Madhya Pradesh High Court
Trishala Grih Nirman Sahkari Sanstha ... vs Anwar on 8 February, 2016
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HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
S.B.: HON'BLE MR. S. C. SHARMA, J
CIVIL REVISION NO. 231 / 2015
TRISHALA GRIH NIRMAN SAHKARI SANSTHA MARYADIT
INDORE THROUGH DILIP SISODIA
VS.
ANWAR S/O DILAWAR
AND TEN OTHERS
*****
ORDER
( 08/02/2016) The present Revision has been filed by the applicant who is defendant No.1 in Civil Suit filed by respondent Nos. 1 to 7.
Facts of the case reveal that defendant No.1 applicant before this Court is a Cooperative Housing Society registered under the M. P. Cooperative Societies Act and has purchased a piece of land admeasuring 15 acres in Khajrana, Indore vide registered sale deed dt. 16/11/06. The cooperative society after purchasing the land applied for mutation and the same was objected by respondent No.8, 9 and 10. Respondent No. 8, 9 and 10 thereafter filed Civil Suit for declaring the sale deed dt. 16/11/06 as null and void and other reliefs were also claimed regarding recovery of amount. An application was preferred under Or. 7 R. 11 of
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the Code of Civil Procedure, 1908 and the same was rejected by the trial Court. Thereafter the matter has travelled before this Court and this Court in C.R.No. 25/2015 has allowed the petition preferred by the present petitioner by order dt. 31/8/15 meaning thereby the Civil Suit ie., C.S.No. 25-A/2012 filed by the respondent Nos. 8, 9 and 10 has been dismissed.
In the present case, the respondent No. 1 to 7 have filed Civil Suit in respect of the same land which was sold to the applicant Society vide registered sale deed dt. 16/11/06. The respondent No.1 to 7 have stated that they are children of respondent No. 8, 9 and 10 who have earlier filed Civil Suit and their contention is that as per plaint averment that the land in question was given to them by their grand father namely late Alam Patel 30 - 32 years back. It has been argued by the learned counsel for the applicant that age of plaintiff No.1 as mentioned in the plaint is 38 years, meaning thereby, he was 6 years at the time the so-called Hiba was made, plaintiff No.2 is 30 years, meaning thereby he was not even born at the time Hiba took place, plaintiff No.3 was 40 years, meaning thereby 8 years old, plaintiff No.4 was 32 years, meaning thereby, he was born in the same year, plaintiff No.5 was 30 years, meaning therby, he was not born, plaintiff No.6 was 35 years, meaning thereby, 3 years of age, plaintiff No.7 was aged 30 years, meaning thereby, he was not born at the time the so-called Hiba was
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executed by late Alam Patel.
Learned counsel for the petitioner has drawn attention of this Court towards the Principles of Mahomedan Law, 18th Edn., by Justice M. Hidayatullah and Arshad Hidayatullah and his contention is that as per the Muslim Law, Hiba or a gift is a transfer of property made with and without any exchange from one person to another and accepted by on behalf of the latter. Contention of the applicant is that for a valid Hiba, there should be a declaration by the donee, there should be an acceptance and delivery of possession should also take place as it is also one of the essential ingredient of Hiba. Learned counsel for the petitioner has drawn attention of this Court towards the plaint averments and his contention is that four plaintiffs were not born at the time the so-called Hiba was executed by late Alam Patel and therefore, the trial Court has erred in law and facts in dismissing the application under Or. 7 R. 11 of the Code of Civil Procedure, 1908. He has also argued that no relief for cancellation of sale deed dt. 16/11/06 has been sought in the Civil Suit at any point of time. He has also stated that respondent No. 8, 9 and 10 with open eyes have sold the land to the petitioner Housing Society and all attempts were made to involve the present applicant in civil litigation on some pretext or the other. While mutation was being done, objection was raised in which finally the Housing Society succeeded. Respondent No. 8, 9 and 10
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also went to the extent in filing Civil Suit for cancellation of sale deed and the same has been dismissed by virtue of order passed in C.R.No. 25 / 2015 on 31/8/2015 and at the same time the children of respondent No. 8, 9 and 10 have filed Civil Suit stating that their grand-father have donated property to them even though five of them were not born at the time the alleged Hiba has been executed. He has placed reliance upon the judgment delivered in the case of Bibi Riajan Khatoon and others Vs. Sadrul Alam and others reported in AIR 1996 Patna 156; Abdur Rahman and others Vs. Smt. Athifa Begum and others reported in AIR 1998 Karnataka 39; Hafeeza Bibi and others Vs. Shaikh Farid reported in 2011 (4) MPLJ 46; T. Arivandandam Vs. T. V. Satyapal reported in AIR 1977 SC 2421; Karim Bhai Vs. State of Maharashtra and others reported in I.L.R. (2009) MP 3167; Neelam Kumar Bachani and another Vs. Bhishamlal reported in 2013 (4) MPLJ 117. His contention is that the plaint averment does not disclose the ingredients of Hiba, they do not disclose the manner and method it was given to unborn persons, it does not disclose acceptance and it does not delivery of possession and, therefore, the trial Court has erred in law and facts in dismissing the application preferred under Or. 7 R. 11 of the Code of Civil Procedure, 1908.
