Jharkhand High Court
Mahadeo Prasad Burnwal vs Atpendra Roy Choudhary And Ors. on 2 August, 2006
Equivalent citations: AIR2007JHAR88, [2007(1)JCR228(JHR)], AIR 2007 JHARKHAND 88, 2006 (13) SCC 622, 2007 (2) AIR JHAR R 308, 2007 A I H C 2243, (2006) 4 ARBI L.R. 241, (2007) 50 ALLINDCAS 78 (SC), (2007) 66 ALL LR 668, (2007) 1 CURCC 5, (2007) 1 RECCIVR 283, (2007) 1 ALL WC 555, (2007) 1 PAT LJR 58, (2006) 11 SCALE 644, (2007) 1 JLJR 58, (2007) 1 JCR 228 (JHA), (2007) 2 JCR 271 (SC), (2007) 50 ALLINDCAS 78
Author: Narendra Nath Tiwari
Bench: Narendra Nath Tiwari
JUDGMENT Narendra Nath Tiwari, J.
1. Heard the parties.
2. This appeal has been preferred against the judgment dated 28.4.2004, passed by learned Additional District Judge, Fast Track Court-III, Deoghar in Title Appeal No. 8 of 2002 whereby the lower appellate court has set aside the order dated 11.8.2002 passed by learned trial court, rejecting the petition fled by the appellant-defendant No. 4 under Order VII Rule 11 C.P.C.
3. The plaintiff filed suit being Title (D) Suit No. 54 of 2001 in the court of Sub-Judge-I, Deoghar praying relief for declaration that the plaintiff is a co-owner and has a preemptory right to purchase the suit property and for permanent injunction, restraining the defendants from transferring the suit property or from altering the status of the property.
4. The case of the plaintiff was that the plaintiff and the defendants are co-owners of the. joint property being Plot Nos. 196,197 and 207 (part) also numbered as Town Plot No. 1401, measuring 4 Kattha, 10 Dhur, equivalent to 0.26 acre. The said land was acquired by Rohini Estate and was settled with Haldhar Mishra. Said Haldhar Mishra came in possession of the said land and constructed a Pucca building and started living therein. Subsequently, he sold the said property to Bhairav Chandra Lahiri, who later on transferred the same to Smt. Pantha Devi and Prabhawati Devi by virtue of sale-deed dated 23.12.1946. The said purchasers came in joint possession of the property. On partition between the purchasers, eastern portion was allotted to Smt. Pantha Devi, who got her name mutated and paid rent and municipal taxes. Smt. Pantha Devi, thereafter, sold her property to Mrityunjay Rai by virtue of sale-deed dated 20.1.1962 and, in his turn, Mrityunjay Rai sold the said property to Smt. Tarulata Rai Choudhary, mother of the plaintiff, who had been in possession of the said property. The western portion of the property was allotted to Prabhawati Devi and she had been in possession thereof. After her death the same has come in possession of defendant Nos. 1 and 2. The defendant Nos. 1 and 2 executed a power of attorney in favour of defendant Nos. 3 and 4 for the purpose of selling the suit property. The plaintiff, being co-owner, claimed preferential and preemptory right of the said holding and as such, the plaintiff sent a notice to. the defendants but inspire of the plaintiff's offer and notice, the defendants have executed six agreements for sale in favour of six different persons. Hence the suit.
5. The defendant No. 4 appeared and filed written statement, denying and disputing the facts and stating, inter alia, that the plaintiff is not a co-owner of the suit property nor has got preferential or peremptory right and that such claim made after 38 years is barred and untenable. It has been stated that there was a partition between Pantha Devi and Prabhawati Devi and their names were separately mutated in respect of the portion of the property allotted to their respective share. The defendant Nos. 1 and 2 after allotment of the share came in exclusive possession of the western side of the said property and, thereafter, they have sold the property to different purchasers. All the purchasers are in possession of their respective portion, purchased by them. The said defendant No. 4, subsequently, filed a petition stating, inter alia, that the plaintiff has not disclosed the cause of action for the suit and the plaint is liable to be rejected under the provisions of Order VII Rule 11 C.P.C.
