Telangana High Court
Smt. Basheer Khatoon vs M/S Treasure Island Resorts Private ... on 8 August, 2024
Author: P.Sree Sudha
Bench: P.Sree Sudha
THE HONOURABLE SMT. JUSTICE P.SREE SUDHA
CIVIL MISCELLANEOUS APPEALS Nos.136 & 112 of 2023
AND
CIVIL REVISION PETITION Nos.2529, 2559, 2911, 2915 and
2916 of 2023
COMMON JUDGMENT:
C.M.A.Nos.136 and 112 of 2023 are filed against the
Order dated 12.12.2022 in I.A.No.1733 of 2017 in O.S.No.1432
of 2017, passed by the learned II-Additional District Judge,
Ranga Reddy District, L.B.Nagar.
2. C.R.P.Nos.2529 and 2916 of 2023 are filed against the
Order dated 12.12.2022 in I.A.Nos.1267 and 929 of 2022 in
O.S.No.600 of 2018, passed by the learned II-Additional District
Judge, Ranga Reddy District, L.B.Nagar.
3. C.R.P.No.2559 of 2023 is filed against the Order dated
12.12.2022 in I.A.No.188 of 2020 in O.S.No.1432 of 2017,
passed by the learned II-Additional District Judge, Ranga Reddy
District, L.B.Nagar.
4. C.R.P.No.2915 of 2023 is filed against the Order dated
12.12.2022 in I.A.No.928 of 2022 in O.S.No.27 of 2020, passed
by the learned II-Additional District Judge, Ranga Reddy
District, L.B.Nagar.
5. C.R.P.No.2911 of 2023 is filed against the Order dated
12.12.2022 in I.A.No.930 of 2022 in O.S.No.1432 of 2017,
passed by the learned II-Additional District Judge, Ranga Reddy
District, L.B.Nagar.
6. It is a long drawn litigation between the parties. Initially,
one Khader Nawaz Khan filed a suit vide O.S.No.471 of 1987,
against the defendants for partition of 1/4th share in Sy.Nos.41
to 43 admeasuring Acs.49-24 gts, situated at Kokapet village
and stated that originally one Qamaruddin Ali Khan was the
original owner and pattedar of the above agricultural lands. He
sold the land to one Khader Hussain Khan, through a registered
sale deed. From then onwards, Khader Hussain Khan was in
possession and enjoyment of the suit property as absolute
owner till he died in 1352 Fasli as bachelor, leaving behind his
sister Shahzadi-Bee and two step brothers by name Feroz Khan
and Khader Nawaz Khan/plaintiff. After the death of Khader
Hussain Khan, all of them are in joint possession and
enjoyment and Patta was issued in favour of elder brother of the
family i.e., Feroz Khan. It is stated that the plaintiff and
Shahzadi Bee are shikmidars. The said Feroz Khan died in
between 1977-78, leaving behind defendants No.1 to 9 as
widow, son and daughters. From then onwards plaintiff and
defendants No.1 to 11 are in joint possession and enjoyment of
the suit property. Defendant No.12 has no connection with the
suit property or share, but he is trying to create some
documents to deprive the rights of the plaintiff and other
sharers. In view of the family differences and as it is impossible
to continue in joint possession, plaintiff demanded for partition
of the suit schedule property and defendants also agreed and
promised, but they failed to fulfill their promise and finally on
15.11.2007, they refused for partition, as such he preferred suit
for passing of the preliminary decree and to declare that he is
entitled for 1/4th share in the matrooka properties, defendants
No.10 and 11 are entitled for half share to the extent of their
mother Shahzadi Bee and defendants No.1 to 9 are entitled for
1/4th share. During the pendency of the suit, defendants No.2
and 10 died. The land was not demarcated and partitioned
during the life time of Feroz Khan. In the meanwhile, plaintiff
had filed the suit for partition, as such the share of the plaintiff
and the shares of the defendants has to be decided by the
Court.
7. Defendant No.12 filed the written statement stating that
the suit schedule property was not the joint family property and
plaintiff is not the member of the joint family and not entitled
for share in the suit property. He filed the suit by colluding with
defendants No.1 to 11. He further stated that after the death of
Khader Hussain Khan, succession was granted to his two
brothers and sister and the said patta was made in the name of
elder member Feroz Khan. Khader Hussain Khan purchased the
suit schedule property from Qamruddin Ali Khan for a valid sale
consideration through registered sale deed 23 Arban 1344 and
he died in 1352 Fasli. After his death, his brother Feroz Khan
became the owner of the suit schedule property by a succession
certificate bearing No.812 of 1357 Fasli issued by the Director of
Settlements and he was in continuous and exclusive possession
of the suit schedule property and paying land revenue. He
perfected his title as exclusive owner during statutory period.
8. In the year 1965-66, one J.H.Krishna Murthy, claiming
himself to be the G.P.A of the heirs of one Nawab Nasarat
Jung-I, interfering with the peaceful possession and enjoyment
of the above lands of Feroz Khan, as such Feroz Khan gave
complaint against said Krishna Murthy to the police on more
than one occasion, but the police did not take effective steps. As
there was threat to dispossess him, he initiated proceedings
under Section 145 of Cr.P.C before the Revenue Divisional
Officer (R.D.O), but the R.D.O closed the proceedings stating
that there is no cause of breach of peace. When Krishna Murthy
was trying to trespass into the suit lands, Feroz Khan instituted
O.S.No.31 of 1966 against him seeking relief of declaration and
injunction and it was renumbered as O.S.No.512 of 1973. After
institution of the suit Feroz Khan agreed to sell the entire lands
in Sy.No.42, 43 and a portion of 41 to defendant No.12 and
executed registered sale deed in his favour on receiving balance
of sale consideration on 04.10.1960, as such he was impleaded
as plaintiff No.2 in O.S.No.512 of 1973. The Feroz Khan, was in
dire need of money to meet his litigation and other expenses, as
such offered to sell the entire extent of Acs.18-25 gts in
Sy.No.43 to defendant No.12 and executed an agreement of sale
on 23.03.1973 and promised to execute registered sale deed
within two months from the disposal of the O.S.No.512 of 1973.
The said Krishna Murthy contended that the lands are Ara-zi-
Maktha lands and after the death of Nawaz Nasruth Jung-I,
they were taken over by the Government. The said O.S.No.512
of 1973 was decreed in favour of Feroz Khan on 30.06.1976.
Aggrieved by the said Judgment and decree, Krishna Murthy
has preferred an appeal in C.C.C.A.No.142 of 1976 and during
the pendency of the appeal, Feroz Khan died on 22.01.1978.
9. Defendant No.12 had also filed O.S.No.164 of 1981 for
permanent injunction when L.Rs. of Feroz Khan are trying to
sell away the property covered under agreement of sale dated
23.03.1973, restraining them from selling or disposing of the
land in Sy.No.43 and it was decreed in his favour restraining
the defendants No.1 to 9 from alienating the suit lands to third
parties. Aggrieved by the same, they preferred an appeal in
A.S.No.66 of 1984 and the same was dismissed on 27.11.1984.
