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2018 DIGILAW 918 (GUJ)

Mohammad Ali Saraf Ali v. Jasabhai Lakhabhai Bharwad

2018-07-27

BIREN VAISHNAV

body2018
JUDGMENT BIREN VAISHNAV, J. 1. The present revision application has been filed by original defendant Nos. 18 to 21. They are aggrieved by the order dated 15.12.2014 passed by the learned 3rd Additional Civil Judge (SD) Amreli by which, their application Exh.52 under Order 7 Rule 11 of the Code of Civil Procedure, 1908, came to be rejected. 2. The facts in brief are as under: 2.1 The respondent No.1 original plaintiff filed a suit being Regular Civil Suit No. 144 of 2013 in the Court of the learned 3rd Additional Civil Judge, (SD), Amreli. The respondent Nos. 2 to 18 are original defendants Nos. 1 to 17 in the said suit. The plaintiffs case was that his father Lakhabhai had four sons. Samatbhai and the plaintiff were two sons. Samatbhai had expired. There was land admeasuring 500 meters in Amreli bearing Survey No. 943, Survey No. 946,947 and 948, which in all was admeasuring 6 hectares and 56 R.A. The land was in the name of one Mohammad Ali, Sakinaben, Shirinalibai, Nafisa, Sarafali and Hussainabai. On the death of Hussainabai on 27.7.2003, her name was deleted from the revenue records on 23.05.2013. As a result, the names of Mohammad Ali and his three sisters, namely, Sakinaben, Shirinalibai and Nafisa were entered in the revenue records. On the Collector, appropriating the lands, the names of defendants Nos. 18 to 21 were entered in the revenue records. 2.2 Adjacent to this land, according to the plaintiffs there was land which was uncultivated and it was the case of the plaintiffs that they were in possession of such land and had a house constructed on such land and were using it for the past 20 years. The plaintiff further stated that lands being survey nos. 943, 946, 947 and 948 were sold by the defendants nos. 18 to 21 to defendants Nos. 4 to 17 by a registered Sale Deed dated 28.10.2013. The plaint further goes to state that Mohammad Ali was out of India and the three sisters were not using the land and one Shaukat Ali Ismail, since deceased and one Quasambhai Ismailbhai were tenants on the lands. On their death, by way of an arrangement, the lands were with the defendants Nos. 18 to 21 and their names appeared in the Paani-Patrak from 1950 to 1965. The defendant Nos. On their death, by way of an arrangement, the lands were with the defendants Nos. 18 to 21 and their names appeared in the Paani-Patrak from 1950 to 1965. The defendant Nos. 18 to 21 had sold the lands by a registered Sale Deed of 28.10.2013. The plaintiffs were in possession of the land as the original tenants namely Zulfikar and his father had handed over possession of this land to the plaintiffs for over 21 years now. The plaintiffs, therefore, had prayed that defendant No. 18 and his sisters namely defendant Nos 19 to 21 had conspired and sold the lands to the defendant Nos. 4 to 17. It was the case of the plaintiff that the possession was with him and of which fact the sisters-defendant Nos. 19 to 21 were aware and therefore the sale of land by a registered Sale Deed dated 28.10.2013 was bad. It was therefore the case of the plaintiff that if the sale by the defendant Nos. 18 to 21 in favour of defendant Nos. 4 to 17 was held to be valid, the plaintiff would be dispossessed. The plaintiff therefore also raised a plea of adverse possession and made the following prayers in the suit: (1) That the action of Hussainabai in deleting her name from the revenue entry on 27.05.2013 was illegal. That the action was in violation of Section 135-D of the Land Revenue Code and that the defendant Nos. 4 to 17 be restrained from interfering with the possession of the plaintiffs and the registered Sale Deed dated 28.10.2013 be declared as illegal. (2) The present applicants who are defendants No. 18 to 21 filed an application under Order 7 Rule 11 of the Code of Civil Procedure for rejection of the plaint. According to the applicants, on reading the plaint and its averments particularly the reliefs namely prayer clause-1 where the plaintiff had prayed for a declaration that the deletion of the name of Hussainabai be declared as illegal and that certification of the mutation entry without serving notice under Section 135-D be declared illegal, would suggest that such a relief could not be granted by the Civil Court. 2.3 It was further the case of the applicants in the Order 7 Rule 11 application, that in accordance with provisions of Section 135-L of the Gujarat Land Revenue Code, a suit cannot lie in respect of a claim to have any entry made in any record or register. Such correctness of entries is only within the inquiry of revenue officers. According to the applicants, a suit cannot lie for a relief which was otherwise within the domain of the revenue authorities. 