Madhya Pradesh High Court
Ramkishan Patel vs Om Prakash Mishra on 21 March, 2025
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
FA-1866-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 21st OF MARCH, 2025
FIRST APPEAL No.1866 of 2023
RAMKISHAN PATEL
Versus
OM PRAKASH MISHRA AND OTHERS
................................................................................................................................................
Appearance :
Shri Chandrahas Dubey - Advocate for the petitioner.
Shri Kapil Duggal - Advocate for respondent No.2.
Shri Kapil Patwardhan - Advocate for respondent No.5.
Shri Deepak Sahu - Panel Lawyer for respondent No.11/State.
Shri Rohit Raghuvanshi - Advocate for the respondent/caveater.
................................................................................................................................................
Reserved on : 03.10. 2024
Pronounced on : 21.03.2025
JUDGMENT
Since the connecting matter i.e. R.P. No.700 of 2024 arising out of
the final order passed in M.P. No.3083 of 2021 relating to the same
property has been decided by the Court, therefore, this first appeal filed
under Section 96 of the Code of Civil Procedure between the same
parties involving same land, is also being decided finally as parties have
been heard at their consent.
2. This appeal under Section 96 of CPC against the impugned
judgment and decree passed by the court below in a pending civil suit
i.e. RCSA No.954/2022 (Ramkishan Patel Vs. Omprakash Mishra and
others), in which an application was filed by defendant No.1 under
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Order 7 Rule 11 of CPC for rejecting the plaint on the ground that no
cause of action is involved in the case filed by the plaintiff, therefore,
the plaint deserves to be rejected. The court has considered the
application and passed the impugned judgment and decree dated
14.07.2023 holding that the suit filed by the plaintiff does have any
cause of action, therefore, in pursuance of the application filed under
Order 7 Rule 11 of CPC, plaint has been rejected.
3. The facts in compendium leading to filing of the instant appeal are
as under:-
(3.1) The plaintiff/appellant had filed a suit for declaration and
permanent injunction and under the garb of declaration he
sought that the sale-deeds executed by defendant/respondent
No.1 in favour of defendant No.2 to 9 of different dates of
different parts of the land which is the land in question shall
be declared to be void and illegal. The description of sale-
deeds of different areas of land executed on different dates is
shown in the chart given by the plaintiff in paragraph-1 of
the plaint. A further decree of permanent injunction was also
claimed restraining defendant Nos.1 to 9 from executing
further sale-deeds and creating third party right over the land
purchased by defendant Nos.2 to 9 from defendant No.1 as
per the description given in paragraph-1 of the plaint.
(3.2) An application under Order 7 Rule 11 of CPC was filed
mentioning therein that the suit was filed on the foundation
that the land in question was the land of predecessor of
plaintiff and it was owned and possessed by them and the
FA-1866-2023
grand-father of the plaintiff namely Bhaiyalal on 17.05.1947
had executed a Tamliknama and gifted the said land to Uma
Maheshwar Sanskrit Pathshala, which is a trust and the
father of defendant No.1 was the Sarvarahkar of the said
trust but the land got recorded in the revenue record in his
name treating him to be a Sarvarahkar and after the death of
Ramswaroop Mishra, the father of defendant No.1,
Vishwanathdutt Mishra, became the Sarvarahkar and as
such, the land in question was transferred to him only under
the capacity of Sarvarahkar but in view of the illegal revenue
entries, they got themselves recorded to be a bhumiswami
and as such, executed the sale-deeds illegally.
(3.3) The application under Order 7 Rule 11 of CPC was filed not
only on the ground of res judicata but also on the ground
that a civil suit i.e. Civil Suit No.66A/1997 was filed in
relation to the said property and the court vide the impugned
judgment and decree dated 24.04.1971 dismissed the suit
and an appeal was preferred against the said judgment and
decree, but the same was also dismissed and that order of
appellate court was not further challenged and as such,
attained finality. It is also mentioned in the application that
the plaint, especially the paragraphs-25, 26 and 27 of the
plaint contained the decision of the civil suit clearly
indicates that the plaintiff has very cleverly made averments
without disclosing the cause of action and filed this plaint,
which deserves to be dismissed in view of the pleading made
in paragraphs-25, 26 and 27.
