HAKIM SINGH vs STATE OF MADHYA PRADESH

The petitioner/original defendant No.2 has filed this civil revision under Section 115 of the Code of Civil Procedure against an order dated 17.07.2014 passed by the Ninth Civil Judge, Class-I, Bhopal in Civil Suit No. 80-A/2005, whereby the application filed by the petitioner under Order 7 Rule 11 of the CPC has been dismissed.

Admitted facts are that original plaintiff late J.S. Bhagat had filed the above-mentioned civil suit in the trial Court for declaration that the decree dated 25.04.2005 passed in Civil Suit No. 132-A/2003 in favour of present petitioner and present respondent No.2 Afroj Jahan is void and ineffective and for perpetual injunction to restrain the plaintiffs of above-mentioned decided suit to not to mutated their names in the revenue record in relation to the land bearing survey No. 86 and to declare two registered sale deeds executed by present petitioner and respondent No.2 in favour of present respondent No.3 to be illegal, void and not binding on the plaintiff. During the pendency of the suit after death of the original plaintiff J.S. Bhagat, present respondent No.1 Sameer Kukreja has been substituted as his LR on the basis of a will.

Present petitioner as defendant No.2 filed an application under

Order 7 Rule 11 of the CPC on the grounds that original plaintiff Late J.S. Bhagat was not having any legal right to file the civil suit in relation to disputed land as he was not owner of the suit land. The alleged will executed by J.S. Bhagat in favour of Sameer Kukreja in the year 2008 is illegal. Before the execution of the alleged will, disputed land bearing survey No. 86 area 2.11 acres has been mutated in revenue papers on the names of present petitioner and Afroj Jehan (respondent No.2). The suit land never remained under ownership and in possession of Late J.S. Bhagat and Samer Kukreja. The plant has been properly valued. Thus, it was prayed that the plaint be rejected under Order 7 Rule 11.

Before the trial Court the above-mentioned application was opposed by the Sameer Kukreja on the grounds that defendant No.2 has filed this application only to delay in disposal of the suit, because the rights and interest of Late J.S. Bhagat and after him of Sameer Kukreja would be decided in the suit and such complicated questions requires recording of evidence which could not be decided on an application filed under Order 7 Rule 11, thus, the dismissal of the above-mentioned application was prayed.

Before trial Court written submissions were also filed by the defendant No.2. The trial Court by its order dated 17.07.2014, dismissed the petitioner''s application on the ground that the issues have been framed in this suit and such issue could be decided only after recording of the evidence and issue has already been framed regarding this suit and the objection raised by the defendant No.2 could not be decided at the stage of an application.

The impugned order has been challenged in this revision mainly on the grounds that the plaintiff had pleaded in his plaint that his name was mutated in revenue papers regarding the suit land, but suppressed the fact that the order of Tehsildar regarding mutation of J.S. Bhagat was cancelled by the Sub-divisional Officer (City), Bhopal by an order passed on 26.05.2005 in Revenue Case No. 8/Appeal2003-04. The original plaintiff was not having any execution, thus, his suit is not maintainable. The mutation of original plaintiff has been cancelled, thus, plaintiff has no right or interest in the suit land, thus, it is prayed that the revision be allowed and the plaint filed by the plaintiff would be rejected under Order 7 Rule 11 of the CPC.

On the other hand, learned counsel for the respondent No.1 has

supported the order of the trial Court and has argued that the complicated question of ownership, title and possession could not be decided at the stage of an interim application and plaintiff has disclosed the cause of action in his plaint and an application under Order 7 Rule 11 of the CPC is to be adjudicated only looking the allegations of the plaint.

Copy of the plaint filed by the original plaintiff J.S. Bhagat, Copy of the application filed under Order 7 Rule 11 by the petitioner before the trial Court, its reply filed by the plaintiff and copies of two orders of Sub-divisional Officer (City) Bhopal in two different revenue appeals passed on 26.05.2005 and 02.03.2007 and the copy of the judgment and decree passed in Civil Suit No. 132-A/2003, passed on 25.04.2005 in favour of present petitioner and Afroj Jahan have also been filed.

Much emphasis has been given by the learned counsel for the petitioner on the observations made by the Sub-divisional Officer in different orders passed on 26.05.2005 and 02.03.2007, wherein observations have been made by the S.D.O. regarding non-production of any certified copy of the order dated 17.06.1978 passed by the Tehsildar, Huzoor, whereby the name of J.S. Bhagat and his partner was mutated in revenue papers regarding disputed land. The S.D.O. has observed in order dated 26.05.2005 that the alleged revenue case number is not recorded in the register kept for registration of the revenue cases in Tehsildar''s Court and thus, it was observed that the alleged mutation order dated 17.06.1978 was a fabricated and forged document. It has been alleged by the learned counsel for the petitioner that the facts relating to cancellation of mutation of original plaintiff J.S. Bhagat and Lalchand Dabar have been suppressed by the plaintiff and thus, the suit was not maintainable.

It appears from the copies of both of the orders passed by the Sub-divisional Officer, Bhopal that it was the case of Shri J.S. Bhagat and Lalchand Dabar has jointly purchased the suit property in an auction sale conducted by the Government of India on 23.12.1955 and their bid in auction was accepted and both the purchasers deposited Rs 2,16,400/- and sale certificate was granted to the above-mentioned auction purchasers and from that time of auction-purchase, the disputed land is in possession of purchasers and their LRs.

It is clear from the different documents that the different civil and revenue cases had been pending in civil and revenue Courts

regarding the suit land and the present plaintiffs or their predecessor in title was not a party in civil suit No. 132-A/2003, in which the decree was passed in favour of present petitioner Ishrat Jahan and Afroj Jahan. It is well settled that mutation entries in revenue papers are not evidence of ownership and title. It is clear that many complicated questions of fact and law are involved in this suit, which could not be decided without recording of the evidence. At this stage, it could not be held that the original plaintiff was not having any cause of action or his suit is not maintainable. It appears that the leaned trial Court has not committed any illegality or irregularity in dismissing the application filed by the present petitioner under Order 7 Rule 11 before it.

The learned counsel for the petitioner has placed reliance on the case of Karim Bhai Vs. State of Maharashtra & others (ILR 2009 M.P. 3167), but the facts and circumstances of the present case are substantially different from the case of the above-mentioned citation. Thus, the above-mentioned citation is not helpful to the petitioner in this case.

In the result, this revision petition is devoid of merits and thus, it is hereby dismissed. No order as to costs.