3. The learned Trial Judge by his order dated 15.12.2014 after considering the application and the arguments of the learned advocates, rejected the application. The learned Judge observed that, when the suit had multiple prayers and if some of the prayers could not be granted and if the others were possible to be entertained, it was not possible to reject the plaint under the provisions of Order 7 Rule 11(d) of the Code of Civil Procedure. The Court observed that assuming for the sake of argument that the prayers in clause 19(1) and 19(2) may not be granted, however, clause 19(3) prayer was a prayer which gave rise to civil dispute, and therefore, the suit cannot be dismissed as prayed for. The plaintiff had prayed for protection of possession of his lands and therefore, looking to the cause of action as made out in paragraph 16 of the plaint, it was clear that the suit cannot be dismissed. 4. This order of the trial Court is under challenge. 5. Mr. R.M. Pardiwala, learned advocate has appeared with Mr.Amit Patel, for the applicants. It is his submission that, if the plaintiff's caste is compared to that of the defendants, it can be seen that they are from a separate caste. The plaintiff is a Bharvad, whereas the defendants are Muslims and it cannot be believed that the suit for the prayers can be filed. Shri Pardiwala, relying on the provisions of Section 135-D and 135-L of the Gujarat Land Revenue Code, submitted that on reading the prayer 1, it is evident that the prayer is vague. The plaintiff has failed to make a case as to how he is related with late Hussainabai or how he has a right on the suit properties to receive any intimation under Section 135-D of the Land Revenue Code. 6. The plaintiff has failed to make a case as to how he is related with late Hussainabai or how he has a right on the suit properties to receive any intimation under Section 135-D of the Land Revenue Code. 6. Shri Pardiwala, further contended that the reliefs claimed by the plaintiff could only be granted by the revenue authorities. Reiterating the contentions set out in the application below Order 7 Rule 11 of the Code, it was submitted that no suit shall lie in respect of any claim to have an entry made in the revenue records. It was further submitted by Shri Pardiwala that the plaintiffs have no locus to file the suit. The respondent No.1 - original plaintiff was neither an occupant nor the owner of the suit property, and therefore, he could not pray that the Collector be restrained from granting N.A Permission. 7. Mr.Pardiwala's contention was that on reading of the prayers, it was evident that the suit was vexatious and frivolous and therefore ought to have been rejected as not disclosing any cause of action and otherwise barred by law and therefore the application under Order 7 Rule 11 of the Code ought to have been allowed. 8. Extensively relying on the revenue records, Shri Pardiwala has sought to make out a case that all such revenue entries were in favour of the present applicants, defendant Nos. 18 to 21 and the plaintiffs had no right to sue because they were not in a position to show how they were aggrieved by such entries. 9. In support of his submissions, Shri Pardiwala had relied on the compilation of orders namely: (i) Order dated 14.8.2014, passed by the D.D.O, Amreli, wherein after application of mind, the District Development Officer had granted N.A. Permission. The order of the revenue authorities dated 30.09.2017 was also pressed into service which suggested that permission was granted and was confirmed by the revisional authority. (ii) Inviting my attention to the order dated 08.04.2015, passed in Application Exh.5, by which the plaintiffs prayer for injunction was rejected, Shri Pardiwala invited my attention to the observations in such order where the Court had refused injunction by observing that the plaintiffs have failed to show under what title did they claim to being in possession of the land. All these observations would suggest in Shri Pardiwala's submission that the suit was hopelessly vexatious. 10. All these observations would suggest in Shri Pardiwala's submission that the suit was hopelessly vexatious. 