C.C.C.A.No.142 of 1976 filed by Krishna Murthy was also
dismissed on 11.12.1985 and hence defendant No.12 issued
legal notice on 22.12.1985 to defendants No.1 to 9 to register
the sale deed basing on the agreement of sale dated 23.03.1973.
When they failed to comply the same, he filed a suit vide
O.S.No.150 of 1986, for specific performance of agreement of
sale dated 23.03.1973 for the land measuring an extent of
Acs.18-25 gts in Sy.No.43. After the dismissal of
C.C.C.A.No.142 of 1976, the defendant No.12 along with
defendants No.1 to 9 filed E.P.No.8 of 1986, for delivery of the
land and it was delivered to them on 19.06.1986. It was
contended by defendant No.12 that plaintiff was never in
possession and he never attempted to implead at any point of
time.
10. Plaintiff in his evidence stated that Qamruddin Khan died
in the year 1943 issueless, Feroz Khan died in the year 1977
and his sister died 15 years prior to the filing of the suit. In the
evidence of D.W.1/defendant No.12, he stated that he
purchased the lands in Sy.No.41 to 43 from Feroz Khan. He
along with Feroz Khan filed a suit vide O.S.No.10 of 1967
against Krishna Murthy for declaration of title. Ex.B11 is the
Order dated 29.10.1975, passed by the Land Reforms Tribunal,
Hyderabad and it shows that Feroz Khan filed for declaration
before the Land Ceiling Authority. All the documents were filed
before the Court and were considered by the Court. Finally, it
was observed that issues 1 to 7 were proved in favour of
defendant No.12 and against plaintiff, as such the suit was
dismissed. Aggrieved by the said Judgment, plaintiff preferred
an appeal vide A.S.No.734 of 1991 and the appeal was allowed
on 25.01.1996 with an observation that the appellant is one of
the co-heirs, Khader Hussain Khan is entitled for partition of
the property and against the said Order Rev.C.M.P.No.3830 of
1999 and L.P.A.No.72 of 1996 were filed and same were allowed
on 30.08.2001. Later, Special Leave Petition was preferred
against the review and the same was set aside and thus the
Order in L.P.A became final. A.S.M.PNos.11880 of 2004 and
1098 of 2005 & 1099 of 2005 were filed for grant of half share
in favour of the petitioners therein and the same were allowed
and the decree in A.S.No.734 of 1991 dated 25.01.1996 was
directed to be amended allotting and dividing half share in the
suit schedule property to the petitioners therein, 1/4th share to
respondents No.1 to 6 and 1/4th share to respondents No.7 to
15 therein.
11. The defendant No.12 through his legal heir Ch.Niveditha
Reddy, filed the Civil Appeal Nos.2352-2354 of 2008,
challenging the amendment Order in A.S.No.734 of 1991 and it
was dismissed on 16.09.2014. An application was filed before
the trial Court for appointment of the Advocate Commissioner to
effect the partition for preliminary decree, even it was
challenged in C.R.P.No.4219 of 2015, the same was also
dismissed on 29.07.2016, confirming the Order of the
appointment of the Advocate Commissioner. An application was
filed for Cross-examination of the Advocate Commissioner, but
when it was not considered C.R.P.No.2796 of 2017 was filed and
it was dismissed on 18.01.2018.
12. The defendant No.12 executed Will in favour of his
daughter Nivedita Reddy, as such Nivedita Reddy in her
personal capacity and the also in the capacity of Managing
Director of M/s.Nischint Constructions, filed O.S.No.1432 of
2017 and she was represented by G.P.A holder. She stated that
she was the absolute owner of the agricultural land in Sy.No.41
part admeasuring Acs.10-33 gts, as per the registered Will deed
bearing document No.22 of 2012 dated 25.10.2012, executed by
Vellanki Srihari. In fact, there is no land in existence more than
Acs.9-20 gts, but revenue authorities mistakenly shown the
total extent as Acs.10-30 gts. It is stated that Acs.9-20 gts was
shown as Sy.No.42/A and balance extent of Ac.1-10 gts was
shown as Sy.No.42/AA. She stated that executant of the
registered Will deed died on 11.01.2014. From then onwards,
she became the absolute owner. The said Vellanki Srihari,
during his life time entered into agreement of sale dated
13.07.1967 with Feroz Khan and possession was delivered to
him on 03.10.1969 and subsequently Feroz Khan executed a
registered sale deed vide document No.648 of 1969, dated
04.10.1969, for the lands in Sy.No.41 part measuring an extent
of Acs.10-33 gts out of the total extent of Acs.20-33 gts and the
land in Sy.No.42 admeasuring Acs.9-20 gts totally admeasuring
Acs.20-13 gts, situated at Kokapet Village, Hyderabad. She
further stated that during the life time of Srihari, he entered
into an agreement of sale with M/s.Nischint Constructions on
29.10.1993, for valuable consideration. He received the entire
sale consideration and also recited to that effect in the
registered Will deed. She also stated regarding the delivery of
the possession to M/s.Nischint Constructions, as such she
along with M/s.Nischint Constructions filed suit for protecting
their rights. When they came to know about the proceedings of
the suit in O.S.No.471 of 1987, they filed implead petitions vide
I.A.No.1042 of 2014 in I.A.No.506 of 2014 in O.S.No.471 of
1987 (Mesne profits), I.A.No.1044 of 2014 in I.A.No.507 of 2004
(final decree) and I.A.No.1046 of 2014 in I.A.No.1507 of 2014
(Advocate Commissioner).
13 She further stated that initially Qamruddin Ali Khan was
the absolute owner of the suit schedule property and possessor
and from him on 23rd Arban 1344 Fasli (1935), Khader Hussain
Khan purchased the same through a registered sale deed and
he died in the year 1352 Fasli (1943). Later, his brother Feroz
Khan obtained a succession certificate bearing No.812 of 1357
Fasli (1948) issued by the directors of settlements and he was in
exclusive possession and enjoyment of the same continuously
prior to delivery of possession of the suit property to Vellanki
Srihari on 03.10.1969, basing on the agreement of sale dated
13.07.1967 and later as per the registered sale deed bearing
document No.648 of 1969 dated 04.10.1969 and he was in
possession of the suit schedule property for more than 12 years
of statutory period till filing of the suit in O.S.No.471 of 1987.
Even today M/s.Nischint Constructions is in possession and
enjoyment of the same and thus from 03.10.1969 till today i.e.,
for more than 49 years they are in possession and thus Vellanki
Srihari perfected his title by way of prescription against all the
defendants.
14. She also stated that Feroz Khan died on 22.01.1978. After
passing of the decree in O.S.No.512 of 1973, Vellanki Srihari
and Feroz Khan filed E.P.No.8 of 1986. Accordingly, possession
was redelivered to both of them as per the Panchanama dated
30.06.1986. Even at that time neither Khader Nawaz Khan or
his wife and children nor sons of Shahzadi Bee made any efforts
to protect their rights at the time of receiving the delivery of
possession and did not raise any objections and they have not
questioned the continuous possession of the Vellanki Srihari.
