Madhya Pradesh High Court

Dinesh Saxena vs Smt. Reena Devi on 8 August, 2023

Author: Sunita Yadav

-( 1 )- C.R. No. 177 of 2021

IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SMT. JUSTICE SUNITA YADAV

CIVIL REVISION No. 177 of 2021

BETWEEN:-
DINESH SAXENA S/O SHRI BAIJNATH
SAXENA SANIDEV MANDIR
1.
TARAGANJ LASHKAR, DISTRICT
GWALIOR (MADHYA PRADESH)
JYOTI SAXENA W/O SHRI SATISH
SAXENA SANIDEV MANDIR TARAGANJ
2
LASHKAR, DISTRICT GWALIOR
(MADHYA PRADESH)
SWATI SAXENA D/O SHRI SATISH
SAXENA SANIDEV MANDIR TARAGANJ
3
LASHKAR, DISTRICT GWALIOR
(MADHYA PRADESH)
SAKSHAM SAXENA S/O SHRI SATISH
SAXENA SANIDEV MANDIR TARAGANJ
4
LASHKAR, DISTRICT GWALIOR
(MADHYA PRADESH)
SUYASH SAXENA S/O SHRI SATISH
SAXENA SANIDEV MANDIR TARAGANJ
5
LASHKAR, DISTRICT GWALIOR
(MADHYA PRADESH)
RAJENDRA SAEXENA S/O SHRI
BAIJNATH SAXENA SANIDEV MANDIR
6
TARAGANJ LASHKAR, DISTRICT
GWALIOR (MADHYA PRADESH)
.....PETITIONERS
Signature Not (SHRI
Verified N.K. GUPTA- SENIOR ADVOCATE WITH MS. RASHI
Signed by: SANJAY
NAMDEORAO DURGEKAR
Signing time: 08-08-2023
03:37:56 PM
-( 2 )- C.R. No. 177 of 2021

KUSHWAH -LEARNED COUNSEL FOR THE PETITIONERS) .
AND

SMT. REENA DEVI W/O LATE SHRI
KAILASH KUMAR, AGED ABOUT 62
1. YEARS, BALABAI KA BAZAR LASHKAR,
DISTRICT GWALIOR (MADHYA
PRADESH)

SAGAR S/O LATE SHRI KAILASH KUMAR,
AGED ABOUT 31 YEARS, HOUSE NO. 58,59
2 SINGH BIHAR NADIGATE, LASHKAR
DISTRICT GWALIOR (MADHYA
PRADESH)
PUSHPA DEVI W/O LATE SHRI
HOTECHAND (HEMANT CHAND), AGED
ABOUT 72 YEARS, HOUSE NO. 58, 59
3
SINGH BIHAR, NADIGATE, LASHKAR
DISTRICT GWALIOR (MADHYA
PRADESH)
RAJENDRA KUMAR S/O LATE SHRI
HOTECHAND (HEMANT CHAND), AGED
ABOUT 60 YEARS, HOUSE NO. 58, 59
4
SINGH BIHAR, NADIGATE, LASHKAR
DISTRICT GWALIOR (MADHYA
PRADESH)
KAVITA DEVI W/O LATE SHRI SHIV
KUMAR, AGED ABOUT 66 YEARS, HOUSE
5 NO. 58, 59 SINGH BIHAR, NADIGATE,
LASHKAR, DISTRICT GWALIOR
(MADHYA PRADESH)
MANISH KUMAR S/O LATE SHRI SHIV
KUMAR, AGED ABOUT 44 YEARS, HOUSE
6 NO. 58, 59 SINGH BIHAR, NADIGATE,
LASHKAR,
Signature Not Verified DISTRICT GWALIOR
Signed by: SANJAY (MADHYA PRADESH)
NAMDEORAO DURGEKAR
Signing time: 08-08-2023
03:37:56 PM
-( 3 )- C.R. No. 177 of 2021

SMT. USHA SAXENA W/O LT SHRI
BHAJANLAL SAXENA, AGED ABOUT 63
7 YEARS, BHASKAR LINE JAYENDRAGANJ
LASHKAR, DISTRICT GWALIOR
(MADHYA PRADESH)
.....RESPONDENTS
(SHRI B.D. JAIN, ADVOCATE FOR THE RESPONDENT NO.
1).
(SHRI K.S. TOMAR - SENIOR ADVOCATE WITH SHRI J.S.
KAURAV - ADVOCATE FOR THE RESPONDENTS NO. 2 TO
4).

