(BY SRI. GIRISH A. YADAWAD, ADVOCATE FOR R1;
SRI. SOURABH HEGDE, ADVOCATE FOR R2)
THIS CIVIL REVISION PETITION IS FILED UNDER SECTION
115 OF CIVIL PROCEDURE CODE 1908, PRAYING TO SET ASIDE
THE ORDER OF THE COURT OF THE ADDITIONAL CIVIL JUDGE AND
JUDICIAL MAGISTRATE FIRST CLASS, MUDHOL AT MUDHOL,
PASSED IN OS NO. 36/2022 IN IA NO. V DATED 23-09-2024 VIDE
ANNEXURE-A, BY ALLOWING THE APPLICATION AND THIS HON'BLE
COURT MAY KINDLY BE PLEASED TO DISMISS THE SUIT OF THE
PLAINTIFF HOLDING THAT THERE IS NO CAUSE OF ACTION AND IS
BARRED BY LIMITATION, BY ALLOWING THIS CIVIL REVISION
PETITION WITH COSTS AND PASS SUCH OTHER ORDERS AS THIS
HON'BLE COURT DEEMS FIT TO PASS IN THE CIRCUMSTANCES OF
THE CASE, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS CIVIL REVISION PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 05.11.2025, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
Sri.Kashimasab is defendant No.1. The petitioner No.2-
Sri.Akabarasab is defendant No.2. Respondent Nos.1 and 2 are
plaintiff and defendant No.3, respectively. The relationship between
the parties is as follows. One Sri.Rajesab had two sons, Sri.Allisab
and Sri.Mohammadsab. One Sri.Yakubasab is the son of Sri.Allisab.
Sri.Yakubasab. Sri.Mohammadsab had a son by name
Sri.Maibubasab. Respondent No.1-plaintiff is the son of Sri.
3.2. A registered sale deed comes to be executed by the
petitioners-defendant Nos.1 and 2 in favour of defendant No.3. On
empt the sale. This leads the protagonists to the competent Civil
injunction. The petitioners-defendant Nos.1 and 2 filed their Written
defendant No.3 and other parties. However, the respondent No.1-
plaintiff has only impleaded defendant No.3 into the suit. The
of the plaint in O.S.No.36/2022 urging several contentions. The
rejects the application holding it to be a matter of trial. The
action is a bundle of facts and would require a full-fledged trial. The
by the Apex Court in A.RAZZAQUE SAJANSAHEB BAGWAN vs.
IBRAHIM HAJI MOHAMMED. HUSAIN1, wherein at para 3, it
Therefore, they do not inherit an undivided share in the property. It
is his submission that the right to pre-emption or pre-emption can
be claimed only if there are three demands made immediately after
the sale is completed. In the case at hand, the sale was completed
on 12.01.2022, right of pre-emption was only on 19.01.2022. Thus,
the plaintiff did risk loosing his right to pre-emption since the claim
was made by him belatedly. The concerned court ought to have
rejected the claim of right of pre-emption on the said ground.
5. Per contra, learned counsel appearing for the plaintiff
would vehemently contend that under Mohammedan Law, three
categories of people may seek pre-emption (1) co-sharers (shafi-i-
sharik), (2) a person participating in the appendages and
immunities such as right of way or discharging of water (shafi-i-
khalit) and an adjacent land owner (shafi-i-jar). It is his submission
that even if it is held that respondent No.1-plaintiff is not a co-
sharer, it is an admitted fact that the property was divided from a
common ancestor. Therefore, he gets his right. It is his submission
that plaintiff is also an adjacent land owner and would therefore
come under the category of adjacent land owner (shafi-i-jar). He
would seek dismissal of the petition.
6. I have given my anxious consideration to the
submissions made by the respective learned counsels and have
perused the material on record. In furtherance whereof, the only
issue that falls for consideration is:
"Whether the application filed by these petitioners
must be allowed resulting in rejection of the plaint or
dismissed resulting in a trial being conducted on the
issues?"
7. The entire fulcrum of the lis revolves around the right to
claim pre-emption under Mohammedan Law. The respondent No.1-
plaintiff projects that Sri.Mohammadsab is the propositus but a
perusal at the family tree would show the defendant Nos.1 and 2
are not from the branch of Sri.Mohammadsab and family.
