Gujarat High Court
Pushpaben Yogendraprasad Mahant vs Ravirajsingh Kiritsingh Jhala on 19 July, 2021
Author: Vaibhavi D. Nanavati
Bench: J.B.Pardiwala, Vaibhavi D. Nanavati
C/FA/884/2020 JUDGMENT DATED: 19/07/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 884 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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PUSHPABEN YOGENDRAPRASAD MAHANT
Versus
RAVIRAJSINGH KIRITSINGH JHALA
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Appearance:
MR RISHABH D PARIKH(10587) for the Appellant(s) No. 1,2,3
MR SP MAJMUDAR(3456) for the Appellant(s) No. 1,2,3
MR CHINTAN DAVE, AGP for the Defendant(s) No.3
RULE SERVED(64) for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 19/07/2021
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI)
1. This First Appeal under Section 96 of the Code of Civil Page 1 of 30 Downloaded on : Sun Jan 16 01:07:32 IST 2022 C/FA/884/2020 JUDGMENT DATED: 19/07/2021 Procedure Code, 1908 is at the instance of the original plaintiffs and is directed against the order dated 16.10.2019 passed by the Principal Civil Judge, Vadodara below Ex.18 in the Special Civil Suit No.57 of 2018, by which the plaint came to be rejected under the provisions of Order VII Rule 11a of the Code of Civil Procedure.
2. The facts giving rise to the appeal are summarized as under :-
2.1 The appellants herein are the original plaintiffs. The respondents Nos.1 to 3 are original defendants.
2.2 The appellants (original plaintiffs) instituted a suit claiming title over the suit property having derived from their ancestors and their successor and further seeking a declaration that the defendants had created bogus and void sale deed 15.10.2016 in collusion with each other in favour of the defendant No.1. The appellants have prayed that the defendant No.2 had no right to execute the sale deed dated 15.10.2016 in favour of the defendant No.1. It is the case of the plaintiffs that they derived the right to succeed the suit property under succession so the defendant be restrained from interfering with the rights of the plaintiffs.
2.3 According to the plaintiffs, they are lineal descendants of the late Yogendraprasad son of Narandas Mahant, who was the Page 2 of 30 Downloaded on : Sun Jan 16 01:07:32 IST 2022 C/FA/884/2020 JUDGMENT DATED: 19/07/2021 disciple of Sadhu Ramdas Bhagvandas. It is the case of the plaintiffs that the Survey Nos.197, 757, 218 and 222 respectively situated at the Village : Vadsar were originally owned by the lawful owner deceased Bhagwan Galab and thereafter Ramdasguru Bhagwandas succeeded to the said properties. Mahant Ramdasguru Bhagwandas executed a will in favour of his disciple Narandas Guru Ramdas in the year 1937 and under that will Mahant Ramdasguru Bhagwandas bequeathed his property to Mahant Narandas, who was the father-in-law of the plaintiff No.1 and ancestor of the plaintiffs Nos.2 and 3. The appellants are the legal heirs of Yogendraprasad Narandas and calim to be the lawful owners of the land bearing Survey Nos.197, 757, 218 and 222 respectively situated at the Village : Vadasar by way of succession.
2.4 It is also the case of the appellant that one Jagannath Laxmiram Pujari had illegally entered his name in the revenue record and set up a Trust. That due to such illegal acts of Jagannath Laxmiram Pujari, the legal heirs of Jagannath Laxmiram Pujari viz. Ranchhod Jagannath Sadhu and Natvarlal Jagannath Sadhu got their names entered in the revenue record. Ranchhod Jaganath Sadhu had no heirs and Natvarlal Jagannath Sadhu left behind his wife Dharmisthaben. It is further the case of the appellant that as Jagannath Laxmiram Pujari himself had no right, title and interest in the subject property, his wife viz. Dharmisthaben could not have derived Page 3 of 30 Downloaded on : Sun Jan 16 01:07:32 IST 2022 C/FA/884/2020 JUDGMENT DATED: 19/07/2021 any right, title or interest in the said property by way of succession. Dharmisthaben executed a power of attorney in favour of the opponent No.2 with respect to selling of the disputed property. After the death of Dharmisthaben on 21.9.2016 the opponents in collusion with each other executed a sale deed dated 28.10.2016 in favour of the opponent No.1.
3. In such circumstances referred to above, the appellant (original plaintiff) instituted the Special Civil Suit No.57 of 2018 seeking the following reliefs :-
"(1) The respondents have fabricated sale deeds in collusion with each other against the rights of the plaintiff for the ancestral lands of the suit owned and possessed by the plaintiff received through succession rights, which are described in para-2 of the suit. Kindly grant interim injunction in favour of the plaintiffs against the respondents till the final disposal of the suit that the respondent no.1 or his accomplices in collusion with each other, do not transfer or sell the said lands to the third party or not alter the condition of the land or not obtain any permission thereof or not act pertaining to our successive rights and the respondent no.3 does not get any other registration done until documents in the suit are cancelled.
