Gujarat High Court
Gujarat State Road Transport ... vs Ismailbhai Fakirbhai Sheikh on 7 October, 2021
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
C/CRA/46/2021 JUDGMENT DATED: 07/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 46 of 2021
With
R/CIVIL REVISION APPLICATION NO. 38 of 2021
With
R/CIVIL REVISION APPLICATION NO. 39 of 2021
With
R/CIVIL REVISION APPLICATION NO. 40 of 2021
With
R/CIVIL REVISION APPLICATION NO. 41 of 2021
With
R/CIVIL REVISION APPLICATION NO. 42 of 2021
With
R/CIVIL REVISION APPLICATION NO. 43 of 2021
With
R/CIVIL REVISION APPLICATION NO. 44 of 2021
With
R/CIVIL REVISION APPLICATION NO. 45 of 2021
With
R/CIVIL REVISION APPLICATION NO. 47 of 2021
With
R/CIVIL REVISION APPLICATION NO. 48 of 2021
With
R/CIVIL REVISION APPLICATION NO. 49 of 2021
With
R/CIVIL REVISION APPLICATION NO. 64 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI : Sd/-
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1 Whether Reporters of Local Papers may be
allowed to see the judgment ? NO
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the
fair copy of the judgment ? NO
4 Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any NO
order made thereunder ?
Page 1 of 24
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C/CRA/46/2021 JUDGMENT DATED: 07/10/2021
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GUJARAT STATE ROAD TRANSPORT CORPORATION
THROUGH DIVISIONAL CONTROLLER
Versus
ISMAILBHAI FAKIRBHAI SHEIKH
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Appearance:
MR HS MUNSHAW(495) for the Applicant(s) No. 1
MR BHARGAVKUMAR K PATEL(8730) for the Opponent(s) No. 1
MR RD KINARIWALA(6146) for the Opponent(s) No. 1
NOTICE SERVED(4) for the Opponent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
Date : 07/10/2021
ORAL JUDGMENT
1. As the issue involved in these applications is similar, all these applications are heard together and are being decided by this common order.
2. All these Civil Revision Applications are filed under Section 115 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code") by the applicant - original defendant no.1, wherein the applicant - Gujarat State Road Transport Corporation has challenged the order dated 06.10.2020 passed by learned Principal Senior Civil Judge, Modasa, whereby the application filed by the applicant under Order 7, Rule 11 of the Code came to be rejected.
3. Looking to the issue involved in the matters, learned advocates appearing for the parties have Page 2 of 24 Downloaded on : Fri Oct 08 08:30:46 IST 2021 C/CRA/46/2021 JUDGMENT DATED: 07/10/2021 jointly requested that all these applications be taken up for final disposal at an admission stage.
4. For the sake of convenience, facts narrated in Civil Revision Application No.46/2021 are considered, which are as under, 4.1 The applicant herein is the original defendant no.1 in the suit filed by the opponent no.1 - original plaintiff i.e. Regular Civil Suit No.16/2020 before the court of learned Principal Senior Civil Judge, Modasa, which is filed for declaration and permanent injunction and for declaration that the plaintiff is the owner of the land bearing Survey No.56 pk. situated in the sim of Village : Meghraj, Taluka : Meghraj (hereinafter referred to as "the land in question") by way of adverse possession. It is stated that the plaintiff is running a shop in the land in question and is in possession of the said land since last 60 years. It is further stated in the plaint that the suit came to be filed by the original owner viz., Doshi Punamchand Chhabildas and others against the defendant Page 3 of 24 Downloaded on : Fri Oct 08 08:30:46 IST 2021 C/CRA/46/2021 JUDGMENT DATED: 07/10/2021 no.1 as well as other defendant. The said suit came to be rejected, against which, the original owner preferred Appeal before the Appellate Court, which came to be dismissed. In the said proceeding, the plaintiff was not joined as party defendant and, therefore, they were not aware about the judgment and order passed by the concerned Court in the said proceeding.
4.2 The present applicant - original defendant no.1 filed an application under Order 7, Rule 11 of the Code for rejection of plaint and under Order 14, Rule 2 of the Code to decide the suit on preliminary issue. In the aforesaid application, it is stated that the plaintiff has failed to point out cause of action in the plaint and the plaintiff has failed to place on record the documentary evidence in support of the contention that they are in possession of the land in question since last 60 years and, therefore, the plaint filed by the plaintiff be rejected.