Reserved on : 27.07.2023
------------------------------------------------------------------------------------
Whether approved for reporting : YES
This appeal coming on for pronouncement of judgment on this
day, the court passed the following:

ORDER

(Passed on 08/08/2023)

1. This Civil Revision under Section 115 of Civil

Procedure Code (for brevity, CPC) arising out of the order

dated 27/03/2021 passed by learned 3 r d Civil Judge, Class-I,

District Gwalior in civil suit No. 750-A/2019, whereby, the

application filed by the petitioners under Order VII Rule 11

of CPC has been rejected.

Signature Not 2.

Verified The necessary facts for disposal of the present petition Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 08-08-2023 03:37:56 PM

-( 4 )- C.R. No. 177 of 2021

are that the respondents No. 1 to 6/plaintiffs have filed a

civil suit for declaration and permanent injunction on the

ground of adverse possession over the disputed property.

3. The petitioners/defendants filed an application under

Order VII Rule 11 of CPC, wherein, it has been mentioned

that their Aunt (Taee/elder mother) and grand mother Late

Smt. Ajjudaya Bai were the owners of the land bearing

Survey No. 298, 299, 300, 301 and 302 (for brevity, 'land

in question'). Till the year 1956, Ramsingh used to cultivate

the land in question on behalf of Ajjudaya Bai. Ajjudaya

Bai died in the year 1961 and thereafter Nandram took

possession of the land in question on the basis of false,

fabricated and concocted documents.

4. In the year 1964, the defendants' mother and

grandmother namely Ramkali Devi had filed a civil suit

against Nandram for declaration of title and getting back

possession of the land in question. During pendency of the

said civil suit, land bearing survey No s. 203, 204 was sold

Signature Not by Nandram Verified vide registered sale deed dated 03/07/1976 to Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 08-08-2023 03:37:56 PM

-( 5 )- C.R. No. 177 of 2021

the plaintiffs' numbers 1 & 2/husband and father Kailash

Kumar, plaintiff's number 3/husband namely Jagdish

Kumar, plaintiffs' number 4 & 5/husband and father namely

Hotchand @ Hemant Kumar and plaintiffs' number 6 &

7/husband and father namely Shivkumar. Thereafter, land

bearing survey Nos. 298 min and 299 min was sold by

Nandram to the plaintiffs' number 4 & 5/husband and father

namely Hotchand @ Hemant Kumar vide registered sale

deed dated 15/03/1980. Kailash Kumar, Jagdish Kumar,

Hotchand @ Hemant Kumar and Shivkumar had filed an

application for making them party in the said case, in

which, the court below has passed the order dated

28/04/1983, wherein, it has been stated that whatever

decision delivered in the case, the plaintiffs' husband and

father namely Kailash Kumar, Jagdish Kumar, Hotchand and

Shivkumar are bound by the same.

5. The final decision in the said case has been delivered

on 17/02/1995 and Nandram, his legal representatives and

Signature Not plaintiffs' Verified husband and father namely Kailash Kumar, Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 08-08-2023 03:37:56 PM

-( 6 )- C.R. No. 177 of 2021

Jagdish Kumar, Hotchand and Shivkumar are bound by the

same. The appeal bearing No. 27-A/1995 filed against the

said order has been finally decided vide judgment dated

07/04/1997, in which, the order passed by 6 t h Civil Judge,

Class-2 has been affirmed. Nandram has filed an appeal

bearing No. 310/1997 before this Court, which, stood

dismissed vide order dated 10/05/2018. It has further been

submitted that proceedings of the said case has been

started. It has further been stated that the plaintiffs have

filed the civil suit by hiding the material documents and

facts of the case. No balance of convenience lies in favour

of the plaintiffs'. The plaintiffs can resolve the objection

raised by the defendants in the present case. On the basis of

aforesaid, prayed to dismiss the civil suit filed by the

plaintiffs.

6. The plaintiffs/respondents have filed reply against the

application stating therein that the application is filed just

to delay the disposal of the case. The objection raised by

Signature Not Verified Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 08-08-2023 03:37:56 PM

-( 7 )- C.R. No. 177 of 2021

the defendants are elementary which does not come under

the purview of order VII Rule 11 of CPC.

7. The learned trial court after hearing learned counsel

for the rival parties and after appreciating the documents

available on record vide order dated 27/03/2021 has

dismissed the application under Order VII Rule 11 of CPC

filed by the defendants/petitioners. Hence, this civil

revision.

