Ajay Kumar Singh @ Ajay Kr. Singh vs Smt. Soni Shahi
2023 Latest Caselaw 2206 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
           CIVIL MISCELLANEOUS JURISDICTION No.1468 of 2019
     ======================================================

1.1. Sunanda Singh W/o Late Ajay Kumar Singh @ Ajay Kr. Singh R/o Village-

Hardi, P.S. Kathaiya, District- Muzaffarpur. 1.2. Digvijay Kumar S/o Late Ajay Kumar Singh @ Ajay Kr. Singh R/o Village-

Hardi, P.S. Kathaiya, District- Muzaffarpur. 1.3. Shammi Kumari D/o Late Ajay Kumar Singh @ Ajay Kr. Singh, W/o Sri Niraj Kumar Chaudhary R/o Mohalla- Kapoor Bagh, Kanhauli, P.S.- Mithanpura, Distt.- Muzaffarpur.

1.4. Aditya Kumar S/o Late Ajay Kumar Singh @ Ajay Kr. Singh R/o Village-

Hardi, P.S. Kathaiya, District- Muzaffarpur.

... ... Petitioner/s Versus

1. Smt. Soni Shahi, W/o Rakesh Prasad Shahi, R/o Village- Harpur, P.O. Hardi, P.S. Kathaiya, Anchal- Motipur, Distt- Muzaffarpur.

2. Shri Sanandan Singh, Son of Late Satrujit Prasad, R/o Village- Hardi, P.O.

Hardi, P.S. Kathaiya, Anchal- Motipur, Distt- Muzaffarpur.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. S.S. Dwivedi, Sr. Advocate Mr. Jai Prakash Verma, Advocate For the Respondent/s : Mr. Vinod Keshri Singh, Sr. Advocate Mr. Chandrakant, Advocate Mr. Navin Kumar, Advocate Mr. Sunil Kumar, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA CAV JUDGMENT Date : 09-05-2023

Re.: Interlocutory Application No. 01 of 2019

This Interlocutory Application has been filed for

condonation of delay in filing the present Miscellaneous

Application on the ground that the original petitioner

inadvertently filed Second Appeal No. 471 of 2018 before this

Court challenging the impugned judgment dated 13.08.2018 Patna High Court C.Misc. No.1468 of 2019 dt.09-05-2023

passed by the learned 13th Additional District Judge,

Muzaffarpur in Miscellaneous Appeal No. 01 of 2018 whereby

order dated 04.01.2018 passed in Miscellaneous Case No. 08 of

2016 was affirmed.

However, on the prayer of learned senior counsel

appearing on behalf of petitioners, the said second appeal was

permitted to be withdrawn by Coordinate Bench of this Court

vide order dated 26.08.2019 with liberty to the petitioners to

prefer Civil Miscellaneous under Article 227 of the Constitution

of India against both the impugned orders.

Learned counsel for the petitioners submits that the

time consumed in preferring the present Miscellaneous

Application is due to pendency of the aforesaid second appeal

and there is no intentional or deliberate delay by the original

petitioner in preferring the Miscellaneous Application within

time. He further submits that if delay in preferring the present

Miscellaneous Application is not condoned the petitioners

would suffer irreparable loss and injuries.

Learned counsel for respondents has not opposed this

application.

Having heard learned counsel for the parties and

considering the facts and circumstances of the case, I find that Patna High Court C.Misc. No.1468 of 2019 dt.09-05-2023

the delay in filing this Civil Miscellaneous Application has been

sufficiently explained. Accordingly, I.A. No. 01 of 2019 is

allowed. Delay in filing the Civil Miscellaneous Application is

condoned.

Re.: Civil Miscellaneous Jurisdiction No. 1468 of 2019

Heard the parties.

2. This Civil Miscellaneous Application has been filed

under Article 227 of the Constitution of India against the

judgment dated 13.08.2018 passed by the learned Additional

District Judge-13th, Muzaffarpur in Miscellaneous Appeal No.

01 of 2018 whereby the order dated 04.01.2018 passed in

Miscellaneous Case No. 08 of 2016 by learned Sub-ordinate

Judge- 1st, Muzaffarpur (West) in Miscellaneous Case No. 08 of

2016 filed under Section 22 of Hindu Succession Act, 1956

(hereinafter referred to as 'the Act'), was affirmed under which

Miscellaneous Case was rejected invoking Order VII Rule 11

(a) as well (d) of the C.P.C.

