Telangana High Court

Chittimilla Hariprasad vs Sri Nuthana Vyshya Patashala And ... on 10 July, 2024

Author: P. Sree Sudha

Bench: P.Sree Sudha

     THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

         CIVIL REVISION PETITION No. 187 of 2024

ORDER:

This Civil Revision Petition is filed aggrieved by the order,

dated 17.11.2023, passed in I.A.No.93 of 2023 in O.S.No.4 of

2022 by the learned Senior Civil Judge, Nizamabad.

2. O.S.No.4 of 2022 is filed by respondents No.1 and

2/plaintiffs for possession and perpetual injunction against the

petitioners/defendants. During the pendency of the Suit, the

petitioners herein filed I.A.No.93 of 2023 for rejection of the

plaint. The trial Court dismissed the application. Aggrieved by

the order of the trial Court, the petitioners herein filed the

present Civil Revision Petition.

3. Heard both sides. Perused the record.

4. Learned counsel for petitioners contended that the

documents referred in the plaint does not disclose any new

cause of action or identity of total land Ac.4.22 guntas

purchased by any registered sale deeds in their name nor paid

single paisa as sale consideration from their accounts and the

respondents No.1 and 2/plaintiffs are not in possession of the

said land from 07.08.1992 to till date. The rejection of the

plaint filed in O.S.No.5 of 2015 was allowed but the plaint in

O.S.No.4 of 2022 was cleverly drafted inspite of no cause of

action. The conduct of respondents No.1 and 2/plaintiffs in

brining a vexations Suit is abuse of process of law. He further

contended that the Suit is hit by Resjudicata and also principle

of Estoppel. Therefore, requested the Court to set aside the

order of the trial Court.

5. A perusal of the record shows that O.S.No.4 of 2022 is

filed by Sri Nuthana Vyshya Patashala and Chitimilla Hari

Prasad Vyshya Junior College Committee, registered as Sri

Nuthana Vyshya Patashala Committee under the provisions of

the Hyderabad Public Societies Registration Act, 1350 Fasli

with registration No.34 of 1958-59 represented by its President

and General Secretary/respondent No.1 and Arya Vyshya

Sangham, Nizamabad, a society registered under the provisions

of A.P. (Telangana Area) Public Societies Registration Act, with

registration No.633 of 1977, represented by its president and

General Secretary/respondent No.2 against the petitioners

herein and respondents No.3 and 4. The suit is filed for

possession and mandatory and perpetual injunction.

Respondent No.2/plaintiff No.2 was established on 05.08.1944

and respondent No.2 established a Committee christened as Sri

Nuthana Vyshya Patashala Committee on 04.12.1944.

Respondent No.2 at a general body meeting held o 16.06.1957

adopted the bye laws of Sri Nuthana Vyshya Patashala

Committee and got it registered as a Society on 13.07.198 with

registration No.34 of 1958-1959 under the provisions of

Hyderabad Societies Registration Act, 1350 Fasli.

6. Initially, Upper Middle School was established and later

intended to upgrade it as High School. When an appeal was

made for the donors Mr.Gajawada Pandarinath Gupta,

S/o.Manikyam Gupta donated land to an extent of 2400 square

yards through a Gift Deed dated 21.05.1959, registered as

document No.580 of 1959. Sri Nuthana Vyshya Patashala

Committee purchased 800 square yards from Mr. Gajawada

Pandarinath Gupta and he sold the land at a nominal price of

Rs.1500/-. On 10.03.1991, Sri Nuthana Vyshya Patashala

Committee (hereinafter referred as SNVP Committee) decided to

establish either a junior college or a college for vocational

courses from the academic year 1991-92 onwards and a

committee was formed and another sub-committee for

donations was also formed. It was decided that the President

and Secretary of SNVP Committee shall compulsorily be the

members of the sub-committees. The SNVP Committee

resolved to commence the junior college from the academic year

1991-92 onwards and further resolved to submit the necessary

papers and documents to the Board of Intermediate Education

and complete other formalities. On 12.05.1991, a meeting was

held and announced that the class rooms of the junior college

to be constructed would be named after that donor who gives a

donation of Rs.25,551/-.

