Madhya Pradesh High Court
Rajjak vs Brajbalal Bai on 14 October, 2024
Author: Pranay Verma
Bench: Pranay Verma
NEUTRAL CITATION NO. 2024:MPHC-IND:29371
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
CIVIL REVISION No. 539 of 2023
RAJJAK AND OTHERS
Versus
BRAJBALAL BAI AND OTHERS
............................................................................................................................................................................................................................................................................
Appearance:
Shri Rishiraj Trivedi, learned counsel for the applicants.
Shri Vinay Gandhi, learned counsel for non-applicants No.1 to 4.
...........................................................................................................................................................................................................................................................................
ORDER
(Reserved on 01.07.2024)
(Pronounced on 14.10.2024)
1. This Revision under Section 115 of the CPC has been
preferred by defendants 1 and 5/applicants being aggrieved by the
order dated 21.07.2023 passed in regular Civil Suit No.21-A/2022 by
the Civil Judge Senior Division, West Nimar Mandleshwar whereby
an application under Order 7 Rule 11 of the CPC has been rejected.
2. The plaintiffs/non-applicants 1 to 4 have instituted an action
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before the trial Court submitting that they are the owners of the
disputed land (motor garage). The same was purchased by their
ancestors on 08.09.1944 in an auction proceeding. The plaintiffs
have always been in possession of the land. On 19.07.1990 the land
was got diverted by predecessors of the plaintiffs after which
construction was made over it. The defendants do not have any title
to the suit property. Defendant No.1 through her power of attorney
holder defendant No.5 had instituted an action against them in the
year 2010 for permanent injunction with respect to the suit property
which was dismissed by judgment and decree dated 18.03.2019.
Likewise proceedings were instituted before the Tehsil Court which
were also dismissed on 12.02.2019. In the aforesaid civil suit an
application under Order 39 Rule 1 and 2 of the CPC had been filed
by present plaintiffs for protection of their possession which was
allowed by order dated 23.10.2018. The defendants are threatening
to forcibly dispossess them from the suit land taking advantage of
being recorded in the revenue records. On 20.09.2018 defendant
No.1 has executed a sale deed with respect to part of the suit land in
favour of defendant No.2 and thereafter on 20.09.2018 in favour of
defendant No.3. During pendency of the suit sale deed has been
executed by defendant No.4 in favour of defendant No.7 on
27.06.2019.
3. On such contentions the plaintiffs have instituted an action for
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declaration of their title to the suit property, declaration that the sale
deeds executed by defendant No.1 in favour of defendants No.2 and
3 and by defendant No.4 in favour of defendant No.7 are null and
void and for permanent injunction restraining the defendants from
interfering with their possession over the suit land.
4. Upon service of summons upon him, defendant No.5 filed an
application under Order 7 Rule 11 of the CPC for rejection of the
plaint submitting that the same is barred by time and that the claim
has neither been properly valued nor adequate Court fees has been
paid thereupon. The application was contested by the plaintiffs and
has been rejected by the trial Court by the impugned order.
5. Learned counsel for defendants 1 and 5 has submitted that the
impugned order is illegal and contrary to law. Title of plaintiffs was
challenged by defendants 4 to 16 in the earlier Civil Suit No.31-
A/2010. In the year 1989 common male ancestor of defendants No.4
to 16 namely Madanlal had sent telegram in respect of the suit
properties to common male ancestor of plaintiffs wherein the dispute
as regards title to the suit property was raised. The suit is hence
clearly barred by time. Alternate pleas have been taken by the
plaintiffs for pleading acquisition of title. They are claiming title on
the basis of auction sale as well as adverse possession which is not
permissible, since they are mutually destructive pleas. The claim has
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been valued only in respect of the sale deeds but has not been valued
in respect of the remaining suit properties. The claim is neither
properly valued nor adequate Court fees has been paid thereupon.
The plaint is hence liable to be rejected.
