial Court and the High Court will show that the Courts have gone into the question of correctness of the averments made in the plaint by pointing out inconsistent statements made in the plaint. The Courts have referred to the earlier suits filed by the appellants and have come to the

21/23 conclusion that the plaint does not disclose cause of action.

8. The learned counsel appearing for the second and third respondents vehemently submitted that on a plain reading of the plaint, it is crystal clear that cause of action is not disclosed. Therefore, we have perused the plaint. After having perused the plaint and in particular paragraph nos. 16 and 17, we find that the cause of action for filing the suit has been pleaded in some detial. It is pleaded how the first appellant acquired title to the property. The facts constituting alleged cause of action have been also incorporated in paragraph no. 17.

9. We are of the view that merely because there were some inconsistent averments in the plaint, that was not sufficient to come to a conclusion that the cause of action was not disclosed in the plaint.

The question was whether the plaint discloses cause of action. As observed earlier, the plaint does disclose cause of action. Whether the appellants will ultimately succeed or not is another matter".

14. So far judgment of Hon'ble Supreme Court in case of C.S. Ramaswamy Vs V.K. Senthil & Ors and its analogous cases reported in 2022 SCC online SC 1330 is concerned, the facts of the aforesaid case and the facts of the present case are

22/23 different. However, the Hon'ble Supreme Court in case of C.S. Ramaswamy Vs V.K. Senthil (Supra) had rejected the plaint on the ground that the same was barred by law of limitation. Based on the facts mentioned in Paragraph No. 7 of the aforesaid judgment, it has been held that "It is to be noted that one suit was filed by the minor, which was filed in the year 2006, in which some of the plaintiffs herein were also party to the said suit and in the said suit there was a specific reference to the sale deed dated 19.09.2005 and the same suit came to be dismissed in the year 2014 and immediately thereafter the present suits have been filed" (in the year 2016). It is relevant to mention that the fact of the aforesaid case and present suit is altogether different. On perusal of the plaint and in particular Paragraph Nos.

3, 4, 5, 6, 7, 8, 9 and 10, it appears that the cause of action for filing the suit has been pleaded in the plaint. So far sale deeds of defendants mentioned in the plaint and prayed for to be declared as void, obtained by fraud and are not binding upon the plaintiffs with regard to Schedule IV of the plaint and the fraud came to the knowledge in the month of August, 2016 only; further the plaintiffs also claimed alternatively for partition of one-third share in the property mentioned in suit described in Schedule I of the plaint. The said relief in the nature of partition cannot be said to be time barred.

23/23

15. Considering the aforesaid decisions of the Hon'ble Supreme Court as well as pleadings in the plaint, the plaint cannot be rejected as time barred at the stage of exercise of power under Order VII Rule 11 of the Code of Civil Procedure. This Court finds no irregularity and jurisdictional error in passing the impugned judgment. Hence, I am not inclined to interfere in order dated 11.04.2018 passed by learned Sub-Judge X, Patna. This Court makes it clear that it only deals with the averments made in the plaint for the purpose of ascertaining whether any cause of action is disclosed in the plaint and on the basis of averments made in the plaint, this suit is time barred at this stage. The said question is mixed question of fact and law which could be decided in trial, therefore, all issues on merits are left open.

16. Accordingly, this Civil Revision application is dismissed.

(Khatim Reza, J) prabhat/- U