Karnataka High Court

Mohammed Rafiq S/O Md. Yusuf ... vs Imtiyaz S/O Mohammed Hanif ... on 6 December, 2021

Bench: M.G.S.Kamal

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         IN THE HIGH COURT OF KARNATAKA
                KALABURAGI BENCH

     DATED THIS THE 6TH DAY OF DECEMBER, 2021

                      BEFORE

        THE HON'BLE MR.JUSTICE M.G.S.KAMAL

      CIVIL REVISION PETITION No. 200012/2020

BETWEEN

MOHAMMED RAFIQ
S/O MD. YUSUF NALABAND
AGE: 40 YRS., OCC: DOCTOR,
R/O: NALABAND GARDEN, MOHISIN MANZIL,
BADIKAMAN, VIJAYAPUR.
                                    ...PETITIONER

(BY SRI SHIVANAND PATIL, ADVOCATE)

AND

1.     IMTIYAZ S/O MOHAMMED HANIF NALABAND
       AGE: 50 YRS., OCC: BUSINESS & AGRI,
       R/O: NALABAND GARDEN, NEAR
       BANDIKAMAN, VIJAYAPUR.

2.     MD. AYUB S/O MD. YUSUF NAIBAND
       AGE: 49 YRS OCC: BUSINESS
       R/O NALBAND GARDEN MOHISIN MANZIL
       BADIKAMA, VIJAYAPUR

3.     MD. MOHSIN S/O MD. YUSUF NAIBAND
       AGE: 39 YRS OCC: BUSINESS
       R/O NALBAND GARDEN MOHISIN MANZIL
       BADIKAMA, VIJAYAPUR
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4.    SMT. MEHBOOBI W/O MD. YUSUF NAIBAND
      AGE: 81 YRS OCC: HH WORK
      R/O NALBAND GARDEN MOHISIN MANZIL
      BADIKAMA, VIJAYAPUR

5.    SMT. HAMIDABEGUM W/O MEHBOOBSAB
      NAIBAND AGE: 49 YRS
      OCC: HH WORK, R/O NALBAND GARDEN
      MOHISIN MANZIL, BADIKAMA, VIJAYAPUR

6.    SMT. JAHARA W/O ABUBKAR GALGALI
      AGE: 46 YRS OCC: GOVT TEACHERE
      R/O NALBAND GARDEN MOHISIN MANZIL
      BADIKAMA, VIJAYAPUR

7.    SMT. SHAMSHADBEGUM
      W/O ABDUL RAZAQ MOMIN AGE: 59 YRS
      OCC: HOUSEHOLD, R/O MOSIN HOUSE
      SANGOLGI ROAD, OPP KEB OFFICE
      MUDDEBIHAL TQ:MIDDEBIHAL
      DIST: VIJAYAPUR

8.    SMT. JAIBUNISSA W/O SAHEBMODDIN
      MOMIN, AGE: 58 YRS, OCC: HH WORK
      R/O SAHEBMODDIN MOMIN RETD.
      CONDUCTOR MOMIN GALLI MUDDEBIHAL
      DIST: VIJAYAPUR

9.    SMT. SALEEMA W/O MEHMOOD SHEIKH
      AGE: 53 YRS OCC: HH WORK
      R/O NALBAND GARDEN MOHISIN MANZIL
      BADIKAMA, VIJAYAPUR

10.   SMT. NASIMA ARA W/O MD. IRFAN
      CHATTARKI, AGE: 51 YRS
      OCC: GOVT. TEACHER, R/O MD. IRFAN
      CHAATTARKI NEAR ZANDA KATTA
      C/O ASLAM MUJAWAR SIRRESIDENT
      JM ROAD, VIJAYAPUR
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11.   THE STATE OF KARNATAKA
      REPRESENTED BY DEPUTY
      COMMISSIONER, VIJAYAPUR

12.   ASSISTANT DIRECTOR OF LAND
      RECORDS(ADLR) VIJAYAPUR

13.   THE COMMISSIONER
      URBAN DEVELOPMENT AUTHORITY
      (VUDA), VIJAYAPUR

14.   MUSTAQ AHMED S/O DASTGIRSAB INDIKAR
      AGE: 65 YRS, OCC: ADVOCATE
      R/O AMMENA MANZIL DARBAR GALLI JM
      ROAD, VIJAYAPUR
                                   ...RESPONDENTS

(BY SRI MAHANTESH PATIL, ADVOCATE FOR C/R1;
SMT. MAYA T. R., HCGP FOR R11 & R12)

      THIS CRP OS FILED U/S. 115 OF THE CPC,1908,
PRAYING THAT THIS HON BLE COURT TO ALLOW THIS
REVISION PETITION AND SET ASIDE THE IMPUGNED
ORDER DATED 25.09.2019 ON I.A.NO.VII IN O.S.NO.
98/2017 ON THE FILE OF III ADDL. SENIOR CIVIL JUDGE
AND JMFC, VIJAYPUR AS PER ANNEXURE-E TO THE
REVISION   PETITION   AND   RESULTANTLY   ALLOW   THE
APPLICATION I.A-VII OF THE PETITIONER IN THE SAID
SUIT, IN THE INTEREST OF JUSTICE.


