Telangana High Court
Khader Ali Khan vs Smt. Chirla Nivedita Reddy And 18 Others on 8 August, 2024
Author: P.Sree Sudha
Bench: P.Sree Sudha
THE HONOURABLE SMT. JUSTICE P.SREE SUDHA
CIVIL MISCELLANEOUS APPEALS Nos.136 & 112 of 2023
AND
CIVIL REVISION PETITION Nos.2529, 2559, 2911, 2915 and
2916 of 2023
COMMON JUDGMENT:
C.M.A.Nos.136 and 112 of 2023 are filed against the Order dated 12.12.2022 in I.A.No.1733 of 2017 in O.S.No.1432 of 2017, passed by the learned II-Additional District Judge, Ranga Reddy District, L.B.Nagar.
2. C.R.P.Nos.2529 and 2916 of 2023 are filed against the Order dated 12.12.2022 in I.A.Nos.1267 and 929 of 2022 in O.S.No.600 of 2018, passed by the learned II-Additional District Judge, Ranga Reddy District, L.B.Nagar.
3. C.R.P.No.2559 of 2023 is filed against the Order dated 12.12.2022 in I.A.No.188 of 2020 in O.S.No.1432 of 2017, passed by the learned II-Additional District Judge, Ranga Reddy District, L.B.Nagar.
4. C.R.P.No.2915 of 2023 is filed against the Order dated 12.12.2022 in I.A.No.928 of 2022 in O.S.No.27 of 2020, passed 2 by the learned II-Additional District Judge, Ranga Reddy District, L.B.Nagar.
5. C.R.P.No.2911 of 2023 is filed against the Order dated 12.12.2022 in I.A.No.930 of 2022 in O.S.No.1432 of 2017, passed by the learned II-Additional District Judge, Ranga Reddy District, L.B.Nagar.
6. It is a long drawn litigation between the parties. Initially, one Khader Nawaz Khan filed a suit vide O.S.No.471 of 1987, against the defendants for partition of 1/4th share in Sy.Nos.41 to 43 admeasuring Acs.49-24 gts, situated at Kokapet village and stated that originally one Qamaruddin Ali Khan was the original owner and pattedar of the above agricultural lands. He sold the land to one Khader Hussain Khan, through a registered sale deed. From then onwards, Khader Hussain Khan was in possession and enjoyment of the suit property as absolute owner till he died in 1352 Fasli as bachelor, leaving behind his sister Shahzadi-Bee and two step brothers by name Feroz Khan and Khader Nawaz Khan/plaintiff. After the death of Khader Hussain Khan, all of them are in joint possession and enjoyment and Patta was issued in favour of elder brother of the family i.e., Feroz Khan. It is stated that the plaintiff and 3 Shahzadi Bee are shikmidars. The said Feroz Khan died in between 1977-78, leaving behind defendants No.1 to 9 as widow, son and daughters. From then onwards plaintiff and defendants No.1 to 11 are in joint possession and enjoyment of the suit property. Defendant No.12 has no connection with the suit property or share, but he is trying to create some documents to deprive the rights of the plaintiff and other sharers. In view of the family differences and as it is impossible to continue in joint possession, plaintiff demanded for partition of the suit schedule property and defendants also agreed and promised, but they failed to fulfill their promise and finally on 15.11.2007, they refused for partition, as such he preferred suit for passing of the preliminary decree and to declare that he is entitled for 1/4th share in the matrooka properties, defendants No.10 and 11 are entitled for half share to the extent of their mother Shahzadi Bee and defendants No.1 to 9 are entitled for 1/4th share. During the pendency of the suit, defendants No.2 and 10 died. The land was not demarcated and partitioned during the life time of Feroz Khan. In the meanwhile, plaintiff had filed the suit for partition, as such the share of the plaintiff and the shares of the defendants has to be decided by the Court.
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7. Defendant No.12 filed the written statement stating that the suit schedule property was not the joint family property and plaintiff is not the member of the joint family and not entitled for share in the suit property. He filed the suit by colluding with defendants No.1 to 11. He further stated that after the death of Khader Hussain Khan, succession was granted to his two brothers and sister and the said patta was made in the name of elder member Feroz Khan. Khader Hussain Khan purchased the suit schedule property from Qamruddin Ali Khan for a valid sale consideration through registered sale deed 23 Arban 1344 and he died in 1352 Fasli. After his death, his brother Feroz Khan became the owner of the suit schedule property by a succession certificate bearing No.812 of 1357 Fasli issued by the Director of Settlements and he was in continuous and exclusive possession of the suit schedule property and paying land revenue. He perfected his title as exclusive owner during statutory period.
8. In the year 1965-66, one J.H.Krishna Murthy, claiming himself to be the G.P.A of the heirs of one Nawab Nasarat Jung-I, interfering with the peaceful possession and enjoyment of the above lands of Feroz Khan, as such Feroz Khan gave complaint against said Krishna Murthy to the police on more than one occasion, but the police did not take effective steps. As 5 there was threat to dispossess him, he initiated proceedings under Section 145 of Cr.P.C before the Revenue Divisional Officer (R.D.O), but the R.D.O closed the proceedings stating that there is no cause of breach of peace. When Krishna Murthy was trying to trespass into the suit lands, Feroz Khan instituted O.S.No.31 of 1966 against him seeking relief of declaration and injunction and it was renumbered as O.S.No.512 of 1973. After institution of the suit Feroz Khan agreed to sell the entire lands in Sy.No.42, 43 and a portion of 41 to defendant No.12 and executed registered sale deed in his favour on receiving balance of sale consideration on 04.10.1960, as such he was impleaded as plaintiff No.2 in O.S.No.512 of 1973. The Feroz Khan, was in dire need of money to meet his litigation and other expenses, as such offered to sell the entire extent of Acs.18-25 gts in Sy.No.43 to defendant No.12 and executed an agreement of sale on 23.03.1973 and promised to execute registered sale deed within two months from the disposal of the O.S.No.512 of 1973. The said Krishna Murthy contended that the lands are Ara-zi- Maktha lands and after the death of Nawaz Nasruth Jung-I, they were taken over by the Government. The said O.S.No.512 of 1973 was decreed in favour of Feroz Khan on 30.06.1976. Aggrieved by the said Judgment and decree, Krishna Murthy 6 has preferred an appeal in C.C.C.A.No.142 of 1976 and during the pendency of the appeal, Feroz Khan died on 22.01.1978.
