Madan Lal and Others vs Roshan Lal

Pratap Krishna Lohra, J.—Petitioners/defendants have filed this revision petition to challenge the impugned order dated 13th of February 2015 passed by the Addl. District Judge No. 5, Jodhpur Metropolitan, Jodhpur (for short, ''learned Trial Court'') whereby the learned trial Court has rejected their application under Order VII Rule 11 read with Section 151 C.P.C. in a suit for partition and perpetual injunction laid by the respondent-plaintiff.

Succinctly stated, the facts of the case are that respondent-plaintiff instituted a civil suit for partition and perpetual injunction against the petitioner inter-alia on the ground that a joint family property of the parties is situated at Maliyon ki Gali, Opposite Udaimandir Police Station, Jodhpur. The requisite neighborhood of the suit property and total area is incorporated in the plaint. It is mentioned in the plaint that a land measuring 685.5 Jodhpuri Gaj is allotted by the erstwhile princely State, Jodhpur to one Ashu s/o. Sukhdev and vide File No. 485 dated 04.08.1908 the Superintendent Sadar, Hawala Khas, Raj Marwar, Jodhpur issued Patta of the land in the name of Ashu on 01.01.1909. After issuance of Patta, Shri Bhoridas alias Boridas Kachhawaha, Shri Sukhdev and Shri Ashuji died but Ashuji is surviving by three sons; namely Ramchander, Ganesh and Motilal. Subsequently, Shri Ganesh and Motilal also passed away and Ramchandra remained the only surviving issue of Ashuji. Shri Ramchandra took his last breath on 08.12.1998 and his wife Radhadevi was predeceased at the time of his death. On account of death of Ramchandra, the property is inherited by his surviving legal representatives, i.e., Shri Madanlal, Shri Babulal and four daughters, namely, Smt. Anop, Smt. Gulab, Smt. Santosh and Smt. Suraj. The complete family tree of Ramchandra is also mentioned in the plaint. In the plaint, it is also averred that Madan Lal and Babulal mutually agreed for partition of the property and a written statement is executed for partition, which was duly registered and thereupon both of them occupied their respective share in the property. As per respondent-plaintiff, since then he alongwith defendant is in possession as joint owner of the suit property, which is a joint Hindu family property. It is also alleged in the plaint that the respondent-plaintiff and the other defendants raised construction on the joint family property after obtaining due permission from Municipal Council, Udaipur in the year 2005, and three storied building was constructed having six flats, in which on 3rd floor, in Flat No. 6 situated at the backside, respondent-plaintiff is residing as owner of the joint family property, and rest of the flats are occupied by other defendants. Pleading specifically in the plaint that the entire property is a joint family property, the respondent-plaintiff has claimed its partition by demarcating his share by metes and bounds. It is also pleaded in the plaint that the petitioners-defendants in unison are out and out to dispossess him from the joint family property and that compelled him to lay a criminal complaint against them. Highlighting the conduct of the petitioners of hurling repeated facts to dispossess him, the respondent-plaintiff has also prayed for the relief of perpetual injunction. The respondent-plaintiff has further pleaded in the plaint that he came to know through reliable sources that defendants are likely to alienate the joint family property, therefore, it has become imminent for him to seek partition of the property by metes and bounds. Asserting with emphasis about his possession on the disputed property, the respondent-plaintiff has also made endeavor to show cause of action for launching of the litigation, with the prayer for partition and perpetual injunction.

Resisting the suit laid by respondent-plaintiff, the petitioner-defendants filed an application under Order VII Rule 11 read with Section 151 C.P.C. In the application, it is inter-alia pleaded by the petitioner-defendants that no cause of action has accrued to the respondent-plaintiff for laying the suit for partition. For substantiating this positive assertion, the petitioners-defendants have taken shelter of Section 6 and 8 of the Hindu Succession Act, 1956 by urging that during lifetime of first petitioner, no right, title or interest has accrued to him for seeking partition of the suit property. As regards the relief of perpetual injunction, it is averred in the application that so called possession of the plaintiff respondent on part of the property, situated at first floor, is illegal and therefore in want of a legal possession suit for perpetual injunction cannot be maintained. Therefore, vis-�-vis relief for perpetual injunction, also the petitioners have resisted the suit on the plea that no cause of action has accrued to the respondent-plaintiff.

