Telangana High Court
Mohd Munawar vs Mohd Vazeer on 28 September, 2022
Author: P. Naveen Rao
Bench: P. Naveen Rao
1
HONOURABLE SRI JUSTICE P. NAVEEN RAO
AND
HONOURABLE SRI JUSTICE J. SREENIVAS RAO.
A.S.No. 291 OF 2020.
JUDGMENT :{ Per the Hon'ble Sri Justice J. Sreenivas Rao } Heard the learned counsel for the appellants Sri M. Vijaykumar Goud and Sri S. Rakesh Reddy, represents Resu Law Office for the respondent No.21. The appellants have mentioned in the grounds of appeal that the respondent Nos.1 to 20 are not necessary parties.
2. For the sake of convenience, the parties hereinafter will be referred to as they were arrayed in the suit, as "plaintiffs" and "defendants".
3. The plaintiffs filed suit O.S. No. 469 of 2016 on the file of Special Sessions Judge for SC/ST (POA) Act 1989-Cum-Additional District & Sessions Judge at L.B. Nagar, Ranga Reddy District seeking the following reliefs :
a) to pass a preliminary decree by partition the suit schedule property by metes and bounds and allot 3/75th share each to the plaintiff Nos. 1 to 3 and allot 3/32th share to the plaintiff No.4 and put the plaintiffs in separate possession.
b) to declare the Registered Sale Deed bearing Doct. No. 923/2008, dated 21.02.2008 is null and void and not binding against the Plaintiffs.
c) to appoint an Advocate Commissioner for partition making the division of schedule properties into good and bad qualities.
d) to award the cost.
e) to grant any other relief or reliefs as the Hon'ble Court deems fit and
proper in the circumstances of the case and in the interest of justice. 2
4. In the said suit, the plaintiffs averred that one Mohd. Abdul Khader was the owner and pattadar of the suit schedule property i.e. agricultural land admeasuring Acs.11.24 gts in Sy.No. 260 situated at Pedda Amberpet Village, Hayathnagar Mandal, Ranga Reddy District and he died on 22.02.1995 without any issues leaving behind his wife, Smt.Haji Begum, as his legal heir and she also died in the year 2015 and further averred that late Abdul Khader had six brothers viz., Mohd. Hussain, Mohd. Quasim, Mohd. Imam, Mohd. Yaseen, Mohd. Ibrahim and Mohd. Omer. Out of them; Mohd. Omer and Mohd. Ibraheem died prior to the death of the Mohd. Abdul Khader and 4 brothers died subsequent to the death of Abdul Khader. The plaintiffs further stated that one Mohd. Amjad Pasha, who is the defendant No.20 is claiming that he is the son of late Mohd. Abdul Khader and Smt. Haji Begum and he is claiming rights in respect of the suit schedule property along with Haji Begum and further stated that Smt. Haji Begum and Mohd. Abdul Khader behind the back of the plaintiffs and defendants got mutated their names in the revenue records as 'pattadar' and 'possessors' in respect of the suit schedule property and also obtained pattadar passbook and title deeds by suppressing the real facts. Defendant No.19 and late Haji Begum obtained the succession proceedings from Mandal Revenue Officer, Hayathnagar Mandal in the year 2004 and also obtained family member certificate. 3 4(i). The plaintiffs further state that the plaintiff No.1 came to know in the month of January, 2016 that the defendant No.20 and late Haji Begum alienated the suit schedule property to the defendant No.21 under a registered sale deed vide document No.923 of 2008 dated 21.02.2008 and he got mutated his name in the revenue records as 'pattadar' and 'possessors' and also obtained title deed in his name. The plaintiffs further stated that during the lifetime of Haji Begum they demanded several times for partition of the suit schedule property and to allot their respective shares but she postponed the same. The plaintiffs came to know about the alienation of the suit schedule property by executing the alleged sale deed in favour defendant No.1 only in the month of January, 2016 and they further submitted that the defendant No.20 is not the own son of late Abdul Khader and Haji Begum and he is the son of late Mohd. Ibrahim, who is the brother of late Abdul Khader. Abdul Khader and Haji begum are not having children, they have adopted defendant No.20 during his childhood and provided good education. The defendant No.20, taking undue advantage of the school records and employment records and basing on the illegal proceedings issued by the Mandal Revenue Officer, Hayathnagar claiming ownership in equal shares along with Haji Begum. The plaintiffs and defendants 1 to 20 are Sunni and as per Sheriyat under Mohammadan Law defendant No.20 being adopted son of late Abdul Khader cannot become legal successor of properties of 4 late Abdul Khader and the defendant No.20 being adopted son, he is not entitle for any share.
