Gujarat High Court
Pranavkumar Rameshchandra Shah vs Sitaben Rameshbhai Parmar on 1 September, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 376 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER Sd/-
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Approved for Reporting Yes No
NO
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PRANAVKUMAR RAMESHCHANDRA SHAH
Versus
SITABEN RAMESHBHAI PARMAR & ORS.
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Appearance:
MR.ADITYA J PANDYA(6991) for the Applicant(s) No. 1
MS ARTI INAMDAR(1377) for the Opponent(s) No. 2,4,5
NOTICE SERVED BY DS for the Opponent(s) No. 1,3,6
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 01/09/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocate Ms.Imandar waives
service of notice of Rule on behalf of concerned respondents. With the
consent of the parties, matter is kept for final hearing.
2. The present Revision Application is filed, challenging the order
dated 10.07.2023, passed by Additional Civil Judge, Waghodia,
Vadodara below Exh.8, in Regular Civil Suit No.53 of 2021, whereby the
application filed by the defendant under the provisions of Order VII Rule
11 of Code of Civil Procedure, 1908 ('cpc', for short) has been rejected.
3. For the sake of brevity, the parties herein are referred to as per their
original status as that of before the trial Court.
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4. The brief facts arising in the present Revision Application are that
the plaintiff filed civil suit on the ground that the plaintiff is in possession
of the suit property since the year 1990 and it is the case of the plaintiff
that the plaintiff's father viz. Babbarbhai Chunilal Parmar and Bhathibhai
@ Bharatbhai Ghelabhai Parmar and Somabhai Ghelabhai Parmar were
the owners of the joint suit property bearing Survey No.220 at
Mouje:Limda, Tal.Waghodia, Dist.Vadodara and as per the partition, the
suit property came in the hands of Bhathibhai @ Bharatbhai Ghelabhai
Parmar and Somabhai Ghelabhar Parmar but as they were residing at
Atladara since very long time and since the plaintiffs's father and plaintiff
were cultivating the said land, the possession of the suit property was
with the plaintiffs since the year 1990 and in the year 1997 when
Bhathibhai @ Bharatbhai Ghelabhai Parmar and Somabhai Ghelabhai
Parmar were in financial difficulties, they approached the plaintiffs to
purchase the suit property and the plaintiffs purchased the suit property
from said Bhathibhai @ Bharatbhai Ghelabhai Parmar and Somabhai
Ghelabhai Parmar and agreement was entered into between the plaintiff
and said Bhathibhai @ Bharatbhai Ghelabhai Parmar and Somabhai
Ghelabhai Parmar and it was settled at that point of time that as the
plaintiffs are already in possession of the property, there was no need to
execute the sale-deed at that point of time and as the registered sale-deed
was not executed, a civil suit was filed by the plaintiffs against the said
parties and including defendant no.1 and permanent injunction has been
granted in Special Civil Suit No.318 of 2003 which has been renumbered
as 220 of 2015 and as a registered sale-deed has been executed in favour
of defendant no.1 on 10.03.2003, the present suit is filed for a declaration
that defendant no.1 has lost his right to claim possession of the suit
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property and since the plaintiff is in possession of the property for the last
12 years, to declare that the plaintiff is the owner of the suit property and
anciliary relief with respect to injunction has been sought. The defendant
appeared in the said suit and defendant filed Exh.8 to reject the plaint as it
is barred by law in view of the fact that the suit that has been filed the
plaintiff is for seeking ownership by way of adverse possession and
neither any suit for specific relief for cancellation of the said sale-deed
has been sought by the plaintiff and the documents on which the plaintiff
relies is of mortgaging of suit property in lieu of money given by the
plaintiffs to the defendant no.1/2 of Special Civil Suit No.318 of 2003
and the same being an unregistered document, the plaintiff could not have
relied on the said document. Moreover, there are no pleadings with
respect to claim of adverse possession and therefore also the plaint was
required to be rejected. The trial Court, after considering the plaint, the
documentary evidence annexed along with plaint and after hearing the
parties rejected the said application. Hence the present Revision
Application.
5.1 Learned advocate for the defendant has mainly argued that the suit
that has been filed by the plaintiff is for only seeking a right that the
defendant can not claim possession of the suit property and that it is the
plaintiff's case that the plaintiff has become owner by way of adverse
possession, since last more than 12 years. It has been argued by the
learned advocate for the defendant that there are no avermants made in
the plaint to show or suggest that from which date and how the plaintiff is
claiming to be the owner by way of adverse possession.