The Khader Nawaz Khan had filed E.A.No.12 of 1989 in
E.P.No.23 of 1988 in O.S.No.150 of 1986, but it was dismissed,
against which C.R.P.No.3441 of 1989 was filed and the same
was dismissed and thus Khader Nawaz Khan and his legal heirs
have lost all their rights, title and interest in the suit schedule
property. It is further stated that the family members of
Shahzadi Bee and Khader Nawaz Khan are well aware of the
alienations made by Feroz Khan claiming himself as the
exclusive owner and possessor of the suit schedule property and
other properties. One Syed Maqdoom Shah was an attesting
witness to the agreement of sale dated 13.07.1967 and also to
the delivery of the possession panchanama dated 03.10.1969
for Acs.20-13 gts in Sy.No.41 part and 42 purchased through
registered sale deed dated 04.10.1969 vide document No.648 of
1969 and the said Syed Maqdoom Shah was an attesting
witness and identifying witness to the said registered sale deed,
as such the said Syed Mohiuddin Shah and Syed Hussain Shah
cannot put forth any claim as they lost their title in view of their
knowledge that Vellanki Srihari being a third party was in
possession and enjoyment to their notice, as such defendants
No.10 to 17 in O.S.No.1432 of 2017 cannot take away the rights
or title by prescription or by adverse possession in view of long
standing possession for more than statutory period of 12 years.
In fact, 18 years were completed. O.S.No.150 of 1986 filed by
Vellanki Srihari for specific performance of agreement of sale
dated 23.03.1973 was also decreed on 02.11.1987 against the
legal heirs of Feroz Khan and it became final. Subsequently, in
view of amended ROR Act by paying requisite Stamp Duty to the
Registrar, M.R.O, Rajendranagar, validated the document under
proceedings No.ROR/4218/1989 dated 26.03.1992.
15. It is further stated that Vellanki Srihari had alienated the
land to M/s.Treasure Island, through six registered sale deeds.
When Agriculture Land Ceiling Act, 1973, came into existence
Feroz Khan filed declaration on 08.04.1975 vide Ceiling Case
No.388/W/75 and declaration was shown by the Tahsildar as
per verification and inspection report dated 11.09.1975. The
properties were sold away by them in Sy.No.41 part, 42 and 43
and the said Nawaz Khan and Shahzadi Bee did not prefer to
file any suit for the suit schedule properties. The legal heirs of
Feroz Khan have filed an appeal vide A.S.No.66 of 1983 against
the Judgment and decree passed in O.S.No.164 of 1981, but it
was dismissed and restrained them from not alienating the suit
schedule property. It clearly shows that Vellanki Srihari was in
possession and enjoyment of the suit schedule property
throughout his life time. When Krishnamurthy claiming suit
schedule property and other properties, Feroz Khan filed
O.S.No.31 of 1966 and during the pendency of the said suit,
Feroz Khan entered into the agreement of sale with Vellanki
Srihari in the year 1967 and after delivery of the possession,
execution of the registered sale deed, in the year 1967
impleaded him as plaintiff No.2 in the suit. The suit was
renumbered as O.S.No.10 of 1967 and again renumbered as
O.S.No.512 of 1973. The Feroz Khan and Vellanki Srihari gave
complaint against Krishnamurthy on 30.06.1970 under Section
145 of Cr.P.C and they also amended suit for recovery of
possession. The said suit was decreed in favour of Feroz Khan
and Vellanki Srihari on 30.06.1976, against which
Krishnamurthy preferred an appeal vide C.C.C.A.No.142 of
1976 and it was dismissed on 01.12.1985, but during the
pendency of the appeal, Feroz Khan died and his legal heirs
were brought on record. The Vellanki Srihari had filed
O.S.No.164 of 1981 against the legal heirs of Feroz Khan and it
was decreed, against which they preferred an appeal vide
A.S.No.66 of 1984 and it was dismissed on 27.07.1984, against
the said Order, Civil Revision Petition was preferred and the
same was also dismissed on 11.12.1985. After the dismissal of
appeal in C.C.C.A.No.142 of 1976, Feroz Khan and Vellanki
Srihari filed E.P.No.8 of 1986 and took the delivery of
possession.
16. The Vellanki Srihari was in possession from 03.10.1969.
He entered into agreement of sale with M/s.Nischint
Constructions on 29.10.1993, as such the preliminary decree
passed in O.S.No.471 of 1987 was not binding on the
M/s.Nischint Constructions represented by Nivedita Reddy and
it is fraudulent. In issue No.5 framed by the trial Court in
O.S.No.471 of 1987, it was specifically opined by the Court that
Vellanki Srihari was in possession and enjoyment of the
property purchased by him through registered sale deed. Even
in the appeal vide A.S.No.734 of 1991, the finding of the issue
No.5 regarding possession of Srihari was not disturbed or
reversed. Vellanki Srihari executed registered Will deed on
25.10.2012, in favour of Nivedita Reddy. In C.R.P.No.4219 of
2015, this Court observed that equities have to be worked out.
As the findings given by the trial Court regarding possession of
the Srihari was not disturbed, M/s.Nischint Constructions was
in possession as agreement holder. So also, M/s.Treasure
Island Resorts Pvt. Ltd. has no opportunity to contest the
matter. Vellanki Srihari had also filed suit for injunction against
the Chaitanya Bharathi Institute of Technology and it was
numbered as O.S.NO.294 of 1991 and the same was decreed on
03.02.1997, restraining them not to interfere with his peaceful
possession. The said Nivedita Reddy gave complaint before the
P.S.Narsingi and she was advised to approach the civil Court, as
such filed suit for injunction. During the pendency of the
injunction suit, interlocutory application was filed for temporary
injunction. The trial Court considering the arguments of both
sides, allowed the application for grant of temporary injunction.
The Order dated 13.12.2017 granting Status-Quo was modified
to that of temporary injunction in I.A.No.1733 of 2017 in
O.S.No.1432 of 2017 dated 12.12.2022.
17. In the written submissions of appellants it is stated that
all the five revisions and two appeals are offshoots of a partition
suit vide O.S. No. 471 of 1987, on the file of learned Additional
Senior Civil Judge, R.R. District. A preliminary decree was
passed in the said suit on 29.10.1987 (by virtue of judgment
and decree in A.S.No.732 of 1991 on the file of this court) which
found it's finality in the Supreme Court. Subsequently, a final
decree was also passed on 31.03.2018 which is a subject matter
of A.S.No.113 of 2018 and A.S.No.120 of 2018 before the Court
of learned I-Additional District Judge, R.R. District. While so,
three suits bearing O.S.No.1432 of 2017, O.S.No.600 of 2018
and O.S. No 27 of 2020 were filed by the parties to the final
decree proceedings. While O.S. No. 1432 of 2017 and O.S. No.
600 of 2018 was filed injunction, O.S. No. 27 of 2020 was filed
to declare the preliminary decree and also the final decree in
O.S. No. 471 of 1987 as null and void and for other reliefs. For
proper appreciation of the case, the facts and proceedings right
form 1987 are relevant.
