Telangana High Court
Chittimilla Hariprasad vs Sri Nuthana Vyshya Patashala And ... on 10 July, 2024
Author: P. Sree Sudha
Bench: P.Sree Sudha
THE HONOURABLE SMT. JUSTICE P.SREE SUDHA
CIVIL REVISION PETITION No. 187 of 2024
ORDER:
This Civil Revision Petition is filed aggrieved by the order, dated 17.11.2023, passed in I.A.No.93 of 2023 in O.S.No.4 of 2022 by the learned Senior Civil Judge, Nizamabad.
2. O.S.No.4 of 2022 is filed by respondents No.1 and 2/plaintiffs for possession and perpetual injunction against the petitioners/defendants. During the pendency of the Suit, the petitioners herein filed I.A.No.93 of 2023 for rejection of the plaint. The trial Court dismissed the application. Aggrieved by the order of the trial Court, the petitioners herein filed the present Civil Revision Petition.
3. Heard both sides. Perused the record.
4. Learned counsel for petitioners contended that the documents referred in the plaint does not disclose any new cause of action or identity of total land Ac.4.22 guntas purchased by any registered sale deeds in their name nor paid single paisa as sale consideration from their accounts and the respondents No.1 and 2/plaintiffs are not in possession of the 2 said land from 07.08.1992 to till date. The rejection of the plaint filed in O.S.No.5 of 2015 was allowed but the plaint in O.S.No.4 of 2022 was cleverly drafted inspite of no cause of action. The conduct of respondents No.1 and 2/plaintiffs in brining a vexations Suit is abuse of process of law. He further contended that the Suit is hit by Resjudicata and also principle of Estoppel. Therefore, requested the Court to set aside the order of the trial Court.
5. A perusal of the record shows that O.S.No.4 of 2022 is filed by Sri Nuthana Vyshya Patashala and Chitimilla Hari Prasad Vyshya Junior College Committee, registered as Sri Nuthana Vyshya Patashala Committee under the provisions of the Hyderabad Public Societies Registration Act, 1350 Fasli with registration No.34 of 1958-59 represented by its President and General Secretary/respondent No.1 and Arya Vyshya Sangham, Nizamabad, a society registered under the provisions of A.P. (Telangana Area) Public Societies Registration Act, with registration No.633 of 1977, represented by its president and General Secretary/respondent No.2 against the petitioners herein and respondents No.3 and 4. The suit is filed for possession and mandatory and perpetual injunction. 3 Respondent No.2/plaintiff No.2 was established on 05.08.1944 and respondent No.2 established a Committee christened as Sri Nuthana Vyshya Patashala Committee on 04.12.1944. Respondent No.2 at a general body meeting held o 16.06.1957 adopted the bye laws of Sri Nuthana Vyshya Patashala Committee and got it registered as a Society on 13.07.198 with registration No.34 of 1958-1959 under the provisions of Hyderabad Societies Registration Act, 1350 Fasli.
6. Initially, Upper Middle School was established and later intended to upgrade it as High School. When an appeal was made for the donors Mr.Gajawada Pandarinath Gupta, S/o.Manikyam Gupta donated land to an extent of 2400 square yards through a Gift Deed dated 21.05.1959, registered as document No.580 of 1959. Sri Nuthana Vyshya Patashala Committee purchased 800 square yards from Mr. Gajawada Pandarinath Gupta and he sold the land at a nominal price of Rs.1500/-. On 10.03.1991, Sri Nuthana Vyshya Patashala Committee (hereinafter referred as SNVP Committee) decided to establish either a junior college or a college for vocational courses from the academic year 1991-92 onwards and a committee was formed and another sub-committee for 4 donations was also formed. It was decided that the President and Secretary of SNVP Committee shall compulsorily be the members of the sub-committees. The SNVP Committee resolved to commence the junior college from the academic year 1991-92 onwards and further resolved to submit the necessary papers and documents to the Board of Intermediate Education and complete other formalities. On 12.05.1991, a meeting was held and announced that the class rooms of the junior college to be constructed would be named after that donor who gives a donation of Rs.25,551/-.
7. On 20.05.1991, Chitimilla Hari Prasad/petitioner No.1 promised to donate Rs.2,11,116/- for naming the proposed Vyshya Junior College after him as "CHITIMILLA HARI PRASAD VYSHYA JUNIOR COLLEGE". Mr.Goli Rangaiah gari Vishwanatham promised to donate Rs.1,11,111/- for naming the proposed college building as "GOLI VISHWANATHAM BHAVANAM". From then onwards, the Sub-Committee meetings are conducted in the name of Chitimilla Hari Prasad Vyshya Junior College Committee with effect from 11.06.1991 and the collection of donations was started from 20.05.1991 and the college commenced functioned with effect from 5 18.07.1991. SNVP is an aided school getting the Government aid whereas the Chitimilla Hari Prasad Vyshya Junior College is an unaided private junior college. The Board of Intermediate Education permitted the SNVP Committee to run the junior college under the name and style Chitimilla Hari Prasad Vyshya Junior College. The SNVP Committee has been running two educational institutions, one aided school and the other unaided private junior college.
