Brijdev Tiwari vs A.D.J., Court No.-7, Varanasi

Ram Surat Ram (Maurya), J.—Heard Sri Yogesh Mishra for the petitioner.

The petition has been filed against the order of Civil Judge (Junior Division) dated 9.5.2013 and order of Additional District Judge dated 12.1.2016.

Bansdev Tiwari, respondent-3 filed a suit (registered as O.S. No.886 of 1989) for permanent injunction restraining the defendant from interfering in the possession over the house No. K-64/21 situated in mohalla Gola Dinanath City, Varanasi. In the suit it has been stated by the plaintiff that House No. K64/21 situated in mohalla Gola Dinanath City, Varanasi belonged to Smt. Siya Savitri Devi, widow of Late Ram Prasad Mahato. In a part of the house idols of deities Ram Laxman and Hanuman were installed. During the life time Smt. Savitri Devi executed a registered Wakf Deed dated 2.12.1937 in which after her death she had appointed Bansdev Tiwari, father of the plaintiff as Pujari, Savait and Manager of deities. Smt. Siya Savitri died in the year 1944 and after her death Bansdev Tiwari had been exercising power of Pujari, Sevait and Manager of deities. Father of the petitioner had his original house in district Ballia and used to go to Ballia from Varanasi also. During the absence of the father of plaintiff, defendant created some dispute. In that connection the dispute was referred to Panchayat and Panches had settled the same by Panch Award dated 3.1.1985. In which right of house in dispute was provided to the plaintiff. On this allegation the suit was filed. The petitioner contested the suit and has stated that alleged Panch Award dated 3.1.1985 is a forged and fabricated document. It has also been stated that due to avoiding the document, the plaintiff has not filed it in the suit. Subsequently, the petitioner filed an application for a direction to the plaintiff to produce the aforesaid document in the suit. On this application the defendant filed an objection and has stated that document has been filed in the suit between the parties in district Ballia. Therefore, he is unable to produce that document. The trial court after hearing the parties by order 9.5.2013 found that if the plaintiff is deriving his title on the basis of a particular document and is unable to produce that document then ultimately he would suffer and the application of the petitioner has been rejected. The petitioner challenged the aforesaid order in revision, which has been dismissed by Additional District Judge by order dated 12.1.2016. Hence, this petition has been filed.

The counsel for the petitioner submits that Order 7, Rule 14 (2)CPC, mandatorily requires to the plaintiff to file the basis of title along with the plaint. If the basis of title is not filed then plaintiff is bound to state clearly in the plaint as in whose possession or power it is. In this case plaintiff had not complied with the Order 7, Rule 14 CPC. Therefore, plaint was liable to be rejected under Order 7, Rule 11 CPC but the trial court has rejected the application of the petitioner and revision has also been dismissed. He has also placed reliance on the judgment of Supreme Court in Church Christ Charitable Trust and Educational Charitable Society v. Ponniamman Educational Trust, AIR 2012 SC 3912.

I have considered the arguments of the counsel for the petitioner.

In the present case there is no application under Order 7, Rule 11 C.P.C. rather the petitioner has filed the application for direction to the plaintiff to produce the document of title i.e. Award of Panches dated 3.1.1985. The plaintiff in reply to the application has stated that Award dated 3.1.1985 was filed in the civil court at Ballia in Suit No.81 of 1986 between the parties. Thus, at present the plaintiff has disclosed the possession of the document and in such circumstances he was unable to produce the document. The impugned orders do not suffer from any illegality.

In case the petitioner is advised, he may file an application for summoning of the record of Suit No.81 of 1986 (Jograni v. Bansdev Tiwari ) pending before Munsif (East), Ballia.

With the aforesaid observations the petition is disposed of.