3. The original petitioner (now substituted by his heirs /

legal representatives on his death) filed a Miscellaneous Case

No. 08 of 2016 under Section 22 of the Act in the Court of

learned Sub Judge-1st , Muzaffarpur for a decree for preferential

right to acquire suit property in favour of the petitioner and for Patna High Court C.Misc. No.1468 of 2019 dt.09-05-2023

direction to respondent No. 1 to execute sale deed in favour of

the petitioner.

4. The case of the petitioner is that the petitioner and

respondent No. 2 are legal heirs and successors of late Gopal

Prasad Narayan Singh and they have jointly succeeded and

inherited his estate including suit land on which there are bricks

built constructed shop. The partition for other property has been

done by metes and bounds to the family arrangement but the

suit land is not divided. They came and continued in possession

of suit land besides other property which are ancestral property

and jointly succeeded according to Hindu Succession Act, 1956

although during Revisional Survey operation the suit land

recorded in the name of Satrujit Prasad Singh (father of O.P. No.

2) in R.S. Khatiyan. The further case of the petitioner is that

respondent No. 2 executed a sale deed no. 23695 dated

17.12.2015 in respect of suit land in favour of the respondent

No. 1 ignoring the preferential right of the petitioner. The

petitioner claims that he has got the preferential right to acquire

suit property. Further case of the petitioner is that the petitioner

is ready to pay the consideration amount of Rs. 8,10,000/- but

the respondent No. 1 refused to execute the requisite sale deed

in respect of suit land on the same terms and conditions. Patna High Court C.Misc. No.1468 of 2019 dt.09-05-2023

5. The respondent No. 1 filed a petition dated

28.09.2016 stating, inter alia, that Miscellaneous Case filed by

the petitioner is not maintainable. The petitioner hide that the

previous partition took place in Title Suit No. 59 / 1943 in

which father of applicant, namely, Bhupnath Prasad Narayan

Singh and father of opposite second party, namely, Satrujit

Prasad Narayan Singh were defendants in which they were

awarded separate patti, they continued in separate and exclusive

possession over their respective allotted patti of the properties.

Their names got recorded in R.S. Survey having separate

jamabandi, Chak Khatiyan and R.S. Khatiyan. The O.P. No. 2

sold the suit land out of his exclusive landed properties in

favour of O.P. No. 1 and put him in possession and the buyer

has also got mutated his name with respect to purchased suit

land. No immovable property on death of its holder devolved

upon the petitioner and property possessed by Shatrujit Prasad

Narayan Singh (father of O.P. No. 2) devolved upon O.P. No. 2,

who is class I legal heir specified in Section 8 of the Hindu

Succession Act, and the petitioner is not class I heir.

6. The respondent No. 1 filed another petition dated

10.10.2017 under Order VII Rule 11 (d) C.P.C. in continuation

of his said earlier petition dated 28.09.2016 praying to reject the Patna High Court C.Misc. No.1468 of 2019 dt.09-05-2023

case stating that it is admitted case of the applicant / petitioner

that the petitioner and respondent No. 2 are grandson of two

different persons, namely, Babu Baldeo Pd. Narayan Singh and

Babu Suryug Pd. Narayan Singh respectively who were sons of

Gopal Pd. Narayan Singh. From reading of the case petition, it

is admitted that the petitioner has not inherited any property of

either Babu Baldeo Prasad Narayan Singh or Babu Saryug

Prasad Narayn Singh as Class I legal heir accordingly provision

of Section 22 of Hindu Succession Act, 1956 does not apply and

liable to be rejected.

7. The petitioner opposed the said petitions by filing

rejoinder stating that applicant and O.P. No. 2 are legal heirs and

successors of Late Gopal Prasad Narayan Singh and the suit

land is joint.

8. The learned trial court found the petition under

Order VII Rule 11 (d) of C.P.C. maintainable and applicable and

thereby rejected the Miscellaneous Application which was

affirmed in appeal.

9. Learned senior counsel for the petitioner has

submitted firstly that Order VII Rule 11 C.P.C. applies only in a

case of plaint in suit and Miscellaneous case under Section 22 of

the Hindu Succession Act, 1956 is not a plaint in suit rather it is Patna High Court C.Misc. No.1468 of 2019 dt.09-05-2023

a petition. Accordingly, Order VII Rule 11 C.P.C. is not

applicable in this case.

10. He has further submitted that in the instant case,

the Court has wrongly relied only the factual statement in the

rejoinder as well as in the petition of respondent No. 1 to hold

that it is barred by Order VII Rule 11 CPC. Learned counsel for

the petitioner submits that the trial court although observed that

the Court has only to consider the overall contents of the

averments made in the plaint so as to decide whether the present

plaint is liable to be rejected or not but the Court has considered

the plea taken by the respondent in its application.

