Gujarat High Court
Soloman Harold Arnold vs Emanuel John Daniel on 12 March, 2024
NEUTRAL CITATION
C/FA/960/2024 JUDGMENT DATED: 12/03/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 960 of 2024
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2024
In R/FIRST APPEAL NO. 960 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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SOLOMAN HAROLD ARNOLD & ANR.
Versus
EMANUEL JOHN DANIEL & ORS.
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Appearance:
MR. MEHUL SHAH, SR.COUNSEL WITH MR BHAVESH B CHOKSHI(3109)
for the Appellant(s) No. 1,2
MR. VIJAY O SHARMA(6701) for the Appellant(s) No. 1,2
for the Defendant(s) No. 1,2
MR MJ PARIKH(577) for the Defendant(s) No. 3
MR PARESHKUMAR V THAKOR(12419) for the Defendant(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 12/03/2024
ORAL JUDGMENT
1. Rule. Mr.Pareshkumar Thakore, learned advocate waives service of notice of rule for and on behalf of the respondents.
2. The present First Appeal is filed under Section 96 read with Page 1 of 15 Downloaded on : Tue Mar 19 20:32:40 IST 2024 NEUTRAL CITATION C/FA/960/2024 JUDGMENT DATED: 12/03/2024 undefined Order 41 of the Code of Civil Procedure, 1908 (for short "Code") challenging the judgement and order dated 19.2.2024 passed below Exh. 1, 28 and 29 in Civil Suit No. 1373 of 2023 by the learned Chamber Judge, City Civil Court, Ahmedabad.
3. On a joint request of learned advocates appearing for both the parties, the First Appeal is taken up for final hearing. The parties are referred as their original status of the suit.
4. Heard Mr.Mehul Shah, learned Senior Counsel appearing for Mr. Bhavesh Chokshi, learned advocate for the appellants and Mr. Pareshkumar Thakore, learned advocate for the respondents.
5. The brief facts leading to the present case are as under:-
5.1 Plaintiffs filed a suit for relief of declaration of title under adverse possession together with cancellation of registered sale deed and permanent injunction against the defendants for a property being Plot No. 11 bearing City Survey No. 2709 having Tenament No. 015199-19-0001-0001-E situated in District Sub-District Ahmedabad - 3 (Memnagar) of Taluka Sabarmati Moje Saijpur -
Khanpur Final Plot No. 387 paiki of T.P.Scheme No. 19 which is known as Ajanta Park. The suit property was purchased on 15.2.1963 by father of defendant Nos.1 and 2. Since 1972, defendants are residing in foreign country. John Daniel was blind i.e. Page 2 of 15 Downloaded on : Tue Mar 19 20:32:40 IST 2024 NEUTRAL CITATION C/FA/960/2024 JUDGMENT DATED: 12/03/2024 undefined the owner of suit property before 1998 and after the marriage of plaintiff on 7.5.1998, the plaintiffs are residing with John Daniel and his wife Vinodiniben. During the life time of John Daniel and his wife, the plaintiffs were looking after and taking care of the couple and during the life time of John Daniel and his wife, the ownership rights of the suit property were given to the plaintiffs. The plaintiffs are in possession of the suit property and they are having Aadhar Card, Pan Card and other necessary documents substantiating their possession in the suit property. Even after the death of John Daniel on 16.5.2000, the plaintiffs were occupying the suit property. Vinodiniben expired on 27.12.2016 and even after her death also the possession was retained by the plaintiffs. The said facts was within the knowledge of the defendants and the defendants never raised any objection with regard to retaining of possession by plaintiffs. The plaintiffs are occupying the suit property since last more than 25 years. However, the defendant Nos. 1 and 2 executed a registered sale deed dated 12.9.2023 in favour of the defendant No.3 It is also the case of the plaintiffs that the registered sale deed is null and void and not binding to the plaintiffs. A notice dated 27.9.2023 was issued by defendant No.3 to the plaintiffs. The plaintiffs have claimed ownership on the ground of adverse possession and a declaratory relief is also sought for to that effect.
