Andhra Pradesh High Court - Amravati
N.Shabana Khan vs B.Shafi Sab on 11 April, 2022
Author: Ninala Jayasurya
Bench: Ninala Jayasurya
HON'BLE SRI JUSTICE NINALA JAYASURYA
CIVIL REVISION CASE NO.272 OF 2022
ORDER:-
This Civil Revision is filed against the order, dated 24.12.2021 passed in unnumbered suit on the file of learned II Additional District Judge, Madanapalle, Chittoor District.
2. The petitioner herein being the plaintiff filed suit praying the Court to a) pass a preliminary decree for the division of the plaint schedule property by metes and bounds and allot Ac.2-00 cents to the plaintiff towards Southern side in the plaint schedule property by way of equities; b) direct the defendant to pay the costs of the suit and c) grant such other reliefs that the Court deems fit and proper in the circumstances of the case.
3. The plaint was returned on 08.10.2021 with the following office objections:
(i) Title deeds of defendant be secured and filed in as much as in his gift deed, dated 06.02.2017, the defendant claimed the plaint schedule property to be his ancestral, whereas the market value certificate filed by the plaintiff reflects the plaint schedule property to be of the Government land, being assigned.
(ii) The Genealogy of the defendant be filed since the plaintiff, being daughter of the defendant, is seeking for partition of the plaint schedule property.
(iii) Explain as to how the plaintiff is entitled to seek for partition of the property covered under registered settlement deed, dated 06.02.2017, when the said document shows the property covered by the said 2 document with specific boundaries, being un contiguous bit.
(iv) Explain as to how the plaintiff can maintain the suit without impleading the Government when the market value certificate filed by the plaintiff shows that not the defendant, but the Government happened to be owner of the plaint schedule property.
(v) Explain as to how the defendant can execute settlement deed in respect of the Government land in favour of his daughter the plaintiff.
(vi) Explain as to how the plaintiff can maintain the present suit for partition when, even as per the pleadings, the plaintiff and defendant are neither co-owners nor co- sharers nor coparceners.
(vii) Correct cause of action be shown.
(viii) Correct court fee be computed and paid.
(ix) Reliefs be properly sought.
4. Learned counsel appearing for the plaintiff/petitioner resubmitted the plaint on 22.10.2021 complying with the objections as follows:
(i) The title deeds of the defendant in respect of plaint schedule property are in his custody of the defendant and the same is also mentioned in para 7 of the plaint.
(ii) The plaint schedule property is shown as government land since 07.08.2016 in 22(A) list in the Sub-Registrar Office, Punganur and the plaintiff will take steps for removal of the plaint schedule survey number from 22(a) list by filing petition before the District Collector, Chittoor.
(iii) The boundaries shown in the gift settlement deed, dated 06.02.2017 is for an extent of Ac.2-41 cents and the 3 plaintiff is only entitled to Ac.2-00 cents out of the said extent and suit for partition is maintainable.
(iv) The valuation certificate issued by the Sub-Registrar, Punganur clearly discloses that the plaint schedule survey number is kept in the prohibition list under 22(A) from 07.08.2016 only and the plaintiff is not seeking any relief against the Government as such the Government is not necessary party to the above suit.
(v) The assigned lands (not admitting that the plaint schedule land is assigned land) is inheritable between the family members as such there is no bar to the defendant to execute settlement deed in favour of the plaintiff and relied upon decision reported in 2020(2) ALD 20.
(vi) The plaintiff and the defendant are in joint possession of the plaint schedule property without division by metes and bounds as such suit for partition is maintainable. The plaintiff and defendant are in possession of the plaint schedule in the boundaries shown in the plaint schedule.
(vii) Correct cause of action is shown in the plaint.
(viii) Correct court fee is computed on the suit property and correct court fee is paid.
