Ramisetty Venkatanna vs Nasyam Jamal Saheb

Ramisetty Venkatanna & Anr. ...Appellant(s)

Versus

Nasyam Jamal Saheb & Ors. …Respondent(s)

JUDGMENT

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the

impugned judgment and order passed by the

High Court of Andhra Pradesh at Amaravati

in Revision Petition (CRP) No. 179/2021, by

which, the High Court has dismissed the said Signature Not Verified Digitally signed by Neetu Sachdeva revision petition and has affirmed the order Date: 2023.04.28 16:27:28 IST Reason: Page 1 of 26 passed by the learned Trial Court

dismissing/rejecting the application

submitted by the appellants herein – original

defendant Nos. 9 & 10 under Order VII Rule

XI of CPC, the original defendant Nos. 9 & 10

have preferred the present appeal.

2. The facts leading to the present appeal in a

nutshell are as under: -

2.1 That one Nasyam Jamal Saheb was the owner

of 4 acres 16 cents of land in Survey No.

700/A7B and Survey No. 706/A9 of Nandyal

Town and Mandal, Kurnool District, Andhra

Pradesh, and several other properties. 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

Page 2 of 26 got partitioned the properties of their father

(including 4 acres 16 cents) under a

registered partition deed dated 11.03.1953.

The predecessor in interest of plaintiffs N.

Ibrahim Saheb got 1 acre and predecessor in

interest of vendors of the appellants herein

Sarambee got 1 acre 16 cents. That

thereafter, Sarambee being the absolute

owner of 1 acre 16 cents in Survey No.

706/A9 executed a registered gift deed dated

24.01.1968 in favour of her eldest daughter

Kareembee (mother of vendors of appellants

herein) to an extent of lands measuring 58

cents. That Sarambee vide another gift dated

24.01.1968 gifted the remaining 58 cents in

Survey No. 706/A9 to her other daughter

Ashabee and her two sons Khasimsa and

Abdul Rajak. That thereafter, in the year

Page 3 of 26 2003, three sons of Ashabee further

partitioned the land measuring 58 cents.

Each of the sons got 19.33 cents of land each.

Similarly, after the death of Kareembee, her

three sons effected an oral partition amongst

themselves. 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.

14,52,000/- and Rs. 13,56,000/-,

respectively. The possession of the said land

was handed over to the appellants and they

developed the land.

2.2 It appears that thereafter, children of Khatis

Khader Basha (third son of Kareembee) filed

Page 4 of 26 O.S. No. 39/2011 before the III Additional

District Judge, Kurnool at Nandyal against

other two sons of Kareembee and the

appellants seeking partition and separate

possession of their share in the property sold

to the appellants herein. The said suit came

to be referred to Lok Adalat and was settled

after the appellants herein paid Rs.

14,00,000/- to the plaintiffs therein.

2.3 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. In the said road

widening programme, the land of appellants

to an extent of 3.5 cents was affected. The

appellants executed a registered gift deed in

favour of Nandyal Municipality for an extent

Page 5 of 26 of 3.5 cents of land vide document No.

2474/2013. The Municipality thereafter

awarded transferable development right to

the appellants herein to an extent of 283.24

sq. meters. That thereafter, in the year 2014,

respondent Nos. 1 to 8 herein – original

plaintiffs instituted O.S. 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

Page 6 of 26 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 24.08.2010 executed by D1 and D2 in favour of D10 By declaring them as null and void documents in respect of the suit property.

2.4 That the appellants herein filed IA No.

369/2014 in O.S. No. 35/2014 praying to

reject the plaint in exercise of powers under

Order VII Rule XI(a) and (d) of CPC. The

learned Trial Court dismissed the said

application vide order dated 11.03.2020.

2.5 Feeling aggrieved and dissatisfied with the

order passed by the learned Trial Court

rejecting the application under Order VII Rule

XI and refusing to reject the plaint, the

appellants herein – original defendant Nos. 9

and 10 filed the revision application before

the High Court. By the impugned judgment

Page 7 of 26 and order the High Court has dismissed the

said revision application which has given rise

to the present appeal.

3. 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.

3.1 It is submitted that as such the suit was

clearly barred by limitation and therefore, the

plaint ought to have been rejected under

Order VII Rule XI(d) of the CPC.

Page 8 of 26 3.2 It is further submitted that the High Court

has not properly appreciated the fact that in

fact, the suit was barred by limitation as the

same was instituted 61 years after the

execution of partition deed dated 11.03.1953.