FA-1866-2023
(3.4) The application was replied reiterating the stand taken
before the revenue authorities about the title of defendant
No.1 and also about Tamliknama whereby the forefather of
defendant No.1 acquired the land, but at the same time, in
the reply submitted by the plaintiff/appellant, they have
admitted about the decree passed by the civil court which
was even affirmed in an appeal. Although, it is admitted by
the plaintiff in his reply that the said civil suit was dismissed
50 years back and by virtue of order passed by the Board of
Revenue the defendant got the land mutated in his name and
executed the sale-deeds in favour of defendant Nos.2 to 9.
(3.5) After perusal of plaint and the application filed under Order
7 Rule 11 of CPC so also the reply submitted by the
plaintiff/appellant to the said application since the facts were
clear, therefore, the court below has decided the application
taking note of the fact about Tamliknama dated 17.05.1947
and also about the judgment and decree passed in Civil Suit
No.66A/1971 dated 24.04.1971 and about attaining the same
finality, has observed that when the plaintiff/appellant
himself has admitted that the said land has been gifted by
Tamliknama to Uma Maheshwar Sanskrit Pathshala by his
predecessors, meaning thereby, the plaintiff/appellant has no
right and title over the said land and the same was also not in
his possession.
(3.6) The judgment and decree was passed on 24.04.1971. The
father of defendant No.1 was declared to be the owner of the
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property with clear observation that the father of defendant
No.1 namely Vishwanathdutt Mishra was the owner of the
land and the same was also in his possession. The appeal
preferred against the said judgment and decree was also
dismissed. Even in second appeal preferred before the High
Court, the said judgment and decree was affirmed. Thus, it is
clear about the title over the land in question. The court has
further considered that in view of the existing facts and
circumstances and the orders passed not only by the civil
court but also by the revenue authorities, it is clear that the
plaintiff is unnecessarily claiming title over the land in
question and repeatedly filing litigation so as to claim title
over the land which had already been determined by the
competent court of law. Merely because the sale-deeds
executed by defendant No.1 in favour of defendants Nos.2 to
9 in respect of the land which has already been declared to
be the land of his father, the plaintiff does not have any
cause of action to file a suit for declaration when title of the
plaintiff has already been denied over the said land by the
civil court.
4. However, after perusal of impugned judgment and decree, the
submissions made by the counsel for the plaintiff/appellant so as to
satisfy this Court that the Tamliknama contained a condition and in
violation of the said condition, the property of the trust was
misappropriated and the property of the trust cannot be considered to a
personal property, has no substance. The counsel for the appellant has
submitted that the appellate court while deciding the application filed
FA-1866-2023
under Order 7 Rule 11 of CPC did not frame any issue and as such, the
principle of res judicata does not apply in the fact situation of the
present case. Shri Chandrahas Dubey, learned counsel appearing for the
appellant has submitted that under such circumstances, the impugned
judgment and decree passed by the courts below deserve to be set aside
and the matter can be remitted back to the court below to try the suit and
decide the same after framing issue.
5. The counsel appearing for the respondents have opposed the
submissions made by the counsel for the appellant and submitted that
with regard to contents of Tamliknama, the court has already considered
the same on earlier round of litigation, the auction had already been
declared invalid by the trial court and the trust-deed was also declared
invalid by the Registrar of the Trust. The trial Court on earlier round of
litigation had already framed the issue with regard to title over the land
and then decided the title, declined the same in favour of the father of
the plaintiff.
6. However, I am not convinced with the submissions made by the
counsel for the appellant for the reason that the Supreme Court in case
of Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I,
(2004) 9 SCC 51, has observed as under:-
"139. Whether a plaint discloses a cause of action or not is
essentially a question of fact. But whether it does or does
not must be found out from reading the plaint itself. For the
said purpose the averments made in the plaint in their
entirety must be held to be correct. The test is as to whether
if the averments made in the plaint are taken to be correct
in their entirety, a decree would be passed.
140. A cause of action is a bundle of facts which are
FA-1866-2023
required to be pleaded and proved for the purpose of
obtaining relief claimed in the suit. For the aforementioned
purpose, the material facts are required to be stated but not
the evidence except in certain cases where the pleading
relies on any misrepresentation, fraud, breach of trust,
wilful default, or undue influence."
7. A bare perusal of plaint dated 29.08.2022, clearly reveals that
there is no averment in the plaint with regard to acquiring the title or its
devolution in favour of the plaintiff/appellant. For the purpose of
seeking decree of declaration, it is imperative on the part of the
plaintiff/appellant not only to prove that there is no existence of right in
favour of the defendant but also assert its own right in clear fashion.
