Rajasthan High Court - Jodhpur

Magan Lal Bhati vs Rameshwar Lal Bhati on 25 March, 2025

Author: Birendra Kumar

Bench: Birendra Kumar

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      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                     S.B. Civil First Appeal No. 326/2022

Magan Lal Bhati S/o Mangi Lal Bhati @ Mana Bhati, Aged About
66 Years, R/o Near Mohalla Kesardesar Kuva, Bikaner.
                                                                       ----Appellant
                                        Versus
Rameshwar Lal Bhati S/o Mangi Lal Bhati @ Mana Bhati, Aged
About 71 Years, R/o Near Mohalla Kesardesar Kuva, Bikaner.
                                                                     ----Respondent


For Appellant(s)              :     Mr. Virendra Acharya
For Respondent(s)             :     Mr. K.R. Saharan



            HON'BLE MR. JUSTICE BIRENDRA KUMAR

JUDGMENT RESERVED ON                                :       18/02/2025

JUDGMENT PRONOUNCED ON                              :       25/03/2025


1.    Heard the parties.

2. This appeal is against order and decree dated 18.07.2022

passed in Civil Original Suit No.23/2020, whereby the learned trial

Judge rejected the plaint in exercise of power under Order VII

Rule 11 C.P.C. on the prayer of the defendant-respondent.

3. The plaintiff-appellant had brought the said suit for partition

of his half share in the suit property bearing Khasra No.488, area

15 Biswa, situated near Kesardesar Well in Bikaner. The sole

respondent is full brother of the appellant. The plaintiff stated in

the plaint that the aforesaid land is recorded in the revenue

records in the name of father of the parties namely Mangi Lal

Bhati @ Mana Bhati. Initially, the land was being used for growing

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vegetables, however gradually population of Bikaner increased

and thereafter, the ancestors constructed house on the aforesaid

Khasra, some of the portion is still vacant. The boundary of the

land is referred as follows : -

       North                   South                    East         West
Baadi Munni Lal      Baadi    Harnarayan Rasta                   House
                     Mali and Rasta                              GaneshiLal,
                                                                 Karnidan,
                                                                 Muknaram etc.

4. Plaintiff asserted that the neighbour Ganeshilal and Kunna

Ram attempted to encroach upon the suit land and the defendant-

respondent filed a civil suit against Ganeshilal and Others in the

Court of Civil Judge No.2, Bikaner. After compromise and

settlement of dispute between the parties, the said suit was

disposed of.

5. The father of the parties had already filed an application

before the Competent Authority for conversion of the nature of the

land as per user from agricultural to residential, however, decision

was awaited. In the meantime, father died on 20.03.1983.

6. The respondent in his written statement admitted that it is a

fact that houses are constructed on the suit Khasra, however, the

revenue record still shows that the land is agricultural one. The

defendant admitted that he had filed a suit against Kunna Ram

and Ganeshilal before the Civil Court for removal of encroachment

from a portion of the suit property.

7. It is further asserted that other legal heirs of Mangilal were

not party to the partition suit, as such, the suit was bad for non-

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joinder of necessary party. Moreover some other ancestral

properties were not included in the suit, for this reason also, the

suit was not maintainable.

8. Side by side, prayer was made for rejection of the plaint on

the ground that the suit property was agricultural property and

only Revenue Court had jurisdiction and jurisdiction of the Civil

Court was completely barred as per Section 207 of the Rajasthan

Tenancy Act.

9. By the impugned order, the trial Judge rejected the plaint on

the ground that in the revenue record the suit property is

recorded as agricultural land and unless it is converted for

residential use, it would be treated as agricultural land even if it is

used for residential purpose. Therefore, the suit was maintainable

before the Revenue Court and the trial Judge rejected the plaint.

10. Learned counsel for the appellant contends that the learned

trial Judge has failed to appreciate that the Revenue Court was

competent to entertain the suit only in respect of agricultural land.

A land can be said to be agricultural when any crop is being grown

and sown in any part of the year. In due course, the land came

within municipal area of Bikaner and the authority vested with the

Rajasthan Urban Development Trust and the issue regarding

alteration of use of land was within competence of the authorities

under the Rajasthan Urban Development Act. The learned trial

Judge has taken view contrary to the admission of the respondent

and case of the parties.

