Madhya Pradesh High Court
Kudrat Patel vs Hemant on 29 May, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE BINOD KUMAR DWIVEDI
ON THE 29 th OF MAY, 2024
CIVIL REVISION No. 439 of 2024
BETWEEN:-
1. KUDRAT PATEL S/O DAUD PATEL, AGED ABOUT
65 YEARS, OCCUPATION: AGRICULTURE, R/O:
VILLAGE JAITPURA, TEHSIL SANWER, DISTRICT
INDORE (MADHYA PRADESH)
2. SMT. ANEESHA BEE W/O KUDRAT PATEL, AGED
ABOUT 60 YEARS, OCCUPATION: HOUSEWIFE,
R/O: VILLAGE JAITPURA, TEHSIL SANWER,
DISTRICT INDORE (MADHYA PRADESH)
.....PETITIONERS
(BY SHRI RAKESH KUMAR LAAD - ADVOCATE.)
AND
1. HEMANT S/O RAVINDRA CHITLANGYA, AGED
ABOUT 38 YEARS, OCCUPATION: FARMING AND
BUSINESS, R/O: VILLAGE KANTAFOD, TEHSIL
SATWAS, DISTRICT DEWAS (MADHYA PRADESH)
2. RAVINDRA S/O BALKRISHNA CHITLANGYA,
AGED ABOUT 65 YEARS, OCCUPATION: FARMING,
R/O: VILLAGE KANTAFOD, TEHSIL SATWAS,
DISTRICT DEWAS (MADHYA PRADESH)
3. BHARAT S/O RAVINDRA CHITLANGYA, AGED
ABOUT 45 YEARS, OCCUPATION: FARMING, R/O:
VILLAGE KANTAFOD, TEHSIL SATWAS, DISTRICT
DEWAS (MADHYA PRADESH)
4. SHARAD S/O RAVINDRA CHITLANGYA, AGED
ABOUT 42 YEARS, OCCUPATION: FARMING, R/O:
VILLAGE KANTAFOD, TEHSIL SATWAS, DISTRICT
DEWAS (MADHYA PRADESH)
5. THE STATE OF MADHYA PRADESH, THROUGH
THE COLLECTOR, OFFICE OF THE COLLECTOR,
DISTRICT DEWAS (MADHYA PRADESH)
Signature Not Verified
Signed by: RAMESH
CHANDRA PITHAWE
Signing time: 5/31/2024
11:30:56 AM
2
.....RESPONDENTS
(RESPONDENT NO.5 - STATE OF MADHYA PRADESH BY SHRI CHETAN
JOSHI - ADVOCATE APPEARING ON BEHALF OF ADVOCATE GENERAL.)
This revision coming on for admission this day, th e court passed the
following:
ORDER
This civil revision under Section 115 of the Code of Civil Procedure,
1908 (herein after referred to as the CPC) has been preferred by the petitioners
- defendants No.4 and 5 being aggrieved by order dated 10.05.2024 (Annexure
P/8) passed in Regular Civil Suit No.110-A of 2023 by learned II Civil Judge,
Junior Division, Kannod, District Dewas (M.P.), whereby applications under
Order 7 Rule 11 of the CPC filed by the present petitioners have been
dismissed.
2. Brief fact of the case is that, respondent No.1 - plaintiff filed a civil suit
before the Civil Court seeking declaration of title, partition, possession and
permanent injunction against the defendants including petitioners - defendants
No.4 and 5. After notice, the petitioners - defendants appeared before the
concerned Court and filed two applications under Order 7 Rule 11 of the CPC
seeking rejection of the plaint on grounds that the plaint is barred by Section 34
of the Specific Relief Act, 1963 as well as for non-compliance of Section 80 of
the CPC.
3. Inviting attention of this Court toward reliefs sought in the plaint (Annexure
P/1) filed by respondent No.1 - plaintiff, learned counsel for the petitioners
submits that the suit is barred by Section 34 of the Specific Relief Act, 1963, as
respondent No.1 has not been in possession of the disputed property; and
further he has not sought the relief of possession.
