Lh Of Decd. Ramabhai Bhimabhai vs Ramjibhai Khodabhai Parmar
2025 Latest Caselaw 131 Guj

Gujarat High Court

Lh Of Decd. Ramabhai Bhimabhai vs Ramjibhai Khodabhai Parmar on 5 May, 2025

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                                C/CRA/9/2025                                 ORDER DATED: 05/05/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                                        R/CIVIL REVISION APPLICATION NO. 9 of 2025
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                                           LH OF DECD. RAMABHAI BHIMABHAI & ORS.
                                                           Versus
                                            RAMJIBHAI KHODABHAI PARMAR & ORS.
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                        Appearance:
                        MR JAY B AMBANI(13896) for the Applicant(s) No. 1,1.1,1.2,1.3,1.3.1,1.3.2
                        MR MEET D KAKADIA(11896) for the Applicant(s) No.
                        1,1.1,1.2,1.3,1.3.1,1.3.2
                        MR SATISH A PANDYA(556) for the Opponent(s) No. 1,2,3,4
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                          CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
                                           Date : 05/05/2025
                                            ORAL ORDER

1. The present Revision Application has been filed challenging the order passed on 04.01.2024 by Principal Senior Civil Judge, Jasdan below Exhibit-48 in Special Civil Suit No.03 of 2023 whereby the application under Order 7 Rule 11 of the Code of Civil Procedure has been rejected.

2. For the sake of convenience the parties are referred to as the plaintiff and defendant herein.

3. The brief facts in the present petition are that the plaintiff filed Civil Suit No.03 of 2023 before the Principal Senior Civil Judge, Jasdan for a declaration to declare that the father of the plaintiff has purchased the suit property by way of registered sale deed No.386 and also for a declaration that the plaintiffs are in possession of the suit property and also for a declaration that the father of the plaintiff became the owner of the suit property and after death of the father of the plaintiffs, the plaintiffs are the

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owner of the suit property. The defendant appeared in the said suit and filed application vide Exhibit-48 on the ground that the plaint is barred under Section 11 of the Gujarat Revenue Jurisdiction Act, and therefore, the plaint is required to be rejected. After going through the plaint and documents annexed with the plaint and arguments made by the parties, the trial Court by an order dated 04.01.2024 rejected the said application. Hence, the present Civil Revision Application.

4. Learned advocate for the defendant has mainly argued that looking to the fact of present case, the trial Court has no jurisdiction to hear and decide the suit, and the said suit is to be decided by the revenue authority. Learned advocate for the plaintiff has also argued that the plaintiffs have sought 11 reliefs and the first prayer for a declaration that the father of the plaintiff is an agriculturist and this being basis of the entire suit, the plaintiff wants to declare that because the father is an agriculturist, has rightfully purchased the agricultural land. It is the case of the plaintiffs that the revenue entry with respect to the said sale deed executed in favour of the father of the plaintiff was set aside on the ground that he is not an agriculturist, and therefore, the plaintiff has approached the Civil Court to quash and set aside order and the said order can only be challenged before the revenue authority and not by way of Civil Suit. Moreover, the other reliefs that have been sought are also challenging the revenue entries and the said revenue entries also

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cannot be challenged by way of filing a Civil Suit. It has been argued by learned advocate for the defendant that as the said sale deed is invalid, the defendant has became the owner and as the revenue entries have been challenged and the fact that the plaintiff wants to declare that the plaintiff's father has purchased the property being an agriculturist and in the said suit as the government authorities are parties, the said suit is required to be rejected being barred by law.

5. Moreover, it has been argued that if the principal relief is not maintainable the ancillary relief could not be granted by the Court. It has also been argued that though the plaintiff has sought for a relief that the plaintiff is claiming to be the owner of the property by virtue of adverse possession there are no pleadings to that effect in the plaint, and therefore, the plaint is required to be rejected. Learned advocate for the defendant has relied on the judgment in the case of Rajendra Bajoria and others v. Hemant Kumar Jalan and others reported in (2022) 12 SCC

641. Paragraph No.17 and 18 of the said judgment reads as under:-

"17. It could thus be seen that the court has to find out as to whether in the background of the facts, the relief, as claimed in the plaint, can be granted to the plaintiff. It has been held that if the court finds that none of the reliefs sought in the plaint can be granted to the plaintiff under the law, the question then arises is as to whether such a suit is to be allowed to continue and go for trial. This Court answered the said question by

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holding that such a suit should be thrown out at the threshold. This Court, therefore, upheld the order passed by the trial court of rejecting the suit and that of the appellate court, thereby affirming the decision of the trial court. This Court set aside the order passed by the High Court, wherein the High Court had set aside the concurrent orders of the trial court and the appellate court and had restored and remanded the suit for trial to the trial court.