9. Defendant No.12 had also filed O.S.No.164 of 1981 for permanent injunction when L.Rs. of Feroz Khan are trying to sell away the property covered under agreement of sale dated 23.03.1973, restraining them from selling or disposing of the land in Sy.No.43 and it was decreed in his favour restraining the defendants No.1 to 9 from alienating the suit lands to third parties. Aggrieved by the same, they preferred an appeal in A.S.No.66 of 1984 and the same was dismissed on 27.11.1984. C.C.C.A.No.142 of 1976 filed by Krishna Murthy was also dismissed on 11.12.1985 and hence defendant No.12 issued legal notice on 22.12.1985 to defendants No.1 to 9 to register the sale deed basing on the agreement of sale dated 23.03.1973. When they failed to comply the same, he filed a suit vide O.S.No.150 of 1986, for specific performance of agreement of sale dated 23.03.1973 for the land measuring an extent of Acs.18-25 gts in Sy.No.43. After the dismissal of C.C.C.A.No.142 of 1976, the defendant No.12 along with defendants No.1 to 9 filed E.P.No.8 of 1986, for delivery of the land and it was delivered to them on 19.06.1986. It was contended by defendant No.12 that plaintiff was never in 7 possession and he never attempted to implead at any point of time.
10. Plaintiff in his evidence stated that Qamruddin Khan died in the year 1943 issueless, Feroz Khan died in the year 1977 and his sister died 15 years prior to the filing of the suit. In the evidence of D.W.1/defendant No.12, he stated that he purchased the lands in Sy.No.41 to 43 from Feroz Khan. He along with Feroz Khan filed a suit vide O.S.No.10 of 1967 against Krishna Murthy for declaration of title. Ex.B11 is the Order dated 29.10.1975, passed by the Land Reforms Tribunal, Hyderabad and it shows that Feroz Khan filed for declaration before the Land Ceiling Authority. All the documents were filed before the Court and were considered by the Court. Finally, it was observed that issues 1 to 7 were proved in favour of defendant No.12 and against plaintiff, as such the suit was dismissed. Aggrieved by the said Judgment, plaintiff preferred an appeal vide A.S.No.734 of 1991 and the appeal was allowed on 25.01.1996 with an observation that the appellant is one of the co-heirs, Khader Hussain Khan is entitled for partition of the property and against the said Order Rev.C.M.P.No.3830 of 1999 and L.P.A.No.72 of 1996 were filed and same were allowed on 30.08.2001. Later, Special Leave Petition was preferred 8 against the review and the same was set aside and thus the Order in L.P.A became final. A.S.M.PNos.11880 of 2004 and 1098 of 2005 & 1099 of 2005 were filed for grant of half share in favour of the petitioners therein and the same were allowed and the decree in A.S.No.734 of 1991 dated 25.01.1996 was directed to be amended allotting and dividing half share in the suit schedule property to the petitioners therein, 1/4th share to respondents No.1 to 6 and 1/4th share to respondents No.7 to 15 therein.
11. The defendant No.12 through his legal heir Ch.Niveditha Reddy, filed the Civil Appeal Nos.2352-2354 of 2008, challenging the amendment Order in A.S.No.734 of 1991 and it was dismissed on 16.09.2014. An application was filed before the trial Court for appointment of the Advocate Commissioner to effect the partition for preliminary decree, even it was challenged in C.R.P.No.4219 of 2015, the same was also dismissed on 29.07.2016, confirming the Order of the appointment of the Advocate Commissioner. An application was filed for Cross-examination of the Advocate Commissioner, but when it was not considered C.R.P.No.2796 of 2017 was filed and it was dismissed on 18.01.2018.
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12. The defendant No.12 executed Will in favour of his daughter Nivedita Reddy, as such Nivedita Reddy in her personal capacity and the also in the capacity of Managing Director of M/s.Nischint Constructions, filed O.S.No.1432 of 2017 and she was represented by G.P.A holder. She stated that she was the absolute owner of the agricultural land in Sy.No.41 part admeasuring Acs.10-33 gts, as per the registered Will deed bearing document No.22 of 2012 dated 25.10.2012, executed by Vellanki Srihari. In fact, there is no land in existence more than Acs.9-20 gts, but revenue authorities mistakenly shown the total extent as Acs.10-30 gts. It is stated that Acs.9-20 gts was shown as Sy.No.42/A and balance extent of Ac.1-10 gts was shown as Sy.No.42/AA. She stated that executant of the registered Will deed died on 11.01.2014. From then onwards, she became the absolute owner. The said Vellanki Srihari, during his life time entered into agreement of sale dated 13.07.1967 with Feroz Khan and possession was delivered to him on 03.10.1969 and subsequently Feroz Khan executed a registered sale deed vide document No.648 of 1969, dated 04.10.1969, for the lands in Sy.No.41 part measuring an extent of Acs.10-33 gts out of the total extent of Acs.20-33 gts and the land in Sy.No.42 admeasuring Acs.9-20 gts totally admeasuring Acs.20-13 gts, situated at Kokapet Village, Hyderabad. She 10 further stated that during the life time of Srihari, he entered into an agreement of sale with M/s.Nischint Constructions on 29.10.1993, for valuable consideration. He received the entire sale consideration and also recited to that effect in the registered Will deed. She also stated regarding the delivery of the possession to M/s.Nischint Constructions, as such she along with M/s.Nischint Constructions filed suit for protecting their rights. When they came to know about the proceedings of the suit in O.S.No.471 of 1987, they filed implead petitions vide I.A.No.1042 of 2014 in I.A.No.506 of 2014 in O.S.No.471 of 1987 (Mesne profits), I.A.No.1044 of 2014 in I.A.No.507 of 2004 (final decree) and I.A.No.1046 of 2014 in I.A.No.1507 of 2014 (Advocate Commissioner).
13 She further stated that initially Qamruddin Ali Khan was the absolute owner of the suit schedule property and possessor and from him on 23rd Arban 1344 Fasli (1935), Khader Hussain Khan purchased the same through a registered sale deed and he died in the year 1352 Fasli (1943). Later, his brother Feroz Khan obtained a succession certificate bearing No.812 of 1357 Fasli (1948) issued by the directors of settlements and he was in exclusive possession and enjoyment of the same continuously prior to delivery of possession of the suit property to Vellanki 11 Srihari on 03.10.1969, basing on the agreement of sale dated 13.07.1967 and later as per the registered sale deed bearing document No.648 of 1969 dated 04.10.1969 and he was in possession of the suit schedule property for more than 12 years of statutory period till filing of the suit in O.S.No.471 of 1987. Even today M/s.Nischint Constructions is in possession and enjoyment of the same and thus from 03.10.1969 till today i.e., for more than 49 years they are in possession and thus Vellanki Srihari perfected his title by way of prescription against all the defendants.
