Smt. Shikha Agrawal vs Sanjeev Garg (Deceased) And 3 Others
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Allahabad High Court

Smt. Shikha Agrawal vs Sanjeev Garg (Deceased) And 3 Others on 25 September, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


A.F.R.
 
Judgment Reserved on- 15.09.2025
 
Judgment Delivered on- 25.09.2025
 
Neutral Citation No. - 2025:AHC:173156
 
Court No. - 35
 
Case :- FIRST APPEAL No. - 21 of 2023
 
Appellant :- Smt. Shikha Agrawal
 
Respondent :- Sanjeev Garg(Deceased) & 3 Others
 
Counsel for Appellant :- Anshul Kumar Singhal, Vinod Kumar Agrawal
 
Counsel for Respondent :- Chandan Sharma, Shubham Tripathi
 
Hon'ble Sandeep Jain, J.	
 

 

1. The instant appeal under Section 96 CPC has been preferred by the plaintiff against judgment and decree dated 3.12.2022 passed by the court of Civil Judge(Senior Division) / FTC, Ghaziabad in O.S. no. 782 of 2021 Smt. Shikha Agrawal Vs. Sanjeev Garg (Deceased) through LR's whereby, the plaintiffs suit has been rejected under Order 7 Rule 11(d) CPC on the ground that plaintiff has sought the relief of declaration and permanent injunction regarding immovable property which is an agricultural land, which can only be granted by revenue Court.

2. Factual matrix is that the plaintiff Smt.Shikha Agrawal filed O.S. no. 782 of 2021 against his real brother Sanjeev Garg(died during pendency of suit) with the averments that their father Satyaprakash Garg died on 12.5.2009 leaving behind his wife Smt. Premlata Garg, daughter Shikha Agrawal(plaintiff) and son Sanjeev Garg(defendant) as his legal heirs. It was further averred that the defendant died during pendency of suit on 8.3.2022 leaving behind his wife Smt.Vandana Garg and sons Shaurya Garg,Dhairya Garg. Smt.Premlata Garg also died on 22.3.2020. She further averred that on the death of her parents, she and the legal heirs of deceased defendant became the joint owners of all movable and immovable property left behind by her parents, in which she is having 1/2 share.

3. The plaintiff further averred that at the time of the death of her parents, they were having the following immovable properties:-

(i)An ancestral residential three storyed building and godown etc. having no. 24 and 25 (new no. 27 & 28) situated in Naya Ganj, Ghaziabad in which her father was having one third share and after his death, she and the defendant each became owners in possession of one sixth share.

(ii)Marriage home and banquet hall namely Imperial Garden and Heritage-Inn, which were constructed about 25 30 years back, situated on Hapur road, Ghaziabad, which were used as a single unit, which were having 10 foot high boundary, having two permanent gates, each having 5000 ft covered area having permanent roof, air-conditioned banquet halls, having common toilets, five large guest rooms with attached toilets, office blocks, pantry in an area of about 3000 ft covered area, etc. were situated. The marriage hall was constructed by his late father with Mahesh Chand Garg and Bharat Bhushan Garg which was completely residential, commercial and non-agricultural property situated in khasra No. 448 m, 526, 527, 544 and 543 m having area of 10,090 m situated in village Dasna Ghaziabad. She further averred that the above property was situated within Ghaziabad city, on the Ghaziabad Hapur road, which was residential and commercial property of her father, towards east of which was a developed multi-storeyed residential colony namely Ansal Garden Enclave developed by Ansal builders, towards west was Hapur road, thereafter densely populated Govind Puram residential scheme of Ghaziabad Development Authority which was established 30 35 years back, towards north was Ganga Puram residential colony and towards South was Ansal Garden Enclave and Flora Garden Enclave residential colonies. She further averred that in the above properties, her father was having one third share and after his death, she and the defendant each are co-owners of one sixth share.