11. Learned senior counsel for the petitioner has

further submitted that whether suit property is joint or the

petitioner and respondent No. 2 are class I heirs or not is a

matter of evidence which can't be decided in the application

under Order VII Rule 11 C.P.C. He has further submitted that in

the present case, some other properties were partitioned by

metes and bounds by family arrangements but the suit property

is a joint property. There are various modes of partition and it is

not necessary for partition that joint family property is divided

by every bit of it and some property could be used by the co-

parceners as joint tenant. Further he submits that in paragraph Patna High Court C.Misc. No.1468 of 2019 dt.09-05-2023

14 of the petition cause of action was stated but the learned

court below failed to appreciate the said facts.

12. On the other hand learned Senior counsel for the

respondents submits that the petition under Section 22 (1) of the

Act is in nature of a plaint in the suit although it was filed as

Miscellaneous Case. He has pointed out that the petitioner has

himself in paragraph nos. 4, 5, and 12 and also in verification

described and treated the petition as plaint in the Suit and the

plea now taken that it is not plaint and Order VII Rule 11 C.P.C.

is not applicable is self contradictory and not tenable. He has

submitted that Section 141 C.P.C. provides with respect to

miscellaneous proceedings that the procedure provided in the

code in regard to suit shall be followed, as far as it can be made

applicable, in all proceedings in any Court of Civil Jurisdiction.

He further submits that Rules 457 and 458 of Civil Court Rules

of High Court of Judicature at Patna also provide that an

application filed under different provisions stated therein to be

treated as Suit. Further, he has submitted that admittedly, the

petitioner is not Class I heir as brother's sons are not included in

this category. Lastly, it is submitted that the learned trial court as

well as the appellate court rightly rejected the Miscellaneous

Case under Order VII Rule 11 (a) and (d) and there is no Patna High Court C.Misc. No.1468 of 2019 dt.09-05-2023

illegality or error for interference by this Court in its supervisory

jurisdiction.

13. The point for consideration in this Miscellaneous

Application is whether the petition under Section 22 (1) of the

Act can be deemed to be a plaint and whether the trial court is

justified in rejecting the said miscellaneous case under Order

VII Rule 11 (a) & (d) C.P.C., which has been affirmed by the

appellate Court.

14. Section 22 of the Hindu Succession Act was

incorporated with reason that strangers must be kept out and the

integrity of the property may be maintained and with this end in

view a preferential right in the remaining Class I heirs was

conferred. Burden cast on the intending transferer heir to put the

remaining Class I co-heirs on notice of his intention to make the

transfer. Section 22 of the Hindu Succession Act does not refer

to a pre-emptory right, but describes the right as a preferential

one.

15. The word "application" is found in Section 22 (2),

while, nothing as such is found in Section 22 (1) of the Hindu

Succession Act. Sub-section (2) of Section 22 of the Act

provides for a cheap and speedy remedy for determination of

'consideration', for which any interest in the property or Patna High Court C.Misc. No.1468 of 2019 dt.09-05-2023

business of the deceased "may be transferred under the

Section." Sub-section (2) of Section 22 of the Act does not

create any right wholly independent of that created by Sub-

section (1) of Section 22. If transfer has been effected, an

application under Section 22 (2) is not maintainable. Under

Section 22 (1) of the Act a right is conferred but there is nothing

in this Sub-Section to indicate what procedure is to be followed

in the matter of enforcement of that right. It is useful to look

into the various decision of the High Courts dealing with

Section 22 of the Act to understand the nature of proceeding

under Section 22 (1) of the Hindu Succession Act.

16. The Division Bench of Kerala High Court in the

case of Valliyil Sri Devi Amma Vs. Subhadra Devi & Ors.

(AIR 1976 Ker 19) held that the ordinary procedure for

enforcement of any civil right has to be resorted by the co-heir

who wish to enforce their rights under Section 22 (1) of the Act.

In other words, the remedy is by way of regular Civil Suit

before the competent court. The main purpose of such a suit

instituted by the co-heir will necessarily be the enforcement of

the right conferred by Section 22 (1) of the Act. The question of

invalidity of the sale effected by co-heir in favour of strangers

will be incidentally investigated and decided. Patna High Court C.Misc. No.1468 of 2019 dt.09-05-2023

17. The Madhya Pradesh High Court in the case of

Mrs. Gherwala Jain Vs. Mr. Hanuman Prasad (A.I.R. 1981

M.P. 250) also agreed with the said observation made by the

aforesaid Division Bench of Kerala High Court in the case of

Valliyil Sri Devi Amma Vs. Subhadra Devi & Ors. (Supra). It

was observed that an application under Sub-section (2) of the

Act cannot be regarded to be maintainable after transfer has

been effected.

