Research › Search › Judgment

Gujarat High Court · body

2024 DIGILAW 815 (GUJ)

Pankaj Dolatray Deasi v. Kusumben Dolatray Desai

2024-04-09

VAIBHAVI D.NANAVATI

body2024
JUDGMENT : 1. Heard Ms. Trusha Patel, the learned Senior Counsel assisted by Mr. Nishit P. Gandhi, the learned advocate appearing for the applicant and Mr. Dhaval Vyas, the learned Senior Counsel appearing for the opponents No.1 and 2. 2. The applicant herein has approached this Court under Section 115 of the Civil Procedure Code, 1908 being aggrieved and dissatisfied by the impugned order dated 4.5.2022 passed below Ex.13 by the learned 2nd Additional Senior Civil Judge, Valsad at Vapi in the Special Civil Suit No.9 of 2019 whereby the applicant - original defendant’s application seeking rejection of the plaint came to be rejected. The opponent – original plaintiff preferred the suit for specific performance under Sections 34 and 38 of the Specific Relief Act and under Section 54 of the Civil Procedure Code, under Section 4 of the Partition Act and under Section 8 of the Hindu Succession Act. 3. The brief facts leading to the filing of the present civil revision application read thus :- 3.1 The opponent – original plaintiff no.1 Kusumben is the widow and original polaintiff no.2 Shitalben is the daughter of deceased Dolatray Kalidas and applicant – defendant No.1 Pankaj Dolatray Desai and his wife Rupaben are the successor and legal heirs of deceased Dolatray Kalidas. The original property as stated in paragraph-2 of the plaint being land bearing Agricultural Tenure No.134 (Old Tenure No. 34) located in ‘Tarakpardi’ village of Vapi Taluka, which was registered in the name of deceased Kalidas Dahyabhai Desai came to be divided amongst his sons, when he was alive and during this partition, the said property was given to late Shri Dolatray Kalidas. Entry No.343, dated 03.06.1969 was effectuated in the land record regarding this partition. Subsequently the names of the respondent and plaintiff No.1 were mutated in the record of rights alongwith the name of late Shri Dolatray Kalidas Desai. Mutation entry was mutated to the said effect was mutated on 25.04.1985. Shri Dolatray Kalidas Desai expired on 25.01.2016, the Plaintiff and respondent being direct and legal heirs Mutation entry No. 551 effectuated on 05.10.2017 regarding the succession of the deceased. 3.2 The property mentioned in paragraph-2 of the plaint is jointly owned and occupied by the Plaintiff and Respondent, which is their ancestral land of agricultural tenure. The Plaintiff and Respondent No.1 had and still have undivided 1/3 share, right and possession over the said property. 3.2 The property mentioned in paragraph-2 of the plaint is jointly owned and occupied by the Plaintiff and Respondent, which is their ancestral land of agricultural tenure. The Plaintiff and Respondent No.1 had and still have undivided 1/3 share, right and possession over the said property. Though the Plaintiffs have repeatedly requested the Respondent to divide the land as per above mentioned boundaries and get the entries regarding the same effectuated in the land record, the Respondent is not doing so. In view of above, the Plaintiffs are unable to develop the property, hence it is required to partition the said properly lawfully by boundaries and get the entry regarding the same mutated in the land record. 3.3 In view of aforesaid the plaintiff issued notice on 14.09.2018 through their advocate to get the share of the earnings received from the said property and to divide the share of lands of the plaintiffs by boundaries and get entries regarding the same mutated in the land records, within 15 days. Though the notice served to the Respondent, the respondent chose not to act upon the said notice, in view thereof the cause of action arose to institute the present Suit being Special Civil Suit No.9 of 2019. 4. The cause of action for filing of the suit in question read thus (true translation ):- “(7) The cause of this suit has arose everyday from the date when we - the Plaintiffs had given notice to the Respondent on 14/09/2018 to make partition of the said property and therefore, the Suit is not barred by limitation. (8) The suit property is of agricultural tenure. The annual cess for the same is Rs. 134 - 35 Paisa and on multiplying the same by twenty, it is Rs. 2,687/-. As per 2/3 share and possession of we – the Plaintiffs, the assessment of the property is Rs. 1,791- 33 Paisa. Considering that assessment for partition, Court Fee Stamp of Rs. 200/- needs to be paid on the same. As the present Suit is also preferred for obtaining permanent injunction order, estimate of Rs. 300/- is assessed and Court Fee of Rs. 100/- is paid. Overall, total Court Fee Stamp of Rs. 300/- is affixed on this suit. 12. Considering that assessment for partition, Court Fee Stamp of Rs. 200/- needs to be paid on the same. As the present Suit is also preferred for obtaining permanent injunction order, estimate of Rs. 300/- is assessed and Court Fee of Rs. 100/- is paid. Overall, total Court Fee Stamp of Rs. 300/- is affixed on this suit. 12. Notice is hereby given to the Respondent that if any ancestral family property, other than the Suit Property, is held under the possession and ownership of the Respondent or if properties have been purchased in the name of the Respondent from the earnings of family agricultural land, then the Respondent shall submit particulars regarding the same on the first hearing date of this Suit. The Plaintiff reserve their right to made amendment in the Suit after receipt of such information and details.” 5. The opponents herein - original plaintiffs instituted the suit in question for the reliefs as stated in paragraph-13 and 14 of the plaint which read thus (true translation ) :- “(13) Therefore, it is prayed by the Plaintiff that, 1. Be pleased to declare that the property mentioned in the description below, is the property owned jointly by Plaintiffs and Respondent and that the Plaintiff No.1 has 1/3 i.e. third share, right and possession, Plaintiff No.2 has 1/3 i.e. third share, right and possession and the Respondent has 1/3 i.e. third share, right and possession over the said property. 2. Be pleased to make partition of the property mentioned in the description of property below among the Plaintiffs and in this partition, be pleased to divide the share of the Plaintiffs and Respondents by the boundaries of land and pass appropriate orders in favour of the Plaintiffs as per the provisions of the Partition Act and make necessary entries in the land record. 