Merely drafting a plaint cleverly without showing source of title and
seeking declaration on the basis of title, does mean that one party should
be allowed to drag other party into frivlous litigation. It is a case in
which, the dispute of title between the parties has already been settled
and not only once but repeatedly it has been contested by the
plaintiff/appellant but he lost on every forum. The frivlous litigation, in
which the present plaint has been filed, has rightly been rejected by the
court because the Supreme Court in a case of State of Rajasthan v.
Swaika Properties reported in (1985) 3 SCC 217, has observed as
under:-
"8. ... The 'cause of action' means every fact which,
if traversed, it would be necessary for the plaintiff to
prove in order to support his right to a judgment of
the court."
8. Likewise, in case of Rajasthan High Court Advocates' Assn. v.
Union of India reported in (2001) 2 SCC 294, the Supreme Court
FA-1866-2023
dealing with the proposition of "cause of action" has observed as under:-
"17. The expression 'cause of action' has acquired a
judicially settled meaning. In the restricted sense cause of
action means the circumstances forming the infraction of
the right or the immediate occasion for the action. In the
wider sense, it means the necessary conditions for the
maintenance of the suit, including not only the infraction of
the right, but the infraction coupled with the right itself.
Compendiously the expression means every fact which it
would be necessary for the plaintiff to prove, if traversed,
in order to support his right to the judgment of the court.
Every fact which is necessary to be proved, as
distinguished from every piece of evidence which is
necessary to prove each fact, comprises in 'cause of
action'. It has to be left to be determined in each individual
case as to where the cause of action arises."
9. It is also relevant to observe that "cause of action" in the instant
case does not disclose any privity between the plaintiff and defendant
No.1, and as such, when there was complete absence of cause of action
in the case and only on the basis of plaintiff's/appellant's wish other
party cannot be dragged into litigation and the court is not sitting for
entertaining all such frivlous litigation.
10. The Supreme Court in a case of Church of Christ Charitable
Trust & Educational Charitable Society v. Ponniamman
Educational Trust reported in (2012) 8 SCC 706, has observed as
under:-
"24. In view of the conduct of the plaintiff, bereft of
required materials as mandated by the statutory provisions,
the plaint is liable to be rejected at this stage itself as the
cause of action pleaded in the plaint is vitiated. The learned
Senior Counsel for the respondent vehemently contended
that inasmuch as in the application for rejection of the
plaint, the first defendant has not impleaded the second
defendant, the said application is liable to be dismissed on
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the ground of non-joinder of the second defendant, who is
a necessary party. On the other hand, the learned Senior
Counsel for the appellant submitted that the second
defendant is not a necessary party to the application for
rejection of plaint and according to him non-joinder of the
second defendant does not affect the merit of the
application as the plaintiff alone is a necessary party to the
application for rejection of the plaint.
25. The stand taken by the appellant, who has filed the
application for rejection of the plaint, is sustainable and
acceptable. We have already adverted to the averments in
the plaint and we have held that the plaint has not shown a
complete cause of action of privity of contract between the
plaintiff and the first defendant or on behalf of the first
defendant. To reject the plaint even before registration of
the plaint on one or more grounds mentioned in Order 7
Rule 11 of the Code, the other defendants need not
necessarily be heard at all as it does not affect their rights.
As a matter of fact, this Court in Saleem Bhai [(2003) 1
SCC 557] held that the plaint can be rejected even before
the issuance of summons. This Court has taken a view that
the trial court can exercise its power under Order 7 Rule 11
of the Code at any stage of the suit i.e. before registering
the plaint or after issuance of summons to the defendants
or at any time before the conclusion of the trial. We
respectfully agree with the said view and reiterate the
same."
11. Thus, this court is of the considered opinion that the court below
in its impugned judgment and decree dated 14.07.2023 has rightly
allowed the application filed under Order 7 Rule 11 of CPC rejecting the
plaint and it is also not required to frame any issue or to try the suit if
the facts are so clear from the plaint itself.
