[Cites 4, Cited by 0]
Madhya Pradesh High Court
Ganesh Mandir Charitable Trust Burhar ... vs Nirpat Singh on 23 February, 2026
1
FA-254. 2019
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE RATNESH CHANDRA SINGH BISEN
ON THE 23rd OF FEBRUARY, 2026
FIRST APPEAL NO. 254 of 2019
GANESH MANDIR CHARITABLE TRUST BURHAR ROAD SHAHDOL & OTHERS
Versus
NIRPAT SINGH & OTHERS
........................................................................................................................................................................................................................................
Appearance:
Shri Manish Rajak- Advocate for the appellants.
Shri Yogesh Singh Baghel - Advocate for the respondents.
........................................................................................................................................................................................................................................
Heard on : 15.12.2025
Pronounced on : 23.02.2026
........................................................................................................................................................................................................................................
JUDGMENT
Since pleadings are complete, therefore, with the consent of counsel
for the parties, the matter is finally heard.
2. The appellants/plaintiffs have filed this appeal under Section 96 of
the Code of Civil Procedure, challenging the judgment and decree dated
29.11.2018, passed by the learned Third Additional District Judge, Shahdol,
in Regular Civil Suit No. 400045A/2011, whereby the suit filed by the
plaintiffs was dismissed.
3. The facts of the case, in a nutshell, are as under:-
FA-254. 2019
3.1. Appellant No. 1, Ganesh Mandir Charitable Trust, Budhar, is a
public trust duly registered under the Indian Trusts Act, 1882. Appellants
Nos. 2 to 12 are its trustees.
3.2. The appellants instituted a suit before the Court of the First
Additional District Judge, Shahdol, seeking a declaration that the appellant
trust be recognized as the owner of the suit land bearing Khasra No. 29 (area
0.10 acres) and Khasra No. 30 (area 0.12 acres), totalling 0.22 acres, situated
in Village BuhiBandh, Tehsil Sohagpur, District Shahdol. They also prayed
that the sale deed executed in favor of Respondent No. 1 dated 01.01.1983 be
declared null and void in law and sought a permanent injunction restraining
Respondent No. 1/defendant from interfering with the trust's title and
possession over the suit land.
3.3. The appellants' case, in brief, is that the suit land was donated by
the then Ilakhedar to Shri Devgiri Alakhiya @ Lakhi Baba for constructing a
temple. Lakhi Baba built a temple, his residence, and six shops on the land.
Over time, management of the temple was entrusted to the Ganesh Mandir
Trust, which was registered as a public trust on 12.11.1974. The appellants
alleged that one Jamuna Giri, in collusion with Respondent No. 1, executed
the sale deed dated 01.01.1983 in his favour for Rs. 10,000/-, but possession
was never handed over to Respondent No. 1. The trust has continuously
owned and possessed the suit land.
3.4. The appellants further submitted that Respondent No. 1, Nirpat
Singh, was attempting to sell the suit property, which came to their notice in
November-December 2011, prompting filing of the suit.
FA-254. 2019
3.5. Respondent No. 1 contested the suit by filing an application under
Order VII Rule 11 of the Code of Civil Procedure, 1908, seeking rejection of
the plaint. He contended that the suit was barred by limitation, as the
appellants had been aware of the sale deed since 01.01.1983. He also
submitted that the earlier suit, Civil Suit No. 33-A/2004, filed by the
appellant-trust for declaration and injunction, had been dismissed by the trial
court on 23.07.2004. Accordingly, the present suit, based on the same cause
of action, documents, and parties, was not maintainable under the principles
of res judicata.
3.6. The appellants opposed the application, stating that the cause of
action arose only in November-December 2011 upon discovering
Respondent No. 1's attempt to sell the property. They further clarified that the
earlier suit did not seek to set aside the sale deed dated 01.01.1983 and prayed
for dismissal of the application.
3.7. The trial court considered Respondent No. 1's application under
Order VII Rule 11 CPC and, by the impugned order dated 29.11.2018,
allowed it. The court held that the earlier suit involved similar prayers for
declaration and injunction, with substantial overlap in the cause of action,
rendering the present suit based on an imaginary cause of action and barred
by res judicata. Consequently, the suit was dismissed.
3.8. The appellants submit that the impugned order, dismissing the suit
as barred by res judicata, is contrary to law.
4. Learned counsel for the appellants submits that the impugned
judgment and decree dated 29.11.2018 are not in consonance with law and,
therefore, deserve to be set aside. He submits that the learned trial court
exceeded its jurisdiction in dismissing the suit under Order II Rule 2 CPC.