4.3 The concerned trial court, vide impugned Page 4 of 24 Downloaded on : Fri Oct 08 08:30:46 IST 2021 C/CRA/46/2021 JUDGMENT DATED: 07/10/2021 order dated 06.10.2020, rejected the application, Exh.12 filed by the applicant - original defendant, therefore, the applicant has filed the present Revision Application.
5. Heard learned advocate, Mr. H.S. Munshaw for the applicant and learned advocate, Mr. R.D. Kinariwala for the opponent no.1.
6. Learned advocate for the applicant has mainly contended that the plaintiff - original opponent no.1 herein has failed to produce the documentary evidence along with the plaint in support of the contention that the plaintiff is in possession of the land in question since last 60 years, in fact, the plaintiff is an encroacher and, therefore in absence of any documentary evidence placed before the trial court, the plaint filed by the plaintiff is required to be rejected. In support of the said contention, learned advocate has placed reliance upon the decision rendered by the Hon'ble Supreme Court in case of Church of Christ Charitable Trust and Educational Charitable Society Vs. Ponniamman Educational Trust, reported in (2012) 8 SCC 706. It is contended that in the said decision, the Hon'ble Supreme Court has held that if the Page 5 of 24 Downloaded on : Fri Oct 08 08:30:46 IST 2021 C/CRA/46/2021 JUDGMENT DATED: 07/10/2021 documentary evidence in support of the pleadings have not been submitted by the plaintiff then, the plaint is required to be rejected but inspite of the aforesaid decision rendered by the Hon'ble Supreme Court, the trial court has wrongly rejected the application filed by the applicant under Order 7, Rule 11 of the Code.
7. Learned advocate would thereafter submit that the plaintiff has also not made any averments in the plaint about the original owner of the land in question and thus in absence of such disclosure about the name of the original land owner of the land in question, the suit filed for declaring the plaintiff as owner by way of adverse possession, is not maintainable.
8. Learned advocate for the applicant further submits that on bare reading of the plaint, it is clear that it is the case of clever drafting, which is giving rise to an illusionary cause of action. It is merely stated in the plaint that the plaintiff is in possession of the land in question for more than 60 years, which cannot give rise to cause of action. It is further submitted that there is no averment made in the plaint as to how and when the Page 6 of 24 Downloaded on : Fri Oct 08 08:30:46 IST 2021 C/CRA/46/2021 JUDGMENT DATED: 07/10/2021 plaintiff came in possession of the land in question and thus, it is contended that in the facts of the present case, the trial court ought to have allowed the application filed under Order 7, Rule 11 of the Code and thereby ought to have rejected the plaint. In support of the said contentions, learned advocate has placed reliance upon following decisions, (1) In case of T. Arivandandam Vs. T.V. Sayapal & Anr., reported in (1977) 4 SCC 467; (2) In case of Church of Christ Charitable Trust and Educational Charitable Society Vs. Ponniamman Educational Trust, reported in (2012) 8 SCC 706;
(3) In case of Uttam Chand Vs. Nathu Ram, reported in (2020) 11 SCC 263;
(4) In case of Akbar Ali Vs. Umar Khan & Ors., reported in 2021 SCC OnLine SC 238; (5) In case of Bhagirath Prasad Singh Vs. Ram Narayan Rai & Anr., reported in AIR 2010 Pat 189;
9. Learned advocate has, therefore, urged that the impugned order passed by the trial court be quashed and set aside and thereby the plaint filed by the opponent no.1 - original plaintiff be rejected.
10. On the other hand, learned advocate for the Page 7 of 24 Downloaded on : Fri Oct 08 08:30:46 IST 2021 C/CRA/46/2021 JUDGMENT DATED: 07/10/2021 opponent no.1 has opposed these applications and mainly contended that in Paragraph No.12 of the plaint, it is specifically stated that the applicant herein - original defendant no.1 has issued notice on 03.06.2020 for removal of the encroachment, to which, reply was submitted by the plaintiff, inspite of that, second notice was issued by the applicant herein on 08.06.2020. It is further stated that on 09.07.2020, the officer of the applicant - original defendant no.1 came at the land in question and threat was given to the plaintiff with a direction to handover the vacant and peaceful possession of the land in question within stipulated time. It is, therefore, contended that in Paragraph No.12 of the plaint, the plaintiff has specifically stated about the cause of action for filing the suit. It is further specifically stated in the plaint that the plaintiff is in possession of the land in question since 60 years.
