[Cites 20, Cited by 0]

Rajasthan High Court - Jodhpur

Vijay Kumar vs Lrs Of Shrawan Kumar (2026:Rj-Jd:4922) on 27 January, 2026

             S.B. Civil First Appeal No. 1086/2025

Vijay Kumar S/o Late Hariprasad Agarwal Bhavsinghka, Aged
About 81 Years, R/o Ward No.28 Churu, Tehsil And District Churu
(Raj). At Present Resident Of 19-B, Alipur Road, Kolkata Through
Power Of Attorney Holder Vijaykant Ojha S/o Jaidev Ojha, Aged
About 68 Years, R/o Churu (Raj)

                                                             ----Appellant

                                  Versus

1.     Lrs Of Shrawan Kumar S/o Banarasi Lal Bagala, R/o 11,
       Bride Street, Lengford Road, Bengluru-560025

1/1.   Mukta Devi W/o Late Shrawan Kumar, R/o Ward No.53,
       Churu, At Present -11, Bride Street, Lengford Road,
       Bengluru-560025.

1/2.   Lalit Kumar S/o Late Shrawan Kumar, R/o Ward No.53,
       Churu, At Present -11, Bride Street, Lengford Road,
       Bengluru-560025.

1/3.   Aparna D/o Late Shrawan Kumar, R/o Ward No.53, Churu,
       At Present -11, Bride Street, Lengford Road, Bengluru-
       560025.

2.     Krishan Kumar S/o Shri Banarasi Lal, R/o Ward No. 53, At
       Present 11, Bride Street, Lengford Road, Bengluru-
       560025

3.     Pawan Kumar S/o Shri Banarasi Lal, R/o Ward No. 53, At
       Present 11, Bride Street, Lengford Road, Bengluru-
       560025

4.     Satyanarayan Temple Trust, Subhash Chowk, Churu
       Through Attorney Holder Kanhaiyalal, Resident Of-
       Bhagwandas Bagala Ki Haveli, Main Market, Churu Raj..

5.     Mamta Kanwar W/o Sampat Singh, R/o C-32, Sector Iv,
       Sainik Basti, Churu, Tehsil And District Churu Raj..

6.     Nandu Kanwar W/o Shri Ramsingh Nirban, R/o Village
       Khinvsar, Tehsil And District Churu Raj..

7.     Madan Singh S/o Surjan Singh, R/o Village Khinvsar,
       Tehsil And District Churu Raj..

8.     Onkarmal Prajapat S/o Shri Dalu Ram, R/o - Village
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           Khinvsar, Tehsil And District Churu (Raj..)

 9.        Ummed Kanwar W/o Shri Roopsingh, R/o - Village
           Khinvsar, Tehsil And District Churu (Raj..)

                                                                    ----Respondents


     For Appellant(s)           :     Mr. Sohan Lal Jain
     For Respondent(s)          :     Mr.    Deendayal              Chitlangi     for
                                      respondent No. 4


           HON'BLE MR. JUSTICE MUKESH RAJPUROHIT

Judgment

27/01/2026

1. This civil first appeal under Section 96 of the Code of Civil

Procedure, 1908 has been preferred by the appellant-plaintiff

against the Order dated 16.07.2025 passed by the Additional

District Judge, Churu in Civil Regular Suit No.13/2021 titled as

"Vijay Kumar vs. LR's of Shrawan Kumar & Ors.", whereby

application under Order VII Rule 11 and Section 151 of C.P.C. filed

by the respondent Nos. 1 & 3/defendants has been allowed and

consequently, suit for partition, declaration of trust deed in respect

of ancestral property as void and illegal and permanent injunction

filed by the appellant-plaintiff has been rejected.

2. The facts of the case necessary for adjudication of the

present first appeal are that appellant-plaintiff - Vijay Kumar had

filed a civil suit for partition, declaration and cancellation of trust

deed executed in respect of ancestral property being void and

illegal qua share of the plaintiff and permanent injunction against

defendants before the trial court in 2021. In the said suit, plaintiff

claimed half ownership of certain properties inherited through a

valid will and probate of Late Laxmi Narayan Bagla in favour of his

ancestor Ramrikh Das. It has been pleaded that defendants (Uploaded on 04/02/2026 at 03:27:08 PM)

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unlawfully included these jointly owned properties in a trust and

sold portions without authority, therefore, plaintiff sought

declaration of his half share, partition by metes and bounds,

cancellation/ineffectiveness of the trust deed and illegal sale deeds

to the extent of his share and a permanent injunction against

further interference or transfer.