4(ii). Plaintiffs further stated that Smt.Haji Begum being the wife of Mohd. Abdul Khader is entitled for 1/4th share in the suit schedule property. The legal heir certificate issued by the Mandal Revenue Officer, Charminar clearly establishes that defendant No.20 is not the own son of late Abdul Khader and he is the son of late Mohd. Ibrahim and basing on the said certificate one of the sons of the late Ibrahim has obtained employment on compassionate grounds in the High Court of Andhra Pradesh. The plaintiffs further stated that one Smt.Khairunnisa Begum and Mohd. Javid Pasha and others, who are the sons of late Omer filed O.S.No. 2 of 2009 before the Junior Civil Judge, Hayathnagar, Ranga Reddy District for declaration of legal heirs and successors and defendant No.20 and plaintiffs and Mohd. Ibrahim, Mohd. Khasim, Mohd. Yaseen, Mohd. Hussain and Mohd. Imam to declare them as legal heirs of late Mohd. Jahangir. In the said suit, the plaintiffs and defendant Nos.1 and 2 have filed written statement denying that the defendant No.20 is not the own son of late Abdul Khader, but he is the adopted son and he is the real son of late Mohd. Ibrahim and the said suit was decreed holding that the plaintiffs and defendants are the legal heirs of late Mohd. Jahangir but they cannot claim any rights over the properties of Mohd. Jahangir. The plaintiffs and defendants in the said suit were directed to 5 approach the proper forum for appropriate relief. In view of the said judgment, the defendant No.20 and his mother Haji Begum cannot claim successive rights in the suit schedule property and the defendant No.20 is not entitled to claim that he is the real son of Abdul Khader and he is not having any right over the suit schedule property and also he is not entitled to execute any document including the alienation of suit schedule property in favour of defendant No.21. Defendant No.21 will not get any title over the suit schedule property. The said registered sale deed executed by defendant No.20 and Haji Begum is not valid in the eye of law and the same is not binding on the plaintiffs. There was no partition took place between the plaintiffs and defendant Nos. 1 to 19 and Smt.Haji Begum in respect of the suit schedule property. Hence, the plaintiffs and defendant Nos.1 to 19 are having right and title over the suit schedule property and they are entitled to their respective shares in the suit schedule property and hence they filed the above suit.
5. In the said suit, defendant No.21 filed I.A. No.1132 of 2017 under Order VII Rule 11 read with Section 151 of CPC praying to reject the plaint.
6. In support of the said application, the defendant No.21 contended that the suit filed by the plaintiffs is not maintainable under law, there is no cause of action to file the said suit and he purchased the suit schedule property through registered sale deed in 6 the year 2008 from defendant No.20 and his mother Smt. Haji Begum and since then he has been in peaceful possession and enjoyment of the said property with absolute rights. The plaintiffs filed the suit for partition only under one survey number leaving the other properties owned and possessed by late Mohd. Abdul Khader in Sy.Nos.453, 454, 514, 511, 455 and 456 and he further contended that in all the educational certificates of the defendant No.20 his father's name was shown as Mohd. Abdul Khader and during his lifetime he filed land ceiling declaration vide C.C.No.192/E/1973 wherein it was mentioned that the defendant No.20 as his son. The plaintiffs and defendant Nos. 1 to 19 in collusion with each other filed the above suit to harass him, though there is no cause of action to file the suit. The defendant No.21 further contended that the land to an extent of Ac.0.23 gts covered by Survey No.478 situated at Pedda Amberpet was alienated by the plaintiffs, defendant Nos. 14, 15, defendant No.20 along with others by executing registered sale deed on 24-12-2012 and the same is clearly establishes that the defendant No.20 is son of late Mohd. Abdul Khader and Haji Begum and he is not adoptive son of late Mohd. Abdul Khader and further stated that the plaintiffs filed the suit with all false facts creating a cause of action on imaginary grounds and waited till death of mother of the defendant No.20 namely Smt.Haji Begum and after her death filed the suit claiming shares in the suit schedule property and the suit filed by the plaintiffs is barred by 7 limitation and there is no cause of action to file the suit and the same is liable to be rejected.