3.3 It is further submitted that the High Court

has failed to take into consideration that the

suit of the plaintiffs is essentially based upon

the premise that there was an error in

partition deed dated 11.03.1953 and

therefore, Sarambee and her descendants,

including the vendors of the appellants

herein, never had any right to effect

transactions in respect of land in Survey No.

706/A9. 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

Page 9 of 26 relief of rectification of partition deed dated

11.03.1953 in order to circumvent the law of

limitation. It is submitted that as such by

clever drafting the plaintiffs have tried to

bring the suit within the law of limitation,

which is otherwise barred by limitation.

3.4 Relying upon the decision of this Court in the

case of T. Arivandandam Vs. T.V. Satyapal

(1977) 4 SCC 467, it is prayed that as the

plaint is vexatious and meritless and creates

illusion of a cause of action by clever drafting

the same should be rejected at the earliest.

3.5 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

Page 10 of 26 having being instituted after a lapse of 61

years from the partition deed.

3.6 It is submitted that as such the plaintiffs did

not have any cause of action to institute the

suit. It is submitted that all the registered

sale deeds and the partition deed alleged to

be forming cause of action of the suit are

executed in accordance with the respective

parties in accordance with the rights granted

to them/their legal ascendants under

partition deed dated 11.03.1953.

3.7 It is further submitted that the High Court

ought to have appreciated and/or considered

that the present suit is frivolous and

vexatious because the plaintiffs are

attempting to re-partition; and unsettle the

title and possession of numerous family

Page 11 of 26 members and third parties like the appellants

herein by alleging that there was an error in

partition deed dated 11.03.1953 which was

executed by grandparents of parties with

their free will at a point when the parties were

not even born.

3.8 Making the above submissions and relying

upon the decision of this Court in the case of

Raj Narain Sarin Vs. Laxmi Devi and Ors.

(2002) 10 SCC 501 and in the case of T.

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

Page 12 of 26 barred by the limitation and the suit being

vexatious and illusory cause of action.

4. Present appeal is vehemently opposed by Shri

B. Adinarayana Rao, learned Senior Advocate

appearing on behalf of the original plaintiffs.

4.1 It is vehemently submitted by learned Senior

Advocate that in the facts and circumstances

of the case neither learned Trial Court nor the

High Court have committed any error in

dismissing the application under Order VII

Rule XI of the CPC and in not rejecting the

plaint.

4.2 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

Page 13 of 26 the boundaries of the properties are in

dispute. It is submitted that the dispute is

limited to the wrong survey number

mentioned therein with respect to the share

of Nasyam Ibrahim, Sarambee and Jainabee

only.

4.3 It is submitted that as per the settled position

of law what is important is boundaries and

not the survey number mentioned in the

document. Reliance is placed upon the

decision of the Privy Council in the case of

The Palestine Kupat Am Bank Co-operative

Society Ltd. Vs. Government of Palestine

and Ors. AIR (35) 1948 Privy Council 207

(para 7) as well as the decision of this Court

in the case of Subhaga and Ors. Vs. Shobha

and Ors. (2006) 5 SCC 466, it is submitted

Page 14 of 26 that as laid down in the aforesaid decisions

that even if there is any discrepancy in the

document the boundary should prevail.

4.4 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. Reliance is

placed on the decision of this Court in the

case of Nusli Neville Wadia Vs. Ivory

Properties and Ors. (2020) 6 SCC 557.

4.5 Making the above submissions it is prayed to

dismiss the present appeal.

Page 15 of 26

5. We have heard learned counsel appearing on

behalf of the respective parties at length. We

have also gone through the averments made

in the plaint. On going through the

averments, it appears that the suit is

essentially based upon the premise that there

was an error in partition deed dated

11.03.1953 and in partition deed survey

number 706/A9 was wrongly mentioned.

Therefore, it is the case on behalf of the

plaintiffs that Sarambee and other

descendants including the vendors of the

appellants never had any right to effect

transactions in respect of the land in survey

number 706/A9. However, it is required to be

noted that despite the above, very cleverly the

plaintiffs have not sought any relief with

respect to partition deed dated 11.03.1953.

Page 16 of 26 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. It is

to be noted that pursuant to the partition

deed dated 11.03.1953, after the demise of

the original land owner 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 under

a registered partition deed dated 11.03.1953.

Under the registered partition deed,

predecessor in interest of plaintiffs, N.