12. This court in one of the cases i.e. Second Appeal No.525 of 2015
parties being Municipal Council, Khajurao Vs. Brajkishor Agrawal
and others, has also laid down that in each and every occasion, it is not
required for the trial court to frame issue while deciding the application
FA-1866-2023
filed under Order 7 Rule 11 of CPC saying that suit is barred by law
under the provision of principle of res judicata. The observation made
by this court in the said case is as under:-
"9. There is no quarrel in respect of the fact that if any
question of res judicata is raised, then the same can be
decided by the Court after framing issues and recording
evidence of the parties so as to determine whether question
of res judicata applies or not. Relying on the judgments
placed by counsel for the appellant, it was observed by the
Court that the basic requirement for deciding the
application under Order 7 Rule 11 CPC is the averments
made in the plaint only. This analogy is established and no
argument is required to accept the said analogy but at the
same time, it is also required to see as to in what manner,
application under Order 7 Rule 11 CPC has been decided
by the Court below. On perusal of the plaint and the
averments made therein, it is seen that the order of the trial
Court is based upon the averments made in the plaint and
application under Order 7 Rule 11 CPC has been decided
on the point that when the suit has already been decided
between the parties in respect of the same property then
how a second suit for the same cause of action is
maintainable.
10. It is not a case that the fact with regard to the
judgment and decree passed earlier was not in the
knowledge of the plaintiff and it is also not a case that they
are disputing about the said fact. The averments made in
the plaint, especially paragraphs 3,4,7, 9 and 11 and also
the relief claimed in the plaint are relevant, which read as
under:-
''3- यह कि विशेष क्षेत्र प्राधिकरण खजुराहो का दिनांक 22.6.1998 को नगर परिषद
खजुराहो में विलय हो गया था और जिससे इसके बाद से उक्त भूमि नगर परिषद
खजुराहो के स्वामित्व एवं आधिपत्य की सम्पत्ति है। जिस पर सभी के ज्ञान में तभी से
नगर परिषद खजुराहो का वैधानिक रूप से स्वत्व एवं कब्जा रहा है व आज है तथा
जिसमे प्रतिवादी नं.-1 अथवा अन्य किसी का कोई हक व हिस्सा कब्जा व उपयोग न
कभी रहा है और न आज है।
4- यह कि भूमि खसरा न. 1735/11 (सत्रह सौ पैतीस बटा एक अ) स्कवा 1.21 (एक
दशमलव इक्कीस) एकड़ की भूमि वादपत्र की कं डिका-3 में वर्णित भूमि खसरा नं.
1735/4अ (सत्रह सौ पैतीस बटा चार अ) रकवा 1.21 (एक दशमलव इक्कीस) से लगी
म०प्र०शासन के स्वत्व एवं कब्जा की बजर पड़ती भूमि थी जिसे वाटिका विकास हेतु
विशेष क्षेत्र प्राधिकरण खजुराहो को सन् 1984 में कलेक्टर महोदय छतरपुर द्वारा
आबंटित किया गया था जिसके पश्चात् इस भूमि की स्वामित्व एवं आधिपत्यधारी विशेष
क्षेत्र प्राधिकरण खजुराहो हो गया था तत्पश्चात् सन् 1998 में विशेष क्षेत्र प्राधिकरण
खजुराहो का विलय नगर परिषद खजुराहो मे हो जाने के बाद इसका स्वामित्व व
आधिपत्यधारी नगर परिषद खजुराहो का हो गया था और तभी से आज तक इसी प्रकार
FA-1866-2023
चला आ रहा है तथा जिसमें प्रतिवादी नं0-1 का न कभी पूर्व में कोई स्वत्व व कब्जा रहा
और न ही आज है।
7- यह कि प्रतिवादी नं0-1 में अपने उक्त अवैधानिक उद्दे श्य से अनुचित रूप से यह
लेख कर कि बादी के स्वत्व व आधिपत्य की वादपत्र की कडिका-1 में वर्णित भूमि
उसके खसरा न 1735/1/2 (सत्रह सी पैतीस बटा एक बटा दो) रकवा 0.224 (शून्य
दशमलव दौ सौ चौबीस) आरे की भूमि है तथा जिसका पूर्व में खसरा नं. 1735/1छ
(सत्रह सी पैतीस बटा एक छ) था जिसके संबंध में उसके द्वारा शासन म०प्र० के
विरूद्ध प्रस्तुत किये गये व्यवहार वाद क्र० 192/ए/92 में उसके पक्ष में घोषणा एवं
स्थायी निषेधाज्ञा की डिक्री दी गई है तथा प्रतिवादी 10-1 को पता चला है कि वादी