7. The trial Court allowed the application, vide I.A. No.1132 of 2017 in O.S.No.469 of 2016 and rejected the plaint by its impugned order dated 20.01.2020. Aggrieved by the said order, the plaintiffs filed this appeal.
8. The learned counsel appearing for the appellants submits that the trial Court grossly erred in allowing the application filed under Order VII Rule 11 of CPC on the issue of cause of action and limitation alleging that the plaintiffs have not disclosed in their plaint that they are in possession of the suit schedule property and there is no cause of action to file the suit for partition. He would submit that the plaintiffs specially mentioned in the plaint about the cause of action and also limitation aspects. He would further submit that in Para Nos. 5, 6, 8, 9, and 10 of the plaint, the plaintiffs have specifically averred about the relationship of the parties and how they are entitle to claim share in the suit schedule property, cause of action arises to file the suit and also limitation aspects. All the above said aspects require for consideration after full-fledged trial only.
8(i). The counsel for the appellants further submits that the plaintiffs have specifically averred in Para 5 of the plaint that the plaintiff No.1 came to know in the month of January 2016 about the execution of 8 the registered sale deed by the defendant No.20 in favour of the defendant No.21 but in cause of action para, a typographical error was crept that they came to know about the execution of sale deed in the month of January, 2006 instead of mentioning 2016 and he further submits that in the entire plaint they specifically averred that the plaintiffs came to know about the alienation of the suit schedule property by the defendant No.20 in favour of the defendant No.21 in the month of January, 2016 and the suit filed by the plaintiffs is within the period of limitation.
8(ii). The learned counsel would further submit that the trial Court grossly erred in relying upon the pleadings in the affidavit filed in support of the Interlocutory Application filed under Order VII Rule 11 of CPC passed in the impugned order rejecting the plaint. He would further submit that while considering the application under Order VII Rule 11 of CPC, the Court is required to look into the pleadings as set out in the plaint only.
9. Per contra, the learned counsel for the defendant No.21 vehemently submitted that the trial Court rightly allowed the application filed under Order VII Rule 11 of CPC as there is no cause of action, and the suit filed by the plaintiffs is not maintainable in law, the plaintiffs having knowledge about the execution of sale deed by the defendant No.20 in favour of defendant No.21 long back and the suit filed by them is barred by limitation. The plaintiffs filed the suit with 9 an intention to harass the defendant No.21 on one pretext or the other in collusion with defendant Nos.1 to 19. He would further submit that the averments of the plaint clearly discloses that there is no cause of action and the suit is barred by limitation and the trial Court after considering the averments of the plaint, documents and contentions of the respective parties rightly passed the impugned order by rejecting the plaint and there are grounds much-less valid grounds in the above appeal and the appeal filed by the plaintiffs before this Court is not maintainable under law and the same is liable to be dismissed. In support of his contentions, the learned counsel relied upon the Judgment of the Hon'ble Supreme Court in T. ARIVANDANDAM Vs. T.V. SATYAPAL AND ANOTHER1 and relied upon another judgment in the case of I.T.C. Limited Vs. Debts Recovery Appellate Tribunal and Others2.
10. The point for consideration in this appeal is as follows:
"Whether the trial Court erred in rejecting the plaint under order VII Rule 11 read with Sec 151 of CPC ?"
9. Order-VII, Rule-11 of CPC reads as under:
"11. 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 by the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to 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 to comply with the provisions of Rule-9;
1) (1977) 4 SCC 467
2) (1998) 2 SCC 70 10 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 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 great injustice to the plaintiff.
