Telangana High Court
Mandadi Ramchandraiah vs C.N. Muralidhar And 32 Others on 2 April, 2024
THE HONOURABLE SMT. JUSTICE K. SUJANA
CIVIL REVISION PETITION No.2452 of 2022
ORDER:
Aggrieved by the order, dated 19.09.2022 in I.A.No.455 of 2020 in O.S.No.953 of 2019 passed by the Court of learned Principal District Judge, Ranga Reddy District at L.B.Nagar, the present Civil Revision Petition is filed.
2. I.A.No.455 of 2020 is filed under Order VII Rule 11 CPC seeking to reject the plaint filed by respondent No.1 stating that the petitioner herein is defendant No.3 in main suit. Respondent No.1/plaintiff filed O.S.No.953 of 2019 seeking partition of the suit schedule properties consisting of Schedule 'A to O' annexed to the plaint, out of which, 'H' schedule property consisting Ac.1-00 guntas out of Ac. 6.01 guntas in Sy.No.21/AA of Gandiguda Village of Shamshabad Mandal, belonged to the petitioner herein. It is falsely averred in the plaint that the said property was purchased by the brother of the petitioner under the registered agreement of sale-cum- GPA, dated 30.11.2006, but such document was never executed by the petitioner. Respondent No.1 cannot claim any rights over the same under the guise of the alleged 2 SKS,J C.R.P.No.2452 of 2022 heirship to one Sri C.N. Narender on the ground that he was not found for a period of more than eight years and the police closed the report given by respondent No.1 on the ground of missing of Sri C. N. Narender as 'undetected'. The police officials did not take any comprehensive steps to trace out Sri C. N. Narender and a collusive report was obtained by respondent No.1 from the police. Without showing his right to be declared as a legal heir of Sri C. N. Narender, respondent No.1 cannot lay any claim over the properties shown to be those of Sri C. N. Narender. Respondent No.1 also failed to show that their sister Smt. C.N. Swarnalatha converted into Islam religion in the year, 1984 and she is not a necessary party to the present partition suit. The suit is misconceived, since respondent No.1 is not seeking the relief of specific performance of the agreements of sale-cum-GPA shown in favour of Sri C.N. Narender and respondent No.1 failed to pay the Court Fee on the relief of declaration of legal heirship claimed to Sri C.N.Narender. The Court lacks jurisdiction to entertain the suit. There is no cause of action to file the suit. Hence, the plaint is liable to be rejected.
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3. Respondent No.1 filed counter stating that the plaintiff, defendant No.1, Sri C.N.Narender and Smt. C.N.Swarnalatha and the children of late C.N.Mukunda Rao and late Smt. C.N.Sowbhagya Rani,, Sri C.N. Narender purchased the suit A to F, J, J(a) & K schedule properties under the registered sale deeds with the investment made out of the joint family nucleus and also purchased plaint G, H & I schedule properties from defendant Nos.2, 3 and 4 respectively under the agreements of sale-cum-GPA executed by them. Sri C.N.Narender along with the defendants Nos.10 to 17 also purchased 'L' Schedule property from defendant Nos.20 to 27, 'M' schedule property along with defendant Nos.15, 18 & 19 and 'O' schedule property along with defendant Nos.20 and
21. Sri C.N.Narender was not found for a period of more than eight years and on a report lodged by the petitioner regarding the missing of Sri C.N.Narender, the police at Shadnagar Police Station, made investigation and filed a final report as 'undetected'. The plaintiff and defendant No.1 are the only legal heirs of Sri C.N. Narender, since their sister Smt.C.N.Swarnalatha converted into Muslim Religion in the year, 1984 and they are entitled to be declared as the legal heirs of Sri C.N.Narender and consequently, they are entitled 4 SKS,J C.R.P.No.2452 of 2022 to seek the partition of the suit schedule 'A to O' properties. The plaint 'A' Schedule property was purchased by Sri C.N.Narender from this petitioner under an agreement of sale- cum-GPA dated 30.11.2006 paying a valuable sale consideration. There is proper cause of action to file the suit and proper reliefs are sought for by respondent No.1. As respondent No.1 failed to effect the partition of the suit schedule properties and some of the defendants, who are the joint purchasers of some of the schedule properties, also did not come forward for partition of the respective properties, the plaintiff is constrained to file the suit for partition and since defendant No.1 was trying to alienate some of the suit schedule properties and to alter the physical features therein, the plaintiff sought the relief of perpetual injunction against respondent No.1, restraining her from alienating the suit schedule properties and also from altering the nature of the properties. The suit properties are within the pecuniary jurisdiction of this Court. There are no grounds to reject the plaint as sought for by the petitioner and hence, the petition is liable to be dismissed.