(2) Any other and further order that Hon'ble court may deem fit till the final disposal of the suit in favour of the plaintiff."Page 4 of 30 Downloaded on : Sun Jan 16 01:07:32 IST 2022
C/FA/884/2020 JUDGMENT DATED: 19/07/2021
4. The cause of action pleaded in the plaint in para-14 reads as under :-
"The respondent in collusion with each other fabricated void, fraudulent and fake sale deeds illegally of the ancestral lands of the suit owned and possessed by the plaintiffs received through succession rights and the cause of action has arisen when the plaintiffs come to know about such documents and when received such copies and necessary details thereof."
5. The list of documents produced by the plaintiffs alongwith the plaint reads as under :-
List of Document for Plaintiff 1 Will prepared by Mahant Ramdasji Guru 22/10/1937 Bhagwandasji.
2 Original Village Form No.8-A of Account 16/02/2018 No.371 3 Original 7/12 extract of Block/Survey 16/02/2018 No.197 4 Original 7/12 extract of Block/Survey 16/02/2018 No.757 5 Original 7/12 extract of Block/Survey 16/02/2018 No.218 6 Original 7/12 extract of Block/Survey 16/02/2018 No.222 Page 5 of 30 Downloaded on : Sun Jan 16 01:07:32 IST 2022 C/FA/884/2020 JUDGMENT DATED: 19/07/2021 7 Original Mutation Entry No.118 of 16/02/2018 village: Vadsar 8 Original Mutation Entry No.245 of 19/02/2018 village: Vadsar 9 Original Mutation Entry No.246 of 19/02/2018 village: Vadsar 10 Original Mutation Entry No.253 of 19/02/2018 village: Vadsar 11 Original Mutation Entry No.692 of 16/02/2018 village: Vadsar 12 Original Mutation Entry No.885 of 16/02/2018 village: Vadsar 13 Original Mutation Entry No.887 of 16/02/2018 village: Vadsar 14 Original Mutation Entry No.980 of 16/02/2018 village: Vadsar 15 Original Mutation Entry No.1283 of 16/02/2018 village: Vadsar 16 Original Mutation Entry No.1585 of 19/02/2018 village: Vadsar 17 Original Mutation Entry No.2711 of 19/02/2018 village: Vadsar 18 Original Mutation Entry No.3030 of 16/02/2018 village: Vadsar 19 A copy of Reg. Sale Deed - Sr. No. 20/09/2016 1633/2016 of Block/Survey No.218 Copy obtained:
bearing sign and seal 10/07/2017 Page 6 of 30 Downloaded on : Sun Jan 16 01:07:32 IST 2022 C/FA/884/2020 JUDGMENT DATED: 19/07/2021 20 A copy of Reg. Sale Deed - Sr. No. 20/09/2016 1631/2016 of Block/Survey No.197 Copy obtained: bearing sign and seal 10/07/2017 21 A copy of Reg. Sale Deed - Sr. No. 20/09/2016 1632/2016 of Block/Survey No.757 Copy obtained: bearing sign and seal 10/07/2017 22 A copy of Reg. Sale Deed - Sr. No. 20/09/2016 1634/2016 of Block/Survey No.222 Copy obtained: bearing sign and seal 10/07/2017 Case put up by the defendants :- 6. According to the defendants, late Jagannath Laxmiram
Sadhu was the administrator and priest of the Thakoredwar Mandir. The land bearing Survey Nos.197 and 757 was gifted to him and the revenue Entry No.118 as regards the transaction was mutated which was duly certified. The land bearing Survey No.218 was also gifted to Jagannath Laxmiram Sadhu and revenue Entry No.245 was mutated which was also certified by the competent authority. Jagannath Sadhu purchased the land bearing Survey No.222 from Prabhudas Bapu vide registered sale deed dated 6.1.1942. The revenue Entry No.246 was mutated and further certified. On demise of Jagannath Laxmiram Sadhu his two sons viz. Sadhu Ranchhoddas Jagannath and Sadhu Natvarlal Jagannath inherited the suit property. Sadhu Ranchhoddas Jagannath died without any legal heirs whereas Sadhu Natvarlal Jagannath Page 7 of 30 Downloaded on : Sun Jan 16 01:07:32 IST 2022 C/FA/884/2020 JUDGMENT DATED: 19/07/2021 died leaving his wife Dharmisthaben as the sole legal heir.