      THIS PETITION COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:-
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                               ORDER

The present civil revision petition is filed by

defendant No.1 aggrieved by the order passed on I.A.VII

by the III Additional Senior Civil Judge, Vijayapur in

O.S.No.98/2017. The said suit has been filed by the

plaintiff therein seeking for the following reliefs:

"a) Declaring the O.S.No.94/2008 is null and void and same is liable to be set aside.

b) Further issue the permanent injunction order restraining the defendant No.1 to 10 not to encroach the plot No.27 and lane or bole which belongs to the public.

c) Further pass an order remove the encroachment made by the defendant No.1 to 10 in the plot No.27 and the lane which belongs to the defendant No.13.

d) Further the Hon'ble Court may pleased to pass an order directing the defendant No.11 to 13 maintain the plot No.27 and lane or bole as clean and using by the public as open space or playground.

e) Allow the amendment of the plaint as and when necessary.

f) Any other reliefs may be award in favour of the plaintiffs which deemed fit.

g) Cost of the suit be awarded."

2. The defendant No.1 had filed an application

under Order 7 Rule 11 of CPC seeking rejection of the

plaint on the premise that the plaintiff has not disclosed

the cause of action in his plaint and that mere appearing in

FDP No.24/2011 and filing an application to implead

therein would not lend the credence to the cause of action

for filing of the suit and hence, sought for rejection of the

plaint. The Trial Court by its order, which is impugned in

this petition, has rejected the said application. Aggrieved

by the same, defendant No.1 is before this Court.

3. The learned counsel for the

petitioner/defendant No.1 reiterating the grounds urged in

the petition submitted that the Trial Court has failed to

consider that the cause of action is a bundle of essential

facts upon which, the plaintiff asked the Court to arrive at

a conclusion in his favouor. He further submits that since

a reading of the entire plaint would not disclose the cause

of action justifying grant of prayer, the plaintiff's suit ought

to have been rejected under Order 7 Rule 11 of CPC. He

further submits that the plaintiff has not made any specific

averment in the plaint regarding property in respect of

which he is claiming releif and in what capacity and also

with regard to location and identity of the property. He

submits that in the absence of any specific pleading with

regard to the identity and location of the property and also

with regard to the reliefs sought for by the plaintiff, the

plaint would not survive for consideration and shall be

rejected at the threshold. He relied upon the following

judgments:

i. In the case of T. Arivandandam vs.

T.V.Satyapal and Another reported in AIR 1977

SC 2421.

ii. In the case of Sardar Khan Khokhar vs.

Devji Patel & Ors. Reported in AIR 2012

RAJASTHAN 22.

iii. In the case of Bhau Ram vs. Janak Singh &

Ors. reported in AIR 2012 SC 3023.

4. The learned counsel for the respondents on the

other hand submits that the plaintiff is seeking the relief in

respect of Plot Nos.26 and 27 and a long lane or bole,

which are situated on the western side of the property

belonging to the plaintiff and that the said portion of

property is public property. He further submits that since

in the compromise decree obtained by the defendants in

O.S.No.94/2008, the defendants by deliberately

misguiding the Court have included the aforesaid Plot

Nos.26 and 27 and long lane of bole into their property.

He also submits that the said property being the public

property, the plaintiff has right to maintain the suit seeking

the relief of permanent injunction and removal of

encroachment thereon. He refers to the pleadings made in

this regard in the plaint. He also placed reliance on the

following judgments:

i. In the case of Pratibha Singh and Another vs.

Shanti Devi Prasad and Another reported in

(2003) 2 SCC 330.

ii. In the case of Niyamat Ali Molla vs.

Sonargon Housing Co-operative Society Ltd.,

and Ors. Reported in AIR 2008 SC 225.

iii. In the case of Hari Ram vs. Jyoti Prasad and

Another reported in (2011) 2 SCC 682.