Ibrahim Saheb got 1 acre and predecessor in

interest of vendors of the appellants

Sarambee got 1 acre 16 cents. All the parties

Page 17 of 26 to the registered partition deed acted upon

the said partition deed. That thereafter,

further transaction took place and Sarambee

executed a registered gift deed dated

24.01.1968 in favour of her eldest daughter

Kareembee – mother of the vendors of the

appellants to an extent of lands measuring 58

cents. 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. Since 2010, the appellants are

in possession of the land purchased vide

registered sale deed dated 24.08.2010.

Without challenging partition deed dated

11.03.1953 and even subsequent gift deed

Page 18 of 26 dated 24.01.1968, the plaintiffs have

instituted the present suit with the aforesaid

prayers which is nothing but a clever drafting

to get out of the limitation. 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.

5.1 In the case of T. Arivandandam (supra) in

paragraph 5 while considering the provision

of Order VII Rule XI, this Court has observed

as under: -

“5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court, Bangalore,

Page 19 of 26 is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful — not formal — reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7 Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order 10 CPC. An activist Judge is the answer to irresponsible law suits.”

5.2 In the case of Sopan Sukhdeo Sable Vs.

Charity Commr., (2004) 3 SCC 137 in paras

11 and 12, this Court has observed and held

as under:

“11. In ITC Ltd. v. Debts Recovery Appellate Tribunal [ITC Ltd. v. 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.

Page 20 of 26 12. 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 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 searchingly under Order 10 of the Code.

(See T. Arivandandam v. T.V. Satyapal [(1977) 4 SCC 467].)”

5.3 In the case of Madanuri Sri Rama Chandra

Murthy Vs. Syed Jalal, (2017) 13 SCC 174,

this Court observed and held as under:

“7. The plaint can be rejected under Order 7 Rule 11 if conditions enumerated in the said provision are fulfilled. It is needless to observe that the power under Order 7 Rule 11 CPC can be exercised by the court at any stage of the suit. The relevant facts which need to be looked into for deciding the application are the averments of the plaint only. If on an entire and meaningful reading of the plaint, it is found that the suit is manifestly vexatious and meritless in the sense of not disclosing any right to sue, the court should exercise power under Order 7 Rule 11 CPC. 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

Page 21 of 26 rejection of plaint have to be strictly adhered to. The averments of the plaint have to be read as a whole to find out whether the averments disclose a cause of action or whether the suit is barred by any law. It is needless to observe that the question as to whether the suit is barred by any law, would always depend upon the facts and circumstances of each case.

The averments in the written statement as well as the contentions of the defendant are wholly immaterial while considering the prayer of the defendant for rejection of the plaint. Even when the allegations made in the plaint are taken to be correct as a whole on their face value, if they show that the suit is barred by any law, or do not disclose cause of action, the application for rejection of plaint can be entertained and the power under Order 7 Rule 11 CPC can be exercised. If clever drafting of the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage.”

5.4 In the case of Ram Singh Vs. 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

Page 22 of 26 means of clever drafting so as to avoid

mention of those circumstances, by which the

suit is barred by law of limitation. Similar

view has been expressed by this Court in the

case of Raj Narain Sarin (supra).

6. 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. By clever drafting

and not asking any relief with respect to

partition deed dated 11.03.1953, the

plaintiffs have tried to circumvent the

provision of limitation act and have tried to

Page 23 of 26 maintain the suit which is nothing but abuse

of process of court and the law.

7. Now, so far as the reliance placed on the

decision of the Privy Council referred to

hereinabove and on the decision of this Court

in the case of Subhaga (supra) are concerned,

there cannot be any dispute with respect to

the proposition of law laid down in the

aforesaid two decisions. However, the

question is the suit being barred by limitation

and the illusory cause of action. 7.1 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

Page 24 of 26 Order VII Rule XI, mainly the averments in

the plaint only are required to be considered

and not the averments in the written

statement. However, on considering the

averments in the plaint as they are, we are of

the opinion that the plaint is ought to have

been rejected being vexatious, illusory cause

of action and barred by limitation and it is a

clear case of clever drafting.

8. In view of the above and for the reasons

stated, the impugned judgment and order

passed by the High Court and that of the

learned Trial Court rejecting the application

under Order VII Rule XI are unsustainable

and the same deserve to be quashed and set

aside and are accordingly, quashed and set

aside. Consequently, the application

Page 25 of 26 submitted by the appellants – original

defendant Nos. 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. 35/2014 is ordered to be rejected.

Present appeal is accordingly allowed. No

costs.

………………………………….J. [M.R. SHAH]

………………………………….J. [C.T. RAVIKUMAR] NEW DELHI;

APRIL 28, 2023

Page 26 of 26