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Himachal Pradesh High Court · body

2018 DIGILAW 882 (HP)

Tek Chand v. Shakuntla alias Gudo

2018-05-14

SURESHWAR THAKUR

body2018
JUDGMENT : Sureshwar Thakur, J. The instant petition is directed, against, the orders recorded by the learned trial judge, upon, an application instituted before him, under, the provisions of Order 7, Rule 11 of the CPC, wherein, the defendants/petitioners herein, hence sought rejection of the plaint, on, the grounds averred therein. 2. The plaintiffs in the opening paragraph, of, the plaint hence admitted, of, the suit land being jointly owned by them along with the defendants. Reflections in consonance therewith also occur in the jamabandis, apposite to the suit land. However, the plaintiffs' also propagates a plea, of, theirs rather acquiring title, to, the suit land by way of prescription, arising, from theirs, with, an animus possidendi, hence, holding peaceful possession vis-a-vis the suit land, since the year 1971, and, reiteratedly their possession thereof, hence, ripening into absolute ownership thereof. From the respective pleadings, of, the parties at contest, it also appears, of, proceedings for partition of the joint suit land, hence, pending before the Assistant Collector, 1st Grade, Jogindernagar. 2-A. During the pendency of the civil suit before the learned trial Court, the defendant instituted, an application cast, under the provisions of Order 7, Rule 11 of the CPC, wherein, they sought rejection, of, the plaint, on anvil of (a) the propagation(s) in the plaint, of the plaintiffs' acquiring title, by prescription, arising, from, theirs since 1971, with, an animus possidendi, rather holding peaceful possession vis-a-vis the undivided suit land, and, hence their possession thereof, by efflux of time, ripening into absolute ownership vis-a-vis the suit land; (b) of the aforereferred espousal being antithetical besides militative, of, the trite canon, hence, governing the jurisprudential concept, of joint ownership/coownership, principle whereof contemplates, of till partition, of the joint estate, hence, occur(s) or dismemberment thereof, is made, by metes and bounds, thereupto, all the coowners holding unity of title and community of possession vis-a-vis every inch, of the joint suit land. 3. 3. As aforestated, with the plaintiffs, in the opening paragraph of the plaint, rather acquiescing, qua the suit khasra number(s) being jointly owned by them, along with, the defendants, averments whereof, are, in consonance with the jamabandi(s), apposite to the suit land, (i) thereupon, it is to be fathomed, whether, the grounds cast in the apposite application, are, at the out set, hence within the ambit of the peremptory apposite provisions, borne, in Order 7, Rule 11 of the CPC, apt portion whereof is extracted hereinafter:- 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 the plaint to be barred by any law; (e) where it is not filed in duplicate; (f) where the plaintiff fails comply with the provision of Rule 9. AND, on, prima facie satiation, whereof, rather enjoined the learned trial Court, to reject the plaint. AND, on, prima facie satiation, whereof, rather enjoined the learned trial Court, to reject the plaint. The learned trial judge, had, declined the relief, to, the defendants, upon, his imputing vis-a-vis clause (a) of Order 7, Rule 11 of the CPC the signification and the import, qua its mandate coming into operation, only when, after consideration, of, the entire material and also including the oral and documentary evidence, (i) an inference is formable, of, hence, no cause of action, standing, embodied in the plaint, (ii) whereas, its mandate, not enjoining the court concerned, to dwell into the correctness or otherwise, of, the allegations hence constituting the cause of action, (iii) especially, when the apt pleadings are yet to go, through the tribulation, of issues being cast, besides evidence being adduced thereon, (iv) thereupon, the learned trial Judge, hence concluded, that the mandate of clause (a) of Order 7, Rule 11 of the CPC, being inapplicable vis-a-vis, the averments cast in the plaint, rather the averments cast in the plaint, prima facie disclosing accrual, of, cause of action, hence, the learned trial Court, was, constrained to decline the apt relief vis-a-vis the defendants/petitioners herein. 4. For the reasons, to be assigned hereinafter, the aforesaid ascription(s), of reasons by the learned trial Court, for declining the apposite relief, is per se infirm besides shaky. (i) the learned trial Court, in making, reading(s) of the apposite clause (a) of Order 7, Rule 11 of the CPC, has made an erroneous interpretation thereof, also has ascribed vis-a-vis it, a fallacious import of its mandate, appertaining only to a scenario where only upon reading, of, the averments, borne in the plaint, and, upon a circumspect perusal, of, the document appended therewith, apparently hence no cause of action rather occurring therein. (ii) Whereas, the true innate besides the intrinsic spirit, of the apposite clause (a) of Order 7, Rule 11 of the CPC, is, of the learned trial Court being also enjoined, to, at the very inception, for avoiding, the parties hence facing tribulation(s), of the suit being subjected, to an onerous trial, (iii) emphatically when, even upon the apposite lis rather terminating, thereat too, no, view, than the one of the plaintiff being non suited, being the only inevitable hence clinching view. 5. 