3. During pendency of the suit, respondent Nos. 1 & 3-

defendants filed an application under Order VII Rule 11 read with

Section 151 of C.P.C., objecting to the maintainability of the suit.

It has been submitted that plaintiff has based the suit on an

alleged Will said to have been executed by Late Shri Laxminarayan

Ji Bagla in favour of the plaintiff's ancestor Late Shri Ramrikh Das

Ji, probate of which was granted by the Hon'ble Calcutta High

Court on 29.04.1902. However, no such Will conferring ownership

upon Late Shri Ramrikh Das Ji was ever executed. Despite specific

court directions dated 04.10.2021, plaintiff failed to produce

alleged original Will, as no such Will exists. Late Shri Ramrikh Das

Ji was only appointed as an Executor of the Will and not as a

testamentary heir and under settled law, an Executor cannot claim

inheritance rights. Further, as evident from the plaintiff's own

pleadings and the sanad issued by the Rajasthan State in Samvat

1959, the Will was fully executed in accordance with the probate

granted by the Hon'ble Calcutta High Court, and all consequential

entries were completed. The plaintiff, therefore, has no locus

standi or surviving cause of action. The suit is false, vexatious,

barred by law and liable to be rejected at the threshold with costs.

4. The said application has been contested by the appellant-

plaintiff and it has been submitted in the reply to the application (Uploaded on 04/02/2026 at 03:27:08 PM)

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that present suit has been pending in the Court since 2021;

defendants' advocate has remained present since 03.09.2021 and

the case record was available for filing a written statement since

then. However, defendants did not submit any written statement

till date nor did they request for extension of time. Therefore,

their right to file a written statement lapsed automatically due to

non-compliance with the legal provisions. The plaint clearly

specifies the pleadings, on which the suit was registered and the

defendants were summoned. Since they failed to file a written

statement within the prescribed time, application is liable to be

dismissed as it does not specify under which legal provision the

suit is allegedly barred. The issues so raised in the application can

only be decided in subsequent hearings. The suit clearly states

locus standi and cause of action and the matter has long been

pending for a written statement. The application has been filed

with an intent to deliberately delay the proceedings. The suit was

filed with complete and accurate facts. The defendants have

intentionally failed to file a written statement within prescribed

period. The application under Order VII Rule 11 of C.P.C. can only

be decided based on the pleadings of the suit, which clearly

specify that the plaintiff is having locus standi and cause of action.

5. After hearing arguments of the parties, learned trial court

vide its Order dated 16.07.2025 has allowed the application under

Order VII Rule 11 and Section 151 of C.P.C. filed by the

respondent Nos. 1 & 3/defendants and rejected suit of the

appellant-plaintiff but considering the facts and circumstances of

the case, declared that failure of suit does not fall under the

category of res judicata.

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6. Heard learned counsel for the parties.

7. Learned counsel for the appellant submits that impugned

order passed by the trial court is illegal, unjust, capricious and

contrary to settled law regarding applications under Order VII Rule

11 of C.P.C., resulting in an erroneous rejection of the plaint at the

threshold.

7.1 It is contended that Order VII Rule 11 ibid allows rejection of

a plaint only in limited cases, namely, where it does not disclose a

cause of action and where the suit is barred by law, among others.

In the present case, respondents contended that the appellant's

suit had no cause of action and was barred by law, but failed to

specify how or under which law suit was barred, rendering their

objection legally insufficient.

7.2 It is submitted that the determination of locus standi and

cause of action requires examination of the pleadings, evidence

and documents, not merely assertions in the respondents'

application. The appellant submits that plaint discloses triable

issues and therefore, cannot be rejected at the threshold without

proper consideration of facts and evidence.