5. Again on 22.10.2021, it was returned pointing out that the objections, dated 08.10.2021 were not properly complied with. On 25.10.2021, it was represented that "the plaint may be called on Bench." Subsequently, on 12.11.2021, the lower Court heard the learned Advocate for the plaintiff with regard to the maintainability of the suit and by order, dated 24.12.2021, the Court below rejected the plaint by invoking Order VII, Rule 11
(a) (b) and (c) of the Code of Civil Procedure, 1908 (for short 'CPC'). Aggrieved by the same, the present Revision is filed. 4
6. Before going into the facts of the case, it is apt to deal with the issue with regard to the return or rejection of the plaint at the numbering stage. In K.N. Reddy v. Defence Personnel Co-Op. Housing Building Society Limited, Secunderabad1, it was held that once, the plaint discloses description and cause of action in relation to the suit claim, Courts will not embark upon roving enquiry on these aspects while considering even on an application by the defendants for rejection of the plaint.
7. In Ahmed Nawab Alladin v. Hyderabad Industries Limited2, it was held that the Courts would prefer rather than rejecting the plaint, which is almost a rarity, to adjudicate the suits on merits, than to discard them at the threshold and the Hon'ble Supreme Court has been taking consistently the view that only contents as a whole that need to be taken into account for determining existence of cause of action and jurisdiction.
8. In Mohd. Osman Ali v. Second Junior Civil Judge, City Civil Court, Hyderabad and another3, it was held that it is no part of the duty of the District Court to examine, at the stage of scrutiny and registration of the suit, whether the plaintiff has adduced sufficient documentary evidence in support of his prayer in his suit, and if the plaintiff fail to file proper material to substantiate his pleas, he will be doing so at his peril. But, the Court cannot at the scrutiny stage insist on the plaintiff to 1 2014 (6) ALD 218 2 2015 3 ALD 584 3 2010 (4) ALD 273 5 file documents in which even its opinion are relevant for granting relief.
9. In Dantala Praveen v. Bairaboina Veeramma and Others4, it was held that it is not the function of the Court at the numbering stage to involve itself in examination of the purported discrepancy in a minute manner and reject the plaint on such ground at the threshold and such a procedure is not sanctioned by law. Eventually the High Court set aside the order, rejecting the plaint and directed the Lower Court to number the plaint.
10. In Liverpool & London S.P. & I Association Limited v. M.V. Sea Success I5, the Hon'ble Apex Court held that whether a plaint discloses cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For the said purpose, the averments made in the plaint in its entirety must be held to be correct.
11. In Syed Hadi Ali Moosavi v. Syeda Taquia Moosavi6, when the Telangana Wakf Tribunal rejected the plaint (petition), High Court of Telangana entertained revision, overruled the objections and directed the Tribunal to number the suit.
12. Coming to the facts of the present case, the suit is filed by the plaintiff seeking partition of the plaint schedule property by metes and bounds and to allot Ac.2-00 cents to the plaintiff 4 2011 (4) ALD 775 5 2004 (9) SCC 512 6 2019(6) ALD 292 6 towards southern side in the plaint schedule property by equities, etc. In the plaint it was contended that the plaintiff is daughter of the defendant and her marriage was solemnized on 12.02.2012 with Mohammed Imthiyaz Khan and defendant promised to give Ac.2-00 cents out of the plaint schedule property. According to the plaintiff, on 15.05.2012, defendant orally gifted Ac.2-00 cents out of the plaint schedule property and the plaintiff accepted the gift and took possession of Ac.2- 00 cents. Since then, the plaintiff has been in possession and enjoyment of the same by cultivating the land. The plaint further indicates that the defendant is in possession of remaining Ac.0-41 cents of land towards Northern side in the plaint schedule property. The plaintiff erected stone pillars around Ac.2-00 cents and also planted Eucalyptus trees. When the Government of Andhra Pradesh proposed to lay by-pass road towards southern side of the plaint schedule property, to safeguard the property, plaintiff requested the defendant to execute gift deed by confirming the oral gift, dated 15.05.2012. Accordingly, on 06.02.2017, the defendant executed gift deed confirming the oral gift, dated 15.05.2012 in respect of Ac.2-00 cents on Southern side of the plaint schedule property.