8. The Board of Intermediate Education granted permission to the SNVP Committee to run the junior college under the name and style 'Chitimilla Hari Prasad Vyshya Junior College' (herein after referred as CHPV Junior College) vide proceeding R.C.No.120/E3-2/1991 and recognized vide proceeding No.RC.No.996/JC9-2/94-1. The Board allotted code No.16031 to the junior college. On 01.01.1992, the sub-committee of the SNVP Committee decided to buy the land comprised in Sy.nos.7 and 8 of Borgaon (P) village Shivar and the land comprised in Sy.No.411 of Pangra (B) Shivar and as sum of Rs.11,000/- was paid as advance. The three pieces of lands although comprised in three survey numbers and located in two village shivars on the spot they are contiguous with one another in one compact 6 block adjoining Nizamabad-Hyderabad Road and thus the land was selected. The last payment of sale consideration was on 01.07.1992 and the sale deed was registered on 07.08.1992. The sale consideration was shown at Rs.1,82,000/- and the actual sum of money paid to the sellers by plaintiff No.1 for the purchase of land was Rs.6,24,000/- in addition to Rs.28,680/- paid towards the stamp duty and other charges. The sale deed dated 07.08.1992 was registered as document No.3048 of 1992. In the sale deed, the Southern Boundary was mistakenly shown as Public Road instead of Northern Boundary. Since the Government never insisted that a separate Society is to be formed and registered for the exclusive purpose of running the CHPV Junior College, the idea of formation and registration of a separate society for the CHPV College was dropped.
9. Respondent No.2/plaintiff No.2, floated ancillary organs to conduct various activities and elections were conducted to the seven ancillary organs for every two years and the seven ancillary organs are as follows:
1. Sri Kanyaka Parameshwari Devalaya Committee.
2. Sri Nageshwara Devalaya Committee. 7
3. Vyshya Bhavan Committee.
4. Arya Vyshya Mahila Mandali.
5. Sri Nuthana Vyshya Patashala-Chitimilla Hari Prasad Vyshya Junior College Committee.
6. Arya Vyshya Officials and Graduates Association.
7. Arya Vyshya Yuvajana Sangham.
10. Though CHPV Junior College Committee has been working since 1991, it never claimed to be a separate entity nor as another ancillary organ of the plaintiff No.2. Plaintiff No.2 never recognized it as a separate Committee. In fact, it was treated as part and parcel of the SNVP Committee. This fact is within the knowledge of the first defendant/petitioner No.1. Petitioner No.1/defendant No.1, as the general Secretary of plaintiff No.2 once conducted elections to the SNVP and CHPVJC Committee. The CHPVJC Committee is part and parcel of SNVP Committee. The original document of the land through which the land is purchased is in the name of the CHPVJC Committee and all the registers of the college and the School are in the custody of the SNVP-CHPVJC Committee. In the letter heads of the CHPV Junior College, the society's registration number was shown as '34'. The invitation cards 8 were in the name of SNVP Committee. A Souvenir was brought out on the occasion of the Golden Jubilee Celebrations by the plaintiff No.2 and the SNVP Committee in 1994. The CHPV Junior College, an offshoot sub-committee of SNVP Committee sold 15 guntas of land comprised in Sy.Nos.411 of Pangra (B) shivar and Sy.Nos.7 and 8 of Borgaon (P) shivar to defendant No.2 vide registered sale deed No.3320 of 1995.
11. Defendant No.2 executed a sale deed in favour of defendant Nos. 6 and 7 showing that he sold a land to an extent of 800 Sq.yards in Sy.No.411 and he also sold 21 guntas in Sy.No.411 to defendant No.5. Defendant No.1 sold 20.75 guntas in Sy.Nos.7 and 8 to one M.Shravan Kumar and the said Shravan Kumar sold 25 guntas to defendants No.3 and 4 together. On 03.10.2014, when the president of plaintiff No.1 and the General Secretary of plaintiff No.2 were clearing the land of the thorny bushes with the help of bulldozer, defendant No.1 appeared at the spot and threatened them of dire consequences. A complaint was registered by plaintiff No.1 before the 4th Town Police Station, Nizamabad for the offences punishable under Section 447 and 506 IPC and issued FIR against defendant No.1.
