The High Court · 2025

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to grant stay of all further proceedings in O.S No. 2B1 of 2021 on the file of the Court of the Principal Junior Civil Judge-cum-Judicial Magistrate of First Class at Nizamabad, pending disposal of the above Revision petition. Counsel for the Petitioners : Sri. p Sajan Kumar Counsel for the Respondents : Sri T V Kalyan Singh The Court made the following: ORDER ,1 3 THE HON'BLE SRI JUSTICE K.SURENDER CTVIL REVISION PETITION No.27O8 of 2o24 ORDER: 1. The revision petitioners, who are defendants 1 to 3, 5, and 6 in O.S. No. 2al of 2021, have filed this revision petition challenging the order dated 13.6.2O24, passed in I.A. No. 1728 of 2O2l rn O.S. No. 281 of 2O2I by the Principal Junior Civil Judge- cum-Judicial Magistrate of First Class, Nizamabad.

2. Briefly, the facts of the case are that the suit in O.S. No. 281 of 2O2I has been instituted by the Respondents/Plaintiffs seeking partition and separate possession of joint family properties concerning the suit Schedule Properties detailed in Schedule A and B of the plaint. It has been stated that Begari Pochiga alias Begari Posheet5r, the father of Respondents/Plaintiffs Nos. 1 and 2, and Petitioners Nos. 4 and S/Defendants Nos. 5 and 6, as well as the father-in-law of Petitioner No. l/Defendant No. 1 and the paternal grandfather of Petitioners Nos. 2 and 3/Defendants Nos. 2 to 4, was the owner and possessor of the suit schedule properties described in Schedule A and B. The plaintiffs assert that following the death of Begari Posheety in 1998, Defendants Nos. 1 to 3, 5, and 6 :{ € 4 managed to have the suit schedule properties mutated in their names by influencing the revenue authorities. The plaintiffs have presented the pahani records for specihc periods as evidence of this claim. They argued that the plaintiffs and defendants have equal shares in the suit schedule properties and contend that mere entries in revenue records do not create any legal rights or titles. Furttrermore, they allege that the Defendants had been I i providing paddy to the plaintiffs as per their respective shares. It 'is claimed that the suit schedule properties have not been legally partitioned among the plaintiffs and defendants. Although the plaintiffs reportedly dema,ded that the defendants divide the suit schedule properties into five equal parts, defendants Nos. 1 to 3, 5, and 6 a-tlegedly avoided this on various pretexts. Finally, on

06.06.2021, when the plaintiffs made an oral demand for partition, the defendants refused and asserted that the properties had arready been mutated in their narnes as their self-acquired properties. The plaintiffs claim that they only became aware of these mutation proceedings in Apil, 2O2t and subsequently obtained certihed copies from the office of the Tahsildar. The plaintiffs contend that the suit schedule properries constitute joint farnily properties and have not been legally partitioned. As 5 '? 3 such, the plaintiffs are entitled to a21Sth share in the properties specihed in Schedule A and B. They further contend that the suit is within the period of Limitation, as the refusal to partition occurred oo 6.6.2021, following their oral demand. According to the plaintiffs, the Court fee payable is Ri.20O/- under Section 3aQl of the Andhra Pradesh Court Fees and Suits Valuation Act, calculated based on their 2/5th share of the total value of the properties specihed in Schedule A and B.