On the other hand, learned counsel for the respondent No. 1 to 7 has argued before this Court that the trial Court
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has rightly rejected the application preferred under Or. 7 R. 11 of the Code of Civil Procedure, 1908 as it is a matter of evidence, whether the plaintiffs were born or not at the time the Hiba took place. It has been further stated that the trial Court was justified in rejecting the application preferred under Or. 7 R. 11 of the Code of Civil Procedure, 1908 as only plaint averments are required to be seen while deciding an application under Or. 7 R. 11 of the Code of Civil Procedure, 1908.
Learned counsel for the respondent has placed reliance upon the judgment delivered by the apex Court in the case of P. V. Guru Raj Reddy Rep. By GPA Laxmi Narayan Reddy and another Vs. P. Neeradha Reddy and others reported in AIR 2015 SC 2485; Popat and Kotecha Property Vs. State Bank of India Staff Association reported in (2005) 7 SCC 510; Sopan Sukhdeo Sable and others Vs. Assistant Charity Commissioner and others reported in (2004) 3 SCC 137; Saleem Bhai and others Vs. State of Maharashtra and others reported in AIR 2003 SC 759; Valia Peedikakkandi Katheessa Umma and others Vs. Pathakkalan Naranath Kunhamu and others reported in AIR 1964 SC 275; Darbari Vs. Sunwa and another reported in 2004 (2) MPLJ 490. His contention is that in the light of the aforesaid judgments, unless and until the suit is barred by some statutory provisions, the same cannot be dismissed on an application preferred under Or. 7 R. 11 of the Code of Civil Procedure,
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1908. He has also stated that in the light of the aforesaid judgment delivered by the apex Court, the law is very clear in respect of Muslims that a Gift can be accepted on behalf of the minor / guardian. He has further stated that his suit for grant of permanent injunction is maintainable. He has also argued that because two plaintiffs were minor, the suit is maintainable on their behalf. He has also argued whether the children were born or not and they were minor or not, is a matter of evidence and the trial Court was justified in rejecting the application preferred under Or. 7 R. 11 of the Code of Civil Procedure, 1908.
Heard learned counsel for the parties at length and perused the record.
It is an undisputed fact that in the present case the Society in question which is a Housing Society has bought the land from respondent Nos. 8, 9 and 10 through a registered sale deed dt. 16/11/06. It is also an admitted fact that respondent No.8, 9 and 10 have filed a Civil Suit for setting aside sale deed executed by them and they have been unsuccessful in their attempt. It is also an admitted fact that attempts were made for restraining the revenue authorities to mutate the name by respondent No.8, 9 and 10 and respondent No. 8, 9 and 10 have been unsuccessful in raising the objection before the revenue authorities. However, the fact remains that this Court by order dt. 31/8/2015 passed in Trishla Grah Nirman Housing Co.
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Society Vs. Dilawar Patel and others (C.R.No. 25/2015), has allowed the Civil Revision, meaning thereby the application preferred under Or. 7 R. 11 of the Code of Civil Procedure, 1908 has been allowed which was filed for dismissal of the suit filed by respondent No. 8, 9 and 10. It is an admitted fact that respondent No. 1 to 7 are the plaintiffs before the trial Court and they are children of respondent No.8, 9 and 10 meaning thereby, now the children are before this Court and they have filed Civil Suit for grant of declaration and possession in respect of the same property which is subject matter of sale deed dt. 16/11/2006. It has been vehemently argued by the learned counsel for the respondent No.1 to 7 that whether the plaintiffs No. 2, 4, 5 and 7 were in existence or not, is a matter of evidence.