Dharmisthaben became the sole and absolute owner of the suit property. The mutation Entry No.3060 dated 10.12.2003 came to be certified in her name on 11.2.2004. There is no averment in the plaint to indicate that the plaintiffs have any right, title or interest in the suit property.
7. In such circumstances referred to above, the defendants preferred an application Ex.18 under the provisions of Order VII Rule 11(a) of the Civil Procedure Code praying for rejection of plaint on the ground of cause of action. The defendants also prayed that the plaint be rejected for not making appropriate payments towards Court fees i.e. deficit Court fees.
8. The application under Order VII Rule 11(a)(c) and (d) reads thus :-
"1. The Plaintiffs have instituted the present suit against the Defendants, claiming themselves as the true and lawful owners of the land bearing Survey no. 197 (Final Plot no.
66), Survey no. 757 (Final Plot no. 189), Survey no. 218 (Final Plot no. 56) and Survey no. 222 (Final Plot no. 52) of mouje Vadsar, registration district, sub-district Vadodara, hereinafter collectively referred to as the 'suit property'. The Plaintiffs have claimed in the plaint that they have inherited the suit property as the legal heirs of deceased Yogendraprasad Narandas Mahant, who was the linear descendant of Sadhu Ramdas Bhagwandas. The plaintiffs in Page 8 of 30 Downloaded on : Sun Jan 16 01:07:32 IST 2022 C/FA/884/2020 JUDGMENT DATED: 19/07/2021 para 4 of the plaint have further averred that Sadhu Ramdas Bhagwandas became the owner of the suit property vide revenue entry no.253. The Plaintiffs have also submitted the village extract Form 6 to substantiate their claim at sr. no. 10 of the list of documents. The Plaintiffs have neither averred in the entire plaint about their right subsisting in the suit property save and except the revenue entry no. 253 nor have they produced the pedigree of late Sadhu Ramdas Bhagwandas so as to conclusively conclude that there are no other legal heirs of late Sadhu Ramdas Bhagwandas other than the Plaintiffs and that no other individual has any right or interest in the suit property. Revenue entry no. 253 on the sole basis of which the Plaintiffs have claimed their right or interest in the suit property is pertaining to the survey no.
217 and not to the suit property. On the other hand Mr. Jagannath Laxmiram Sadhu was the administrator and priest of Shree Thakor Dwar Mandir. The land bearing revenue survey no. 197 and 757 was gifted to him and the revenue entry no. 118 was mutated, which was certified also (Mark 7). The land bearing revenue survey no. 218 was also gifted to Mr. Jagannath Laxmiram Sadhu and revenue entry no. 245 was mutated, which was also certified by the competent authority (Mark 8). Mr. Jagannath Laxmiram Sadhu purchased the land bearing revenue survey no. 222 from Parbhudas Bapu vide a registered sale deed dt. 06/01/1942 for consideration. Revenue entry no. 246 was mutated and further certified (Mark 9). Upon the demise of Jagannath Laxmiram Sadhu, his two sons, namely Sadhu Ranchhod Jagannath and Sadhu Page 9 of 30 Downloaded on : Sun Jan 16 01:07:32 IST 2022 C/FA/884/2020 JUDGMENT DATED: 19/07/2021 Natwarlal Jagannath inherited the suit property. Sadhu Ranchhod Jagannath died without any surviving legal heirs, whereas Sadhu Natwarlal Jagannath died leaving his wife Dharmishthaben Natwarlal as the sole legal heir. Dharmishthaben became the sole and absolute owner of the suit property. Mutation entry no. 3060 dt. 10/12/2003 was certified on 11/02/2004. Not a single averment is there in the plaint to show that the Plaintiffs have any right or interest in the suit property. Under the circumstances, there is no cause of action for the plaintiffs to institute the present suit against the Defendants and a plain reading of the plaint also does not disclose any cause of action in favour of the Plaintiffs. Hence the plaint is required to be rejected under O. 7, R. 11(a) of CPC.
2. The Plaintiffs have failed to pay the required Court fees stamp. Undisputedly, the suit is filed for the declaration of the right of the Plaintiffs in the suit property and for cancellation of the sale deeds executed in favour of the Defendant no. 1, on the alleged ground of them being void. Since the Plaintiffs seek two entirely different reliefs in one suit, the Plaintiffs are required to pay the stamp duty of Rs.75,000/- for declaration of their title and Rs.37,500/- for cancellation of documents. Since the Plaintiffs have paid only Rs.37,500/ -, the Plaintiffs are required to be ordered to pay the deficit court fees, failing which the plaint is required to be rejected under O. 7, R. 11(c) of CPC.
