Mojid Molla & Ors vs Sirajul Islam & Ors

This revisional application under Article 227 of the Constitution of India is at the instance of the defendants in a suit for declaration of title and

injunction and is directed against an order dated April 7, 2016 passed by the learned Civil Judge (Jr. Division), 6th Court at Alipore, South 24-

Parganas in Title Suit No.1625 of 2013.

 The petitioners in the suit filed an application under Order VII Rule 11 of the Code of Civil Procedure thereby praying for rejection of the plaint of

the suit on the grounds that the suit does not disclose any cause of action and is barred by the law limitation.

 Mr Bardhan, learned advocate appearing for the petitioners, draws my attention to the schedule of the plaint wherein the plaintiffs have prayed for

a declaration of title in respect of 20 decimals of land comprised in Dag No.53 under RS Khatian No.275, but as it appears from the averments of the

plaint that the Dag does not contain that much of lands as described in the schedule appended in the plaint. Therefore, learned trial Judge should have

dismissed the plaint on the grounds that no effective decree can be passed on the basis of such schedule.

Mr Bardhan further submits that the plaint does not disclose any cause of action which warrants rejection of plaint. Learned trial Judge while rejecting

the application has considered the entire averments of the plaint and has come to the conclusion that the dispute in respect of 2 decimals of land which

the defendants stated to be Kabarsthan and in possession can only be adjudicated at the time of trial.

The learned trial Judge is also of the opinion that from the plaint it can be gathered that the plaintiffs have stated the cause of action on December 27,

2012 when the defendants allegedly tried to take forcible possession of the said 2 decimals of land; and in view of the statement in the plaint, it cannot

be said that the plaint does not disclose any cause of action. The said findings of the learned trial Judge cannot be said to be perverse. Therefore, no

interference is called for in such findings. The contention of Mr Bardhan in the matter of mis-description of his schedule property can also be taken

care of at the time of trial, but on the said grounds the plaint of the suit cannot be rejected.

With the above observations, CO No.2229 of 2016 stands dismissed. No order as to costs.

Needless to mention that notwithstanding dismissal of their application under Order 7 Rule 11 of the Code, it is always open to the defendants to

canvas in course of the trial of the suit that the suit is barred by law of limitation.

This court is informed that the application for injunction is still pending. Learned trial Judge is requested to expedite the hearing of the injunction

application without granting unnecessary adjournment to either of the parties.

Certified photostat copy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.