11. Learned advocate for the opponent no.1, thereafter, contended that the composite application filed by the applicant - original defendant no.1 before the trial court under Order Page 8 of 24 Downloaded on : Fri Oct 08 08:30:46 IST 2021 C/CRA/46/2021 JUDGMENT DATED: 07/10/2021 7, Rule 11 and the Order 14, Rule 2 of the Code, is misconceived. It is submitted that the application filed under Order 7, Rule 11 of the Code is to be decided on the basis of the averments made in the plaint, whereas the stage of deciding the preliminary issues under Order 14, Rule 2 of the Code would come after the stage of framing of the issues. In the facts of the present case, the issues are yet to be framed on the basis of the pleadings of the parties and, therefore also, the trial court has not committed any error while rejecting the application filed by the applicant herein.
12. Learned advocate for the opponent no.1 further submits that during the course of trial, it is the duty of the plaintiff to prove his case by leading oral as well as documentary evidence that he is in possession of the land in question since 60 years. Thus, the evidence of the plaintiff cannot be examined at this stage while considering the application filed under Order 7, Rule 11 of the Code. It is also submitted that there is no illusionary cause of action by clever drafting as contended by learned advocate for the applicant. Page 9 of 24 Downloaded on : Fri Oct 08 08:30:46 IST 2021 C/CRA/46/2021 JUDGMENT DATED: 07/10/2021 It is submitted that while considering the application under Order 7, Rule 11 of the Code, the averments made in the plaint are required to be considered by the trial court.
13. Learned advocate for the applicant thereafter submitted that the trial court has assigned cogent reasons for rejection of the application filed by the applicant herein under Order 7, Rule 11 of the Code. Therefore, when the trial court has not committed any error while passing impugned order, this Court may not exercise the revisional jurisdiction. It is also submitted that scope of interference while exercising the revisinoal jurisdiction is very limited.
14. Learned advocate for the opponent no.1 has placed reliance upon following decisions, (1) In case of Shakti Bhog Food Industries Ltd.
Vs. Central Bank of India, reported in AIR 2020 SC 2721;
(2) In case of Ravinder Kaur Grewal Vs. Manjit Kaur, reported in (2019) 8 SCC 729.
15. Having heard learned advocates appearing for the parties and having gone through the material placed on record, it would emerge that the opponent no.1 - original plaintiff has filed the Page 10 of 24 Downloaded on : Fri Oct 08 08:30:46 IST 2021 C/CRA/46/2021 JUDGMENT DATED: 07/10/2021 suit for declaration and permanent injunction by contending that he is in adverse possession of the land in question since last 60 years and, therefore, declare that the plaintiff is the owner of the land in question on the basis of the adverse possession. In Para No.12 of the plaint, the plaintiff has specifically narrated about the cause of action for filing suit. It is specifically contended that the plaintiff is in possession of the land in question since 60 years and the defendant no.1 - applicant herein is not in possession of the land in question and notice dated 03.06.2020 came to be issued by the defendant no.1 to the plaintiff for removal of the alleged encroachment over the land in question. It is further revealed that the applicant - original defendant no.1 filed an application, Exh.12 under Order 7, Rule 11 and Order 14, Rule 2 of the Code and the trial court, vide order dated 06.10.2020, rejected the said application and, therefore, these applications are filed by the applicant - original defendant no.1.
16. This Court has considered the averments made in the plaint. It is specifically stated in the Page 11 of 24 Downloaded on : Fri Oct 08 08:30:46 IST 2021 C/CRA/46/2021 JUDGMENT DATED: 07/10/2021 plaint that the plaintiff is in possession of the land in question since last 60 years and even they have constructed the shop on the land in question since long. There is reference about the Civil Suit No.91/1990 filed by the original owners of the land in question against the defendant no.1 and the Government. Thus, the plaintiff has not suppressed any material fact as alleged by the present applicant. It is also not in dispute that the plaintiff was not party to the said proceeding. From the material placed on record, it is further revealed that the defendant no.1 - present applicant is not in possession of the land in question and because of the notice issued by the applicant - original defendant no.1 to the plaintiff for removal of the alleged encroachment, it is clear that the plaintiff is in possession of the land in question. if the averments made in Paragraph No.12 of the plaint are carefully examined, it is clear that the the plaintiff has pointed out about the cause of faction for filing suit.