3. Be pleased to grant entire cost of this Suit from the Respondent. 4. Be pleased to pass appropriate order directing the Respondent to submit the account of income – expenditure pertaining to Suit Property and be pleased to grant the share to the Plaintiff from the income amount of said earnings and draw decree accordingly in favour of the Plaintiffs and against the Respondent. 5. Be pleased to grant any other relief that may deem fit to the Ld. Court. 6. 5. Be pleased to grant any other relief that may deem fit to the Ld. Court. 6. Grant permission to make amendment in this plaint if required.” “(14) The land bearing Agricultural Tenure No. 134 (Old Tenure No. 34) located in ‘Tarakpardi’ village of Vapi Taluka, having below mentioned description and area:- Old Survey No. New Survey No. Hec. Are Aakar 24 31/1/4 0-32-37 5-95 25 32/1/2 0-28-33 5-20 26 32/1/1 5-81-22 107-65 27 31/1/3 0-03-06 0-55 88 27/2 0-09-12 1-70 89 33/3 0-12-66 2-20 124 45/1 0-12-25 0-40 137 39/1 3-30-34 10-70 10-09-35 134-35 6. The relevant paragraphs of the impugned order dated 4.5.2022 passed below Ex.13 by the learned 2nd Additional Senior Civil Judge, Valsad at Vapi in the Special Civil Suit No.9 of 2019 read thus (true translation ) :- “For this matter, in reply to this petition, plaintiff has raised a contention that, the facts of the present suit and that of suit no. 13/15 filed by Gulabbhai are different, hence suit is not barred by Res Judicata and the facts of the propety situated at Vatar are out of place. Thus, from the defence of the Defendant it is clear that plaintiff is concealing some facts but the scope of the Court for deciding an application under order 7 rule 11 is limited upto the plea of the plaintiff. The Court cannot go beyond it due to which Court cannot attempt to consider adverse findings due to limitation of law. However due to that Defendants right to raise an objection under other provision of CPC does not cease to exist. A. In this case, the authority laws cited by the defendant in K. Akbar Ali V/s. K.Umarkhan, (S.C.) 2021 275 held that the cause of action is disclosed in the suit as to whether the suit is barred by law or not the said fact to be seen from the plaint and the Court cannot see plaintiff’s weakness or strength or defence of the defendant. The court has to do meaningful reading of the entire plaint. Clever drafting does not permit illusion of the cause of action and right to sue must appear from the plaint. A statutory claim cannot be camouflaged by devious and clever drafting. The court has to do meaningful reading of the entire plaint. Clever drafting does not permit illusion of the cause of action and right to sue must appear from the plaint. A statutory claim cannot be camouflaged by devious and clever drafting. The court can see the documents of the plaintiff along with the plaint; Thus, in this case, the legal heirs of the deceased's property have denied the claim which has been denied, and the cause of action appears in the suit, so this Court is of the opinion that the circumstances of the present case are different from the authority presented. Thus, as the legal heirs of the deceased’s property sought partition, on denying the same, filed suit. Thus, cause of action appears in this case. Hence, this Court assumes that the authority produced and circumstances of present case are different. B. In this case, the authority produced by the respondent in Civil Application No.9519/2019 in the Honourable Supreme Court in Dahiben V/s. Kalyanji Bhanushali held that in that case the sale deed was challenged after 3 years. The court held that the averment of the plaint and the documents produced by the plaintiff have to see whether the plaint discloses a cause of action or not and whether the suit is within time limit or not. It requires to see plaint and documentary evidence for Order 7 Rule 11 which is considered a part of the plaint. The contentions raised by the defendant in the reply and plaint rejection application are irrelevant to the decision of this application and therefore need not be taken into consideration. Whether the cause of action is disclosed by the plaint is a question of fact and the test thereof is whether the averments made in the plaint are taken to be correct in their entirety a decade would be passed. There is no sentence or paragraph to look at for a cause of action but has to see the substance and if cause of action appears prima facie from allegation of the plaint, its inquiry does not need to be carried out as to whether it is true or false. If the claim is without merit and does not disclose the right to claim, the plaint can be rejected. If the claim is without merit and does not disclose the right to claim, the plaint can be rejected. The power of Order 7 Rule 11can be exercised at any stage i.e. before registering the plaint or after issuing summons to the defendant or before the trial is over, Order 7 Rule 11 is of mandatory nature. Cause of action means every effect which would be necessary for the plaintiff to support his right to judgement. It consists of a bundle of material facts, which are necessary for the plaintiff to prove in order to entitle him to the reliefs claimed in the suit. Creating the illusion of cause of action by clever drafting of the law cannot be permitted. If the claim arises from multiple causes of action, the limitation period starts from the date on which the right to sue first accrues and successive violations do not give rise to a fresh cause of action claim; Thus, looking at the plaint and document in this case, the property has come in the joint names of the parties from the death of their elder and as per the Hindu Succession Act, all the heirs are entitled. If the person dies without executing a will of his self-acquired property whereas in the present case, the property was received by Dolatrai as heir from his ancestor. Thus, looking at the plaint, there appears cause of action in the suit due to which, and by way of the notice of partition, prima facie limitation of the suit has started, the authority produced in this case and circumstances of present case differs, the court assumes so. C. In this case it is held by the authority produced by plaintiff in Bahuram