Bhagwan Gupta and Another vs Ram Kishore and etc.

P.K. Bhasin, J.—The appellants are the unsuccessful plaintiffs in a suit for possession which they had filed against the respondents herein in respect of an area measuring two bighas eight biswas in khasra No. 7/6 of village Kamal Pur, Burari, Delhi. The learned Additional District Judge, Delhi vide judgment and order dated 11th January, 1999 has rejected the plaint under Order VII Rule 11 CPC of the Code of Civil Procedure(hereinafter referred to as CPC.) on the ground that Civil Court has no jurisdiction to entertain the suit for possession.

Feeling aggrieved by the decision of the trial Court the plaintiffs have come up in appeal.

I have heard learned Counsel for the appellants- plaintiffs only since none has been appearing on behalf of the respondents/ defendants although initially they had entered appearance in this appeal through an advocate.

The relevant facts are that the appellant-plaintiff No. 2 Smt. Vidyawati was claiming herself to be the owner of the suit land, referred to above, having purchased the same from one Shri Vidya Sagar, who was the father of respondents 1 to 5 herein and appellant-plaintiff No. 1, who is the brother of appellant-plaintiff No. 2, was looking after the vacant land. It was alleged in the plaint that sometime in May-June, 1995 the respondents-defendants started interfering with the possession of the plaintiffs which resulted into filing of police complaints and proceedings under Sections 107/151 of the Code of Criminal Procedure were initiated by the police. Further averments in the plaint were that the defendants had trespassed over the suit land belonging to the plaintiffs and had constructed unauthorized rooms there and thereafter they were intending to sell those rooms to third parties. On these averments in the plaint the appellants-plaintiffs had filed the suit for possession as also damages/mesne profits.

The respondents-defendants contested the suit and in their written statement a number of objections were taken including the one regarding the jurisdiction of the Civil Court to entertain the suit for possession in respect of the suit land. It was pleaded that the suit in Civil Court was not maintainable in view of the bar created u/s 185 of the Delhi Land Reforms Act, 1954. The suit was contested on merits also.

The learned trial Court instead of framing and deciding all the issues, both of law and fact, arising out of the pleadings of the parties, decided to take up the defendants. objection relating to the Civil Court.s jurisdiction only as a preliminary issue vide order dated 25/09/98 and after hearing the counsel for the parties passed the impugned order holding that Civil Court had no jurisdiction to entertain such a suit for possession in view of the bar created u/s 185 of the Delhi Land Reforms Act, 1954 and consequently the plaint of the plaintiffs. suit was rejected under Order VII Rule 11 CPC. Feeling aggrieved, the plaintiffs filed the present appeal.

The learned Counsel for the appellants has submitted that a perusal of the impugned order running into 19 pages would show that the plaint has been rejected by the learned trial Court not on the ground that based on the averments made in the plaint the suit appeared to be barred under any law but it has referred to the defence of the defendants taken in their written statement regarding the title of the appellant-plaintiff No. 2 and accepting their defence plaint has been ordered to rejected which could not have been done under Order VII Rule 11 CPC. Learned Counsel placed reliance on one judgment of the Hon.ble Supreme Court in Saleem Bhai and Others Vs. State of Maharashtra and Others, in support of the contention that while considering the question as to whether a plaint deserves to be rejected or not under Order VII Rule 11 CPC the Court is required to consider only the averments made in the plaint and not to the pleas in defence taken by the defendants in the written statement. 8. I have gone through the judgment of the Hon.ble Supreme Court cited by the learned Counsel for the appellant and I find that the same does support the submission of the learned Counsel for the appellant. In paragraph No. 9 of the judgment it has been observed by the Hon.ble Supreme Court as under:

A perusal of Order VII Rule C.P.C. makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint For the purposes of deciding an application under Cls.(a) and (d) of Rule 11 of Order 11 C.P.C. the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage

The Hon.ble Supreme Court has also held in its judgments reported as Ramesh B. Desai and Others Vs. Bipin Vadilal Mehta and Others, , Exphar SA and Another Vs. Eupharma Laboratories Ltd. and Another, , Exphar SA and Anr. v. Eupharma Laboratories and Anr. that whenever the Court decides to take up for decision only legal issues, like, maintainability of the suit or Court.s jurisdiction, the averments in the plaint have to be assumed to be correct.

Now, in the present case, as has been noticed already, the suit for possession was filed by the appellants- plaintiffs on the averments that appellant-plaintiff No. 2 had purchased the suit land from the predecessor-in- interest of respondents-defendants 1 to 5 herein and that they had been dispossessed therefrom unauthorisedly by the respondents herein. From these averments in the plaint it could certainly be not said that the suit for possession was barred under any law or that the Civil Court had no jurisdiction to entertain such a suit. As far as the defence raised by the respondents/defendants in the written statement relating to the jurisdiction of the Civil Court is concerned the same was based on certain factual pleas raised by them to the effect that the defendants No. 1 to 5, who are respondents 1 to 5 herein, were the bhumidars in possession of the suit land and so they could not be dispossessed without following the provisions of the Delhi Land Reforms Act and further that as far as the plaintiffs, the appellants herein, were concerned they were neither the bhumidars nor asamis of the suit land. It was also pleaded in the written statement that Vidya Sagar was not a bhumidar of the suit land and further that the sale deed, if any, which the plaintiffs claimed to have been executed by him in respect of the suit land was a forged document. It was also claimed that the suit land was Gaon Sabha land and defendants 1 to 5 had been declared as bhumidars by the revenue authorities and to get herself declared as a bhumidar plaintiff No. 2 had moved an application before the revenue authorities but that application was dismissed by the Revenue Assistant. The learned trial Court has rejected the plaint by taking into consideration the said pleas of the defendants in their written statement which, in my view, was not permissible under Order VII Rule 11 CPC. The question whether the suit land belonged to the Gaon Sabha and that the respondents-defendants 1 to 5 had been declared as bhumidars by the revenue authorities could not be decided without recording of evidence of the parties. Therefore, in my view the impugned judgment cannot be sustained.

This appeal is accordingly allowed and the judgment and decree dated 11th January, 1999 stand set aside. The matter is remanded back to the trial Court with the direction to frame all the issues arising out of the pleadings of the parties and then to dispose them of together, as provided under Order XIV Rule 1 CPC after giving opportunities to all the parties to adduce the evidence. The trial Court shall now take up the case for further proceedings on 27th July, 2009 at 2 p.m.