18. One Khadar Hussain Khan was the admitted owner of the
land measuring an extent of Acs.29-24 gts in S.Nos.41, 42 and
43, situated at Kokapet village, Gandipet Madal, R.R.District. He
died in the year 1943 leaving behind his sister Shahzadi Bee
and two stepbrothers i.e., Firoz Khan and Khader Nawaz Khan.
The Khader Nawaz Khan filed O.S.No.471 of 1987 on the file of
the learned Additional Senior Civil Judge, R.R. District for
declaration that he has 1/4th share in the said property left
behind by Khadar Hussain Khan. By the time of filing of the
said suit, both Feroz Khan and Shahzadi Bee died and their
legal representatives were made as party to the suit. The legal
representatives of Feroz Khan were impleaded as defendants
No.l to 9 in the suit and the legal representatives of Shahzadi
Bee were impleaded as defendants No.10 and 11 in the suit.
One Srihari who was a purchaser of part of the suit schedule
property was impleaded as defendant No.12 in the suit. The suit
was contested by defendant No.12 stating that it was the
absolute property of Feroz Khan and Feroz khan was in
exclusive possession of the property and thus he executed a
registered sale deed dated 04.10.1969 to an extent of Acs.20-23
gts in his favour and also executed an agreement of sale dated
23.03.1973 to an extent of Acs.18-25 gts. On that, defendant
No.12 filed a suit vide O.S. No. 150 of 1986 for specific
performance of the said agreement of sale and the same was
decreed and he took delivery of the same in E.P. 8 of 1986.
Having pleaded so, defendant No.12 prayed for dismissal of the
suit.
19. The suit vide O.S. No. 471 of 1987 was dismissed in a
judgment and decree dated 16.10.1990, holding that Feroz
Khan was in absolute possession of the suit schedule property.
A perusal of the said judgment shows that defendant No.12 was
examined as D.W.1 and marked Exs.B1 to B30. Ex.B5 is the
sale deed executed by Feroz Khan in favour of defendant No.12
and the decree in O.S.No.150 of 1986 was marked as Ex. B21.
20. Questioning the judgment and decree dated 16.10.1990
passed in O.S.No.471 of 1987, Khader Nawaz Khan filed
A.S.No.734 of 1991 before this Court and the same was allowed
in Judgment and Decree dated 25.01.1996 holding that
succession was granted in favour of Feroz khan, Khader Nawaz
Khan and Shahazadi Bee and mere mutation of name of Feroz
khan in the revenue records does not affect the rights of other
sharers and that all the sharers are in joint possession of the
suit schedule property. It is also not a case of ouster and that
the plaintiff is entitled to 1/4th share in the suit schedule
property and for partition and separate possession of his 1/4th
share. The suit vide O.S.No.471 of 1987 was also confirmed in
L.P.A.No.72 of 1996. The Review C.M.P.No. 3830 of 1999 and
LPA No.72 of 1996 filed by Srihari (D12) was allowed on
30.08.2001 directing the LPA to be heard afresh. Pending LPA,
the plaintiff namely Khader Nawaz Khan died and his legal
representatives came on record as plaintiffs 2 to 7. Questioning
the order dated 30.08.2001 passed in Review C.M.P.No.3830 of
1999 and LPA No.72 of 1996, plaintiffs No.2 to 7 filed SLP
No.22591 of 2001 and the same was allowed by the Hon'ble
Supreme Court and consequently the Order in LPA.No. 72 of
1996 dated 29.12.1998 was restored. Thereupon, questioning
the order in LPA No. 72 of 1996 dated 29.12.1998, defendant
No.12 filed SLP No.2962 of 2003 and the same was dismissed
by the Hon'ble Supreme Court by order dated 07.04.2003.
21. While so, ASMP No.11880 of 2004 was filed by defendants
No.1 to 9 in the suit for declaring their ½ share in the suit
schedule property on the ground that there was no reference to
their share in the preliminary decree. A Common order was
passed on 21.04.2005 in ASMP No. 11880 of 2004 along with
ASMP No.1098 and 1099 of 2005 amending the decree by
allotting 1/4th share in the suit schedule property to defendants
No.1 to 9 and ½ share to defendants No.10 and D11 while
retaining 1/4th share to the plaintiffs. It is significant to note
that in the said order no share was allotted to defendant No.12.
Aggrieved by the said Common Order dated 21.04.2005,
defendant No.12 carried the matter to Hon'ble Supreme Court
by way of Civil Appeals No. 2352 - 2354 of 2008. During the
Pendency of the appeals, defendant No.12 (Srihari) died and one
Ch. Niveditha Reddy came on record as his legal representative
by virtue of registered Will dated 25.10.2012, executed by
defendant No.12 in her favour. Eventually SLP No. 2352-2354 of
2008 was dismissed by Order dated 16.09.2014 by the Hon'ble
Supreme Court.
22. It is to be noted that after the dismissal of SLP 2352 -
2354 of 2008 on 16.09.2014 by the Hon'ble Supreme Court,
Niveditha Reddy, M/s.Nischinth Constructions represented by
Proprietix Niveditha Reddy and M/s. Treasure Island Resorts
Pvt. Ltd represented by its Managing Director Niveditha Reddy
came on record as respondents No.14 to 16 in the final decree
petition in I.A. No.507 of 2004. They contested final decree
petition by opposing appointment of commissioner to divide the
schedule property in accordance with the preliminary decree
and questioned the order appointing the commissioner, by filing
C.R.P.No.4215 of 2015 before this Court and the same was
dismissed holding that Srihari (D12) contested the matter upto
Supreme Court and the contentions raised by defendant No.12
were rejected and that the preliminary decree had become final.
It was also held that the said Niveditha Reddy, M/s.Nischinth
Constructions and M/s.Treasure Island Resorts Pvt. Ltd are
only representatives of defendant No.12 and they are bound by
preliminary decree. They again filed C.R.P.No.2796 of 2007 as
their plea for cross examination of advocate commissioner was
negatived by the trial court, but the same was also dismissed by
order dated 18.01.2018. Subsequently, I.A. No.507 of 2004 was
allowed by order dated 31.03.2018, where under final decree
was passed in terms of preliminary decree. It is significant to
note that defendant No.12 was not given any share in the final
decree also. Questioning the final decree, Niveditha Reddy and
M/s.Nischinth Constructions filed A.S. No.113 of 2018, whereas
M/s.Treasure Island Resorts Pvt. Ltd filed A.S.No.120 of 2018.
Both the appeals are pending before the learned II-Additional
District Judge, R.R.District.
23. While so, three fresh suits were filed by Niveditha Reddy,
M/s.Nischinth Constructions and M/s.Treasure Island Resorts
Pvt, Ltd. O.S. No.1432 of 2017 was filed before the learned
II-Additional District Judge, R.R, District, by Niveditha Reddy
and M/s.Nischinth Constructions against the decree holders in
O.S.No.471 of 1987, by arraying them as defendants No.1 to 19.
