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2017 DIGILAW 1515 (BOM)

Laxminarayan Parmeshwarlal Jaiswal v. Pravin S/o Prithviraj Jaiswal

2017-07-27

S.B.SHUKRE

body2017
JUDGMENT : S.B. Shukre, J. By this application, the applicant original defendant No. 1 has taken an exception to the legality and correctness of the order dated 18.07.2017 thereby rejecting the application (Exh.46) filed for rejection of plaint on the ground that the plaint is barred by law as provided under Order 7, Rule 11(d) of the Code of Civil Procedure, passed by Civil Judge Junior Division, Barshitakli, in Regular Civil Suit No. 74 of 2016. 2. Rule. Rule made returnable forthwith. Heard finally by consent. 3. It is well settled law that when an application under Order 7, Rule 11(d) of the Code of Civil Procedure is filed, the Court has to confine its enquiry only to the pleadings in the plaint. The Court cannot travel beyond those pleadings and look into the defence taken by the defendant. A useful reference in this regard may be made to the case of Hardesh Ores Pvt. Ltd v. M/S. Hede and Company, reported in (2007) 5 SCC 614 . Now bearing in mind these principles of law, let us examine whether the impugned order is consistent with the settled principles of law or not. 4. Shri. A.M. Ghare learned counsel for the applicant, in his extensive argument, has submitted in nutshell that there are no pleadings in the plaint showing the basis for exclusive and separate possession of property, which is admittedly a joint family property in which the respondent No. 1 (original defendant No. 2), the present applicant (original defendant No. 1) and respondent Nos. 2 and 3 (original plaintiff Nos. 1 & 2) are the co-sharers. He submits that even when it is pleaded that possession of one of the co-sharers is exclusive, such possession is always held to be on behalf of all the co-sharers, unless it can be shown that there is some mutually agreed arrangement between all the co-sharers to allow one of the co-sharers to retain exclusive possession of the joint family property. He places his reliance on the case of Sakhahari Parwatrao Karahale and Another v. Bhimshankar Pawatrao Karahale, reported in (2002) 9 Supreme Court Cases 608. 5. Shri. Nilesh Kalwaghe, learned advocate for the respondent Nos. 2 and 3, in his detailed argument, has submitted that the possession of the joint family property held by the respondent Nos. He places his reliance on the case of Sakhahari Parwatrao Karahale and Another v. Bhimshankar Pawatrao Karahale, reported in (2002) 9 Supreme Court Cases 608. 5. Shri. Nilesh Kalwaghe, learned advocate for the respondent Nos. 2 and 3, in his detailed argument, has submitted that the possession of the joint family property held by the respondent Nos. 2 and 3 is permissive and this can be inferred from the fact that there has been no objection taken to the separate possession held and separate cultivation of the suit property, which are agricultural fields, by this applicant. He invites my attention to the findings recorded by Civil Court in it's judgment dated 13th October, 2014 in the previous suit being Special Civil Suit No. 24/2001, which was filed by this applicant against the respondent Nos. 2 and 3 and other co-sharers. He submits that in paragraph No. 370 of this judgment, the Civil Court has found that the separate cultivation of the respondent Nos. 2 and 3 was never objected to by this applicant and so intention to separate from family to enjoy the share in severalty was unequivocal and that the exclusive possession by way of separate cultivation was admitted by this applicant. He submits that if this is so, not the ratio of the case of Sakhahari Parwatrao Karahale (supra) but the ratio of case of Tanushree Basu and Others v. Ishani Prasad Basu and Others, reported in (2008) 4 Supreme Court Cases 791 would be applicable to the facts of this case. Thus, he submits that the respondent Nos. 2 and 3 have a right in law to defend their separate and exclusive possession, which is basically of permissive nature, till they are dispossessed by due process of law and therefore, he supports the impugned order. 6. The learned counsel for the respondent No. 1 supports the argument of learned counsel for the applicant. 7. On going through the pleadings in the plaint, one can see that the respondent Nos. 2 and 3 have admitted that the suit property is a joint family property, comprising agricultural land, in two parts, bearing Survey No. 9 ad measuring 8 hectares and 64 R situated at village Umardari, Taluka Barshitkali, Distt. Akola, that the respondent Nos. 7. On going through the pleadings in the plaint, one can see that the respondent Nos. 2 and 3 have admitted that the suit property is a joint family property, comprising agricultural land, in two parts, bearing Survey No. 9 ad measuring 8 hectares and 64 R situated at village Umardari, Taluka Barshitkali, Distt. Akola, that the respondent Nos. 2 and 3 as well as the applicant and respondent No. 1 have their specific undivided share in this property and that this property is yet to be physically partitioned. They have also admitted that although the previous suit which was for partition came to be decreed by the Civil Court on 13th October, 2014 between these parties, an appeal filed against that judgment and decree by the present applicant before the Court of District Judge, Akola is still pending for final disposal. In the present plaint, however, the respondent Nos. 2 and 3 have nowhere specifically contended that their exclusive possession arises out of some family arrangement between all the coparcener's or the consent given by all the coparcener's or co-sharers. They also do not specifically plead that the applicant or for that matter any other co-sharers never raised any objection to their exclusive possession. They do not say as well categorically that theirs was a permissive possession resulting from some mutual arrangement. All that they submit is that Devkinandan, the husband and father of respondent Nos. 2 and 3 respectively, came into exclusive possession of the suit property after the death of the common ancestor Parmeshwarlal and that after the death of Devkinandan, respondent Nos. 2 and 3 received the exclusive possession of the suit property. It is not their case that Devkinandan or they came into exclusive possession of the suit property on account of some mutual agreement between all the co sharers, rather their pleadings show that the basis of their possession is closeness of Devkinandan to Parmeshwarlal and assistance given by the former to the latter in cultivation and respondent Nos. 2 and 3 being sons of Devkinandan. In the case of Sakhahari Parwatrao Karahale (supra), the Hon'ble Apex Court held that once it is pleaded that all the coparcener's had undivided share in the joint family property, the possession held by one of the co-sharers would be the possession on behalf of all the co sharers. 