10. Shri Pardiwala relied on the following decisions of the Supreme Court in support of his submissions: (1) T. Arivandandam vs. T. V. Satyapal And Anoter., (1977) 4 SCC 467 (2) The State of Karnataka And Another vs. Shri Ranganatha Reddy And Another., (1977) 4 SCC 471 (3) I.T.C Limited vs. Debts Recovery Appellate Tribunal, (1998) 2 SCC 70 (4) Banarasi Dass vs. Brig. Maharaja Sukhjit Singh., (1998) 2 SCC 81 (5) Shipping Corporation of India Ltd. vs. Machado Brothers and Others., (2004) 11 SCC 168 (6) Narinder Singh Bogarh vs. State of Punjab, (2004) 11 SCC 180 (7) Ramrameshwari Devi and Others vs. Nirmala Devi and Others, (2011) 8 SCC 249 (8) Orissa Power Transmission Corporation Limited vs. Khageswar Sundaray and Others., (2011) 8 SCC 269 (9) Church of Christ Charitable Trust And Educational Charitable Society represented by its chairman Vs. Ponniamman Educational Trust represent by its chairperson/ managing trustee, (2012) 8 SCC 706 Citing the case of T.Arivandanam, Shri Pardiwala submitted that when the plaint did not disclose any cause of action, which was evident from the statement of facts and when the plaint was manifestly vexatious not disclosing clear right to sue, the plaint ought to have been rejected. Relying on the case of I.T.C Limited, Shri Pardiwala, reiterated his submission that the plaintiff must clearly show that he has a right to sue. 10.1 Referring to the case of Shipping Corporation of India, Shri Pardiwala submitted that by virtue of the subsequent proceedings, namely, of the revenue authorities granting N.A. Permission which was confirmed in revision, ex-debito justitiae, the suit has become infructuous. With regard to the decisions in the case of Rameshwari Devi and Church of Christ Charitable Trust , Shri Pardiwala contended that when the bundle of facts pleaded show that there is no cause of action, the suit ought to have been dismissed with cost to the applicant. 11. Mr. Bhargav Karia, learned advocate for the respondent No.1 - original plaintiff extensively referred to the averments made in the plaint and submitted that it was the case of the plaintiff that one Hussainabai was the co-owner of the lands. On her death, her name was deleted on 23.05.2013. The defendants Nos. 18 to 21 were the heirs of late Hussainabai. Bhargav Karia, learned advocate for the respondent No.1 - original plaintiff extensively referred to the averments made in the plaint and submitted that it was the case of the plaintiff that one Hussainabai was the co-owner of the lands. On her death, her name was deleted on 23.05.2013. The defendants Nos. 18 to 21 were the heirs of late Hussainabai. It was the case in the plaint that one Quasambhai who is the father of the defendants 18 to 21 was cultivating the land. The defendants 18 to 21, claimed to be owners of the land. The defendants got the name of Quasambhai deleted from the revenue records and got their names entered into such records. It was the case in the plaint that the plaintiff was in possession of the land for the past 21 years and that when the defendants No. 4 to 17 purchased the land by virtue of a Sale Deed entered into by the defendants Nos. 18 to 21, it became necessary for the plaintiff to challenge such a Sale Deed and pray for protection of the possession of the lands. The cause of action therefore arose on 28.10.2013. According to Shri Karia, no prayers have been made against the defendants Nos. 18 to 21. Assuming for the sake of argument that the plaintiff failed to succeed viz-a-viz prayers No. 19/1 and 19/2, the Civil Court can grant the prayers namely that made in prayer No.19/3 i.e. a prayer to protect their possession from the defendant Nos. 4 to 17. The order of the trial Court, therefore, rejecting the application under Order 7 Rule 11 is just and proper. 12. In support of his submissions, Shri Karia has placed reliance in the case of Sejal Glass Ltd., vs. Navilan Merchants Pvt. Ltd., (2017) AIR SC 4477. According to Shri Karia, a plaint cannot be rejected in part when the plaint is seen as a whole and the Court comes to the conclusion that it does disclose cause of action. Merely because some part of the relief may not fall within the domain of a civil dispute cannot result in rejection of the whole plaint. According to Shri Karia, a plaint cannot be rejected in part when the plaint is seen as a whole and the Court comes to the conclusion that it does disclose cause of action. Merely because some part of the relief may not fall within the domain of a civil dispute cannot result in rejection of the whole plaint. He also relied on a decision of the Supreme Court in the case of Sopan sukhdev Sable and Others vs. Assistant Charity Commissioner and Others, (2004) 3 SCC 137 and submitted that when the main relief was with regard to protection of the possession, suit would definitely lie and the plaint would disclose a cause of action and cannot therefore be rejected at the threshold by operation of Order 7 Rule 11 of the Code of Civil Procedure. 13. Under Order 7 Rule 11 of the Code, a plaint can be rejected if it does not disclose any cause of action or the relief claimed therein is under-valued and the plaintiff has failed to correct the valuation despite the order of the Court or the plaint is typed on insufficiently stamped papers or the suit is barred by limitation or where it is not filed in duplicate or where the plaintiff fails to comply with the provisions of Rule 9. This provision has been interpreted in several cases by various courts and the Apex Court. 