6. Learned trial court by its order dated 4.9.2001 rejected the plaint on the ground that the plaintiff has got no legal and constitutional right of preemption. The plaintiff, thereafter, preferred an appeal in the court of learned District Judge, Deoghar, which was registered as Title Appeal No. 8 of. 2002. The said appeal was heard and disposed of by learned Additional District Judge, Fast Track Court-III, Deoghar, by the impugned judgment. Learned lower appellate court after thorough consideration and discussion of the evidences and materials on record, came to the finding that the defendant failed to point out any ground on which the plaint in the instant case can be rejected under Order VII Rule 11 C.P.C. Learned lower appellate court found that there was cause of action against the defendant Nos. 1 and 2 and the plaintiff has properly valued the suit and is not barred by limitation. Learned lower appellate court also found that the trial court has erroneously held that the plaintiff has got no cause of action and the suit has been brought on fictitious ground. Learned lower appellate court set aside the order of the trial court and remanded back the case to learned Sub-Judge-VI, Deoghar directing the trial court to hear the parties and to pass the order after thorough consideration of the materials on record in accordance with law. In this appeal, the said order of remand has been challenged by the appellant.
7. Learned Counsel appearing on behalf of the appellant submitted that learned lower appellate court has failed to consider that there was no averment in the plaint showing any infringement of legal or constitutional right of the plaintiff and disclosing any valid cause of action and as such learned trial court had rightly rejected the plaint for not disclosing any valid cause of action in the plaint and that learned lower appellate court has erroneously set aside the said order without properly coming to the conclusion as to whether the plaintiff has got any legal or constitutional right, which has been infringed giving rise to the cause of action for the suit.
8. Learned Counsel appearing on behalf, of the respondents, on the other hand, submitted that for rejection of the plaint under Order VII Rule 11 C.P.C., it is to be seen as to whether the plaint discloses the cause of action for trial and decision by the court. Learned Counsel submitted that on the said objection and in view of the controversy, it will be itself an issue in the suit as to whether the plaintiff has got valid cause of action for the suit to be tried and decided on the basis of evidences on record. The provisions of Order VII Rule 11 C.P.C. does not contemplate pre-judging of such an issue at the threshold. The relevant consideration is as to whether the facts, stated in the plaint, give rise to some cause which requires a decision of the court. Learned lower appellate court has considered the materials on record and came to the finding that there are facts, which disclose such cause of action for the suit and, thus, has rightly set aside the order of learned trial court. There is no infirmity in the impugned judgment of the appellate court.
9. Having considered the submissions made by the learned Counsel and also materials on record, I find that learned-lower appellate court after going through the records has come to the finding that the plaintiff has disclosed the cause of action against the defendants and that there was no ground for rejection of the plaint. It has been rightly submitted by the learned Counsel for the respondents that whether the plaintiff has got legal or constitutional right or any such-right has been infringed or not is an issue to be decided in the suit and the same cannot be considered and held while dealing with the plaint under Order VII Rule 11 C.P.C., which does not contemplate any such consideration or decision, rather the court has only to see at that stage whether the plaint discloses the cause of action or not. Learned lower appellate court has considered the same and has come to the finding that the appellant has got cause of action and there was no valid ground for rejection of the plaint by learned trial court. I find substance in the submissions of learned Counsel for the respondents. The grounds on which the impugned judgment of learned appellate court has been assailed is not relevant. The issue: whether the plaintiff has got valid cause of action or not, is not required to be decided while considering the plaint under Order VII Rule 11 C.P.C. Power under Order VII Rule 11 C.P.C has to be exercised with utmost caution. Dismissal of the suit at the threshold may lead to serious consequences and defeat the purpose of justice. Plaint which raises legally tenable and arguable points should not be rejected under Order VII Rule 11 C.P.C., as has been found in the instant case by learned lower appellate court. I, therefore, find no infirmity in the impugned judgment of the lower appellate court. There is no merit in this appeal which is, accordingly, dismissed.