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4. On hearing both sides, the trial Court dismissed the petition. Aggrieved by the same, this Civil Revision Petition is filed stating that the trial Court failed to take into consideration of the fact that collusive report filed by the concerned police stating that whereabouts of Sri C.N. Narender was undetected and by any stretch of imagination it cannot be relied upon to prove as to missing of Sri C.N.Narender for more than seven years. The trial Court ought to have taken into consideration the fact that the partition suit is not maintainable unless all the persons, who would have share in the properties, are made parties and the suit is not maintainable, unless and until, the plaintiff and defendant No.1 are declared to be legal heirs of Sri C.N.Narender. The relief of declaration being prayer No. (vi) of the plaint cannot, by any stretch of imagination, be said to be a consequential relief to that of partition. It is further contended that Sri C.N.Narender was not the owner of the properties, since sale deeds were executed in his favour prior to his alleged disappearance; the partition suit is not maintainable relating to H-Schedule property. As such, prayed the Court to set aside the order of the trial Court. 6
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5. Heard Sri Sunil B. Ganu, learned counsel for the petitioner as well as Sri K. Anantha Chary, learned counsel appearing on behalf of the respondents.
6. Learned counsel for the revision petitioner would submit that the trial Court without taking into the consideration of the facts of the petitioner, simply dismissed the petition which is not according to law. Therefore, prayed the Court to set aside the order of the trial Court.
7. On the other hand, learned counsel for the respondents would submit that there is no illegality in the order of the trial Court and further submitted that the issues raised by the petitioner can be decided while deciding the suit. Therefore, there are no grounds in the petition to reject the plaint and prayed the Court to dismiss the petition.
8. Having regard to the rival submissions made by both the counsel and having gone through the material available on record, the petition is filed seeking to reject the plaint on the ground that there is no cause of action to file the suit and there is no jurisdiction and without bringing the L.Rs of the C.N.Narender, the Court cannot decide the suit and also for non-joinder of necessary parties. At this stage, it is pertinent 7 SKS,J C.R.P.No.2452 of 2022 to extract Order VII Rule 11 of C.P.C., and the same reads as under:
"11. Rejection of plaint -- The plaint shall be rejected in the following cases :--
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
1[(e) where it is not filed in duplicate;] 2[(f) where the plaintiff fails to comply with the provisions of rule 9:] 3[Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that 8 SKS,J C.R.P.No.2452 of 2022 refusal to extend such time would cause grave injustice to the plaintiff.]"
9. Having regard to the above extracted portion, it is noted that in the present case the primary contention of revision petitioners is that the plaint is liable to be rejected as there is no cause of action in the matter. The contention of the learned counsel for the petitioner is that there is no cause of action to file the suit whereas, the suit is filed for the purpose of partition of the properties and averments of the plaint shows that there is a cause of action to file the suit and defendant No.3 in the main suit, who is the petitioner herein executed the agreement of sale-cum-GPA on 30.11.2006 in favour of C.N.Narender for the sale of Ac.1.00 guntas out of Ac.6.00 guntas and also further contention is that the report from the police is a collusive report about C.N.Narender missing, it will cause to the merits of the case, therefore, it cannot be decided in this petition that the said report is a collusive report or whether he executed the agreement of sale which is not a ground for the rejection of plaint. His further contention is that non-joinder of all the necessary parties, has to be decided in the suit as one of the issues, he can raise the 9 SKS,J C.R.P.No.2452 of 2022 same by filing the written statement and the Court Fee can also be one of the issues in the suit.
10. Further, learned counsel for the petitioner relied on the Judgment of Karnataka High Court in Union of India and Ors. Vs. K.L. Micheal 1, wherein it is observed that husband cannot marry second time on the presumption that whereabouts of first wife are not known for seven years and presumed to be died without seeking declaration from the competent civil Court, whereas, the said issue has to be decided during the Course of trial, it is not a ground for rejection.
11. Further, he also relied on the judgment of Madras High Court in Suseela vs. The Revenue Divisional officer and other 2 on the same ground. Though it is contended that as the death of C.N. Narender itself is dispute no cause of action arises for filing partition suit, the said fact requires trial and unless there is any evidence to show that he is alive.
12. While deciding the application under Order VII Rule 11 C.P.C, the averments of the plaint alone are to be looked into 1 MANU/KA/6130/2019 2 Writ Petition No.14233 of 2020 decided on 28.10.2020 10 SKS,J C.R.P.No.2452 of 2022 and from the reading of those averments only, the application has to be decided. In the present case, the merits and demerits of the case cannot be decided at this stage. As such, there are no grounds to reject the plaint and there is no illegality in the order of the trial Court. There are no merits in the petition and the same is liable to be dismissed.
13. Accordingly, this Civil Revision Petition is dismissed confirming the order dated 19.09.2022 in I.A.No.455 of 2020 in O.S.No.953 of 2019 passed by the Court of learned Principal District Judge, Ranga Reddy District at L.B.Nagar. There shall be no order as to costs.
As a sequel, miscellaneous petitions, pending if any, shall stand closed.
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K.SUJANA, J
DATE: .04.2024
SAI