The suit was filed for perpetual injunction restraining
defendants therein from interfering with plaintiffs' possession of
the suit schedule property on the ground that Srihari (D12 in
O.S.No.471 of 1987) executed agreement of sale dated
29.10.1993 in favour of M/s.Nischinth Constructions in respect
of Acs.22- 13 gts in S.No.41/2 and 42/A of Kokapet village, that
plaintiff No.1 is obliged to execute the registered sale deed in
favour of plaintiff No.2 and that the defendants were threatening
and interfering with their possession. By order dt.13.12.2017 an
exparte Status quo order was granted in I.A.No.1733 of 2017 in
the said suit.
24. The suit vide O.S.No.600 of 2018 was filed by
M/s.Treasure Island Resorts Pvt.Ltd in respect of Acs.18 - 25
gts in Sy.No.43 of Kokapet village on the ground that Srihari
(D12 in O.S. No. 471 of 1987) executed six registered sale deeds
during May, 2017 in favour of M/s.Treasure Island Resorts Pvt.
Ltd and the defendants (decree holders in O.S. No. 471 of 1987)
are interfering with its possession.
25. The suit vide O.S.No.27 of 2020 was filed by
Ch. Niveditha Reddy, M/s.Nischinth Constructions and
M/s.Treasure Island Resorts Pvt. Ltd to declare the preliminary
decree and final decree in A.S.No.723 of 1991, as null and void
and for other reliefs as against defendants No.23 to 26
(assignees from D10 and D11 in O.S. No. 471 of 1987). While
so, several interlocutory applications were filed by the parties in
these suits, against which several Civil Revision Petitions and
Civil Miscellaneous Petitions are filed before this Court. For the
sake of convenience, the details of the said applications are
shown in a Tabular form as shown below:
I.A.No. O.S.No. Parties Parties in Section Result C.R.P/C.M.A
O.S.No.471 of law
of 1987
188 of 1432 D.10 P.2 to P.7 Order 7 C.R.P.No.2559
2020 of to rule 11 of 2023
2017 D.15
930 of 1432 D.9 D.9 Order 7 C.R.P.No.2911
2022 of rule 11 of 2023
2017 Dismissed
1267 600 of D.9 to P.2 to P7 Order 7 by Order C.R.P.No.2529
of 2018 D.14 rule 11 dated of 2023
2022 12.12.2023
929 of 600 of D.8 D.9 Order 7 C.R.P.No.2916
2022 2018 rule 11 of 2023
928 of 27 of D.8 D.9 Order 7 C.R.P.No.2915
2022 2020 rule 11 of 2023
1733 1432 P1 & Lrs. of Order Allowed by C.M.A.Nos.112
of of P2 D12 39 rule Order and 136 of
2017 2017 1&2 dated 2023
12.12.2023
26. On perusal of entire facts of three plaints, it is apparent
that the plaintiffs in O.S.No.1432 of 2018, O.S. No. 600 of 2018
and O.S. No.27 of 2020 are bound by the preliminary decree in
A.S.No.734 of 1991 being allowed by this Court. It is significant
to note that defendant No.12/Srihari in O.S.No.471 of 1987
contested the said appeal unsuccessfully and the said judgment
in A.S.No.734 of 1991 was confirmed in LPA No.72 of 1996 and
also by the Hon'ble Supreme Court. Subsequently, preliminary
decree was amended by order dated 21.04.2015 and against the
said order, defendant No.12 carried the matter to Supreme
Court and during the pendency of the said appeal, Srihari died
and Niveditha Reddy came on record by virtue of registered Will
dated 25.10.2012 executed by defendant No.12, thus Niveditha
Reddy is precluded from questioning the amended preliminary
decree in any manner. Likewise, Nischinth Constructions which
is based on the agreement of sale dated 19.10.1993 executed by
defendant No.12 has no claim as defendant No.12 contested the
A.S.No.734 of 1991 and suffered preliminary decree which was
became final before the Hon'ble Supreme Court. Treasure Island
Resorts Pvt.Ltd got registered sale deed in its favour only during
May, 2000, by which time the preliminary decree was already
passed in spite of contest by defendant No.12.
27. It is significant to note that Niveditha Reddy,
M/s.Nischinth Constructions and M/s.Treasure Island Resorts
Pvt. Ltd have already filed A.S.No.113 of 2018 and A.S.No.120 of
2018 before the learned II-Additional District Judge,
R.R.District, questioning the final decree dated 31.03.2018
passed in 1.A. No. 507 of 2004 by the learned Senior Civil
Judge, R.R. District and it is for them to work out their rights, if
any, in the said appeal and not by way of separate suits.
28. In the light of the specific finding in A.S. No.734 of 1991
to the effect that all the sharers are in joint possession and the
preliminary decree having become final before the Hon'ble
Supreme Court, it is not open to either Niveditha Reddy or
M/s.Nischinth Constructions or to the M/s.Treasure Island
Resorts Pvt. Ltd to file independent suits either for injunction or
for declaration of the preliminary decree and final decree in O.S.
No.471 of 1987 as null and void. The facts clearly discloses that
Niveditha Reddy, M/s.Nischinth Constructions and
M/s.Treasure Island Resorts Pvt. Ltd have no right to sue as
they are bound by the preliminary decree in O.S.No.471 of 1987
and having filed appeals against final decree, no suit for such
reliefs as prayed for either for injunction or for declaration that
decree in O.S. No.471 of 1987 as null and void are
maintainable.
29. The Hon'ble Supreme Court in the case of Dahiben
Vs.Arvindbhai Kalyanji Bhanusali, 1 held that the test for
exercising the power under Order 7 Rule 11 is to examine the
2020 (7) SCC 366
averments in the plaint in entirety in conjunction with the
documents rolled upon and consider whether the same would
result in any decree to be passed. On a perusal of the averments
in the three suits, there is no possibility of the suits being
decreed, apart from the fact that they are not maintainable.
Further, any reliefs in these suits will be in conflict with the
preliminary decree which attained finality in O.S.No.471 of 1987
and also final decree which is in appeal before the 1st appellate
court. The object of suits is clearly to obstruct the further
hearing of the two appeals against the final decree. As further
held in 2020 (7) SCC 366, a meaningful reading of the plaint
shows that the suits are manifestly vexatious and they does not
disclose any right to sue. As held in the said judgment as
illusion of cause of action is set up in the plaints and such
plaints are to be nipped at bud stage. The conduct of the
plaintiffs in all the three suits shows that it is a gross abuse of
the process of the Court.
