Madhya Pradesh High Court
Meharban vs Salim on 24 April, 2017
Author: Rajeev Kumar Dubey
Bench: Rajeev Kumar Dubey
-: 1:- C.R.No.193 of 2016
HIGH COURT OF MADHYA PRADESH, JABALPUR
BENCH INDORE
( Single Bench )
( Hon'ble Shri Justice Rajeev Kumar Dubey )
Civil Revision No.193 of 2016
Meharban S/o Kasam Khan and others
VERSUS
Salim S/o Babu Khan and others
*****
Shri Manoj Manav, learned counsel for the applicants.
Shri Vinay Zelawat, learned Sr. Advocate with Shri
Pratyush Mishra, learned counsel for the non-applicants No.1 to 8.
Shri Himanshu Joshi, learned Panel Lawyer for the non
applicant No.9/State.
*****
O R D E R
( Passed on this day of April, 2017 ) This Civil Revision has been filed under Section 115 of Code of Civil Procedure against the order dated 17.09.2016 passed by the 3rd Civil Judge Class-II, Dewas, in Civil Suit No.34-A/2013, whereby learned Civil Judge rejected applicant's application filed under Order 7 Rule 11 of the Code of Civil Procedure.
[2] Brief facts of the case which are relevant for the disposal of this Civil Revision are that non-applicants No.1 to 8/plaintiffs filed a Civil Suit No.34-A/2013 before the 3rd Civil Judge Class-II, Dewas for being declared owners of the suit land and restrain the applicants from interfering in their -: 2:- C.R.No.193 of 2016 possession of the suit land.
During trial of the suit applicants filed an application under Order 7 Rule 11 of CPC averring that non- applicants filed this Suit for being declared as owners of suit land on adverse possession, while suit declaring them owner of suit land on the basis of adverse possession is not maintainable. Non-applicants themselves averred in their plaint that they got information regarding partition of suit land in the year 2009 while non-applicants filed this Civil Suit in the year 2013, so this Civil Suit is also time barred. Non-applicants wanted permanent injunction on the basis of oral partition while in the revenue record suit land is recorded in joint name of applicants and non-applicants. Non-applicants also did not value their suit properly. So the suit is barred by law and pray for its rejection.
Non-applicants in their reply opposed the prayer. Learned trial court rejected applicants application by order dated 17.09.2016 observing that non-applicants averred in their plaint that cause of action arose in the year 2013, so suit is within limitation. Non applicants paid proper court fees. Whether applicants become owner of the suit land on the basis of adverse possession requires evidence to decide. Being aggrieved from that order applicant filed this Civil Revision.
-: 3:- C.R.No.193 of 2016
[3] Learned counsel for the applicants submitted that applicants and non-applicants are the members of a joint family and enjoying the suit property which is ancestral property. On 17.08.2009, present applicant filed an application under Section 178 of M.P.L.R.C. Before Tehsildar, Dewas seeking partition of the suit land and the same got registered as 06/A-27/2009-10, while the present suit was filed by the non-applicant on 23.02.2013. From bare averment of the plaint it appeared that non- applicants were in knowledge of the applicants' action from the year 2009 when an application for partition was brought by the present applicants but the civil suit was filed in the year 2013 that is after four years from the date of knowledge, so it is clearly time barred. The limitation must be calculated from the date of knowledge of the action on which the suit is relied. Likewise declaration of ownership of land on the basis of adverse possession cannot be sought. The applicant filed civil suit on oral partition held way back between the ancestors of the applicants and non- applicants to the present suit. Though this aspect has not been considered by the court below that no suit can be brought by any of the parties relying on an oral partition until and unless such partition is reduced into writing by the -: 4:- C.R.No.193 of 2016 parties and must be registered. The cause of action on which the suit is based is clearly barred by law. So learned trial court committed mistake in rejecting applicants' application.
[4] On the contrary, learned counsel for the non applicants No.1 to 8 submitted that issue raised by the applicants require evidence to decide, so learned trial court did not commit any mistake in rejecting applicants' application.
[5] This court has gone through the record and arguments put forth by both the parties. It is settled that while deciding the application under Order 7 Rule 11 CPC only the averment of the plaint should be seen assuming them to be correct as also held by the Apex Court in the case of Ram Prakash Gupta V/s. Rajiv Kumar Gupta reported in 2007 (11) JT 472 relied by the learned counsel for the applicants.
[6] Learned Counsel for the applicants also submitted that non applicants No.1 to 8 filed Civil Suit No.34-A/2013 for being declared as owners of suit land on the basis of adverse possession while no declaration of title can be sought on the basis of adverse possession. Even if the plaintiff is found to be in adverse possession, it cannot seek declaration to that effect. In this regard he placed reliance on Hon'ble Apex Court judgment passed in Gurdwara Sahib -: 5:- C.R.No.193 of 2016 vs. Gram Panchayat Village Sirthala reported in 2014 (3) M.P.L.J. page 36 wherein Hon'ble Apex Court held that, "No declaration of title can be sought on the basis of adverse possession even if the plaintiff is found to be in adverse possession it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings are filed against person found in adverse possession he can use his adverse possession as shield of defence." But non applicants No.1 to 8 has not sought declaration of ownership of suit land only on the basis of adverse possession and also file the suit for permanent injunction. There cannot be a partial rejection of the plaint as held by Apex court in D. Ramachandran Vs R.V.Janakiraman and others reported in AIR 1999 SC 1128.
[7] Suit land is an agricultural land assessed to land revenue. This court in the case of Mulchand vs. Mst Khushedbi reported in A.I.R. 1984 M.P. 32 clearly held that, "Suit for declaration of land separately assessed to land revenue valuation can not be more than twenty times of land revenue. Since non applicants No.1 to 8 filed this suit for being declared as owners of the suit land which is assessed to land revenue, they are not required to value the suit according to market value of the suit land."
[8] Suit on the basis of oral partition is also maintainable. Although learned counsel for the applicants placed reliance on the judgment of this Court passed in -: 6:- C.R.No.193 of 2016 Dinesh Kumar and others V/s. Smt Sarveshari and others reported in 2013 (1) M.P.H.T. 469, wherein this court held that, "The document by which the rights were relinquished/extinguished/created - It should have been registered - In absence of registration of this document, no rights are created in favour of petitioners"
But the fact of that case do not match with instant case. In this case applicant did not filed any partition deed. They only filed the suit on the basis of oral partition and suit can be filed on the basis of oral partition. On the point of limitation learned counsel of the applicants placed reliance on Apex Court's judgment passed in Khatri Hotels Private Limited and another V/s. Union of India and another reported in 2011 (4) SCC (Civil) 484, in which Hon'ble Apex Court held that, "Limitation Act, 1963, Article 58 - If a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues - Successive violation of the right will not give rise to fresh cause and the suit will be liable to be dismissed if it is beyond the period of limitation counted from the day when the right to sue first accrued." But the fact of that case also do not match with this case. In that case apex court found that cause of action arose from the date of notification. While in the instant case applicants' plea is not as such. Even -: 7:- C.R.No.193 of 2016 otherwise in the instant case the issue of limitation also requires evidence to decide. So in the considered opinion of this court learned trial court did not commit any mistake in rejecting applicant's application.
Therefore, revision is dismissed with the note that applicants are free to take all the aforesaid objection in the written statement which will be decided by the the trial court after recording of evidence according to law, on merits without being influenced by the order passed herein.
[RAJEEV KUMAR DUBEY] JUDGE ns