Page 10 of 30 Downloaded on : Sun Jan 16 01:07:32 IST 2022C/FA/884/2020 JUDGMENT DATED: 19/07/2021
3. For the reasons mentioned hereinabove, the suit is not sufficiently stamped and is barred by law, nor is there any cause of action which requires the intervention of this Hon'ble Court, nor does the Court have jurisdiction,
4. The Defendant no. 1 therefore prays that the present suit be dismissed and the plaint be rejected under O. 7, R.11(a),
(c) and (d) of CPC with cost."
9. The learned Trial Court after considering the rival contentions of both the parties held as under in paragraphs 6 to 9 :-
"6. The second point alleged by the plaintiffs is that the sale deeds executed by the deceased Dharmisthaben Natwarlal on 15/10/2016 was presented by the P.O.A. Swami Vivekanand Saraswati i.e. defendant no.2, prior to that the executant of the sale deeds i.e. Dharmisthaben Natwarlal Sadhu had expired on 21/09/2016. Thus, the sale deeds registered after the death of the executant of the sale deeds and the P.O.A. of the defendant no.2 was without any consideration and after death of Dharmisthaben Natwarlal Sadhu, the defendant no.2 had no power to present the sale deeds executed by the deceased for registration. So, the present suit is filed by the plaintiffs for cancellation of all the sale deeds of the suit properties, but the plaintiffs does not show any revenue records to show that they succeed in the suit properties from Mahant Ramdas Guru Bhagwandas through their ancestor Mahant Narandas Guru Ramdas and thereafter Lt. Mahant Yogendraprasad was successor of Mahant Narandas Guru Page 11 of 30 Downloaded on : Sun Jan 16 01:07:32 IST 2022 C/FA/884/2020 JUDGMENT DATED: 19/07/2021 Ramdas. So, this link is not established by any pedigree that they are real successors of the suit properties in question. Only on the basis of the Will of 1937 they claim that Mahant Ramdas Guru Bhagwandas had made testamentary succession to Mahant Narandas when he was only 15 years old but thereafter, there is no revenue record to show that Late Mahant Narandas inherited the suit properties under the Will or subsequently any such revenue records reflect his name at the time of arguments of this application. Further, one Supdapatrak of 1914-15 is produced vide Mark-23/1 to show that the suit properties were owned by Sadhu Ramdas Bhagwandas. The Ramjimandir and the suit properties were declared as the religious temple, but after the death of Sadhu Ramdas, no suit properties were inherited under the Will of Lt. Sadhu Ramdas Bhagwandas to Narandas.
7. The inheritance shown in the suit does not mention any heir-ship rights of relationship. But only under the base of Guru Shishya Parampara, the right of inheritance is forwarded to have vested to the plaintiffs but the plaintiffs does not show any such revenue records that the suit properties were mutated under the Will of 1937 in the name of Mahant Narandas Guru Ramdas, after lapse of more than 70 years. So, on the basis of the plaint and revenue records presented by the plaintiffs they do not substantiate the cause of action in this suit though they claim successors of the suit properties of Lt. Mahant Ramdas Guru Bhagwandas and the suit properties were subsequently devolved on Mahant Narandas and thenafter to Lt. Yogendraprasad Narandas. The Page 12 of 30 Downloaded on : Sun Jan 16 01:07:32 IST 2022 C/FA/884/2020 JUDGMENT DATED: 19/07/2021 right of inheritance is forwarded under the relationship or under the Guru Shisya Parampara is not clarified in this suit. So, considering these aspects, plaintiffs fails to establish their right to succession in the suit properties mentioned in the suit by any cogent prima facie evidence.
8. It is also not clarified that under the impugned Will of Lt. Mahant Ramdas Guru Bhagwandas, that any specific suit properties under the Will were bequeathed to Mahant Narandas after 1937. It is also not clarified in the plaint that Mahant Narandas was ancestor of Lt. Yogendraprasad and Narandas gave succession to only Yogendraprasad. So, considering this aspect the present suit has no cause of action as per the documents of the revenue entries produced by the plaintiffs and the zerox copy of the Will produced by the plaintiffs.
9. Looking to the sale deed produced by the P. O.A. after the death of the executant, plaintiffs have no such right to dispute the sale deeds except the right of inheritance in the suit properties. So, on the fact of the case, sale deeds executed by Dharmisthaben and subsequently after her death presented by the defendant no.2 for registration does not create any right to the plaintiffs to challenge the validity of the sale deeds without establishing their inheritance rights in the suit properties. So, in the above consideration of the facts, the present suit is devoid of any cause of action to the plaintiffs after more than 70 years of execution of the Will made by the Mahant Ramdas Guru Bhagwandas which does Page 13 of 30 Downloaded on : Sun Jan 16 01:07:32 IST 2022 C/FA/884/2020 JUDGMENT DATED: 19/07/2021 not even refer to the suit properties in question. So, considering the above reasons the present application for rejection of plaint by the defendant stands allowed and I pass following order :-
ORDER The plaint in question is hereby rejected having no cause of action to substantiate that plaintiffs have right to succession in the suit properties made under the Will of 1937 by Mahant Ramdas Guru Bhagwandas in favour of the minor Narandas Guru Ramdas.
