Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2717 OF 2023
Ramisetty Venkatanna & Anr. ...Appellant(s)
Versus
Nasyam Jamal Saheb & Ors. …Respondent(s)
J U D G M E N T
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
revision petition and has affirmed the order
Digitally signed by
Neetu Sachdeva
Date: 2023.04.28
16:27:28 IST
Reason:
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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
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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
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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
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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
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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
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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
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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.
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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
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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
T. Arivandandam Vs. T.V. Satyapal
case of
(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
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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
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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
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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
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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
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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.
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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.
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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
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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
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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,
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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.
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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
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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
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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
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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
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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
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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
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