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2025 DIGILAW 460 (RAJ)

Khurshid, S/o. Kalu v. Hamid, S/o. Zuhru

2025-02-19

ASHOK KUMAR JAIN

body2025
ORDER : 1. Instant civil misc. appeal is preferred by appellants defendants aggrieved from judgment dated 15.05.2024 in civil regular appeal no. 4/2024 passed by learned Additional District Judge no.1, Kishangarh Bas, District Alwar whereby the appeal preferred by respondent no.1 plaintiff from judgment and decree dated 22.03.2024 in civil suit no. 34/05/2024 passed by learned Civil Judge, Kishangarh Bas, District Alwar was allowed and the matter (civil suit) was remanded back to the trial court. 2. The plaintiff Hamid Khan has filed a civil suit for mandatory and permanent injunction before learned Civil Judge, Kishangarh Bas, District Alwar against present petitioners and proforma respondent no.2. During pendency of this civil suit an application under Order VII Rule 11 CPC was filed by defendant nos. 1 to 5 (present appellants) on the ground that the suit pertains to agriculture land and jurisdiction of civil court is barred under Section 207 of Rajasthan Tenancy Act. Further, it was stated that the revenue suit titled as “Sahun Vs. Khurshid” is also pending, and parallel civil suit is not maintainable. The trial court considering application under Order VII Rule 11 CPC read with Section 151 of CPC on 22.03.2024 has allowed the application and held that the civil court has no jurisdiction to entertain the civil suit. As a result, the suit of respondent plaintiff was rejected. 3. Aggrieved from dismissal of suit on 22.03.2024 under Order VII Rule 11 CPC read with Section 151 a regular appeal is filed by plaintiff Hamid Khan and on 15.05.2024, learned appellate court has partially allowed the appeal and set aside the judgment and decree dated 22.03.2024 and remitted the matter to the trial court. 4. Learned Senior Advocate appearing on behalf of appellants defendants submits that the plaintiff has filed a civil suit in a matter relating to agriculture land wherein a revenue suit is also pending before the revenue court. He further submitted that an application under Order VII Rule 11 CPC is filed on the ground that the suit is barred by law and same is not maintainable before the civil court. He also placed reliance upon judgment in case of Lal Singh Jhala Vs. Panna lal passed by a Co-ordinate Bench at Jodhpur (Civil Misc. He further submitted that an application under Order VII Rule 11 CPC is filed on the ground that the suit is barred by law and same is not maintainable before the civil court. He also placed reliance upon judgment in case of Lal Singh Jhala Vs. Panna lal passed by a Co-ordinate Bench at Jodhpur (Civil Misc. Appeal No. 1644/2012, order dated 22.08.2016) and submitted that the trial court following the law and considering the subject matter has allowed the application and rejected the suit. He referred the provision under Section 207 and 256 of Rajasthan Tenancy Act and submitted that the subject matter and the relief claimed by plaintiff is maintainable only before revenue court and the jurisdiction of civil court is barred under the law. He further justified the order passed by the trial court and submitted that looking to subject matter and nature of land the trial court has rightly rejected the suit as same is barred by law. He further submitted that the appellate court ignoring the legal position has allowed the appeal of plaintiff and unnecessarily remitted back the matter to trial court for consideration on merits which is per se illegal order and contrary to judgment of this Hon’ble Court. He also referred the pending revenue suit and submitted that a status quo order has already been passed by the revenue court and same is still in force, therefore, the order of appellate court is bad in the eye of law. Learned Senior Advocate has further referred the jamabandi of suit property and submitted that the subject matter is a revenue land and same is admitted from the facts of the case. At last, he referred the report of Tehsildar based on report of area patwari and submitted that the land in question is an agriculture land so the suit is not maintainable and the appellate court has committed serious error while allowing the appeal against the order passed by the trial court. 5. Aforesaid contentions were opposed by learned counsel appearing for respondent no.1 plaintiff and submitted that while considering application under Order VII Rule 11 CPC the court is required to stick itself to substance of plaint and documents annexed with plaint and no court can consider defence raised by defendant. 