5.2 Moreover, as the plaintiff has referred to Civil Suit No.318 of
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2003, the avermants made in the said suit will also have to be taken into
consideration, in the said suit, the defendant herein is also defendant no.3.
The said suit is filed in the year 2003 and, therefore, the plaintiff was very
much aware of existence of defendant no.3 in the suit property. The fact
also remains that in the said suit, the plaintiff has claimed that as
defendant nos.1 and 2 of Civil Suit No.318 of 2003, were in need of
Rs.14,000/-, a mortgage-deed was executed on 19.06.1997 and by way of
mortgage, the possession of the property was handed over by defendant
nos.1 and 2, in favour of the plaintiffs and as defendant nos.1 and 2 of
Civil Suit No.318 of 2003 were in need of further amount, an amount of
Rs.15,000/- was given by the plaintiff to defendant nos.1 and 2.
Therefore, in all Rs.29,000/- has been paid by the plaintiff to defendant
nos.1 and 2 and it was agreed that till the amount is repaid by defendant
nos.1 and 2, the plaintiff will be entitled to possession of the suit property
and in the suit, it has been stated that the possession of the suit property is
with plaintiff since the year 1990, by virtue of the said mortgage-deed
and, therefore, the suit that has been filed is for an injunction restraining
the defendants permanently from taking the possession of the suit
property from the plaintiff without due process of law and that any sale-
deed executed by defendant nos.1 and 2 of the said suit is not binding on
the plaintiff.
5.3 Therefore, it has been argued that even at the time when the earlier
suit was filed, the plaintiff was aware of existence of the sale-deed in
favour of the plaintiff on 10.03.2003 and till the year 2021 i.e. even in the
present, in the year 2021, the plaintiff has not challenged the said sale-
deed. In view of the said facts, the trial Court could not have rejected the
application filed under the provisions of Order VII Rule 11 of 'cpc' and,
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therefore, from the plain reading of the plaint, it can be clearly
ascertained that the plaint is hopelessly time barred and that no cause of
action has arisen for the plaintiff to file present suit, in view of the fact
that the cause of action to file the earlier suit i.e. Civil Suit No.318 of
2003 is based on a mortgage deed and the present suit is filed on the
ground that defendant nos.1 and 2 had assured and promised to execute a
sale-deed in favour of the plainttifs and that the plaintiffs are in
possession of the suit property on the basis of the said agreement and,
therefore, plaint is required to be rejected as being barred by law.
6.1 Per contra, learned advocate for the plaintiff has mainly argued
that the suit that has been filed by the plaintiff is based on the agreement
that has been entered into between the plaintiff and said Bhathibhai @
Bharatbhai Ghelabhai Parmar and Somabhai Ghelabhai Parmar and
therefore looking at the averments made in the plaint and documents
annexed with the plaint, it cannot be said that the suit that has been filed
by the plaintiff is barred by law.
6.2 Learned advocate for the plaintiff has also argued that in view of
the earlier suit i.e. Civil Suit No.318 of 2003, the plaintiff was relying on
the mortgage-deed and the cause of action to file the said suit and the
present suit are altogether different. The present suit is filed on the
ground that the possession of the plaintiff is peaceful and without any
obstruction and hindrance and the said possession is by claiming
ownership by adverse possession and the same is to the knowledge of the
plaintiff and the defendant and the defendant claiming to be the owner of
the property by way of registered sale, has not filed any suit for seeking
possession of the suit property. Therefore, also the claim of the plaintiff is
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based on possession to be the owner of the property by way of adverse
possession and, therefore, it cannot be said the plaint is barred by law and
therefore, the trial court has rightly rejected the application filed below
Exh.8 by the defendant.
7.1 Having heard learned advocates for the respective parties and
having considered the plaint and the documents annexed to the plaint, the
fact remains that in the present suit, the plaintiff has come forward with
the following facts:
(a) the suit property belonged to the father of the plaintiff i.e.
