Telangana High Court

Boyapati Sudershan Rao vs Smt Boyapati Swaroopa Rani And 3 ... on 31 October, 2023

Bench: K. Sarath

                            1
                                                        SK,J
                                         CRP.No.2677 of 2022


        THE HON'BLE SRI JUSTICE K.SARATH

     CIVIL REVISION PETITION No.2677 of 2022

ORDER:

This Civil Revision Petition is filed under Article

227 of the Constitution of India aggrieved by the order

dated 18.11.2022 in I.A.No.97 of 2021 in O.S.No.1 of

2021 on the file of the V Additional District Judge at

Bodhan, Nizamabad District, wherein the petition filed

under Order VII Rule 11 read with

Section 151 C.P.C. to reject the plaint was dismissed.

2. Heard the learned counsel for the petitioner and

the learned Counsel for the respondents.

3. The respondent Nos.1 and 2 herein filed suit in

O.S.No.1 of 2021 on the file of VII Additional District

Judge at Bodhan for partition and separate possession

of the suit schedule property and for consequential

SK,J CRP.No.2677 of 2022

injunction not to alienate the suit schedule property till

disposal of the suit against the defendants.

4. The case of the plaintiffs/respondent Nos.1 and 2

is that the defendants and one Boyapati Ramesh, who

is the husband of the respondent No.1, are brothers

and after the death of their parents, as a joint family

acquired a rice mill at S.N.Puram, Varni in the name of

the petitioner as he being 'kartha' of undivided Hindu

joint family properties and the properties which were

purchased out of the earnings of agriculture and

business including the suit schedule property were also

in the name of the petitioner and he developed the

same. After the death of the husband of the respondent

No.1 on 20.03.2018 at Varni, a panchayat was

conducted with the caste elders

on 23.08.2018, wherein the elders and the family

members of petitioner and the respondent Nos.1 to 3

SK,J CRP.No.2677 of 2022

have decided for partition of joint family properties and

executed a document between the petitioner and the

respondent Nos.1 and 2 with the consent of the

respondent No.3 over phone as he was not attended the

panchayat due to ill-health. On 05.01.2021, the

respondent Nos.1 and 2 have demanded for partition as

per the document dated 23.08.2018, which was refused

by the petitioner. Aggrieved by the same, the

respondent Nos.1 and 2 filed suit for partition in

O.S.No.1 of 2021.

5. The petitioner/defendant No.1 filed I.A.No.97 of

2021 in O.S.No.1 of 2021 for rejection of plaint stating

that during the life time of the father of the petitioner,

partition of joint family properties was held in the year,

1978 and there is no joint family or joint family

properties and their shares were got transferred in their

names and enjoying the same and there was no cause

SK,J CRP.No.2677 of 2022

of action on 05.01.2021 and the suit is barred by

limitation.

6. The respondent Nos.1 and 2 filed counter before

the Court below stating that they have categorically

pleaded in the plaint with requisite essentials for filing

the suit such as, cause of action, limitation and Court

fee and it does not fall under the purview of the

ingredients of Order VII Rule 11 C.P.C., to reject the

plaint and prays to dismiss the petition.

7. The Court below after hearing both sides,

dismissed the I.A. and observed that the cause of action

is clear and the suit is within limitation since the

properties are joint properties of the plaintiffs and the

petitioner/defendant No.1 and defendant No.2 and the

valuation of suit and payment of Court Fee is proper,

however, for rejection of plaint, the cause of action

manifestly appears to be barred by the limitation or the

SK,J CRP.No.2677 of 2022

consideration, but not other things and dismissed the

petition. Aggrieved by the same, the present revision is

filed.

8. Learned counsel for the petitioner/defendant No.1

submits that the plaint must show the cause of action

and the limitation and as there is no cause of action,

the Court below erred in dismissing the petition. He

submits that the suit is filed based on the document

dated 23.08.2018, which is not signed by all the parties

and therefore, it is an incomplete document and not

properly stamped. He submits that a deed of partition is

compulsorily registerable document under Section 17 of

the Registration Act and an unregistered document can

be received in evidence on payment of deficit stamp

duty and penalty and a suit based on an invalid

document does not create any cause of action and

therefore, the suit is liable to be rejected and he

SK,J CRP.No.2677 of 2022

requested to allow the revision petition. He relied on the

following judgments:

1. Rajendra Bajoria and others v. Hemant Kumar

Jalan and others 1

2. Durga Bai V. Ayyub Begum 2

3. Pariti Suryakanthamma and another v. Saripalli

Srinivasa Rao and another 3

9. On the other hand, learned counsel for the

respondent Nos.1 and 2 submits that the trial Court

after taking into consideration all the facts on record

and after hearing both sides has rightly dismissed the

I.A. He submits that a document for partition would be

exempted from registration and whether the partition

deed dated 23.08.2018 is valid or not will be decided at

the time of full-fledged trial but not at the time of

adjudicating the application under Order VII Rule 11

AIR 2021 SC 4594

2020 (4) ALT 246(TS)

2010 (2) ALD 847

SK,J CRP.No.2677 of 2022

C.P.C. He submits that since the properties are joint

family properties, valuation of the suit is proper and as

the suit is filed based on the partition deed

dated 23.08.2018, the suit is not barred by limitation

and he requested to dismiss the revision.

