RAMISETTY VENKATANNA & ANR. versus NASYAM JAMAL SAHEB & ORS. on 28 April 2023

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court of Andhra Pradesh at Amaravati inRevision Petition (CRP) No. 179/2021, by which, the High Court hasdismissed the said revision petition and has affirmed the order passed bythe learned Trial Court dismissing/rejecting the application submitted bythe appellants herein – original defendant Nos. 9 & 10 under Order VIIRule XI of CPC, the original defendant Nos. 9 & 10 have preferred thepresent appeal.

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2. The facts leading to the present appeal in a nutshell are asunder: - 2.1 That one Nasyam Jamal Saheb was the owner of 4 acres 16cents of land in Survey No. 700/A7B and Survey No. 706/A9 of Nandyal H

ATown and Mandal, Kurnool District, Andhra Pradesh, and several otherproperties. After the demise of Nasyam Jamal Saheb, his five childrennamely, 1) Nasyam Jafar Saheb; 2) Nasyam Dasthagiri Saheb; 3) NasyamIbrahim Saheb; 4) Sarambee; and 5) Jainabee got partitioned theproperties of their father (including 4 acres 16 cents) under a registeredpartition deed dated 11.03.1953. The predecessor in interest of plaintiffsBN. Ibrahim Saheb got 1 acre and predecessor in interest of vendors ofthe appellants herein Sarambee got 1 acre 16 cents. That thereafter,Sarambee being the absolute owner of 1 acre 16 cents in Survey No.706/A9 executed a registered gift deed dated 24.01.1968 in favour ofher eldest daughter Kareembee (mother of vendors of appellants herein)Cto an extent of lands measuring 58 cents. That Sarambee vide anothergift dated 24.01.1968 gifted the remaining 58 cents in Survey No. 706/A9 to her other daughter Ashabee and her two sons Khasimsa andAbdul Rajak. That thereafter, in the year 2003, three sons of Ashabeefurther partitioned the land measuring 58 cents. Each of the sons got19.33 cents of land each. Similarly, after the death of Kareembee, herDthree sons effected an oral partition amongst themselves. Two sons ofKareembee – Khatif Khaja Hussain and Khatif Noor Ahammed soldthe land in Survey No. 706/A9 to an extent of 58 cents vide two registeredsale deeds dated 24.08.2010 in favour of the appellants for a valid saleconsideration of Rs. 14,52,000/- and Rs. 13,56,000/-, respectively. TheEpossession of the said land was handed over to the appellants and theydeveloped the land.

2.2 It appears that thereafter, children of Khatis Khader Basha(third son of Kareembee) filed O.S. No. 39/2011 before the III AdditionalDistrict Judge, Kurnool at Nandyal against other two sons of KareembeeFand the appellants seeking partition and separate possession of theirshare in the property sold to the appellants herein. The said suit came tobe referred to Lok Adalat and was settled after the appellants hereinpaid Rs. 14,00,000/- to the plaintiffs therein.

2.3 It appears that thereafter in the year 2013 Nandyal MunicipalityGin a bid to lay an 80 feet wide master plan road proposed to widen a 30feet road to 80 feet. In the said road widening programme, the land ofappellants to an extent of 3.5 cents was affected. The appellants executeda registered gift deed in favour of Nandyal Municipality for an extent of3.5 cents of land vide document No. 2474/2013. The Municipalitythereafter awarded transferable development right to the appellants hereinH

RAMISETTY VENKATANNA & ANR. v. NASYAM JAMALSAHEB & ORS. [M. R. SHAH, J.]

to an extent of 283.24 sq. meters. That thereafter, in the year 2014,respondent Nos. 1 to 8 herein – original plaintiffs instituted O.S. No. 35/2014 and prayed for following reliefs: - (a) For declaring the title of the plaintiffs to the suit property withinthe boundaries mentioned in the plaint schedule which is in surveyNo.700/A7B and 706/A9 of Abdulla Khan Thota NandyalMunicipal Limits and for consequential permanent injunctionrestraining the defendants their men agents successors in interestand anybody on their behalf from trespassing into the suit propertyor from dispossessing the plaintiffs from the suit property in anymanner what-so-ever, (b) Suit for relief of cancellation of l)Registered Sale Deed bearingDocument No. 124/2008 dated 09.01.2008 executed by D3 to D6in favour of D7, 2)Registered Sale Deed bearing DocumentNo.3504/2009 dated 18.07.2009 executed by D3 to D6 in favourof D8, 3)Registered Partition Deed bearing document No.4624/2009 dated 31.03.2009 executed in between D3 to D6 in respectof C Schedule item No.2 and D Schedule item No.2, 4)RegisteredSale Deed bearing Document No.6591/2010 dated 24.08.2010executed by D1 and D2 in favour of D9 and 5)Registered SaleDeed bearing Document No.6592/2010 dated 24.08.2010 executedby D1 and D2 in favour of D10 By declaring them as null andvoid documents in respect of the suit property.