This Court has carefully gone through the plaint. The plaint averment makes it very clear that the plaintiffs No.2, 4, 5 and 7 were below 32 years of age. It is a statement made on affidavit in the plaint about their age by the plaintiffs themselves and, therefore, this Court is of the considered opinion that once the plaintiffs have shown their age reflecting that they were not born at the time the Hiba took place, it has to be gathered from the plaint averments that they were in existence. It is not a matter of evidence. In paragraph 8 of the plaint, which is on record, it has been stated that the land in question was given by the grand- father namely late Alam Patel to respondent No.1 to 7 about
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30 to 32 years back. This statement is also made on affidavit in the plaint and it is an admitted fact that barring two plaintiffs / respondents all of them were not born when the alleged Hiba is said to have been executed, meaning thereby, the plaint averment makes it very clear that most of the plaintiffs were not born at the time the execution of Hiba as has been stated in the plaint and, therefore, based upon the plaint averment, this Court is of the considered opinion that the plaintiffs No.2, 4, 5 and 7 were not in existence at all at the time the Hiba is said to be executed. So far as the other plaintiffs are concerned, they were aged about 3 years, 8 years and 6 years at the time the so-called Hiba took place. Essential ingredients of Hiba are, as per Muslim Law (see : Principles of Mahomedan Law by Justice M. Hidayatullah, 18th Edn.,), the declaration by donee, acceptance by the person in whose favour the Hiba is made and delivery of possession.
There is no plaint averment in respect of acceptance, in the plaint, nor there is any plaint averment in respect of delivery of possession. Except for making a bald statement that the land was donated by their grand-father 30 - 32 years back, the plaint is lacking material statement. It appears that in order to circumvent the sale deed which was executed by respondent No.8, 9 and 10 who are the fathers of plaintiff No. 1 to 7 / respondent No. 1 to 7, the present Civil Suit has been filed.
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In the case of Bibi Riajan Khatoon (supra), the Patna High Court has dealt with essentials of a gift deed under the Mahomedan Law. The Patna High Court in paragraph 10 has held as under :
10. As regards the first two questions suffice it to say that in my opinion, under the Mohammedan Law for validity of the deed of gift four elements are necessary; (1) declaration of gift by the donor (2) relinquishment by donor of ownership and dominion (3) acceptance of the gift by donee, and (4) delivery of possession of the property by donor. The relinquishment of control and ownership by the donor is necessary to complete the gift (see Most. Bibi v. Sheikh Wahid, ILR (1928) 7 Pat 118: (AIR 1928 Pat
183) Musa Miya v. Kadar Bux, (1928) 55 IA 171). The trial court was conscious about these elements and discussed it by making reference to the statements of P. Ws. and D.Ws. and has come to the conclusion that all the elements were not present. The lower appellate court while reversing those findings and writing judgment of reversal was duty bound in view of the provisions of Order 41, Rule 31 of the Code, to bear in mind the reasons ascribed by the trial Court. In case the evidence has received the better treatment of the hands of trial court, in that event, even though appellate court would be justified, in taking a different view on question of fact, but that should be done after adverting to the reasons given by the trial Judge in arriving at the finding in question. As pointed out the lower appellate court failed to do it.
(See S.V.R. Mudaliar (dead) by L.Rs. v. Mrs. Rajabu Buhari (dead) by L.Rs., AIR 1995 SC 1607 (Paras 14 and 15); Dollar Co. v. Collector of Madras, 1975 (Supp) SCR 403, (AIR 1975 SC 1670), Rani Hemant Kumari v. Maharaja Jegadhindra Nath, (1906) 10 Cal WN 630 (PC) did not consider the validity of gift rather just by implication it has assumed that the deed of gift was valid and set aside the findings of fact recorded by the trial court.
Keeping in view the judgment delivered by the Patna High Court, as the plaint averments does not include the aforesaid essential ingredients and, therefore, the so-called Hiba / Gift can never be said to be a complete Hiba as held by the Patna High Court.