14. She also stated that Feroz Khan died on 22.01.1978. After passing of the decree in O.S.No.512 of 1973, Vellanki Srihari and Feroz Khan filed E.P.No.8 of 1986. Accordingly, possession was redelivered to both of them as per the Panchanama dated 30.06.1986. Even at that time neither Khader Nawaz Khan or his wife and children nor sons of Shahzadi Bee made any efforts to protect their rights at the time of receiving the delivery of possession and did not raise any objections and they have not questioned the continuous possession of the Vellanki Srihari. The Khader Nawaz Khan had filed E.A.No.12 of 1989 in E.P.No.23 of 1988 in O.S.No.150 of 1986, but it was dismissed, against which C.R.P.No.3441 of 1989 was filed and the same 12 was dismissed and thus Khader Nawaz Khan and his legal heirs have lost all their rights, title and interest in the suit schedule property. It is further stated that the family members of Shahzadi Bee and Khader Nawaz Khan are well aware of the alienations made by Feroz Khan claiming himself as the exclusive owner and possessor of the suit schedule property and other properties. One Syed Maqdoom Shah was an attesting witness to the agreement of sale dated 13.07.1967 and also to the delivery of the possession panchanama dated 03.10.1969 for Acs.20-13 gts in Sy.No.41 part and 42 purchased through registered sale deed dated 04.10.1969 vide document No.648 of 1969 and the said Syed Maqdoom Shah was an attesting witness and identifying witness to the said registered sale deed, as such the said Syed Mohiuddin Shah and Syed Hussain Shah cannot put forth any claim as they lost their title in view of their knowledge that Vellanki Srihari being a third party was in possession and enjoyment to their notice, as such defendants No.10 to 17 in O.S.No.1432 of 2017 cannot take away the rights or title by prescription or by adverse possession in view of long standing possession for more than statutory period of 12 years. In fact, 18 years were completed. O.S.No.150 of 1986 filed by Vellanki Srihari for specific performance of agreement of sale dated 23.03.1973 was also decreed on 02.11.1987 against the 13 legal heirs of Feroz Khan and it became final. Subsequently, in view of amended ROR Act by paying requisite Stamp Duty to the Registrar, M.R.O, Rajendranagar, validated the document under proceedings No.ROR/4218/1989 dated 26.03.1992.
15. It is further stated that Vellanki Srihari had alienated the land to M/s.Treasure Island, through six registered sale deeds. When Agriculture Land Ceiling Act, 1973, came into existence Feroz Khan filed declaration on 08.04.1975 vide Ceiling Case No.388/W/75 and declaration was shown by the Tahsildar as per verification and inspection report dated 11.09.1975. The properties were sold away by them in Sy.No.41 part, 42 and 43 and the said Nawaz Khan and Shahzadi Bee did not prefer to file any suit for the suit schedule properties. The legal heirs of Feroz Khan have filed an appeal vide A.S.No.66 of 1983 against the Judgment and decree passed in O.S.No.164 of 1981, but it was dismissed and restrained them from not alienating the suit schedule property. It clearly shows that Vellanki Srihari was in possession and enjoyment of the suit schedule property throughout his life time. When Krishnamurthy claiming suit schedule property and other properties, Feroz Khan filed O.S.No.31 of 1966 and during the pendency of the said suit, Feroz Khan entered into the agreement of sale with Vellanki 14 Srihari in the year 1967 and after delivery of the possession, execution of the registered sale deed, in the year 1967 impleaded him as plaintiff No.2 in the suit. The suit was renumbered as O.S.No.10 of 1967 and again renumbered as O.S.No.512 of 1973. The Feroz Khan and Vellanki Srihari gave complaint against Krishnamurthy on 30.06.1970 under Section 145 of Cr.P.C and they also amended suit for recovery of possession. The said suit was decreed in favour of Feroz Khan and Vellanki Srihari on 30.06.1976, against which Krishnamurthy preferred an appeal vide C.C.C.A.No.142 of 1976 and it was dismissed on 01.12.1985, but during the pendency of the appeal, Feroz Khan died and his legal heirs were brought on record. The Vellanki Srihari had filed O.S.No.164 of 1981 against the legal heirs of Feroz Khan and it was decreed, against which they preferred an appeal vide A.S.No.66 of 1984 and it was dismissed on 27.07.1984, against the said Order, Civil Revision Petition was preferred and the same was also dismissed on 11.12.1985. After the dismissal of appeal in C.C.C.A.No.142 of 1976, Feroz Khan and Vellanki Srihari filed E.P.No.8 of 1986 and took the delivery of possession.
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16. The Vellanki Srihari was in possession from 03.10.1969. He entered into agreement of sale with M/s.Nischint Constructions on 29.10.1993, as such the preliminary decree passed in O.S.No.471 of 1987 was not binding on the M/s.Nischint Constructions represented by Nivedita Reddy and it is fraudulent. In issue No.5 framed by the trial Court in O.S.No.471 of 1987, it was specifically opined by the Court that Vellanki Srihari was in possession and enjoyment of the property purchased by him through registered sale deed. Even in the appeal vide A.S.No.734 of 1991, the finding of the issue No.5 regarding possession of Srihari was not disturbed or reversed. Vellanki Srihari executed registered Will deed on 25.10.2012, in favour of Nivedita Reddy. In C.R.P.No.4219 of 2015, this Court observed that equities have to be worked out. As the findings given by the trial Court regarding possession of the Srihari was not disturbed, M/s.Nischint Constructions was in possession as agreement holder. So also, M/s.Treasure Island Resorts Pvt. Ltd. has no opportunity to contest the matter. Vellanki Srihari had also filed suit for injunction against the Chaitanya Bharathi Institute of Technology and it was numbered as O.S.NO.294 of 1991 and the same was decreed on 03.02.1997, restraining them not to interfere with his peaceful possession. The said Nivedita Reddy gave complaint before the 16 P.S.Narsingi and she was advised to approach the civil Court, as such filed suit for injunction. During the pendency of the injunction suit, interlocutory application was filed for temporary injunction. The trial Court considering the arguments of both sides, allowed the application for grant of temporary injunction. The Order dated 13.12.2017 granting Status-Quo was modified to that of temporary injunction in I.A.No.1733 of 2017 in O.S.No.1432 of 2017 dated 12.12.2022.
17. In the written submissions of appellants it is stated that all the five revisions and two appeals are offshoots of a partition suit vide O.S. No. 471 of 1987, on the file of learned Additional Senior Civil Judge, R.R. District. A preliminary decree was passed in the said suit on 29.10.1987 (by virtue of judgment and decree in A.S.No.732 of 1991 on the file of this court) which found it's finality in the Supreme Court. Subsequently, a final decree was also passed on 31.03.2018 which is a subject matter of A.S.No.113 of 2018 and A.S.No.120 of 2018 before the Court of learned I-Additional District Judge, R.R. District. While so, three suits bearing O.S.No.1432 of 2017, O.S.No.600 of 2018 and O.S. No 27 of 2020 were filed by the parties to the final decree proceedings. While O.S. No. 1432 of 2017 and O.S. No. 600 of 2018 was filed injunction, O.S. No. 27 of 2020 was filed 17 to declare the preliminary decree and also the final decree in O.S. No. 471 of 1987 as null and void and for other reliefs. For proper appreciation of the case, the facts and proceedings right form 1987 are relevant.
