Mahabir Singh vs Uday Bhanu Singh
2022 Latest Caselaw 7516 Chatt

                                     1

                                                                  NAFR
          HIGH COURT OF CHHATTISGARH, BILASPUR
                     CR No. 65 of 2022
    Mahabir Singh S/o Late Vishwanath Singh Thakur, presently
     Aged About 72 Years Present Address R/o Ward No.10 Nagar
     Panchayat Baradwar, Police Station Baradwar, Sub Tahsil
     Baradwar, Tahsil Sakti, District Janjgir-Champa, Chhattisgarh.
    Abhishek Singh @ Gajju Singh S/o Mahabir Singh, presently
     Aged About 32 Years (Wrongly Mentioned As 37 Years In Order
     Sheet), Present Address R/o Ward No.10 Nagar Panchayat
     Baradwar, Police Station Baradwar, Sub Tahsil Baradwar, Tahsil
     Sakti, District Janjgir-Champa, Chhattisgarh.
                                                         ---- Applicants
                                                   Defendants No. 1 & 2
                                   Versus
   1. Uday Bhanu Singh S/o Late Nandkumar Singh, presently Aged
      About 26 Years
   2. Pushpendra Bahadur Singh S/o Late Shri Nandkumar Singh
      presently Aged About 24 Years
      Both Present Address R/o Village Thathari Tahsil Jaijaipur,
      District Janjgir-Champa, Chhattisgarh.
   3. Smt. Suruchi Singh Wd/o Late Nand Kumar Singh, presently
      Aged About 46 Years Present Address R/o Village Thathari
      Tahsil Jaijaipur, District Janjgir-Champa, Chhattisgarh.
   4. State Of Chhattisgarh Through Collector, Janjgir, District Janjgir-
      Champa, Chhattisgarh.
                                                        ---- Respondents

For Applicants                 :         Mr. Ravindra Agrawal and Mr.
                                         Ravindra Sharma, Advocates.
For Respondents No. 1 & 2      :         Mr. Bharat Sharma, Advocate.
For Respondent/State           :         Mr. Sameer Uraon, Govt. Adv.

                 Hon'ble Smt. Justice Rajani Dubey
                           Order On Board
13/12/2022

This civil revision under Section 115 of Code of Civil Procedure

has been filed against the order dated 19.7.2022 passed by Civil

Judge, Class-I, Sakti, Distt. Janjgir-Champa in Civil Suit No.1-A/2021

whereby application under Order 7 Rule 11 of CPC filed by the

applicants/defendants No. 1 & 2 has been rejected.

02. Brief facts of the case are that the respondents/plaintiffs filed a

civil suit under Section 31 of Specific Performance Act against the

applicants/defendants and respondent No.3 herein namely Smt.

Suruchi Singh for cancellation of sale deed dated 2.5.2014, declaration

and possession. The applicants/defendants filed written statement and

denied all the allegations of the plaint and also filed an application

under Order 7 Rule 11 of CPC on the ground that the suit is barred by

limitation, the plaintiffs did not pay proper court fee and as such, the

suit is not maintainable. However, the trial Court by the impugned order

dated 19.7.2022 rejected the said application of the

applicants/defendants.

03. Learned counsel for the applicants/defendants submits that the

impugned order is illegal, improper and contrary to law. The trial Court

erred in law by ignoring the fact that the plaintiff are the executant of

the sale deed and they are not in possession of the suit land. The

plaintiffs have sought the consequential relief of possession but have

not paid the ad-valorem court fee according to their valuation. The trial

Court also erred by ignoring the fact that the plaintiff No.1 was aged

about 24 years 10 months and 16 days whereas plaintiff No.2 was

aged about 22 years 11 months at the time of filing of the suit and they

have not filed the suit within three years from the date of attaining

majority, therefore, the suit is barred under Article 59 of the Limitation

Act. The trial Court has also ignored this fact that defendant No.1 has

been impleaded in the suit only because he assisted the counsel who

appeared for defendant No.3 in a Sessions Case No.114/2021,

therefore, in absence of any cause of action against defendant No.1,

the suit is liable to be dismissed. Defendant No.3 has executed the

sale deed as owner and a natural guardian of her minor children

(plaintiffs) but she has not challenged the registered sale deed till date

and also not made any complaint regarding fraudulent execution of the

sale deed and on this ground also the suit is liable to be dismissed.

However, the learned trial Court ignored all these objections and

therefore, the impugned order is liable to be set aside.

Reliance has been placed on the judgment of the Hon'ble

Supreme Court in Suhrid Singh Vs. Randhir Singh and others,

(2010) 12 SCC 112 and judgment dated 5.6.2020 passed in Civil

Appeal No.2514/2020 in the matter of Shakti Bhog Food Industries

Ltd. Vs. The Central Bank of India and others.

04. On the other hand, learned counsel for the respondents support

the impugned order.

05. Heard learned counsel for the parties and perused the material

available on record.

06. The trial Court observed in the impugned order that the plaintiffs

are not party to the disputed sale deed and the suit is filed within

limitation, and dismissed the application of the applicants/defendants.

During arguments, counsel for the applicants/defendants also brought

this fact to the notice of this Court that the trial Court did not frame any

issue on the objections raised by the applicants/defendants. The

applicants/defendants has also filed certified copy of their written

statement wherein they stated that the suit is time barred; valuation of

the suit is not done properly and also that there is misjoinder of party.

However, no issue on the aforesaid objections has been framed by the

trial Court.

07. In the totality of facts and circumstances of the case, the

pleadings of the applicants/defendants and the nature of objections

raised by them, this Court directs the trial Court to frame all the

necessary issues pertaining to the objections raised by the

applicants/defendants and decide the same as preliminary issue and if

evidence is necessary, then decide the same at the time of passing

final judgment.

08. With the aforesaid observations, this civil revision stands

disposed of.

sd/ (Rajani Dubey) Judge

Khan