After the demise of Nasyam Jamal Saheb, his five children namely, 1) Nasyam Jafar Saheb; 2) Nasyam Dasthagiri Saheb; 3) Nasyam Ibrahim Saheb; 4) Sarambee; and 5) Jainabee got partitioned the properties of their father (including 4 acres 16 cents) under a registered partition deed dated 11.03.1953.
Two sons of Kareembee – Khatif Khaja Hussain and Khatif Noor Ahammed sold the land in Survey No 706/A9 to an extent of 58 cents vide two registered sale deeds dated 24.08.2010 in favour of the appellants for a valid sale consideration of Rs. 3 It appears that thereafter in the year 2013 Nandyal Municipality in a bid to lay an 80 feet wide master plan road proposed to widen a 30 feet road to 80 feet.
No 35/2014 and prayed for following reliefs: – (a) For declaring the title of the plaintiffs to the suit property within the boundaries mentioned in the plaint schedule which is in survey No.700/A7B and 706/A9 of Abdulla Khan Thota Nandyal Municipal Limits and for consequential permanent injunction restraining the defendants their men agents successors in interest and anybody on their behalf from trespassing into the suit property or from dispossessing the plaintiffs from the suit property in any manner what-so-ever, (b) Suit for relief of cancellation of l)Registered Sale Deed bearing Document No 124/2008 dated 09.01.2008 executed by D3 to D6 in favour of D7, 2)Registered Sale Deed bearing Document No.3504/2009 dated 18.07.2009 executed by D3 to D6 in favour of D8, 3)Registered Partition Deed bearing document No.4624/2009 dated 31.03.2009 executed in between D3 to D6 in respect of C Schedule item No.2 and D Schedule item No.2, 4)Registered Sale Deed bearing Document No.6591/2010 dated 24.08.2010 executed by D1 and D2 in favour of D9 and 5)Registered Sale Deed bearing Document No.6592/2010 dated Shri Anand Nuli, learned counsel appearing on behalf of the appellants has vehemently submitted that in the facts and circumstances of the case both, the learned Trial Court as well as the High Court has committed a grave error in not allowing the application under Order VII Rule XI of the CPC and consequently, not rejecting the plaint.
It is submitted that the High Court has not properly appreciated the fact that as such the plaintiffs have cleverly drafted the plaint and intentionally omitted to seek the relief of rectification of partition deed dated 11.03.1953 in order to circumvent the law of limitation.
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5 It is submitted that if partition deed dated 11.03.1953 was to be challenged, which the plaintiffs are attempting to do virtually, the suit would be hopelessly barred by limitation having being instituted after a lapse of 61 years from the partition deed.
Arivandandam (supra), it is prayed to allow the present appeal and quash and set aside the order passed by the learned Single Judge as well as that of the learned Trial Court rejecting the application under Order VII Rule XI and consequently, reject the plaint being barred by the limitation and the suit being vexatious and illusory cause of action. 2 It is vehemently submitted by learned Senior Advocate appearing on behalf of the original plaintiffs that as such in the present case neither partition deed dated 11.03.1953 nor the boundaries of the properties are in dispute.
4 It is further submitted that as such while considering the application under Order VII Rule XI and the prayer for rejection of the plaint, only averments of plaint are material and can be taken into consideration and any evidence or averments made in the written statement cannot be considered. Deliberately and purposely, the plaintiffs have not prayed any relief with respect to partition deed dated 11.03.1953 though it is the case on behalf of the plaintiffs that there was an error in partition deed dated 11.03.1953. That thereafter, two sons of Kareebee who became co-owner on the death of Kareembee executed the registered sale deed dated 24.08.2010 in favour of the appellants in Survey No 706/A9 to an extent of land measuring 58 cents for a valid sale consideration. If partition deed dated 11.03.1953 was to be challenged which as such, the plaintiffs are attempting to do virtually, the suit would be hopelessly barred by limitation having being instituted after lapse of 61 years from the partition deed. Debts Recovery Appellate Tribunal, (1998) 2 SCC 70] 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. The trial court must remember that if on a meaningful and not 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 7 Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled.
Since the power conferred on the court to terminate civil action at the threshold is drastic, the conditions enumerated under Order 7 Rule 11 CPC to the exercise of power of rejection of plaint have to be strictly adhered to. Gram Panchayat Mehal Kalan, (1986) 4 SCC 364, this Court observed and held that when the suit is barred by any law, the plaintiff cannot be allowed to circumvent that provision by means of clever drafting so as to avoid mention of those circumstances, by which the suit is barred by law of limitation. Applying the law laid down by this Court in the aforesaid decisions on the applicability of Order VII Rule XI to the facts of the case on hand, we are of the opinion that the plaint ought to have been rejected in exercise of powers under Order VII Rule XI(a) and (d) of CPC being vexatious, illusory cause of action and barred by limitation.
1 Now so far as the reliance placed upon the decision of this Court in the case of Nusli Neville Wadia (supra) is concerned, again there cannot be any dispute with respect to the proposition of law laid down by this Court that while deciding the application under Order VII Rule XI, mainly the averments in the plaint only are required to be considered and not the averments in the written statement.
9 and 10 to reject the plaint in exercise of powers under Order VII Rule XI(a) and (d) of the CPC is hereby allowed and consequently, the plaint of Civil Suit (O.S.) No.
Case Title: RAMISETTY VENKATANNA Vs. NASYAM JAMAL SAHEB (2023 INSC 458)
Case Number: C.A. No.-002717-002717 / 2023