18. One Khadar Hussain Khan was the admitted owner of the land measuring an extent of Acs.29-24 gts in S.Nos.41, 42 and 43, situated at Kokapet village, Gandipet Madal, R.R.District. He died in the year 1943 leaving behind his sister Shahzadi Bee and two stepbrothers i.e., Firoz Khan and Khader Nawaz Khan. The Khader Nawaz Khan filed O.S.No.471 of 1987 on the file of the learned Additional Senior Civil Judge, R.R. District for declaration that he has 1/4th share in the said property left behind by Khadar Hussain Khan. By the time of filing of the said suit, both Feroz Khan and Shahzadi Bee died and their legal representatives were made as party to the suit. The legal representatives of Feroz Khan were impleaded as defendants No.l to 9 in the suit and the legal representatives of Shahzadi Bee were impleaded as defendants No.10 and 11 in the suit. One Srihari who was a purchaser of part of the suit schedule property was impleaded as defendant No.12 in the suit. The suit was contested by defendant No.12 stating that it was the absolute property of Feroz Khan and Feroz khan was in 18 exclusive possession of the property and thus he executed a registered sale deed dated 04.10.1969 to an extent of Acs.20-23 gts in his favour and also executed an agreement of sale dated 23.03.1973 to an extent of Acs.18-25 gts. On that, defendant No.12 filed a suit vide O.S. No. 150 of 1986 for specific performance of the said agreement of sale and the same was decreed and he took delivery of the same in E.P. 8 of 1986. Having pleaded so, defendant No.12 prayed for dismissal of the suit.
19. The suit vide O.S. No. 471 of 1987 was dismissed in a judgment and decree dated 16.10.1990, holding that Feroz Khan was in absolute possession of the suit schedule property. A perusal of the said judgment shows that defendant No.12 was examined as D.W.1 and marked Exs.B1 to B30. Ex.B5 is the sale deed executed by Feroz Khan in favour of defendant No.12 and the decree in O.S.No.150 of 1986 was marked as Ex. B21.
20. Questioning the judgment and decree dated 16.10.1990 passed in O.S.No.471 of 1987, Khader Nawaz Khan filed A.S.No.734 of 1991 before this Court and the same was allowed in Judgment and Decree dated 25.01.1996 holding that succession was granted in favour of Feroz khan, Khader Nawaz 19 Khan and Shahazadi Bee and mere mutation of name of Feroz khan in the revenue records does not affect the rights of other sharers and that all the sharers are in joint possession of the suit schedule property. It is also not a case of ouster and that the plaintiff is entitled to 1/4th share in the suit schedule property and for partition and separate possession of his 1/4th share. The suit vide O.S.No.471 of 1987 was also confirmed in L.P.A.No.72 of 1996. The Review C.M.P.No. 3830 of 1999 and LPA No.72 of 1996 filed by Srihari (D12) was allowed on 30.08.2001 directing the LPA to be heard afresh. Pending LPA, the plaintiff namely Khader Nawaz Khan died and his legal representatives came on record as plaintiffs 2 to 7. Questioning the order dated 30.08.2001 passed in Review C.M.P.No.3830 of 1999 and LPA No.72 of 1996, plaintiffs No.2 to 7 filed SLP No.22591 of 2001 and the same was allowed by the Hon'ble Supreme Court and consequently the Order in LPA.No. 72 of 1996 dated 29.12.1998 was restored. Thereupon, questioning the order in LPA No. 72 of 1996 dated 29.12.1998, defendant No.12 filed SLP No.2962 of 2003 and the same was dismissed by the Hon'ble Supreme Court by order dated 07.04.2003.
21. While so, ASMP No.11880 of 2004 was filed by defendants No.1 to 9 in the suit for declaring their ½ share in the suit 20 schedule property on the ground that there was no reference to their share in the preliminary decree. A Common order was passed on 21.04.2005 in ASMP No. 11880 of 2004 along with ASMP No.1098 and 1099 of 2005 amending the decree by allotting 1/4th share in the suit schedule property to defendants No.1 to 9 and ½ share to defendants No.10 and D11 while retaining 1/4th share to the plaintiffs. It is significant to note that in the said order no share was allotted to defendant No.12. Aggrieved by the said Common Order dated 21.04.2005, defendant No.12 carried the matter to Hon'ble Supreme Court by way of Civil Appeals No. 2352 - 2354 of 2008. During the Pendency of the appeals, defendant No.12 (Srihari) died and one Ch. Niveditha Reddy came on record as his legal representative by virtue of registered Will dated 25.10.2012, executed by defendant No.12 in her favour. Eventually SLP No. 2352-2354 of 2008 was dismissed by Order dated 16.09.2014 by the Hon'ble Supreme Court.
22. It is to be noted that after the dismissal of SLP 2352 - 2354 of 2008 on 16.09.2014 by the Hon'ble Supreme Court, Niveditha Reddy, M/s.Nischinth Constructions represented by Proprietix Niveditha Reddy and M/s. Treasure Island Resorts Pvt. Ltd represented by its Managing Director Niveditha Reddy 21 came on record as respondents No.14 to 16 in the final decree petition in I.A. No.507 of 2004. They contested final decree petition by opposing appointment of commissioner to divide the schedule property in accordance with the preliminary decree and questioned the order appointing the commissioner, by filing C.R.P.No.4215 of 2015 before this Court and the same was dismissed holding that Srihari (D12) contested the matter upto Supreme Court and the contentions raised by defendant No.12 were rejected and that the preliminary decree had become final. It was also held that the said Niveditha Reddy, M/s.Nischinth Constructions and M/s.Treasure Island Resorts Pvt. Ltd are only representatives of defendant No.12 and they are bound by preliminary decree. They again filed C.R.P.No.2796 of 2007 as their plea for cross examination of advocate commissioner was negatived by the trial court, but the same was also dismissed by order dated 18.01.2018. Subsequently, I.A. No.507 of 2004 was allowed by order dated 31.03.2018, where under final decree was passed in terms of preliminary decree. It is significant to note that defendant No.12 was not given any share in the final decree also. Questioning the final decree, Niveditha Reddy and M/s.Nischinth Constructions filed A.S. No.113 of 2018, whereas M/s.Treasure Island Resorts Pvt. Ltd filed A.S.No.120 of 2018. 22 Both the appeals are pending before the learned II-Additional District Judge, R.R.District.