उसकी उक्त भूमि पर चूना डालकर ले-आउट करने का प्रयास कर रहे है. एक असत्य
सूचना पत्र दिनांक 18.6.12 का वादी को अपने अधिवक्ता जीतेन्द्र सिंह के माध्यम से
भिजवाया था ।
9- यह कि जब वादी को पता चला कि प्रतिवादी नं०-1 अपने अनुचित उद्दे श्य को पूरा
करने के लिये उक्त व्यवहारवाद क्र0-192/ए/92 में अनुचित रूप से तथा असत्य
दस्तावेजों तथा तथ्यों के आधार पर प्राप्त की गई दिनांक 23 11.92 की उक्त शून्यवत्
डिक्री की आड़ में दाबिया भूमि को अपनी भूमि कहने लगा है और इसकी आढ़ में
दाबिया भूमि में वादी के शातिपूर्ण स्वत्व एवं आधिपत्य में नाजायज रूप से बिना किसी
अधिकार के अवरोध उत्पन्न करने की कोशिश में है। जबकि प्रतिवादी नं0-1 को ऐसा
कोई कार्य करने का कोई अधिकार नहीं है। क्योंकि कथित व्यवहार प्रकरण में वादी
पक्षकार भी नहीं रहा है जिससे वादी को इस प्रकरण की कोई जानकारी नहीं है और
जिससे कानूनन कथित डिक्री एवं निर्णय दाबिया भूमि में वादी के हितों के प्रति शून्यक्त
एवं प्रभावहीन है।
11- यह कि प्रतिवादी क्रं 0-1 में उक्त सूचना पत्र की अवधि पूर्ण होने के बाद आज तक
वादी को भेजे गये नोटिस के संबंध में लिये गये अपने निर्णय से लिखित रूप में सूचित
नहीं किया है तथा प्रतिवादी नं0-1 ने अपने लोगों के माध्यम से एक धमकी देने लगा है
कि यदि वह वादी की दाबिया भूमि पर किसी प्रकार से कब्जा करने में सफल नहीं हो
सका तो मौका लगते ही अनुचित रूप से प्राप्त की गई उक्त शून्यवत् डिक्री दिनांक
23.12.92 की आड़ में दाबिया भूमि को उक्त व्यवहारवाद क्रमांक 192/ए/92 की भूमि
बताकर किसी आपराधिक किस्म के दंबग व्यक्ति को अंतरित कर देगा जो अपने
धनबल एं व बाहुबल से वादी की दाबिया भूमि पर बने वादी के वाहन विश्राम स्थल पर
जबरन नाजायज रूप से कब्जा कर लेगा ।
प्रार्थना
1. यह कि वादी के पक्ष में प्रतिवादी क्रं 0-1 के विरूद्ध इस प्रकार की घोषणात्मक डिक्री
प्रदान की जाये की दाबिया भूमि 1735/4अ एवं 1735/1अ जिसका उल्लेख वादपत्र की
कं डिका एक मे किया गया है वादी के स्वत्व एवं कब्जा की सम्पत्ति है तथा व्यवहारवाद
क्रं 0- 1192/ए/92 में तृतीय व्यवहार न्यायाधीश वर्ग-1 छतरपुर से अनुचित रूप से
प्रतिवादी क्रं 0-1 द्वारा प्राप्त की गई डिक्री दिनांक 23.11.92 वादी के हितों के प्रति
शून्यवत् होने से वादी पर बंधनकारी नहीं है।
2. यह कि वादी के पक्ष में इस प्रकार की स्थायी निषेधाज्ञा जारी की जाये कि प्रतिवादी
नं0-1 भविष्य में स्वयं अथवा अन्य किसी के माध्यम से दाबिया भूमि तथा उस पर
निर्मित वाहन विश्राम स्थल में वादी के शांतिपूर्ण स्वत्व एवं आधिपत्य में कोई हस्तक्षेप न
करे और किसी प्रकार से इसे किसी अन्य को न अंतरित करे और न अंतरण हेतु कोई
करार करें ।
3. यह कि खर्चा मुकदमा वादी को प्रतिवादी नं.-1 से दिलाया जाये।
4. यह कि अन्य सहायता जो न्यायालय वादी के हक में उचित समझे दिलायी जाये।''
11. From perusal of the averments made in the plaint
itself and the application filed under Order 7 Rule 11 of
CPC, it reveals that the defendant/respondent has claimed
that one suit has already been decided in which the original
owner, i.e. SADA was the party and, therefore, a second
suit that too after such a long time is not maintainable. I
find that there is nothing wrong committed by the trial
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Court and the legal position as has been laid down by the
Supreme Court in the cases on which counsel for the
appellant has placed reliance in the facts and circumstances
of the case, is not applicable because it is a case in which
Section 11 of CPC comes into operation. Section 11 is
relevant, which reads as under:-
"11. Res Judicata.- No Court shall try any suit or
issue in which the matter directly and substantially in
issue has been directly and substantially in issue in a
former suit between the same parties, or between
parties under whom they or any of them claim,
litigating under the same title, in a Court competent to
try such subsequent suit or the suit in which such
issue has been subsequently raised, and has been
heard and finally decided by such Court.