V/s Janak Sing and Ors. A.I.R. 2012 S.C. 3023 that the Court has to look at the averments of plaint at the time of considering application of Order 7 Rule 11 and plea of the defendant’s reply is irrelevant, hence not require to look at; thus, considering this authority, in this case, it transpires that no fact other than pleading of the plaintiff can be considered and therefore, this Court, at this stage, is not entitled to look into the entire record of the case including the reply or delist of the defendant or contentions raised in the defence. Hence the authority produced is helpful to the plaintiff. Hence the authority produced is helpful to the plaintiff. D. The authority produced by the plaintiff in the case P. V. Guru Raj Reddy and Ors. V/s Niradha Reddy and Ors., A.I.R. 2015 S.C. 2485 it is held that averments of the application of Order 7 Rule 11 are to be looked at in their entirety to find out as to whether it discloses a cause of action and whether barred by law or not. Reply of the defendant or stand of the application is immaterial; upon considering this matter, it is not the cause or limitation paragraph of the plaintiff’s pleading but reading the entire plaint to determine whether it discloses a cause of action and whether it is within limitation period. Thus, considering accordingly, also due to the authority, considering the plaint of the plaintiff, there appears suit and limitation period transpires that authority produced is helpful to the plaintiff. E. In this case, it is held in the authority produced by the plaintiff R. K. Roja V/s. U.S. Raydu and Ors., A.I.R.2016 S.C. 3282 that application of Order 7 Rule 11 can be filed at any stage but restriction is such that allegation of defendant’s reply or allegation of the application cannot be considered for decision of the application and these allegations cannot be base of decision of the application. Application of order 7 Rule 11 should be disposed of at first, before proceeding trial. An application of Order 7 Rule 11 can also be filed before reply and the defendant is entitled to produce reply after rejection of the same. Thus, looking at the principle of this authority, it transpires that defence or allegation of the defendant cannot be considered in this case and due to the said reason also, defence of the defendant cannot be considered in this application. F. In the case, authority produced by plaintiff in Salimbhai and Ors. V/s. State of Maharashtra and Ors. A.I.R. 2003 S.C. 759 Substantiates that the application of Order 7 Rule 11 is to be decided by the averment of plaint. Hence, it is not required to file reply of defendant. It is an irregularity in exercising jurisdiction to direct the defendant to file a reply without deciding the application of Order 7 Rule 11; thus, it transpires that the authority also prohibits to consider the facts those are outside of the plaint. Hence, it is not required to file reply of defendant. It is an irregularity in exercising jurisdiction to direct the defendant to file a reply without deciding the application of Order 7 Rule 11; thus, it transpires that the authority also prohibits to consider the facts those are outside of the plaint. G. In this case, the authority produced by the plaintiff in case of Chhotanaben V/s. Kiritbhai Jalkrushnabhai Thakkar A.I.R. 2018 SC 2447 substantiates that bar of limitation is a triable issue in this case. Looking at the fact of the case hence, the plaint cannot be rejected under Order 7 Rule 11. Therefore, in this case, the issue of limitation period should be considered at an appropriate state. Whereas in this case, the authority produced by the plaintiff in Surjeet Kaur Gill and Ors. V/s. Adarsh Kaur Gill and Ors. A.I.R. 2014 S.C. 1476 substantiates that the issue of limitation period is always a mix of fact and law; therefore, considering this fact, as the contention of limitation period and being a mix issue of law, cannot be considered without evidence and due to the said reason also, contention of limitation period cannot be considered at this stage, it transpires so. I. In this case, the authority produced by the plaintiff in Suchasingh Sodi V/s. Baldevraj Waliya A.I.R. 2018 S.C. 2241 substantiates that all reliefs arising out of cause of action must be sought as per Order 2 Rule 2(1) and if the plaint does not seek any relief or claim as per Order 2 Rule 2(2), subsequently he cannot be allowed to claim his remaining demand. Specific Performance cannot be sought in the suit for permanent Injunction because both have different cause of action and both reliefs are not identical and when both reliefs are governed by different articles of the Limitation Act, both these reliefs cannot be sought in one cause of action; but in the present case, at this stage, the plaintiff does not bring on record the fact of second suit. Therefore, the relief of both the suits was the same so whether counter relief could not be sought in that suit or not, the fact cannot be seen at the stage of this application and if such a fact comes on record subsequently that property of Tarkpardi was in name of Dolatrai alogwith the property of Vatar also whose partition is not sought then the plaintiff may suffer loss to that extent due to this authority. J. In this case, the authority produced by the plaintiff it substantiates in Civil Appeal No. 4665/2021 S.C. Shri Hari Hanumandas Totala V/s. Hemant Viththal Kamat and Ors., that only averments of the plaint can be looked at to see that the suit is beyond limitation period. While deciding the application of Order 7 Rule 11, defence of the defendant cannot be considered. To decide as to whether the suit is barred by res judicata or not, it requires to see that the first suit has been decided and the issues of second suit are directly and subsequently issues of the first suit and the first suit and the first suit is between the same parties or parties on whose behalf the claim is being done be between them and which is for the same title and the said issue has been decided finally in the competent Court, pleadings, issue and judgment of the previous suit should be looked at and compared to see the plea of res judicata which the fact is beyond the scope of Order 7 Rule 11(d) because a plaint can be seen for Order 7 Rule 11. Res judicata is a mix issue of the fact of res judicata for which other evidences are required to see alongwith