5. Heard the learned counsel for the parties.

6. On haring the rival submission made by the

learned counsel for the parties, the point that arises for

consideration is:

"Whether the Trial Court is justified in rejecting the application filed by defendant No.1 under Order 7 Rule 11 of CPC?"

7. It is settled position of law that rejection of

plaint under Order 7 Rule 11 of CPC has to be only on the

basis of plaint averments and nothing else. If the plaint

averments do not disclose cause of action or if its barred

under any law, the plaint deserves to be rejected.

8. Paragraph No.11 of the plaint filed by the

plaintiff is as under:

"11. Further it is submitted that the plaintiff's property is situated in the eastern side of the plot No.26, in between plot No.26 and present plaintiff's property there is a long land or bole which is situated North to South, this property and plot No.26 and 27 claiming the present defendants No.1 to 10 as their properties and they are intentionally, wrongly misguided the Hon'ble Court and obtained the wrong decree. Hence, the plaintiff has filed this suit for claiming appropriate and proper relief from this Hon'ble Court for setting aside the decree and passing the permanent injunction restraining the defendant No.1 to 10 not to encroach or interfere in the plot NO.27 and lane or bole belongs to the public or government. Hence the plaintiffs have no other way but to file this suit."

9. The prayer Nos. b, c and d of the plaint are as

under:

"b) Further issue the permanent injunction order restraining the defendant No.1 to 10 not to encroach the plot No.27 and lane or bole which belongs to the public.

c) Further pass an order remove the encroachment made by the defendant No.1 to 10 in the plot No.27 and the lane which belongs to the defendant No.13.

d) Further the Hon'ble Court may pleased to pass an order directing the defendant No.11 to 13 maintain the plot No.27 and lane or bole as clean and using by the public as open space or playground."

10. It is also settled position of law that cause of

action is bundle of facts. Apart from that, the plaintiff has

to establish existence of his right in respect of the subject

matter of the suit. Holistic reading of the plaint reveal that

Plot Nos.26 and 27 along with long land or bole, which the

plaintiff is claiming to be existing on the western side of

the his property appears to be a public property. The

averments made in paragraph No.11 and the reliefs

claimed therein suggests that plaintiff is espousing the

cause of public at the same date claiming his right to use

the same. Though, it is contended by the defendants

that there exists no Plot Nos.26 and 27 or the bole or long

lane as claimed in the plaint said contention is a question

of fact requires to be gone into during the trial. If the

plaintiff fail to establish existence of such property he

would fail. However, at this juncture, there may not be a

case for rejection of the plaint at the threshold.

11. The Apex Court in the case of Hari Ram

(Supra) at paragraph No.19 to 22 of its judgment has held

as under:

"19. The next plea which was raised and argued vehemently by the learned senior counsel appearing for the appellant was that the suit was bad for non-compliance of the provisions of Order I Rule 8 of the CPC. The said submission is also found to be without any merit as apart from being a representative suit, the suit was filed by an aggrieved person whose right to use public street of 10 feet width was prejudicially affected. Since affected person himself has filed a suit, therefore, the suit cannot be dismissed on the ground of alleged non-compliance of the provisions of Order I Rule 8 of the CPC.

20. In this connection, we may appropriately refer to a judgment of the Supreme in Kalyan Singh, London Trained Cutter, Johri Bazar, Jaipur Vs. Smt. Chhoti and Ors. reported in AIR 1990 SC. In paragraph 13 of the said judgment, this Court has held that suit could be instituted by representative of a particular community but that by itself was not sufficient to constitute the suit as representative suit inasmuch as for a representative suit, the permission of Court under Order I Rule 8 of the CPC is mandatory.

21. In paragraph 14 of the said judgment, it was also held that any member of a community may successfully bring a suit to assert his right in the community property or for protecting such property by seeking removal of encroachment therefrom and that in such a suit he need not comply with the requirements of Order I Rule 8 CPC. It was further held in the said case that the suit against alleged trespass even if it was not a

representative suit on behalf of the community could be a suit of this category.

22. In that view of the matter and in the light of the aforesaid legal position laid down by this Court, we hold that the suit filed by the plaintiff/respondent No. 1 was maintainable."

12. In the light of the above law laid down by

before Court. The plaintiff is therefore entitled to maintain

the suit since it is his claim that plot Nos.26 and 27 along

with bole situated at the western side of his property being

the public property has been included by the defendants in

the compromise decree obtained by them in

O.S.No.94/2008 thereby depriving the plaintiff and the

public at large from utilizing and enjoying the said public

property.

13. In the facts and circumstances of the matter,

the application under Order 7 Rule 11 of CPC cannot be

entertained. Though the Trial Court has taken into