3. I.A. No. 1728 of 2O2l in O.S. No. 281 of 2O2l was filed by the petitioners/defendants under Order VII, Rule 11(a), (b), and (d) read with Section 151 of the CPC, seeking rejection of the plaint in O.S. No. 281 of 2O2l due to lack of cause of action, undervaluation of the relief claimed and limitation. The main contention raised by the defendants is that the suit schedule properties became open for succession in 1998 upon the death of Begari Pochiga alias Begari Posheety. Since then, the plaintiffs have neither taken any steps to demand partition nor issued any legal or public notices concerning the properties. They have also not approached the Tahsildar or any other authority to record a Virasath for the suit schedule properties. After a lapse of 22 years, the plaintiffs have now f,rled a partition suit based on what 6 ttre defendants claim is a fabricated cause of action. The defendants argued that since the plaintiffs have been out of possession of the suit schedule properties throughout this period, the suit raises the issue of whether a partition suit is maintainable and contend that it is barred by limitation under Order VII, Rule 11(d) of the CPC. Further, the defendants argued that the plaintiffs have failed to produce any material evidence demonstrating that, as of the date of filing, all parties were within the joint family nucleus or beneliting from the suit schedule properties. They submit that because the respondents have been out of possession of the suit schedule properties for 22 years, the court fee should be calculated under Section 3a(1) of the APC and SV Act, rather than under Section 3aQl of the same Act, rendering the suit undervalued and therefore not maintainable.

4. The defendants further contend that no cause of action has been disciosed against them, making the suit non-maintainable under Order VII, Rule 11(a) of the CPC. The defendants also state that the suit schedule properties are registered in their narnes, as reflected in the ROR records, and that pattadar passbooks were issued to them by the revenue authorities. They assert that the plaintiffs have neither challenged these records nor applied for 7 ,'a) 6 rectification if they believed they had a legitimate claim. Consequently, the suit is not maintainable, as the plaintiffs have not contested the revenue entries or pattadar passbooks. The plaintiffs, however, claim that the defendants managed to have their names recorded in the revenue records by influencing the revenue authorities, who subsequently issued pattadar passbooks in their favor. Finally, the defendants argued that the boundaries of the suit schedule properties as described in the plaint are incorrect, further rendering the suit non-maintainable.

5. Learned counsel for the defendants relied on the judgment of the Honble Supreme Court in the case of Ramisetty Venkatanna and another v. Nasyam Jamal Sahab and othersl and argued that vexatious suit and its claims have to be rejected. Learned counsel also relied on the judgment of High Court of Delhi in the case of Sangita Rehan and others. v. Surinder Kishan Grover and othersz. On facts, the High Court of Delhi held that suit for partition could not be maintained. I 2023 sCC Online 5C 521 ' 2014 Lawsuit 1Del1 +320 8

6. The lower Court dismissed the I.A finding that the grounds raised were untenable. Firstly, whether cause of action arises in the case or not has to be looked into.

7. The Hon'ble Supreme Court in the case of Eldeco Housing qnd Industries Linited VsAshok VidgarAhi and Ors tt. Ashok VidgarAhi and others, observed as follows: "23.11. The test for exercising the pou-ter Under Order 7 Rule 11 is that if tte auerments made in the plaifi are taken in entiretg, in anjunction uith the doatments relied upon, would the same result in a decree beirry passed. This test was laid doun in Liuerpool & London S.P. & 1 Assn. Ltd. u. M.V. Sea Success I [Liuerpool & London S.P. & f Assn. Ltd. u. M.V. Sea Szrccess I, MANU/SC/O951/2O93: (2OOa) 9 SCC 5121 uthichreads as: (SCC p. 562, pora 139)

139. Wlether a plaint discloses a cause of action or not is essentially a question of foct. But utLettter it does or does not must be found out from reading the plaint itself. For tle said purpose, the auerments made in the plaint in their enttretg must be held to be conect. The test is as to tuhetler if the ouennents made in the plaint are taken to be corect in their entiretg, a decree utould be passed.

23.12. In Hardesh Ores (P) Ltd. o. Hede & Co. [Hardesh Ores (P) Ltd. u. Hede & Co., MANU/SC/7671/2OO7 : (2OO7) 5 SCC 6141 the Court further held tLttlt it is not penni.ssible to anll out a sentence or a passage, and to read it in isolation. It is the substonce, and not merelg tle form" uhich Lns to be looked into. The plaint has to be construed a.s it stands, u;ithout addition or subtraction of utords. If tle allegations in ttrc plaint pimo facie shou o cause of action, the court connot embark upon an enquiry whether tlte allegotions ore true in fact. D. Ramachandran u. R.V. Janakiraman, MANU/SC/0154/1999 : (1999) 3 SCC 267; See olso Vijag Pratap Singh u. Dukh Horan Nath Singh MANU/SC/O394/1962 : AIR 1962 SC 9411.