plaint, also judgement of previous suit requires to be seen so that the suit can be decided by the decision of preliminary issue or final hearing but cannot be decided by order 7 Rule 11. If the plaintiff has concealed facts of the earlier suit, the plaintiff is defaulter but defence of reply cannot be seen for Order 7 Rule 11. If the plaintiff has concealed facts of the earlier suit, the plaintiff is defaulter but defence of reply cannot be seen for Order 7 Rule 11. The court should first consider whether the suit is maintainable or not by considering the contention of the defendant for the issue of res judicata which does not appear from the plaint and by framing the issues not decided by Order 7 Rule 11; Thus, to see a plea of res judicata one has to see and compare the pleadings, issue and judgment of the prior suit which is beyond the scope of Order 7 Rule 11(d) and res judicata is a mixed question of law and fact for which other evidences alongwith the plaint are required to see, the fact which cannot be seen in this application, it transpires so. But alongwith, the contention of res judicata can be decided in the suit by preliminary issues or final hearing thus, Thus, the entire suit has to be tried, it is not so to determine res judicata. Thus, considering the above discussion and facts, present application of the defendant is not triable, I am inclined to pass the following order. Order I hereby order that the defendant’s present application under Order 7 Rule 11(d) be rejected. Court. Order is pronounced today on 4th May 2022 in the open Sd/- (I.I.Pathan) 2nd ADDL. SENIOR CIVIL JUDGE VALSAD @ VAPI” Submissions on behalf of the applicant :- 7. Ms. Trusha Patel, the learned Senior Counsel appearing for the applicant submitted that the plaint of the Special Civil Suit No.9 of 2019 was required to be rejected mainly on two grounds one, suppression with respect to the Special Civil Suit No.13 of 2015 wherein the plaintiffs were parties to the said suit and the order has been accepted by them. Without challenging the judgment and decree passed in the Special Civil Suit No.13 of 2015 the present suit would not be maintainable. Secondly, the suit is barred by law of limitation. 7.1 The deceased Dolatray Ralidas Desai has executed a will in favour of the applicant qua the suit properties wherein it is mentioned that the plaintiff No.2 had already been paid at the time of her marriage. 7.2 The Suit is not maintainable as per provisions of Section 34 and 38 of the Act. 7.1 The deceased Dolatray Ralidas Desai has executed a will in favour of the applicant qua the suit properties wherein it is mentioned that the plaintiff No.2 had already been paid at the time of her marriage. 7.2 The Suit is not maintainable as per provisions of Section 34 and 38 of the Act. The cause of action stated in the plaint is illusory and there is no real cause of action to institute the suit. The plaint does not disclose clear right to sue and therefore the competent Court should have rejected the plaint. 7.3 Though the trial Court observed that there is suppression by the plaintiff, since the plaint is silent on the earlier suit and the will, it could not be considered. The aforesaid findings arrived at by the competent Court is erroneous. 7.4 It is submitted that once there is suppression of material facts, the plaint is required to be dismissed on the ground alone. 7.5 Placing reliance on the above submissions, Ms. Patel, the learned Senior Counsel relied on the following decisions :- (a) In the case of Kenchegowda (Since deceased) by Legal Representatives vs. Siddegowda Alias Motegowda, reported in 1994 (0) AIJEL-SC 14370. (b) In the case of Swami Nath vs. Lakhan Lal, reported in 2012 (0) AIJEL-UP 366783. (c) Civil Revision Application No.345 2018 judgment dated 12.1.2023, Jaman Shamji Fadadu vs. Sadik Mahmad Sidik & Ors., Submissions on behalf of the opponents :- 8. Mr. Dhaval Vyas, the learned Senior Counsel appearing for the opponents No.1 and 2 submitted that the contention of the applicant with respect to suppression of fact with regard to the judgment and decree passed in the Special Civil Suit No.13 of 2015 wherein both the parties to the suit proceedings, the said suit was filed between the uncle and the applicant herein wherein the plaintiff and defendant were defendants in the said suit proceedings. The said suit was filed with respect partition for some other parcel of land. It is submitted that there is no suit pending between the parties where it can be said that the plaintiff has suppressed the material facts and they are such that the suit cannot be proceeded on the ground of suppression. 8.1 Mr. The said suit was filed with respect partition for some other parcel of land. It is submitted that there is no suit pending between the parties where it can be said that the plaintiff has suppressed the material facts and they are such that the suit cannot be proceeded on the ground of suppression. 8.1 Mr. Vyas, the learned Senior Counsel submitted that the question of maintainability of suit is completely different from, whether the suit will succeed or not on merits of the case and in light of the applicable law. 8.2 It is submitted that all the contentions that are raised by learned Senior Counsel appearing for the applicant herein are such that they can be considered at the time when the suit is heard and decided on merits. 8.3 In view of above submissions, Mr. Vyas, the learned Senior Counsel placed reliance on the following decisions :- (a) In the case of Sushil Kumar Agarwal vs. Meenakshi Sadhu and Ors., reported in AIR 2018 SC 1538. (b) In the case of Marudanayagam Pillai vs. Sola Pillai (died) and others, reported in AIR 1965 Madras 200. (c) In the case of Keshav Sood vs. Kirti Pradeep Sood, reported in AIRONLINE 2023 SC 902. (d) In the case of Shivnarayan(D) Versus Maniklal(D), reported in 2020 (11) SCC 629 . (e) In the case of Darshan Singh Versus Gujjar Singh, reported in 2002 (2) SCC 62 . (f) In the case of Srihari Hanumandas Totala v. Hemant Vithal Kamat, reported in 2021 (9) SCC. 10. This Court deems it fit to deal with the judgments relied upon by Ms. Trusha Patel, the learned Senior Counsel appearing for the applicant :- (a) In the case of Kenchegowda (Since deceased) by Legal Representatives vs. Siddegowda Alias Motegowda, reported in 1994 (4) SCC 294 , paragraph-4 read thus :- “4. The plaint averments are shortly