Decree to be drawn accordingly."
Submissions on behalf of the appellants (original plaintiffs) :-
10. Mr. S. P. Majmudar, the learned counsel appearing for the appellants (original plaintiffs) submitted that the trial Court failed in appreciating the difference between the "no cause of action" and that the "claim does not disclose cause of action". He further submitted that if the plaint lacks cause of action, there is absence of right to sue. However, if the averments in the plaint are not well founded the right to sue would exist. The trial Court therefore erred in allowing the application under Order VII Rule 11 filed by the opponents on the ground that the appellants had no cause of action to file the suit.
10.1 He submitted that the trial Court erred in looking into Page 14 of 30 Downloaded on : Sun Jan 16 01:07:32 IST 2022 C/FA/884/2020 JUDGMENT DATED: 19/07/2021 the evidence on record while deciding the application under Order VII Rule 11. He further submitted that there were various trivial issues raised in the plaint which could not have been decided in an application under Order VII Rule 11 without appreciating the materials and evidence on record. He submitted that the land in question was ancestoral land and that the appellants were claiming their share in the said land. He submitted that the trial Court ignored the settled principles of law that while deciding an application under Order VII Rule 11(a), (c) and (d) of the Code only the averments in the plaint are required to be seen and from the perusal of the plaint clearly the suit filed by the appellants is within the period of limitation.
10.2 He submitted the trial Court ought to have appreciated that the plaint should be read as a whole and not in part. Since the trial Court tested the plaint in part it fell into an error in rejecting the plaint of the appellants under Order VII Rule 11 of the Code. He lastly submitted that the order passed by the trial Court below Ex.18 rejecting the plaint in view of the above submission was required to be quashed and set aside and that the plaint be restored to the file.
Submissions on behalf of the respondent (original defendant No.1) :-
11. Mr. Nilesh Shah, the learned counsel appearing for the Page 15 of 30 Downloaded on : Sun Jan 16 01:07:32 IST 2022 C/FA/884/2020 JUDGMENT DATED: 19/07/2021 respondent (original defendant No.1) submitted defendants are true and lawful owner of land bearing Survey No.197 (Final Plot No.66), Survey No.757 (Final Plot No.189), Survey No.218 (Final Plot No.56) and Survey No.222 (Final Plot No.52) of Village : Vadsar, registration Dist. Vadodara.
11.1 Mr. Shah would submit that the plaintiffs have claimed their subsisting right in the suit property only by a revenue Entry No.253. He submitted that the plaintiffs neither produced pe-degree of late Sadhu Ramdas Bhagwandas so as to conclude that there are no legal heirs of Sadhu Ramdas Bhagwandas other than the plaintiffs and that no other individual have any right, title or interest in the suit property. The revenue Entry No.253 on sole basis of which the plaintiffs have claimed their right, title or interest in the suit property is pertaining to Survey No.217 only and not the suit property.
11.2 He submitted that there was no error not to speak any error of law committed by the trial Court in rejecting the plaint under Order VII Rule 11 of the Code. He mainly submitted that the plaint lacks averments of having any right, title or interest in the suit property. He submitted that the plaintiffs have claimed inheritance in the suit property and that they are legal heirs of Yogendraprasad Narandas Mahant who was the lineal descendant and Sadhu Ramdas Bhagvandas. He further submitted that the plaintiffs in para-4 of the plaint have averred that Sadhu Ramdas Bhagvandas became the Page 16 of 30 Downloaded on : Sun Jan 16 01:07:32 IST 2022 C/FA/884/2020 JUDGMENT DATED: 19/07/2021 owner of the suit property by revenue Entry No.253. He submitted that the plaintiffs have relied on the village Form No.6 to substantiate their claim at Serial No.10 of the list of documents. He submitted that the plaintiffs have failed in making an averment in the entire plaint about their subsisting legal right in the suit property except substantiating their right based on revenue Entry No.253.