6. Per contra, learned counsel for the plaintiffs has submitted that
the suit cannot be said to be apparently barred by time on the basis of
the pleadings made in the plaint. All the issues raised by the
defendants are matter of evidence and cannot be considered at the
present stage. The claim has been properly valued and adequate
Court fees has been paid thereupon. The impugned order is hence
not liable to be interfered with.
7. I have considered the submissions of the learned counsel for
the parties and have perused the record.
8. Even if plaintiffs are taking two contradictory and even
mutually destructive pleadings i.e. one of acquisition of title by
virtue of adverse possession and the other acquisition of title on the
basis of the auction sale, the suit cannot be said to be barred by any
law for that reason. It is always open for the plaintiffs to take
mutually contradictory and even destructive pleas in the plaint and
only for that reason the plaint cannot be rejected.
9. The plaintiffs have pleaded in the plaint that the cause of
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action accrued to them upon execution of sale deed by defendant
No.1 in favour of defendants No.2 and 3 and on 18.03.2019 when
the suit of defendant No.1 was dismissed and when threat of
dispossession was given. The claim for declaration of title would be
governed by Article 58 of the Limitation Act which prescribes a
period of three years for instituting a suit for obtaining any
declaration and the period of limitation begins when the right to sue
first accrues. The same has to be seen from point of view of the
plaintiffs and not the defendants. Suit for declaration of title can be
filed within a period of three years when the plaintiffs feel threat to
their title. It is not for the defendants to contend that title of plaintiffs
was threatened earlier and that the right to sue had accrued then
itself. It is on the basis of the perceived threat of plaintiffs that the
period of limitation would begin. Though defendants have contended
that in certain communications in the year 1989 and in the earlier
suit itself, title of plaintiffs was denied but that would not be
conclusive of the matter because plaintiffs did not feel any threat to
their title at that time. Whether the right to sue or the cause of action
had accrued to the plaintiffs as contended by them or as is being
contended by the defendants would be a matter of evidence to be
adjudicated upon by the trial Court at the appropriate stage of
proceedings. For the present, on the basis of pleadings as contained
in the plaint and the reply to the counter claim, it cannot be said that
the claim is admittedly barred by time.
NEUTRAL CITATION NO. 2024:MPHC-IND:29371
10. The plaintiffs have valued their claim for declaration that the
sale deeds are null and void on the basis of the aggregate sale
considerations of all the three sale deeds and have paid fixed Court
fees thereupon since they are not parties thereto. The said valuation
and payment of Court fee is perfectly justified and has not even been
questioned by the defendants. Plaintiffs have valued their claim for
declaration of title at Rs.10,000/- and have paid fixed Court fees
thereupon. It has not been shown by the learned counsel for
defendants 1 and 5 that the valuation for relief of declaration of title
ought to be on the basis of sale considerations mentioned in the sale
deeds executed with respect to part of the land or the market value.
The claim for declaration of title is an independent claim and can be
independently valued by plaintiffs as has been done by them and
fixed Court fees has been paid thereupon. There is no requirement
that valuation for the purpose of declaration of title has to be on the
basis of the market value of the disputed property. The plaintiffs
have specifically averred that they are in possession of the disputed
property and have prayed for permanent injunction with respect
thereto. They have valued their claim for permanent injunction at
Rs.1,000/- and have paid Court fees of Rs. 120/- thereupon which is
prima facie reasonable.
11. Thus, in view of the aforesaid discussion, I do not find any
error having been committed by the trial Court in passing the
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impugned order rejecting the application under Order 7 Rule 11 of
the CPC preferred by defendant No.5. The grounds as regards
limitation, valuation and payment of Court fees are such grounds
which can only be determined by the trial Court during the
proceedings of the suit at the appropriate stage wherein any
observation made in the impugned order or this order would not
come in the way. Thus finding no case for interference, the
impugned order is affirmed as a result of which the revision is
dismissed.
(PRANAY VERMA)
JUDGE
ns