2.4 That the appellants herein filed IA No. 369/2014 in O.S. No.35/2014 praying to reject the plaint in exercise of powers under OrderVII Rule XI(a) and (d) of CPC. The learned Trial Court dismissed thesaid application vide order dated 11.03.2020.

2.5 Feeling aggrieved and dissatisfied with the order passed bythe learned Trial Court rejecting the application under Order VII RuleXI and refusing to reject the plaint, the appellants herein – originaldefendant Nos. 9 and 10 filed the revision application before the HighCourt. By the impugned judgment and order the High Court has dismissedthe said revision application which has given rise to the present appeal.

3. Shri Anand Nuli, learned counsel appearing on behalf of theappellants has vehemently submitted that in the facts and circumstancesof the case both, the learned Trial Court as well as the High Court has AB

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Acommitted a grave error in not allowing the application under Order VIIRule XI of the CPC and consequently, not rejecting the plaint.

3.1 It is submitted that as such the suit was clearly barred bylimitation and therefore, the plaint ought to have been rejected underOrder VII Rule XI(d) of the CPC.

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3.2 It is further submitted that the High Court has not properlyappreciated the fact that in fact, the suit was barred by limitation as thesame was instituted 61 years after the execution of partition deed dated11.03.1953.

3.3 It is further submitted that the High Court has failed to takeCinto consideration that the suit of the plaintiffs is essentially based uponthe premise that there was an error in partition deed dated 11.03.1953and therefore, Sarambee and her descendants, including the vendors ofthe appellants herein, never had any right to effect transactions in respectof land in Survey No. 706/A9. It is submitted that the High Court has notDproperly appreciated the fact that as such the plaintiffs have cleverlydrafted the plaint and intentionally omitted to seek the relief of rectificationof partition deed dated 11.03.1953 in order to circumvent the law oflimitation. It is submitted that as such by clever drafting the plaintiffshave tried to bring the suit within the law of limitation, which is otherwisebarred by limitation.E

3.4 Relying upon the decision of this Court in the case of T.Arivandandam Vs. T.V. Satyapal (1977) 4 SCC 467, it is prayed thatas the plaint is vexatious and meritless and creates illusion of a cause ofaction by clever drafting the same should be rejected at the earliest.

F3.5 It is submitted that if partition deed dated 11.03.1953 was tobe challenged, which the plaintiffs are attempting to do virtually, the suitwould be hopelessly barred by limitation having being instituted after alapse of 61 years from the partition deed.

3.6 It is submitted that as such the plaintiffs did not have anyGcause of action to institute the suit. It is submitted that all the registeredsale deeds and the partition deed alleged to be forming cause of action of the suit are executed in accordance with the respective parties inaccordance with the rights granted to them/their legal ascendants underpartition deed dated 11.03.1953.

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3.7 It is further submitted that the High Court ought to haveappreciated and/or considered that the present suit is frivolous andvexatious because the plaintiffs are attempting to re-partition; and unsettlethe title and possession of numerous family members and third partieslike the appellants herein by alleging that there was an error in partitiondeed dated 11.03.1953 which was executed by grandparents of partieswith their free will at a point when the parties were not even born.

3.8 Making the above submissions and relying upon the decisionof this Court in the case of Raj Narain Sarin Vs. Laxmi Devi andOrs. (2002) 10 SCC 501 and in the case of T. Arivandandam (supra),it is prayed to allow the present appeal and quash and set aside the orderpassed by the learned Single Judge as well as that of the learned TrialCourt rejecting the application under Order VII Rule XI and consequently,reject the plaint being barred by the limitation and the suit being vexatiousand illusory cause of action.

4. Present appeal is vehemently opposed by Shri B. AdinarayanaRao, learned Senior Advocate appearing on behalf of the original plaintiffs.

4.1 It is vehemently submitted by learned Senior Advocate that inthe facts and circumstances of the case neither learned Trial Court northe High Court have committed any error in dismissing the applicationunder Order VII Rule XI of the CPC and in not rejecting the plaint.

4.2 It is vehemently submitted by learned Senior Advocateappearing on behalf of the original plaintiffs that as such in the presentcase neither partition deed dated 11.03.1953 nor the boundaries of theproperties are in dispute. It is submitted that the dispute is limited to thewrong survey number mentioned therein with respect to the share ofNasyam Ibrahim, Sarambee and Jainabee only.