5. Aforesaid contentions were opposed by learned counsel appearing for respondent no.1 plaintiff and submitted that while considering application under Order VII Rule 11 CPC the court is required to stick itself to substance of plaint and documents annexed with plaint and no court can consider defence raised by defendant. He also referred the content of plaint and submitted that the suit is neither filed for declaration of khatedari right nor claiming any right to maintain possession of agriculture land. He further submitted that the plaintiff has filed a suit with respect to encroachment made by Khurshid by fixing a temporary kiosk (Khokha) on right side of way thereby causing obstruction in right of easement. He further submitted that the plaintiff has specifically mentioned the subject matter and on the basis of subject matter he has filed a civil suit for mandatory injunction for removal of temporary kiosk and also restraining the defendants from causing hindrance in encroachment of the property. He also placed reliance upon judgment in case of Eldeco Housing and Industries Ltd. Vs. Ashok Vidyarthi and Ors. 2023 INSC 1043 and submitted that no amount of evidence or merit of controversy can be examined at the stage of decision of application under Order VII Rule 11 CPC. He also placed reliance upon judgment in case of Soumitra Kumar Sen Vs. Shyamlal Kumar Sen & Ors. 2018 DNJ (SC) 769 and submitted that the defence projected in written statement cannot be looked at the stage of application under Order VII Rule 11 CPC. He also referred the order dated 12.12.2023 in S.B. Civil Revision Petition No. 258/2023 titled as “Daya Nand Nebhnani & Ors. Vs. Sandeep Singh Rathore & Ors.” and submitted that the suit in entirety has to be considered while deciding application under Order VII Rule 11 CPC. 6. Heard learned Senior Advocate appearing for appellant and learned counsel appearing for respondent no.1. 7. A civil suit for mandatory and permanent injunction for removal of temporary kiosk (khokha) by defendant no.1. Khurshid Khan is filed by plaintiff and moreover, the prohibitory injunction is sought about the residential property. 6. Heard learned Senior Advocate appearing for appellant and learned counsel appearing for respondent no.1. 7. A civil suit for mandatory and permanent injunction for removal of temporary kiosk (khokha) by defendant no.1. Khurshid Khan is filed by plaintiff and moreover, the prohibitory injunction is sought about the residential property. In case of Lal Singh Jhala (supra), a Co-ordinate Bench of this Court while considering the provision under Section 207 of Rajasthan Tenancy Act has observed that all suits and application of nature specified in third Schedule especially cognizable by revenue courts, no civil court would take cognizance of such suits. 8. In case of Eldeco Housing and Industries Ltd. Vs. Ashok Vidyarthi and Ors. (supra) and Soumitra Kumar Sen Vs. Shyamlal Kumar Sen & Ors. (supra), Hon’ble Supreme Court has held that no material except plaint or document annexed with plaint or referred in plaint can be considered at the stage of consideration of application under Order VII Rule 11 CPC. Even in case of Eldeco Housing and Industries Ltd. Vs. Ashok Vidyarthi and Ors. (supra), it was held that none of the documents including documents related to earlier suit of injunction or any communication or agreement was on record, therefore, the application cannot be allowed. 9. This Court while considering the case of Daya Nand Nebhnani & Ors. Vs. Sandeep Singh Rathore & Ors. (supra), has observed that the suit in entirety has to be considered not a particular relief. 10. Order VII Rule 11 CPC deals with the grounds for rejection of plaint aiming to prevent frivolous or defective suits. The provision enables the Court to reject a plaint, if certain conditions are satisfied. Vs. Sandeep Singh Rathore & Ors. (supra), has observed that the suit in entirety has to be considered not a particular relief. 10. Order VII Rule 11 CPC deals with the grounds for rejection of plaint aiming to prevent frivolous or defective suits. The provision enables the Court to reject a plaint, if certain conditions are satisfied. The provision of Order VII Rule 11 CPC is reproduced as under: 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 provision 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 form 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.” 11. In case of T. Arivandandam vs. T.V. Satyapal, (1977) 4 SCC (1) 467 , Hon’ble Supreme Court while examining the aforesaid provision has held that the trial court must remember that if on a meaningful and not a formal reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise the power under Order VII 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 to be nipped in the bud at the first hearing by examining the party under Order X of the Code. 12. The object of the said provision is further considered by Hon’ble Supreme Court in Sopan Sukhdeo Sable vs. Assistant Charity Commissioner, (2004) 3 SCC 137 , and in Popat and Kotecha Property vs. State Bank of India Staff Association, (2005) 7 SCC 510 , and held that no court shall permit the plaintiff to unnecessarily protract the proceedings in the suit in case the suit does not disclose the cause of action of bar any law or law of limitation. 13. In case of Saleem Bhai vs. State of Maharashtra, (2003) 1 SCC 557 that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power at any stage of the suit i.e. before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Order VII Rule 11 of the Code, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage. 14. Hon’ble Supreme Court in case of Dahibhen Vs. Arvindbhai Kalyanji Bhanusali through LRs and Ors. 2020 SCC Online (SC) 562 while dealing with an appeal against an order allowing rejection of a suit at the threshold, had occasion to consider various precedents to discuss the intent under Order VII Rule 11 of CPC. Hon’ble Supreme Court observed that if no cause of action is disclosed in the plaint, or if the suit is barred by limitation, court would not permit protraction of the proceedings and it would be necessary to put an end to the shame litigation so that further judicial time is not wasted. 