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11. Learned counsel for the respondent justifies the order of the

trial Judge and submits that the judgment of the trial Judge is

completely covered by the judgment of this Court in Ram Kirpal

Das Ji Charitable Trust Vs Phool Chand & Ors. reported in

2012(1) DNJ (Raj.) 531; Vijay Singh & Anr. Vs Buddha &

Ors. reported in 2012(4) RLW 2932 (Raj.); Lal Singh Jhala

Vs Panna Lal reported in 2016(3) DNJ 1461; Ashok Chouhan

Vs Smt. Amri Bai & Anr. reported in 2010(2) DNJ (Raj.) 776;

Ratan Lal & Ors. Vs Shri Kanna Ji & Ors. (SB Civil First

Appeal No.258/2013 decided on 19.04.2023); Azure Power

Forty Three Pvt. Ltd., Daudsar, Bikaner Vs Javed Knan

reported in 2021(3) DNJ (Raj.) 1116 and on the judgment of

the Hon'ble Supreme Court in Harpal Singh Vs Ashok Kumar &

Ors. reported in AIR 2017 SC 5852.

12. Harpal Singh's case (supra) was a case under Section 6 of

the Specific Relief Act. In that case, the issue of rejection of plaint

was not involved. In Ram Kirpal Das's case (supra), plea was

raised regarding oral gift for construction of temple over an

agricultural land, as such, factually that case is also not helpful in

the present facts and circumstances of this case. In Vijay Singh's

case (supra), relief for cancellation of sale-deed and ancillary relief

was sought for, wherein main relief was declaration of Khatedari

right. In the circumstance, relying on Section 88 of the Rajasthan

Tenancy Act, the Court said that only Revenue Court has

jurisdiction to decide Khatedari right. In Lal Singh Jhala's case

(supra), it was specific case of the defendant, controverting the

case of the plaintiff, that the suit land was still agricultural land

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and it was not converted into for non-agricultural purposes i.e.

residential or commercial.

In the case on hand, there is admission of the defendant that

user of the land had changed.

13. In Ashok Chouhan's case (supra), the suit was for declaration

and permanent injunction in respect of agricultural land which was

not controverted. In the circumstance, the Court held that only

Revenue Court had jurisdiction. In Ratan Lal's case (supra), a

Bench of this Court relied on Vijay Singh's case (supra). In Ratan

Lal's case (supra), the prayer for partition was in respect of

agricultural land.

14. In the case on hand, it is not disputed by the parties that the

nature of the land had already changed from agricultural to

residential many years back, though revenue record still referred

the suit land as agricultural land. The technicalities need not and

should not have been allowed to frustrate the substantial justice.

Once, there is admission of the parties that nature of the land

changed from agricultural to residential, the trial Court ought not

to have rejected the plaint at the threshold.

15. The law is well settled that at the time of consideration of

prayer under Order VII Rule 11 C.P.C., the Court has to look into

the plaint only to come to the conclusion whether it discloses

cause of action to be tried or not.

16. In Dahiben Vs. Arvindbhai Kalyanji Bhanusali (Gajra)

(D) THR LRS & Ors. reported in (2020) 7 SCC 366, the Hon'ble

Supreme Court examined the issue in detail and held as follows :-

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"12.7 The test for exercising the power under Order VII Rule 11 is that if the averments made in the plaint are taken in entirety, in conjunction with the documents relied upon, would the same result in a decree being passed. This test was laid down in Liverpool & London S.P. & I Assn. Ltd. v. M.V.Sea Success I & Anr., [(2004) 9 SCC 512] which reads as :

"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."

In Hardesh Ores (P.) Ltd. v. Hede & Co. [(2007) 5 SCC 614] the Court further held that it is not permissible to cull out a sentence or a passage, and to read it in isolation. It is the substance, and not merely the form, which has to be looked into. The plaint has to be construed as it stands, without addition or subtraction of words. If the allegations in the plaint prima facie show a cause of action, the court cannot embark upon an enquiry whether the allegations are true in fact [(D.Ramachandran v. R.V. Janakiraman, {(1999) 3 SCC 267}].

12.8 If on a meaningful reading of the plaint, it is found that the suit is manifestly vexatious and without any merit, and does not disclose a right to sue, the court would be justified in exercising the power under Order VII Rule 11 CPC.