Babbarbhai Chunilal Parmar, Bhathibhai @ Bharatbhai
Ghelabhai Parmar and Somabhai Ghelabhai Parmar;
(b) by way of partition, the suit property came in the hands of
Bhathibhai @ Bharatbhai Ghelabhai Parmar and Somabhai
Ghelabhai Parmar;
(c) Bhathibhai @ Bharatbhai Ghelabhai Parmar and Somabhai
Ghelabhai Parmar were residing at village Atladara,
plaintiff's father and the plaintiff were cultivating the suit
land;
(d) in the year 1997, as aforenamed Bhathibhai @ Bharatbhai
Ghelabhai Parmar and Somabhai Ghelabhai Parmar were in
financial difficulties, they decided to sell the suit property to
the plaintiff and the plaintiff paid sale consideration;
(e) the sale-deed was not executed in view of the fact that the
plaintiff was in possession of the suit property;
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(f) the plaintiffs state that as there were disputes, Civil Suit
No.318 of 2003 (New Suit No.220 of 2015) is filed wherein
the present defendant is also party defendant in the said suit;
(g) Bhathibhai @ Bharatbhai Ghelabhai Parmar and Somabhai
Ghelabhai Parmar in collusion with each other executed sale-
deed in favour of defendant no.1 on 10.03.2003;
(h) the plaintiff is in possession of the suit property since more
than 12 years;
(i) the relief that has been sought in the plaint is to declare that
defendant no.1 is not entitled to take possession of the suit
property and to declare that the plaintiff is the owner of the
property in view of the fact that the plaintiff is in possession
of the property since last more than 12 years.
7.2 As the plaintiff has referred to Civil Suit No.318 of 2003, the
pleadings of the said suit can be referred to as the same are part of the
pleadings of the plaintiff in the plaint and if the said pleadings of Civil
Suit No.318 of 2003 are taken into consideration, the following things
emerge:-
(a) the owner of the suit property were Bhathibhai @ Bharatbhai
Ghelabhai Parmar and Somabhai Ghelabhai Parmar;
(b) during the lifetime of Bhathibhai @ Bharatbhai Ghelabhai
Parmar and Somabhai Ghelabhai Parmar, as they were in
financial difficulties in the year 1998, mortgage-deed was
executed on 19.06.1997 whereby the possession of the
property was handed over to the plaintiff for an amount of
Rs.14,000/-;
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(c) moreover, further amount of Rs.15,000/- was given on
01.06.1999 by the plaintiff to aforesaid Bhathibhai @
Bharatbhai Ghelabhai Parmar and Somabhai Ghelabhai
Parmar and it was agreed that the plaintiff shall be in
possession of the property till the time aforesaid Bhathibhai
@ Bharatbhai Ghelabhai Parmar and Somabhai Ghelabhai
Parmar are paying the said amount of mortgage and redeem
the said mortgage and, therefore, it is the case of the plaintiff
in Civil Suit No.318 of 2003 that the plaintiff is in
possession of the property pursuant to the said mortgage-
deed;
7.3 The fact remains that at one breath, the plaintiff has put forward his
case that he is in possession of the property by way of mortgage-deed and
in another suit, the plaintiff has come forward with the case that
defendant nos.1 and 2 had agreed to sell the suit property to defendant
nos.1 and 2 of Civil Suit No.318 of 2003 and, therefore, it can clearly be
established that the plaintiffs has not come before this Court with clean
hands. The fact also remains that there are contradictory pleadings in
Civil Suit No.318 of 2003 and the present Civil Suit No.53 of 2021. The
fact also is required to be considered that the plaintiff though was aware
of existence of the present defendant while filing Civil Suit No.318 of
2003, has not challenged the said sale-deed executed in the year 2003 till
date. Moreover, even in the present suit, though the plaintiff is stating that
sale-deed executed by Bhathibhai @ Bharatbhai Ghelabhai Parmar and
Somabhai Ghelabhai Parmar in favour of the defendant, the said sale-
deed has not been challenged and the plaintiff is claiming to be in
possession of the property by way of adverse possession and the
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pleadings of Civil Suit No.318 of 2003, state that the plaintiff is in
possession of the property by way of mortgage-deed and till the time the
entire amount is repaid by the defendant nos.1 and 2, the plaintiff cannot
be evicted from the suit property.
7.4 The fact also remains that, the plaintiffs who are claiming adverse
possession, have miserably failed to show that, on what date he came into
possession and that what was the nature of his possession and whether the
factum of possession, was known to the defendant and since how long his
possession has continued and the plaintiffs have also miserably failed to
prove that his possession was open and undisturbed. All the above
referred ingredients are not mentioned in the pleadings and are also not
proved in evidence and therefore, when there are no proof in the
pleadings and there is no oral or documentary evidence, the case of the
plaintiffs without evidence will not establish a case in law. Moreover,
mere possession of the land by the plaintiffs would not ripen into
possessory title. The plaintiffs to claim right by adverse possession must
have intention and hold the suit property adverse to the title of the
defendant.
