Ramisetty Venkatanna v. Nasyam Jamal Saheb

1. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court of Andhra Pradesh at Amaravati in Revision Petition (CRP) No. 179/2021, by which, the High Court has dismissed the said revision petition and has affirmed the order 2023 INSC 458 passed by the learned Trial Court dismissing/rejecting the application submitted by the appellants herein – original defendant Nos. 9 & 10 under Order VII Rule XI of CPC, the original defendant Nos. 9 & 10 have preferred the present appeal.

2. The facts leading to the present appeal in a nutshell are as under: - 2.[1] That one Nasyam Jamal Saheb was the owner of 4 acres 16 cents of land in Survey NO. 700/A7B and Survey No. 706/A[9] of Nandyal Town and Mandal, Kurnool District, Andhra Pradesh, and several other properties. After the demise of Nasyam Jamal Saheb, his five children namely, 1) Nasyam Jafar Saheb; 2) Nasyam Dasthagiri Saheb; 3) Nasyam Ibrahim Saheb; 4) Sarambee; and 5) Jainabee got partitioned the properties of their father (including 4 acres 16 cents) under a registered partition deed dated 11.03.1953. The predecessor in interest of plaintiffs N. Ibrahim Saheb got 1 acre and predecessor in interest of vendors of the appellants herein Sarambee got 1 acre 16 cents. That thereafter, Sarambee being the absolute owner of 1 acre 16 cents in Survey NO. 706/A[9] executed a registered gift deed dated 24.01.1968 in favour of her eldest daughter Kareembee (mother of vendors of appellants herein) to an extent of lands measuring 58 cents. That Sarambee vide another gift dated 24.01.1968 gifted the remaining 58 cents in Survey No. 706/A[9] to her other daughter Ashabee and her two sons Khasimsa and Abdul Rajak. That thereafter, in the year 2003, three sons of Ashabee further partitioned the land measuring 58 cents. Each of the sons got 19.33 cents of land each. Similarly, after the death of Kareembee, her three sons effected an oral partition amongst themselves. Two sons of Kareembee – Khatif Khaja Hussain and Khatif Noor Ahammed sold the land in Survey No. 706/A[9] to an extent of 58 cents vide two registered sale deeds dated 24.08.2010 in favour of the appellants for a valid sale consideration of Rs. 14,52,000/- and Rs. 13,56,000/-, respectively. The possession of the said land was handed over to the appellants and they developed 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 Additional District Judge, Kurnool at Nandyal against other two sons of Kareembee and the appellants seeking partition and separate possession of their share in the property sold to the appellants herein. The said suit came to be referred to Lok Adalat and was settled after the appellants herein paid Rs. 14,00,000/- to the plaintiffs therein. 2.[3] It appears that thereafter in the year 2013 Nandyal Municipality in a bid to lay an 80 feet wide master plan road proposed to widen a 30 feet road to 80 feet. In the said road widening programme, the land of appellants to an extent of 3.[5] cents was affected. The appellants executed a registered gift deed in favour of Nandyal Municipality for an extent of 3.[5] cents of land vide document NO. 2474/2013. The Municipality thereafter awarded transferable development right to the appellants herein 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 within the boundaries mentioned in the plaint schedule which is in survey No.700/A7B and 706/A[9] of Abdulla Khan Thota Nandyal Municipal Limits and for consequential permanent injunction restraining the defendants their men agents successors in interest and anybody on their behalf from trespassing into the suit property or from dispossessing the plaintiffs from the suit property in any manner what-so-ever, (b) Suit for relief of cancellation of l)Registered Sale Deed bearing Document No. 124/2008 dated 09.01.2008 executed by D[3] to D[6] in favour of D[7], 2)Registered Sale Deed bearing Document No.3504/2009 dated 18.07.2009 executed by D[3] to D[6] in favour of D[8], 3)Registered Partition Deed bearing document No.4624/2009 dated 31.03.2009 executed in between D[3] to D[6] in respect of C Schedule item No.2 and D Schedule item No.2, 4)Registered Sale Deed bearing Document No.6591/2010 dated 24.08.2010 executed by D[1] and D[2] in favour of D[9] and 5)Registered Sale Deed bearing Document No.6592/2010 dated 24.08.2010 executed by D[1] and D[2] in favour of D10 By declaring them as null and void 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 Order VII Rule XI(a) and (d) of CPC. The learned Trial Court dismissed the said application vide order dated 11.03.2020. 2.[5] Feeling aggrieved and dissatisfied with the order passed by the learned Trial Court rejecting the application under Order VII Rule XI and refusing to reject the plaint, the appellants herein – original defendant Nos. 9 and 10 filed the revision application before the High Court. By the impugned judgment and order the High Court has dismissed the said revision application which has given rise to the present appeal.