11. A perusal of Order-7, Rule-11 CPC makes it clear that the relevant facts, which need to be looked into for deciding an application there under are the averments in the plaint. The trial Court can exercise the power under Order-7, Rule-11 CPC at any stage of the suit before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purpose of deciding an application under clause (a) and (d) of Rule 11 of Order VII CPC the averments of the plaint are germane.
12. The law laid down by the Hon'ble Supreme Court and this Court specifically held that rejection of plaint under Order VII Rule 11 of CPC requires stricter scrutiny and it is only required to go through the pleadings in the plaint and the documents filed in support of the plaint to find out whether the prima facie case is made out, maintainability of the suit or it is the vexatious litigation. The scope of Order VII rule 11 of CPC is considered in plethora of decisions. Few are noted here under.
1112.1. In Salim D.Agboatwala and others vs. Shamalji Oddhavji Thakkar and others3, the rejection of plaint was sought primarily on two grounds, (i) the suit filed in the year 1987 challenging the action of the competent authorities under Maharashtra Tenancy and Agricultural Lands Act, 1948 carried out wayback in 1963 and 1964 was hopelessly barred by limitation; and (ii) that in any case Section 85 of the Act, 1948 bars the jurisdiction of Civil Court. According to plaintiff therein only after making inspection of the records in connection with the suit land available in the office of defendant no.3 therein i.e., Court Receiver that they came across the correspondence and documents relating to the transactions and that the proceedings before the Agricultural Lands Tribunal were collusive, fraudulent and null and void and only after gaining the knowledge plaintiff was entitled to approach the Court. In those circumstances, the Hon'ble Supreme Court observed that limitation cannot be put against such a party and question of limitation is a mixed question of fact and law. Hon'ble Supreme Court observed that the answer to the issue regarding limitation will depend upon the evidence with regard to the issuance and service of notice and knowledge of the plaintiffs. 12.2. The Hon'ble Supreme Court observed that the conditions precedent to the exercise of the power are stringent and it is especially so when rejection of plaint is sought on the ground of limitation. The 3 2021 SCC Online SC 735 12 Hon'ble Supreme Court observed that when a plaintiff claims that he gained knowledge of the essential facts giving rise to the cause of action only at a particular point of time, the same has to be accepted at the stage of considering the application under Order VII Rule 11. The Hon'ble Supreme Court further observed that the plea regarding the date on which the plaintiffs gained knowledge of the essential facts, is crucial for deciding the question whether the suit is barred by limitation or not. Such issue becomes a triable issue and hence the suit cannot be thrown out at the threshold.
12.3. Hon'ble Supreme Court held;
"10. Insofar as the rejection of plaint on the ground of limitation is concerned, it is needless to emphasis that limitation is a mixed question of fact and law. It is the case of the appellants/plaintiffs that only after making inspection of the records in connection with the suit land available in the office of defendant No. 3 (Court Receiver) that they came across the correspondence and documents relating to the transactions and that the proceedings before the ALT were collusive, fraudulent and null and void. The appellants/plaintiffs have even questioned the authority of the Court Receiver to represent them in the tenancy proceedings.
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13. As observed by this Court in P.V. Guru Raj Reddy v. P. Neeradha Reddy1, the rejection of plaint under Order VII Rule 11 is a drastic power conferred on the Court to terminate a civil action at the threshold. Therefore, the conditions precedent to the exercise of the power are stringent and it is especially so when rejection of plaint is sought on the ground of limitation. When a plaintiff claims that he gained knowledge of the essential facts giving rise to the cause of action only at a particular point of time, the same has to be accepted at the stage of considering the application under Order VII Rule 11.
14. Again as pointed out by a three member bench of this Court in Chhotanben v. Kiritbhai Jalkrushnabhai Thakkar2, the plea regarding the date on which the plaintiffs gained knowledge of the essential facts, is crucial for deciding the question whether the suit is barred by limitation or not. It becomes a triable issue and hence the suit cannot be thrown out at the threshold.