A similar view has been taken by Karnataka High Court in the case of Abdur Rahman (supra). The Karnataka
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High Court in paragraph 30 and 31 has held as under :
30. The Leaned Counsel for the appellants submitted that Ex.D.2 -
settlement deed executed by Amathul Hadi was a deed totally unknown to Mohammedan Law, for, according to him the same is neither a gift deed nor a will and therefore he argued that under Ex.D.2 the respondent No. 1 does not get any right, title and interest thereunder. But, I do not have any hesitation to reject such an argument advanced by him for the reason that in same of the reported decision referred to above, wherever a Mohammadan had executed a settlement deed, the Courts have taken the same as gift deed and held the same valid provided the conditions of a valid gift under a Mohammadan Law are satisfied. That takes me to consider whether Ex.D.2 - settlement deed is a valid gift under the Mohammadan law. In the light of the above decisions cited by both sides with regard to the necessary conditions for a valid gift under the Mohammedan law and further in the light of the provisions under Sections 148 to 150 of the Mohammadan Law, the three essentials of a gift under Mohammadan law are as follows:
i) declaration of the gift by the donor,
ii) acceptance of the gift so made by the donee and
iii) delivery of the possession or the usufruct of the subject property so gifted.
31. Courts have consistently held that when there is no compliance of any of the above three essential conditions, the gift renders itself as invalid. As a matter of fact, the arguments advanced by both the sides are also to the above effect. Of course, it cannot be otherwise, for, compliance of the above three conditions is matter of law and therefore is not available for an argument opposed to the same. Therefore it appears to me that it is enough for me to examine whether Ex.D.2 - settlement deed executed by Amathul Hadi in favour of the respondent No. 1 is in compliance with the above three essential conditions or not. To consider the same, I feel it proper to quote the entire settlement deed in Ex.D.2. The same reads as follow:
"This deed of settlement is made and executed this 7th day of November, 1975 by Smt. Amatul Hadi, daughter of late Mohammed Ishak Sahib, residing at Old No. 1115A, New No. 224 Narayanpillay Street, Civil Station, Bangalore hereinafter called the Settlor of the one part and Smt. Arifa Begum, daughter of Sri late A.H. Khaleel Saheb, major, also residing at Old No. 115/A, New NO. 224 Narayanapillay Street, Civil Station, Bangalore hereinafter called the beneficiary of the other part; WITNESSETH AS FOLLOWS:
Whereas the Settlor is the aunt of the beneficiary and whereas she has been very much attached to the beneficiary and whereas the settler herself has no children and is therefore desirous of making a suitable settlement in favour of the beneficiary and whereas in pursuance of the desire and with the object of making a suitable
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settlement upon the beneficiary the settler has decided to settle and transfer the immovable property bearing No. 11, New No. 20, Victoria Road, Civil Station, Bangalore. Now therefore This Deed of Settlement Witnesseth: That in pursuance of the above desire and with the object of making a suitable settlement upon the beneficiary who is dependent on the settlor the settlor transfers the schedule property by way of settlement upon the beneficiary to have and to hold the same absolutely and for every free of all encumbrances, charges, liens subject to the condition that during the life time of the settlor she shall be entitled to the usufruct from the property and she shall also have a right to residence if she chooses to reside in the said property.
Schedule All the piece and parcel of land and building bearing Corporation old No. 11, New No. 20, Victoria Road, Civil Station, Bangalore, situated behind two properties facing Victoria Road bounded on the north by passage (10 ft. wide) to be provided leading to Old No. 11/2, New No. 22, Victoria Road, on the South by Old No. 11/1 New No. 21, Victoria Road, on the East by 30' approach road leading to Victoria Road and on the West by premises No. 11/2, New No. 22, Victoria Road, measuring North to South about 60'x70' and east to west 60'x70'. Building is 50 years old and in dilapidated condition. Valuation Rs. 35,000/- (Thirty five thousand only).
In witness whereof the settlor set her hand on the day month and year first above written.
Witnesses: Sd/-
1. Sd/- Settlor
2. Sd/-
The Hon'ble Supreme Court while dealing with a Gift under the Mahomedan Law has also considered this issue and paragraph 27 and 28 of the judgment delivered in the Hafeeza Bibi (supra) has held as under :
27. The position is well settled, which has been stated and restated time and again, that the three essentials of a gift under Mohammadan Law are; (i) declaration of the gift by the donor; (2) acceptance of the gift by the donee and (3) delivery of possession.
Though, the rules of Mohammadan Law do not make writing essential to the validity of a gift; an oral gift fulfilling all the three essentials make the gift complete and irrevocable. However, the donor may record the transaction of gift in writing. Asaf A. A. Fyzee in Outlines of Muhammadan Law, Fifth Edition (edited and revised by Tahir Mahmood) at page 182 states in this regard that writing may be of two kinds : (i) it may merely recite the fact of a prior gift; such a writing need not be registered. On the other hand, (ii) it may itself be the instrument of gift; such a writing in
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certain circumstances requires registration. He further says that if there is a declaration, acceptance and delivery of possession coupled with the formal instrument of a gift, it must be registered. Conversely, the author says that registration,however, by itself without the other necessary conditions, is not sufficient.