13. In the year, 2020, the Government of Andhra Pradesh started formation of by-pass road towards Southern side of the plaint schedule property and the same was completed by the end of July, 2021. In view of the increase of value of the plaint schedule property, the other family members of the defendant 7 instigated the defendant to demand the plaintiff to allot Ac.0-41 cents of land on the Southern side of the plaint schedule property and hence, the defendant approached the plaintiff and made proposal for division of the plaint schedule property and to allot his Ac.0-41 cents on Southern side of the plaint schedule property. In view of the amounts spent by the plaintiff, she did not agree to allot Ac.0-41 cents of land on Southern side of the plaint schedule property and she further informed the defendant that she would leave 20 feet road from her Ac.2-00 cents to reach the property of the defendant from by-pass road, for which the defendant did not agree. It is further averred in the plaint that the defendant is canvassing in the village that no sub-division was effected in respect of the plaint schedule property and he will occupy the portion of the land towards Northern side of by-pass road and the defendant tried to enter into the plaint schedule property and tried to remove the stone pillars. Hence, the suit was filed for partition and separate possession of Ac.2-00 cents out of the plaint schedule property. Though the suit was valued for the purpose of Court Fee and jurisdiction at Rs.54,45,000/-, fixed Court Fee under Section 34
(ii) of the Andhra Pradesh Court Fees and Suits Valuation Act, 1956 (for short 'Court Fees Act') was paid.
14. One of the objections of the Court below was with regard to non-filing of the documents. The Court below came to the conclusion that non-filing of the documents into the Court and the representation made with regard to non-filing of the 8 document is not convincing. As stated supra, this Court time and again held that at the time of numbering the suit, roving enquiry is not contemplated if the plaint discloses cause of action. Non-filing of genealogy is also not a serious consequence, since the plaintiff is claiming the share basing on gift deed, dated 06.02.2017 executed by the defendant.
15. Whether the plaintiff is coparcener and whether she is entitled for partition basing on registered gift settlement deed, dated 06.02.2017 out of plaint schedule property i.e. Ac.2-41 cents will be decided after evidence is let in by the parties. At the stage of numbering the suit, plaintiff is not expected to lead evidence. The nature of the suit, be it for partition or for declaration depends upon the claim made by the plaintiff and the legal advice of the counsel.
16. It is too early for the Court to adjudicate the issue whether the suit for partition is maintainable or the plaintiff has to seek for declaration of title. Plaintiff in the suit claims joint possession and hence, Court Fee under Section 34(ii) of the Court Fees Act is paid. Hence, rejection of the plaint is not correct at this stage.
17. With regard to the objection as to how the suit is maintainable without impleading the Government as party, it was represented by the plaintiff that even going by the averments in the plaint, the plaint schedule property is a patta land. Whether the plaintiff is entitled for share in a patta land or the land is assigned will be adjudicated after the evidence is let 9 in, but not at the threshold. Hence, non-impleadment of the Government as a party at this stage is not a ground to reject the plaint.
18. Whether the plaint schedule land is assigned land and father/defendant can execute gift deed in favour of his daughter/plaintiff is also a question to be decided after the evidence is let in, but not at the threshold.
19. It may be noted here that bundle of facts, constitute cause of action. Single and solitary instance may not be sufficient to decide that the plaint does not disclose cause of action. If a reading of entire plaint discloses causes of action, no Court can reject or return the plaint on the ground that it lacks cause of action. In fact, a perusal of the plaint indicates certain events and also execution of gift deed and subsequent developments, which give cause of action to the plaintiff to file the present suit.
20. Since the plaintiff pleads joint possession, Court Fee as paid under Section 34(ii) of the Court Fees Act, which is also proper. If the Court comes to the conclusion that the plaintiff is not in joint possession, after the evidence is let in, the Court may direct the plaintiff to pay deficit court fee.
21. In view of the above conclusions arrived at supra, this Court deems it appropriate to set aside order passed by the Lower Court and accordingly the order dated 24.12.2021 passed by the Court below is set aside. The Trial Court is directed to number the suit, if the plaint is otherwise in order. The 10 observations made by this Court shall not influence the Court while deciding the matter on merits.
22. Accordingly, this Civil Revision Petition is allowed with directions as indicated above.
As a sequel, pending miscellaneous petitions, if any, shall stand closed.
_______________________________ JUSTICE NINALA JAYASURYA Date : 11.04.2022.
BLV 11 HON'BLE SRI JUSTICE NINALA JAYASURYA CRP NO.272 OF 2022 Dated 04.2022.
BLV 12