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Judgment
A.J. Shastri, J
The present Civil Revision Application is filed under Section 115 of the Code of Civil Procedure,for challenging the legality and validity of an order
dated 8.3.2019 passed below Exh.31 in Special Civil Suit No.703 of 2018.
The case of the applicants â€" original defendants is that the land situated at village Piplaj in new Taluka Vatva, District â€" SubÂDistrict
Ahmedabad bearing Survey No.49, Account No.11 which is precisely described in Para.4(a) and (b), is owned and possessed by deceased
grandfather of present applicants. After the death of grandfather deceased Raijibhai as sons of the deceased grandfather, the applicants and the uncle
of applicants’ names were entered in the revenue record with respect to the land as ancestral property of the applicants. It is alleged that the said
land is an ancestral property and the guardians of respondent No.1 has possessed the said land since about 200 years. It is alleged that the legal heirs
of deceased Raijibhai Visabhai Bharwad (grandfather of the present applicants â€" original defendant Nos.1 to 4) i.e. sons of deceased Raijibhai â€
Kalabhai and Dholabhai’s names were inserted in revenue record, but the said sons were never in actual possession, though their names were
merely incorporated in the revenue record. It has been alleged further that there was a family partition between the uncle and father of the present
applicants i.e. Kalabhai and Dholabhai. It is further alleged that the said land said to have been given to Kalabhai. So Kalabhai had become the owner
of the said land. Thereafter, the legal heirs of deceased Kalabhai i.e. (i) Samuben i.e. daughter of Kalabhai Raijibhai (ii) Puniben i.e. daughter of
Kalabhai Raijibhai (iii) Viriben i.e. daughter of Kalabhai Raijibhai and (iv) Madhubeni.e. daughter of Kalabhai Raijibhai’s names were inserted as
legal heirs of deceased Kalabhai. Thereafter, it was decided to sell their right in the said land to the guardians of respondent No.1 on 20.7.1994 at a
sale price of Rs.75,000/Â and Rs.5000/Â was paid as Bana amount. It was alleged that name of the previous guardian of applicants was running in
the revenue record, so the sale deed of undivided one half share of the land was registered on 29.3.1996 by Serial No.729 and the name of respondent
No.2 was entered as coÂowner in the revenue record. Said entry was registered as Entry No.789.
2.1 It has further been asserted that guardian of respondent No.1 had been residing over the land and possessing since number of years about 200
years as per the say of the applicants and the rooms have been constructed over the land, a private road has also been made out for transporting the
leased sand granted by the Collector by the truck and the respondent No.1 had become the owner by adverse possession. The guardians of
respondent No.1 in the background of aforesaid have filed the Civil Suit No.784 of 1997 before the learned Civil Judge (SD), Mirzapur, Ahmedabad,
wherein the Court Commissioner was appointed and it is alleged that vide order dated 12.9.2000, an order of statusÂquo was passed to be maintained
till final disposal. There was yet another suit came to be filed against the present applicants being Civil Suit No.565 of 1997. However, an inquiry was
made about the process of the said suit, the same not was noticed. The present applicants have tried to enter their names in the revenue record and to
make an Entry No.1822 on 14.12.2018 after the death of their father â€" Dhulabhai Raijibhai Bharwad on 7.6.1967 and late Naniben, wife of
Dhulabhai Bharwad, who expired on 24.5.1991. As per the say of the applicants, the respondent No.1 had requested to respondent No.3 and it is
alleged that objection against making of registered sale transaction was lodged, but respondent No.3 had not considered the request. As a result of
this, Special Civil Suit was filed by respondent No.1 against the present applicants and others. In the said civil suit, the summons came to be issued on
28.12.2018 and in response thereto at the flash, an application under Order 7 Rule 11 of the CPC came to be filed by present applicants, who are the
legal heirs of deceased Dhulabhai Raijibhai. Essentially, it was the ground that application was not properly made and certain contentions have been
raised with regard to the tenability of the claim and have also agitated that suit itself is barred by law and as such, plaint be rejected. However, the
learned 5th Additional Civil Judge, Mirzapur, Ahmedabad Rural vide order dated 8.3.2019 was pleased to reject the application at Exh.31 and it is this
order which is made the subject matter of present Civil Revision Application.
Mr.K.I.Soni, learned advocate appearing on behalf of the applicants, has submitted that the learned Judge has committed a serious error in
exercising the jurisdiction. It has been submitted that though there was no sufficient material about the possession claimed to have been made since
200 years nor any revenue record is supporting the same, the suit is hardly maintainable. On the contrary, without any permission from either the
applicants â€" defendants or without obtaining any permission from the competent authority, the houses have been constructed over the land in
question. So much so that another suit has also been submitted which went in dismissed for nonÂprosecution and, therefore, a clear attempt is made to
misguide the Court. It has been submitted further that on the contrary, the uncle of the defendants has paid the revenue in the year 1994 that itself is
demonstrating that no possession was with the plaintiffs since 200 years. If these suit proceedings are allowed to continue, serious prejudice will cause
to the defendants. As a result of this, in the absence of any cause to sustain the suit, the same be rejected. By referring to the provision contained
under Order 7 Rule 11 of the CPC, a request is made that this is a fit case in which the application deserves to be allowed. That having not been done,
the learned Judge has committed a serious error which calls for interference by this Court. No other submissions have been made.
Mr.A.R.Kadri, learned advocate appearing on behalf of original plaintiff No.1 Â contesting respondent, has submitted that while exercising
discretion, the learned Judge ha not committed any error. On the contrary, after proper application of mind and on the basis of averments contained in
the plaint itself, the discretion is not exercised in favour of the applicants. It has also been noted that even the possession of the plaintiff claimed to
have been by inheritance and since number of years, the same will have to be examined. As a result of this, no error is committed. It has further been
submitted that there is a sale transaction with respect to the half portion of land in question dated 29.3.1996, the possession of at least half portion is
very much visible and from that sale also, by adverse possession the plaintiff had become the owner. Since that is the plea of the plaintiff, the learned
Judge has rightly not exercised the discretion mainly on the ground that the possession is since years back.
