Ganesh Sardar & Ors vs Prafulla Sardar & Anr

Shampa Sarkar, J

This is an application filed by the defendants in a suit for declaration and injunction which is registered as Title Suit No. 573 of 2018 pending before the learned Civil Judge (Junior Division), 2nd Court at Baruipur, South 24 - Parganas. By the order impugned dated November 8, 2019 the application of the defendants under Order 7 Rule 11 of the Code of Civil Procedure for rejection of the plaint has been rejected.

It is the contention of the learned advocate for the petitioners/defendants that they and the plaintiffs were co-sharers in respect of the suit property and they have right over every inch of the suit property. It is submitted that the proper course of action for the plaintiff would be to file a suit for partition and not a suit for declaration and injunction.

Reliance has been placed on a decision of this Court reported in AIR 2008 CALCUTTA 68 [Bachaspati Bhattacharya & ors. v. Smt. Mira Bhattacharjee & ors.], wherein it has been held that a co-sharer to a property, if was dissatisfied with the joint possession and disturbance created by the other co-sharers, ought to file a suit for partition instead of filing a suit for recovery of possession and permanent injunction.

Having gone through the order impugned and having considered the provisions of Order 7 Rule 11 of the Code of Civil Procedure, I am of the view that while considering an application for rejection of plaint, the court can only look into the plaint as a whole and nothing can be added to the plaint or subtracted from the plaint.

The plaint case as has been pleaded is that the plaintiffs were purchasers of the suit property from Bama Charan Sardar and Angurbala Naskar; that the plaintiffs have got their names mutated in the records of rights and were enjoying the suit property by payment of taxes and upon construction of their dwelling house; that the defendants who allegedly were absolute strangers had no right, title and interest over the suit property and the defendants being influential persons and hooligans of the locality were forcefully entering into the possession of the suit property and trying to take physical possession thereof from the plaintiffs. Complaints about the incidents have also been lodged by the plaintiffs before the Basanti Police Station as it is averred. Thus the defendants having clouded the title of the plaintiffs the suit was filed for declaration that the plaintiffs were owners and were lawful occupiers of the suit property by virtue of the purchase deeds from the lawful owners of the property and a further declaration was sought for to the effect that the defendants had no right, title and interest in the suit property in any manner whatsoever.

From the plaint it does not appear that it is a case of co-sharership with regard to the suit property. Whether the defendants and plaintiffs were co-sharers in respect of the suit property and whether they were encroaching into the portion of the property owned and possessed by the plaintiffs were matters to be decided in evidence. Without a full-fledged trial on these issues, the contention of the defendants at this stage cannot be accepted. The documentary evidence with regard to these respective contentions of the parties will also have to be looked into at the stage of trial as separate issues.

The decision relied upon by the petitioners has been delivered on a different set of facts and does not help the petitioners. Thus, I find that the learned court below was correct in holding that unless the suit was tried and evidence was recorded, the plaint could not be rejected at the very initial stage.

The law provides that a plaint can be rejected for non-disclosure of cause of action, under-valuation of the reliefs claimed or where the plaint was returned for being insufficiently stamped but the plaintiff failed to supply the requisite stamp paper within the time fixed by the court or where the suit was barred by any law.

The plaint, in this case, if read as a whole, is not hit by any of these provisions under Order 7 Rule 11 of the Code of Civil Procedure and, as such, this revisional application is dismissed.

There shall be no order as to costs.

Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible subject to compliance of all usual formalities.