as under. The plaintiff's father and his brother formed a Joint Hindu Family. The father of the plaintiff died about 30 years ago leaving behind him the plaintiff and his brother Boregowda. During the lifetime of the plaintiff's father there was a division of the properties belonging to Joint Hindu Family. After the partition the plaintiff's father purchased the suit Survey No. 214 measuring one acre 20 guntas along with two other properties under a registered sale deed dated 5.7.1929. During the lifetime of the plaintiff's father there was a division of the properties belonging to Joint Hindu Family. After the partition the plaintiff's father purchased the suit Survey No. 214 measuring one acre 20 guntas along with two other properties under a registered sale deed dated 5.7.1929. Therefore, the suit land is a self-acquired property of the plaintiff's father which devolved on the plaintiff and his brother. The plaintiff and his brother divided their family properties six years ago and in that partition the suit property was allotted to the share of the plaintiff. As such he became the exclusive owner of the suit land.” The Hon’ble Supreme Court held that the suit for partial partition without making all properties subject matter of suit or all co-sharers being joined as parties was held to be not maintainable. The aforesaid ratio as laid down by the Hon’ble Supreme Court would not be applicable in the facts of the present case in light of the fact that the suit in question is filed seeking partition of the properties devolved in favour of the plaintiff and the respondent No.1 on expiry of late Shri Dolatray Kalidas Desai. The stage of the suit is at the rate of Order VII Rule 11. (b) Civil Revision Application No.345 2018 judgment dated 12.1.2023, Jaman Shamji Fadadu vs. Sadik Mahmad Sidik & Ors., paragraph-29 and 43 read thus :- “29. Therefore, the principles, which can be culled out from the abovereferred judgments, are that the plaint can be rejected under Order VII Rule XI of the Code, if the conditions enumerated in the said provisions are fulfilled and the powers can be exercised by the Court at any stage of suit. While deciding the application, the averments of the plaint need to be gone into and on meaningful reading of the averments in the plaint, if it is found that the suit is manifestly vexatious and meritless inasmuch as, it does not disclose any right to sue, the powers under Order VII Rule XI can be exercised. While deciding the application, the averments of the plaint need to be gone into and on meaningful reading of the averments in the plaint, if it is found that the suit is manifestly vexatious and meritless inasmuch as, it does not disclose any right to sue, the powers under Order VII Rule XI can be exercised. Further principle which can be culled out is that when the allegations made in the plaint are taken to be correct as a whole on their face value and if suggest that the suit is barred by any law or does not disclose any cause of action, the application seeking rejection of the plaint can very well be entertained, exercising the powers under Order VII Rule XI of the Code. If by clever drafting of the plaint, illusion of a cause of action is created, the Court shall nipped in the bud, so as to see that the bogus litigation ends at the earlier stage. 43. Suit being Regular Civil Suit no.63 of 2013 for the same land with identical prayers without impleading the petitioner and joining the owners of survey nos.1130/1 and 1130/2, has been rejected, upon filing of an application under Order VII Rule 11 of the CPC on 12.4.2017 and appeal is pending before the District Court. The said fact, was suppressed by the plaintiff and it is not disputed by the plaintiff, i.e. the respondent. Defence is raised that such issue cannot be decided at this stage. Such defence in view of undisputed fact would not be available to the plaintiff and deserves rejection. The suit is based on suppression of fact and therefore abuse of process of Court and therefore, deserves rejection on this count as well.” The ratio referred above does not apply to the facts of the present case. In paragraphs 29 and 43 it is held that the plaint is required to be rejected under Order VII Rule 11 of the Civil Procedure Code if it is found that the averments made in the plaint are manifestly vexatious and meritless. In paragraphs 29 and 43 it is held that the plaint is required to be rejected under Order VII Rule 11 of the Civil Procedure Code if it is found that the averments made in the plaint are manifestly vexatious and meritless. On perusal of the plaint and cause of action it cannot be said that, the plaint cannot be held to be vexatious and without any cause of action in light of the fact that the plaintiffs have paragraph-8 of the plaint stated that the cause of arose when the plaintiffs issued notice to the respondent on 14.9.2018 for partition of the said property. The plaintiffs are seeking two third (2/3) share and possession of the property as stated in para-4 of the plaint. (c) In the case of Swami Nath vs. Lakhan Lal, reported in 2012 (0) AIJEL-UP 366783 paragraph-17 read thus :- “17. The aforesaid observations of the Apex Court are very important in the context of the facts of present case, specially when the case of the defendants is that a partition had already taken place and the plaintiffs have intentionally not sought the partition of those two houses (house Nos. 3 and 4) which are in their possession by excluding them out of the ambit of the plaint. The trial Court was conscious of the above fact and it has noted towards the end of the judgment that it is not awarding the cost of the suit to the plaintiffs because they have not included other joint family properties in the suit for the reasons best known to them. In view of the finding recorded by the trial Court holding that the present suit is for partial partition, the argument of the learned counsel for the appellant, that such a suit is not maintainable, is on terra-firma. The suit should have been dismissed for partial partition or the decree in respect of other joint properties i.e. in respect of house Nos. 1 to 4 should have been passed. It would be travesty of justice to decree the suit for the joint properties in possession of the defendants, without passing a similar decree in respect of other joint properties, in possession of the plaintiffs. The