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2010 DIGILAW 2196 (PNJ)

Kanwar Divinder Singh v. Kanwar Jeot Inder Singh

2010-08-02

L.N.MITTAL

body2010
JUDGMENT L. N. Mittal, J (Oral):- Defendant No.1-Kanwar Divinder Singh, aggrieved by order dated 04.06.2010 Annexure P-1 passed by learned Civil Judge (Junior Division), Patiala, has filed the instant revision petition under Article 227 of the Constitution of India. 2. Respondent Nos.1 and 2 filed suit vide plaint Annexure P- 2 against the petitioner and respondent Nos.3 to 46 for partition of the suit property and for permanent injunction alleging the suit property to be joint property of the parties being descendants of late Maharaja Bhupindra Singh of Patiala. 3. Defendant No.1 moved application Annexure P-3 under Order 7 Rule 11 of the Code of Civil Procedure (in short, C.P.C) for rejection of the plaint alleging that the plaintiffs in the plaint have pleaded that Maharaja Yadwindra Singh had executed sale agreement with State of Punjab on 10.03.1958 and all his rights whatsoever in the suit property stood extinguished. On commencement of the Hindu Succession Act,1956, rule of primogeniture remained applicable to the succession of the Rulers and accordingly property of Maharaja Bhupindra Singh was inherited by Maharaja Yadwindra Singh only being the eldest son. Accordingly, it was exclusive property of Maharaja Yadwindra Singh. The plaintiffs have themselves relied on judgment of Hon’ble Supreme Court in the case of Raj Kumar Divender Singh and another versus State of Punjab and others, AIR 1973 Supreme Court 66 wherein eviction notice/order under the Punjab Public Premises and Land (Eviction and Rent Recovery) Act,1959 was challenged by defendant No.1 and another. In that judgment, defendant Nos.1 and 14 were held to be in possession of the suit property. 4. I have heard learned counsel for the petitioner and perused the case file. 5. Learned counsel for the petitioner vehemently contended that the property had been sold by Maharaja Yadwindra Singh to State of Punjab, but the said sale has not been challenged in the suit nor the purchaser State of Punjab is party to the suit. However, this contention can be decided only after adjudication of rival claims of the parties after they lead evidence in support thereof and the plaint cannot be rejected at the threshold, on the basis of this plea because according to the plaintiffs, it was not sale, but only agreement to sell. 6. However, this contention can be decided only after adjudication of rival claims of the parties after they lead evidence in support thereof and the plaint cannot be rejected at the threshold, on the basis of this plea because according to the plaintiffs, it was not sale, but only agreement to sell. 6. Learned counsel for the petitioner also contended that in all jamabandis, State of Punjab has been recorded to be owner and petitioner is recorded to be in possession of the suit property. However, evidentiary value of jamabandis can be evaluated only after the parties go through the trial of the suit. Merely on the basis of jamabandi entries, plaintiffs cannot be non-suited without trial. 7. Learned counsel for the petitioner also contended that there is no cause of action in favour of the plaintiffs and the alleged cause of action is illusory. It was also contended that plaint can be rejected under Order 7 Rule 11 C.P.C at any stage. Reliance in support of these contentions has been placed on two judgments of Supreme Court i.e I.T.C. Limited versus Debts Recovery Appellate Tribunal and others, AIR 1998 Supreme Court 634 and Ram Prakash Gupta versus Rajiv Kumar Gupta and others, [2007(4) LAW HERALD (SC) 3264] : 2007(4) Civil Court Cases 731 (SC). There is no dispute with regard to the the legal proposition that the plaint can be rejected at any stage if a case is made out for the same within the parameters of order 7 Rule 11 C.P.C. In the instant case, however, it cannot be said that the plaint does not disclose any cause of action. It may be noticed that defendant No.1 in the writ petition filed by him in the High Court and in the appeal filed by him in Supreme Court (reported as AIR 1973 Supreme Court 66) himself pleaded the property to be Hindu Undivided family property. That is also the version of the plaintiffs in the instant case. Consequently, it cannot be said that the plaintiffs have no cause of action to seek partition of the suit property. The applicability or otherwise of rule of primogeniture would also be decided by the trial Court after trial of the suit. 8. That is also the version of the plaintiffs in the instant case. Consequently, it cannot be said that the plaintiffs have no cause of action to seek partition of the suit property. The applicability or otherwise of rule of primogeniture would also be decided by the trial Court after trial of the suit. 8. Much emphasis on behalf of the counsel for the petitioner was laid on judgment of Supreme Court in AIR 1973 Supreme Court 66 wherein defendant Nos.1 and 14 were held to be in possession of the suit property. However, they were not held to be exclusive owners of the suit property and only their possession over the property was held in the said judgment. Moreover, present plaintiffs were not party to the said litigation and, therefore, any finding therein may not bind the present plaintiffs. In addition thereto, learned counsel for the petitioner also states that the entire suit property involved in the present suit was not the subject matter of the litigation and appeal between defendant Nos.1 and 14 on the one hand and State of Punjab on the other hand as decided in AIR 1973 Supreme Court Cases 66 and only part of the present suit property was involved in that judgment. For this added reason as well, the said judgment would not bar the instant suit in any manner. 9. For the reasons recorded hereinabove, I find that no case for rejecting the plaint at the threshold in the instant case is made out as no ground stipulated in Order 7 Rule 11 C.P.C for rejection of plaint is made out at all. The pleas raised by defendant No.1 -petitioner in his application Annexure P-3 under Order 7 Rule 11 C.P.C have to be adjudicated by the trial Court after trial of the suit. From the bare reading of the plaint or pleadings of the parties, it cannot be said that no cause of action is disclosed. Even withdrawal of suit by plaintiff No.2 only, as stated by counsel for the petitioner, would not be sufficient to reject the plaint because the cause of action would survive to plaintiff No.1. 10. For the reasons recorded hereinabove, the impugned order does not warrant interference in exercise of revisional jurisdiction under Article 227 of the Constitution of India. The revision petition is according dismissed in limine. 10. For the reasons recorded hereinabove, the impugned order does not warrant interference in exercise of revisional jurisdiction under Article 227 of the Constitution of India. The revision petition is according dismissed in limine. However, it is expressly made clear that nothing observed hereinbefore shall be construed as an expression of opinion on the merits of the suit. ------------