7. On 20.05.1991, Chitimilla Hari Prasad/petitioner No.1

promised to donate Rs.2,11,116/- for naming the proposed

Vyshya Junior College after him as "CHITIMILLA HARI PRASAD

VYSHYA JUNIOR COLLEGE". Mr.Goli Rangaiah gari

Vishwanatham promised to donate Rs.1,11,111/- for naming

the proposed college building as "GOLI VISHWANATHAM

BHAVANAM". From then onwards, the Sub-Committee

meetings are conducted in the name of Chitimilla Hari Prasad

Vyshya Junior College Committee with effect from 11.06.1991

and the collection of donations was started from 20.05.1991

and the college commenced functioned with effect from

18.07.1991. SNVP is an aided school getting the Government

aid whereas the Chitimilla Hari Prasad Vyshya Junior College is

an unaided private junior college. The Board of Intermediate

Education permitted the SNVP Committee to run the junior

college under the name and style Chitimilla Hari Prasad Vyshya

Junior College. The SNVP Committee has been running two

educational institutions, one aided school and the other

unaided private junior college.

8. The Board of Intermediate Education granted permission

to the SNVP Committee to run the junior college under the

name and style 'Chitimilla Hari Prasad Vyshya Junior College'

(herein after referred as CHPV Junior College) vide proceeding

R.C.No.120/E3-2/1991 and recognized vide proceeding

No.RC.No.996/JC9-2/94-1. The Board allotted code No.16031

to the junior college. On 01.01.1992, the sub-committee of the

SNVP Committee decided to buy the land comprised in Sy.nos.7

and 8 of Borgaon (P) village Shivar and the land comprised in

Sy.No.411 of Pangra (B) Shivar and as sum of Rs.11,000/- was

paid as advance. The three pieces of lands although comprised

in three survey numbers and located in two village shivars on

the spot they are contiguous with one another in one compact

block adjoining Nizamabad-Hyderabad Road and thus the land

was selected. The last payment of sale consideration was on

01.07.1992 and the sale deed was registered on 07.08.1992.

The sale consideration was shown at Rs.1,82,000/- and the

actual sum of money paid to the sellers by plaintiff No.1 for the

purchase of land was Rs.6,24,000/- in addition to Rs.28,680/-

paid towards the stamp duty and other charges. The sale deed

dated 07.08.1992 was registered as document No.3048 of 1992.

In the sale deed, the Southern Boundary was mistakenly shown

as Public Road instead of Northern Boundary. Since the

Government never insisted that a separate Society is to be

formed and registered for the exclusive purpose of running the

CHPV Junior College, the idea of formation and registration of a

separate society for the CHPV College was dropped.

9. Respondent No.2/plaintiff No.2, floated ancillary organs to

conduct various activities and elections were conducted to the

seven ancillary organs for every two years and the seven

ancillary organs are as follows:

1. Sri Kanyaka Parameshwari Devalaya Committee.

2. Sri Nageshwara Devalaya Committee.

3. Vyshya Bhavan Committee.

4. Arya Vyshya Mahila Mandali.

5. Sri Nuthana Vyshya Patashala-Chitimilla Hari Prasad Vyshya Junior College Committee.

6. Arya Vyshya Officials and Graduates Association.

7. Arya Vyshya Yuvajana Sangham.

10. Though CHPV Junior College Committee has been

working since 1991, it never claimed to be a separate entity nor

as another ancillary organ of the plaintiff No.2. Plaintiff No.2

never recognized it as a separate Committee. In fact, it was

treated as part and parcel of the SNVP Committee. This fact is

within the knowledge of the first defendant/petitioner No.1.

Petitioner No.1/defendant No.1, as the general Secretary of

plaintiff No.2 once conducted elections to the SNVP and

CHPVJC Committee. The CHPVJC Committee is part and

parcel of SNVP Committee. The original document of the land

through which the land is purchased is in the name of the

CHPVJC Committee and all the registers of the college and the

School are in the custody of the SNVP-CHPVJC Committee. In

the letter heads of the CHPV Junior College, the society's

registration number was shown as '34'. The invitation cards

were in the name of SNVP Committee. A Souvenir was brought

out on the occasion of the Golden Jubilee Celebrations by the

plaintiff No.2 and the SNVP Committee in 1994. The CHPV

Junior College, an offshoot sub-committee of SNVP Committee

sold 15 guntas of land comprised in Sy.Nos.411 of Pangra (B)

shivar and Sy.Nos.7 and 8 of Borgaon (P) shivar to defendant

No.2 vide registered sale deed No.3320 of 1995.

11. Defendant No.2 executed a sale deed in favour of

defendant Nos. 6 and 7 showing that he sold a land to an

extent of 800 Sq.yards in Sy.No.411 and he also sold 21 guntas

in Sy.No.411 to defendant No.5. Defendant No.1 sold 20.75

guntas in Sy.Nos.7 and 8 to one M.Shravan Kumar and the

said Shravan Kumar sold 25 guntas to defendants No.3 and 4

together. On 03.10.2014, when the president of plaintiff No.1

and the General Secretary of plaintiff No.2 were clearing the

land of the thorny bushes with the help of bulldozer, defendant

No.1 appeared at the spot and threatened them of dire

consequences. A complaint was registered by plaintiff No.1

before the 4th Town Police Station, Nizamabad for the offences

punishable under Section 447 and 506 IPC and issued FIR

against defendant No.1.