7.3 Learned counsel also submits that rejection of a plaint under

Order VII Rule 11 is a drastic remedy that must be exercised

sparingly and only when the conditions specified by law are strictly

met. The Courts are required to read all averments in the plaint as

a whole before deciding on the application. It is submitted that the

trial court's finding that cause of action was illusory and artificial is

unsubstantiated, as it does not point to any specific defect or flaw

in the appellant's pleadings.

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7.4 It is also submitted that respondents filed their application

under Order VII Rule 11 after being given multiple opportunities to

file their written statement, which indicates an attempt to avoid

trial on merits. This further demonstrates that the case involves

triable issues, making the summary rejection of the plaint

improper and unjust. On these premises, it has been prayed that

impugned order passed by the trial court is liable to be quashed

and set aside and the appellant's suit should be permitted to

proceed to trial on merits.

7.5 Learned counsel for the appellants has relied upon the

following judgments:-

i. Mayar (H.K.) Ltd. and others vs. Owners and Parties, Vessel M.V. Fortune Express and others reported in (2006) AIR SC 1828; ii. Liverpool and London S.P. And I Assn. Ltd.

vs. M.V. Sea Success I Anr Another reported in (2004) 9 SCC 512;

iii. Popat and Kotecha Property vs. State Bank of India Staff Association reported in (2005) 6 Supreme 7;

iv. Shri Balaji Industrial Products Ltd., Jaipur vs. AIA Engineering Ltd., Ahmedabad Through its Authorized Signatory Mr. Achyut C. Parikh & ors. reported in 2018(1) DNJ (Raj.) 114;

         v.     P. Kumarakurubaran vs. P. Narayanan &
                ors. reported in 2025(2) DNJ (SC) 608;
         vi.    P.V. Guru Raj Reddy and others vs. P.
                Neeradha Reddy and others reported in
                (2015) AIR (SC) 2485;
         vii. Daliben        Valjibhai       &     ors.      vs.    Prajapati
                Kodarbhai Kachrabhai & anr. reported in
                2024 INSC 1049;

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viii. Bhagwati Kunwar (Smt.) vs. Gulab Singh & ors. reported in 2019(3) CJ (Civ.) (Raj.) 1492;

8. Per contra, learned counsel for the respondents, while

supporting the order of the trial court, submits that plaintiff claims

inheritance of all properties of Late Laxminarayan Bagla based on

a Will allegedly executed in favor of his ancestor, Ramrikh Das Ji,

whereas no such will exists in favour of Ramrikh Das Ji and the

plaintiff has failed to produce original Will despite orders of the

Court.

8.1 It is submitted that plaintiff's ancestor, Ramrikh Das Ji, was

merely Executor of the will and not a legal heir. Therefore, plaintiff

cannot claim ownership or inheritance, rendering the suit legally

untenable.

8.2 It is contended that the suit is false, vexatious and legally

untenable, being based on a non-existent testamentary document.

It is submitted that an executor of a will cannot claim property

rights as a legal heir. Therefore, plaintiff has no cause of action

with respect to the properties in question.

8.3 Learned counsel has also submitted that the plaintiff has not

disclosed a clear family tree, pedigree or relationship with the

executor, Ramrikh Das Ji. There is no evidence of prior possession

of the properties by the plaintiff or his predecessors. It is

contended that essential details regarding the properties such as

nature, location, type or municipal records, are not provided in the

plaint.

8.4 It is further submitted that plaintiff challenges a trust deed

executed in 1977 but fails to explain why he remained unaware of

it for decades. The (Uploaded alleged Will is over 124 years old and the on 04/02/2026 at 03:27:08 PM)

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plaintiff has not accounted for prior claims or actions by other

parties. It is contended that no clear connection has been

established between the claimed properties and the executor or

the Will.

8.5 Lastly, it is contended that the suit seeks partition without

prior declaration or establishment of title, highlighting its

premature and unsubstantiated nature. Therefore, it has been

argued that considering the lack of locus standi, absence of cause

of action, inadequate pleadings and insufficient evidence, the trial

court has correctly dismissed plaintiff's suit and the order is fully

justified in law and fact.