23. While so, three fresh suits were filed by Niveditha Reddy, M/s.Nischinth Constructions and M/s.Treasure Island Resorts Pvt, Ltd. O.S. No.1432 of 2017 was filed before the learned II-Additional District Judge, R.R, District, by Niveditha Reddy and M/s.Nischinth Constructions against the decree holders in O.S.No.471 of 1987, by arraying them as defendants No.1 to 19. The suit was filed for perpetual injunction restraining defendants therein from interfering with plaintiffs' possession of the suit schedule property on the ground that Srihari (D12 in O.S.No.471 of 1987) executed agreement of sale dated 29.10.1993 in favour of M/s.Nischinth Constructions in respect of Acs.22- 13 gts in S.No.41/2 and 42/A of Kokapet village, that plaintiff No.1 is obliged to execute the registered sale deed in favour of plaintiff No.2 and that the defendants were threatening and interfering with their possession. By order dt.13.12.2017 an exparte Status quo order was granted in I.A.No.1733 of 2017 in the said suit.
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24. The suit vide O.S.No.600 of 2018 was filed by M/s.Treasure Island Resorts Pvt.Ltd in respect of Acs.18 - 25 gts in Sy.No.43 of Kokapet village on the ground that Srihari (D12 in O.S. No. 471 of 1987) executed six registered sale deeds during May, 2017 in favour of M/s.Treasure Island Resorts Pvt. Ltd and the defendants (decree holders in O.S. No. 471 of 1987) are interfering with its possession.
25. The suit vide O.S.No.27 of 2020 was filed by Ch. Niveditha Reddy, M/s.Nischinth Constructions and M/s.Treasure Island Resorts Pvt. Ltd to declare the preliminary decree and final decree in A.S.No.723 of 1991, as null and void and for other reliefs as against defendants No.23 to 26 (assignees from D10 and D11 in O.S. No. 471 of 1987). While so, several interlocutory applications were filed by the parties in these suits, against which several Civil Revision Petitions and Civil Miscellaneous Petitions are filed before this Court. For the sake of convenience, the details of the said applications are shown in a Tabular form as shown below:
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I.A.No. O.S.No. Parties Parties in Section Result C.R.P/C.M.A O.S.No.471 of law of 1987 188 of 1432 D.10 P.2 to P.7 Order 7 C.R.P.No.2559 2020 of to rule 11 of 2023 2017 D.15 930 of 1432 D.9 D.9 Order 7 C.R.P.No.2911 2022 of rule 11 of 2023 2017 Dismissed 1267 600 of D.9 to P.2 to P7 Order 7 by Order C.R.P.No.2529 of 2018 D.14 rule 11 dated of 2023 2022 12.12.2023 929 of 600 of D.8 D.9 Order 7 C.R.P.No.2916 2022 2018 rule 11 of 2023 928 of 27 of D.8 D.9 Order 7 C.R.P.No.2915 2022 2020 rule 11 of 2023 1733 1432 P1 & Lrs. of Order Allowed by C.M.A.Nos.112 of of P2 D12 39 rule Order and 136 of 2017 2017 1&2 dated 2023 12.12.2023
26. On perusal of entire facts of three plaints, it is apparent that the plaintiffs in O.S.No.1432 of 2018, O.S. No. 600 of 2018 and O.S. No.27 of 2020 are bound by the preliminary decree in A.S.No.734 of 1991 being allowed by this Court. It is significant to note that defendant No.12/Srihari in O.S.No.471 of 1987 contested the said appeal unsuccessfully and the said judgment in A.S.No.734 of 1991 was confirmed in LPA No.72 of 1996 and 25 also by the Hon'ble Supreme Court. Subsequently, preliminary decree was amended by order dated 21.04.2015 and against the said order, defendant No.12 carried the matter to Supreme Court and during the pendency of the said appeal, Srihari died and Niveditha Reddy came on record by virtue of registered Will dated 25.10.2012 executed by defendant No.12, thus Niveditha Reddy is precluded from questioning the amended preliminary decree in any manner. Likewise, Nischinth Constructions which is based on the agreement of sale dated 19.10.1993 executed by defendant No.12 has no claim as defendant No.12 contested the A.S.No.734 of 1991 and suffered preliminary decree which was became final before the Hon'ble Supreme Court. Treasure Island Resorts Pvt.Ltd got registered sale deed in its favour only during May, 2000, by which time the preliminary decree was already passed in spite of contest by defendant No.12.
27. It is significant to note that Niveditha Reddy, M/s.Nischinth Constructions and M/s.Treasure Island Resorts Pvt. Ltd have already filed A.S.No.113 of 2018 and A.S.No.120 of 2018 before the learned II-Additional District Judge, R.R.District, questioning the final decree dated 31.03.2018 passed in 1.A. No. 507 of 2004 by the learned Senior Civil 26 Judge, R.R. District and it is for them to work out their rights, if any, in the said appeal and not by way of separate suits.
28. In the light of the specific finding in A.S. No.734 of 1991 to the effect that all the sharers are in joint possession and the preliminary decree having become final before the Hon'ble Supreme Court, it is not open to either Niveditha Reddy or M/s.Nischinth Constructions or to the M/s.Treasure Island Resorts Pvt. Ltd to file independent suits either for injunction or for declaration of the preliminary decree and final decree in O.S. No.471 of 1987 as null and void. The facts clearly discloses that Niveditha Reddy, M/s.Nischinth Constructions and M/s.Treasure Island Resorts Pvt. Ltd have no right to sue as they are bound by the preliminary decree in O.S.No.471 of 1987 and having filed appeals against final decree, no suit for such reliefs as prayed for either for injunction or for declaration that decree in O.S. No.471 of 1987 as null and void are maintainable.
29. The Hon'ble Supreme Court in the case of Dahiben Vs.Arvindbhai Kalyanji Bhanusali, 1 held that the test for exercising the power under Order 7 Rule 11 is to examine the 1 2020 (7) SCC 366 27 averments in the plaint in entirety in conjunction with the documents rolled upon and consider whether the same would result in any decree to be passed. On a perusal of the averments in the three suits, there is no possibility of the suits being decreed, apart from the fact that they are not maintainable. Further, any reliefs in these suits will be in conflict with the preliminary decree which attained finality in O.S.No.471 of 1987 and also final decree which is in appeal before the 1st appellate court. The object of suits is clearly to obstruct the further hearing of the two appeals against the final decree. As further held in 2020 (7) SCC 366, a meaningful reading of the plaint shows that the suits are manifestly vexatious and they does not disclose any right to sue. As held in the said judgment as illusion of cause of action is set up in the plaints and such plaints are to be nipped at bud stage. The conduct of the plaintiffs in all the three suits shows that it is a gross abuse of the process of the Court.