23.13. If on a meaningful rea.ding of the plaint, it i.s found that the suit is monifestlg uexatious aid r:lithout ang merit, and d.oes not I I I I ,-a, di.sclose a ight to sue, the court utould be justified in exercbing the pouer Uru7er Order 7 Rule 11 Code of Ciuil Proedure." 9

8. The Honble Supreme Court in the case of The Church of Christ Charitable Trust and Educational Charitable Society, represeilted by its Chairman Vs. Ponniamman Educational Trust3 held as follows: "The cause of action is a bundle offacts which taken with the law applicable to them gives the Plaintiff the right to relie/ againsl the Defendant. Every fact which is necessary for the Plaintif to prove to enable him to get a decree should be set out in clear terms. It is worthwhile to find out the meaning ofthe words "cause of action". A cause of action must include some act done by the Defendant since in the absence of such an act no cause of action can possibly accrue. "

9. Following the observations made in the above judgments, the averments made in the plaint cannot be rejected since they a-re factual aspects and unless disproved, the averments in the plaint has to be accepted as correct. Cause of action is made out in the present facts.

10. The plaintiffs assertion in the plaint regarding the correctness or otherwise of the averments cannot be rejected on the basis of limitation and possession which is a mixed question of law and facts. It is the claim of the plaintiff that the joint family ' (zotz) e scc zoo !i$Q!ql !ar:-* :'r,'r ,1.,. 10 properties under Schedule A and B were not partitioned and (\. accordingly plaint cannot be rejected.

11. The other limb of the argument of the learned counsel for the petitioners is that the plaintiffs have come up with date of

06.06.2021 when there was alleged oral refusal to partition the property. The Honble Supreme court in the case of Eld.eco Housing and Industries Linited Vs. dshok Vidgarlhi and Ors (supra), the Honble Supreme Coirrt held as follows: "17. In Kannala and Ors- v. K.T. Eshuara Sa and Ors. MANU/SC/7542/2OO8 : (2OOB) 12 SCC 661 this Court opined that for inuoking Clause (Q of Arder W Rule 7 1 Code of Ciuil Procedure, onlg tLte auerments in th.e plaint uould be releuant. For this purpose, there cannot bd ang addition or subtraction. No amount of euidence con be looked into. Tle issue on meits of the matter utould not be uithin the nealm of the Court at that stage. Tte Court at tLut stage u.tould nat consider ang euidentn or enter a disputed question of foct of law. Releuant paragraphs thereof are extracted belou:

21. Order 7 Rule 11(d) of *rc Code has limited application. It must be shoun tLnt fie si.tit is barred under ang lau. Such a conclusion must be dra un from tfte auerments made in the plaint. Different clauses in Order 7 Rule 11, in our opinion, stnuld not be mixed up. Whereas in a giuen cd$e, an application for rejection of the plaint mog be filed on more than one ground specifi.ed in uaious sub-clauses thereof, a cldar finding to that effect must be arriued at. What utould be relevant for inuoking Clouse (d) of Order 7 RuIe 11 of the Code dre the auerments made in tle plaint. For tLnt purpose, tlere cannot be ong addition or subtroction . Absence of jurisdictlon on the part of a court can be inuoked at different stages and ttnder different prouisions of tLrc Code. Order 7 Rule 11 of the a-ode is one, Order 14 Rule 2 i.s another.

22. For the purpose of inuoking Order 7 Rule 11(d) of the Code, no amount of euidence coft be looked into. The isszes on merit of the matter uLhich may drise behtseen the partiis would i , I I e 17 not be uithin the realm of tLre court at that stage. All issues shnll not be the subject- matter of an order under tte said prouision .