5.2 The defendants filed an application under Order 7 Rule 11 of Code of Civil Procedure vide Exh. 28 and 29 and claimed that the Page 3 of 15 Downloaded on : Tue Mar 19 20:32:40 IST 2024 NEUTRAL CITATION C/FA/960/2024 JUDGMENT DATED: 12/03/2024 undefined plaintiffs have no cause of action to file the present suit together with a prayer to reject the plaint on the ground of limitation. Learned Chamber Judge, City Civil & Sessions Court vide order dated 19.2.2024 rejected the plaint under Order 7 Rule 11(a) and (d) of the Code and further directed the plaintiffs to pay Rs. 5,000/- to the defendants and further directed the plaintiffs to pay Rs. 5,000/- in Legal Service Authority, City Civil Court, Ahmedabad.
6. Being aggrieved and dissatisfied with the said judgement and order, the appellants-original plaintiffs are before this Court.
7 Mr. Mehul Shah, learned Senior Counsel for Appellants has submitted that in view of the averments made in the plaint, rejection of plaint is outside the scope of Order VII Rule 11 of Code. It is further submitted that in the plaint, the prayers are three folds (1) for claiming title under adverse possession (2) the sale deed to be declared as null and void and (3) for permanent injunction. It is further submitted that looking to the averments made in the plaint, the parties are required to adduce evidence to establish their respective cases. The impugned order is therefore, unwarranted and dismissal of the rejection of the plaint is against the settled principle of law. It is further submitted that the averments made in the plaint, clearly demonstrate that the plaintiffs are in possession of the suit property since 1998 and even after the death of John Daniel, with the full knowledge and consent of defendants, the possession was Page 4 of 15 Downloaded on : Tue Mar 19 20:32:40 IST 2024 NEUTRAL CITATION C/FA/960/2024 JUDGMENT DATED: 12/03/2024 undefined retained by plaintiffs. The submission canvassed by learned Senior Counsel is that the plaintiffs were enjoying the possession as owners, after the death of John Daniel in the year 2000. The assertion as an owner of the suit property is continuous and hostile to the defendants within their express knowledge. It is further submitted that the plea of adverse possession and plea of ownership qua the suit property can be averred by the plaintiffs and there is no bar in taking contrary stand /plea in the plaint. Which plea will be granted by the trial Court is a matter of evidence and at the preliminary stage of the suit, plaintiffs cannot be non-suited by invoking the provisions of Order 7 Rule 11(a) and (d) of the CPC. It is further submitted that the plaintiffs have pleaded cause of action in the plaint. Learned trial Court has misdirected himself by observing that the plaintiffs have no cause of action to file the suit. There is distinction between the disclosure of cause of action and non pleading of cause of action. It is further submitted that the cause of action is bundle of facts and without adducing the evidence, the plaintiffs could not have been non-suited on the ground that the plaintiffs have no cause of action. It is further submitted that the learned trial Court has committed an error in law by observing that the plaintiffs are not entitled to the main relief and hence, for ancillary relief also the plaintiffs are not entitled to any of the reliefs. These observations are dehors the scope of Order 7 Rule 11 of CPC. It is further submitted that the plaintiffs have made out a case in the plaint which requires a trial and plaintiffs ought to have been given opportunity to prove their Page 5 of 15 Downloaded on : Tue Mar 19 20:32:40 IST 2024 NEUTRAL CITATION C/FA/960/2024 JUDGMENT DATED: 12/03/2024 undefined assertions of ownership over the property and plea of adverse possession.
7.1 Ms. Mehul Shah, learned Senior Counsel has placed reliance upon the decision in case of Sri Biswanath Banik and another Vs. Sulanga Bose and others reported in (2022) 7 SCC 731 wherein, the Hon'ble Apex Court has observed as under:-
"9. While rejecting the plaint, the High Court has also observed and held that the suit for a declaration simpliciter under Section 53A 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 the case of Delhi Motor Company (supra). 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 53A of the Transfer of Property Act."