4.3 It is submitted that as per the settled position of law what isimportant is boundaries and not the survey number mentioned in thedocument. Reliance is placed upon the decision of the Privy Council inthe case of The Palestine Kupat Am Bank Co-operative SocietyLtd. Vs. Government of Palestine and Ors. AIR (35) 1948 PrivyCouncil 207 (para 7) as well as the decision of this Court in the case ofSubhaga and Ors. Vs. Shobha and Ors. (2006) 5 SCC 466, it issubmitted that as laid down in the aforesaid decisions that even if thereis any discrepancy in the document the boundary should prevail.

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A4.4 It is further submitted that as such while considering theapplication under Order VII Rule XI and the prayer for rejection of theplaint, only averments of plaint are material and can be taken intoconsideration and any evidence or averments made in the writtenstatement cannot be considered. Reliance is placed on the decision ofthis Court in the case of Nusli Neville Wadia Vs. Ivory PropertiesBand Ors. (2020) 6 SCC 557.

4.5 Making the above submissions it is prayed to dismiss the presentappeal.

5. We have heard learned counsel appearing on behalf of theCrespective parties at length. We have also gone through the avermentsmade in the plaint. On going through the averments, it appears that thesuit is essentially based upon the premise that there was an error inpartition deed dated 11.03.1953 and in partition deed survey number706/A9 was wrongly mentioned. Therefore, it is the case on behalf ofthe plaintiffs that Sarambee and other descendants including the vendorsDof the appellants never had any right to effect transactions in respect ofthe land in survey number 706/A9. However, it is required to be notedthat despite the above, very cleverly the plaintiffs have not sought anyrelief with respect to partition deed dated 11.03.1953. Deliberately andpurposely, the plaintiffs have not prayed any relief with respect to partitionEdeed dated 11.03.1953 though it is the case on behalf of the plaintiffsthat there was an error in partition deed dated 11.03.1953. It is to benoted that pursuant to the partition deed dated 11.03.1953, after thedemise of the original land owner Nasyam Jamal Saheb, his five childrennamely, 1) Nasyam Jafar Saheb; 2) Nasyam Dasthagiri Saheb; 3) NasyamIbrahim Saheb; 4) Sarambee; and 5) Jainabee got partitioned theFproperties under a registered partition deed dated 11.03.1953. Under theregistered partition deed, predecessor in interest of plaintiffs, N. IbrahimSaheb got 1 acre and predecessor in interest of vendors of the appellantsSarambee got 1 acre 16 cents. All the parties to the registered partitiondeed acted upon the said partition deed. That thereafter, furtherGtransaction took place and Sarambee executed a registered gift deeddated 24.01.1968 in favour of her eldest daughter Kareembee – motherof the vendors of the appellants to an extent of lands measuring 58cents. That thereafter, two sons of Kareebee who became co-owner onthe death of Kareembee executed the registered sale deed dated24.08.2010 in favour of the appellants in Survey No. 706/A9 to an extentH

of land measuring 58 cents for a valid sale consideration. Since 2010,the appellants are in possession of the land purchased vide registeredsale deed dated 24.08.2010. Without challenging partition deed dated11.03.1953 and even subsequent gift deed dated 24.01.1968, the plaintiffshave instituted the present suit with the aforesaid prayers which is nothingbut a clever drafting to get out of the limitation. If partition deed dated11.03.1953 was to be challenged which as such, the plaintiffs areattempting to do virtually, the suit would be hopelessly barred by limitationhaving being instituted after lapse of 61 years from the partition deed.

5.1 In the case of T. Arivandandam (supra) in paragraph 5while considering the provision of Order VII Rule XI, this Court hasobserved as under: - “5. We have not the slightest hesitation in condemning the petitionerfor the gross abuse of the process of the court repeatedly andunrepentantly resorted to. From the statement of the facts foundin the judgment of the High Court, it is perfectly plain that the suitnow pending before the First Munsif’s Court, Bangalore, is aflagrant misuse of the mercies of the law in receiving plaints. Thelearned Munsif must remember that if on a meaningful — notformal — reading of the plaint it is manifestly vexatious, andmeritless, in the sense of not disclosing a clear right to sue, heshould exercise his power under Order 7 Rule 11 CPC takingcare to see that the ground mentioned therein is fulfilled. And, ifclever drafting has created the illusion of a cause of action, nip itin the bud at the first hearing by examining the party searchinglyunder Order 10 CPC. An activist Judge is the answer toirresponsible law suits.”

5.2 In the case of Sopan Sukhdeo Sable Vs. Charity Commr.,(2004) 3 SCC 137 in paras 11 and 12, this Court has observed and heldas under:

“11. In ITC Ltd. v. Debts Recovery Appellate Tribunal [ITC Ltd.v. Debts Recovery Appellate Tribunal, (1998) 2 SCC 70] it washeld that the basic question to be decided while dealing with anapplication filed under Order 7 Rule 11 of the Code is whether areal cause of action has been set out in the plaint or somethingpurely illusory has been stated with a view to get out of Order 7Rule 11 of the Code.