11.3 Mr. Shah would submit that Jagannath Laxminarayan Sadhu who was the priest of Thakoredwar Mandir, was gifted Survey Nos.197 and 757 and revenue Entry No.118 came to be mutated. He submitted that the Survey No.218 was also gifted to Jagannath Laxminarayan Sadhu and Entry No.245 was mutated which was duly certified by the competent authority. He submitted that Jagannath Laxminarayan Sadhu purchased the land bearing Survey No.222 from Prabhudas Bapu by registered sale deed on 6.1.1942 and revenue entry No.246 was mutated and duly certified. He submitted that therefore Survey Nos.197, 757, 218 and 222 were duly entered in the name of Jagannath Laxminarayan Sadhu. He submitted that Jagannath Laxminarayan Sadhu had two sons, Sadhu Ranchhod Jagannath, who died intestate and second son Sadhu Natvarlal Jagannath was survived by his wife Dharmisthaben, who after his death was sole legal heir of the suit property. The said entry came to be mutated by Entry No.3060 on 10.12.2003 which was duly certified on 11.2.2004. He therefore submitted Page 17 of 30 Downloaded on : Sun Jan 16 01:07:32 IST 2022 C/FA/884/2020 JUDGMENT DATED: 19/07/2021 that Dharmisthaben being the sole owner of the property was well within her right to transfer the property and accordingly Dharmisthaben executed sale deed on 15.10.2006 through her power of attorney to Swami Vivekanand Saraswati i.e. defendant No.2. Dharmisthaben expired on 21.9.2016 which was prior to the execution of the sale deed dated 15.10.2016. He submitted that the suit filed by the plaintiffs for cancellation of sale deed of the suit property was rightly rejected by the trial Court since the plaintiffs failed to show their right except by way of a revenue Entry No.253 demonstrating their succession in the suit property through late Guru Yogendraprasad Narandas Mahant.
11.4 In view of above submissions and decisions, he submitted that the order below Ex.18 passed by the learned trial Court rejecting the plaint was just, legal and proper and since the appeal was devoid of any merit was required to be dismissed. He lastly submitted that the plaint was rightly rejected since the plaintiffs failed to establish any link by any pe-degree to fortify their right that they were successor of the suit property.
12. We have heard Mr. S. P. Majmudar, the learned counsel appearing for the appellants (original plaintiffs) and Mr. Nilesh Shah, the learned counsel appearing for the respondent (original defendant No.1).
Page 18 of 30 Downloaded on : Sun Jan 16 01:07:32 IST 2022C/FA/884/2020 JUDGMENT DATED: 19/07/2021 Analysis :-
13. Having heard the learned counsel appearing for both the parties and having gone through the materials on record, we are required to consider whether the Court below committed any error in passing the impugned order. Having gone through the averments of the plaint and the object of Order VII Rule 11 of the Civil Procedure Code, the Trial Court has rejected the plaint as having no cause of action as the plaintiffs failed to substantiate that the plaintiffs had right to succession in the subject property under the will of 1937. Before we proceed on analysis of the present issue, it is necessary for us to set out the relevant provisions of Order VII Rule 11 of the Code:
"11. Rejection of plaint The plaint shall be rejected in the following cases:-
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the Plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the Plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in Page 19 of 30 Downloaded on : Sun Jan 16 01:07:32 IST 2022 C/FA/884/2020 JUDGMENT DATED: 19/07/2021 the plaint to be barred by any law:
(e) where it is not filed in duplicate;
(f) where the Plaintiff fails to comply Sub-rule (2) of Rule 9;"
In the present case, the Trial Court rejected the plaint on the ground that the plaintiffs have no cause of action and hence primarily we are concerned with the said issue. What is also important to consider is that the provision refers to the "plaint" which necessarily means the plaint as a whole. It is only where the plaint as a whole does not disclose a cause of action that Order VII Rule 11(a) comes into force and interdicts a suit from proceeding. So it is from the above perspective that the plaint is to be read which lays down the claim of the plaintiffs.
13.1 What amounts to a cause of action as provided in Order VII Rule 11(a) is well explained by the Honorable Apex Court in number of cases. It is important at this stage to refer the decision of the Honorable Apex Court in the case of Laxman Prasad vs Prodigy Electronics reported in AIR 2008 SC 685, wherein the Honorable Apex Court was pleased to explain what is a cause of action and how the same is to be considered while adjudicating an application under Order VII Rule 10 or 11.
Page 20 of 30 Downloaded on : Sun Jan 16 01:07:32 IST 2022C/FA/884/2020 JUDGMENT DATED: 19/07/2021 "15. We find considerable force in the submission of the learned Counsel for the respondent Company. In our view, 'cause of action' and 'applicability of law' are two distinct, different and independent things and one cannot be confused with the other. The expression 'cause of action' has not been defined in the Code. It is however settled law that every suit presupposes the existence of a cause of action. If there is no cause of action, the plaint has to be rejected [Rule 11(a) of Order VII). Stated simply, 'cause of action' means a right to sue. It consists of material facts which are imperative for the plaintiff to allege and prove to succeed in the suit. The classic definition of the expression ('cause of action') is found in the observations of Lord Brett in Cooke v. Gill (1873) 8 CP 107 : 42 LJ CP 98."