(iii)Immovable property situated in Hindon civil airport, Ghaziabad which was situated within the city, which was residential and commercial, having khasra number 116 m, 125 m, 130/3, 131 m, 132 m, 133 m and 142, total area 18,850 m situated in village Sikandarpur, Pargana Loni, tehsil and District Ghaziabad in which her father was having two thirds share, and after his death, she and the defendant each was having one third share. The above residential land was situated within Ghaziabad city, in between densely populated Rajendra Nagar and Hindon Air Force Station etc. which was never used in the lifetime of her father and thereafter, for agricultural purposes. Her father in the year 2000 established B.K.Usha Education Society on the above land and started establishing a college. Subsequently, a lease deed dated 10.8.2018 was executed in favour of Excellency the Governor U.P., for establishing civil airport.

(iv)An immovable property situated in the industrial, residential area developed by UP State Industrial Development Corporation Ltd and Greater Noida Industrial Development Authority in village Surajpur, Greater Noida, Gautam Buddha Nagar about 35 years back in the year 1985 in which Messers Aarti Steel Rolling Mills Ltd(incorporated in 1986) which was merged in the year 2004 in Messers Aarti Steels Ltd, which was situated in khasra No. 236 and 237 having area of 4660 m and khasra No. 234 area 5533 m, the half portion of which amounting to 2766 square metre belonged to her father. In the above land of Messers Aarti Steels, in the industrial area industrial sheds, machines, equipments, more than 30 rooms, three large halls, toilets, etc were constructed in the lifetime of her father, which was never used in the lifetime of her father and after his death, for agricultural purposes. In this property also after the death of her father, she and the defendant, each was having one half share. She further averred towards east of the above property, there was a reserved bird sanctuary, towards west was Shriram Enclave residential colony, towards north was Arya Samaj Temple and densely populated area, towards South was Dadri Surajpur Noida main road thereafter, Lotus Park multi-storeyed residential project, UPSIDC industrial area and Dharampal market etc. are situated.

(v)Land of khasra no. 1857, 1876 Ka, 1876kha, and 1879 m, total area 7,836 square metre situated in village Sadarpur, Ghaziabad which is situated between fully developed Govind Puram, established by Ghaziabad Development Authority and other private property, which was fully residential and was situated within Ghaziabad city, towards west was E-Block Govindpuram, towards east was Kailashpuram residential colony, towards north was Kailashpuram residential colony and towards South was service road and thereafter, C-Block Govindpuram was situated, in which her father was having one third share and after his death, she and the defendant each is having one sixth share.

4. She further averred that all the above-mentioned movable and immovable properties of her late father were residential, commercial, industrial and non-agricultural and after the death of her father and mother, she and the defendant ,are the legal heirs, each is owner in possession of one half share of the above mentioned properties.

5. She further averred that the defendant was trying to misappropriate the above mentioned properties illegally and intended to usurp the plaintiffs right and share in the above mentioned properties and was threatening to alienate, sell, lease, mortgage, and create charge in the above properties in favour of third parties, so as to cause irreparable injury to the plaintiff.

6. She further averred that the defendant was illegally selling the above immovable properties. The defendant in collusion with other co-owners in khasra no. 1857, 1876 kha, 1879, 1880,1883 and 1876 ka, having total area of 1.4420 hectare(ha), has already sold 3414 m land in khasra no. 1879, 2280 m in khasra no. 1880, 890 m in khasra number 1883 i.e 0.6584 hectare through illegal sale deeds. She further averred that in the above land having area of 1.4420 ha, her father was having one third share of 0.4806 ha and after the death of her father, she and the defendant, each is owner of half share of 0.2403 ha. She further averred that the defendant has already sold 0.2194 ha of his one third share and only 0.0209 ha share of defendant in the above land is remaining whereas, her whole share 0.2403 ha, is still intact.

7. She further averred that the defendant has also filed a case under section 372 of the Indian Succession Act for obtaining the succession certificate of her late father regarding the bank fixed deposit and savings account deposits left behind by her late father on the false ground of being the sole heir of her late father by filing Miscellaneous Case number 186 of 2020, Sanjeev Garg versus Shaurya Garg and others, in the court of Civil Judge Senior Division, Ghaziabad by fradulently impleading his sons as defendants. The defendant has deliberately with the malfide intention, not impleaded her as a party in that case. Besides that, the defendant also filed a false affidavit in that case, in which he stated that he was the only legal heir of his late father.

