[Cites 11, Cited by 0]

Madhya Pradesh High Court

Suresh Singh vs Takesingh on 6 February, 2026

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1 Civil Revision No. 889 of 2023

IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE

BEFORE
HON'BLE SHRI JUSTICE BINOD KUMAR DWIVEDI
ON THE 6th OF FEBRUARY, 2026

CIVIL REVISION No. 889 of 2023
SURESH SINGH
Versus
TAKESINGH AND OTHERS
.............................................................................................................................
Appearance:
Shri Veer Kumar Jain - Senior Advocate assisted by Shri Madhav Lahoti

- Advocate for the applicant.

Shri Ashok Kumar Shrivastava - Advocate for the respondent No. 1.

Shri Brajesh Kumar Pandya - Advocate for the respondents No. 2 to 5 &

Ms. Surbhi Bahal - P.L. for respondent No. 8/State.

.............................................................................................................................

ORDER

This Civil Revision has been preferred under Section 115 of the

Civil Procedure Code, 1908 (hereinafter referred for short 'the CPC') against the

impugned order dated 27.10.2023 (Annexure A/1) passed in Civil Suit No. RCS

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A/1116/2018 on an application filed under Order VII Rule 11 of the CPC on

behalf of respondent No. 4.

2) Brief facts of the case are that one Hatesingh S/o Laxman and

Amarsingh were brothers. From the first wife of Hatesingh, Nathulal@

Nathusingh (Now deceased) was born whose wife is Rajubai as Defendant No.

4a, son Meherbansingh and Suresh are Defendant Nos. 4b & 4c before the trial

Court and from the second wife Gauribai, son Mohanlal (Defendant No. 1),

Madanlal (Defendant No. 2) Takesingh (Plaintiff), Sohanlal (Defendant No. 3)

and Mannubai (Defendant No. 1), Prakashbai (Defendant No. 2), Ladubai

(Defendant No. 3) and Nandubai (Defendant No. 4) were born. Defendant No. 5

Bahadursingh is one of the family member from the branch of Amarsingh.

3) Hatesingh was owner of 38.38 acres of land situated at Village -

Badiya-Keema, Indore. He sold the land of 19.19 acres i.e. half of the total land

through registered sale deed dated 09.05.1961 to Late Amar Singh and Late

Nathulal bearing survey No. 2, 3/1, 8/2, Rakba 11.77 acres, land bearing survey

Nos. 3/2, 4, 5, Rakba 2.85 Acres and land bearing survey No. 8/1 Rakba 4.57

Acres. After death of Hatesingh, two civil suits, one Civil Suit No. 24-A/93

before the XIIIth Additional District Judge, Indore was filed by the heirs of

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Hatesingh from his second wife i.e. Late Mohanlal and eight others including

Takesingh (Plaintiff of the instant suit No. RCS A/1116/2018) against Late

Amar Singh and legal representatives of Late Nathulal. Plaintiffs in the

aforesaid Civil Suit No. 24-A/93 had claimed that they are having 9/10th share

in the properties and mesne profit @ Rs.18,000/- per month were claimed along

with the relief of declaration of sale deed dated 09.05.1961 to be declared as

void. The aforesaid suit was dismissed on 05.09.1998 being barred by

limitation. Thus, claim of the plaintiffs including the present

Plaintiff/Respondent No. 1 with regard to the suit property 19.19 acre of land

sold to Late Amarsingh and Late Nathulal @ Nathusingh was dismissed vide

judgment dated 05.09.1998 (Annexure A/2) passed by 13th Additional District

Judge, Indore.

4) Civil Suit No. 25-A/93 for declaration and possession before the

13th Additional District Judge, Indore was filed by legal heirs of Late Mr.

Nathulal i.e. Rajubai & 6 others against Late Mr. Amarsingh and other legal

representatives of deceased Hatesingh including the present plaintiff/respondent

No. 1. In this Civil Suit, the case of the plaintiffs was that the deceased

Amarsingh's name in the sale deed dated 09.05.1961 was merely mentioned as

Trustee, while Nathulal is the sole and exclusive owner of the entire land i.e.

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19.19 acres sold by the above sale deed. In this case also, suit was dismissed on

the ground of limitation and held that the deceased Amarsingh is entitled 1/2

land of 19.19 acres by order dated 05.09.1998. Against the judgment and decree

in the aforesaid both the Civil Suits, First Appeal No. 513/1998 and First

Appeal No. 367/1998 were filed before this Court. The appeals were dismissed

and the SLP against the orders passed by this Court was also dismissed.

5) Learned counsel for the applicant submits that present instant suit

RCS A/1116/2018 (Annexure A/7) filed before Civil Judge, Class-II, Indore for

relief of declaration, partition and injunction against the entire land of the

deceased Hatesingh including the land sold by sale deed dated 09.05.1961 is

result of clever drafting and misuse of process of Court. Suit is wholly illegal

and not maintainable and is also barred by law. Findings of Civil Suit No. 24-

A/1993 and Civil Suit No. 25-A/1993 are binding and the present suit is hit by

principles of res-judicata and is not maintainable. Dispute cannot be re-agitated

by the instant case. In the instant suit, all the legal heirs have not impleaded and

whole of the property in dispute has also not been included, hence on these

grounds application under Order VII Rule 11 of CPC was filed by the applicant

which was dismissed by the impugned order. Learned trial Court has failed to

appreciate the contentions in right perspective, hence prays for allowing this

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revision petition by setting aside the impugned order and also allowing the

application under Order VII Rule 11 CPC by dismissing the instant Civil

Suit RCS A/1116/2018. To buttress his contentions, learned counsel has relied

upon para - 5 of the judgment passed in T. Arivandandam vs. T.V. Satyapal,

AIR 1977 SC 2421, para - 15 of Kanakarathanammal vs. V.S. Loganatha

Mudaliar, AIR 1965 SC 271, para 10 & 16 of Kenchegowda vs. Siddegowda,

(1994) 4 SCC 294, para - 3 of Janouti Bai vs. Rajobai 1985 MPWN 400, para-

32 of Shivkali Bai & Ors. vs. Meera Devi & Ors. 1991 MPLJ 102, para - 8 to

10 of Shanmugham vs. Saraswathi AIR 1997 Mad 226 and para 5 & 15 of S.D.