fact that for house Nos. 1 to 4 should have been passed. It would be travesty of justice to decree the suit for the joint properties in possession of the defendants, without passing a similar decree in respect of other joint properties, in possession of the plaintiffs. The fact that for house Nos. 3 and 4, partition has not been claimed, lends support to the defence version that there was a partition in the two branches of the parties earlier.” In the facts of the said case it was held that the suit should have been dismissed for partial partition or decree with respect of the joint family, wherein it was the case of the defendant that the partition had already taken place and the plaintiff intentionally had not sought the partition of two houses House Nos.3 and 4 which were in their possession by excluding them out of the ambit of the plaint. The Hon’ble Court held that such a suit was not maintainable in view of the fact that the House Nos.3 and 4 partition has not been claimed and partial partition is not permissible. The aforesaid does not apply to the facts of the present case and the suit cannot be held to be not maintainable under Order VII Rule 11 of the Civil Procedure Code, if such contention is raised before the competent Court by the applicant herein, the same would be decided by the competent Court in accordance with law. 11. In the aforesaid set of facts, in the opinion of this Court, present case are governed by the following position of law. Position of law :- (a) In the case of Keshav Sood vs. Kirti Pradeep Sood, reported in AIRONLINE 2023 SC 902, paragraphs 4 to 6 read thus :- “4. After having heard the learned counsel appearing for the parties, we find that the plea of res judicata could not have been gone into on an application made by the appellant under Rule 11 of Order VII of CPC. Apart from pleadings in the earlier suit, several other documents which were relied upon by the appellant in his application under Rule 11 of Order VII of CPC were required to be gone into for deciding the issue of res judicata. 5. As far as scope of Rule 11 of Order VII of CPC is concerned, the law is well settled. 5. As far as scope of Rule 11 of Order VII of CPC is concerned, the law is well settled. The Court can look into only the averments made in the plaint and at the highest, documents produced along with the plaint. The defence of a defendant and documents relied upon by him cannot be looked into while deciding such application. 6. Hence, in our view, the issue of res judicata could not have been decided on an application under Rule 11 of Order VII of CPC. The reason is that the adjudication on the issue involves consideration of the pleadings in the earlier suit, the judgment of the Trial Court and the judgment of the Appellate Courts. Therefore, we make it clear that neither the learned Single Judge nor the Division Bench at this stage could have decided the plea of res judicata raised by the appellant on merits.” (b) In the case of Sushil Kumar Agarwal vs. Meenakshi Sadhu and Ors., reported in AIR 2018 SC 1538, Para-16 read thus :- “16. The expression "development agreement" has not been defined statutorily. In a sense, it is a catch-all nomenclature which is used to be describe a wide range of agreements which an owner of a property may enter into for development of immovable property. As real estate transactions have grown in complexity, the nature of these agreements has become increasingly intricate. Broadly speaking, (without intending to be exhaustive), development agreements may be of various kinds: (i) An agreement may envisage that the owner of the immovable property engages someone to carry out the work of construction on the property for monetary consideration. This is a pure construction contract; (ii) An agreement by which the owner or a person holding other rights in an immovable property grants rights to a third party to carry on development for a monetary consideration payable by the developer to the other. In such a situation, the owner or right holder may in effect create an interest in the property in favour of the developer for a monetary consideration; (iii) An agreement where the owner or a person holding any other rights in an immovable property grants rights to another person to carry out development. In consideration, the developer has to hand over a part of the constructed area to the owner. In consideration, the developer has to hand over a part of the constructed area to the owner. The developer is entitled to deal with the balance of the constructed area. In some situations, a society or similar other association is formed and the land is conveyed or leased to the society or association; (iv) A development agreement may be entered into in a situation where the immovable property is occupied by tenants or other right holders. In some cases, the property may be encroached upon. The developer may take on the entire responsibility to settle with the occupants and to thereafter carry out construction; and (v) An owner may negotiate with a developer to develop a plot of land which is occupied by slum dwellers and which has been declared as a slum. Alternately, there may be old and dilapidated buildings which are occupied by a number of occupants or tenants. The developer may undertake to rehabilitate the occupants or, as the case may be, the slum dwellers and thereafter share the saleable constructed area with the owner. When a pure construction contact is entered into, the contractor has no interest in either the land or the construction which is carried out. But in various other categories of development agreements, the developer may have acquired a valuable right either in the property or in the constructed area. The terms of the agreement are crucial in determining whether any interest has been created in the land or in respect of rights in the land in favour of the developer and if so, the nature and extent of the rights. From the aforesaid it emerges that the question of maintainability of suit is completely different from the question whether the suit will succeed or not on the merits and in the light of the law applicable. It is submitted that all the contentions that are raised by the learned counsel appearing for the applicant are such that the same can be considered at the time when the suit is heard and decided on merits. (c) In the case of Shivnarayan(D) Versus Maniklal(D), reported in 2020 (11) SCC 629 paragraph-29 read thus :- “29. The partial partition of property is well accepted principle with regard to a joint family. In Mayne's Hindu Law & Usage, 16th Edition in paragraph 485 following has been stated: "485. (c) In the case of Shivnarayan(D) Versus Maniklal(D), reported in 2020 (11) SCC 629 paragraph-29 read thus :- “29. The partial partition of property is well accepted principle with regard to a joint family. In Mayne's Hindu Law & Usage, 16th Edition in paragraph 485 following has been stated: "485. Partition partial or total.