17. At this stage, this Court would like to refer to the decisions, upon which reliance has been placed Page 12 of 24 Downloaded on : Fri Oct 08 08:30:46 IST 2021 C/CRA/46/2021 JUDGMENT DATED: 07/10/2021 by learned advocates for the parties. 17.1 In a judgment in case of T. Arivandandam (supra), the Hon'ble Supreme Court has observed in Paragraph No.5 as under, "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, be should exercise his power under Or. VII r. 1 1 C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clever, drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order X C.P.C. An activist Judge is the answer to irresponsible law suits. The trial court should insist imperatively on examining the party at the first bearing so that bogus litigation can be shot down at the earliest stage. The Penal Code (Ch. XI) is also Page 13 of 24 Downloaded on : Fri Oct 08 08:30:46 IST 2021 C/CRA/46/2021 JUDGMENT DATED: 07/10/2021 resourceful enough to meet such men, and must be triggered against them. In this case, the learned Judge to his cost realised what George Bernard Shaw remarked on the assassination of Mahatma Gandhi :
"It is dangerous to be too good."
17.2 In a judgment in case of Church of Christ Charitable Trust and Educational Charitable Society (supra), the Hon'ble Supreme Court has observed in Paragraph Nos.17, 18, 24 and 25 as under, "17. In the case on hand, the plaintiff-
respondent to get a decree for specific performance has to prove that there is a subsisting agreement in his favour and the second defendant has the necessary authority under the power of attorney. Order VII Rule 14 mandates that the plaintiff has to produce the documents on which the cause of action is based, therefore, he has to produce the power of attorney when the plaint is presented by him and if he is not in possession of the same, he has to state as to in whose possession it is. In the case on hand, only the agreement between the plaintiff and the second defendant has been filed along with the plaint under Order VII Rule 14(1). As rightly pointed out by the learned senior counsel for the appellant, if he is not in Page 14 of 24 Downloaded on : Fri Oct 08 08:30:46 IST 2021 C/CRA/46/2021 JUDGMENT DATED: 07/10/2021 possession of the power of attorney, it being a registered document, he should have filed a registration copy of the same. There is no such explanation even for not filing the registration copy of the power of attorney. Under Order VII Rule 14(2) instead of explaining in whose custody the power of attorney is, the plaintiff has simply stated 'Nil'. It clearly shows non- compliance of Order VII Rule 14(2).
18. In the light of the controversy, we have gone through all the averments in the plaint. In paragraph 4 of the plaint, it is alleged that the 2nd defendant as agreement holder of the 1st defendant and also as the registered power of attorney holder of the 1st defendant executed the agreement of sale. In spite of our best efforts, we could not find any particulars showing as to the documents which are referred to as "agreement holder". We are satisfied that neither the documents were filed along with the plaint nor the terms thereof have been set out in the plaint. The abovementioned two documents were to be treated as part of the plaint as being the part of the cause of action. It is settled law that where a document is sued upon and its terms are not set out in the plaint but referred to in the plaint, the said document gets incorporated by reference in the plaint. This position has been reiterated in U.S. Page 15 of 24 Downloaded on : Fri Oct 08 08:30:46 IST 2021 C/CRA/46/2021 JUDGMENT DATED: 07/10/2021 Sasidharan vs. K. Karunakaran and Manohar Joshi vs. Nitin Bhaurao Patil .
24. In view of the conduct of the plaintiff, bereft of required materials as mandated by the statutory provisions, the plaint is liable to be rejected at this stage itself as the cause of action pleaded in the plaint is vitiated. Learned senior counsel for the respondent vehemently contended that inasmuch as in the application for rejection of plaint, the 1st defendant has not impleaded the 2nd defendant, the said application is liable to be dismissed on the ground of non-joinder of the 2nd defendant, who is a necessary party. On the other hand, learned senior counsel for the appellant submitted that 2nd defendant is not a necessary party to the application for rejection of plaint and according to him non-joinder of the 2nd defendant does not affect the merit of the application as the plaintiff alone is a necessary party to the application for rejection of plaint.
