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(1) cra-113-2024.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCIVIL REVISION APPLICATION NO.113 OF 2024Deepak S/o. Gahina More,Age- 41 Years, Occu- Service,R/o. Wadzire, Tal-Parner, Dist- Ahmednagar...(Ori. Defendant No.8) Revision ApplicantVersus1.Dashrath Bapu KedareSince deceased through his legal representatives-1-A) Rajesh S/o. Dashrath Kedare, Age- 48 Years, Occu- Agriculture, R/o. Vadner, Tal-Parner, Dist- Ahmednagar. 1-B) Santosh S/o. Dashrath Kedare, Age-40 Years, Occu- Agriculture, R/o. Vadner, Tal-Parner, Dist- Ahmednagar. 1-C) Kalpana Bhagwan Jadhav, Age- 50 Years, Occu-Household, R/o. Yogitham, Kalyan, Tal-Kalyan, Dist-Thane. 1-D) Sangita Gautam Gaikwad, Age- 52 Years, Occu- Agriculture, R/o. Vadner, Tal-Parner, Dist- Ahmednagar. ...(Original Plaintiff) 02. Nandkumar S/o. Tukaram Kedare,Age-70 Years, Occu- Agriculture, R/o. Vadner, Tal-Parner, Dist- Ahmednagar. 03.Ajay S/o. Nivrutti Kedare,Age-45 Years, Occu- Agriculture, R/o. Vadner, Tal- Parner, Dist-/Ahmednagar. 04. Shobha D/o. Nivrutti Kedare,Age- 43 Years, Occu- Agriculture, R/o. Vadner, Tal- Parner, Dist- Ahmednagar. 05. Shilpa D/o. Nivrutti Kedare,Age- 41 Years, Occu- Agriculture, R/o. Vadner, Tal- Parner, Dist- Ahmednagar. 06. Laxmi Wd/o. Nivrutti Kedare,Age- 70 years, Occu- Agriculture, (2) cra-113-2024.odtR/o. Vadner, Tal- Parner, Dist- Ahmednagar. 07. Samsher S/o. Shabbir Sayyed,Age- 48 years, Occu- Agriculture, R/o. Survey No. 35/1-2, Plot No. 14, Flat No. 5, Chandanshifalika Road No.6, Oppo. Ganesh Mandir, Tingare Nagar, S.LF. Station, Pune-411032. 08. Sardar S/o. Mohammad Pathan,Age- 56 years, Occu- Agricultre, R/o. Supa, Tal-Parner, Dist-Ahmednagar. ..(Orig. Defendant Nos.1 to 7) Respondents.…Mr. A. R. Devkate h/f Mr. S. P. Salgar, Advocate for Applicant.Mr. M. P. Kale h/f Mr. N. R. Muley, Advocate for RespondentNos.1A and 1B.Mr. N. N. Bhagwat, Advocate for Respondent Nos.1C and 1D.... CORAM : S. G. CHAPALGAONKAR, J.RESERVED ON: 27th JANUARY, 2025.PRONOUNCE ON : 12th FEBRUARY, 2025.ORDER:-1.The applicant/original defendant no.8 approached this Courtunder Section 115 of the Code of Civil Procedure, therebyimpugning order dated 24.11.2023 passed below Exhibit-61 inRegular Civil Suit No.670/2013 pending before Civil Judge, JuniorDivision, Parner, Dist. Ahmednagar, by which application seekingrejection of plaint under Order VII Rule 11 has been rejected.(Hereinafter, parties are referred to by their original status for thesake of convenience and brevity).2.The respondent no.1 instituted Regular Civil SuitNo.670/2013 before the Civil Judge Junior Division at Parner (3) cra-113-2024.odtgenerally for following relief:(a)To declare that plaintiff is entitled to purchase suitland under right of preemption. (b)To declare that sale deed dated 30.04.2014 executed bydefendant nos.1 to 5 in favour of defendant nos.6 and 7 asnull and void and defendant nos.6 and 7 have no right inrespect of suit property.(c)Defendant nos.6 and 7 or their agents or attorney orany third person claiming through them be perpetuallyrestrained from interfering in peaceful possession andcultivation of plaintiff.(d)The application for temporary injunction againstdefendants annexed to the plaint be granted.(e)To declare that sale deed executed by defendant nos.6and 7 in favour of defendant no.8 is invalid.(f)Pending hearing and disposal of suit on meritdefendants be restrained from alienating or creating thirdparty interest or from causing obstruction to peacefulpossession and cultivation of plaintiff.3.The plaintiff contends that suit land was purchased by hisfather namely Bapu Babaji Kedare from one Gangadhar Khisti. (4) cra-113-2024.odtThereafter, his father sold portion of 6 acres 36 R land in favour offather of defendant no.1 i.e. Tukaram Nabaji Kedare underregistered sale deed. However, father of defendants resided awayfrom village, hence, he never occupied possession of the land inpursuance to the sale deed. The land continued in possession ofplaintiff. The mutation entries entered in the name of father ofdefendants and thereafter, defendants were nominal. The suitland is originally belonging to plaintiff’s family and he is co-sharer.The defendant nos.2 to 5 are residing away from village, but on thebasis of mutation entries, they were intending to sell the land. Theplaintiff requested them to transfer the land in his favor andexpressed his willingness to purchase it. However, Defendant No.1declined his request and is disturbing the plaintiff's peacefulpossession. The plaintiff is continuously possessing suit land sincebefore sale deed in the name of father of defendants. In pursuanceto the order passed by Naib Tahsildar, Parner in Case No.09/2005name of plaintiff is entered as possessor in 7/12 extract. Sinceplaintiff is in settled possession, the defendants have no right todispossess him without following due process of law. Even they areno entitled to legally transfer the land in favour of third person andpart with the possession. 