Explanation I.-- The expression former suit
shall denote a suit which has been decided
prior to a suit in question whether or not it
was instituted prior thereto.
Explanation II.-- For the purposes of this
section, the competence of a Court shall be
determined irrespective of any provisions as
to a right of appeal from the decision of such
Court.
Explanation III.--The matter above referred
to must in the former suit have been alleged
by one party and either denied or admitted,
expressly or impliedly, by the other.
Explanation IV.-- Any matter which might
and ought to have been made ground of
defence or attack in such former suit shall be
deemed to have been a matter directly and
substantially in issue in such suit.
Explanation V.-- Any relief claimed in the
plaint, which is not expressly granted by the
decree, shall for the purposes of this section,
be deemed to have been refused.
Explanation VI.-- Where persons litigate
bona fide in respect of a public right or of a
private right claimed in common for
themselves and others, all persons interested
in such right shall, for the purposes of this
section, be deemed to claim under the
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persons so litigating.
[Explanation VII.-- The provisions of this
section shall apply to a proceeding for the
execution of a decree and references in this
section to any suit, issue or former suit shall
be construed as references, respectively, to a
proceeding for the execution of the decree,
question arising in such proceeding and a
former proceeding for the execution of that
decree.
Explanation VIII.-- An issue heard and
finally decided by a Court of limited
jurisdiction, competent to decide such issue,
shall operate as res judicata in a subsequent
suit, notwithstanding that such Court of
limited jurisdiction was not competent to try
such subsequent suit or the suit in which such
issue has been subsequently raised.]"
The aforesaid section very categorically provides and it
starts with non obstante clause that 'no Court shall try any
suit', meaning thereby that there is a clear binding upon the
Court for not trying any suit which has already been
decided and the Court cannot shut its eyes when the facts
were very much clear before the Court and the Court was
fully aware of the fact that the suit has already been
decided and the issue involved in the case has already been
dealt with earlier and the decree has been passed in that
regard. Only because the SADA merged in the Nagar
Palika Parishad, the subsequent civil suit cannot be
entertained at the instance of Nagar Palika Parishad and if
it is entertained then it would be a mockery of justice
because the said civil suit is absolutely vexatious and
meritless and result of the same is known to everybody.
The Karnataka High Court in case of Smt. Sofyamma K.
J. Vs. Sri. Chandy Abraham passed in R.F.A. No. 722 of
2008 has dealt with the situation and decided the said issue
observing therein the scope of Section 11 as well as Order
7 Rule 11 of CPC. The observations made by the
Karnataka High Court in paras 11 to 23 are as under:-
"11. In view of the above contentions, the question that
arises for consideration of this Court is:
"Whether the rejection of the plaint
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under the impugned order is sustainable
in law?"
12. The certified copies of the Judgments in O.S. No.
5693/1992, RFA No. 714/1994, C.A. No. 36/1999 and
R.P. No. 1434/2004 in C.A. No. 36/1999 are produced
before the trial Court and they are available in the
records. They show that plaintiff claimed permanent
injunction on the ground that she is the absolute owner
and in possession of plaint schedule "A" and "B"
properties as purchaser and in respect of plaint schedule
"C" property as prospective purchaser. She claimed that
when the sale deeds and agreement of sale were
executed in her favour the power of attorney executed
by her mother in law in favour of her husband was in
force and therefore, her sale deeds are valid. She further
contended that in view of the registered sale deeds and
agreement of sale in her favour, the subsequent sale
deeds in favour of the defendant executed by her
brother in law are invalid. Thus, it is clear that in the
said proceedings the Court was called upon to decide
not the issue of possession of the property simpliciter,
but it was called upon to decide the plaintiff's lawful
possession of the suit properties. Issue No. 1 was,
"Whether the plaintiff is in lawful possession of the suit
properties?"
13. To legitimize her possession, she traced her right
through the sale deeds and agreement of sale.
Therefore, in those proceedings the trial Court, the First
Appellate Court and the Apex Court were required to
adjudicate on the merits/legality of the sale deeds and
the sale agreement. In fact the reading of the judgments
show that the Courts considered the question of title to
consider the lawful possession.