30. The learned Counsel for the appellant in C.M.A.No.136 of
2023 stated that Khader Ali Khan is the legal heir of Feroz Khan
and allotted 1/4th share through preliminary Decree as well as
Final decree and Ch.Nivedita Reddy, neither having any share in
the preliminary decree as well as the final decree, filed
injunction suit and other suits, without having any right,
entitlement and possession. This Court as well as the Hon'ble
Supreme Court of India gave a finding against her stating that
she is not entitled to claim any share or right over the property
and the sale deeds on which she relied upon through Feroz
Khan is not the legal document and its title is the hostile title,
as such no Court has given liberty to claim equity. The Court
has recognized the joint possession of the Decree holder and
thus partition suit was decreed and final decree was also
passed, again claiming the possession by her is nothing but
abuse of process of Law. In CRP.No.2796 of 2017, filed by her
against the Advocate Commissioner, this Court at Page No.8,
Line No. 11 clearly stated that "Suit for partition and made
developments during the pendency of proceedings at their own
perile, since they are purchasers inturn from purchaser, they are
not even entitled for any equities. She has set up a claim that
she purchased the property from one Srihari, who is the party
to all the proceedings upto SLP, but the Hon'ble Courts not
recognized her rights, as such again claiming rights through
Srihari does not arise.
31. He further stated that in A.S.No.734/1991, the Court has
granted preliminary decree and clarified at Page No.9 that
Srihari is not having any right and his title is not a valid title.
Against that LPA and SLP were filed and the same were
dismissed, the findings given by the 1st appellate Court reached
finality, again after gap of 30 years raising the same facts and
grounds is vexatious and meritless. She has set up a defense
and ground that at least to give the share of Feroz Khan, the
Court has refused her defense and no liberty was given to claim
equity. The Full Bench of the Hon'ble High Court of Andhra
Pradesh, in the case of Eede Chinna Gunnalam and others
Vs.Palakurthi Venkatram, 2 held that alienee against alienee is
not entitled to claim any equity. In A.S.No.734/1991,
preliminary decree was passed and the Hon'ble Court framed
the issues. The Sale Deed and possession of Defendant No.12
(Srihari) was examined and gave a finding that Srihari was not
having any right or entitlement over the property, once the
vendor of Ch.Nivedita Reddy, do not have any right, how can the
purchaser claim the right and entitlement over the property. If
she is a stranger to preliminary decree and final decree, how
can she claim any right over the suit schedule property. When
she has filed the first appeal against the final decree
proceedings and prosecuting the same, again filing the present
suit is against the due process of law. She cannot ask the Court
AIR 1959 AP 526
to amend the preliminary decree which was passed by this
Court in the year 1991. Since 1987 the alleged vendor of
Niveditha Reddy is the party in O.S.No.471/1987 and also the
party in SLP and she along with M/s.Nischint Constructions
Pvt. Ltd. is also the parties to SLP, as such they are having
knowledge since 1987 and thus how can they file a suit in the
year 2017 and the suit filed by them is clearly barred by
limitation. In ASMP.No.1098 and 1099 of 2015, Khader Ali
Khan filed an application to amend the preliminary decree and
to allot the share as per the Judgment passed in
A.S.No.734/1991, whereas the Court has rejected the claim of
Srihari and not allotted any equity and uphold the Feroz Khan's
share and possession.
C.R.P.No.2915 of 2023:
32. It is the settled law that for deciding an application under
Order 7 rule 11 of the CPC, the Court has to only consider the
allegations in the plaint and the documents filed. Order 7 Rule
11 of the Code of Civil Procedure, 1908 states as follows:
"11. Rejection of plaint.-- The plaint shall be rejected in the following
cases:--
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being
required by the Court to correct the valuation within a time to be fixed
by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is
returned upon paper insufficiently stamped, and the plaintiff, on being
required by the Court to supply the requisite stamp-paper within a
time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be
barred by any law; (e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions of rule
Provided that the time fixed by the Court for the correction of the
valuation or supplying of the requisite stamp-paper shall not be
extended unless the Court, for reasons to be recorded, is satisfied that
the plaintiff was prevented by any cause of an exceptional nature from
correcting the valuation or supplying the requisite stamp-paper, as the
case may be, within the time fixed by the Court and that refusal to
extend such time would cause grave injustice to the plaintiff."
33. The Hon'ble Supreme Court in the case of Bhau Ram v.
Janak Singh 3 has reiterated that for deciding an application
under Order VII Rule 11 of the CPC, which reads as follows:
"15. The law has been settled by this Court in various decisions that
while considering an application under Order VII Rule 11 CPC, the Court
has to examine the averments in the plaint and the pleas taken by the
defendants in its written statements would be irrelevant. [vide C.
Natrajan vs. Ashim Bai and Another, (2007) 14 SCC 183, Ram Prakash
Gupta vs. Rajiv Kumar Gupta and Others, (2007) 10 SCC 59, Hardesh
Ores (P) Ltd. vs. Hede and Company, (2007) 5 SCC 614, Mayar (H.K.)
Ltd. and Others vs. Owners & Parties, Vessel M.V. Fortune Express and
others, (2006) 3 SCC 100, Sopan Sukhdeo Sable and Others vs.
Assistant Charity Commissioner and Others, (2004) 3 SCC 137, Saleem
Bhai and Others vs. State of Maharashtra and Others, (2003) 1 SCC
557]. The above view has been once again reiterated in the recent
decision of this Court in The Church of Christ Charitable Trust &
Educational Charitable Society, represented by its Chairman vs. M/s
Ponniamman Educational Trust represented by its
Chairperson/Managing Trustee, 2012 (6) JT 149."
34. In O.S. No.27 of 2020, which is a suit for declaration filed
by Ch.Nivedita Reddy, M/s.Nischint Constructions Pvt. Ltd.,
and M/s.Treasure Island Resorts Pvt. Ltd., the plaint consists of
68 paragraphs of pleadings and 145 documents have been filed
(2012) 8 SCC 701
along with the plaint. The trial Court has extensively considered
all the facts pleaded by them in the plaints as well as the
grounds raised by the Khader Ali Khan for rejection of the plaint
in paragraphs 5 to 14 of the Order mainly bringing out the fact
that the plaint discloses disputes with regard to property
bearing Acs.23-09 gts, in Sy No. 41/1, 41/2 and 42AA, as well
as a further extent of Acs.17-35 gts in Sy. No.43 located in
Kokapet. They claim to be in physical possession of the above
properties, which they have been enjoying in their own right
which is confirmed by the revenue records, which have been
mutated in their names. The plaint also discloses prior litigation
between the parties. Thus, there is more than adequate material
shown in the plaint which discloses more than a triable issue
which can only be decided after a trial.
35. The plaint in O.S.No.27 of 2020, narrates events starting
from the Agreement of Sale dated 13.07.1967, much prior to the
suit filed in O.S.No.471 of 1987. The averments in the plaint in
Paragraph No.2 to 13 shows that respondents are claiming
rights on the suit schedule property much prior to the partition
suit, and the same has to be decided during trial. There are
clear averments in paragraphs No.58 to 62 of the plaint which
shows that the respondents are claiming title by adverse
possession, which has also to be decided after trial. Thus, the
plaint clearly discloses the cause of action and the number of
issues to be decided only in a full-fledged trial. The Hon'ble
Supreme Court in Mayar (H.K) Ltd. and others Vs. Owners
and parties, Vessel MV Fortune Express and others, 4 held
that a plaint cannot be rejected on the basis of the allegations
made in the written statement. It reads as follows:
"It is apparent that the plaint cannot be rejected on the
basis of the allegations made by the defendant in his
written statement or in an application for rejection of the
plaint. The Court has to read the entire plaint as a whole
to find out whether it discloses a cause of action and if it
does, then the plaint cannot be rejected by the Court
exercising the powers under Order 7 rule 11 of the Code."