7.2 Another decision in case of Purani Dhirajlal Amritlal Vs. Mehta Shankleshwar Aditram (since Deceased Through His Heirs and Legal Representatives ) reported in GLR 1976 (17) 67 wherein, the Apex Court has observed as under:-
"17. As stated even by the Bombay High Court in the aforesaid Full Bench decision, inconsistent pleadings can be taken. Our learned Brother A. D. Desai, J., has held that plaint in the moffusil should be construed liberally, and on perusing paras 5 and 6 of the plaint, he has reached the conclusion that there was such implicit pleading regarding the right of easement claimed on the basis of immemorial user. It is, therefore, not open to us in this second appeal to take any contrary view in that behalf. We, therefore, assume that such a right has been pleaded. Such alternative inconsistent pleas can be taken. But the question is, whether such a claim is proved. For the proof of it, requisite animus is a necessary ingredient. The learned appellate Judge has stated that even in the evidence, plaintiff has claimed ownership over the suit Chhindi. It is Page 6 of 15 Downloaded on : Tue Mar 19 20:32:40 IST 2024 NEUTRAL CITATION C/FA/960/2024 JUDGMENT DATED: 12/03/2024 undefined significant to note that he has nowhere 4ated any facts which would show that he acknowledged the ownership of deceased defendant over the suit Chhindi. On the contrary, he asserted his ownership over the suit Chhindi even in his evidence . It is, therefore, difficult, in the circumstances of the case and on the evidence led in the instant case, to reach the conclusion that there was requisite animus which is a necessary ingredient for the proof of the claim in question."
7.3 Another decision which has been relied upon is case of State of Orissa Vs. Klockner and Company and Others with Orissa Mining Corporation Vs. Klockner and Company and others with Klockner and Company Vs. Orissa Mining Corporation Ltd. reported in (1996) 8 SCC 377 as well as other decision in case of Mayur (H.K.) and others Vs. Owners & Parties, Vessel M.V.Fortune Express and others reported in (2006) 3 SCC 100
8. Per contra Mr.P.V.Thakore learned advocate for the respondents has submitted that there is no error committed by the learned trial Court in rejecting the plaint and has supported the observations and findings arrived at by the learned trial Court. It is further submitted that from the averments made in the plaint it is a case of the plaintiffs that they were care taker of deceased John Daniel and Vinodiniben. Plaintiffs have no right to claim title under adverse possession. It is further submitted that in the initial part of the plaint, the claim is that of ownership qua suit property and thereafter, the plaintiffs have changed their stand and claimed title under adverse possession. It is further submitted that the plaintiffs have taken contrary stands in the plaint. The plaintiffs are not legal Page 7 of 15 Downloaded on : Tue Mar 19 20:32:40 IST 2024 NEUTRAL CITATION C/FA/960/2024 JUDGMENT DATED: 12/03/2024 undefined heirs of deceased John Daniel. From the averments made in the plaint, the plaintiffs were permissive user and by relying upon the documents such as Adhar Card, Election Card etc., the plaintiffs cannot said to be owners of the suit property. It is further submitted that after death of John Daniel in the year 2000, the plaintiffs did not assert their ownership right over the suit property but, when the notice dated 27th September, 2023 was issued by the defendant No.3, the present suit is filed claiming adverse possession. It is further submitted that plaintiffs have no right to file suit and there is nothing comes out from the averments made in the plaint whereby, the plaintiffs can assert that right over the suit property.
8.1 Learned advocate for the respondents has placed reliance upon the decision of the Hon'ble Apex Court in case of Padhiyar Prahladji Chenaji Vs. Maniben Jagmalbhai (Deceased) Through L.R.S and Ors. [Civil Appeal No. 1382 of 2022 ] and another decision of the Co.ordinate Bench of this Court dated 29.9.2023 passed in Special Civil Application No. 25611 of 2022 in case of Revaben Balabhai Makwana Vs. Shri Kanaiyalal Ratilal Acharya.