8. Learned counsel for the petitioners/defendants submits

that the plaintiffs themselves in the application pleaded that

the judgment and decree passed by learned trial court has

been confirmed in Second appeal No. 310/1997 by this

Court vide order dated 10-05-2018, hence, the suit filed by

the plaintiffs is not maintainable which was based on

malafide and the property was purchased by plaintiffs'

ancestors from the defendant of the suit which has lost up to

the Apex Court and now when the decree was put to

execution, the suit was filed which is not maintainable in

view of principle of estoppel and provisions of section 52 Signature Not Verified Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 08-08-2023 03:37:56 PM

-( 8 )- C.R. No. 177 of 2021

of transfer of property Act as no cause of action accrued to

plaintiffs. It is further argued that in place of filing

application u/O 21 Rule 97, 100 of C.P.C., which is the

appropriate step, this separate suit is filed which is not

maintainable and bared by law. The order impugned is non-

speaking and without taking into consideration the

judgment and decree dated 17-02-1995 which was affirmed

by this Court in Second Appeal No 310/190 vide judgment

and decree dated 10/05/2018. The learned trial court failed

to take into consideration the fact that cleverly drafted

plaint and as no cause of action accrued to the plaintiffs

further fact that the mutation in diversion of land by this

Court's order in case No. Miscellaneous Petition No.

238/1990 in favour of plaintiffs predecessor was made on

the basis of sale deed dated 09.03-1976 and 15-03-1980.

The application filed by plaintiffs' ancestors was rejected

by the trial court on the ground that they are lis-pendence

purchaser and they are bound by the decree, hence, now the

legal representatives cannot take different plea and time Signature Not Verified Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 08-08-2023 03:37:56 PM

-( 9 )- C.R. No. 177 of 2021

taken in decision of suit will not provide any ground to

them muchless plea of adverse possession.

9. On the other hand, learned counsel for the

respondents/plaintiffs supported the impugned order passed

by the court below and prayed for dismissal of the instant

petition being bereft of merit and substance.

10. Heard learned counsel for the rival parties and perused

the material available on record.

11. It is settled principle of law that the ground for

rejection can only be determined on the basis of averments

in the plaint itself, at this stage, the defence of the

defendants is not required to be considered.

12. In view of the above settled principle of law while

deciding the application under Order VII Rule 11 of CPC, it

is to be seen whether on the basis of averments made in the

plaint, the suit is barred by law or having no cause of

action.

13. For ready reference provisions of Order 7 Rule 11 are Signature Not Verified being reproduced herein below:-

Signed by: SANJAY
NAMDEORAO DURGEKAR
Signing time: 08-08-2023
03:37:56 PM
                                                 -( 10 )-             C.R. No. 177 of 2021

"11. Rejection of plaint.- The plaint shall be rejected in the following cases:--

(a) where it does not disclose a cause of action;

(b) **************

(d) where the suit appears from the statement in the plaint to be barred by any law;

(e) ****************

(f) ***************** Provided that ******************"

14. A bare reading of plaint indicates that at para 17, the

plaintiffs have pleaded that from 10-10-2019 to 20-10-2019

the disputed property (factory) was closed and when the

factory was re-opened they came to know that Nazir of

District Court had visited the property and had taken some

photographs. Thereafter, they came to the Court and

gathered some information that petitioners/ defendants are

trying to take possession of the disputed property. The

above pleadings reveals that before filing of civil suit

plaintiffs had knowledge about the decree in favour of the Signature Not Verified appellants/defendant and they knew the fact that execution Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 08-08-2023 03:37:56 PM

-( 11 )- C.R. No. 177 of 2021

proceedings are going on to execute the decree for which

the District Court Nazir visited the disputed property.

However,in place of filing an application U/o 21 Rule 97 of

C.P.C. The present civil suit is filed by cleaver drafting and

creating an illusory cause of action that there is an

apprehension of disturbance in their possession because

District Court Nazir visited the spot and prepared some

papers. Therefore, on the basis of averments in the plaint

itself,it is apparant that the respondents/plaintiffs are trying

to creat an illusory cause of action.

15. In the case of Dahiben vs. Arvindbhai Kalyanji

Bhanusali (Gajra) dead through Lrs and Ors. reported in

(2020) 7 SCC 366 , the Apex Court has held that while

exercising power under Order 7 Rule 11 (a), the Court has

to determine whether plaint prima facie discloses cause of

action. It is further held that provisions under Order 7 Rule

11 are mandatory in nature. If any of the grounds specified

in cls. (a) to (e) are made out, the court is bound to reject

Signature Not the plaint.