Defendant Nos.1 and 2 are from the branch of Sri.Allisab's family,
whereas the plaintiff is from the branch of Sri.Mohammadsab. The
family tree is extracted in the plaint. The petitioners-defendant
Nos.1 and 2 through their application claimed that the schedule
property is a self-acquired property of Sri.Allisab, but cannot be
claimed as the self-acquired property of Sri.Mohammadsab who is
said to be the propositus. The claim is over a right of pre-
emption. It therefore, becomes necessary to consider who
can claim the right of pre-emption: (1) co-sharer (shafi-i-
sharik), (2) participation in common appendages and
immunities (shafi-i-Khalit) and (3) adjacent land owner
(shafi-i-jar).
8. The first category who can claim pre-emption as observed
hereinabove are the co-sharers. Whether the subject property is the
self-acquired property of Sri.Mohammadsab or Sri.Allisab, is
undoubtedly a matter of trial. Therefore, the rejection of a plaint on
the score of an application being filed under Order VII Rule 11 read
with Section 151 of CPC, is not tenable. The second category of
right for claiming pre-emption is participation in common
appendages and immunities. It is trite that every common right and
every easementary right does not make a person participation in
common appendages and immunities (shafi-i-khalit). A customary
right of pre-emption is a legacy of the Mohammedan Law and text
on this law confines the right of pre-emption in the case of shafi-i-
khalit, to a partner in the right of way or discharge of water. Only
persons who are benefited by a common channel may claim right of
pre-emption as 'shafi-i-khalit'. The Allahabad High Court considers
this issue of who can claim right of pre-emption as shafi-i-khalit in
JAGDISH SHARAN vs. BRIJ RAJ KISHORE2, wherein at paras 15
to 21, it holds as follows:
"15. Every common right and every easementary right
does not make a person a Shafi-i-Khalit. The
customary right of pre-emption is a legacy of the
Mohammadan Law and the texts on this law confine
the right or pre-emption in the case of Shafi-i-Khalit to
a partner in the right of a way or of water.
16. Ballia's Digest of Mohammadan Law while quoting
'Hidayah' at page 476 writes:
"Khulset means, literally, 'mixed with".
17. It further says:
"Through rights of water and way are given as examples of
Shafi-i-Khalit it does not appear that a Khulset in any other
right than these has the right of pre-emption."
18. While illustrating the right of pre-emption in the case of
partner in the right of water it mentions that:
"as to a small channel from which several lands or several
vineyards are watered, and some of the lands or some of the
vinewards watered by it are sold:--all the partners are pre-
emptors, without any distinction between those who are and
those who are not adjoining. But if the channel is large, the
right of pre-emption belongs to the adjoining neighbour."
19. The nature of a partnership in water contemplated
by the law-givers there appears to be that of persons
who are benefited by the private common channel.
Right of water contemplated is right to the use of
water. Neither the texts, nor the decided cases lay
down that easements of all kinds conferred right of
pre-emption in the nature of Khalit.
20. In Sayed Haji Imambaksh Shah v. Mir Muhammadali
Khan Haji Ali Murad Khan [223 Indian Cases 634 equal to
1972 SCC OnLine All 60
A.I.R. 1946 Sind 55.] it was laid down that where the
owners of the land have the right to draw water from a
Government watercourse they cannot claim the right of
preemption as Shafi-i-Khalit. This does not make them co-
sharers in appendages or give them easementary rights over
the neighbour's land.
21. Similarly the Rajasthan High court in Ladu Ram v. Kalyan
Sahai [A.I.R. 1963 Rajasthan 195.] has held that the right of
pre-emption as Shafi-i-Khalit cannot be claimed on the basis
of a right of light and air and that right does not extend to
easements other than the right of way and water."
(Emphasis supplied)
If the findings of the Allahabad High Court are considered qua the
facts in the case at hand, a hand sketch map is appended to the
plaint. There is a common pathway and a common canal that is
common to both petitioners-defendant Nos.1 and 2's land and the
plaintiff's land and the sketch provided by defendants along with
their Written Statement is at a little variance as the defendants also
state of a presence of a common road to be the public road.
Therefore, this comes within the realm of disputed questions of
fact. In that light, the issue would require leading of evidence and
its appreciation at the appropriate stage before the trial Court.