Ayyakannu (Died) & Ors. vs. Somasundram & Ors. 2001 SCC OnLine Mad

6) Per contra, learned counsel for the respondents have supported the

impugned order and submits that earlier judgments were not passed on merits,

therefore, res-judicata is not applicable and on the basis of principle of res-

judicata, plaint cannot be rejected. They further submit that plaint cannot be

rejected partially. For this learned counsels have placed reliance upon para - 2

of the judgment passed in Kuldeep Singh vs. Rajinder Kumar & Ors. (2017) 1

SCC 120 and para - 10 & 11 of the judgment passed in Sri Biswanath Banik &

Anr. Vs. Sulanga Bose & Ors. (2022) 7 SCC 731. Earlier Bahadursingh/

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Defendant No. 5 (respondent herein) had filed an application under Order VII

Rule 11 of CPC for rejection of plaint which was dismissed by learned Court

below vide order dated 13.10.2022. In the instant Civil Suit, that order was

challenged before this Court by Civil Revision No. 601/2022 (Annexure A/10)

and the same was also rejected on the various grounds. Bahadur Singh was

represented by the same counsel, who is representing applicant in the instant

Civil Revision. When Bahadur Singh failed in getting rejected the plaint, the

same application has been repeated by present applicant/Suresh Singh

(respondent No.4c before the trial Court) which is misuse of process of law. On

these submissions, learned counsel prays for dismissal of the revision.

7) Heard and considered the submissions raised by counsel for the

parties and perused the record.

8) It is not in dispute and also evident from the record that Bahadur

Singh (Defendant No. 5 before the trial Court) and respondent No. 6 before this

Court has filed an application under Order VII Rule 11 of CPC for rejection of

the plaint on similar grounds and that was rejected by the trial Court and

ultimately in Civil Revision No. 601/2022 by order (Annexure A/10) passed by

this Court. As far as contention with regard to instant case being hit by res-

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judicata in view of the judgments and decree passed in Civil Suit No. 24-

A/1993 & Civil Suit No. 25-A/1993 are not tenable in view of the judgments by

the Apex Court in Srihari Hanumandas Totala v. Hemanth Vithal Kamat &

Ors. (2021) 9 SCC 99 wherein it has been held that to determine whether a suit

is barred by res-judicata, it is necessary that :-

"(i) the 'previous suit' is decided,

(ii) the issues in the subsequent suit were directly and substantially in issue in the former suit;

(iii) the former suit was between the same parties or parties through whom they claim, litigating under the same title; and

(iv) that these issues were adjudicated and finally decided by a court competent to try the subsequent suit".

The Bench observed that since an adjudication of the plea of res judicata

requires consideration of the pleadings, issues and decision in the 'previous suit',

such a plea will be beyond the scope of Order 7 Rule 11 (d), where only the

pleadings in the plant will have to be perused. Same view has been taken by the

High Court of Bombay in of Smt. Sita Shripad Narvekar and ors v. Auduth

Timblo, 2015 SCC OnLine Bom 6407.

9) All other objections with regard to non-joinder of necessary parties

or mis-joinder of parties or non-inclusion of whole of the family property can

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also be a basis to reject the plaint as the same cannot be decided merely on the

basis of the plaint allegations. Objections in this regard can be taken in the W.S.,

necessary issue may be framed and even if it is found that there is mis-joinder or

non-joinder of necessary party and non-inclusion of the whole of family

property, even then plaintiff will be given an opportunity to propose necessary

amendment. It is also settled principle that plaint cannot be rejected in partially

as held by the Apex Court in Madhav Prasad Aggarwal & Anr. v. Axis Bank

Ltd. & Anr 2019(7) SCC158. It may be noted in this regard:

"it is not permissible to reject plaint qua any particular portion of a plaint including against some of the defendant(s) and continue the same against the others. In no uncertain terms the Court has held that if the plaint survives against certain defendant(s) and/or properties, Order 7 Rule 11(d) of CPC will have no application at all, and the suit as a whole must then proceed to trial. 12. In view of this settled legal position we may now turn to the nature of relief."

10) Judgments relied upon by the applicant side have their precedential

value, but proposition of those judgments can be relied upon only looking to the

factual matrix of the case. As held herein-above, res-judicata cannot be basis to

reject the plaint and applicant also appears to not have come with clean hands,

once application filed on behalf of the respondent-Bahadursingh failed up to the

High Court, only thereafter filling up lacunae suggested by this Court in its

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order (Annexure A/10), the other defendant/applicant herein has repeated

application under Order VII Rule 11 CPC. All the relevant factor required to

adjudicate the application u/O. 7 R. 11 CPC have been taken into consideration

by the learned Court below in rejecting the application filed on behalf of the

applicant.