7.5 Moreover, with respect to the claim of the plaintiffs to be in
adverse possession, the possession of the suit property by the plaintiffs
contemplates a hostile possession i.e. a possession which is impliedly or
expressly in denial of the title of the true owner and for claiming
possession to be adverse, the same must be a possession by the plaintiffs,
who does not acknowledge either the defendant's right or anybody else's
right, but also denies the said right. The plaintiffs possession for claiming
adverse possession had to imply a control and consciousness in the mind
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of the plaintiffs having dominion over an object that plaintiffs have
adverse possession and only then can plaintiffs exercise it, and therefore
by only holding possession of the suit property would not entitle the
plaintiffs into possessory title as there has to be an element to hold the
suit property adverse to the title of the true owner.
7.6 Moreover, the possession of the premises of the plaintiffs only
implies the bare use of the land without any right to retain it and
therefore, in order to constitute adverse possession, the plaintiffs must
prove that the actual possession of the plaintiffs was claimed by the
plaintiffs as of right by himself or by persons deriving title from him and
therefore, it was not sufficient for the plaintiffs to prove adverse
possession to show just the possession of property and for the claim of
adverse possession, the said possession along with being actual, visible
exclusive has to be hostile and continued during the time necessary to
create a bar under the statute of limitation. It is not enough for the
plaintiffs to prove that he was in actual possession of the property within
period of limitation, but the plaintiffs must establish his title to the
property and if the plaintiffs fail to prove his title, the suit fails and the
question of adverse possession does not arise in such a case.
7.7 The fact also remains that the sale-deed executed in the year 2003
has not been challenged by the plaintiff and, therefore, the suit is on
illusionary cause of action. This is also in view of the well-established
propositions of law. Hon'ble Supreme Court has time and again reiterated
that such frivolous litigations must be nipped in the bud. However, it is
the duty of the Court perusing the Plaint through the lens of Order VII
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Rule 11 to scrutinize the same and see through the clever drafting.
7.8 If that is not done, the Courts would be acting as a mute spectator
and umpire in a match, which is impermissible. The Court is not expected
to wait till the contest between the parties is over to give its judgment. In
fact, the duty enjoined on a Court is to actively participate in trials and
weed out all the frivolous litigations. No litigant will come to the Court
stating that it has no cause of action. However, whether or not the cause
of action so pleaded is illusory or triable must be seen by the Court.
7.9 In T. Arivanandam v. T.V. Satyapal (1977) 4 SCC 467 Hon'ble
Apex Court held that while considering an application under Order VII
Rule 11 CPC what is required to be decided is whether the plaint
discloses a real cause of action, or something purely illusory, in the
following words : (SCC p. 470, para 5)
"5. ...The learned Munsif must remember that if on a
meaningful - not formal - reading of the plaint it is
manifestly vexatious, and meritless, in the sense of not
disclosing a clear right to sue, he should exercise his
power under Order VII, Rule 11 CPC taking care to see
that the ground mentioned therein is fulfilled. And, if
clever drafting has created the illusion of a cause of
action, nip it in the bud at the first hearing ..."
7.10 Therefore, the Hon'ble Supreme Court has laid down principles
where the Court must see through the clever drafting in order to come at
the conclusion of whether the Plaint is a result of an illusory cause of
action or a triable one.
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7.11 Hon'ble Apex Court further in Dahiben v. Arvindbhai Kalyanji
Bhanusali, (2020) 7 SCC 366 has explained the scope of the powers
under Order VII Rule 11 in detail after considering several judgments of
the Hon'ble Apex Court:
"23.3. The underlying object of Order 7 Rule 11(a) is that
if in a suit, no cause of action is disclosed, or the suit is
barred by limitation under Rule 11(d), the court would not
permit the plaintiff to unnecessarily protract the
proceedings in the suit. In such a case, it would be
necessary to put an end to the sham litigation, so that
further judicial time is not wasted.