15. After placing reliance upon Azhar Hussain Vs. Rajiv Gandhi 1986 SCC (SUPP) 315 opined that the entire purpose of conferment of such power is to ensure that a litigation, which is meaningless and bound to prove abortive should not be permitted to occupy the time and space of the Courts. 15. After placing reliance upon Azhar Hussain Vs. Rajiv Gandhi 1986 SCC (SUPP) 315 opined that the entire purpose of conferment of such power is to ensure that a litigation, which is meaningless and bound to prove abortive should not be permitted to occupy the time and space of the Courts. The power on the Court to terminate a civil action is, however, a drastic one, and the conditions enumerated in Order VII, Rule 11 CPC are required to be strictly adhered to. 16. Hon’ble Supreme Court while dealing with such an application seeking rejection of a plaint clarified that while deciding any application filed under Order VII Rule 11 CPC, the court should restrict itself to the plaint and should not go into the detail facts as provided under the written statement or even in the application filed for rejection of plaint. While scrutinizing the averments in the plaint, the Court can read documents annexed and relied upon in the plaint. 17. Order VII Rule 11(d) of CPC provides that a plaint should be rejected if the suit is barred by any law. Hon’ble Supreme Court in case of Ramisetty Venkatanna Vs. Nasyam Jamal Saheb 2023 INSC 458 has observed that plaint should be rejected under Order VII Rule 11 (a)(d) of CPC if it is vexatious, illusory cause of action and barred by law. 18. In case of Jitendra Singh Vs. State of M.P. 2021 SCC Online SC 802 Hon’ble Supreme Court has observed that mutation entry does not confer any right, title or interest in favour of a person, as mutation entry in the revenue record is only for the fiscal purpose. If there is no dispute with respect to the title and more particularly when the mutation entry is sought to be made on the basis of any right, the party who is claiming title/ right has to approach the appropriate civil court and get his right crystalized and only thereafter necessary mutation entry can be made. In case of Balwant Singh & Anr Vs. Daulat Singh (Dead) & Ors. (1997) 7 SCC 137 Hon’ble Supreme Court has considered the effect of mutation and observed that the mutation of property in revenue record neither creates nor extinguishes title to the property nor has any presumptive value on the title. Such entries are relevant only for the purpose of collecting land revenue. 19. Daulat Singh (Dead) & Ors. (1997) 7 SCC 137 Hon’ble Supreme Court has considered the effect of mutation and observed that the mutation of property in revenue record neither creates nor extinguishes title to the property nor has any presumptive value on the title. Such entries are relevant only for the purpose of collecting land revenue. 19. In case of Suraj Bhan & Ors. Vs. Financial Commissioner & Ors. (2007) 6 SCC 186 Hon’ble Supreme Court observed that an entry in revenue record does not confer title on a person whose name appears in record of rights. The entries in the revenue record or Jamabandi is only for fiscal purpose and same cannot be treated as document of title. 20. Having considered the plaint as placed on record by present appellant, it is apparent that to remove encroachment by fixing a kiosk, a cause of action has accrued to the plaintiff and on the basis of this cause of action, a suit is filed. The trial court has considered that the land in question is khasra no. 619 Village Kishangarh Bas, District Alwar is unconverted land, therefore, the suit is not maintainable and same is barred under Section 207 of Rajasthan Tenancy Act. The subject matter of suit is neither declaration of tenancy right nor maintaining possession upon any agriculture land. The trial court has also observed that the revenue suit is pending before SDO, Kishangarh Bas about same land. A perusal of plaint indicate that no where the details or pendency of revenue suit is mentioned by plaintiff. The plaintiff has claimed ownership and possession over the property. 21. Having considered aforesaid judgment dated 15.05.2024 by the appellate court, I am of the considered view that the trial court without following the principle of law has decided the application under Order VII Rule 11 of CPC as no amount of defence or the document is on record can be looked into while deciding the application. 22. In view of aforesaid, the appellate court has rightly allowed the appeal and the appellate court has no option except to remit the matter back to the trial court. 23. The judgment in case of Lal Singh Jhala (supra), is not applicable in the facts of instant case. There is no perversity or illegality in the judgment passed by the appellate court, therefore, the misc. 23. The judgment in case of Lal Singh Jhala (supra), is not applicable in the facts of instant case. There is no perversity or illegality in the judgment passed by the appellate court, therefore, the misc. appeal sans merit and same is liable to be dismissed. 24. In view of discussion made hereinabove, the Civil Misc. appeal preferred aggrieved from order dated 15.05.2024 is hereby dismissed. 25. No order as to costs.