14. Section 11, CPC says, "No Court shall try any suit
or issue in which the matter directly arid substantially
in issue has been directly arid substantially in issue in a
former suit between the same parties........ has been
heard arid finally decided by such Courts". The plaintiff
does not dispute the judgments in the earlier
proceedings referred to supra. In those cases, though
she had not filed that suit for declaration of title and
that was a suit for bare injunction, the Courts decided
the legality of the sale deed/title of plaintiff because the
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claim of possession was based on the title.
15. In this context it is necessary and relevant to refer to
paragraph 16 of the judgment in RFA No. 714/1994.
"16. It is contended by Sri. Raghavachar,
learned advocate for the plaintiff relying upon
certain decisions that it is necessary for this
court to give finding on title of the plaintiff
since the plaintiff seeks the relief prayed for in
the suit basing the same on her title. On the
other hand, learned counsel appearing for the
plaintiff submitted that a separate suit is
pending filed by the defendant for declaration
and the question of title could be gone into in
that proceedings. I am not inclined to accept
the said submission made on behalf of the
plaintiff. Plaintiff has filed this suit based on
title. It is her definite case that she is the
owner of the property and the defendant is
interfering with her possession. On the other
hand the defendant asserts that he is the owner
having purchased the same from the true
owner and since the purchase, he is in
possession and it is the plaintiff, who is
causing obstacles in his possession and
enjoyment.
17. The Hon'ble Supreme Court in
Corporation City of Bangalore v. M. Papaish,
(1989) 3 SCC 612 : AIR 1989 SC 1809, has
held that when the foundation of claim of
plaintiff was title, the court has to consider the
question of tide and see whether the plaintiff
has established her title in order to get an
order of injunction. That was also a case for
perpetual injunction. In Nagarapalike v.
Jagatsingh (1995) 3 SCC 426 : (AIR 1995 SC
1377), the Hon'ble Supreme Court has
observed while considering similar facts that
"there is no substance in the stand taken by
the respondent that even if he had failed to
prove his title, the suit filed on behalf of the
respondents should be treated as a suit based
on possession and dispossession in terms of
section 6 of the Specific Relief Act. Once a
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suit has been filed by the respondent claiming
to be the owner arid being in possession of the
land in question, the suit cannot be treated as a
suit based on possession and dispossession
without reference to title". The Hon'ble
Supreme Court held that in such case, the
Court is to record its finding on the question
of title. This court in B.P. Sadashivaiah v.
Parvathamma ILR 1994 Kar 2671 has held
that the court trying a suit for permanent
injunction based on title has to consider the
said question before it decides to decree or
dismiss the suit. In this case, the plaintiff has
filed the suit stating that she is the owner of
the property by virtue of the sale deed and
agreement and the defendant is interfering
with her possession and the case of the
defendant is that he is the owner by virtue of
the sale deeds in his favour executed by the
true owner and that he is in possession. In,
view of these, it is necessary for this court to
go into the title of the parties"
16. The Courts in the above said proceedings held that
the power of attorney executed in favour of the
plaintiff's husband by her mother-in-law did not include
a clause to empower him/agent to alienate the
properties. Therefore, the Courts held that the sale
deeds and agreement of sale in favour of the plaintiff
are null and void as the vendor had no competency to
sell them. Therefore, in O.S.5693/1992 plaintiff was
very clear on the point that her, right to possession is
decided on the basis of her title deeds and they are so
adjudicated. Therefore, it is clear that though the suit
was not for declaration of title of the plaintiff on the
basis of the sale deeds and agreement of sale,
legality/merit of those documents was substantially an
issue in the said case. Therefore, the suit is clearly hit
by the principles of res judicata.
17. So far as the contention that the trial Court ought to
have framed an issue and given an opportunity to the
plaintiff to adduce evidence on that issue of res judicata
and trial Court should have gone through the pleadings
in those cases etc., it is to be seen that Section 11, CPC
FA-1866-2023
creates a total bar to entertain a suit. The words
employed in Section 11 are that "No court shall try any
suit". That means once if it comes to the notice of the
Court that the issue in the suit was directly and
substantially in issue in former suit between the same
parties and such issue had been raised, heard and finally
decided, Court cannot proceed with the matter. When
the reading of the admitted documents viz., Judgments
in the former suit, Regular First Appeal, Civil Appeal
and Review Petition clearly showed that the issue in the
present suit is already decided finally in the former suit,
there is no question of framing an issue and trying the
same as a preliminary issue. There is a total bar for trial
of such suit.