8. She further averred that during the lifetime of her late father, his several properties were acquired by the State of Uttar Pradesh, regarding which several Courts have awarded enhanced compensation for the land acquired, for obtaining which, the defendant has filed several execution cases in the court of Additional District Judge, Ghaziabad in which also, the defendant has fradulently stated that he is the only sole legal heir of his late father.

9. She further stated that in the property mentioned previously, the defendant has fradulently executed lease deed in favour of his Excellency the Governor of U.P. for three years w.e.f. 10.8.2018 till 9.8.2021, for consideration of ₹ 15,74,000, @ ₹ 200 per square metre, in which she and the defendant are the legal heirs of one half share after the demise of her father, in which she is having share of ₹ 7,87,000.

10. She also disclosed that previously she instituted O.S. no. 492 of 2021 Shikha Agrawal versus Sanjeev Garg in the court of Civil Judge, Senior Division, Ghaziabad, which was withdrawn with the permission of the court on 24.8.2021, for filing fresh suit.

11. The plaintiff claimed the following reliefs:-

(A) By decree of declaration granted in her favour against the defendant, it be declared that in the movable and immovable property left behind by her late father Satyaprakash Garg and her mother Smt.Premlata Garg, which have been mentioned in the plaint, she is having one half share being the heir and owner in possession of the disputed property.

(B)By decree of permanent injunction granted in her favour against the defendant, the defendant be restrained from alienating, transferring, leasing, mortgaging, creating charge, realising any rent, constructing, digging, developing and altering the nature of the disputed property in any manner whatsoever, etc. without effecting partition of her share in the disputed property.

12. During the pendency of the suit, the legal heir's of the deceased defendant filed an application 38-C under Order 7 Rule 11 CPC read with Section 151 CPC with the averments that the disputed immovable property mentioned in the plaint was an agricultural property regarding which, in the revenue records, the name of the deceased defendant and his legal heir's have been mutated. According to the U.P. Revenue Code of 2006, the married daughter has got no legal right in the agricultural property. The defendants further averred that the plaintiff had earlier moved an application under Section 33(B) of the U.P. Revenue Code of 2006 with the averments that the mutation in the above property should have been made in accordance with the provisions of Hindu Succession Act and the provisions of Section 108 and 109 of the U.P. Revenue Code are not applicable and the defendant had got no right in the above property but the above application of the plaintiff was rejected by the Tehsildar, Ghaziabad on 14.3.2022 by holding that it was an agricultural land and as such, according to the U.P. Revenue Code of 2006, the plaintiff had no legal right in it.

13. The defendants further averred that the land situated in khasra number 1857, 1876ka,1876kha and 1879m situated in village Sadarpur which was agricultural land, was acquired wayback in the year 1988 by the Ghaziabad Development Authority for establishing Govindpuram scheme and on 14.12.1988 its possession has already been handed to the above Authority but, regarding this land also, the plaintiff was seeking declaration of her rights. The plaintiffs name is not recorded as tenure-holder in the revenue records and as such, the plaintiffs suit was barred by Section 206 of the U.P. Revenue Code.

14. The defendants further averred that since plaintiff was well aware that she was having share in the disputed property left behind by her father, as such she should have filed the suit for the relief of declaration and injunction within three years after the death of her father, but the suit has been filed after about 12 years, which was barred by limitation.

15. The defendants further averred that the plaintiff has deliberately undervalued the suit because the plaintiff was never in possession of the entire agricultural land and residential land. The plaintiff should have valued the suit on the market value of the disputed property and should have paid the court fees ad-valorem. The Court fees paid by the plaintiff was insufficient and even on this ground, the plaintiffs suit was barred.

16. The defendants further averred that in the remaining agricultural land after acquisition, situated in khasra number 1879,1880 and 1883, after the death of plaintiff's father, the name of Sanjeev Garg and Smt. Premlata Garg was mutated on 9.3.2010, regarding which sale deeds have already been executed on 22.6.2011, 10.8.2011, 13.12.2011, 4.5.2012, 31.10.2012 and 22.2.2013 and the name of purchasers, has already been mutated in the revenue records, which was in the knowledge of the plaintiff from the date the above sale deeds were executed and as such, after 10 years, the plaintiff has got no legal right to file the present suit, which was barred by limitation.