- Partition may be either total or partial. A partition may be partial either as regards the persons making it or the property divided. Partial as to properties.- It is open to the members of a joint family to severe in interest in respect to a part of the joint estate while retaining their status of a joint family and holding the rest as the properties of an undivided family. Until some positive action is taken to have partition of joint family property, it would remain joint family property." From the aforesaid it emerges that the partial partition of the property is well accepted principle with regard to joint family property. (d) In the case of Marudanayagam Pillai vs. Sola Pillai (died) and others, reported in AIR 1965 Madras 200, paragraphs-14, 15 and 20 which read thus :- “14. … … Clear and strong evidence would be required to hold that a person assented to his own exclusion and acquiesced in the continuance of the exclusion without asserting his right. I hold in the circumstances, that the is no admission or evidence of such exclusion as would warrant the rejection of the plaintiff's claim under Art. 127 of the Limitation Act. 15. In the view I take, it is unnecessary to consider the other question under Art. 127 which have been raised by the learned counsel for the appellant. However, as arguments have been advanced on them, I shall briefly deal with them also. The first question is whether knowledge of exclusion could be imputed during the minority of the claimant. In my view, the question cannot be considered in the abstract as a pure question of law. 20. Now that I hold that the suit is not bared under Art. 127 of the Limitation Act, then will have to be a decree in favour of the plaintiff for partition. The trial court has held that the plaintiff would be entitled only to a 1/12th share and not 1/8th as claimed by him. 20. Now that I hold that the suit is not bared under Art. 127 of the Limitation Act, then will have to be a decree in favour of the plaintiff for partition. The trial court has held that the plaintiff would be entitled only to a 1/12th share and not 1/8th as claimed by him. As regards the joint family properties available for partition, it has been the subject of consideration by the trial court under issues 5 and 6, and the trial was held that even if the plaintiff was held to be the son of the second defendant, he would be entitled to a 1/12th share in items 1, 6, 9, 12, 13, and 5 acres 9 cents in items 2 and 3 and 27 cents in item 10, 82 cents in item 11 and also item 16 and half of item 17 of the A schedule. The finding of the trial court as regards the share and as regards the properties available for division have not been questioned before me by either side.” Lapse of time is never in itself a bar to partition and the statute of limitation will operate from the time the party is excluded from his share and such exclusion became known to him. There can be no exclusion without a denial of the coparcener's right to a share and such denial may be express or implied. While partition is demanded and refused or if the coparcener is expelled from the joint family, that would be clear exclusion. Once the party establishes his claim to a share in the joint family properties by showing that the family was joint and that he was a coparcener entitled to a share in its properties, the onus is on the opposite party to establish exclusion to coparcener knowledge for over 12 years prior to suit. (e) In the case of Darshan Singh Versus Gujjar Singh, reported in 2002 (2) SCC 62 , paragraph-9 read thus :- “9. (e) In the case of Darshan Singh Versus Gujjar Singh, reported in 2002 (2) SCC 62 , paragraph-9 read thus :- “9. In our view, the correct legal position is that possession of a property belonging to several co-sharers by one co-sharer shall be deemed that he possess the property on behalf of the other co- sharers unless there has been a clear ouster by denying the title of other co-sharers and mutation in the revenue record in the name of one co-sharer would not amount to ouster unless there is a clear declaration that title of other co-sharers was denied. (f) In the case of Srihari Hanumandas Totala v. Hemant Vithal Kamat, reported in 2021 (9) SCC, paragraphs-16 and 19 “16. Order 7 Rule 11 of the CPC reads as follows: "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 returned 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 to comply with the provisions of rule 9:] [Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.]" (emphasis supplied) 19. At this stage, it would be necessary to refer to the decisions that particularly deal with the question whether res judicata can be the basis or ground for rejection 6 of the plaint. At this stage, it would be necessary to refer to the decisions that particularly deal with the question whether res judicata can be the basis or ground for rejection 6 of the plaint. In Kamala and others v. KT Eshwara Sa, the Trial Judge had allowed an application for rejection of the plaint in a suit for partition and this was affirmed by the High Court. Justice S B Sinha speaking for the two judge bench examined the ambit of Order 7 Rule 11(d) of the CPC and observed: "21. Order 7 Rule 11(d) of the Code has limited application. It must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averments made in the plaint. Different clauses in Order 7 Rule 11, in our opinion, should not be mixed up. Whereas in a given case, an application for rejection of the plaint may be filed on more than one ground specified in various sub-clauses thereof, a clear finding to that effect must be arrived at. What would be relevant for invoking clause (d) of Order 7 Rule 11 of the Code are the averments made in the plaint. For that purpose, there cannot be any addition or subtraction. Absence of jurisdiction on the part of a court can be invoked at different stages and under different provisions of the Code. Order 7 Rule 11 of the Code is one, Order 14 Rule 2 is another. 