Verified It has further held that the Court has to find Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 08-08-2023 03:37:56 PM

-( 12 )- C.R. No. 177 of 2021

whether plaint discloses real cause of action or illusory

cause of action created by clever drafting. The Court must

be vigilant against camouflage or suppression and if suit

found to be vexatious and an abuse of process of court, it

should exercise its drastic power under Rule 11 to reject the

plaint.

16. At this juncture, the provisions of Order XXI Rule 97

and 101 of CPC are relevant for consideration which reads

as under :-

"Order XXI Rule 97 - Resistance or obstruction to

possession of immovable property :-

(1)Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction.

(2) Where any application is made under sub-rule (1), the Court shall proceed to adjudicate the upon the application in accordance with the provisions herein contained .

Signature Not Verified Rule 98 to 100 xxxxxxxxxxxxxxxxxxxxx Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 08-08-2023 03:37:56 PM

-( 13 )- C.R. No. 177 of 2021

101. Question to be determined.- All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the court dealing with the application, and not by a separate suit and for this purpose, the court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions."

17. The Apex Court in the case of Anwarbi vs. Pramod

D.A. Joshi and Ors. reported in (2000) 10 SCC 405 has

held that where obstruction to execution of decree is being

caused, it is for the decree holder to take appropriate steps

under Order 21 Rule 97 of CPC for removal of obstruction

and to have the rights of the parties including the

obstructionist ajudicated under Order 21 Rule 101 of CPC.

In the case of N.S.S. Narayana Sarma and Ors. vs.

Goldstone Exports (P) Limited and Ors. reported in

(2002) 1 SCC 662, the Apex Court held that executing court Signature Not Verified Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 08-08-2023 03:37:56 PM

-( 14 )- C.R. No. 177 of 2021

has jurisdiction to decide all questions raised by such

complainant, including questions regarding right, title or

interest in the property, notwithstanding provisions of any

other law to the contrary. The aim of enacting Rule 101 is to

remove technical objections to applications filed by

aggrieved party, whether he is the decree holder or any

other person in possession. In the case of Har Vilas vs.

Mahendra Nath and Ors. reported in (2011) 15 SCC 377 ,

the Apex Court has held that third party claiming to be in

possession of property forming subject matter of decree in

his own right can resist delivery of possession even by

filing an objection under Order 21 Rule 97 of CPC in

executing Court itself. The objection shall have to be

determined by executing court itself. In the case of

Shreenath and Anr. vs. Rajesh and Ors. reported in

(1998) 4 SCC 543, the Apex Court held that under Order 21

Rule 35(1) of CPC, the executing court delivers actual

physical possession of the disputed property to the decree Signature Not Verified holder and, if necessary, by removing any person bound by Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 08-08-2023 03:37:56 PM

-( 15 )- C.R. No. 177 of 2021

the decree who refuses to vacate the said property. Under

Rule 36, the decree holder gets the symbolic possession.

Order 21 Rule 97 of CPC conceives of resistance or

obstruction to the possession of immovable property when

made in execution of a decree by "any person". This may be

either by the person bound by the decree, claiming title

through the judgment-debtor or claiming independent right

of his own including a tenant not party to the suit or even a

stranger.

18. In view of the aforesaid provisions and the law settled

by the Apex Court, the present civil suit is found to be

barred by law because the respondents/plaintiffs being a

third party claiming to be in possession of property forming

subject matter of decree in his own right can resist delivery

of possession by filing an objection under Order 21 Rule 97

of CPC in executing Court itself. The objection shall have

to be determined by executing court itself.

19. The plain reading of impugned order shows that the

learned trial court has not considered the aforesaid legal Signature Not Verified Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 08-08-2023 03:37:56 PM

-( 16 )- C.R. No. 177 of 2021

aspects and passed a non-speaking order against the settled

principls and provisions of law.

20. Consequently, this petition is allowed. The application

filed by petitioners/defendants under Order VII Rule 11 of

C.P.C. is also allowed and the present civil suit filed by the

respondents/plaintiffs is hereby dismissed under Order VII

Rule 11 of C.P.C.

There shall be no order as to costs.

Certified copy as per rules.

(SUNITA YADAV) JUDGE *Durgekar

Signature Not Verified Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 08-08-2023 03:37:56 PM