3. Shri Anand Nuli, learned counsel appearing on behalf of the appellants has vehemently submitted that in the facts and circumstances of the case both, the learned Trial Court as well as the High Court has committed a grave error in not allowing the application under Order VII Rule XI of the CPC and consequently, not rejecting the plaint. 3.[1] It is submitted that as such the suit was clearly barred by limitation and therefore, the plaint ought to have been rejected under Order VII Rule XI(d) of the CPC. 3.[2] It is further submitted that the High Court has not properly appreciated the fact that in fact, the suit was barred by limitation as the same was instituted 61 years after the execution of partition deed dated 11.03.1953. 3.[3] It is further submitted that the High Court has failed to take into consideration that the suit of the plaintiffs is essentially based upon the premise that there was an error in partition deed dated 11.03.1953 and therefore, Sarambee and her descendants, including the vendors of the appellants herein, never had any right to effect transactions in respect of land in Survey NO. 706/A[9]. It is submitted that the High Court has not properly appreciated the fact that as such the plaintiffs have cleverly drafted the plaint and intentionally omitted to seek the relief of rectification of partition deed dated 11.03.1953 in order to circumvent the law of limitation. It is submitted that as such by clever drafting the plaintiffs have tried to bring the suit within the law of limitation, which is otherwise barred by limitation. 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 that as the plaint is vexatious and meritless and creates illusion of a cause of action by clever drafting the same should be rejected at the earliest. 3.[5] It is submitted that if partition deed dated 11.03.1953 was to be challenged, which the plaintiffs are attempting to do virtually, the suit would be hopelessly barred by limitation having being instituted after a lapse of 61 years from the partition deed. 3.[6] It is submitted that as such the plaintiffs did not have any cause of action to institute the suit. It is submitted that all the registered sale deeds and the partition deed alleged to be forming cause of action of the suit are executed in accordance with the respective parties in accordance with the rights granted to them/their legal ascendants under partition deed dated 11.03.1953. 3.[7] It is further submitted that the High Court ought to have appreciated and/or considered that the present suit is frivolous and vexatious because the plaintiffs are attempting to re-partition; and unsettle the title and possession of numerous family members and third parties like the appellants herein by alleging that there was an error in partition deed dated 11.03.1953 which was executed by grandparents of parties with their free will at a point when the parties were not even born. 3.[8] Making the above submissions and relying upon the decision of this Court in the case of Raj Narain Sarin Vs. Laxmi Devi and Ors.

Arivandandam (supra), it is prayed to allow the present appeal and quash and set aside the order passed by the learned Single Judge as well as that of the learned Trial Court rejecting the application under Order VII Rule XI and consequently, reject the plaint being barred by the limitation and the suit being vexatious and illusory cause of action.