On behalf of respondent-plaintiff, reply to the application is submitted refuting all the averments. It is pleaded in the return by the respondent-plaintiff that his possession in the disputed property is not akin to that of a licencee but in the capacity of a coparcener. The fact regarding illegal possession on part of the suit property is also denied by the respondent-plaintiff. Pleading specifically in the reply that suit property is not self acquired property of the first petitioner and therefore he is not the absolute owner of the property, the respondent-plaintiff has asserted with emphasis that as coparcener he is well within his rights to protect his possession by getting a decree for perpetual injunction.

The learned Court below, after hearing the rival parties and discussing the matter threadbare, rejected the application by the impugned order.

Learned counsel for the petitioners, Mr. O.P. Mehta, has strenuously urged that from a bare reading of the plaint it is clearly emerged out that the respondent-plaintiff has not disclosed accrual of cause of action for maintaining the suit. Mr. Mehta would urge that during life time of first petitioner, who is father of the respondent-plaintiff, he has no share in the property, on conjoint reading of Section 6 and 8 of the Act of 1956, and therefore he cannot maintain a suit for partition. Elaborating his submissions in this behalf, Mr. Mehta submits that even on pleaded facts, thereby respondent-plaintiff has projected accrual of cause of action by clever drafting, no relief can be granted to him, is sufficient to conclude that it is a case of non-disclosure of cause of action. Mr. Mehta, learned counsel for the petitioners would contend that the learned Court below has not examined the matter in right perspective while construing Section 6 and 8 of the Act of 1956 and therefore the order impugned is per-se vulnerable. Highlighting appropriate and true connotation of the words "real cause of action", Mr. Mehta submits that in absence of real cause of action, a suitor cannot maintain a suit, was a very vital issue, which has not been addressed by the learned Court below in the impugned order and therefore, it is not sustainable. In support of his contentions, learned counsel for the petitioners has placed reliance on following legal precedents:

1) M/s. Hede and Co. with Sociedade De Fomento Industrial Pvt. Ltd. Vs. M/s. Hede and Co. [2007 AIR SCW 3456 ]

2) Makhan Singh (D) by Lrs. Vs. Kulwant Singh, AIR 2007 SC 1808 : (2007) 5 JT 288 : (2007) 147 PLR 65 : (2007) 5 SCALE 226 : (2007) 10 SCC 602 : (2007) AIRSCW 3018 : (2007) 3 Supreme 241

3) Anil Kumar Shrivastava Vs. Mukesh Chand Saxena and Others, (2014) 1 WLN 1

4) Sivananda Roy Vs. Janaki Ballav Pattnaik and Others, AIR 1985 Ori 197

5) Ram Sukh Vs. Dinesh Aggarwal, AIR 2010 SC 1227 : (2009) 12 JT 352 : (2009) 12 SCALE 638 : (2009) 10 SCC 541 : (2009) 14 SCR 836 : (2009) 9 UJ 4461 : (2010) AIRSCW 533 : (2009) 6 Supreme 709

6) Commissioner of Wealth Tax, Kanpur and Others Vs. Chander Sen and Others, AIR 1986 SC 1753 : (1986) 58 CTR 119 : (1986) 161 ITR 370 : (1986) 2 SCALE 55 : (1986) 3 SCC 567 : (1986) 3 SCR 254