2 and 3 being sons of Devkinandan. In the case of Sakhahari Parwatrao Karahale (supra), the Hon'ble Apex Court held that once it is pleaded that all the coparcener's had undivided share in the joint family property, the possession held by one of the co-sharers would be the possession on behalf of all the co sharers. It further held that in such a case even if it is pleaded that the possession of one of the co sharers is exclusive to the remaining co-sharers, such possession in law would be a possession for and on behalf of all the co sharers. With the pleadings being what they are, one would have to say that in this case also the exclusive possession contended to be held by the respondent Nos. 2 and 3 would have to be understood as the possession not only for respondent Nos. 2 and 3 and but also on behalf of all the remaining co-sharers. 8. The learned advocate for the respondent Nos. 2 and 3 has argued that as no objection was taken to the exclusive possession of the joint family property by the other co-sharers including this applicant, it has to be understood that the possession in this case was of permissive nature and the permissiveness would have to be considered as flowing from failure of the applicant and respondent No. 1 to take objection to their exclusive possession till October, 2016, when the cause of action to file this suit arose. He also seeks to draw support in this regard from the findings recorded by the Civil Court in the judgment rendered in Special Civil Suit No. 24 of 2001. 9. I am not impressed by this argument. The findings recorded by the Civil Court in judgment rendered in Special Civil Suit No. 24 of 2001 are not the essence of it's interpretation of only the pleadings in the plaint in that suit but the interpretation of plaint pleadings, pleadings in the written statement and evidence led by the parties. Therefore, these findings, cannot be considered to be the pleadings of the respondent Nos. 2 and 3. On the contrary, these findings are yet to attain finality as appeal preferred against the judgment is pending and respondent Nos. 2 and 3 admit that. It would then follow that these findings cannot claim any equivalence to unequivocal pleadings in the plaint itself. 2 and 3. On the contrary, these findings are yet to attain finality as appeal preferred against the judgment is pending and respondent Nos. 2 and 3 admit that. It would then follow that these findings cannot claim any equivalence to unequivocal pleadings in the plaint itself. If any reliance was to be placed on the findings, which are now disputed, it was necessary for the respondent Nos. 2 and 3 to have also pleaded in specific terms that the basis of their exclusive possession was the permissiveness arising from inaction on the part of the applicant as well as the findings recorded by a Civil Court in that regard. But that is not the case here. Apart from it, it is significant to point out here that the Civil Court has in fact recorded no clear finding about the possession being permissive in its nature. It has rather said (para 370) that intention to separate from family to enjoy share in severalty is unequivocal. This finding is arrived at by the Court by way of an interference through process of interpretation, which process cannot be applied to understand the pleadings in the plaint. Plaint pleadings are to be considered on their face value and taking them to be correct as they appear to be. So this finding cannot be taken as a pleading in the plaint raised by a party. On the contrary, the specific pleadings are that the suit property is a joint family property in which all co-sharers have their respective undivided shares. In this suit, apart from absence of a pleading of permissive possession, there is also no pleading that by conduct of the parties the intention to separate was revealed long ago and was put into effect and that it was this intention which formed the basis of exclusive possession. So, I do not see any substance in the argument of learned counsel for the respondent Nos. 2 and 3 in this regard. 10. In the case of Tanusree Basu and Others relied upon by the learned counsel for the respondent Nos. 2 and 3, same proposition of law as held in the case of Sakhahari Parwatrao Karhale (supra) has been laid down. 2 and 3 in this regard. 10. In the case of Tanusree Basu and Others relied upon by the learned counsel for the respondent Nos. 2 and 3, same proposition of law as held in the case of Sakhahari Parwatrao Karhale (supra) has been laid down. In paragraph No. 13 of the judgment, the Hon'ble Apex Court held that there cannot be any doubt or dispute as a general proposition of law that possession of one co-owner would be treated to be possession of all, but the Hon'ble Apex Court in the facts peculiar to that case held that the plaintiffs themselves having admitted that by reason of mutual adjustment the parties were in separate possession of three flats, the separate possession of the disputed property would have to be acknowledged and accordingly limited injunction would have to be granted. Such being not the facts of this case, no respite as thought to be due to the plaintiffs in the case of Tanusree Basu and Others (supra), can be given to the respondent Nos. 2 and 3 plaintiffs in the present case. 11. The reliefs claimed in the plaint are of permanent injunction on cutting of standing crops and prohibitory injunction against dispossession for a particular period of time. But as held in the case of Sakhahari Parwatrao Karahale (supra), in a suit of the present nature, wherein there is no basis pleaded for the retention of the exclusive possession of the joint family property by the plaintiffs, no injunction can be granted to one co-sharer against other co-sharers. Going by the law, the facts pleaded in the plaint show that this suit is barred by law as no injunction as claimed here could be sought against the other co-sharers. The impugned order being contrary to the settled principles of law, needs to be quashed and set aside. I find that plaint is liable to be rejected being barred by law under Order 7, Rule 11(d) of the Code of Civil Procedure. Hence the order. ORDER (i) The revision application is allowed and the impugned order is quashed and set aside. (ii) The application vide Exh.46 is allowed. (iii) The plaint is rejected. (iv) Parties to bear their own costs. Revision allowed.