4. Inviting attention of this Court towards Annexure P/6 i.e. Khatawar
Khatauni and Jamabandi of the disputed land, learned counsel further submits
that the possession over the disputed land is in the name of Ravindra S/o
Balkrishna Chitlangya (respondent No.2), father of respondent No.1 - plaintiff.
5. Learned counsel has further contended that as per Order 1 Rule 3 (B) of
the CPC, in cases relating to agriculture land, Government of Madhya Pradesh
is a necessary party, and as per Section 80 of CPC, prior notice to State of
Madhya Pradesh is must before instituting a suit. This provision has also not
been complied with, which is fatal for the suit.
6. Learned Civil Court ignoring the law with regard to provisions of Order 7
Rule 11 of CPC has dismissed the applications, which is bad in law.
7. Relying upon a judgment of the Apex Court in case of Dahiben v.
Arvindbhai Kalyanji Bhanusali (Gajra) Dead through legal
representatives and others reported in (2020) 7 SCC 366, learned counsel
appearing for the petitioners urged for setting aside of the impugned order by
allowing this civil revision.
8. Heard learned counsel for the petitioners and perused the record.
9. Order 7 Rule 11 of CPC provides for dismissal and / or rejection of plaint,
if conditions prescribed under the provisions of Order 7 Rule 11 of CPC are
not fulfilled, relevant provision thereof is extracted, as under: -
"11. Rejection of plaint.
The plaint shall be rejected in the following cases: -
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued and the plaintiff, on
being required by the Court to correct the valuation within a time to
be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued but the plaint is
returned upon paper insufficiently stamped, and the plaintiff, on
being required by the Court to supply the requisite stamp-paper
within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be
barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions of rule 9."
10. From perusal of plaint (Annexure P/1), it is apparent that Government of
Madhya Pradesh has been arrayed as defendant No.6 in the plaint and since no
specific relief has been sought from the State of Madhya Pradesh, therefore,
plaintiff cannot be non-suited for not serving a notice under Section 80 of CPC
to the Government of Madhya Pradesh. The contention raised on behalf of the
petitioners in this regard is not sustainable.
11. Respondent No.1 - plaintiff has prayed for relief of declaration of title,
partition, separate possession and injunction in the suit filed through plaint
(Annexure P/1). In para 1 of the plaint, it has been pleaded that plaintiff and
defendants No.2 and 3 are real brothers; and defendant No.1 is their father.
They are governed by Hindu Mitakshara Law. Plaintiff is a member of joint
Hindu Family, being a coparcener son.
12. In this factual matrix, when a co-owner is deemed in possession along
with other co-owners, contention raised on behalf of the petitioners loses its
importance, that name of plaintiff has nowhere been recorded in the revenue
records and only name of Ravindra S/o Balkrishna Chitlangya, father of
respondent No.1 - plaintiff, is on record, therefore, without claiming relief of
possession, the suit is not maintainable.
13. In case of Mukud v. Smt. Sulakshna Bokar reported in AIR 2007 MP
188, High Court of Madhya Pradesh has held that a suit simplicitor for relief of
declaration of share of plaintiff in the suit property, without seeking relief of
partition and possession is maintainable, as possession of one co-owner over
the land is deemed to be possession of all the co-owners.
14. Thus, contention raised on behalf of the petitioners that the suit is barred
by proviso of Section 34 of Specific Relief Act, 1963 is also not sustainable.
15. From plain reading of the plaint, it cannot be inferred that it is vexatious
suit having no real cause of action and barred by provisions of Section 80 CPC
and Section 34 of the Specific Relief Act, 1963.
16. Learned trial Court has not committed any illegality in dismissing the
application filed under Order 7 Rule 11 of CPC for rejection of plaint.
17. In the above factual backdrop, the judgment of the Apex Court relied
upon by the learned counsel for the petitioners in case of Dahiben (supra), is
of no consequence.
18. In light of discussion, as mentioned herein above, in considered view of
this Court, learned Court below has not committed any factual or legal error in
dismissing the applications.
19. The civil revision being sans merit, fails and is hereby dismissed.
Pending interlocutory application, if any, stands disposed off.
(BINOD KUMAR DWIVEDI)
JUDGE
rcp