17. It was averred by the defendants that due to the above reasons, the plaintiff 's suit was barred by Section 206 of the U.P. Revenue Code, because the court was not having jurisdiction to hear the suit, because the suit was barred by limitation, because the suit was undervalued and insufficient Court fees was paid by the plaintiff, the suit was barred by Section 41(h) of the Specific Relief Act as such, the plaintiffs suit be dismissed under Order 7 Rule 11 CPC.

18. The plaintiff filed objections to the defendants above application under Order 7 Rule 11 CPC whereby she stated that the defendants want to delay the disposal of the suit by creating unnecessary complications. The plaintiff has already suffered serious injury because her interim injunction application was pending for the last one year. The High Court had directed that the suit be decided expeditiously but the defendants are violating the above order of this Court. The defendant's right to file written statement has already been closed because it was not filed within the stipulated time mentioned in Order 8 Rule 1 CPC. It was further submitted that the grounds raised by the defendants in the application can only be examined after framing of issues and adducing evidence which cannot be a ground for rejection of plaint under Order 7 Rule 11 CPC. She specifically submitted that the disputed property was not an agricultural property, which was not governed by the U.P. Revenue Code regarding which the civil court has got jurisdiction. She further averred that the nature of the disputed property, is to be decided on merits, keeping in view, its usage and condition.

19. She specifically averred that the disputed properties are completely situated within the territorial limits of the city, are non-agricultural properties, which are used for commercial purposes, which are not affected by the revenue entries and the mutation in revenue records therein, because it was illegal. It was further submitted that the revenue records and revenue entries are not proof of the ownership, nature and usage of the disputed property because indisputably the disputed properties were being used for non-agricultural purposes, since long time. It was submitted that the suit was neither barred by Section 206 of the U.P. Revenue Code nor by limitation. The application was filed by the defendants by abusing the process of law. All the pleas raised by the defendant cannot be examined in an application under Order 7 Rule 11 CPC, as such, the defendants application was liable to be rejected.

20. The trial court by impugned order dated 3.12.2022 concluded that since plaintiff claimed the relief of declaration and injunction regarding immovable property situated in khasra No. 448 m, 526, 527, 544, 543 m,116 m,125 m, 130/3, 131 m, 132 m, 133 m, 142, 236, 237, 234, 1857, 1876ka, 1876kha and 1879 m, which according to the khatauni paper no. 86-C, 63-C, 89-C and 87-C submitted by plaintiff, are agricultural land, in which the plaintiff was not recorded tenure holder, there was no declaration under Section 143 and 144 of the UPZA & LR Act of 1950, which was mandatory and in the absence of such declaration, the land will be deemed to be agricultural land. The trial court also concluded that as per Section 206 of the U.P. Revenue Code the declaration regarding agricultural land can only be granted by the revenue court as such, the plaintiffs suit was barred by Order 7 Rule 11(d) CPC, aggrieved against which, the plaintiff has filed the instant appeal under Section 96 of the CPC.

21. Learned counsel for the plaintiff -appellant submitted that the impugned order of the trial court is perverse because the disputed property was residential, commercial, industrial and non-agricultural property, which was used for the above-mentioned purposes, since very long time. Learned counsel further submitted that even if, it is assumed that some disputed property was agricultural, even then, the whole suit cannot be rejected under Order 7 Rule 11 CPC because for the remaining non-agricultural property, the civil court was having jurisdiction to grant the relief claimed by the plaintiff.

22. Learned counsel for the defendant-respondents submitted that the impugned order of the trial court is perfectly legal, because the whole disputed property was agricultural, the plaintiff was not recorded as its tenure holder, as such, the plaintiff had to obtain declaration of her rights in that property, which can only be granted by the revenue court. Learned counsel submitted that since the whole disputed property was agricultural, as such, the plaintiff 's suit was barred by Section 206 of the U.P. Revenue Code. He further submitted that a part of the property was also situated in District Gautam Budhnagar, regarding which no relief can be granted by the Ghaziabad court, as such, the plaintiff 's suit was also barred on this ground.