9. The third ground on which pre-emption can be claimed is
by an adjacent land owner. The respondent No.1 claims that he is
the adjacent land owner even if he is not the member of the family
nor has participated in the common appendages and immunities. In
terms of the plaint averment, the plaintiff's land is said to be
adjacent to the land of the petitioners-defendant Nos.1 and 2. The
claim for pre-emption by the respondents is on this score. The Apex
Court in the case of A.RAZZAQUE SAJANSAHEB BAGWAN supra
has held that right of pre-emption by vicinage on one being
adjacent land owner, is unconstitutional. In the light of the Apex
Court holding that right of pre-emption on vicinage who is adjacent
land owner being unconstitutional, this Court need not delve deep
into the said issue. What remains is right of pre-emption to be
claimed on the aforesaid two grounds. This undoubtedly would be a
matter of trial.
10. It becomes apposite to refer to the judgments of the Apex
Court with regard to entertainment of an application under Order
VII Rule 11 of CPC in the teeth of disputed questions of fact.
10.1. The Apex Court in RBANMS EDUCATIONAL
INSTITUTION vs. B. GUNASHEKAR3, at para 15, holds as
follows:
"15. Order VII Rule 11(a) CPC mandates rejection of
the plaint where it does not disclose a cause of action.
In Om Prakash Srivastava v. Union of India, this Court
pointed out that cause of action means every fact
which, if traversed, would be necessary for the
plaintiff to prove in order to support their right to
judgment. It consists of bundle of facts which narrate
the circumstances and the reasons for filing such suit.
It is the foundation on which the entire suit would
rest. Therefore, it goes without saying that merely
including a paragraph on cause of action is not
sufficient but rather, on a meaningful reading of the
plaint and the documents, it must disclose a cause of
action. The plaint should contain such cause of action
that discloses all the necessary facts required in law to
sustain the suit and not mere statements of fact which
fail to disclose a legal right of the plaintiff to sue and
breach or violation by the defendant(s). It is pertinent
to note here that even if a right is found, unless there
is a violation or breach of that right by the defendant,
the cause of action should be deemed to be unreal..."
(Emphasis supplied)
10.2. The Apex Court in the case of P.
KUMARAKURUBARAN vs. P. NARAYANAN4, at para 12.1, holds
as follows:
"12.1. However, we are of the considered view that
the issue as to whether the appellant had prior notice or
reason to be aware of the transaction at an earlier point
2025 SCC OnLine SC 793
2025 SCC OnLine SC 975
of time, or whether the plea regarding the date of
knowledge is credible, are matters that necessarily
require appreciation of evidence. At this preliminary
stage, the averments made in the plaint must be taken at
their face value and assumed to be true. Once the date of
knowledge is specifically pleaded and forms the basis of
the cause of action, the issue of limitation cannot be
decided summarily. It becomes a mixed question of law
and fact, which cannot be adjudicated at the threshold
stage under Order VII Rule 11 CPC. Therefore, rejection
of the plaint on the ground of limitation without
permitting the parties to lead evidence, is legally
unsustainable."
(Emphasis supplied)
10.3. The Apex Court in the case of URBAN
INFRASTRUCTURE REAL ESTATE FUND v. NEELKANTH
REALTY PRIVATE LIMITED5, at paras 87 and 89, holds as
follows:
"87. Upon such a situation arising, i.e., when a mixed
question of fact and law arises in deciding an application
under Order VII Rule 11(d), what must be the approach
adopted by the court? The suit must be allowed to
proceed and the application under Order VII Rule 11(d)
must be rejected for the reason that the issue needs a
more elaborate consideration by the court and that the
court is not convinced that the matter be kicked out at
the threshold. The same is borne out of the decision of this
Court in Pawan Kumar v. Babulal, (2019) 4 SCC 367 which
observed as follows:--
"13. In the present case, the controversy has
arisen in an application under Order 7 Rule 11 CPC.
