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2019 DIGILAW 262 (UTT)

Munni Devi v. State of Uttarakhand

2019-04-01

LOK PAL SINGH

body2019
JUDGMENT : LOK PAL SINGH, J. 1. Petitioners have approached this Court seeking the following reliefs: (i) Issue a writ, order or direction in the nature of certiorari quashing the impugned judgment and order dated 20.08.2010 passed by Assistant Collector 1st Class Haldwani District Nainital (Annexure No.7), order dated 27.10.2010 passed by Commissioner, Kumaun Mandal, Nainital (Annexure No.8) and judgment and order dated 22.08.2015 passed by Board of Revenue, Uttarakhand Nainital (Annexure No.9) to this writ petition. (ii) Issue a writ, order or direction in the nature of mandamus directing the respondent not to interfere in the possession of the petitioner through his agents and any other persons over the land in dispute. 2. Facts leading to filing of present writ petition are that Late Bhawan Singh, father of petitioner nos.1 to 3, filed a suit being suit no.22/42 of 2002-03 before the Assistant Collector 1st Class Bhabar Haldwani, under Section 229-B of U.P.Z.A. and L.R. Act for declaration of his rights over the land in dispute on the basis of adverse possession. In the plaint, the plaintiff contended that he took forcible possession over the property in dispute and he is in possession over the land in dispute for more than 40 years against the wishes of the original tenure holder Nandan Singh and that he has perfected his rights and title as a bhumidhar with transferable rights. Defendant Nandan Singh filed his objections and contended that he has sold the land in dispute to his daughter Smt. Durga Devi and his son-in-law and therefore the suit is not maintainable. Defendant also moved an application under Order 7 Rule 11 of C.P.C. before the Assistant Collector stating that no cause of action arose against the defendant Nandan Singh because he had transferred the land in dispute on 27.05.2003 to Smt. Durga Devi through a registered sale deed and that the land in dispute was also mutated in her name whereas the suit was filed on 30.12.2002. It was also contended that during mutation proceedings, objections were also filed by the plaintiff/petitioner, which were rejected by the revenue court; plaintiff is aware of the fact that the suit land has already been transferred and mutated in the name of Smt. Durga but even then he has filed the suit against Nandan Singh; and, that there arose no cause of action against the defendant Nandan Singh. On the application moved by the defendant under Order 7 Rule 11 of C.P.C., the plaintiff Late Bhawan Singh filed his objections. Plaintiff also filed impleadment application and amendment application so as to impleadment Smt. Durga Devi in the suit as defendant. During the pendency of suit, plaintiff Bhawan Singh passed away, as such, his legal heirs moved substitution application. Learned Assistant Collector Ist Class Haldwani, vide judgment and order dated 20.8.2010, dismissed the suit of the plaintiff. Being aggrieved, petitioners preferred Revenue Appeal No.62 of 2009-10 before the Commissioner, Kumaun Mandal, Nainital, which was dismissed vide judgment and order dated 27.10.2010. Further aggrieved, petitioners then preferred second appeal no.01 of 2011-12 before the Board of Revenue, Uttarakhand, Nainital, which also met the same fate. Hence, this writ petition. 3. Learned counsel for the petitioners would submit that the original defendant, by committing fraud, had sold the property in dispute to his daughter Smt. Durga Devi through a forged and fabricated sale deed but the courts below did not consider this aspect of the matter and dismissed the suit of the plaintiff. Learned counsel for the petitioner would contend that for the purpose of adjudication of application under Order 7 Rule 11 of the CPC only the plaint is to be seen and the averments of the defendants in the written statement or otherwise cannot form the basis of rejection of the plaint. To buttress his submission, learned counsel would place reliance upon Mayar (H.K.) Ltd. Vs. Owners and Parties, Vessel M.V. Fortune Express, AIR 2006 SC 1828 . He would refer to para-11 of the judgment, which is reproduced below: “11. 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. 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. 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 the evidence except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud, willful 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. 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. 4. Per contra, learned counsel appearing for the private respondents would submit that the courts below have rightly dismissed the suit of the plaintiff as there was no cause of action in favour of Bhawan Singh against Late Nandan Singh in respect of the land in dispute for the reason that prior to filing of the suit, Late Nandan Singh had already sold the land in dispute to his daughter Smt. Durga Devi through a registered sale deed and whose name was also mutated in revenue records. 5. I have considered the submissions made by learned counsel for the parties and perused the entire material available on file. The only question which arises for consideration by this Court is as to whether or not on the date of filing the suit, the plaintiff had any cause of action against Late Nandan Singh. It is the admitted case between the parties that prior to filing of the suit the defendant had transferred the land in favour of his daughter Smt. Durga Devi through registered sale deed. But, the original plaintiff did not challenge the sale deed executed by the Late Nandan Singh in favour of his daughter. Apparently, plaintiff had no cause of action to institute the suit against the defendant Late Nandan Singh. But, the original plaintiff did not challenge the sale deed executed by the Late Nandan Singh in favour of his daughter. Apparently, plaintiff had no cause of action to institute the suit against the defendant Late Nandan Singh. The Trial Court has rightly dismissed the suit of the plaintiff. The case-law cited by the learned counsel for the petitioners refers to settled position of law that averments in the plaint are germane which are to be seen in deciding the application under Order 7 Rule 11 of C.P.C. and the averments made in the written statement are wholly irrelevant in order to ascertain as to whether or not, there arises a cause of action. A perusal of the material available on record, it would reveal that the learned trial court did not consider the case of the defendant rather the trial court has allowed the application Order 7 Rule 11 of C.P.C. having considered the admitted fact that the property in dispute has already been transferred by the defendant prior to filing of the suit. Thus, at the time of institution of suit, there was no cause of action available with plaintiff against the defendant. Assuming for a moment that the trial court committed error in allowing the application under Order 7 Rule 11 of C.P.C., in that event also, suit filed by the plaintiff u/s 229-B of U.P.Z.A. & L.R. Act seeking declaration on the basis of adverse possession, is not maintainable in view of dictum of Hon’ble Apex Court rendered in the case of Gurudwara Sahib vs. Gram Panchayat Village Sirthala and Another, (2014) 1 SCC 669 , wherein it has been held that no declaration can be sought by a plaintiff with regard to his ownership on the basis of an adverse possession. A plea of adverse possession can be raised only by way of defence in a suit for recovery of possession based on title. Para-8 of the judgment is relevant, which is extracted hereunder: “8. There cannot be any quarrel to this extent that the judgments of the courts below are correct and without any blemish. Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Para-8 of the judgment is relevant, which is extracted hereunder: “8. There cannot be any quarrel to this extent that the judgments of the courts below are correct and without any blemish. Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings are filed against the appellant and the appellant is arrayed as defendant that it can use this adverse possession as a shield/defence.” 6. In view of the above, I do not find any illegality or jurisdictional error committed by the courts below in passing the judgment and orders impugned. There is no merit in the writ petition. Same is accordingly dismissed. 7. No order as to costs.