4. Present appeal is vehemently opposed by Shri

5. We have heard learned counsel appearing on behalf of the respective parties at length. We have also gone through the averments made in the plaint. On going through the averments, it appears that the suit is essentially based upon the premise that there was an error in partition deed dated 11.03.1953 and in partition deed survey number 706/A[9] was wrongly mentioned. Therefore, it is the case on behalf of the plaintiffs that Sarambee and other descendants including the vendors of the appellants never had any right to effect transactions in respect of the land in survey number 706/A[9]. However, it is required to be noted that despite the above, very cleverly the plaintiffs have not sought any relief with respect to partition deed dated 11.03.1953. Deliberately and purposely, the plaintiffs have not prayed any relief with respect to partition deed dated 11.03.1953 though it is the case on behalf of the plaintiffs that there was an error in partition deed dated 11.03.1953. It is to be noted that pursuant to the partition deed dated 11.03.1953, after the demise of the original land owner Nasyam Jamal Saheb, his five children namely, 1) Nasyam Jafar Saheb; 2) Nasyam Dasthagiri Saheb; 3) Nasyam Ibrahim Saheb; 4) Sarambee; and 5) Jainabee got partitioned the properties under a registered partition deed dated 11.03.1953. Under the registered partition deed, predecessor in interest of plaintiffs, N. Ibrahim Saheb got 1 acre and predecessor in interest of vendors of the appellants Sarambee got 1 acre 16 cents. All the parties to the registered partition deed acted upon the said partition deed. That thereafter, further transaction took place and Sarambee executed a registered gift deed dated 24.01.1968 in favour of her eldest daughter Kareembee – mother of the vendors of the appellants to an extent of lands measuring 58 cents. That thereafter, two sons of Kareebee who became co-owner on the death of Kareembee executed the registered sale deed dated 24.08.2010 in favour of the appellants in Survey No. 706/A[9] to an extent of land measuring 58 cents for a valid sale consideration. Since 2010, the appellants are in possession of the land purchased vide registered sale deed dated 24.08.2010. Without challenging partition deed dated 11.03.1953 and even subsequent gift deed dated 24.01.1968, the plaintiffs have instituted the present suit with the aforesaid prayers which is nothing but a clever drafting to get out of the limitation. If partition deed dated 11.03.1953 was to be challenged which as such, the plaintiffs are attempting to do virtually, the suit would be hopelessly barred by limitation having being instituted after lapse of 61 years from the partition deed. 5.[1] In the case of T. Arivandandam (supra) in paragraph 5 while considering the provision of Order VII Rule XI, this Court has observed as under: -

6. Applying the law laid down by this Court in the aforesaid decisions on the applicability of Order VII Rule XI to the facts of the case on hand, we are of the opinion that the plaint ought to have been rejected in exercise of powers under Order VII Rule XI(a) and (d) of CPC being vexatious, illusory cause of action and barred by limitation. By clever drafting and not asking any relief with respect to partition deed dated 11.03.1953, the plaintiffs have tried to circumvent the provision of limitation act and have tried to maintain the suit which is nothing but abuse of process of court and the law.

7. Now, so far as the reliance placed on the decision of the Privy Council referred to hereinabove and on the decision of this Court in the case of Subhaga (supra) are concerned, there cannot be any dispute with respect to the proposition of law laid down in the aforesaid two decisions. However, the question is the suit being barred by limitation and the illusory cause of action. 7.[1] Now so far as the reliance placed upon the decision of this Court in the case of Nusli Neville Wadia (supra) is concerned, again there cannot be any dispute with respect to the proposition of law laid down by this Court that while deciding the application under Order VII Rule XI, mainly the averments in the plaint only are required to be considered and not the averments in the written statement. However, on considering the averments in the plaint as they are, we are of the opinion that the plaint is ought to have been rejected being vexatious, illusory cause of action and barred by limitation and it is a clear case of clever drafting.

8. In view of the above and for the reasons stated, the impugned judgment and order passed by the High Court and that of the learned Trial Court rejecting the application under Order VII Rule XI are unsustainable and the same deserve to be quashed and set aside and are accordingly, quashed and set aside. Consequently, the application submitted by the appellants – original defendant Nos. 9 and 10 to reject the 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 Suit (O.S.) No. 35/2014 is ordered to be rejected. Present appeal is accordingly allowed. No costs. ………………………………….J. [M.R. SHAH] ………………………………….J. [C.T. RAVIKUMAR] NEW DELHI; APRIL 28, 2023