"16. His Lordship stated;
"Cause of action means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. "
13.2 The Hon'ble Supreme Court in A.B.C. Laminart Pvt. Ltd. Vs. A.P. Agencies [1989] 2 SCC 163, has held as under;
"12. A cause of action means every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. In other words, it is a bundle of facts which taken with the law Page 21 of 30 Downloaded on : Sun Jan 16 01:07:32 IST 2022 C/FA/884/2020 JUDGMENT DATED: 19/07/2021 applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything which if not proved would give the defendant a right to immediate judgment must be part of the cause of action. But it has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff."
13.3 It is keeping in mind this aspect of disclosure of cause of action in a plaint that an application under Order VII Rule 11 of CPC is to be decided. Now we may come to the decisions of the Honorable Apex Court on rejection of plaint for non disclosure of cause of action.
13.4 The Hon'ble Supreme Court in Mayar (H.K.) Ltd. and Ors. Vs. Owners and Parties, Vessel M.V. Fortune Express and Ors. AIR 2006 SC 1828, while analyzing Order VII Rule 11 observed as under:-
"10. Under Order VII Rule 11 of the Code, the Court has jurisdiction to reject the plaint where it does not disclose a Page 22 of 30 Downloaded on : Sun Jan 16 01:07:32 IST 2022 C/FA/884/2020 JUDGMENT DATED: 19/07/2021 cause of action, where the relief claimed is undervalued and the valuation is not corrected within a time as fixed by the Court, where insufficient court fee is paid and the additional court fee is not supplied within the period given by the Court, and where the suit appears from the statement in the plaint to be barred by any law. Rejection of the plaint in exercise of the powers under Order VII Rule 11 of the Code would be on consideration of the principles laid down by this Court. In T. Arivandandam v. T.V. Satyapal and Anr. [1978]1SCR742 , this Court has held 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, the Court should exercise its power under Order VII Rule 11 of the Code taking care to see that the ground mentioned therein is fulfilled. In Roop Lal Sethi v. Nachhattar Singh Gill, (1982) 3 SCC 487, this Court has held that where the plaint discloses no cause of action, it is obligatory upon the court to reject the plaint as a whole under Order VII Rule 11 of the Code, but the rule does not justify the rejection of any particular portion of a plaint. Therefore, the High Court could not act under Order VII Rule 11(a) of the Code for striking down certain paragraphs nor the High Court could act under Order VI Rule 16 to strike out the paragraphs in absence of anything to show that the averments in those paragraphs are either unnecessary, frivolous or vexatious, or that they are such as may tend to prejudice, embarrass or delay the fair trial of the case, or constitute an abuse of the process of the court."Page 23 of 30 Downloaded on : Sun Jan 16 01:07:32 IST 2022
C/FA/884/2020 JUDGMENT DATED: 19/07/2021 13.5 The Hon'ble Supreme Court in ITC Ltd. v. Debts Recovery Appellate Tribunal AIR 1998 SC 634, held that the basic question to be decided while dealing with an application filed by the defendant under Order VII Rule 11 of the Code is to find out whether the real cause of action has been set out in the plaint or something illusory has been projected in the plaint with a view to get out of the said provision.
13.6 The Hon'ble Supreme Court in Saleem Bhai and Ors. Vs. State of Maharashtra and Ors. [2003] 1 SCC 557, held that the trial court can exercise its powers under Order VII Rule 11 of the Code at any stage of the suit before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial and for the said purpose the averments in the plaint are germane and the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage.
13.7 I The Hon'ble Supreme Court in Popat and Kotecha Property v. State Bank of India Staff Association (2005) 7 SCC 510, has culled out the legal ambit of Rule 11 of Order VII of the Code in these words:
"19. There cannot be any compartmentalization, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according Page 24 of 30 Downloaded on : Sun Jan 16 01:07:32 IST 2022 C/FA/884/2020 JUDGMENT DATED: 19/07/2021 to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence of a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time, it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair- splitting technicalities. "
14. 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.
14.1 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 Page 25 of 30 Downloaded on : Sun Jan 16 01:07:32 IST 2022 C/FA/884/2020 JUDGMENT DATED: 19/07/2021 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 succeed cannot be a ground for rejection of the plaint.
14.2 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."