25. The stand taken by the appellant, who has filed the application for rejection of the plaint, is sustainable and acceptable. We have already adverted to the averments in the plaint and we have held that the plaint has not shown a complete cause of action of privity of contract between the plaintiff and the first defendant or on behalf of the 1st defendant. To reject the plaint even Page 16 of 24 Downloaded on : Fri Oct 08 08:30:46 IST 2021 C/CRA/46/2021 JUDGMENT DATED: 07/10/2021 before registration of the plaint on one or more grounds mentioned in Order VII Rule 11 of the Code, the other defendants need not necessarily be heard at all as it does not affect their rights. As a matter of fact, this Court in Saleem Bhai (supra) held that the plaint can be rejected even before the issuance of summons. This Court has taken a view that the trial Court can exercise its power under Order VII Rule 11 of the Code at any stage of the suit i.e. before registering the plaint or after issuance of summons to the defendants or at any time before the conclusion of the trial. We respectfully agree with the said view and reiterate the same."
17.3 In a judgment in case of Uttam Chand (supra), the Hon'ble Supreme Court has held that the person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to a denial of real owner's title to the property claimed. It is also held that a person claiming tittle by adverse possession has to prove who is the true owner and if such person is not sure who the true owner is, the question of them being in hostile possession as well as of denying the title of the true owner does not arise.
Page 17 of 24 Downloaded on : Fri Oct 08 08:30:46 IST 2021 C/CRA/46/2021 JUDGMENT DATED: 07/10/2021 17.4 In a judgment in case of Akbar Ali (supra), the Hon'ble Supreme Court has observed in Paragraph No.7 as under,
7. In any case, an application under Order VII Rule 11 of the CPC for rejection of the plaint requires a meaningful reading of the plaint as a whole. As held by this Court in ITC v. Debts Recovery Appellate Tribunal reported in AIR 1998 SC 634, clever drafting creating illusions of cause of action are not permitted in law and a clear right to sue should be shown in the plaint. Similarly the Court must see that the bar in law of the suit is not camouflaged by devious and clever drafting of the plaint. Moreover, the provisions of Order VII Rue 11 are not exhaustive and the Court has the inherent power to see that frivolous or vexatious litigations are not allowed to consume the time of the Court.
17.5 In a judgment in case of Bhagirath Prasad Singh (supra), the Hon'ble Supreme Court has observed in Paragraph Nos.10 and 11 as under,
10. I find no force in the submission raised on behalf of the plaintiffs - opposite parties. No doubt, as per the provisions of Order VII Rule 11 of the Code of Civil Procedure, for the purposes of determining the question of rejection of plaint on the other grounds mentioned therein, it is the plaint that has Page 18 of 24 Downloaded on : Fri Oct 08 08:30:46 IST 2021 C/CRA/46/2021 JUDGMENT DATED: 07/10/2021 to be looked into, but the question is that if the plaintiffs have deliberately suppressed the material facts, the disclosure of which is required by law to be made in terms of Order VI Rule 2 of the Code of Civil Procedure, whether it was open for the court concerned to proceed with the trial and decide the suit after framing issues. The order dated 20.11.2006 was challenged by the plaintiffs-judgment debtors themselves before this Court and the civil revision was dismissed by a reasoned order dated 1.5.2008. Thus, this fact was well known to the plaintiffs and they were duty bound in law to disclose the same which they have not done. Order VI Rule 2(1) of the Code of Civil Procedure clearly stipulates that the pleadings should contain the material facts. It has been observed by the Apex Court in Sopan Sukhdeo Sable and others v. Assistant Charity Commissioner and others [2004(3)SCC 137] that omission of a single material fact leads to an incomplete cause of action and the statement or plaint becomes bad. Order VII Rule 11 of the Code of Civil Procedure lays down an independent remedy made available to the defendant to challenge the maintainability of the suit itself, irrespective of his right to contest the same on merits. The real object of Order VII Rule 11 of the Code of Civil Procedure is to keep out of courts irresponsible law suits and in Page 19 of 24 Downloaded on : Fri Oct 08 08:30:46 IST 2021 C/CRA/46/2021 JUDGMENT DATED: 07/10/2021 case Court is prima facie persuaded of the view that the suit is an abuse of the process of the court, in the sense that it is a bogus and irresponsible litigation, the jurisdiction under Order VII Rule 11 of the Code of Civil Procedure can be exercised.
11. Law is well settled that dexterity of the draftsman whereby the material facts are camouflaged in a cleverly drafted plaint and illusionary cause of action is set out, cannot defeat the right of the defendant to get the plaint rejected. In this regard it would be pertinent to quote the relevant passage of the observation of the Apex Court in T. Arivandandam v. T.V. Satyapal [1977(4)467] (SCC p. 470, para 5 as under).