10. After hearing both sides and perusal of the record,

this Court is of the considered view that the plaintiffs

are wife and son of the brother of the defendants,

namely Boyapati Ramesh. They filed suit for partition

and separate possession of suit schedule property and

for consequential injunction not to alienate the suit

schedule property till disposal of the suit under Section

26 Order 7 Rule 1 C.P.P. read with Section 151 C.P.C.

The petitioner/defendant No.1 filed I.A.No.97 of 2021 in

O.S.No.1 of 2021 under Order VII Rule 11 of C.P.C. to

reject the plaint on the ground that there is no cause of

action for filing the suit, suit is barred by limitation,

SK,J CRP.No.2677 of 2022

suit is not valued properly and paid less Court Fee. The

contention of the petitioner is that the Court below has

failed to appreciate the factual aspects on record and

came to irregular conclusions while passing the

impugned order. The Court below ought to have

considered the fact that there was an earlier partition of

the joint family properties way back in 1978 and the

parties to the partition have acted upon and developed

their respective properties individually and enjoying

individually. The Court below grossly erred in ignoring

the documents relied on by the petitioner filed along

with the written statement and passed the impugned

order on presumptions and surmises.

11. The other contention of the learned counsel of the

petitioner is that the Court below has simply

reproduced Order VII Rule 11 CPC in para No.6 of the

order and relied on a pleading that the defendant No.1

SK,J CRP.No.2677 of 2022

was Kartha of Joint Hindu Family without there being

any support and relied on an unregistered partition

said to have been consented by the defendant No.2 over

phone as mentioned in para No.7 of the order and

dismissed the application illegally. His further

contention is that the Court below has failed to

consider that Parikattu (Partition Deed)

dated 23.08.2018 is not valid and it is null and void

and ought not to have received along with plaint and it

is not an admissible document.

12. On the other hand, the respondent Nos.1 and

2/plaintiffs contended that the relief under Order VII

Rule 11 CPC is very narrow and opposed the same and

further contended that the averments in the plant can

be taken into account but not on the respective

contentions of the parties including the written

statement.

SK,J CRP.No.2677 of 2022

13. It is settled law that considering the petition under

Order VI Rule 11 C.P.C., the Court has to take into the

averments of the plaint along with the documents filed

by the plaintiff. The Court below has dismissed the said

application filed for rejection of plaint after hearing both

sides and held that the contentions raised by the

petitioner do not fall within the ambit of Order VI Rule

11 CPC for rejection of plaint. The said order is

impugned in the present revision.

14. A plain reading of the plaint clearly discloses the

cause of action for filing of the suit for partition and

whether the plaintiffs have right over the schedule

property or the partition deed filed along with the plaint

is particularly stamped or not has to be adjudicated

after completion of the full-fledged trial and not basing

on the averments in the plaint filed by the plaintiffs or

the written statement submitted by the defendants.

SK,J CRP.No.2677 of 2022

The contention of the petitioner and the respondents

with regard to execution of partition deed

dated 23.08.2018 which was signed by the

petitioner/defendant No.1 will be decided after full-

fledged trial.

15. The judgments relied on by the learned counsel

for the petitioner i.e, Rajendra Bajoria's case (cited 1

supra), Durga Bai's case (cited 2 supra), Pariti

Suryakanthamma's case (cited 3 supra) are not apply

to the facts of the present case.

16. The Hon'ble Supreme Court in Srihari

Hanumandas Totala Vs. Hemant Vithal Kamat and

others 4 held that Order 7 Rule 11(d) of CPC provides

that the plaint shall be rejected 'where the suit appears

from the statement in the plaint to be barred by any

law". Hence, in order to decide whether the suit is

2021 (5) ALD 98 (SC)

SK,J CRP.No.2677 of 2022

barred by any law, it is the statement in the plaint

which will have to be construed. The Court while

deciding such an application must have due regard only

to the statements in the plaint and it is not open to

decide the issue on the basis of any other material

including the written statement filed by the defendant

in the case.

17. The Hon'ble Supreme Court in P.V.Guru Raj

Reddy and another vs. P. Neeradha Reddy 5 held at

para 5 as follows:

"5. 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 plaint 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

(2015) 8 SCC 331

SK,J CRP.No.2677 of 2022

be rejected. In all other situations, the claims will have to be adjudicated in the course of the trial.

18. In the instant case, in the plaint, the respondent

Nos.1 and 2/plaintiffs have stated the bundle of facts

about their right over the suit schedule properties and

also clearly mention the cause of action for filing the

partition suit. In view of the same, the trial Court has

rightly dismissed the petition for rejection of plaint filed

by the petitioner. The impugned order passed by the

Court below needs no interference by this Court in

exercising revisional jurisdiction under Article 227 of

the Constitution of India.

19. In view of the above findings, the Civil Revision

Petition is liable to be dismissed as devoid of merits and