14.3 The Hon'ble Supreme Court in Hardesh Ores (P) Ltd., vs. Hade and Company (2007) 5 SCC 614 in Para 25 observed as under:-
"25. The language of Order VII Rule 11 CPC is quite clear and unambiguous. The plaint can be rejected on the ground of limitation only where the suit appears from the statement in the plaint to be barred by any law. Mr. Nariman did not dispute that "law" within the meaning of Clause (d) of Order VII Rule 11 must include the law of limitation as well. It is well settled that whether a plaint discloses a cause of action is essentially a question of fact, but whether it does or does not must be found out from reading the plaint itself. For the Page 26 of 30 Downloaded on : Sun Jan 16 01:07:32 IST 2022 C/FA/884/2020 JUDGMENT DATED: 19/07/2021 said purpose the averments made in the plaint in their entirety must be held to be correct. The test is whether the averments made in the plaint if taken to be correct in their entirety a decree would be passed. The averments made in the plaint as a whole have to be seen to find out whether Clause (d) of Rule 11 of Order VII is applicable. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense. As observed earlier, the language of Clause (d) is quite clear but if any authority is required, one may usefully refer to the judgments of this Court in Liverpool and London S.P. and I Association Ltd. v. M.V. Sea Success I and Anr. (2004)9SCC512 and Popat and Kotecha Property v. State Bank of India Staff Association (2005)7SCC510. "
14.4 It appears that the Court below has not been able to understand the fine distinction between the plea that there was no cause of action for the suit and the plea that the plaint does not disclose a cause of of action. In the case on hand, on a fair reading of the application Ex.18 filed by the defendants under Order VII Rule 11 of the Civil Procedure Code it is clear that the case of the defendants is that the plaintiffs have no cause of action to file the suit. It is not specifically pleaded by the defendants that the plaint does not disclose any cause of action. The trial Judge has also not recorded any specified Page 27 of 30 Downloaded on : Sun Jan 16 01:07:32 IST 2022 C/FA/884/2020 JUDGMENT DATED: 19/07/2021 finding to this effect. It could be said that while adjudicating the application for rejection of plaint the trial Judge has actually adjudicated the entire suit, in other words the right, title and interest of the plaintiffs in the suit property. It is very unfortunate to note that the trial Court proceeds on the footing that the plaintiffs have not been able to establish their right, title or interest in the suit properties on the basis of or on the strength of the revenue records i.e. the entries in the revenue records. The trial Judge seems to be oblivious of the fact that the entries in the revenue records even otherwise do not confer any right, title or interest. How does the trial Judge expect the plaintiff to make good his case or establish his title on the basis of the revenue records while deciding the application for rejection of the plaint at the instance of the defendants.
14.5 From the averments made in the plaint, it is clear that the plaintiffs have pleaded a cause of action for filing the suit seeking the reliefs stated in it i.e. not to say that the plaintiffs have cause of action to file the suit for 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 plaint is to be rejected under Order VII Rule 11 or not the averments in the plaint are only to be looked into.
14.6 The Court below observed that in absence of further Page 28 of 30 Downloaded on : Sun Jan 16 01:07:32 IST 2022 C/FA/884/2020 JUDGMENT DATED: 19/07/2021 revenue record prima facie title to the property cannot be accepted to be established. According to the Court below, the plaint does not disclose that Mahant Narandas was ancestor of Yogendraprasadji and the sale deed cannot be challenged on the ground that plaintiffs were successors by inheritance to the property. It is important to note that the issue for adjudication of rights in connection to the said plaint will be with regards to the original transfer of rights by Yogendraprasadji, Ramdasguru Bhagwandas, Mahant Narandas to the plaintiffs. The said issue for adjudication of rights flowing from the Will dated 1937 cannot be shut merely on the ground that there are no further revenue records reflecting the rights of the plaintiffs.
14.7 The suit is yet to go for trial and plaintiffs will have to prove by producing evidence to establish that they are successors of the subject property. The original entry no. 253 will be relevant for the plaintiffs to establish their right to the property by succession. It is drastic to reject the suit at this stage, while considering the averments in the plaint which raises various issues as to flowing from the Will and inclusion of subject property in the Will.
14.8 Having regards to the aforesaid observations and discussion, the appeal succeeds. The impugned order dated 16.10.2019 passed by the Principal Civil Judge, Vadodara below Ex.18 in the Special Civil Suit No.57 of 2018 is hereby Page 29 of 30 Downloaded on : Sun Jan 16 01:07:32 IST 2022 C/FA/884/2020 JUDGMENT DATED: 19/07/2021 quashed and set aside. The plaint stands restored to the file of the trial Court to its original number for being proceeded in accordance with law. The trial Court is directed to decide the same in accordance with law.
14.9 At this stage, we may add that the trial Court may proceed with the suit without being influenced by any of the observations that are made in the present judgment on the facts of the present case.
(J. B. PARDIWALA, J) (VAIBHAVI D. NANAVATI,J) K.K. SAIYED Page 30 of 30 Downloaded on : Sun Jan 16 01:07:32 IST 2022