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12. The trial court must remember that if on a meaningful and notformal reading of the plaint it is manifestly vexatious and meritlessin the sense of not disclosing a clear right to sue, it should exercisethe power under Order 7 Rule 11 of the Code taking care to seethat the ground mentioned therein is fulfilled. If clever draftinghas created the illusion of a cause of action, it has to be nipped inthe bud at the first hearing by examining the party searchinglyunder Order 10 of the Code. (See T. Arivandandam v. T.V.Satyapal [(1977) 4 SCC 467].)”

5.3 In the case of Madanuri Sri Rama Chandra Murthy Vs.Syed Jalal, (2017) 13 SCC 174, this Court observed and held as under:

“7. The plaint can be rejected under Order 7 Rule 11 if conditionsenumerated in the said provision are fulfilled. It is needless toobserve that the power under Order 7 Rule 11 CPC can beexercised by the court at any stage of the suit. The relevant factswhich need to be looked into for deciding the application are theaverments of the plaint only. If on an entire and meaningful readingof the plaint, it is found that the suit is manifestly vexatious andmeritless in the sense of not disclosing any right to sue, the courtshould exercise power under Order 7 Rule 11 CPC. Since thepower conferred on the court to terminate civil action at thethreshold is drastic, the conditions enumerated under Order 7 Rule11 CPC to the exercise of power of rejection of plaint have to bestrictly adhered to. The averments of the plaint have to be read asa whole to find out whether the averments disclose a cause ofaction or whether the suit is barred by any law. It is needless toobserve that the question as to whether the suit is barred by anylaw, would always depend upon the facts and circumstances ofeach case. The averments in the written statement as well as thecontentions of the defendant are wholly immaterial whileconsidering the prayer of the defendant for rejection of the plaint.Even when the allegations made in the plaint are taken to be correctas a whole on their face value, if they show that the suit is barredby any law, or do not disclose cause of action, the application forrejection of plaint can be entertained and the power under Order7 Rule 11 CPC can be exercised. If clever drafting of the plainthas created the illusion of a cause of action, the court will nip it in RAMISETTY VENKATANNA & ANR. v. NASYAM JAMALSAHEB & ORS. [M. R. SHAH, J.]

the bud at the earliest so that bogus litigation will end at the earlierstage.”

5.4 In the case of Ram Singh Vs. Gram Panchayat MehalKalan, (1986) 4 SCC 364, this Court observed and held that when thesuit is barred by any law, the plaintiff cannot be allowed to circumventthat provision by means of clever drafting so as to avoid mention ofthose circumstances, by which the suit is barred by law of limitation.Similar view has been expressed by this Court in the case of Raj NarainSarin (supra).

6. Applying the law laid down by this Court in the aforesaiddecisions on the applicability of Order VII Rule XI to the facts of thecase on hand, we are of the opinion that the plaint ought to have beenrejected in exercise of powers under Order VII Rule XI(a) and (d) ofCPC being vexatious, illusory cause of action and barred by limitation.By clever drafting and not asking any relief with respect to partitiondeed dated 11.03.1953, the plaintiffs have tried to circumvent the provisionof limitation act and have tried to maintain the suit which is nothing butabuse of process of court and the law.

7. Now, so far as the reliance placed on the decision of the PrivyCouncil referred to hereinabove and on the decision of this Court in thecase of Subhaga (supra) are concerned, there cannot be any disputewith respect to the proposition of law laid down in the aforesaid twodecisions. However, the question is the suit being barred by limitationand the illusory cause of action.

7.1 Now so far as the reliance placed upon the decision of thisCourt in the case of Nusli Neville Wadia (supra) is concerned, againthere cannot be any dispute with respect to the proposition of law laiddown by this Court that while deciding the application under Order VIIRule XI, mainly the averments in the plaint only are required to beconsidered and not the averments in the written statement. However, onconsidering the averments in the plaint as they are, we are of the opinionthat the plaint is ought to have been rejected being vexatious, illusorycause of action and barred by limitation and it is a clear case of cleverdrafting.

8. In view of the above and for the reasons stated, the impugnedjudgment and order passed by the High Court and that of the learned AB

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ATrial Court rejecting the application under Order VII Rule XI areunsustainable and the same deserve to be quashed and set aside and areaccordingly, quashed and set aside. Consequently, the applicationsubmitted by the appellants – original defendant Nos. 9 and 10 to rejectthe plaint in exercise of powers under Order VII Rule XI(a) and (d) of the CPC is hereby allowed and consequently, the plaint of Civil SuitB(O.S.) No. 35/2014 is ordered to be rejected. Present appeal is accordinglyallowed. No costs.

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Ankit Gyan

(Assisted by : Abhishek Agnihotri and Aarsh Choudhary, LCRAs)

Appeal allowed.

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