8.6 Learned counsel for the respondents has relied upon the

following judgments :-

i. Braj Mohan & Anr. vs. Rameshwar & Ors.

reported in 2022(2) CJ (Civ.) (Raj.) 888;

ii. Kamli Devi (Smt.) vs. Smt. Rampyari & ors. reported in 2022(3) CJ (Civ.) (Raj.) 1543;

iii. Dahiben vs. Arvindbhai Kalyanji Bhanusali Th. LR's & Ors. reported in 2020(2) CJ (Civ.) (Raj.) 346;

iv. Chandrakala vs. Hapudi Devi reported in 2019(3) CJ (Civ.) (Raj.) 2052;

9. Heard and considered the rival submissions advanced by

learned counsel for the parties and perused the material available

on record.

10. The principal question arising for consideration in the present

first appeal is whether the trial court committed any jurisdictional

error or legal perversity in rejecting the plaint under Order VII

Rule 11 of C.P.C. on the ground that it does not disclose a cause of

action and is barred (Uploaded by law.on 04/02/2026 at 03:27:08 PM)

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10.1 It is settled law that while deciding an application under

Order VII Rule 11 of C.P.C., the Court must confine itself to a

meaningful reading of the averments made in the plaint, taken as

a whole, along with the documents relied upon by the plaintiff. At

the same time, it is equally well settled that clever drafting cannot

be permitted to create an illusion of a cause of action and where

the plaint is manifestly vexatious or meritless, the Court is duty-

bound to reject it at the threshold.

10.2 A careful scrutiny of the plaint reveals that entire foundation

of the appellant-plaintiff's claim rests upon an alleged Will dated

07.03.1901 said to have been executed by Late Shri

Laxminarayan Bagla, pursuant to which probate was allegedly

granted by the Hon'ble Calcutta High Court on 29.04.1902.

11. On a meaningful reading of the said Will, particularly Para 1

unequivocally appoints Ramrikh Das only as an Executor. No

words of bequest, gift or conferment of ownership are found

therein. It is well settled that an Executor derives authority only to

administer the estate and does not acquire any beneficial or

proprietary interest unless the Will expressly so provides.

12. During the course of arguments, learned counsel for the

appellant drew the attention of this Court to Para 9 of the will and

submitted that Para 9 clearly bequeaths residue to Ramrikh Das as

sole residuary legatee. It was contended that executor and

beneficiary can be the same person, the bequest vests on death,

and questions of residue, succession or proof are triable issues,

hence, plaint discloses a cause of action and could not be rejected

under Order VII Rule 11 CPC.

13. Para 9 of the Will reads as under :-

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"I give the rest and residue of all I may die possessed of after payment of all the forgoing legacies charities and other bequests to Ramrick Dass Bhawsinga who will be the sole residuary legatee under this my Will."

A residuary bequest operates only after all prior legacies,

trusts, charities and directions have been fully satisfied. However,

the plaint is conspicuously silent as to what constituted alleged

"residue"; whether any residue property survived after execution

of the charitable and other bequests; whether any such residue

property was ever identified, possessed or enjoyed by Ramrikh

Das; and how such alleged residue devolved upon the appellant.

14. Even assuming that Para 9 created a residuary interest,

there are no foundational pleadings establishing title, possession,

succession or chain of devolution from Ramrikh Das to the

appellant. This argument based on Para 9, moreover, is raised for

the first time before this Court during oral submissions and finds

no reflection in the pleadings in suit/appeal.

15. The trial court has rightly noted that neither the original Will

nor a certified copy of the probate granted by the Hon'ble Calcutta

High Court was produced. What was placed on record was a typed

copy of the Will and a photocopy of an attested copy of probate,

which was not legible. The probate itself does not disclose any

bequest in favour of Ramrikh Das. The failure to produce primary

documents or explain their non-production further weakens the

very substratum of the suit.