9. I have considered the rival submissions and copy of the plaint which is placed on record, what is asserted in the plaint is that the plaintiffs are occupying the suit premises since their marriage in 1998. Plaintiffs were residing with John Daniel and his wife Vinodiniben and were looking after deceased couple during their life Page 8 of 15 Downloaded on : Tue Mar 19 20:32:40 IST 2024 NEUTRAL CITATION C/FA/960/2024 JUDGMENT DATED: 12/03/2024 undefined time. Assertions are made in the plaint that during the life time of John Daniel, the suit property was given to the plaintiffs as an owner. John Daniel expired on 16.5.2000 and his wife Vinodiniben expired on 27.12.2016. It is also asserted in the plaint that the possession of the plaintiffs qua the suit property was within the knowledge and consent of defendant Nos.1 and 2 and defendants never objected such possession. Admittedly, the plaintiffs have asserted their rights on two folds namely the acquired ownership rights during the life time of John Daniel and asserted their rights and title under the plea of adverse possession. On perusal of the averments made in the plaint and on meaningful reading of the plaint though the plaintiffs have taken contrary plea in the plaint, the reliefs are sought for in the plaint are three folds namely (1) challenging the sale deed dated 12.9.2023 executed in favour of defendant No.3 by defendant Nos. 1 and 2 (2) declaration of title under the adverse possession (3) for permanent injunction. Whether the plaintiffs succeed in claiming a relief of title under adverse possession and whether the plaintiffs have any right, title or interest in the suit property is a question of fact which can only be decided after adducing evidence. The challenge qua sale deed is also requires trial to be undergone. The questions of facts cannot be decided by invoking the provision of Order 7 Rule 11 of CPC.
10. The cause of action is a bundle of facts and this proposition is very well known proposition. Whether the plaintiffs have any cause Page 9 of 15 Downloaded on : Tue Mar 19 20:32:40 IST 2024 NEUTRAL CITATION C/FA/960/2024 JUDGMENT DATED: 12/03/2024 undefined of action to file the suit and whether the plaint discloses a cause of action are to different contingencies. In the present case, the plaintiffs have narrated the cause of action in para 17 of the plaint. Whether the plaintiffs can succeed in proving their case cannot be gone into while deciding application under Order VII Rule 11 of Code. Such questions can only be decided after fullfledged trial. Success of plaintiffs in main suit is not the criteria in deciding application of Order VII Rule 11 of Code. On meaningful reading of plaint, it is found that plaintiffs have raised some triable issues, application under Order VII Rule 11 is not maintainable.
11. In the case of Mayar (H.K.) Ltd. and others (Supra) wherein, in paragraph 12, the Hon'ble Apex Court has observed hereunder:-
"12. From the aforesaid, it is apparent that the plaint cannot be rejected on the basis of the allegations made by the defendant in his written statement or in an application for rejection of the plaint. The Court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if it does, then the plaint cannot be rejected by the Court exercising the powers under Order VII Rule 11 of the Code. Essentially, whether the plaint discloses a cause of action, is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct. A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud, wilful default, undue influence or of the same nature. So long as the plaint discloses some cause of action which requires determination by the court, mere fact that in the opinion of the Judge the plaintiff may not Page 10 of 15 Downloaded on : Tue Mar 19 20:32:40 IST 2024 NEUTRAL CITATION C/FA/960/2024 JUDGMENT DATED: 12/03/2024 undefined succeed cannot be a ground for rejection of the plaint. In the present case, the averments made in the plaint, as has been noticed by us, do disclose the cause of action and, therefore, the High Court has rightly said that the powers under Order VII Rule 11 of the Code cannot be exercised for rejection of the suit filed by the plaintiff-appellants.
12. In the case of State of Orissa (Supra) wherein, in paragraph 25, Hon'ble Apex Court has observed hereunder:-
"25. Now coming to Special Leave Petition (C) No. 19846/95, this petition is filed against the judgment and order of the High Court of Orissa at Cuttack in First Appeal No. 14/95 dated 12.5.95. By the Order under appeal, the High Court has reversed the Order of the learned Subordinate Judge, Bhubaneswar dated 26.3.94, by which the learned Subordinate Judge accepting an application filed under Order 7 Rule 11 C.P.C., rejected the plaint in title suit No. 231/92 filed by the first respondent in Special Leave Petition. The learned Single Judge of the High Court while reversing the Order of the learned Subordinate Judge observed as follows:-
"In the present case on a fair reading of the petition filed by defendant No. 1 under Order 7, Rule 11 of C.P.C it is clear that the case of the applicant is that the plaintiff has no cause of action to file the suit. It is not specifically pleaded by the applicant that the plaint does not disclose any cause of action. The learned trial Judge has also not recorded any specific finding to this effect. From the discussions in the order it appears that the learned trial Judge has not maintained the distinction between the plea that there was no cause of action to the suit and the plea that the plaint does not disclose a cause of action. No specific reason or ground is stated in the order in support of the finding that the plaint is to be rejected under Order 7, Rule 11(a). From the averments in the plaint, it is clear that the plaintiff has pleaded a cause of action for filing the suit seeking the reliefs stated in it. That is not to say that the plaintiff has cause of action to file the suit for Page 11 of 15 Downloaded on : Tue Mar 19 20:32:40 IST 2024 NEUTRAL CITATION C/FA/960/2024 JUDGMENT DATED: 12/03/2024 undefined the reliefs sought that question is to be determined on the basis of materials (other than the plaint) which may be produced by the parties at appropriate stage in the suit. For the limited purpose of determining the question whether the suit is to be wiped out under Order 7, Rule 11(1) or not the averments in the plaint are only to be looked into. The position noted above is also clear from the under Order 7, Rule 11 in which the thrust of the case pleaded is that on the stipulations in the agreement of 20.4.82 the plaintiff is not entitled to file a suit seeking any of the reliefs stated in the plaint.