30. The learned Counsel for the appellant in C.M.A.No.136 of 2023 stated that Khader Ali Khan is the legal heir of Feroz Khan and allotted 1/4th share through preliminary Decree as well as Final decree and Ch.Nivedita Reddy, neither having any share in the preliminary decree as well as the final decree, filed 28 injunction suit and other suits, without having any right, entitlement and possession. This Court as well as the Hon'ble Supreme Court of India gave a finding against her stating that she is not entitled to claim any share or right over the property and the sale deeds on which she relied upon through Feroz Khan is not the legal document and its title is the hostile title, as such no Court has given liberty to claim equity. The Court has recognized the joint possession of the Decree holder and thus partition suit was decreed and final decree was also passed, again claiming the possession by her is nothing but abuse of process of Law. In CRP.No.2796 of 2017, filed by her against the Advocate Commissioner, this Court at Page No.8, Line No. 11 clearly stated that "Suit for partition and made developments during the pendency of proceedings at their own perile, since they are purchasers inturn from purchaser, they are not even entitled for any equities. She has set up a claim that she purchased the property from one Srihari, who is the party to all the proceedings upto SLP, but the Hon'ble Courts not recognized her rights, as such again claiming rights through Srihari does not arise.
31. He further stated that in A.S.No.734/1991, the Court has granted preliminary decree and clarified at Page No.9 that 29 Srihari is not having any right and his title is not a valid title. Against that LPA and SLP were filed and the same were dismissed, the findings given by the 1st appellate Court reached finality, again after gap of 30 years raising the same facts and grounds is vexatious and meritless. She has set up a defense and ground that at least to give the share of Feroz Khan, the Court has refused her defense and no liberty was given to claim equity. The Full Bench of the Hon'ble High Court of Andhra Pradesh, in the case of Eede Chinna Gunnalam and others Vs.Palakurthi Venkatram, 2 held that alienee against alienee is not entitled to claim any equity. In A.S.No.734/1991, preliminary decree was passed and the Hon'ble Court framed the issues. The Sale Deed and possession of Defendant No.12 (Srihari) was examined and gave a finding that Srihari was not having any right or entitlement over the property, once the vendor of Ch.Nivedita Reddy, do not have any right, how can the purchaser claim the right and entitlement over the property. If she is a stranger to preliminary decree and final decree, how can she claim any right over the suit schedule property. When she has filed the first appeal against the final decree proceedings and prosecuting the same, again filing the present suit is against the due process of law. She cannot ask the Court 2 AIR 1959 AP 526 30 to amend the preliminary decree which was passed by this Court in the year 1991. Since 1987 the alleged vendor of Niveditha Reddy is the party in O.S.No.471/1987 and also the party in SLP and she along with M/s.Nischint Constructions Pvt. Ltd. is also the parties to SLP, as such they are having knowledge since 1987 and thus how can they file a suit in the year 2017 and the suit filed by them is clearly barred by limitation. In ASMP.No.1098 and 1099 of 2015, Khader Ali Khan filed an application to amend the preliminary decree and to allot the share as per the Judgment passed in A.S.No.734/1991, whereas the Court has rejected the claim of Srihari and not allotted any equity and uphold the Feroz Khan's share and possession.
C.R.P.No.2915 of 2023:
32. It is the settled law that for deciding an application under Order 7 rule 11 of the CPC, the Court has to only consider the allegations in the plaint and the documents filed. Order 7 Rule 11 of the Code of Civil Procedure, 1908 states as follows:
"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 31 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; (e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions of rule 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 refusal to extend such time would cause grave injustice to the plaintiff."
33. The Hon'ble Supreme Court in the case of Bhau Ram v. Janak Singh 3 has reiterated that for deciding an application under Order VII Rule 11 of the CPC, which reads as follows:
"15. The law has been settled by this Court in various decisions that while considering an application under Order VII Rule 11 CPC, the Court has to examine the averments in the plaint and the pleas taken by the defendants in its written statements would be irrelevant. [vide C. Natrajan vs. Ashim Bai and Another, (2007) 14 SCC 183, Ram Prakash Gupta vs. Rajiv Kumar Gupta and Others, (2007) 10 SCC 59, Hardesh Ores (P) Ltd. vs. Hede and Company, (2007) 5 SCC 614, Mayar (H.K.) Ltd. and Others vs. Owners & Parties, Vessel M.V. Fortune Express and others, (2006) 3 SCC 100, Sopan Sukhdeo Sable and Others vs. Assistant Charity Commissioner and Others, (2004) 3 SCC 137, Saleem Bhai and Others vs. State of Maharashtra and Others, (2003) 1 SCC 557]. The above view has been once again reiterated in the recent decision of this Court in The Church of Christ Charitable Trust & Educational Charitable Society, represented by its Chairman vs. M/s Ponniamman Educational Trust represented by its Chairperson/Managing Trustee, 2012 (6) JT 149."
34. In O.S. No.27 of 2020, which is a suit for declaration filed by Ch.Nivedita Reddy, M/s.Nischint Constructions Pvt. Ltd., and M/s.Treasure Island Resorts Pvt. Ltd., the plaint consists of 68 paragraphs of pleadings and 145 documents have been filed 3 (2012) 8 SCC 701 32 along with the plaint. The trial Court has extensively considered all the facts pleaded by them in the plaints as well as the grounds raised by the Khader Ali Khan for rejection of the plaint in paragraphs 5 to 14 of the Order mainly bringing out the fact that the plaint discloses disputes with regard to property bearing Acs.23-09 gts, in Sy No. 41/1, 41/2 and 42AA, as well as a further extent of Acs.17-35 gts in Sy. No.43 located in Kokapet. They claim to be in physical possession of the above properties, which they have been enjoying in their own right which is confirmed by the revenue records, which have been mutated in their names. The plaint also discloses prior litigation between the parties. Thus, there is more than adequate material shown in the plaint which discloses more than a triable issue which can only be decided after a trial.
35. The plaint in O.S.No.27 of 2020, narrates events starting from the Agreement of Sale dated 13.07.1967, much prior to the suit filed in O.S.No.471 of 1987. The averments in the plaint in Paragraph No.2 to 13 shows that respondents are claiming rights on the suit schedule property much prior to the partition suit, and the same has to be decided during trial. There are clear averments in paragraphs No.58 to 62 of the plaint which shows that the respondents are claiming title by adverse 33 possession, which has also to be decided after trial. Thus, the plaint clearly discloses the cause of action and the number of issues to be decided only in a full-fledged trial. The Hon'ble Supreme Court in Mayar (H.K) Ltd. and others Vs. Owners and parties, Vessel MV Fortune Express and others, 4 held that a plaint cannot be rejected on the basis of the allegations made in the written statement. It reads as follows:
"It is apparent that the plaint cannot be rejected on the basis of the allegations made by the defendant in his written statement or in an application for rejection of the plaint. The Court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if it does, then the plaint cannot be rejected by the Court exercising the powers under Order 7 rule 11 of the Code."
