Ganpat vs Ratanlal
2025 Latest Caselaw 4862 MP

Madhya Pradesh High Court

Ganpat vs Ratanlal on 27 February, 2025

Author: Pranay Verma

Bench: Pranay Verma

           NEUTRAL CITATION NO. 2025:MPHC-IND:5138




                                                              1                                CR-730-2023
                            IN      THE         HIGH COURT OF MADHYA PRADESH
                                                       AT INDORE
                                                             BEFORE
                                               HON'BLE SHRI JUSTICE PRANAY VERMA
                                                   CIVIL REVISION No. 730 of 2023
                                                       GANPAT AND OTHERS
                                                             Versus
                                                      RATANLAL AND OTHERS
                         Appearance:
                            Shri Sandeep Kochatta - Advocate for the petitioners.
                            Shri V.A.Katkani - Advocate for respondent No.2.

                            Ms. Bhagyashree Gupta - Government Advocate for respondent No.3.
                         Reserved on       :    05.02.2025
                         Pronounced on     :    27. 02.2025

                                                               ORDER

This revision under Section 115 of the Code of Civil Procedure has been preferred by defendants being aggrieved by the order dated 02.09.2023 passed in Civil Suit No.7-A/2020 by the First Civil Judge, Class-II, Sailana, District Ratlam whereby their application under Order 7 Rule 11 of the CPC for rejection of the plaint has been partly rejected.

2. The plaintiffs have instituted an action before the trial Court for

declaration of their 1/5th share, 1/6 th share in the suit lands and for permanent

injunction restraining the defendants from alienating the suit lands in any manner.

3. As per the plaintiffs, they and defendants are sons of Gouraji. The ancestral khata in the name of Gouraji was in Gram Shivgarh. Gouraji has since expired. From out of the income of the ancestral lands certain more agricultural lands were purchased which are presently in the name of defendants in which they also have a share. Gouraji had two wives Rupali and Jamna. The plaintiffs are his

NEUTRAL CITATION NO. 2025:MPHC-IND:5138

2 CR-730-2023 sons born from Jamna whereas defendants are his sons born from Rupali. The defendants have been recorded over the suit lands in the revenue records taking advantage of which in 2019 they raised dispute as regards mutation and partition. In October, 2019 the plaintiffs acquired knowledge that defendants are recorded over the suit lands exclusively which is illegal. The plaintiffs requested the defendants for partition of the suit lands but they refused to do so and instead denied their title.

4. The application under Order 7 Rule 11 of the CPC was preferred by the defendants on the ground that the parties have been residing separately since 1986 which amounts to mutual partition done prior to the death of Gaourji. The suit for challenging the said partition filed in the year 2020 is hence clearly barred by time. The defendants have five sisters who have not been impleaded as parties in

the suit which is hence bad for non joinder of necessary parties. The plaintiffs also have one sister who has not been impleaded as a party. All the properties purchased by common ancestor Guruji have not been included in the suit. In a suit for partition, the entire joint family properties are mandatorily required to be included which has not been done by the plaintiffs hence the suit is bad on that count also. Various constructions have been made over the suit property which have not been valued. The suit is hence under valued and deficit Court fees has been paid thereupon. The plaintiffs contested the application by filing their reply to the same.

5. By the impugned order, the trial Court observed that plaintiffs have stated that they acquired knowledge of mutation of defendants for the first time in the year 2019 and have then filed the suit. When they acquired knowledge is a question of fact which can only be decided after recording of evidence hence the suit is not apparently barred by time. The plaintiffs have stated in the plaint that

NEUTRAL CITATION NO. 2025:MPHC-IND:5138

3 CR-730-2023 no partition has been executed in respect of the suit lands hence it cannot be said that all the suit properties have not been included in the plaint. For non joinder of necessary parties the plaint would not be rejected. The Court fees paid by the plaintiffs is deficient nor has the suit been valued for the relief of partition and possession nor has any Court fees been paid thereupon which they are required to do. Consequently, directing the plaintiffs to value the claim appropriately and to pay adequate Court fees thereupon the application under Order 7 Rule 11 of the CPC has been decided.

6. Learned counsel for the defendants has submitted that the trial Court has committed a gross error in rejecting the application under Order 7 Rule 11 of the CPC preferred by the defendants. The plaintiffs have not impleaded their own sister and the sisters of the defendants as parties to the suit which is hence bad for non joinder of necessary parties. All the joint family properties have not been included in the suit by the plaintiffs which was mandatorily required to be done by them. The suit is hence bad for non-inclusion of all the joint family properties of the parties. A partition had already been effected in the year 1986 but no steps were taken by the plaintiffs for a period of more than 30 years. The suit is hence apparently barred by time. There are various constructions over the suit lands hence the plaintiffs were required to value the claim on the basis of the market value of the suit property and to pay Court fee accordingly. The same has not been done by them. The plaint hence deserves to be rejected. Reliance has been placed on the decisions in T. Arivindandan vs. T.V. Satyapal & Anrs. AIR 1977 SC 2421, Shankar vs. Radhabai 2015 (1) MPLJ 385, Chruch of Christ Charitable Trust and Educational Charitable Society vs. Ponniamma Educational Trust 2012(8) SCC 706, Ram Saran Vs. smt. Gangadevi AIR1972 SC 2685, Kenchegowda vs. Siddegowda AIR Online 1994 SC 138, R. Mahalakshmi vs.