12.9 The power under Order VII Rule 11 CPC may be exercised by the Court at any stage of the suit, either before registering the plaint, or after issuing summons to the defendant, or before conclusion of the trial, as held by this Court in the judgment of Saleem Bhai v. State of Maharashtra [(2003) 1 SCC 557]. The plea that once issues are framed, the matter must necessarily go to trial was repelled by this Court in Azhar Hussain.

12.10 The provision of Order VII Rule 11 is mandatory in nature. It states that the plaint "shall" be rejected if any of the grounds specified in clause

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(a) to (e) are made out. If the Court finds that the plaint does not disclose a cause of action, or that the suit is barred by any law, the Court has no option, but to reject the plaint. "Cause of action" means every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. It consists of a bundle of material facts, which are necessary for the plaintiff to prove in order to entitle him to the reliefs claimed in the suit.

In Swamy Atmanand v. Sri Ramakrishna Tapovanam

[(2005) 10 SCC 51] this Court held :

"24. A cause of action, thus, 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. In other words, it is a bundle of facts, which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act, no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded"

In T. Arivandandam v. T.V. Satyapal & Anr. [(1977) 4 SCC 467] this Court held that while considering an application under Order VII Rule 11 CPC what is required to be decided is whether the plaint discloses a real cause of action, or something purely illusory, in the following words :-

"5....The learned Munsiff must remember that if on a meaningful -

not formal - reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under O. VII, R. 11, C.P.C.

taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the

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illusion of a cause of action, nip it in the bud at the first hearing..."

Subsequently, in I.T.C. Ltd. v. Debt Recovery Appellate Tribunal, [(1998) 2 SCC 70] this Court held that law cannot permit clever drafting which creates illusions of a cause of action. What is required is that a clear right must be made out in the plaint.

If, however, by clever drafting of the plaint, it has created the illusion of a cause of action, this Court in Madanuri Sri Ramachandra Murthy v. Syed Jalal [(2017) 13 SCC 174] held that it should be nipped in the bud, so that bogus litigation will end at the earliest stage.

The Court must be vigilant against any camouflage or suppression, and determine whether the litigation is utterly vexatious, and an abuse of the process of the court."

In the case of Sopan Sukhdeo Sable and Ors. Vs.

Assistant Charity Comisioner and Ors. reported in AIR 2004

SC 1801, the Hon'ble Supreme Court stated the law for

appreciation of disclosure of real cause of action as follows :

"10. In Saleem Bhai and Ors. v. State of Maharashtra and Ors. [(2003) 1 SCC 557] it was held with reference to Order VII Rule 11 of the Code 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 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 Order VII Rule 11 of the Code, the averments in the plaint are the germane: the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage.

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11. I.T.C. Ltd. v. Debts Recovery Appellate Tribunal and Ors. [(1998) 2 SCC 70] it was held that the basic question to be decided while dealing with an application filed under Order VII Rule 11 of the Code is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order VII Rule 11 of the Code.

12. The trial Court must remember that if on a meaningful and not formal reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise the power under Order VII Rule 11 of the Code taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, it has to be nipped in the bud at the first hearing by examining the party searchingly under Order X of the Code.

13. It is trite law that not any particular plea has to be considered, and the whole plaint has to be read. As was observed by this Court in Roop Sathi v. Nachhattar Singh Gill [(1982) 3 SCC 487], only a part of the plaint cannot be rejected and if no cause of action is disclosed, the plaint as a whole must be rejected.

14. In Raptakos Brett & Co. Ltd. v. Ganesh Property [(1998) 7 SCC 184] it was observed that the averments in the plaint as a whole have to be seen to find out whether Clause (d) of Rule 11 of Order VII was applicable.

15. There cannot be any compartmentalization, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or

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subtraction or words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time should be borne in mind that no pedantic approach should be adopted to defeat Justice on hair-splitting technicalities."

17. In view of the settled propositions of law above and on

perusal of the entire statement in plaint, it is evident that the

plaint discloses a case triable by a Civil Court for the reason that

actual nature of the land has changed on the date of institution of

the suit from agricultural to residential and this fact is admitted by

the respondent.

18. The issue of non-joinder of entire joint family property and

entire co-sharers would be considered as issue during the trial and

cannot be a ground to reject the plaint.

19. Once, the suit was brought before the Civil Court, merely the

technicality that revenue record still carries nature of the land as

agricultural ought not have prevailed to persuade the trial Judge