23. I have heard the learned counsel of both the sides and perused the record.

24. It is apparent from the impugned order that the trial court has not examined the issue whether the plaintiff 's suit was barred by limitation or not, as such, this Court is also not examining that issue. The trial court has only rejected the plaint on the ground that the reliefs claimed by the plaintiff can only be granted by the revenue court since the civil courts jurisdiction was barred under Section 206 of the U.P. Revenue Code ,2006.

25. The Apex Court in the case of Sejal Glass Ltd. vs. Navilan Merchants Private Limited (2018) 11 SCC 780, while discussing whether the whole plaint can be rejected under Order 7 Rule 11 CPC, held as under:-

8. In (Sree Rajah) Venkata Rangiah Appa Rao Bahadur and Anr. v. Secretary of State and Ors.A.I.R. 1931 Madras 175 at 176, the Madras High Court held:

Referring to Section 54 of the old Code of Civil Procedure, the learned Judge states that that Section only provides for the rejection of a plaint in the event of any matters specified in that Section not being complied with and it does not justify the rejection of any particular portion of a plaint. Section 54 now corresponds to Order7, Rule11, Code of Civil Procedure. The plain meaning of that Rule seems to be that if any of the defects mentioned therein is found to exist in any case, the plaint shall be rejected as a whole. It does not imply any reservation in the matter of the rejection of the plaint. Non-compliance with the requisites of Section 80, Code of Civil Procedure, was taken to be a ground covered by Clause (d) of Rule 11, above referred to. Even if it should be taken that that Clause does not strictly apply to the present case, I must hold that the suits are liable to dismissal on account of non-compliance with Section 80, Code of Civil Procedure.

It was further found that if the suit was dismissed for want of notice against the Government Under Section 80 Code of Civil Procedure, it cannot be allowed to proceed against the other Defendants for the reason that the Government's right to resume inam lands, on the facts of that case, stands unaffected, and that being so, the Plaintiff's claim to recover possession of such lands from other Defendants would also fall to the ground for the simple reason that they have no right then to resume those inams. It was, therefore, held on the peculiar facts of that case that for the reasons given the suit would fail as a whole.

*** *** ***

10. We are afraid that this is a misreading of the Madras High Court judgment. It was only on the peculiar facts of that case that want of Section 80 Code of Civil Procedure against one Defendant led to the rejection of the plaint as a whole, as no cause of action would remain against the other Defendants. This cannot elevate itself into a Rule of law, that once a part of a plaint cannot proceed, the other part also cannot proceed, and the plaint as a whole must be rejected Under Order 7 Rule 11. In all such cases, if the plaint survives against certain Defendants and/or properties, Order 7 Rule 11 will have no application at all, and the suit as a whole must then proceed to trial.

(emphasis supplied)

26. The Apex Court in the case of Sri Boyenepally Srijayavardhan vs. V. Nirupama Reddy and others, Civil Appeal No.9904 of 2025 while discussing rejection of plaint under Order 7 Rule 11 CPC, held as under:-

10. It is a well-settled principle of law that where out of many reliefs claimed in the plaint, the plaintiff is found entitled to even one of them, the plaint cannot be rejected under Order 7 Rule 11 CPC. In such circumstances, the suit must be tried on the basis of evidence led by the parties. Reliance may be placed upon the following judgments:

10.1. The case of Sejal Glass Limited vs. Navilan Merchants Private Limited (2018) 11 SCC 780 , is directly on the point. Para 8 of the report reads as follows:

This cannot elevate itself into a rule of law, that once a part of a plaint cannot proceed, the other part also cannot proceed, and the plaint as a whole must be rejected under Order 7 Rule 11. In all such cases, if the plaint survives against certain defendants and/or properties, Order 7 Rule 11 will have no application at all, and the suit as a whole must then proceed to trial.