"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 Page 20 of 24 Downloaded on : Fri Oct 08 08:30:46 IST 2021 C/CRA/46/2021 JUDGMENT DATED: 07/10/2021 to sue, he should exercise his power and Order 7 Rule 11 CPC, taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has 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."
17.6 In a judgment in case of Ravinder Kaur Grewal (supra), the Hon'ble Supreme Court has observed in Paragraph Nos.59 and 61 as under,
59. We hold that a person in possession cannot be ousted by another person except by due procedure of law and once 12 years' period of adverse possession is over, even owner's right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing person/owner as the case may be against whom he has prescribed. In our opinion, consequence is that once the right, title or interest is acquired it can be used as a sword by the plaintiff as well as a shield by the defendant within ken of Article 65 of the Act and any person who has perfected title by way of adverse possession, can file a suit for restoration of possession in case of dispossession. In case of dispossession by another person by taking law in his hand a possessory suit can be Page 21 of 24 Downloaded on : Fri Oct 08 08:30:46 IST 2021 C/CRA/46/2021 JUDGMENT DATED: 07/10/2021 maintained under Article 64, even before the ripening of title by way of adverse possession. By perfection of title on extinguishment of the owner's title, a person cannot be remediless. In case he has been dispossessed by the owner after having lost the right by adverse possession, he can be evicted by the plaintiff by taking the plea of adverse possession. Similarly, any other person who might have dispossessed the plaintiff having perfected title by way of adverse possession can also be evicted until and unless such other person has perfected title against such a plaintiff by adverse possession. Similarly, under other Articles also in case of infringement of any of his rights, a plaintiff who has perfected the title by adverse possession, can sue and maintain a suit.
61. Resultantly, we hold that decisions of Gurudwara Sahab v. Gram Panchayat Village Sirthala (supra) and decision relying on it in State of Uttarakhand v. Mandir Shri Lakshmi Siddh Maharaj (supra) and Dharampal (dead) through LRs v. Punjab Wakf Board (supra) cannot be said to be laying down the law correctly, thus they are hereby overruled. We hold that plea of acquisition of title by adverse possession can be taken by plaintiff under Article 65 of the Limitation Act and there is no bar under the Limitation Act, 1963 to sue on aforesaid basis in case of infringement of any rights Page 22 of 24 Downloaded on : Fri Oct 08 08:30:46 IST 2021 C/CRA/46/2021 JUDGMENT DATED: 07/10/2021 of a plaintiff.
17.7 In a judgment in case of Shakti Bhog Food Industries Ltd. (supra), the Hon'ble Supreme Court has held that while deciding an application under Order 7, Rule 11 of the Code for rejection of the plaint, it is the duty of the Court to scrutinize the averments/pleas in the plaint. It is also held that at that stage, the pleas taken by the defendant in the written statement are wholly irrelevant and the matter is to be decided only on the basis of the avermnets made in the plaint.
18. Keeping in view the aforesaid decisions, if the facts of the present case as discussed hereinabove are examined, it can be said that in Paragraph No.12 of the plaint, the plaintiff has specifically disclosed about the cause of action for filing suit and while considering the application under Order 7, Rule 11 of the Code, the averments in the plaint are required to be considered and not the defence of the defendant. The contention taken by learned advocate for the applicant that the plaintiff has not produced any proof in support of his averments made in the plaint that the plaintiff is in possession of the Page 23 of 24 Downloaded on : Fri Oct 08 08:30:46 IST 2021 C/CRA/46/2021 JUDGMENT DATED: 07/10/2021 land in question since 60 years, is misconceived. During the course of trial, it is always open for the plaintiff to lead oral evidence and to produce documentary evidence.
19. In the facts of the present case, it cannot be said that by clever drafting, the plaintiff has tried to show illusionary cause of action. Thus, the decisions upon which reliance is placed by learned advocate for the applicant, would not render any assistance to him, in the facts of the present case. This Court has also considered the reasoning recorded by the trial court while rejecting the application filed under Order 7, Rule 11 of the Code. This Court is of the view that no error is committed by the trial court while rejecting the application filed by the applicant herein. Hence, this Court is not inclined to exercise the revisional jurisdiction in the facts of the present case.
20. All these Civil Revision Applications are, therefore, dismissed. Notice is discharged.
Sd/-
(VIPUL M. PANCHOLI, J.) Gautam Page 24 of 24 Downloaded on : Fri Oct 08 08:30:46 IST 2021