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A.V. Anantharaman 2009 AIR SCW 4963, Hardeo vs. Mahadeo AIR 1966 All 543, Reshamlal vs. Balwant Singh and Ors. 1994 JLJ 160, Daddo Atmaram Patil vs. Raghunath Atmaram Patil AIR 1979 Bom 176, Dwarika prasad vs. Nirmala 2010 (I) MPJR (SC) 285, Sudhir Das vs. United Church of D Canada India 2020 1 MPLJ 714, CS Ramaswamy vs. V.K. Senthil 2023(1) MPLJ 572 , Krishna Kumar Anand vs. Varun Anand 2022 (4) MPLJ 314, Neelam Kumar Bachani and another vs. Bhishamlal 2013(4) MPLJ, 117, Abdul Salim s/o Abdul Karim vs. Sjhamim Ahmad s/o Abdul Karim 2018 (1) MPLJ, 337, Surendra Kumar s/o Bhagwanlal Solanki and another vs. Ramehchandra s/o Bhawanlal Solanki and another 2020(3) MPLJ, 169 and Hardesh Ores (P) Ltd. vs. Hede and Company (2007) 5 SCC 614.

7. Per contra , learned counsel for the plaintiffs has supported the impugned order.

8. I have considered the submissions of the learned counsel for the parties and have perused the record.

9. It is trite law that while considering an application under Order 7 Rule 11 of the CPC only the plaint averments and the documents filed along with the plaint which are required to be considered and are required to be taken to be true. The contentions of the defendants, the averment as made by them in the written statement and the documents filed by them and even the averment made by them in the application under Order 7 Rule 11 of the CPC cannot be considered. However, the learned counsel for the defendants has based his arguments primarily on the basis of the averments as made in the application under Order 7 Rule 11 of the CPC and the documents which have been filed by the defendants and has gone deeply into the merits of the case based upon contentions of

NEUTRAL CITATION NO. 2025:MPHC-IND:5138

5 CR-730-2023 defendants. These contentions and the documents for the present are not required to be considered hence the legality of the order passed by the trial Court is being tested on the basis of the averments as made in the plaint and the documents filed along with it.

10. The defendants have contented the sister of plaintiffs and sisters of defendants have not been impleaded as parties hence the suit is bad for non joinder of necessary parties. The objection as regards non joinder of necessary parties ought to be taken by the defendants in the written statement and on the basis of such an objection taken in the application under Order 7 Rule 11 of the CPC the plaint cannot be rejected as has rightly been held by the trial Court. Non joinder of necessary parties is not a ground for rejection of plaint as contemplated under Order 7Rule 11 of the CPC.

11. The plaintiffs have in the plaint pleaded as regards the joint family properties of the parties situated at Gram Shivgarh and have further pleaded that from out of income of such properties further properties were purchased. Partition of these lands has been sought for contending them to be joint family properties. In the application under Order 7 Rule 11 of the CPC defendants stated that there are other joint family lands also of the parties which have not been included by the plaintiffs. Whether there are other joint family lands of the parties or not can only be considered after recording of evidence of the parties. For the present on the basis of the plaint averments as made, it cannot be said that there are other joint family lands of the parties which have not been included by the plaintiffs.

12. It is the plea of defendants that a partition had taken place in the year 1986 hence the suit is barred by time. The same is not pleaded by the plaintiffs who have instead pleaded that the suit lands are joint family lands of the parties of which no partition has taken place and they acquired knowledge of exclusive

NEUTRAL CITATION NO. 2025:MPHC-IND:5138

6 CR-730-2023 mutation of defendants in the revenue records only in the year 2019 after which they requested them for partition which has been denied by them On this cause of action pleaded by plaintiffs it cannot be said that the suit is barred by time. In any case, the issue as regards limitation is a mixed question of fact and law and cannot be decided at the stage of consideration of an application under Order 7 Rule 11 of the CPC.

13. The plaintiffs have valued their claim at twenty times land revenue and have paid Court fees thereupon. On the same they have been directed by the trial Court to value the claim separately for independent reliefs and to pay Court fees thereupon. It is the contention of the defendants that over the suit lands constructions have been made and houses have been built hence the plaintiffs are required to value the claim on the basis of market value of the suit property. The plaintiffs have not stated in the plaint that there are any constructions over the land and have instead stated that the suit land is agricultural land. Whether there are constructions over the land and whether plaintiffs are required to value the claim on the basis of the same is also a question of fact which can only be determined by the trial Court after recording of evidence of the parties. The same cannot be done while considering an application under Order 7 Rule 11 of the CPC.

14. Though learned counsel for the defendants has pressed into service a plethora of judgments but none of them are applicable to the facts and circumstances of the case and are all distinguishable. They are decisions which have been rendered on merits of the case and not while considering an application

under Order 7 Rule 11 of the CPC. Since they are wholly inapplicable, I do not deem it necessary to deal with each of them separately. While pressing the judgments learned counsel for the defendants has unnecessary wasted a great deal of valuable time of this Court.

NEUTRAL CITATION NO. 2025:MPHC-IND:5138

7 CR-730-2023

15. Thus, in view of the aforesaid discussion, I do not find any error having been committed by the trial Court in rejecting the application under Order 7 Rule 11 of the CPC preferred by the defendants. No infirmity is found in the impugned order which is accordingly affirmed as a result of which, the revision is dismissed.

(PRANAY VERMA) JUDGE

jyoti