5. For testing whether the aforesaid principle or the innate signification, borne by the apposite clause (a) of Order 7, Rule 11 of the CPC, is borne out, by the respective pleadings, it is imperative to bear in mind, the factum (i) of an espousal in the affirmative, being reared, by the plaintiffs, of theirs acquiring title, by adverse possession vis-a-vis the suit khasra numbers, plea whereof, is, mandated by the Ho'ble Apex Court in case titled, Gurdwara Sahib vs. Gram Panchayat Village Sirthala and another, reported in (2014)1 SCC 669 , apt paragraph No.9 whereof stands extracted hereinafter, to be impermissible for espousal by the plaintiff. Paragraph No.9 reads as under:- “9. However, we also find from the reading of the judgment of the High Court that the High Court has refused the injunction observing that the appellant was not entitled to the same as it is the Gram Panchayat which is the owner of the property in dispute and as the appellant is in possession without any right, it has no right to seek injunction against the Gram Panchayat. This finding is totally perverse and, in fact, unnecessary. In the first instance, there was no occasion or reason for the appellant’s counsel to seek this prayer in the Second Appeal. As pointed out above, the relief of injunction had already been granted by the Civil Court and this portion of the decree had not been challenged by the respondents. Decree to this extent in favour of the appellant had attained finality. The First Appellate Court also specifically recorded this fact and observed that by not challenging the judgment and decree passed by the learned Civil Judge, the respondents accepted that the appellant was in adverse possession of the land since 13.4.1952. Decree to this extent in favour of the appellant had attained finality. The First Appellate Court also specifically recorded this fact and observed that by not challenging the judgment and decree passed by the learned Civil Judge, the respondents accepted that the appellant was in adverse possession of the land since 13.4.1952. We, thus, clarify that observations of the High Court that the appellant is not entitled to injunction, were unnecessary and beyond the scope of the appeal .” (ii) As aforestated, admittedly, with the plaintiffs being recorded co-owners along with the defendants/petitioners herein, hence, vis-a-vis the suit khasra numbers, thereupon, they, are rather estopped besides baulked, by the trite principle, governing, besides embodying the jurisprudential concept of joint owners, (iii) principle whereof, is, comprised in, of, all recorded co-owners hence holding unity of title, and, community of possession vis-a-vis the undivided suit khasra numbers, till dismemberment(s) thereof, hence, takes place by metes and bounds, to hence propagate, any, plea antithetical besides militative therewith, of, rather theirs by prescription, arising, by efflux of time, hence acquiring title vis-a-vis the suit khasra number, (iv) besides, any espousals, of the aforesaid plea, would reiteratedly render the aforesaid principle, to hence beget an apparent flagrant transgression, (iv) thereupon with the aforesaid averments, standing embodied, in the plaint, and, with the jamabandi apposite, to the suit land, rather making clear delineations therein, of, the suit kahsra numbers being co-owned or jointly owned by the parties, at contest besides with the joint estate, yet being undismembered, (v) whereas, only on dismemberment(s) of the apt joint estate, the plaintiffs could claim hence exclusive possession, of, those specific khasra numbers, as, allotted, on partition, to them, (vi) thereupon, with, attraction hereat vis-a-vis the pleadings, of, the aforestated apt principle(s), (a) thereupon with the propagation(s) reared in the plaint, of, the plaintiffs hence acquiring title vis-a-vis the suit land by way of adverse possession, when, is wholly interdicted, by a judgment of the Hon'ble Apex Court, rendered in Gurdwara Sahib's case (supra); (b) along therewith, with, the other aforesaid apt espousal, of the plaintiff, being also antithetical, to, the aforesaid trite principle, underlying, the jurisprudential concept of joint ownership. Consequently, even if the plaintiff's suit is permitted to undergo the entire rigors, of its being put to trial, thereupon, also when it would yet suffer dismissal, hence for obviating the aforesaid exercise and (c) when hence, at the inception, there is no legally enforceable cause of action rather the apt cause of action, embodied, in the plaint, is, for reasons aforestated, barred for its propagation, thereupon, it was inapt for the learned trial Court, to conclude, of prima facie cause(s) of action being disclosed, in the plaint, whereas, import of the apt statutory clause, is, of its carrying the nuance of a legally enforceable cause of action. More so, when concurring with the impugned order, hence, would beget infraction of the aforestated principles of law. 6. For the foregoing reasons, the instant petition is allowed, and, the order impugned before this Court is set aside. In sequel, the application cast, under the provision of Order 7, Rule 11 of the CPC, instituted by the petitioners/defendants before this learned trial Court, is allowed, and, the plaint instituted before the learned trial Court is rejected. No order as to costs. All pending applications also stand disposed of. Records, if received, be sent back forthwith.