Telangana High Court
Omer Bin Ali Bin Hamza And 6 Others vs Kaneez Fathima on 18 January, 2022
Author: B.Vijaysen Reddy
Bench: B. Vijaysen Reddy
THE HON'BLE SRI JUSTICE B. VIJAYSEN REDDY
CIVIL REVISION PETITION No. 1915 of 2021
ORDER:
Heard Mr. Khaja Aijazuddin, learned counsel for petitioners, Mr. Ashfaq Ahmed, learned counsel appearing for respondent Nos.1 to 3 and Mr. M. Govind Reddy, learned counsel appearing for respondent Nos.4 to 26.
The brief facts of the case are that O.S.No.22 of 2021 was filed by respondent Nos.1 to 3 herein (plaintiffs), before the learned Principal District Judge, Nizamabad, seeking the relief of declaration of Deed of Partition dated 01.12.2018 bearing Document No.7359 of 2018 as void abinitio, illegal, sham, bogus and not binding on them and other defendants, and for perpetual injunction restraining defendant Nos.1, 2, 8, 10, 15, 17 and 29 from alienating the suit schedule property and from changing the nature of the suit schedule property. In the said suit, I.A.No.531 of 2021 was filed by the petitioners herein, who are defendant Nos.1, 2, 8, 10, 15, 17 and 20, under Order VII Rule 11 (a) and
(d) of CPC read with Section 151 CPC, for rejection of the plaint in the said suit. It is stated inter alia in the affidavit that the plaint does not disclose cause of action. The relief of partition of suit properties by metes and bounds is lacking in the main prayer. The 2 BVR, J CRP.No.1915 of 2021 Hon'ble Supreme Court in various judgments held that the suit without seeking consequential relief is not maintainable which was reiterated by the Hon'ble Supreme Court in Anathula Sudhakar v. P. Buchi Reddy (dead) and others1 and I.T.C. Limited v. Debts Recovery Appellate Tribunal and others2. Thereupon, the trial Court passed the order dated 30.11.2021 dismissing the said I.A. Against the said order, the present Civil Revision Petition has been filed.
Learned counsel for the petitioners/defendant Nos.1, 2, 8, 10, 15, 17 and 20 submitted that by the legal notice dated 26.04.2021, respondent Nos.1 to 3 herein/plaintiffs specifically called upon petitioner Nos.1 and 2 herein, who are class-I surviving legal heirs of late Ali Bin Omer, to partition all the properties of late Ali Bin Omer by metes and bounds and allot shares to all the legal heirs including wives and children of the deceased sons and children of deceased daughters of late Ali Bin Omer; cancel the document No.7359 of 2018 within one week. He further submitted that though respondent Nos.1 to 3 sought in the suit relief cancellation of partition deed vide document No.7359/2018 dated 01.12.2018, they did not choose to seek the relief of partition and separate possession and they created illusory cause of action and filed O.S.No.22 of 2021. Thus, 1 2008(4) SCC 594 2 (1998) 2 Supreme Court Cases 70 3 BVR, J CRP.No.1915 of 2021 O.S.No.22 of 2021 is liable to be rejected on two grounds i.e., lack of cause of action and it is barred by law as consequential relief of partition and separate possession is not sought.
Mr. M. Govind Reddy, learned counsel for respondent Nos.4 to 26 submitted that an application under Order VII Rule 11 CPC is maintainable only if the petitioners are able to satisfy that the plaint is liable to be rejected within the enumerated grounds mentioned therein. So far as the cause of action is concerned, it was specifically stated that respondent Nos.1 to 3/plaintiffs came to know in the month of April, 2021 that partition deed dated 01.12.2018 was entered into and that the legal notice dated 26.04.2021 was issued calling upon defendant Nos.1 and 2 to partition the suit schedule properties and other properties of late Ali Bin Omer by metes and bounds. Further, in the legal notice, defendant Nos.1, 8, 10, 15, 17 & 29 were called upon to cancel the Deed of Partition vide Document No.7359/2018 dated 01.12.2018.
Heard learned counsel for the contesting parties. In I.A.No.531 of 2021, respondent Nos.1 to 3/plaintiffs filed a counter-affidavit denying the contentions raised by the petitioners and in paragraph 8 thereof, it was specifically stated by respondent Nos.1 to 3 that it is their choice to seek legal 4 BVR, J CRP.No.1915 of 2021 remedy whatever is appropriate at a given time and to prove the same during the course of trial. Further, the cause of action was accrued on 01.12.2018 i.e., the date of execution of fraudulent Deed of Partition among petitioner Nos.1, 3, 5 and the husband of respondent No.25 in collusion with respondent Nos.4 and 6. It was also stated that respondent Nos.1 to 3/plaintiffs are not expecting the Court to pass a preliminary decree for partition as understood and alleged by the petitioners and only the relief of declaration is sought which is apparent on the face of the record.
Insofar as the point of cause of action is concerned, it is clearly mentioned in the counter-affidavit filed by respondent Nos.1 to 3, in I.A.No.531 of 2021, that the cause of action arose when respondent Nos.1 to 3 herein came to know about the execution of the partition deed dated 01.12.2018 and the legal notice dated 26.04.2021 was issued calling upon some of the defendants to cancel the Deed of Partition. Thus, it cannot be said that the cause of action for filing O.S.No.22 of 2021 has not arisen. In regard to the point urged by the learned counsel for the petitioners that O.S.No.22 of 2021 is barred by law, this Court is of the view that such submission is without any merit.
As pointed out above, the plaintiffs have not sought partition and separate possession referring to the averments in the 5 BVR, J CRP.No.1915 of 2021 counter-affidavit, by their own volition. They have chosen not to seek partition and have confined their suit relief only for declaration of the partition deed as void and not binding on them and for consequential relief of perpetual injunction restraining the defendants from changing the nature of the suit schedule property. There cannot be any restriction on the plaintiffs to seek such lesser or limited relief as against larger or more reliefs asked for by them in their legal notice dated 26.04.2021. Neither there is any requirement under law nor can the plaintiffs be compelled to seek partition merely because they have issued legal notice claiming partition and separate possession. In the counter- affidavit, the plaintiffs specifically asserted that it is their choice to seek partition and they cannot be compelled to file a suit for partition. In any case, the same cannot be a ground to hold that the suit is barred under Order VII Rule 11(d) of CPC. The Court below having considered the submissions of the petitioners and the respondents came to the conclusion that the cause of action was properly stated in the plaint, which is pursuant to the legal notice issued by the plaintiffs prior to the filing of the suit and that there is a triable issue, which needs adjudication. The Judgments relied upon by the learned counsel for the petitioners/plaintiffs are not applicable to the facts of the present case and the learned counsel for the petitioners was not able to 6 BVR, J CRP.No.1915 of 2021 convince this Court how the ratio laid down in the said cases is applicable to the instant case. This Court does not find any merit in the contentions of the learned counsel for the petitioners. The order of the Court below does not suffer from any error of law or on facts.
Accordingly, this Civil Revision Petition is dismissed. The trial Court shall dispose of O.S.No.21 of 2021 without being influenced by any of the observations made by it in the order impugned as well as this Court in the present order.
Miscellaneous applications, if any pending, shall stand closed. There shall be no order as to costs.
_____________________ B.VIJAYSEN REDDY, J 18th JANUARY, 2022.
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