23. The principles of res judicata, uhan attracted, uould bar anotler suit in uiew of Section 12 of the Code. The question inuoluing a mixed qtestion of laut and fact uthich mag require not only examination of the plaint but also other euidence and tLrc order passed in the eorlier suit mag be taken up either as o preliminary issue or at tLrc fnal hearing, but, tte said qtestion ca nnot be detennined at ttnt stage.

24. It i.s one thing to say that the auerments made in th.e plaint on their face discloses no cctuse of action, but it i.s another thing to say that alttnugh tle same discloses a cause of action, the same is barred bg a laut.

25. TIE decisions rendered bg this Court as aLso bg uaious High Courts are not uniform in thi.s behalf. But, then tLe broad prinaple u.thich can be culled out therefrom i.s that the court at that stage uould not consider ang euidence or enter into a disputed question of fact or lart . In th.e euent, the juri"sdiction of the court is found to be barred by ang lanu, meaning thereby, the subject matter thereof, the application for rejection of plaint should be entertained. "

12. The plaintiffs' claim of cause of action arising on 06-06.2021 has to be again examined by the Court below during trial However, the issue of lirnitation can be either addressed by framing preliminarJr issue or during the course of linal disposal of the case. The lower Court was correct in rejecting the ground raised rega-rding limitation, since it is a mixed question of law and fact in the present case. \ ! ! 13. The question whether the plaintiffs have to pay Court fee under Section 34 (1) arrd 34(2) of the A.P.Court Fees and Suit Valuation Act, 1956, will depend on the fact whether the , , i l .t 72 plaintiffs remained in the joint possession of the family properb" or not. Section 34 of the Act reads as follows: "5. 34. Partition suits - (l) In a suit for partition and separate possession ofa share ofjoinl family property or ofproperty owned, jointly or in common, by a plointilf who has been etcluded from possession of such property, fee shall be computed on the market value of the movable property br three-fourths of the market vulue of the immovable properly included in the plaintilfs share. (2) In a suit for parlition and sepurate possession ofjointfamily property or proper\) ownedjointly or in common, by a plaintiff who is in joint possession of such property, fee shall be paid at the following rates ...

14. As already discussed, since the plaintiffs are claiming joint possession and respondents are claiming otherwise, the issue whether the payment of Court fee would fall within Section 34(1) or 34(21 of the Act can be decided by the Court below during trial, since it is a mixed question of fact and law and accordingly, direct the payment of Court fee if the plaintiffs are otherwise liable to pay in accordance with the hnding.

15. Accordingly, Civil Revision Petition is dismissed. There shall be no order as to costs. Consequently, miscellaneous petitions, if any, shall stand disposed off. \ //TRUE COPY// Sd/. K. AMMAJI ASSISTANT REGISTRAR () SECTION OFFICER One Fair Copy to the Hon'ble Sri Justice K. Surender (For His Lordship's kind perusal) To, 1 The Principal Junior civir J udge-cum-J udiciar [r/agistrate of First crass at Nizamabad. .a', I Affairs, New Delhi.

2. 'l'l,LR Copies 3 The Under S_ecretary, Union of lndia Ministry of Law, Justice and Company 4 ]fr9 Se-1etaV, Telangana Advocates Association Library, High Court for the 5. 6. 7. DLigh State of Telangana, High Court Buildings at Hyderabad. 9n" 99 b !,iJ Sajan Kumar, Advocalte topl]Cl 9n" 99 to Sri T V Katyan Singh, Advocate tOpU'Cl Two CD Copies a -1 / € a a t'1 c .J O $C 9rA I4: 1 i o ( 2 I FtB 2[25 (lr\ t \ * t) I / I ;;i HIGH COURT DATED:10/01/2025 \ \ ORDER CRP.No.2708 of 2024 DISMISSING THE C.R.P.