23.4. In Azhar Hussain v. Rajiv Gandhi [Azhar Hussain v.
Rajiv Gandhi, 1986 Supp SCC 315. Followed
in Manvendrasinhji Ranjitsinhji Jadeja v. Vijaykunverba,
1998 SCC OnLine Guj 281 : (1998) 2 GLH 823] this Court
held that the whole purpose of conferment of powers under
this provision is to ensure that a litigation which is
meaningless, and bound to prove abortive, should not be
permitted to waste judicial time of the court, in the
following words : (SCC p. 324, para 12)
"12. ... The whole purpose of conferment of such
powers is to ensure that a litigation which is
meaningless, and bound to prove abortive should not be
permitted to occupy the time of the court, and exercise
the mind of the respondent. The sword of Damocles
need not be kept hanging over his head unnecessarily
without point or purpose. Even in an ordinary civil
litigation, the court readily exercises the power to
reject a plaint, if it does not disclose any cause of
action."
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23.5. The power conferred on the court to terminate a civil
action is, however, a drastic one, and the conditions
enumerated in Order 7 Rule 11 are required to be strictly
adhered to.
23.6. Under Order 7 Rule 11, a duty is cast on the court to
determine whether the plaint discloses a cause of action by
scrutinising the averments in the plaint [Liverpool &
London S.P. & I Assn. Ltd. v. M.V. Sea Success I, (2004) 9
SCC 512] , read in conjunction with the documents relied
upon, or whether the suit is barred by any law.
23.8. Having regard to Order 7 Rule 14 CPC, the
documents filed along with the plaint, are required to be
taken into consideration for deciding the application under
Order 7 Rule 11(a). When a document referred to in the
plaint, forms the basis of the plaint, it should be treated as
a part of the plaint.
23.9. In exercise of power under this provision, the court
would determine if the assertions made in the plaint are
contrary to statutory law, or judicial dicta, for deciding
whether a case for rejecting the plaint at the threshold is
made out.
23.11. The test for exercising the power under Order 7
Rule 11 is that if the averments made in the plaint are
taken in entirety, in conjunction with the documents relied
upon, would the same result in a decree being passed. This
test was laid down in Liverpool & London S.P. & I Assn.
Ltd. v. M.V. Sea Success I [Liverpool & London S.P. & I
Assn. Ltd. v. M.V. Sea Success I, (2004) 9 SCC 512] which
reads as : (SCC p. 562, para 139)
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"139. Whether a plaint discloses a cause of action or
not is essentially a question of fact. But whether it does
or does not must be found out from reading the plaint
itself. For the said purpose, the averments made in the
plaint in their entirety must be held to be correct. The
test is as to whether if the averments made in the plaint
are taken to be correct in their entirety, a decree would
be passed."
23.13. If on a meaningful reading of the plaint, it is found
that the suit is manifestly vexatious and without any merit,
and does not disclose a right to sue, the court would be
justified in exercising the power under Order 7 Rule 11
CPC.
23.15. The provision of Order 7 Rule 11 is mandatory in
nature. It states that the plaint "shall" be rejected if any of
the grounds specified in clauses (a) to (e) are made out. If
the court finds that the plaint does not disclose a cause of
action, or that the suit is barred by any law, the court has
no option, but to reject the plaint.
24.4. If, however, by clever drafting of the plaint, it has
created the illusion of a cause of action, this Court
in Madanuri Sri Rama Chandra Murthy v. Syed
Jalal [Madanuri Sri Rama Chandra Murthy v. Syed Jalal,
(2017) 13 SCC 174 : (2017) 5 SCC (Civ) 602] held that it
should be nipped in the bud, so that bogus litigation will
end at the earliest stage. The Court must be vigilant
against any camouflage or suppression, and determine
whether the litigation is utterly vexatious, and an abuse
of the process of the court.
7.12 Hence, in essence, if the Court is of the opinion that (i) no actual
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cause of action exists and the one pleaded is merely illusory or (ii) there
is suppression, camouflage in a litigation that is utterly vexatious and
abuse of process of law or (iii) taking all averments of the Plaint in its
entirety to be true, no decree can be passed or (iv) assertions made in the
Plaint are contrary to judicial dicta or law, etc. the Plaint ought to be
rejected. It is pertinent to be noted here that upon arriving at such finding
or conclusion, rejection of the Plaint is not discretionary but in fact, is
mandatory.
8. In view of the foregoing, the present Plaint is barred by Law and
hence, the same is required to be rejected under the provisions of Order
VII Rule 11. Consequently, the present Civil Revision Application
deserves to be allowed and it is allowed accordingly. The Plaint in
Regular Civil Suit No.53 of 2021 is hereby rejected. Rule is made
absolute.
(SANJEEV J.THAKER,J)
MISHRA AMIT V.