FA-254. 2019
The findings recorded by the learned trial court are not based on a proper
appreciation of facts and law and, therefore, cannot be sustained in the eyes
of law. He further submits that the learned trial court ought to have held that
the plea of res judicata is a mixed question of fact and law, which cannot be
decided without recording the evidence. The learned trial court erred in law in
dismissing the suit under Order II Rule 2 CPC read with Order VII Rule 11
CPC. The trial court further erred in holding that there was similarity between
the disputes in the earlier suit and the present suit, rendering the present suit
barred by the principles of res judicata. These findings are not based on
correct appreciation of facts and law and, therefore, cannot be sustained.
According to the learned counsel, the trial court ought to have considered that
the sale deed dated 01.01.1983 was not in issue in the earlier suit. Further, the
parties to the suits are not identical, as there has been a change in the
constitution of the trust. The earlier suit was dismissed due to collusion
between the earlier trustees and Respondent No. 1; therefore, the order passed
therein does not operate as res judicata against the subsequent trustees. Even
otherwise, all the ingredients of Order II Rule 2 CPC are not present in the
present case; hence, the suit could not have been dismissed as barred by res
judicata.
5. Per contra, learned counsel appearing for the respondents supports
the impugned judgment and decree passed by the trial court and prays for
dismissal of the first appeal.
6. I have heard learned counsel for the parties and perused the record.
7. From a perusal of the order dated 29.11.2018 passed by the trial
court, it is evident that, instead of considering only the facts stated in the
plaint in paragraphs 9 to 18 of its order, the trial court, while examining the
FA-254. 2019
previously instituted civil suit bearing number 33A/04, took into account the
suit filed on behalf of the appellant and dismissed it. However, under Order 7
Rule 11(d) of the Code of Civil Procedure, the court has to consider only the
facts stated in the plaint, and if on the basis of those facts it appears that the
suit is barred under any law, only then can it be rejected. In this regard,
paragraphs 9 and 10 of the judgment of the Hon'ble Supreme Court in
Saleem Bhai and Others vs. State of Maharashtra and Others (2003) 1
SCC 557 are relevant, which are as follows:-
"9. A perusal of Order 7 Rule 11 CPC makes it clear that the
relevant facts which need to be looked into for deciding an
application thereunder are the averments in the plaint. The trial
court can exercise the power under Order 7 Rule 11 CPC at any
stage of the suit -- before registering the plaint or after issuing
summons to the defendant at any time before the conclusion of the
trial. For the purposes of deciding an application under clauses (a)
and (d) of Rule 11 of Order 7 CPC, the averments in the plaint are
germane; the pleas taken by the defendant in the written statement
would be wholly irrelevant at that stage, therefore, a direction to file
the written statement without deciding the application under Order
7 Rule 11 CPC cannot but be procedural irregularity touching the
exercise of jurisdiction by the trial court. The order, therefore,
suffers from non-exercising of the jurisdiction vested in the court as
well as procedural irregularity. The High Court, however, did not
advert to these aspects.
10. We are, therefore, of the view that for the aforementioned
reasons, the common order under challenge is liable to be set aside
and we, accordingly, do so. We remit the cases to the trial court for
deciding the application under Order 7 Rule 11 CPC on the basis of
the averments in the plaint, after affording an opportunity of being
heard to the parties in accordance with law."
8. Similarly, the principles laid down by the Hon'ble Supreme Court
in paragraphs 25, 25.1, 25.2, 25.3 and 25.4 of Shrihari Hanumandas Totala
FA-254. 2019
vs. Hemant Vithal Kamat and Others (2021) 9 SCC 99 are also relevant,
which are as follows:-
"25. On a perusal of the above authorities, the guiding principles for
deciding an application under Order 7 Rule 11(d) can be
summarised as follows:
25.1. To reject a plaint on the ground that the suit is barred by any
law, only the averments in the plaint will have to be referred to.
25.2. The defence made by the defendant in the suit must not be
considered while deciding the merits of the application.
25.3. 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.
25.4. 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 statements in the plaint will have to be perused."
9. Thus, in paragraphs 9 to 18 of the order dated 29.11.2018, the trial
court has, after extensively considering the documents produced by the
defendants and treating the previously instituted civil suit 33A/04 as the basis,
dismissed the suit filed on behalf of the appellant. This is not permissible
under Order 7 Rule 11 of the Code of Civil Procedure. Instead, under Order
14 Rule 2 of the CPC, an issue relating to a preliminary question should have
been framed and, after affording an opportunity of hearing to both parties, the
order should have been passed.
10. In view of the aforesaid discussion, as above, since the order dated
29.11.2018 passed by the trial court is not in accordance with law, therefore,
it is set aside. The appeal is accordingly allowed. The trial court is directed to
restore the civil suit to its original number and decide the civil suit in
FA-254. 2019
accordance with law. Both parties are directed to remain present before the
trial court on 23 April 2026.
(RATNESH CHANDRA SINGH BISEN)
JUDGE
rao
SATYA
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SAI RAO
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Date: 2026.02.23 18:46:47 +05'30'