16. While it is true that at the stage of Order VII Rule 11 of

C.P.C., the Court does not assess evidentiary value, where the

plaint itself discloses that the foundational document does not

confer the claimed right, the Court is not precluded from rejecting (Uploaded on 04/02/2026 at 03:27:08 PM)

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17. The plaint also challenges a trust deed executed in the year

1977 without disclosing when or how the appellant acquired

knowledge of it, how the alleged cause of action survived for

decades, or whether any right was ever asserted by the appellant

or his predecessors for more than a century. The alleged Will is

over 120 years old, yet the plaint is silent as to any prior assertion

of rights. Such prolonged silence renders the pleaded cause of

action highly improbable and illusory.

18. In the case of Dahiben (supra), the Hon'ble Apex Court has

observed as under :-

"The remedy under Order VII Rule 11 is an independent and special remedy, wherein the Court is empowered to summarily dismiss a suit at the threshold, without proceeding to record evidence, and conducting a trial, on the basis of the evidence adduced, if it is satisfied that the action should be terminated on any of the grounds contained in this provision.

The underlying object of Order VII Rule 11 (a) is that if in a suit, no cause of action is disclosed, or the suit is barred by limitation under Rule 11 (d), the Court would not permit the plaintiff to unnecessarily protract the proceedings in the suit. In such a case, it would be necessary to put an end to the sham litigation, so that further judicial time is not wasted.

In Azhar Hussain v. Rajiv Gandhi, 1986 Supp. SCC 315, Followed in Maharaj Shri Manvendrasinhji Jadeja v. Rajmata Vijaykunverba w/o Late Maharaja Mahedrasinhji, (1998) 2 GLH 823, this Court held that the whole purpose of conferment of powers under this provision is to ensure that a litigation which is meaningless, and bound to prove abortive, should not be permitted to waste judicial time of the court, in the following words :

"12. ...The whole purpose of conferment of such power is to ensure that a litigation which is meaningless, and bound to prove abortive should not be permitted to occupy the time of the Court, and exercise the mind of the respondent. The sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose.(Uploaded Even ifonan ordinary 04/02/2026 civil PM) at 03:27:08 litigation,

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the Court readily exercises the power to reject a plaint, if it does not disclose any cause of action.

12.2 The power conferred on the court to terminate a civil action is, however, a drastic one, and the conditions enumerated in Order VII Rule 11 are required to be strictly adhered to. 12.3 Under Order VII Rule 11, a duty is cast on the Court to determine whether the plaint discloses a cause of action by scrutinizing the averments in the plaint, Liverpool & London S.P. & I Assn. Ltd. vs. M.V. Sea Success I & Anr., (2004) 9 SCC 512, read in conjunction with the documents relied upon, or whether the suit is barred by any law."

In Raghwendra Sharan Singh Vs. Ram Prasanna Singh

(Dead) by LR's reported in 2019 DNJ (SC) 337, the Hon'ble

Supreme Court observed as under :-

"7. Applying the law laid down by this Court in the aforesaid decisions on exercise of powers under Order 7 Rule 11 of the CPC to the facts of the case in hand and the averments in the plaint, we are of the opinion that both the Courts below have materially erred in not rejecting the plaint in exercise of powers under Order 7 Rule 11 of the CPC. It is required to be noted that it is not in dispute that the gift deed was executed by the original plaintiff himself along with his brother. The deed of gift was a registered gift deed. The execution of the gift deed is not disputed by the plaintiff. It is the case of the plaintiff that the gift deed was a showy deed of gift and therefore the same is not binding on him. However, it is required to be noted that for approximately 22 years, neither the plaintiff nor his brother (who died on 15.12.2002) claimed at any point of time that the gift deed was showy deed of gift. One of the executants of the gift deed -brother of the plaintiff during his lifetime never claimed that the gift deed was a showy deed of gift.

It was the appellant herein original defendant who filed the suit in the year 2001 for partition and the said suit was filed against his brothers to which the plaintiff was joined as defendant No. 10. It appears that the summon of the suit filed by the defendant being T.S. (Partition) Suit No. 203 of 2001 was served upon the defendant No.10 plaintiff herein in the year 2001 itself. Despite the same, he instituted the present suit in the year 2003. Even from the averments in(Uploaded the plaint, it appears on 04/02/2026 that at 03:27:08 PM)during these

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22 years i.e. the period from 1981 till 2001/2003, the suit property was mortgaged by the appellant herein original defendant and the mortgage deed was executed by the defendant.