Whether the matter comes within the purview of Section
2025 SCC OnLine SC 2380
4(3) of the Act is an aspect which must be gone into on
the strength of the evidence on record. Going by the
averments in the plaint, the question whether the plea
raised by the appellant is barred under Section 4 of the
Act or not could not have been the subject-matter of
assessment at the stage when application under Order 7
Rule 11 CPC was taken up for consideration. The matter
required fuller and final consideration after the evidence
was led by the parties. It cannot be said that the plea of
the appellant as raised on the face of it, was barred
under the Act. The approach must be to proceed on a
demurrer and see whether accepting the averments in
the plaint the suit is barred by any law or not. We may
quote the following observations of this Court in Popat
and Kotecha Property v. SBI Staff Assn. [Popat and
Kotecha Property v. SBI Staff Assn., (2005) 7 SCC 510]
: (SCC p. 515, para 10)
"10. Clause (d) of Order 7 Rule 7 speaks of
suit, as appears from the statement in the plaint to
be barred by any law. Disputed questions cannot be
decided at the time of considering an application filed
under Order 7 Rule 11 CPC. Clause (d) of Rule 11 of
Order 7 applies in those cases only where the
statement made by the plaintiff in the plaint, without
any doubt or dispute shows that the suit is barred by
any law in force."
14. We, therefore, allow this appeal, set aside
the view taken by the courts below and dismiss the
application preferred by the second defendant under
Order 7 Rule 11 CPC. Since the suit has been pending
since 2006, we direct the trial court to expedite the
matter and dispose of the pending suit as early as
possible and preferably within six months from today.
Needless to say that the merits of the matter will be
gone into independently by the trial court."
(Emphasis supplied)
89. Therefore, it is inherent in the nature of a
decision as regards the rejection of a plaint that, if the
court deems it fit to not reject the plaint at the threshold
upon an examination of the averments in the plaint, the
ground that the suit is still barred by any law can be
taken by the defendant in the course of the suit
proceedings, after leading evidence. This is because the
defendant is not given an opportunity to place his
defence as regards the issue that the suit is barred by
any law, on record, during the Order VII Rule 11(d)
stage. Even if he does, the court would not look into the
defendant's written statements or any evidence which he
may want to adduce. Therefore, a decision which goes against
him, without giving him an opportunity to properly defend it,
must not be to his detriment. Since a plea of demurrer is akin to
an application made under Order VII Rule 11(d), the same
principles must apply."
(Emphasis supplied)
10.4. The Apex Court in the case of KARAM SINGH v.
AMARJIT SINGH6, at para 15, holds as follows:
"15. Before we assess the correctness of the impugned
orders, we must remind ourselves of the basic principles
governing rejection of a plaint under Order 7 Rule 117 of
CPC. Here, the defendants seek rejection of plaint under
clause (d) of Rule 11 (i.e., suit barred by law). Clause (d)
makes it clear that while considering rejection of the
plaint thereunder only the averments made in the
plaint and nothing else is to be considered to find out
whether the suit is barred by law. At this stage, the
defense is not to be considered. Thus, whether the suit
is barred by any law or not is to be determined on the
basis of averments made in the plaint."
(Emphasis supplied)
11. On a coalesce of the judgments rendered by the Apex
Court, what would unmistakably emerge is that the cause of action
2025 SCC OnLine SC 2240
is always a bundle of facts which would require evidence in the
least. Closure or termination of a suit by rejection of a plaint must
be sparingly done. Once the date of knowledge is specifically
pleaded and forms the basis of cause of action, the issue of
limitation cannot be summarily decided. It becomes a question of
law and fact which cannot be adjudicated at the threshold stage.
When mixed question of fact and law arises in deciding the
application, it must be put to trial and while considering the
application seeking rejection of the plaint, it is only the plaint
averments that is required to be seen and not the defence set-up
by the defendants through their Written Statement or otherwise. If
the facts obtaining in the case at hand are considered on the
bedrock of the principles laid down by the Apex Court qua
consideration of an application under Order VII Rule 11 of CPC,
what would unmistakably emerge is rejection of the present petition
and permitting trial in the case at hand, as the issue of pre-emption
is on two grounds, one by co-sharers or their participation in the
appendages and immunities, which are matters of trial that cannot
be rejected at the threshold while answering the application under
Order VII Rule 11 of CPC.
12. On all the aforesaid grounds, the Civil Revision Petition
lacking in merit, stands rejected.
Sd/-
(M.NAGAPRASANNA)
JUDGE
CBC
CT:MJ