1312.4. In Mustigulla @ Namaswamy Hemanth Kumar Vs. M/s.Abhaya Infrastructure Pvt.Ltd.4, this Court held, "13. Even though clause (d) of Rule 11 of Order VII enables a Court to reject a plaint, which appears to be barred by any law, the bar arising out of limitation, may not always enable the Court to throw the plaint out. Disputed questions relating to the bar of limitation cannot be gone into at the stage of deciding an application under Order VII Rule 11 as held by the Supreme Court in Popat and Kotecha Property v. State Bank of India Staff Association." 12.5. In Biswanath Banik and another vs. Sulanga Bose and others5, the Hon'ble Supreme Court held that when can a plaint be rejected on the ground of limitation, when period of limitation starts in a case of possessory claim and whether a plaint can be rejected partially. Hon'ble Supreme Court held:
16. 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 in the plaint. Only in a case where on the face of it, it is seen that the suit is barred by limitation, then and then only a plaint can be rejected under Order 7 Rule 11(d) CPC on the ground of limitation. At this stage what is required to be considered is the averments in the plaint. For the aforesaid purpose, the Court has to consider and read the averments in the plaint as a whole. As observed and held by this Court in Ram Prakash Gupta [Ram Prakash Gupta v. Rajiv Kumar Gupta (2007) 10 SCC 59] , rejection of a plaint under Order 7 Rule 11 (d) CPC by reading only few lines and passages and ignoring the other relevant parts of the plaint is impermissible. In the said decision, in para 21, it is observed and held as under :
"21. As observed earlier, before passing an order in an application filed for rejection of the plaint under Order 7 Rule 11(d), it is but proper to verify the entire plaint averments. The abovementioned materials clearly show that the decree passed in Suit No. 183 of 1974 came to the knowledge of the plaintiff in the year 1986, when Suit No. 424 of 1989 titled Assema Architect v. Ram Prakash was filed in which a copy of the earlier decree was placed on record and thereafter he took steps at the earliest and filed the suit for declaration and in the alternative for possession. It is not in dispute that as per Article 59 of the Limitation Act, 1963, a suit ought to have been filed within a period of three years from the date of the knowledge. The knowledge mentioned in the plaint cannot be termed as inadequate and incomplete as observed [Ram Prakash Gupta v. Rajiv Kumar Gupta, 2006 SCC OnLine Del 488] by the High Court. While deciding the application under Order 7 Rule 11, few lines or passages should not be read in isolation and the pleadings have to be read as a whole to ascertain
4. (2016) 6 ALT 244 (DB) 5 . 2022 SCC Online SC 314 14 its true import. We are of the view that both the trial court as well as the High Court failed to advert to the relevant averments as stated in the plaint."
17. From the aforesaid decision and even otherwise as held by this Court in a catena of decisions, while considering an application under Order 7 Rule 11 CPC, the Court has to go through the entire plaint averments and cannot reject the plaint by reading only few lines/passages and ignoring the other relevant parts of the plaint.
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18. In the present case, while holding that the suit is barred by limitation, the High Court has considered only the averments made in Para 4 and has not considered the entire plaint averments.
19. While rejecting the plaint, the High Court has also observed and held that the suit for a declaration simpliciter under Section 53-A of the Transfer of Property Act against the original owner would not be maintainable and for that reliance is placed upon the decision of this Court in Delhi Motor Company [Delhi Motor Company v. U.A. Basrurkar, AIR 1968 SC 794] . However, it is required to be noted that even the plaintiffs have also prayed for the decree for a permanent injunction claiming to be in possession and the declaration and permanent injunction as such invoking Section 53-A of the Transfer of Property Act. When the suit is for a decree of permanent injunction and it is averred that the plaintiffs are in possession of the suit property pursuant to the agreement and thereafter, they have developed the land and that they are in continuous possession since more than twelve years and they are also paying taxes to the Corporation, the cause of action can be said to have arisen on the date on which the possession is sought to be disturbed. If that be so, the suit for decree for permanent injunction cannot be said to be barred by limitation. It is the settled proposition of law that the plaint cannot be rejected partially. Even otherwise, the reliefs sought are interconnected. Whether the plaintiffs shall be entitled to any relief under Section 53-A of the Transfer of Property Act or not has to be considered at the time of trial, but at this stage it cannot be said that the suit for the relief sought under Section 53- A would not be maintainable at all and therefore the plaint is liable to be rejected in exercise of powers under Order VII Rule 11 CPC."