18. The Calcutta High Court in the case of Mr. Tarak

Das Ghosh Vs. Sunil Kumar Ghosh (AIR 1980 Cal 53) held

that under Sub section (2) of Section 22 of the Act an

application may be made to the Court but the scope of that

application is quite limited. Such application may be made only

for the purpose of determination of the amount of consideration

and not for the purpose of enforcing the right conferred by Sub

section (1). In cases where statue creates a right without

specifying the procedure for enforcement of such right, the

person intending to enforce such right shall have to resort to

the procedure contained in the Code of Civil Procedure for

enforcement of his right. Accordingly, the right conferred by

Section 22 can be enforced only by institution of a regular suit.

19. Similarly, the Orissa High Court in the case of Patna High Court C.Misc. No.1468 of 2019 dt.09-05-2023

Sri Muralidhar Das Vs. Mr. Bausidhar Das, (AIR 1986 Ori

119) observed that Sub-section (2) provides for determination of

consideration when there is difference between the parties,

namely the one intending to acquire and the other proposing to

transfer. It does not apply to a situation where the interest had

been transferred and third party transferees have come into the

picture or where co-heirs are not agreeable to transfer their

shares to the co-heirs exercising right of pre-emption under

Section 22 (1) of the Act.

20. The Division Bench of this Court in the case

Bhola Nath Rastogi and Ors. Vs. Santosh Prakash Arya &

Ors. reported in AIR 1975 Patna 336 considered Section 22 of

the Hindu Succession Act and observed that by use of the words

'heirs specified in class I of the Schedule' in Section 22 (1) of

the Act, it is clearly intended that this Section should have no

application to a case where the property devolves by rule of

survivorship on surviving coparceners. Unless a case of

inheritance is made out, it must be held that Section 22 will

have no application.

21. The Division Bench of this Court in judgment

dated 12.11.2011 Basudeo Singh Vs. The State of Bihar (LPA

No. 1036 / 2013) quoted the principle that the object behind Patna High Court C.Misc. No.1468 of 2019 dt.09-05-2023

right of pre-emption, either based on custom or Statutory Law,

is to prevent intrusion of a stranger into the family holding or

property. A co-sharer under the Law of pre-emption has right to

substitute himself in place of a stranger in respect of a portion of

the property purchased by him. The Hon'ble Supreme Court in

the case of Suresh Prasad Singh Vs. Dulhin Phulkumari Devi

& Ors. (2010) 6 SCC 441 was also of the similar view.

22. The Division Bench of Allahabad High Court in the

case of Umesh Chandra Saxena & Ors. Vs. Administrator

General & Ors. reported in AIR 1999 All. 109 in para 46

agreed the observation of Single Judge who referred Section

141 C.P.C. which provides that the procedure provided in the

Code of Civil Procedure in regard to suits would be followed, as

far as it can be made applicable, in all proceedings in any Court

of Civil Jurisdiction and he was of the view that the proceeding

for grant of Letter of Administration was one in which the Court

exercised its Civil Jurisdiction and as such all rigours of the

Code of Civil Procedure would be applicable. Further referred

Rule 39 of Chapter XXX of the Allahabad High Court Rules to

say that when the matter become contentious the application for

letters of administration would be treated and registered as a suit

and the petition was to be read as plaint and the objection as Patna High Court C.Misc. No.1468 of 2019 dt.09-05-2023

written statement, and, as such the testamentary suit was a suit

for all purposes under the Code of Civil Procedure and no

exception could be taken to invocation of Order 7 Rule 11

C.P.C.

23. Section 295 of Hindu Succession Act which

provides procedure in contentious cases states that in any case

before the District Judge in which there is contention, the

proceedings shall take, as nearly as may be, the form of a

regular suit, accordingly to the provisions of the Code of Civil

Procedure, 1908 in which the petitioner for probate or letters of

administration, as the case may be, shall be plaintiff, and the

person who has appeared to oppose the grant shall be the

defendant.

24. From the aforesaid discussion of the observation

made by the High Courts and also on perusal of the petition

under Section 22 (1) of the Act filed by the petitioner before the

Court below, in my view, the petition can be treated as plaint

and the provision under Order 7 Rule 11 C.P.C. is applicable in

this Case.

25. Now it is well settled that for the purpose of

invoking Order VII Rule 11(d) C.P.C. no amount of evidence

can be looked into and only averments made in the plaint are Patna High Court C.Misc. No.1468 of 2019 dt.09-05-2023

relevant.