18. In Hardesh Ores Private Limited referred to supra
invoking Order VII, Rule 11 CPC the plaints were
sought to be rejected on the ground of bar of limitation.
There it was argued that to invoke Order VII, Rule 11
CPC defendant's case need not be considered and the
matter must be decided on the basis of the averments of
the plaint alone. In those cases the plea of limitation
was raised in the written statement. The Trial Court
rejected the plaints and the High Court upheld such
rejection. The Apex Court also upheld the rejection.
Therefore, the said judgment in no way advances the
case of the plaintiff.
19. A reading of para 17 in Vaish Aggarwal
Panchayat's'case shows that in that matter the former
suit and the later suit were riot between the same parties
and there it was alleged that the judgment in the former
suit was an outcome of fraud and collusion between the
parties to the said. suit. Therefore, it was held that, the
finding on the issue of res judicata ought to have been
given on recording the evidence. Therefore, the said
judgment is not applicable.
20. Paragraph 42 of the Judgment in Ramachandra
Dagdu Sonavane (Dead) by L.Rs.'s case, shows that
though the, appellants contended that the question of
res judicata ought to have been decided only on the
production of the pleadings and the judgments in both
the suits, the same was not accepted. It was held that in
the judgment of the earlier suit, the Judge in extenso
had referred to the pleadings of the parties in the earlier
suit and the finding on the question of res judicata is
FA-1866-2023
given on appreciating the copy of the judgment of the
earlier suit. In this case the earlier suit viz.,
O.S.5693/1992 was admittedly between the same
parties and it was her own suit. The copies of the
Judgment in the said case right from the suit till the
C.A. and Review Petition are produced before the
Court and based on them the trial Court has rejected the
plaint. Therefore, the judgments relied upon by the
appellant are not applicable to the facts of this case.
21. In Sulochana Amma v. Narayanan Nair (1994) 2
SCC 14 : AIR 1994 SC 152) it was held:
"The decree passed in injunction suit wherein
issue regarding title of the party was directly
and substantially in issue and decided and
attained finality would operate as res judicata in
a subsequent suit based on title, where the same
issue directly and substantially arises between
the parties."
22. The T. Aravindam v. T.V. Sathyapal ((1977) 4 SCC
467 : AIR 1977 SC 2421) case the Supreme Court held:
"Where the plaint is manifestly vexatious and
meritless in the sense of not disclosing the right
to sue, the trial court should exercise its powers
u/O. 7, Rule 11, CPC and bogus litigation should
not be permitted to go on".
23. The plaint averments themselves show that the
defendant claimed title to the property by virtue of the
sale deed executed by her brother-in-law as the power of
attorney holder of her mother-in-law. Still, she filed
O.S.5693/1992 for bare injunction. She fought that
matter for more than two decades up to the Supreme
Court. It was open to her to claim the relief of
declaration of title. But, she omitted to do that.
Therefore, such omission on her part to include the
claim for declaration of title bars the later suit by
operation of Order II, Rules (2 and 3), CPC. Looked at
from any angle, the impugned order of rejection of
plaint does not call for interference by this Court.
Therefore, appeal dismissed with costs."
12. Thus, it is clear that in the present case also when
the civil suit has already been decided and the judgment
and decree of the said case were before the Court at the
time of deciding the application and the Court was of the
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opinion that the plaint filed by the plaintiff/appellant is
apparently barred by limitation and also that a second suit
as per Rule 11 of CPC is not maintainable, the Court
without taking any other fact outside the pleadings of the
plaint has decided the application filed under Order 7 Rule
11 of CPC.
13. From perusal of the record, I am also of the opinion
that the trial Court did nothing wrong while allowing the
application and rejecting the plaint restraining the
plaintiff /appellant to proceed further or to prosecute any
matter for the same issue which has already been decided
long back. Thus, in my opinion, no substantial question of
law is involved in the appeal and it merits dismissal.
14. Ex consequntia, the appeal is without any
substance, is hereby dismissed."
13. Although, it is further made clear that the trial court has rejected
the plaint not only on the ground of question of res judicata but also on
the ground that the plaint suffers from any cause of action. As such, in
the opinion of this court, looking to the existing facts and circumstances
of the case and the observation made by the trial court, there is nothing
wrong committed by the court in allowing the application filed under
Order 7 Rule 11 of CPC.
14. As such, the appeal, being devoid of merit, stands dismissed.
Case file be consigned to record room.
(SANJAY DWIVEDI)
JUDGE
ac/-