13. Rejection of plaint under Order VII Rule 11 of CPC requires stricter scrutiny. The Court can take recourse to Order VII Rule 11 of CPC only when the Court is absolutely clear that the litigation is meaningless and is manifestly vexatious. At the stage of consideration of application filed under Order VII Rule 11 of CPC, the trial Court cannot go into the aspect whether the plaintiff has strong case to 15 succeed. It is only required to go through the pleadings in the plaint and the documents filed in support of the plaint to find out whether a prima facie case is made out on maintainability of the suit or it is a vexatious litigation. Following the law enunciated in the above decisions, the issue is considered.
14. In the instant case on hand, the nature of the suit filed by the plaintiffs in O.S.No. 469 of 2016 before the Court below seeking for partition of the suit schedule property and also sought declaration declaring the registered sale deed executed by the defendant No.20 in favour of defendant No.21 is null and void and not binding on them and also other reliefs. It is specifically pleaded in the plaint that how they are entitled to seek partition of the suit schedule property when they came to know about the execution of sale deed by the defendant No.20 in favour of the defendant No.21. All these aspects have to be decided during the course of trial by adducing necessary oral and documentary evidence. The trial Court dismissed the application by taking into consideration of the averments made by the defendant No.21 in support of the application under Order VII Rule 11 of CPC and also other grounds.
14(i). The settled proposition of law that the application filed under Order VII Rule 11 of CPC has to be decided basing upon the averments of the plaint only. From the reading of the order passed by the trial 16 Court, all the submissions of the defendant No.21 were apparently considered and the trial Court not only considered the pleadings in the plaint but also in the affidavit filed in support of the application to record findings against the plaintiffs. The Judgments relied upon by the counsel for the defendant No.21 are not applicable to the facts and circumstances of the case.
14(ii). It is already stated supra that the nature of the suit filed by the plaintiff is for seeking partition of the plaint schedule property and allotment of the respective shares; whether they are having any right to seek partition, whether they are entitle to seek declaration to declare the sale deed dated 21.02.2008 executed by defendant No.20 in favour of defendant No.21 is not binding against them and whether the suit filed by the plaintiffs is within the prescribed period of limitation and other aspects required to be decided by conducting full- fledged trial and the entire burden is upon the plaintiffs to prove and establish their case by adducing necessary evidence under law. 14(iii). The learned counsel for the appellants rightly pointed out that in the entire plaint, they specifically pleaded that the plaintiff No.1 came to know about the alienation and execution of the suit schedule property by the defendant No.20 and Haji Begum in favour of the defendant No.21 in the month of January, 2016 only, whereas there is a typographical error crept in the cause of action para No.V where 17 instead of mentioning as month of January, 2016 it was typed as January, 2006. Merely basing on the said typographical error the Court below ought not to have held that the suit filed by the plaintiffs is barred by limitation and there is no cause of action to file the suit. Hence, the reasons assigned by the Court below are contrary to the averments made in the plaint.
15. In the light of the above stated factual and legal position, we are of the considered view that the order under appeal suffers from material irregularity and warrants interference of this Court under Section 96 of C.P.C.
16. The Appeal Suit is accordingly allowed. The order dated 20.01.2020 passed in I.A. No. 1132 of 2017 in O.S. No. 469 of 2016 by the Special Sessions Judge for SC/ST (POA) Act 1989-Cum-Additional District and Sessions Judge at L.B. Nagar, Ranga Reddy District is set aside. There shall be no order as to costs.
As a sequel, miscellaneous applications if any, pending shall stand disposed of.
__________________________ JUSTICE P. NAVEEN RAO __________________________ JUSTCE J. SREENIVAS RAO 28-09-2022 Skj.
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HONOURABLE SRI JUSTICE P. NAVEEN RAO AND HONOURABLE SRI JUSTICE J. SREENIVAS RAO.
A.S.No. 291 OF 2020.
28th September, 2022 Skj.