4.1 It has further been submitted that what is to be looked into at this stage of the proceeding in exercise of Order 7 Rule 11 is the plain reading of the
plaint and not the defence to be taken into consideration and by sounding this proposition, learned advocate has submitted that there are clear
averments made in the plaint which necessitated the adjudication of the controversy involved and that can be possible only by leading the evidence and
as such, no error is committed by the court below in respect of passing the impugned order. It has further been submitted that the object of Order 7
Rule 11 is, no doubt, to prevent unnecessary litigation, but that would not mean and construe that the legitimate grievances which are voiced out by
litigant can be throttled by such kind of power. Resultantly, no case is made out by the applicants to call for any interference and in any case, it has
been submitted that the court below has exercised the discretion vested in law and after considering the overall circumstances, has arrived at the
conclusion which may not be substituted in exercise of revisional jurisdiction.
Having heard the learned advocates appearing for the respective parties and having gone through the material on record, it seems from the bare
reading of the plaint which is attached to the revision petition compilation, there is a clear assertion that uninterruptedly over a period of 200 years
from forefathers; there is a continuous uninterrupted possession over the land in question and by such uninterrupted possession by way of adverse
possession as well, a declaration is sought as prayed for in the suit. It is clearly asserted in the plaint itself in Para.4, 5 and 6 at length that under which
set of circumstance, the plaintiff constrained to approach the court; there is a clear cause of action asserted on the basis of specific averments made
in the plaint and bare reading of the same, it appears that some adjudication deserves. As a result of this, apparently it does not appear to this Court
that any error is committed in exercising the jurisdiction.
Additionally, the Court has acted well within the bounds of authorities and has also applied the mind and after considering the material, has come to
the conclusion which conclusion is not possible to be branded as perverse in any form. What is perversity is well defined by catena of decisions and as
such, without quoting the same, in considered opinion of this Court, the averments contained in aforesaid paragraphs of the plaint which are considered
by the Court, at least no case is made out to exercise the jurisdiction under Order 7 Rule 11 of the CPC.
Additionally, the Court is also of the opinion that this valuable drastic power of Order 7 Rule 11 of the CPC has to be exercised sparingly and only
on the basis of the averments contained in the plaint. If it is visible that the proceedings are vexatious or not possible to be entertained at the threshold,
only in those circumstances such drastic powers deserve to be exercised. Resultantly, the Court keeping in view the proposition of law which has been
laid down by series of decisions, is of the view that no case is made out.
Further, the Court is of the opinion that while exercising the revisional jurisdiction, what is to be seen by the Court first of all is whether the question
calls for consideration is falling within any of the criteria which are mentioned for exercising revisional jurisdiction, as spelt out in Section 115 of the
CPC. In the considered opinion of this Court, no case is made out by the applicants which is possible to be considered as falling within such criteria.
As a result of that also, the revisional jurisdiction is not possible to be exercised in a peculiar background of present circumstance.
The scope of revisional jurisdiction has been well defined by catena of decisions of the Apex Court and one of such decision is in case of The Apex
Court in a decision in case of Rukmini Amma Saradamma v. Kallyani Sulochana & Ors., reported in AIR 1993 SC 1616, on the issue of revisional
jurisdiction, has observed in Para.21 which quoted, thus;
“21. We are afraid this approach of the High Court is wrong. Even the wider language of Section 20 of the Act cannot enable the High Court to
act as a first or a second court of appeal. Otherwise the distinction between appellate and revisional jurisdiction will get obliterated. Hence, the High
Court was not right in reÂappreciating the entire evidence both oral or documentary in the light of the Commissioner's report (Ext. C1 and C2
mahazar). In our considered view, the High Court had travelled far beyond the revisional jurisdiction. Even by the presence of the word ""propriety"" it
cannot mean that there could be a reÂappreciation of evidence. Of course, the revisional court can come to a different conclusion but not on a reÂ‐
appreciation of evidence; on the contrary, by confining itself to legality, regularity and propriety of the order impugned before it. Therefore, we are
unable to agree with the reasoning of the High Court with reference to the exercise of revisional jurisdiction.â€
Yet another decision of the Apex Court on the issue of exercise of revisional jurisdiction is in case of Ambadas Khanduji Shinde & Ors. v. Ashok
Sadashiv Mamurkar & Ors., reported AIR 2017 SC 2527. Relevant observations of the said decision are in Para.13 which quoted, thus;
“13. Apart from the factual aspect, order lacks merit on the ground of jurisdiction. The High Court cannot interfere with the concurrent factual
findings while exercising jurisdiction under Section 115 of the Civil Procedure Code. It is settled law that revisional jurisdiction of the High Court is
restricted to cases of illegal or irregular exercise by the subordinate courts. Under Section 115 of the CPC, it is not open for the High Court to correct
errors of facts or law unless they go to root of the issue of jurisdiction. In the facts on hand, the Courts below have passed reasoned orders well within
the jurisdiction conferred upon them. We arrive at the conclusion that the High Court committed error in interfering with the judgment and decree of
the trial court.â€
In the wake of aforesaid circumstances which are prevailing on record, it appears to this Court that instead of throttling the suit at this stage of the
proceeding, a fair chance to meet with the grievances, deserves to be granted. Resultantly, the revision petition being devoid of merit, deserves to be
dismissed and the same stands dismissed hereby, with no order as to costs.