12. Respondent No.1/Plaintiff No.1 filed a suit for partition in

O.S.No.5 of 2015, and it was rejected on 25.10.2021 observing

that all the documents which are the basis for suit claim were

not enclosed to the plaint and that the sale deed No.3048 of

1992 does not show the name of SNVP Committee as the

purchaser and holding that the plaint does not disclose cause

of action. Respondents No.1 and 2/plaintiffs No.1 and 2 filed

the suit in O.S.No.4 of 2022 for possession and for restoration

of possession of the land from defendant Nos.1 to 7 and also to

issue a mandatory injunction against defendant Nos.1 to 7

directing them to remove the compound wall and to issue a

perpetual injunction restraining the defendants from interfering

with the possession of plaintiff No.1

13. Defendant No.1 in the Suit filed an application under

Order 7 Rule11 for rejection of the plaint and also relied upon

several citations. He stated that respondents No.1 and 2 filed

the Suit without obtaining permission from the Court in

O.S.No.5 of 2015 for the same cause of action and thus the Suit

is not maintainable. Respondent No.1/Plaintiff No.1 filed suit

for partition and separate possession vide O.S.No.5 of 2015

claiming share of Ac.3.12 guntas along with two I.A.Nos.240

and 241 of 2015 and the I.As were dismissed on 07.01.2016

and against the same, The SNVP filed CMA Nos.449 and 990 of

2016 but they were withdrawn and thus on withdrawal of

CMAs, the common order in I.A.Nos.240 and 241 of 2015 stood

confirmed and became final and binding on plaintiffs.

Defendants No.1 to 6 filed I.A.No.351 of 2019 in O.S.No.5 of

2015 for rejection of the plaint in O.S.No.5 of 2015 and the

same was allowed on 25.10.2021 and thus O.S.No.4 of 2022 is

hit by law of Res judicata and Estoppel. The Suit is barred by

limitation under Articles 56 to 59, 64, 65, 110 and 113. The

Suit is bad and plaint is liable to be rejected on the ground for

non-joinder mis-joinder of necessary parties. A detailed

counter was filed by respondents No.1 and 2/plaintiffs. The

trial Court considering the arguments of both sides and relying

upon citations referred by both sides dismissed the application.

14. The main contention of the petitioners herein is as per

Section 2 (2) of CPC if a petition U/o.7 R.11 CPC is allowed then

appeal lies otherwise Revision alone lies as affirmed by Apex

Court in:

2023 SCC Online 521

(2022) 12 SCC 641=2021 (6) ALD 221 (SC)

2022 (6) ALD 109 (SC) para 1,7,8 = 2022 SCC online SC 133

(2020) 7 SCC 366

(2020) 16 SCC 601 594

(2012) 8 SCC 706

(1994) 6 SCC 322

(1977) 4 SCC 467

In this case the application under Order 7 Rule 11 was

dismissed, as such the CRP is maintainable.

15. Learned counsel for respondents relied upon a decision

made by this Court in Malugu Ram Reddy and Others Vs.

Malugu Vittal Reddy and Others 1 in which it was held as

under:

On the true construction of Sections 2 (2), 2 (9), 2 (14) and Sections 96, 104 and 105 of the CPC, the conclusion is irresistible that a judgment rejecting a plaint is "decree" and is appealable under Section 96. A miscellaneous appeal against an Order rejecting the plaint would not lie. There is a much consensus of judicial opinion that supports this conclusion. A plaintiff, who is aggrieved by rejection of the plaint for any of the reasons as contemplated under Order VV Rule 112 (a) to (f), is entitled to file a regular appeal under Section 96, and a miscellaneous appeal under Section 104 read with Order XLIII Rule 1 is barred.

2011 () ALD 522 (FB)

16. Learned counsel for petitioners mainly contended that

their application under Order 7 Rule 11 was dismissed before

the trial Court as such Civil Revision Petition is maintainable

and if at all allowed then appeal lies under Section 96 of C.P.C.

In the present case, application filed for rejection of the plaint

was dismissed by the trial Court as such the C.R.P is

maintainable.

17. It is a known fact that for deciding the application under

Order 7 Rule 11, the contents of the plaint are alone to be

considered. The cause of action is bundle of facts and it is for

the plaintiffs to prove their case by duly adducing the oral and

documentary evidence before the Court. Another contention is