7) Bhanwar Singh Vs. Puran and Others, AIR 2008 SC 1490 : (2008) 1 CLT 713 : (2008) 2 JT 486 : (2008) 2 SCALE 355 : (2008) 3 SCC 87 : (2008) AIRSCW 1565 : (2008) 2 Supreme 285

8) Yudhishter Vs. Ashok Kumar, AIR 1987 SC 558 : (1986) 1 JT 1021 : (1986) 2 SCALE 1044 : (1987) 1 SCC 204 : (1987) 1 SCR 516

9) M. Yogendra and Ors. Vs. Leelamma N. and Ors. (Civil Appeal Nos. 4818-4819 of 2008)

10) Mahendra Kumar Vs. Mohd. Salim and Ors. [2014 WLC (Raj.) UC 504]

11) Vedram Hukum Singh Vs. Tikaram and Others, AIR 2013 Chh 107 : (2013) 2 CGBCLJ 83 : (2013) 3 CGLJ 6

Per contra, learned counsel for the respondent Mr. G.R. Singhvi, while stoutly defending the impugned order submits that the learned Court below has not committed any illegality or material irregularity in passing the impugned order warranting interference by this Court in exercise of revisional jurisdiction. Mr. Singhvi would contend that on a plain reading of the averments in the plaint makes it amply clear that the respondent-plaintiff has disclosed an accrual of cause of action with clarity and precision and therefore submission of the learned counsel for the petitioners in this behalf is merely ornamental and not tenable. Mr. Singhvi submits that as the disputed property is a joint family property and not self-acquired property of first petitioner as joint coparcener, respondent-plaintiff is entitled to a share in the coparcenary property and therefore there remains no quarrel for maintainability of the suit for partition, as rightly concluded by the learned Court below in the impugned order. Mr. Singhvi further submits that as a coparcener, the respondent-plaintiff can very well maintain a suit for perpetual injunction to protect his possession on the suit property and therefore contention of the learned counsel for the petitioners for non-accrual of the cause of action for the said relief is bereft of any merit and has been rightly turned down by the learned Court below. Learned counsel for the respondent for substantiating his arguments has placed reliance on following legal precedents:

1) Rohit Chauhan Vs. Surinder Singh and Others, (2013) 5 ABR 910 : (2013) 7 AD 611 : AIR 2013 SC 3525 : (2013) 4 CTC 539 : (2013) 4 PLR 662 : (2013) 4 RCR(Civil) 40 : (2013) 9 SCALE 433 : (2013) 9 SCC 419

2) Smt. Raj Rani Vs. Chief Settlement Commissioner, Delhi and Others, AIR 1984 SC 1234 : (1984) 1 SCALE 815 : (1984) 3 SCC 619 : (1984) 3 SCR 763 : (1984) 16 UJ 687

3) Ram Kumar Vs. State of Raj. and Ors. [2002 (3) DNJ (Raj.) 1357]

4) Krishna Prasad and Others Vs. Shyam Narayan Prasad and Others, AIR 2006 Sikk 25

5) Krishan Kumar Sharma Vs. Ashok Kumar Sharma and Another, (1997) 116 PLR 841

6) Ashraf Kokkur Vs. K.V. Abdul Khader, AIR 2015 SC 147 : (2014) AIRSCW 4913 : (2014) 9 SCALE 780

I have heard learned counsel for the parties, perused the impugned order and other materials available on record.

The legal battle at the behest of respondent-plaintiff against his father, the first petitioner and other siblings, i.e., petitioners No. 2 to 4, pertains to ancestral property for which there is a consensus among the parties. If the averments contained in Para 2 and 3 of the plaint, wherein family tree of the litigants is also shown, are read in conjunction with Para 1 of the application under Order VII Rule 11 C.P.C. submitted by the petitioners, then it would ipso facto reveal that original title deed of the suit property were in the name of their ancestor Ashu s/o. Sukhdev and Patta was issued in his name by the erstwhile princely State of Jodhpur in January 1909. Shri Ashuji survived by his lone son Ramchandra, who passed away on 18.12.1998 and his wife was pre-deceased. Ramchandra had two sons and four daughters. His elder son Madanlal is the first petitioner-defendant and litigating with him for partition and injunction is his son respondent-plaintiff Roshanlal. Rival parties have not disputed the date of death of Ramchandra and considering the age of respondent-plaintiff, there remains no quarrel that at the time of death of Ramchandra he was not only born but attained majority and therefore he has also joined as coparcener to inherit the ancestral property.