Therefore, considering the averments in the plaint and the bundle of facts stated in the plaint, we are of the opinion that by clever drafting the plaintiff has tried to bring the suit within the period of limitation which, otherwise, is barred by law of limitation. Therefore, considering the decisions of this Court in the case of T. Arivandandam (supra) and others, as stated above, and as the suit is clearly barred by law of limitation, the plaint is required to be rejected in exercise of powers under Order 7 Rule 11 of the CPC.

7.1 At this stage, it is required to be noted that, as such, the plaintiff has never prayed for any declaration to set aside the gift deed. We are of the opinion that such a prayer is not asked cleverly. If such a prayer would have been asked, in that case, the suit can be said to be clearly barred by limitation considering Article 59 of the Limitation Act and, therefore, only a declaration is sought to get out of the provisions of the Limitation Act, more particularly, Article 59 of the Limitation Act. The aforesaid aspect has also not been considered by the High Court as well as the learned trial Court.

8. Now, so far as the application on behalf of the original plaintiff and even the observations made by the learned trial Court as well as the High Court that the question with respect to the limitation is a mixed question of law and facts, which can be decided only after the parties lead the evidence is concerned, as observed and held by this Court in the cases of Sham Lal alias Kuldip (supra); N.V. Srinivas Murthy (supra) as well as in the case of Ram Prakash Gupta (supra), considering the averments in the plaint if it is found that the suit is clearly barred by law of limitation, the same can be rejected in exercise of powers under Order 7 Rule 11(d) of the CPC.

9. In view of the above and for the reasons stated above, we are of the opinion that both the High Court as well as the learned trial Court have erred in not exercising the powers under Order 7 Rule 11 of the CPC and in not rejecting the plaint in exercise of powers under Order 7 Rule 11 of the CPC. For the reasons stated above, the impugned judgment and order passed by the High Court as well as the trial Court cannot be sustained and the same deserve to be quashed and set aside. Consequently, the impugned judgment and order passed by the High Court dated 12.03.2013 as well (Uploaded on 04/02/2026 as the at 03:27:08 order passed PM)

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by the Munsif, Danapur rejecting the Order 7 Rule 11 application filed by the original defendant are hereby set aside. Consequently, the application submitted by the appellant herein original defendant to reject the plaint under Order 7 Rule 11 of the CPC is hereby allowed and the plaint, being Title Suit No.19 of 2003 is hereby rejected. The present appeal is allowed accordingly in terms of the above."

In T. Arivandandam vs. T.V. Satyapal & Anr. reported in

(1977) 4 SCC 467, the Hon'ble Supreme Court has observed as

under :-

"......From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now, pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif 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, be should exercise his power under Or. VII r. 11 C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clever, drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order X C.P.C. ..."

19. In light of the principles laid down by the Hon'ble Supreme

Court in T. Arivandandam v. T.V. Satyapal, Dahiben v. Arvindbhai

Kalyanji Bhanusali, and Raghwendra Sharan Singh v. Ram

Prasanna Singh, this Court is of the considered opinion that the

trial court has rightly concluded that the plaint does not disclose a

real cause of action but only an illusion created by artful drafting.

The clarification that rejection of the plaint shall not operate as res

judicata reflects a balanced exercise of jurisdiction.

The judgments relied upon by the appellant, though correct

in law, are distinguishable on facts. They deal with cases where

the plaint disclosed a clear cause of action and foundational

documents were available.

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on an alleged Will and probate, neither of which have been

produced in original or certified form. The plaintiff's ancestor was

merely an executor, not a beneficiary and the plaint fails to show

any chain of title or possession. Therefore, the cited judgments do

not help the appellant.

20. The contention that the application under Order VII Rule 11

of C.P.C. was not maintainable due to non-filing of the written

statement, is devoid of merit. The power under Order VII Rule 11

can be exercised at any stage and forfeiture of the right to file a

written statement does not curtail the Court's jurisdiction to reject

a plaint barred by law or lacking a cause of action.

21. In view of the above, this Court finds that impugned order