18. Therefore, the question that will have to be considered is as to whether the reliefs as claimed in the plaint by the plaintiffs could be granted or not. We do not propose to do that exercise, inasmuch as the Division Bench of the High Court has elaborately considered the issue as to whether, applying the provisions of the said Act read with the aforesaid clauses in the Partnership Deed, the reliefs, as claimed in the plaint, could be granted or not. The relevant discussion by the High Court reads thus:

"(32) Let us take the prayers one by one. The first prayer is for a declaration that the plaintiffs and the defendants are entitled to the assets and properties of the said firm as the legal heirs of the original partners.

It is trite law that the partners of a firm are entitled only to the profits of the firm and upon dissolution of the firm they are entitled to the surplus of the sale proceeds of the assets and properties of the firm, if any, after meeting the liabilities of the firm, in the share agreed upon in the partnership deed. The partners do not have any right, title or interest in respect of the assets and properties of a firm so long as the firm is carrying on business. Hence, the plaintiffs as legal heirs of some of the original partners cannot maintain any claim in respect of the assets and properties of the said firm. Their prayer for declaration of coownership of the assets and properties of the said firm is not maintainable in law.

(33) The second prayer in the plaint is for a declaration that the plaintiffs along with the defendants are entitled to represent the firm in all

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proceedings before the concerned authorities of the State of Bihar for the acquisition of its Bhagalpur land. The framing of this prayer shows that this is a consequential relief claimed by the plaintiffs which can only be granted if the first prayer is allowed. Since, in our opinion, prayer

(a) of the plaint cannot be granted in law, prayer

(b) also cannot be granted.

(34) Prayer (c) is also a consequential relief. Only if the plaintiffs were entitled to claim prayer (a), they could claim prayer (c). We are not on whether or not the plaintiffs will succeed in obtaining prayer (a). According to us, the plaintiffs are not even entitled to pray for the first relief indicated above as the same cannot be granted under the law of the land. Consequently, prayer (c) also cannot be granted.

(35)Prayers (d) and (e) both pertain to dissolution of the firm. Prayer (e) is for a decree of dissolution and for winding up of the affairs of the firm. Prayer (d) is for full accounts of the firm for the purpose of its dissolution (emphasis is ours). However, it is settled law that only the partners of a firm can seek dissolution of the firm. Admittedly, the plaintiffs are not partners of the said firm. Sec. 39 of the Partnership Act provides that the dissolution of partnership between all the partners of a firm is called 'the dissolution of the firm'. Sec. 40 provides that a firm may be dissolved with the consent of all the partners or in accordance with a contract between the partners. Sec. 41 provides for compulsory dissolution of a firm. Sec. 42 stipulates that happening of certain contingencies will cause dissolution of a firm but this is subject to contract between the partners. A partnership- at-will may be dissolved by any partner giving notice in writing to the other partners

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of his intention to dissolve the firm, as provided in Sec. 43 of the Act. Sec. 44 empowers the Court to dissolve a firm on the grounds mentioned therein on a suit of a partner.

(36) Thus, it is clear that it is only a partner of a firm who can seek dissolution of the firm. The dissolution of a firm cannot be ordered by the court at the instance of a non-partner. Hence, the plaintiffs are not entitled to claim dissolution of the said firm. Consequently, they are also not entitled to pray for accounts for the purpose of dissolution of the firm.

(37) What should the Court do if it finds that even taking the averments in the plaint at face value, not one of the reliefs claimed in the plaint can be granted? Should the Court send the parties to trial? We think not. It will be an exercise in futility. It will be a waste of time, money and energy for both the plaintiffs and the defendants as well as unnecessary consumption of Court's time. It will not be fair to compel the defendants to go through the ordinarily long drawn process of trial of a suit at huge expense, not to speak of the anxiety and unpeace of mind caused by a litigation hanging over one's head like the Damocles's sword. No purpose will be served by allowing the suit to proceed to trial since the prayers as framed cannot be allowed on the basis of the pleadings in the plaint. The plaintiffs have not prayed for leave to amend the plaint. When the court is of the view just by reading the plaint alone and assuming the averments made in the plaint to be correct that none of the reliefs claimed can be granted in law since the plaintiffs are not entitled to claim such reliefs, the Court should reject the plaint as disclosing no cause of action. The reliefs claimed in a plaint flow from and are the culmination of the cause of action pleaded in the plaint. The cause of action pleaded and the prayers made in

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a plaint are inextricably intertwined. In the present case, the cause of action pleaded and the reliefs claimed are not recognized by the law of the land. Such a suit should not be kept alive to go to trial....."