13.1 What is important to remember here is that the provision refers to the "plaint" which necessarily means the plaint as a whole. In the present case, it is relevant to note as to whether the plaint discloses any cause of action or is filed frivolously as has been contended by learned advocate appearing on behalf of the applicants. 14. Having considered the submissions of the learned advocates for the respective parties, and on reading the plaint as a whole, what comes out from the plaint is that the present applicants who were defendants No. 18 to 21, were brought on the record as their names were mutated by virtue of a revenue entry on 23.05.2013 in respect of agricultural land at Amreli. According to the plaintiff, the entries made in favour of the defendants was without following the procedure. The plaintiff's case was that he was in possession of the land for the past 21 years. According to the plaintiff, the entries made in favour of the defendants was without following the procedure. The plaintiff's case was that he was in possession of the land for the past 21 years. The cause of action arose when the present applicants i.e. defendant Nos. 18 to 21 by a registered Sale Deed dated 28.10.2013 sold the land in favour of defendant Nos. 4 to 17. 15. It was in this background that the plaintiff had prayed for a declaration to set aside the Sale Deed dated 28.10.2013 and consequentially protect his possession by declaring and injuncting the defendant Nos. 4 to 17 from taking over possession. 16. Therefore, essentially what was prayed for was that the plaintiff's possession be protected. In seeking to claim such a relief as prayed for in paragraph no. 19(3) of the plaint, the averments in the plaint have to be read as a whole and even if the plaintiff is not entitled to seeking reliefs as prayed for in paragraphs No. 19(1) and 19(2) of the plaint, it was the case of the plaintiff that the possession of the defendant Nos. 4 to 17 by virtue of the Sale Deed dated 28.10.2013 be declared as illegal. Therefore, it is obvious on reading the plaint and the prayers in relation to the averments made therein that it cannot be said that the suit is entirely vexatious or frivolous and therefore does not disclose a cause of action. 17. Even taking into consideration the ratio laid down in Sejal Glass, apparently the trial Court cannot be faulted to hold that the plaint cannot be rejected in part. Similarly in the case of Sopan Sukhdeo Sable, the Apex Court has held as under: "11 In I.T.C Ltd. v. Debts Recovery Appellate Tribunal it was held that the basic question to be decided while dealing with an application filed under Order 7 Rule 11 of the Code is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7 Rule 11 of the Code. 12 The trial Court must remember that if on a meaningful and not formal reading of the plaint it is manifestly vexatious and merit-less in the sense of not disclosing a clear right to sue, it should exercise the power under Order 7 Rule 11 of the Code taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, it has t be nipped in the bud at the first hearing by examining the party searchingly under Order 10 of the Code (See T. Arivandandam v. T.V. Satyapal). 13 It is trite law that not any particular plea has to be considered, and the whole plaint has to be read. As was observed by this Court in Roop Lal Sathi v. Nachhattar Singh Gill only a part of the plaint cannot be rejected and if no cause of action is disclosed, the plaint as a whole must be rejected. 14 xxxx xxxxx xxxxx 15 There cannot be any compartmentalisation, 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 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 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 sub-straction or 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." 18. In view of the above discussion, which prima facie reveals a cause of action, the decisions cited by learned advocate appearing on behalf of the applicant cannot be said to be applicable on the facts of the present case. 19. Accordingly, I see no reason to interfere with the order passed by the trial Court. In view of the above discussion, which prima facie reveals a cause of action, the decisions cited by learned advocate appearing on behalf of the applicant cannot be said to be applicable on the facts of the present case. 19. Accordingly, I see no reason to interfere with the order passed by the trial Court. The trial Court shall proceed with the suit and is requested to hear and dispose of the same as expeditiously as possible, preferably within a period of one year from the date of receipt of writ of order of this Court. Accordingly, the present Civil Revision Application stands dismissed. Interim relief stands vacated. Rule is discharged.