26. The Hon'ble apex Court in the case of Abdul

Gaffur Vs. State of Uttrakhand (2008 (10) SCC 97) held that

if the High Court is convinced that the plaint read as a whole

does not disclose any cause of action, it may reject the plaint in

terms of Order VII Rule 11 of the Code.

27. The Hon'ble Supreme Court in the Judgment dated

20.07.2012 in Bhau Ram vs. Janak Singh and Ors. (Civil

Appeal No. 5343 of 2012) held that the law has been settled by

this Court in various decisions that while considering an

application under Order VII Rule 11 C.P.C., the Court has to

examine the averments in the plaint and the pleas taken by the

defendant in its written statement would be irrelevant.

Accordingly, the law is well settled that only the averments in

the plaint can be looked into while deciding the application

under Order VII Rule 11 C.P.C.

28. This Court in the case of I.T.C. Ltd. Vs.

Shakuntala Devi reported in 2012 (2) PLJR 592 held that:-

"In view of the aforesaid principles and also on the basis of the apex Court on the issue of rejection of plaint under Order VII Rule 11 (d) CPC, the following broad principles can be culled out:

(I) The averments made in plaint are Patna High Court C.Misc. No.1468 of 2019 dt.09-05-2023

germane have to be taken as correct;

(ii) The whole plaint has to be read not in formal but in a meaningful manner;

(iii) No part of defence or evidence is to be considered

(iv) Being summary in nature, the Court should exercise this jurisdiction only when it becomes absolutely certain that the litigation is doomed to fail."

29. The Hon'ble Supreme Court in the case of P.V.

Guru Raj Reddy Vs. P. Neeradha Reddy & Anr. 2015 (2)

PLJR (Supreme Court) 205 in Pragraph 5 and 6 held as

follows:

"Rejection of the plaint under Order VII, Rule 11 of the CPC is a drastic power conferred in the court to terminate a civil action at the threshold. The conditions precedent to the exercise of power under Order VII, Rule 11, therefore, are stringent and have been consistently held to be so by the Court. It is the averments in the pliant that has to be read as a whole to find out whether it discloses a cause of action or whether the suit is barred under any law. At the stage of exercise of power under order VII, Rule 11, the stand of the defendants in the written statement or in the application for rejection of the plaint is wholly immaterial. It is only if the averments in the plaint ex-facie do not disclose a cause of action or on a reading thereof the suit appears to be barred under any law the plaint can be rejected. In all other situation, the claims will have to be adjudicated in the course of the trial.

Patna High Court C.Misc. No.1468 of 2019 dt.09-05-2023

In the present case, reading the plaint as a whole and proceedings on the basis that the averments made therein are correct, which is what the Court is required to do, it cannot be said that the said pleadings ex-facie discloses that the suit is barred by limitation or is barred under any other provision of law. The claim of the plaintiffs with regard to the knowledge of the essential facts giving rise to the cause of action as pleaded will have to be accepted as correct. At the stage of consideration of the application under Order VII, Rule 11 the stand of the defendants in the written statement would be altogether irrelevant."

30. On perusal of the Order dated 04.01.2018 passed

by the learned trial court, it appears that the learned trial court

observed that Section 22 of the Hindu Succession Act, 1956

deals with preferential right to acquire property in certain cases

is available only to a person, who is a Class I legal heirs of

schedule on whom the interest of the intestate in immovable

properties or business devolves.

31. The learned trial court further observed that the

Miscellaneous Case as filed by the applicant is squarely on the

basis of the right conferred under Section 22 of Hindu

Succession Act, 1956 which has very limited scope. The

applicant and Opposite Party II are distant cousin brothers as per

the genealogical table and even their grand father were different

persons who had survived their father, who was common Patna High Court C.Misc. No.1468 of 2019 dt.09-05-2023

ancestor and admittedly they are not Class I heirs of Late Gopal

Prasad Narayan Singh.

32. The appellate Court also discussed and considered

the facts and circumstances of the case affirmed the judgment of

the trial Court vide the impugned judgment dated 13.08.2018

assigning the reason for the same.

33. In the light of the above discussion and in view of

the settled legal provision as mentioned above, in my considered

opinion there is no illegality in the impugned order for

interference by this Court in the jurisdiction under Article 227 of

the Constitution of India.

34. In the result, this Civil Miscellaneous Application is

dismissed. There shall be no order as to costs.

(Sunil Dutta Mishra, J)

shweta/-

AFR/NAFR             AFR
CAV DATE             10.02.2023
Uploading Date       09.05.2023
Transmission Date