6. Per contra, learned advocate for the plaintiff has mainly argued that it is only in the year 2021 that the revenue entry No.508 with respect to the sale deed is executed by the father of the plaintiff, the defendant had challenged the same before the Deputy Collector and the fact that the title of the property can only be decided by the Civil Court and not by the revenue authorities, and therefore, the Civil Court has the jurisdiction to hear and decide the same. Moreover, it has been argued that the sale deed is in existence and there is no dispute that the said sale deed being registered has not been challenged by the defendant and same having not been cancelled by the competent authority. The plaintiff to protect his right in the suit property has filed the suit, and therefore, the suit is not liable to be rejected. Learned advocate for the plaintiff has relied on the judgment in the case of Chauhan Ranchhodbhai Fatehsinh v. Valand Keshavlal Nathalal reported in 1983 (1) GLR 780 in which it has been held that relief with respect to adverse possession falls within the jurisdiction of the Civil Court.

7. Having heard learned advocate for the parties and having considered the facts of the present case. More particularly, the fact that the plaintiffs have sought for reliefs in the suit and the

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cause of action that has been stated in the plaint is on the fact that on 20.01.2013, the plaintiffs came to know that though the defendant was very much aware that the plaintiffs are in possession of the suit land from last 25 years and though the proceedings are pending before the appellate authority, the defendants are trying to transfer or assign the suit property and are trying to disturb the plaintiff's possession of the suit property. The suit has been filed and in the said suit, reliefs have also been sought and one of the relief that has been sought is with respect to declaration that the plaintiff is in possession of the property since last 25 years and in the plaint have claimed an ownership by seeking adverse possession of the suit property and that being an independent right the plaintiff's suit cannot be said to be barred by law as the same is independent right which the plaintiff claims in the said suit. Moreover, as per the law laid down in the case of Sejal Glass Ltd. v. Navilan Merchants Pvt. Ltd reported in 2017 (0) AIJEL-SC 60738 and in the case of Central Bank of India v. Coast West Ferro Alloys reported in 2008 (0) AIJEL-HC 220453, that the plaint cannot be dismissed in part if some of the relief can be entertained by Court.

8. The judgment that has been relied by the defendant in the case of Rajendra Bajoria and others v. Hemant Kumar Jalan and others reported in (2022) 12 SCC 641, in view of the no assistance to the defendants in the present case that the relief of adverse possession is independent relief and the same is not

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barred by law, and therefore, there can not be partial rejection of the plaint under Order VII Rule 11 of the Code of Civil Procedure, and therefore, as the relief of adverse possession survives, plaint cannot be rejected under Order VII Rule 11 of Code of Civil Procedure and as the said relief is not barred and is within the Civil Court jurisdiction. Hence, plaint cannot be rejected under Order VII Rule 11 of the Code of Civil Procedure.

9. It is true and settled law that though Court is required to be extremely careful regarding frivolous and vexatious litigations creeping in the judicial system and consequently abusing the process of law. This requires Courts to exercise their power under Order VII Rule 11 to nip such litigation in the bud.

10. However, equally important and well settled is the law that Order VII Rule 11 amounts to rejection of a case at the threshold. Therefore, it is a drastic power, which must exercised extremely cautiously. Hon'ble Supreme Court has laid down the following proposition of law in the case of P.V. Guru Raj Reddy v. P. Neeradha Reddy, (2015) 8 SCC 331:

5. Rejection of the plaint under Order 7 Rule 11 of CPC is a drastic power conferred in the court to terminate a civil action at the threshold. The conditions precedent to the exercise of power under Order 7 Rule 11, therefore, are stringent and have been consistently held to be so by the Court. It is the averments in the plaint that have to be read as a whole to find out whether it discloses a cause of action or whether the suit is barred under any law. At the stage of exercise of power under Order 7 Rule 11, the

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stand of the Defendants in the written statement or in the application for rejection of the plaint is wholly immaterial. It is only if the averments in the plaint ex facie do not disclose a cause of action or on a reading thereof the suit appears to be barred under any law the plaint can be rejected. In all other situations, the claims will have to be adjudicated in the course of the trial. (emphasis supplied).

11. It is therefore settled law that such a drastic step cannot be taken when upon a holistic reading of the Plaint, it does not appear to be barred by any law or discloses a cause of action (along with the other grounds of the said Rule). In such situations, the Plaint must go to trial and the Trial Court in accordance with law may allow or reject the same as deemed appropriate.

12. In view of the discussion of the present case in the foregoing paragraphs, this Court does not deem it fit to take recourse of the drastic powers conferred under Order VII Rule 11 for rejection of the Plaint and accordingly, the present Civil Revision Application is dismissed. The connected Civil Application, if any, shall also stand dismissed.

(SANJEEV J.THAKER,J)

Manoj Kumar Rai