36. The question of res judicata is a mixed question of law and fact, for which the trial Court has to examine the issue after evidence. The petitioner is attempting to set up the case of res judicata which cannot be a ground for rejection of plaint. The High Court of Andhra Pradesh in the case of Syed Ali Vs. Syed Noor Mohammad, 5 held as follows:
"The principle of res judicata cannot be pressed into service for rejection of the plaint. The reasons are more than one. Firstly, the question as to whether the issue that is framed in a subsequent suit is the same, as or substantially similar to the one that fell for consideration in an earlier suit, and whether the parties 4 (2006) 3 SCC 100 5 CDJ 2013 APHC 558 34 are one and the same, is a question of fact, which can be determined only on evidence and the principle of law gets attracted depending upon the answer on facts. In that view of the matter, it is a mixed question of fact and law.
It may be that the volume of evidence could determine such question may be relatively small. All the same, the evidence as such, must be adduced to prove the contention...
...Order 7 rule 11 C.P.C, which has the effect of denying or barring access to the plaintiff to a civil Court, must be interpreted strictly. Any doubt, or second opinion, in this behalf, needs to be extended to the plaintiff, so that, the power of the Civil Court to decide the suits remains intact. On general principles also, the right or competence of civil Court is almost taken for grant that an aggrieved individual can seek redressal from a civil Court, unless the suit is specifically barred. Once res judicata is not included as ground in Order 7 rule 11 of C.P.C, it cannot be added, nor can the relief under the provision be extended through implication."
37. For a plaint to be rejected under Order 7 rule 11 (d) as being barred by law for the matter being barred by res judicata, the parties in the previous suit and the subsequent one ought to be the same. Furthermore, the reliefs claimed in both the suits ought to be the same and the said order shall have attained finality. In the presence case, the parties are not same and the same issue was not adjudicated upon. The Hon'ble Apex Court in the case of Srihari Hanumandas Totala Vs. Hemant Vithal Kamat and others, 6 in which it was held as follows: 6
(2021) 9 SCC 99 35 To determine whether a suit is barred by res judicata, it is necessary that (i) the "previous suit" is decided, (ii) the issues in the subsequent suit were directly and substantially in issue in the former suit; (iii) the former suit was between the same parties or parties through whom they claim, litigating under the same title; and (iv) that these issues were adjudicated and finally decided by a court competent to try the subsequent suit.
Since an adjudication of the plea of res judicata requires consideration of the pleadings, issues and decision in the "previous suit", such a plea will be beyond the scope of Order 7 rule 11 (d), where only the statements in the plaint will have to be perused."
And in the case of Keshav Sood Vs. Kirti Pradeep Sood and others, it was held as follows:
"As far as scope of rule 11 of Order VII of CPC is concerned, the law is well settled. The Court can look into only the averments made in the plaint and at the highest, documents produced along with the plaint. The defence of a defendant and documents relied upon by him cannot be looked into while deciding such application.
The issue of res judicata could not have been decided on an application under rule 11 of Order VII of CPC. The reason is that the adjudication on the issue involves consideration of the pleadings in the earlier suit, the Judgment of the trial Court and the Judgment of the appellate Courts."
38. The trial Court has considered all the facts and has given a finding in Para Nos. 24 to 29 as follows:
"24. Keeping the above legal position in view, I have carefully analysed the plaint averments. The specific case of the plaintiff is that Late Sri Hari (D-12 in OS No 471/1987), has purchased the property from Feroz Khan under an agreement of sale and that later obtained decree of specific performance and that he 36 got the document regularised under Sec. 5A of the ROR Act, 1971 indicates that he was claiming absolute title. However, if the other facts on record are considered, no doubt in the earlier suit OS 471/1987 it was held that Feroz Khan has only some share in the property whereas his brothers and sister are having some other shares. It is thus clear, in a worst case also, at least the plaintiff can claim the share pertaining to Feroz Khan, because, admittedly, the LRs of Feroz Khan or other Co- heirs have never asked for cancellation/setting aside the sale entered into by Feroz Khan with Sri Hari. Therefore, as per plaint averments, the plaintiff has pleaded his right to sue which in other perspective can be regarded as possessing a cause of action to file the suit.
25. Even on the own showing of the Petitioners, in the Appeal before High Court, the finding was that Feroz Khan, and his Co- sharers are in joint possession of the property and there was no evidence of ouster from joint possession. If Feroz Khan is declared in the earlier suit as having been in joint possession, that joint possession will ensure to the plaintiff herein being the alienee of Sri Hari who got the property from Feroz Khan. It is no where stated by the Petitioners/ defendants that Feroz Khan was dispossessed at any point of time. Keeping those undisputed facts in mind, this court is of the view that averments in the plaint involves a detailed trial.
26. Res-Judicata, one of the grounds taken by the petitioners to reject the plaint, in their affidavit filed in support of one of the applications, is a question for which an issue has to be framed; pleadings and issues as well, the; decision/decree in the earlier suit should be marked in the evidence in this suit and the Court has to compare, consider and appreciate the findings in order to record a finding that the present suit is barred by res judicata. The Hon'ble Apex Court in Sathyanath vs Sarojamani (2022) 7 SCC 644 observed that the question of res judicata cannot be heard as preliminary issue as it requires recording of evidence in relation to pleadings in the previous suit etc. In Bhargavi Constructions & an vs. Kotha Kapu Muthyam Reddy & ors (2018) 13 SCC 480 the Hon'ble Supreme Court held that the expression 'law' occurring in Cl. (d) of Or. 7 Rule 11 do include the judicial decisions. In that view of the matter, the Learned Counsel for the Petitioners would contend that the earlier judgements bar the present suit 'by law' under cl. (d) of Rule 11 and so, plaint shall be rejected on the ground of res judicata. The Learned Counsel for the petitioners placed reliance upon the following judgements to support the contention that the doctrine of res judicata and the ground of limitation would fall within the meaning of expression 'suit barred by any law' used in Or. VII Rule 11 of the Code. In Palitina Sugar Mills (P) 37 Limited and another vs. State of Gujarat & Ors (2004) 12 SCC 645, it is held that the judgements of Supreme Court are binding precedents under Art. 142 of Constitution of India; In Raghawendra Sharan Singh vs. Ramprasanna Singh by his LRs (2020) 16 SCC 601, it is held by the Hon'ble Apex Court that where the plaint itself shows that the suit is filed 22 years after the gift deed, the suit is patently barred by limitation and plaint can be rejected. However, the said judgement, on facts cannot be applied to the - case on hand. As per the plaint averments, the respondent/Plaintiff is contending that he is in possession of the schedule property inspite of the earlier judgements and it is a disputed question whether the plaintiff can be shown to have been in possession of at least that share of Feroz Khan which fact has to be decided on trial. Evidently, where the limitation is a pure question of law, it can be taken in aid of rejecting the plaint and not where it is either a pure question of fact or mixed question of fact and law. On this analogy, this court finds that the other decisions relied upon by the petitioners in Dr. Buddhikota Subba Rao vs. K. Parasaran and Ors (1996) 5 SCC 530, Sh. Kuldeep Singh vs. Banarasi Das (2015) SCC Online Del 11793 are not applicable.