28. Mulla, Principles of Mahomedan Law (19th Edition), Page 120, states the legal position in the following words :
"Under the Mahomedan law the three essential requisites to make a gift valid : (1) declaration of the gift by the donor: (2) acceptance of the gift by the donee expressly or impliedly and (3) delivery of possession to and taking possession thereof by the donee actually or constructively. No written document is required in such a case. Section 129 Transfer of Property Act, excludes the rule of Mahomedan law from the purview of Section 123 which mandates that the gift of immovable property must be effected by a registered instrument as stated therein. But it cannot be taken as a sine qua non in all cases that whenever there is a writing about a Mahomedan gift of immovable property there must be registration thereof. Whether the writing requires registration or not depends on the facts and circumstances of each case."
The apex Court has dealt with the Principles of Mahomedan Law by Mulla 19th Edn.,and has again held that until and unless three conditions are fulfilled a gift can never said to be a proper Gift / proper Hiba.
Learned counsel for the petitioner has placed reliance in the case of T. Arivandandam (supra) and his contention is that false or vexatious claims should be shot down at the earliest stage. Paragraph 5 of the judgment reads 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
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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 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."
Contention of the learned counsel for the petitioner is that in the light of the aforesaid judgment, as the Civil Suit is nothing, but a false and frivolous claim to extract more money from the Housing Society, has to be shot down at the earliest stage.
Reliance has also been placed by the learned counsel for the petitioner in the case of Neelam Kumar Bachani (supra) and his contention is that at preliminary stage only pleadings in the plaint are required to be examined.
Paragraph 7 of the aforesaid judgment reads as under :
7. It is settled law that if an application under Order 7, Rule 11 of Civil Procedure Code for dismissal of the suit is filed at the preliminary stage, as prescribed under the provisions of the aforesaid order, only the pleadings in the plaint are required to be examined. The pleadings raised by the defendants in the written statement are not required to be looked into while deciding an application under Order 7, Rule 11 of Civil Procedure Code.
However, it is also to be seen that the law of limitation varies with respect to prescription of limitation for filing the suit of different descriptions. A suit for loan transaction may be based on the cause of action which accrued after payment of the loan amount. For example, if an agreed date for repayment of the loan amount is prescribed and on demand within the said period or day, the loan amount is not repaid, the cause of action would accrue on refusal of repayment of loan and the limitation would start from the date of refusal of the repayment of the load. However, there are specific safeguard prescribed in cases where the amount is paid by cheques. As far as the cheques are concerned, the same are treated as bill of exchange as per the definition given under Section 2 (c) of the Limitation Act. A specific bar is also created under the Limitation Act in Section 3, where it is said that subject to the provisions contained in sections 4 to 24 (inclusive) every
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suit instituted appeal preferred, and application made after the prescribed period of limitation shall be dismissed, although limitation has not been set up as a defence. Section 4 of the Limitation Act prescribes nothing but enlargement of the period of limitation if on the last date of filing of the suit, appeal or application expires on a day when the Court is closed, only upto the day when the Court reopens. The period of limitation as prescribed under Limitation Act can be extended only in case of an appeal or any application, but the provisions of Section 5 of the Limitation act are not made applicable to the suits.
The contention of the learned counsel for the petitioner is that from the bare perusal of the plaint it is evident that most of the plaintiffs were not born at the time the alleged Hiba was executed and two plaintiffs were aged about 6 to 8 years and, therefore, the plaint itself deserves to be dismissed.
This Court has carefully considered the arguments canvassed by the learned counsel for the respondent No.1 to 7 (plaintiffs). Learned counsel for the respondent has vehemently argued before this Court that in respect of those plaintiffs wherein allegations have been made that they were not even born, the matter has to be decided whether they were born or not, by the trial Court. This Court really fails to understand that what more evidence is required when the plaintiffs themselves have stated that their age to be less than 30 years and are themselves are stating that the Hiba took place 32 years back. It is an open and shut case keeping in view the pleadings made by the plaintiffs in the plaint and, therefore, it is certainly not a matter of evidence.