Well it is true that under Section 6 of the Act of 1956 before its amendment of 2005, on death of a male Hindu an interest in the Mitakshra coparcenary property shall devolve by survivorship upon the surviving members of the coparcenary but the proviso puts a rider for intestate succession in the event of deceased having left surviving a female relative specified in Class I of the Schedule. Explanation 1 to un-amended Section if harmoniously construed then it would reveal that being coparcener his rights are not fettered to enforce partition of the ancestral property.

On a conjoint reading of Section 6 and 8, the right of the respondent-plaintiff as coparcener, when his grandfather Ramchandra was alive, prima facie, cannot be disputed for non-suiting him at the threshold in his pursuit for partition of the ancestral property. Well the issue may be contentious but not conclusive to hold that the respondent-plaintiff is not entitled to lay a suit for partition. A plain reading of the averments contained in the plaint and on its meaningful construction, on the touchstone of the legal position, has made me to believe that present one is not a case of non-disclosure of cause of action much less a case wherein without trial of the suit it can be inferred that no relief can be granted to the respondent-plaintiff. The legal position is no more res integra that for the purpose of ascertaining accrual of cause of action averments made in the plaint are to be looked into and if on construction of averments there is semblance of proof about accrual of cause of action to the suitor, a plaint cannot be rejected at the threshold on the anvil of non-disclosure of cause of action.

There is yet another facet of the case which deserves due credence. As is evident from the averments of the plaint and the prayer clause, the respondent-plaintiff has also sought a relief for perpetual injunction to protect his possession on part of the suit property and his possession is not in dispute. In that background, as a coparcener, the respondent-plaintiff''s right to maintain a suit to retain his possession in the coparcenary property is undeniable. Therefore, as regards suit for perpetual injunction, the contention of the petitioners that no right to sue is available to the respondent-plaintiff, or that no cause of action has accrued to him, is bereft of any merit and cannot be sustained. In totality, in the considered opinion of this Court, the petitioners, while laying application under Order VII Rule 11 C.P.C. for rejection of the plaint at the threshold, have presented a very blinkered vision about the lis involved in the matter and the same has rightly dissuaded the learned Court below for rejecting the application.

The learned counsel for the parties have placed reliance on many authoritative pronouncements in support of their respective contentions but I am not persuaded to examine all these legal precedents while examining the impugned order in exercise of revisional jurisdiction. It may be observed here that most of the legal precedents, on which rival parties have placed reliance, were brought to the notice of the learned trial Court and ratio decidendi of these judgments were examined threadbare and therefore when prima facie this Court is satisfied that the case in hand is not a case of non-disclosure of cause of action, re-examining the legal precedents and discussing the ratio decidendi elaborately is not desirable. It is trite that revisional jurisdiction is not akin to appellate jurisdiction and scope of judicial review under Section 115 C.P.C. is very much limited. All that is projected in the application and canvassed before the Court by the learned counsel for the petitioners is in the nature of setting out a defence against the suit filed by the respondent-plaintiff and such a defence cannot be made subject matter of an application under Order VII Rule 11 C.P.C. In the backdrop of facts and circumstances of the instant case, on close scrutiny of the impugned order, I am unable to find any illegality or material irregularity committed by the learned Court below in exercise of its jurisdiction warranting interference at this stage. Moreover, the impugned order has also not occasioned failure of justice.

Resultantly, revision petition fails and the same is accordingly dismissed.