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12. Respondent No.1/Plaintiff No.1 filed a suit for partition in O.S.No.5 of 2015, and it was rejected on 25.10.2021 observing that all the documents which are the basis for suit claim were not enclosed to the plaint and that the sale deed No.3048 of 1992 does not show the name of SNVP Committee as the purchaser and holding that the plaint does not disclose cause of action. Respondents No.1 and 2/plaintiffs No.1 and 2 filed the suit in O.S.No.4 of 2022 for possession and for restoration of possession of the land from defendant Nos.1 to 7 and also to issue a mandatory injunction against defendant Nos.1 to 7 directing them to remove the compound wall and to issue a perpetual injunction restraining the defendants from interfering with the possession of plaintiff No.1
13. Defendant No.1 in the Suit filed an application under Order 7 Rule11 for rejection of the plaint and also relied upon several citations. He stated that respondents No.1 and 2 filed the Suit without obtaining permission from the Court in O.S.No.5 of 2015 for the same cause of action and thus the Suit is not maintainable. Respondent No.1/Plaintiff No.1 filed suit for partition and separate possession vide O.S.No.5 of 2015 claiming share of Ac.3.12 guntas along with two I.A.Nos.240 10 and 241 of 2015 and the I.As were dismissed on 07.01.2016 and against the same, The SNVP filed CMA Nos.449 and 990 of 2016 but they were withdrawn and thus on withdrawal of CMAs, the common order in I.A.Nos.240 and 241 of 2015 stood confirmed and became final and binding on plaintiffs. Defendants No.1 to 6 filed I.A.No.351 of 2019 in O.S.No.5 of 2015 for rejection of the plaint in O.S.No.5 of 2015 and the same was allowed on 25.10.2021 and thus O.S.No.4 of 2022 is hit by law of Res judicata and Estoppel. The Suit is barred by limitation under Articles 56 to 59, 64, 65, 110 and 113. The Suit is bad and plaint is liable to be rejected on the ground for non-joinder mis-joinder of necessary parties. A detailed counter was filed by respondents No.1 and 2/plaintiffs. The trial Court considering the arguments of both sides and relying upon citations referred by both sides dismissed the application.
14. The main contention of the petitioners herein is as per Section 2 (2) of CPC if a petition U/o.7 R.11 CPC is allowed then appeal lies otherwise Revision alone lies as affirmed by Apex Court in:
2023 SCC Online 521 (2022) 12 SCC 641=2021 (6) ALD 221 (SC) 11 2022 (6) ALD 109 (SC) para 1,7,8 = 2022 SCC online SC 133 (2020) 7 SCC 366 (2020) 16 SCC 601 594 (2012) 8 SCC 706 (1994) 6 SCC 322 (1977) 4 SCC 467 In this case the application under Order 7 Rule 11 was dismissed, as such the CRP is maintainable.
15. Learned counsel for respondents relied upon a decision made by this Court in Malugu Ram Reddy and Others Vs. Malugu Vittal Reddy and Others 1 in which it was held as under:
On the true construction of Sections 2 (2), 2 (9), 2 (14) and Sections 96, 104 and 105 of the CPC, the conclusion is irresistible that a judgment rejecting a plaint is "decree" and is appealable under Section 96. A miscellaneous appeal against an Order rejecting the plaint would not lie. There is a much consensus of judicial opinion that supports this conclusion. A plaintiff, who is aggrieved by rejection of the plaint for any of the reasons as contemplated under Order VV Rule 112 (a) to (f), is entitled to file a regular appeal under Section 96, and a miscellaneous appeal under Section 104 read with Order XLIII Rule 1 is barred. 1 2011 () ALD 522 (FB) 12
16. Learned counsel for petitioners mainly contended that their application under Order 7 Rule 11 was dismissed before the trial Court as such Civil Revision Petition is maintainable and if at all allowed then appeal lies under Section 96 of C.P.C. In the present case, application filed for rejection of the plaint was dismissed by the trial Court as such the C.R.P is maintainable.
17. It is a known fact that for deciding the application under Order 7 Rule 11, the contents of the plaint are alone to be considered. The cause of action is bundle of facts and it is for the plaintiffs to prove their case by duly adducing the oral and documentary evidence before the Court. Another contention is that sale deed vide document No.3048 of 1992 dated 07.08.1992 and the Suit is barred by limitation and is not maintainable. No appeal was filed and permission of the Court was not taken to file the Suit. Admittedly, the law of limitation is a mixed question of fact and law and it is to be decided after considering the entire evidence on record and it is a triable issue. The trial Court held that the principle of Resjudicata and Estoppel was not within the purview of Order 7 Rule 11 and cannot be dealt with. The trial Court not only considered the 13 legal aspects raised by both the parties at length and also considered the facts required to an extent and rightly dismissed the application. Therefore, this court finds that there is no irregularity or infirmity in the order of the trial Court and it needs no interference.
18. In the result, this Civil Revision Petition is dismissed confirming the order of the trial Court 17.11.2023, passed in I.A.No.93 of 2023 in O.S.No.4 of 2022. There shall be no order as to costs.
Miscellaneous petitions pending, if any, shall stand closed.
_____________________ P. SREE SUDHA, J Date: 10.07.2024 CHS