22. For the purpose of invoking Order 7 Rule 11(d) of the Code, no amount of evidence can be looked into. The issues on merit of the matter which may arise between the parties would not be within the realm of the court at that stage. All issues shall not be the subject-matter of an order under the said provision." (emphasis supplied)” Analysis :- 12. Considering the objection raised by Ms. Patel, the learned Senior Counsel that the opponent – original plaintiff has suppressed the material facts for adjudication of suit with respect to earlier Special Civil Suit No.13 of 2015, and that the plaint be rejected on the said ground alone. 12.1 In the opinion of this Court, it is the defence of the applicant herein which can be considered by the competent Court in accordance with law. 12.1 In the opinion of this Court, it is the defence of the applicant herein which can be considered by the competent Court in accordance with law. Further in the Special Civil Suit No.13 of 2015, the applicants herein, opponents and also their uncle were parties to the suit and only after leading evidence it can be held that, whether non-mentioning of the said suit would amount to suppression. Ultimately if the competent Court finds that there is suppression, it would be ordered accordingly, however the plaint cannot be rejected at the stage of Order-VII Rule 11 on the aforesaid ground. 13. Taking into consideration the contention raised with respect to res judicata as submitted by Ms. Patel, the learned Senior Counsel with respect to res judicata, the same is subject matter of evidence and it is open for the applicant herein to take said contention before the competent Court in accordance with the ratio as laid down by the Hon’ble Apex Court in the case of Keshav Sood vs. Kirti Pradeep Sood, reported in AIRONLINE 2023 SC 902 paragraphs 4 to 6, as referred in para-11(a) above, wherein it is held that the plaint cannot be rejected solely on the ground of res judicata. It is held that under Order VII Rule 11 Court can only look into the pleadings made in the plaint and defence of the defendant and documents relied upon cannot be looked into while deciding such application, hence issue of res judicata be decided alongwith other issues in the suit. 14. In the opinion of this Court, the cause of action as stated in the plaint arose in the year 2018 after issuance of notice to the applicant – original defendant seeking partition of the suit land, as referred to in para-4 of the plaint. The suit came to be filed in the year 2019, moreover the delay is mixed question of law facts. At this stage, it is apposite to refer to the to the ratio as laid down by the Hon’ble Apex Court in the case of Chhotnaben & Anr. v/s. Kirtibhai Jalkrushnabhai Thakkar & Ors. reported in AIR 2018 SC 2447 , wherein, relevant Paras 16 and 17 read thus: “16. At this stage, it is apposite to refer to the to the ratio as laid down by the Hon’ble Apex Court in the case of Chhotnaben & Anr. v/s. Kirtibhai Jalkrushnabhai Thakkar & Ors. reported in AIR 2018 SC 2447 , wherein, relevant Paras 16 and 17 read thus: “16. In the present case, we find that the appellants (plaintiffs) have asserted that the suit was filed immediately after getting knowledge about the fraudulent sale deed executed by original defendant Nos.1 & 2 by keeping them in the dark about such execution and within two days from the refusal by the original defendant Nos.1 & 2 to refrain from obstructing the peaceful enjoyment of use and possession of the ancestral property of the appellants. We affirm the view taken by the Trial Court that the issue regarding the suit being barred by limitation in the facts of the present case, is a triable issue and for which reason the plaint cannot be rejected at the threshold in exercise of the power under Order VII Rule 11(d). 17. In the above conspectus, we have no hesitation in reversing the view taken by the High Court and restoring the order of the Trial Court rejecting the application (Exh.21) filed by respondent No.1 (defendant No.5) under Order VII Rule 11(d). Consequently, the plaint will get restored to its original number on the file of the IVth Additional Civil Judge, Anand, for being proceeded further in accordance with law. We may additionally clarify that the Trial Court shall give effect to the order passed below Exh.17 dated 20th January, 2016, reproduced in paragraph 5 above, and take it to its logical end, if the same has remained unchallenged at the instance of any one of the defendants. Subject to that, the said order must be taken to its logical end in accordance with law.” 15. This Court has also considered the findings arrived at by the competent Court which requires no interference. The competent Court has rightly held thus :- The order passed by the competent Court which is duly referred in para-6, wherein the competent Court has also held that present suit and the Special Civil Suit No.13 of 2015 filed by Gulabbhai are different and hence the suit is not barred by res judicata and the facts of the property situated at Vatar are out of place. Though it is the defence of the defendant, it is clear that the scope of deciding an application under order VII Rule 11 is limited upto the plea of the plaintiff and the Court cannot go beyond it due to which the Court cannot attempt to consider adverse findings due to law of limitation. It is always open for the applicant – defendant to raise their objections when the suit is taken up for hearing on merit. The competent Court has also held that the issue of limitation is a mixed question of law and fact which cannot be considered without evidence and due to the said reason also the suit cannot be dismissed at the stage of Order VII Rule 11. 16. Having considered the submissions advanced by the learned counsels appearing for the respective parties and the ratio as discussed above, no interference is called for in the impugned order dated 4.5.2022 passed below Ex.13 by the learned 2nd Additional Senior Civil Judge, Valsad at Vapi in the Special Civil Suit No.9 of 2019 and the suit be tried on its own merits after recording of evidence. 17. With the aforesaid, no interference is called for and the present civil revision application stands dismissed.