36. The question of res judicata is a mixed question of law
and fact, for which the trial Court has to examine the issue
after evidence. The petitioner is attempting to set up the case of
res judicata which cannot be a ground for rejection of plaint.
The High Court of Andhra Pradesh in the case of Syed Ali Vs.
Syed Noor Mohammad, 5 held as follows:
"The principle of res judicata cannot be pressed
into service for rejection of the plaint. The reasons are
more than one. Firstly, the question as to whether the
issue that is framed in a subsequent suit is the same, as
or substantially similar to the one that fell for
consideration in an earlier suit, and whether the parties
(2006) 3 SCC 100
CDJ 2013 APHC 558
are one and the same, is a question of fact, which can be
determined only on evidence and the principle of law gets
attracted depending upon the answer on facts. In that
view of the matter, it is a mixed question of fact and law.
It may be that the volume of evidence could determine
such question may be relatively small. All the same, the
evidence as such, must be adduced to prove the
contention...
...Order 7 rule 11 C.P.C, which has the effect of
denying or barring access to the plaintiff to a civil Court,
must be interpreted strictly. Any doubt, or second
opinion, in this behalf, needs to be extended to the
plaintiff, so that, the power of the Civil Court to decide the
suits remains intact. On general principles also, the right
or competence of civil Court is almost taken for grant that
an aggrieved individual can seek redressal from a civil
Court, unless the suit is specifically barred. Once res
judicata is not included as ground in Order 7 rule 11 of
C.P.C, it cannot be added, nor can the relief under the
provision be extended through implication."
37. For a plaint to be rejected under Order 7 rule 11 (d) as
being barred by law for the matter being barred by res judicata,
the parties in the previous suit and the subsequent one ought to
be the same. Furthermore, the reliefs claimed in both the suits
ought to be the same and the said order shall have attained
finality. In the presence case, the parties are not same and the
same issue was not adjudicated upon. The Hon'ble Apex Court
in the case of Srihari Hanumandas Totala Vs. Hemant
Vithal Kamat and others, 6 in which it was held as follows:
(2021) 9 SCC 99
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.
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."
And in the case of Keshav Sood Vs. Kirti Pradeep Sood and
others, it was held as follows:
"As far as scope of rule 11 of Order VII of CPC is
concerned, the law is well settled. The Court can look into
only the averments made in the plaint and at the highest,
documents produced along with the plaint. The defence of
a defendant and documents relied upon by him cannot be
looked into while deciding such application.
The issue of res judicata could not have been
decided on an application under rule 11 of Order VII of
CPC. The reason is that the adjudication on the issue
involves consideration of the pleadings in the earlier suit,
the Judgment of the trial Court and the Judgment of the
appellate Courts."
38. The trial Court has considered all the facts and has given
a finding in Para Nos. 24 to 29 as follows:
"24. Keeping the above legal position in view, I have carefully
analysed the plaint averments. The specific case of the plaintiff
is that Late Sri Hari (D-12 in OS No 471/1987), has purchased
the property from Feroz Khan under an agreement of sale and
that later obtained decree of specific performance and that he
got the document regularised under Sec. 5A of the ROR Act,
1971 indicates that he was claiming absolute title. However, if
the other facts on record are considered, no doubt in the earlier
suit OS 471/1987 it was held that Feroz Khan has only some
share in the property whereas his brothers and sister are
having some other shares. It is thus clear, in a worst case also,
at least the plaintiff can claim the share pertaining to Feroz
Khan, because, admittedly, the LRs of Feroz Khan or other Co-
heirs have never asked for cancellation/setting aside the sale
entered into by Feroz Khan with Sri Hari. Therefore, as per
plaint averments, the plaintiff has pleaded his right to sue
which in other perspective can be regarded as possessing a
cause of action to file the suit.
25. Even on the own showing of the Petitioners, in the Appeal
before High Court, the finding was that Feroz Khan, and his Co-
sharers are in joint possession of the property and there was no
evidence of ouster from joint possession. If Feroz Khan is
declared in the earlier suit as having been in joint possession,
that joint possession will ensure to the plaintiff herein being the
alienee of Sri Hari who got the property from Feroz Khan. It is no
where stated by the Petitioners/ defendants that Feroz Khan
was dispossessed at any point of time. Keeping those
undisputed facts in mind, this court is of the view that
averments in the plaint involves a detailed trial.
26. Res-Judicata, one of the grounds taken by the petitioners to
reject the plaint, in their affidavit filed in support of one of the
applications, is a question for which an issue has to be framed;
pleadings and issues as well, the; decision/decree in the earlier
suit should be marked in the evidence in this suit and the Court
has to compare, consider and appreciate the findings in order to
record a finding that the present suit is barred by res judicata.
The Hon'ble Apex Court in Sathyanath vs Sarojamani (2022)
7 SCC 644 observed that the question of res judicata cannot be
heard as preliminary issue as it requires recording of evidence
in relation to pleadings in the previous suit etc. In Bhargavi
Constructions & an vs. Kotha Kapu Muthyam Reddy &
ors (2018) 13 SCC 480 the Hon'ble Supreme Court held that
the expression 'law' occurring in Cl. (d) of Or. 7 Rule 11 do
include the judicial decisions. In that view of the matter, the
Learned Counsel for the Petitioners would contend that the
earlier judgements bar the present suit 'by law' under cl. (d) of
Rule 11 and so, plaint shall be rejected on the ground of res
judicata. The Learned Counsel for the petitioners placed reliance
upon the following judgements to support the contention that the
doctrine of res judicata and the ground of limitation would fall
within the meaning of expression 'suit barred by any law' used
in Or. VII Rule 11 of the Code. In Palitina Sugar Mills (P)
Limited and another vs. State of Gujarat & Ors (2004) 12
SCC 645, it is held that the judgements of Supreme Court are
binding precedents under Art. 142 of Constitution of India; In
Raghawendra Sharan Singh vs. Ramprasanna Singh by
his LRs (2020) 16 SCC 601, it is held by the Hon'ble Apex
Court that where the plaint itself shows that the suit is filed 22
years after the gift deed, the suit is patently barred by limitation
and plaint can be rejected. However, the said judgement, on
facts cannot be applied to the - case on hand. As per the plaint
averments, the respondent/Plaintiff is contending that he is in
possession of the schedule property inspite of the earlier
judgements and it is a disputed question whether the plaintiff
can be shown to have been in possession of at least that share
of Feroz Khan which fact has to be decided on trial. Evidently,
where the limitation is a pure question of law, it can be taken in
aid of rejecting the plaint and not where it is either a pure
question of fact or mixed question of fact and law. On this
analogy, this court finds that the other decisions relied upon by
the petitioners in Dr. Buddhikota Subba Rao vs. K.