10.2. This principle was reiterated in Central Bank of India & Anr. vs. Smt. Prabha Jain & Ors. 2025 INSC 95 , wherein it was held in para 24 of the report as follows:

24. Even if we would have been persuaded to take the view that the third relief is barred by Section 17(3) of the SARFAESI Act, still the plaint must survive because there cannot be a partial rejection of the plaint under Order 7, Rule 11 of the CPC. Hence, even if one relief survives, the plaint cannot be rejected under Order 7, Rule 11 of the CPC. In the case on hand, the first and second reliefs as prayed for are clearly not barred by Section 34 of the SARFAESI ACT and are within the civil courts jurisdiction. Hence, the plaint cannot be rejected under Order 7 Rule 11 of the CPC.

10.3. The Court clarified the scope of examination at the stage of Order 7 Rule 11 in Vinod Infra Developers Ltd. vs. Mahaveer Lunia & Ors. 2025 INSC 772 , wherein it was held in para 8 of the report as follows:

8. At this preliminary stage, the court is required to confine its examination strictly to the averments made in the plaint and not venture into the merits or veracity of the claims. If any triable issues arise from the pleadings, the suit cannot be summarily rejected.

27. It is apparent from the above law laid down by the Apex Court in the case of Sejal Glass Ltd.(supra) and Sri Boyenepally Srijayavardhan (supra) that at the preliminary stage, the court is required to confine its examination strictly to the averments made in the plaint and not venture into the merits or the veracity of the claims. It is also clear that if, any triable issues arise from the pleadings, the suit cannot be summarily rejected. It is also clear that where out of many reliefs claimed in the plaint, the plaintiff is found entitled to even one of them, the plaint cannot be rejected under Order 7 Rule 11 CPC and in such circumstances, the suit must be tried on the basis of evidence led by the parties.

28. From the pleadings of the plaintiff in the plaint, it is very much apparent that she is claiming ownership of 1/2 share in the various residential and commercial properties of her late father Satyaprakash Garg who died on 12.5.2009, such as, ancestral residential three storeyed building and godown situated in Nayaganj, Ghaziabad, marriage home and banquet hall namely Imperial Garden and Heritage-Inn situated on Hapur road Ghaziabad, in the immovable property of Messers Aarti Steels Ltd and several other immovable property. Since, the above properties are prima-facie residential, commercial and industrial property as such, on the ground that some of the disputed property is agricultural, the whole plaint cannot be rejected under Order 7 Rule 11 CPC. In respect of the above property, the plaintiff is entitled to claim the relief of declaration and permanent injunction from the civil court, regarding which the revenue court has got no jurisdiction.

29. Even the defendants in their application 38-C under Order 7 Rule 11 CPC, in paragraph 3, mentioned that the plaintiff never remained in possession of the agricultural and non-agricultural properties mentioned in paragraph 4 of the plaint. It is apparent that even the defendants accepted that some disputed property mentioned in the plaint was non-agricultural.

30. In view of the above facts and the circumstances, it is apparent that the trial court committed material illegality in rejecting the whole plaint on the ground, that the whole disputed property is agricultural, regarding which no relief can be granted to the plaintiff by the civil court and the relief sought by the plaintiff is barred by section 206 of the U.P. Revenue Code. It is also apparent that several properties are involved in the instant case as such, it was appropriate, that the trial court decided the whole issue on merits, after framing the issues and adducing the evidence of both the parties. In rejecting the plaint summarily, the trial court committed a grave error, which needs to be rectified by this Court, in exercise of its appellate jurisdiction. The impugned order is perverse and unsustainable. Accordingly, this appeal has merits and is liable to be allowed.

31. This appeal is hereby allowed. Consequently, the impugned judgment and decree of the trial court dated 3.12.2022 is set aside. Defendants application under Order 7 Rule 11 CPC stands dismissed. O.S. no. 782 of 2021 is restored to its original number.

32. The trial court is directed to decide the suit on merits, in accordance with law, within six months, without fail, from the date a certified copy of this order is communicated to it, without granting unnecessary adjournment to any side. The trial court is also directed to hear the suit day by day. District Judge, Ghaziabad is directed to monitor the progress of the suit closely and submit the progress report of the suit, every 15 days to this Court.

33. Registrar compliance is directed to communicate a copy of this order to the District Judge, Ghaziabad within 24 hours.

34. Interim order, if any, stands vacated.

Order Date:- 25.09.2025

Jitendra/Himanshu/Mayank

(Sandeep Jain, J.)