27. The Learned Counsel while relying upon Asgar & Ors vs. Mohan Verma and others (2020) 16 SCC 230; Patasibai & Ors vs. Ratan Lal (1990) 2 SCC 42, argued vehemently that the principle of res judicata is intended to multiply the causes of action and a cause of action in filing subsequent suit is treated by the courts as an abuse of process. There is no dispute about the proposition of law declared in those judgements, but the question is about their application to the facts of the case on hand. Further, the Learned Counsel cited ITC Ltd vs. Debts Recovery Appellate Tribunal & Ors 1998 (2) SCC 70 to contend that the court is required to examine whether a real cause of action has been set out in the plaint or something purely illusory with a view to get of Order VII Rule 11 of the Code and that clever drafting creating illusions of cause of action are not permitted in law and a clear right to sue should be shown in the plaint. A reading of order VII Rule 11 will show that neither suppression of fact nor misrepresentation nor even fraud have been made grounds for rejection of plaint. Even, the rule does not include abuse of process of court as a ground for rejection of plaint. Clauses A and D which deal with the absence of discloses of cause of action and suit appearing from the statement to be barred by any law. Whether the plaint discloses a cause of action for the suit or not, has got to be decided only based on the averments made in the plaint and the documents produced along with it. The court while dealing with an application under Order VIl Rule 11 cannot go into the 38 question whether cause of action alleged in the plaint is true or false and take a decision based on the plea taken by the defendant or based on the documents produced by the defendant.
28. However, the above rule is seldom applicable to the instant case. A bare perusal of the petition does not demonstrate how Mr. Feroz Khan has no right to sell his undivided share in the property. Whatever the result of the earlier litigation, it is prima facie seen that being purchaser of undivided share, at the worst, the plaintiff is entitled to equities to be worked out in his favour, by application of principles of Partition Act. No where in the petition it is shown that the right of seeking equities by the plaintiff is rejected by the courts in the earlier litigation. Various other citations (Ram Prakash Gupta vs. Rajeev Kumar Gupta & Ors 2006 (89) DRJ 494 (DB); Lakshmi & Ors vs. Manickam 2017 SCC Online (Mad) 13583; Md. Noorul Hoda vs. B.B. Raifunnisa & Ors (1996) 7 SCC 767, Illoth Valappil Ambunhi (dead) by LRs vs. Kunhambu Karnavan (2020) 18 SCC 317, are also quoted by the learned counsel for the petitioners to the sameeffect.
29. In the light of the above discussion I am of inescapable opinion and irresistible conclusion that; i). The questions of limitation, res judicata are mixed questions of law and fact, as per the plaint averments and therefore, the said grounds cannot be taken to reject the plaint under Or. VII Rule 11 (a) of the Code; ii). The argument that a true cause of action is absent in the plaint and institution of the suit is gross abuse of process of law is repelled because, the plaint in so many parts, has disclosing cause of action; the question whether or not such cause of action is sufficient or it is true cannot be gone into at this stage because, there is large amount of material to be examined by the court in a full-fledged trial of the suit and such complex questions cannot be decided in a summary, enquiry under Order VII Rule 11 CPC. Accordingly, the applications For rejection of plaint are liable for dismissal."
39. This Court has reproduced the findings of the trial Court only to show that trial Court has applied its mind fully to the facts in issue to dismiss the applications. This Court finds that Khader Ali Khan has not made out any grounds for rejection of 39 the plaint and filed vague affidavits without disclosing any substantial point of law for the court to exercise its power under Order 7 rule 11 of the CPC. Thus, the trial Courts Order dated 12.12.2022, cannot be faulted and no grounds are made out for interference with the same even on merits. The power of this Court under Article 227 is very limited and should be exercised with extreme caution. The Hon'ble Supreme Court in Estralla Rubber Vs. Dass Estate (Pvt.) Ltd, 7 held that the power of the High Court under Article 227 is very limited and the High Court can only interfere with the Trial Court's Order in cases where there has been a patent perversity in the orders of tribunals and Courts subordinate to it; or there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. And also, in the case of Kamala & Ors. vs K. T. Eshwara SA & Ors. 8 it has categorically held that the question of res judicata being a matter of fact and law cannot be gone into in a petition under Order VII Rule 11. The plaint and the documents filed in all the above proceedings clearly disclose more than a triable issue and the same cannot be summarily rejected without a full-fledged trial.
7 (2001) 8 SCC 97 8 (2008) 12 SCC 66 40
40. For all the above reasons, this Court finds no reason to interfere with the Order of the trial Court dated 12.12.2022 passed in I.A.No.928 of 2022 in O.S.No.27 of 2020, and as such C.R.P.No.2915 of 2023 is liable to be dismissed. Consequently, the connected C.R.Ps. being C.R.P.Nos.2529, 2559, 2911 and 2916 of 2023 are also liable to be dismissed.
41. Regarding C.M.A.Nos112 and 136 of 2023, respondents therein i.e., Ch.Niveditha Reddy, M/s.Nischint Constructions Pvt. Ltd., and M/s.Treasure Island Resorts Pvt. Ltd., filed suit vide O.S. No.1432 of 2017, against the defendants therein for perpetual injunction along with the application vide I.A.No.1733 of 2017, for interim injunction and the same was allowed by the Trial Court vide Order dated 12.12.2022. Perused of the Order shows that Ch.Nivedita Reddy and M/s.Nischint Constructions have clearly stated that they have become owners of the suit schedule property and are in physical possession of the same. They have marked Exhibits P1- P82, whereas the respondents therein have marked Exhibits R1 -R23. They have also produced revenue records/court orders, all of which show that they are in physical possession of the suit schedule property whereas no material has been produced by the defendants/respondents therein to show how they are in physical possession of the 41 same. The various proceedings relied upon by the defendants/respondents therein do not show that they are in physical possession of the suit schedule property.
42. The trial Court has extensively gone through the pleadings, and having looked into the material on record found that the Ch.Nivedita Reddy and M/s.Nischint Constructions are in physical possession of the suit schedule property and also held that the balance of convenience was in their favour and irreparable loss and injury would be caused to the them if an injunction was not granted. Therefore, this Court finds no illegality or infirmity in the Order of the trial Court as their rights require to be protected during the pendency of the suit.
43. In the result, both the Civil Miscellaneous Appeals and all the Civil Revision Petitions are dismissed, confirming the Orders of the trial Court. There shall be no order as to costs.
Miscellaneous petitions pending, if any, shall stand closed.
_________________________ JUSTICE P.SREE SUDHA DATE: 08.08.2024 tri