Parasaran and Ors (1996) 5 SCC 530, Sh. Kuldeep Singh
vs. Banarasi Das (2015) SCC Online Del 11793 are not
applicable.
27. The Learned Counsel while relying upon Asgar & Ors vs.
Mohan Verma and others (2020) 16 SCC 230; Patasibai &
Ors vs. Ratan Lal (1990) 2 SCC 42, argued vehemently that
the principle of res judicata is intended to multiply the causes of
action and a cause of action in filing subsequent suit is treated
by the courts as an abuse of process. There is no dispute about
the proposition of law declared in those judgements, but the
question is about their application to the facts of the case on
hand. Further, the Learned Counsel cited ITC Ltd vs. Debts
Recovery Appellate Tribunal & Ors 1998 (2) SCC 70 to
contend that the court is required to examine whether a real
cause of action has been set out in the plaint or something
purely illusory with a view to get of Order VII Rule 11 of the
Code and that clever drafting creating illusions of cause of
action are not permitted in law and a clear right to sue should
be shown in the plaint. A reading of order VII Rule 11 will show
that neither suppression of fact nor misrepresentation nor even
fraud have been made grounds for rejection of plaint. Even, the
rule does not include abuse of process of court as a ground for
rejection of plaint. Clauses A and D which deal with the
absence of discloses of cause of action and suit appearing from
the statement to be barred by any law. Whether the plaint
discloses a cause of action for the suit or not, has got to be
decided only based on the averments made in the plaint and the
documents produced along with it. The court while dealing with
an application under Order VIl Rule 11 cannot go into the
question whether cause of action alleged in the plaint is true or
false and take a decision based on the plea taken by the
defendant or based on the documents produced by the
defendant.
28. However, the above rule is seldom applicable to the instant
case. A bare perusal of the petition does not demonstrate how
Mr. Feroz Khan has no right to sell his undivided share in the
property. Whatever the result of the earlier litigation, it is prima
facie seen that being purchaser of undivided share, at the
worst, the plaintiff is entitled to equities to be worked out in his
favour, by application of principles of Partition Act. No where in
the petition it is shown that the right of seeking equities by the
plaintiff is rejected by the courts in the earlier litigation. Various
other citations (Ram Prakash Gupta vs. Rajeev Kumar
Gupta & Ors 2006 (89) DRJ 494 (DB); Lakshmi & Ors vs.
Manickam 2017 SCC Online (Mad) 13583; Md. Noorul
Hoda vs. B.B. Raifunnisa & Ors (1996) 7 SCC 767, Illoth
Valappil Ambunhi (dead) by LRs vs. Kunhambu Karnavan
(2020) 18 SCC 317, are also quoted by the learned counsel for
the petitioners to the sameeffect.
29. In the light of the above discussion I am of inescapable
opinion and irresistible conclusion that; i). The questions of
limitation, res judicata are mixed questions of law and fact, as
per the plaint averments and therefore, the said grounds cannot
be taken to reject the plaint under Or. VII Rule 11 (a) of the
Code; ii). The argument that a true cause of action is absent in
the plaint and institution of the suit is gross abuse of process of
law is repelled because, the plaint in so many parts, has
disclosing cause of action; the question whether or not such
cause of action is sufficient or it is true cannot be gone into at
this stage because, there is large amount of material to be
examined by the court in a full-fledged trial of the suit and such
complex questions cannot be decided in a summary, enquiry
under Order VII Rule 11 CPC. Accordingly, the applications For
rejection of plaint are liable for dismissal."
39. This Court has reproduced the findings of the trial Court
only to show that trial Court has applied its mind fully to the
facts in issue to dismiss the applications. This Court finds that
Khader Ali Khan has not made out any grounds for rejection of
the plaint and filed vague affidavits without disclosing any
substantial point of law for the court to exercise its power under
Order 7 rule 11 of the CPC. Thus, the trial Courts Order dated
12.12.2022, cannot be faulted and no grounds are made out for
interference with the same even on merits. The power of this
Court under Article 227 is very limited and should be exercised
with extreme caution. The Hon'ble Supreme Court in Estralla
Rubber Vs. Dass Estate (Pvt.) Ltd, 7 held that the power of the
High Court under Article 227 is very limited and the High Court
can only interfere with the Trial Court's Order in cases where
there has been a patent perversity in the orders of tribunals and
Courts subordinate to it; or there has been a gross and manifest
failure of justice or the basic principles of natural justice have
been flouted. And also, in the case of Kamala & Ors. vs K. T.
Eshwara SA & Ors. 8 it has categorically held that the question
of res judicata being a matter of fact and law cannot be gone into
in a petition under Order VII Rule 11. The plaint and the
documents filed in all the above proceedings clearly disclose
more than a triable issue and the same cannot be summarily
rejected without a full-fledged trial.
(2001) 8 SCC 97
(2008) 12 SCC 66
40. For all the above reasons, this Court finds no reason to
interfere with the Order of the trial Court dated 12.12.2022
passed in I.A.No.928 of 2022 in O.S.No.27 of 2020, and as such
C.R.P.No.2915 of 2023 is liable to be dismissed. Consequently,
the connected C.R.Ps. being C.R.P.Nos.2529, 2559, 2911 and
2916 of 2023 are also liable to be dismissed.
41. Regarding C.M.A.Nos112 and 136 of 2023, respondents
therein i.e., Ch.Niveditha Reddy, M/s.Nischint Constructions
Pvt. Ltd., and M/s.Treasure Island Resorts Pvt. Ltd., filed suit
vide O.S. No.1432 of 2017, against the defendants therein for
perpetual injunction along with the application vide I.A.No.1733
of 2017, for interim injunction and the same was allowed by the
Trial Court vide Order dated 12.12.2022. Perused of the Order
shows that Ch.Nivedita Reddy and M/s.Nischint Constructions
have clearly stated that they have become owners of the suit
schedule property and are in physical possession of the same.
They have marked Exhibits P1- P82, whereas the respondents
therein have marked Exhibits R1 -R23. They have also produced
revenue records/court orders, all of which show that they are in
physical possession of the suit schedule property whereas no
material has been produced by the defendants/respondents
therein to show how they are in physical possession of the
same. The various proceedings relied upon by the
defendants/respondents therein do not show that they are in
physical possession of the suit schedule property.
42. The trial Court has extensively gone through the
pleadings, and having looked into the material on record found
that the Ch.Nivedita Reddy and M/s.Nischint Constructions are
in physical possession of the suit schedule property and also
held that the balance of convenience was in their favour and
irreparable loss and injury would be caused to the them if an
injunction was not granted. Therefore, this Court finds no
illegality or infirmity in the Order of the trial Court as their
rights require to be protected during the pendency of the suit.
43. In the result, both the Civil Miscellaneous Appeals and all
the Civil Revision Petitions are dismissed, confirming the Orders
of the trial Court. There shall be no order as to costs.
Miscellaneous petitions pending, if any, shall stand
closed.
_________________________
JUSTICE P.SREE SUDHA
DATE: 08.08.2024
tri