Learned counsel for the respondent has further placed
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reliance upon the judgment delivered in the case of Popat and Kotecha Property (supra) and his contention is that the Hon'ble Supreme Court has held that Or. 7 R. 11 applies only where statement has been made in the plaint without any doubt or dispute shows that the suit is barred by any law in force. This Court has carefully gone through the aforesaid judgment and is of the considered opinion that in the present case, keeping in view the fact that most of the plaintiffs were not born at the time Hiba has taken place and othr plaintiffs were minor at the time the alleged Hiba took place and there is no material in the plaint to support the event of Hiba as it requires acceptance and delivery of possession, the present case is nothing but a bogus litigation which has to be shot down at the earliest stage, as held by the Supreme Court and, therefore, the judgment relied upon by the learned counsel for the respondent is of no help to the respondent No. 1 to 7.
Learned counsel for the respondent has further relied upon the judgment delivered in the case of Sopan Sukhdeo Sable (supra) and it was a issue relating to jurisdiction of the Civil Court and in those circumstances an application under Or. 7 R. 11 of the Code of Civil Procedure, 1908 was dealt with by the apex Court.
In the present case, there is no such issue relating to jurisdiction and the judgment relied upon by the learned counsel for the respondent is of no help to the respondent
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No.1 to 7. On the contrary, in the same judgment it has been held by the apex Court that for the purpose of deciding an application under Or. 7 R. 11 of the Code of Civil Procedure, 1908 plaint averments are to be looked into and the pleas taken in the Written Statement would be wholly irrelevant at that stage and, therefore, this Court is of the considered opinion that the judgment relied upon by the learned counsel for the respondent is of no help to the respondent No.1 to 7.
Again in the case of Saleem Bhai (supra), the apex Court has once again held that while deciding an application under Or. 7 R. 11 plaint averments are to be looked int.
This Court has carefully considered the plaint averments and in the light of the judgment relied upon by the learned counsel for the respondent No.1 to 7, is of the opinion that the plaint deserves to be dismissed for the reasons which have been detailed in the earlier part of the order.
Judgment relied upon by the learned counsel for the respondent in the case of Darbari (supra) relates to a case regarding maintainability of a suit for declaration simplicitor.
The issue involved in the present case was not at all identical to the subject matter in dispute before the learned Single Judge of this Court. In the present case, this Court is of the opinion that the suit itself is not maintainable and,
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therefore, as the judgment relied upon does not been deal with the controversy involved in the present case, it does not also help respondent No.1 to 7 in any manner.
Lastly reliance has been placed by the learned counsel for the respondent P. V. Guru Raj Reddy (supra) and his contention is that the suit cannot be dismissed on the ground of delay and laches.
In the present case, the sale deed was executed in the year 2006 ie., 16/11/2006, and the respondent No.1 to 7 and their fathers respondent No. 8 to 10 are living under one roof which is reflected from the cause title of the plaint, the address is same in respect of respondent No.1 to 10 which includes plaintiffs No.1 to 7 and their fathers who are defendant No.2 to 5 in the plaint means all of them are residing at the same place. The children of respondent No. 8, 9 and 10, as argued before this Court, were not aware of the sale deed executed in the year 2006 and, therefore, they have filed Civil Suit for declaration and for grant of permanent injunction in the year 2012. It really appears to be strange that one generation was totally unaware about the sale deed executed by the earlier generation. The fathers have executed sale deed and none of the children are aware of the sale deed. It appears that in order to overcome the limitation aspect, sale deed has not been challenged and the suit for declaration and possession has been filed by the plaintiff No.1 to 7.
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In the present case, as already stated earlier, the sale deed has been unsuccessfully challenged by the respondent No. 8 to 10, and at the same time, their children forming one set of litigants are also challenging the sale deed indirectly of the year 2006 by stating that they got the property in Hiba even though most of them were not born at the time the Hiba took place.
This Court is of the considered opinion that the present petition deserves to be allowed as the plaint itself has been filed with oblique and ulterior motive, which is certainly a bogus and vexatious litigation (in the words of Hon'ble Supreme Court), as held in the case of T. Arivandandam (supra) and the same has to be done at the earliest stage.
Resultantly, the present Civil Revision is allowed. Application preferred under Order 7 Rule 11 of the Code of Civil Procedure, 1908 stands allowed. The order passed by the learned trial Court dated 28/07/2015 is hereby quashed.
(S. C. SHARMA) JUDGE KR