13. In case of Sri Biswanath Banik and another(Supra), wherein, in paragraph nos. 9,10,11 and 12, the Hon'ble Apex Court has observed hereunder:-
"9. While rejecting the plaint, the High Court has also observed and held that the suit for a declaration simpliciter under Section 53A 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 the case of Delhi Motor Company (supra). 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 53A of the Transfer of Property Act.
10. 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.
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11. Even otherwise, the reliefs sought are interconnected. Whether the plaintiffs shall be entitled to any relief under Section 53A 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 53A 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.
12. In view of the above and for the reasons stated above, the High Court has committed a grave error in allowing the application under Order VII Rule 11 CPC and rejecting the plaint. The High Court has exceeded in its jurisdiction in rejecting the plaint while exercising the powers under Order VII Rule 11 CPC. The impugned judgment and order passed by the High Court is unsustainable both, on law as well as on facts.
14. In the present case the reliefs sought for are interconnected and the reliefs cannot be separated from each other for the reasons that the plaintiffs have raised inconsistent pleas. The decision relied upon by the learned advocate for the respondents are not helpful to the submissions of the respondents.
15. In case of Padhiyar Prahladji Chenaji (Supra), the decision was arrived at after rights of the respective parties were adjudicated after fullfledged trial. The evidence was lead by the respective parties and upon appreciation of evidence, the decision was arrived at by the learned trial Court. In case of Revaben Balabhai Makwana (Supra), the suit was for declaration and permanent injunction and a claim was raised that plaintiffs are in possession of the disputed property wherein, the injunction application Exh.5 Page 13 of 15 Downloaded on : Tue Mar 19 20:32:40 IST 2024 NEUTRAL CITATION C/FA/960/2024 JUDGMENT DATED: 12/03/2024 undefined came to be rejected. The ratio laid down in case of Mayar (H.K.) Ltd and others (Supra) is applicable.
16. In the totality of the facts and in view of the above decisions of Hon'ble Apex Court, I am of the view that the learned trial Court has committed an error in rejecting the plaint under Order 7 Rule 11
(a) and (d) of Code. In my view, on a meaningful reading of averments made in the plaint, the plaintiffs are required to be put to test by permitting them to prove their case by adducing the oral and documentary evidence. Thus, Order passed below Exh. 1, Exh.28 and 29 dated 19.2.2024 is hereby quashed and set aside. The Civil Suit No. 1373 of 2023 is restored to its original file. Application Exh. 28 and 29 is rejected. In the peculiar set of facts, the learned trial Court is hereby directed to decide Civil Suit No. 1373 of 2023 as early as possible preferably within a period of two (2) years from the date of receipt of this order. Both the parties are directed to give full cooperation to learned Trial Court for expeditious hearing of suit without asking for unnecessary adjournments. In the meantime, the plaintiffs shall maintain status quo with regard to title and possession of the suit property. Present First Appeal is allowed. Rule is made absolute.
Page 14 of 15 Downloaded on : Tue Mar 19 20:32:40 IST 2024 NEUTRAL CITATION C/FA/960/2024 JUDGMENT DATED: 12/03/2024 undefined ORDER IN CIVIL APPLICATION:-
In view of the order passed in the main matter i.e. First Appeal No. 960 of 2024, this application does not survive and stands disposed of accordingly.
(D. M. DESAI,J) BEENA SHAH Page 15 of 15 Downloaded on : Tue Mar 19 20:32:40 IST 2024