4.The plaintiff asserts that since originally land belongs to hisfamily and he is continuously in possession, he has right of (5) cra-113-2024.odtpreemption to purchase the land as per current market rate.Therefore, he seeks declaration to that effect. The plaintiffasserted that cause of action arose on 15.09.2013.5.It appears that, during the pendency of suit, defendant nos.1to 5 transferred 1/3rd share from Southern side in favour ofdefendant nos.6 and 7 vide registered sale deed dated 30.04.2014.Thereafter, defendant nos.6 and 7 transferred land in favour ofdefendant no.8 vide registered sale deed dated 02.06.2022. Theplaintiff brought on record aforesaid subsequent events throughamendment and inserted prayers to declare those sale deeds asnull and void and not binding on him and also inserted prayer toseek perpetual injunction against defendant nos.6 and 7 or theiragents.6.The defendants appeared in the suit and filed writtenstatement. The present applicant, who is subsequently added asdefendant no.8 in suit filed his written statement dated 04.08.2023.He filed an application below Exhibit-61 seeking rejection of plaintunder Order VII Rule 11 of Code of Civil Procedure, contendingthat plaintiff’s suit is barred by limitation and sans cause of action.According to him, cause of action shown is illusory and suit is filedstrategically to prolonge litigation. The Trial Court after hearingparties, rejected application vide order dated 24.11.2023. (6) cra-113-2024.odt7.Mr. Devkate, learned Advocate appearing for the applicantsubmits that right of preemption has been stipulated under Section22 of the Hindu Succession Act, 1956 and same would be availableonly to Class-I heirs of intestate. He would further submit that co-sharer is not conferred with any such right on the basis of vicinage.He submits that father of plaintiff had alienated the suit propertyin the year 1966 in favour of father of defendant no.1. Therefore,defendants hold absolute right to transfer the land. The sale deedexecuted by plaintiff’s father is not in dispute. He would furthersubmit that previously plaintiff had instituted Regular Civil SuitNo.59/2005 against defendant nos.1 to 6 for partition. The suit hasbeen dismissed for want of prosecution on 27.08.2012 and nowpresent suit is filed claiming right of preemption. 8.According to Mr. Devkate, plaintiff has suppressed materialfacts as to the execution of sale deed by plaintiff’s father in favourof Tukaram dated 18.03.1966 as well as fact regarding dismissal ofprevious suit. Mr. Devkate would further place reliance on Article97 of the Limitation Act, 1963 to contend that suit seeking right ofpreemption ought to have been exercised within one year fromexecution of sale deed in favour of Tukaram dated 18.03.1966. Assuch, suit filed in the year 2013 is hopelessly barred by limitation,but Trial Court failed to appreciate aforesaid aspect and declined toexercise jurisdiction in tune with legislative intent behind (7) cra-113-2024.odtprovision contained under Order VII Rule 11 of the Code of CivilProcedure. In support of his contentions he relies upon judgmentsof the Supreme Court of India in case of Bhau Ram Vs. BaijNath Singh and Ors.1 and A. Razzaque Sajansaheb Bhagwanand Ors. Vs. Ibrahim Haji Mohammed Husain2 to contend thatright of preemption as claimed would not be available to theplaintiff and suit is barred by limitation. 9.Per contra, Mr. Kale and Mr. Bhagwat, learned Advocatesappearing for the respondents endeavour to contend that right ofpreemption is also available to co-sharer of survey number. Theplaintiffs are actually in possession of suit property, although saledeed was executed by plaintiffs’ father in favour of father ofdefendants. The plaintiffs cannot be dispossessed withoutfollowing due process of law. Accordingly, they support theimpugned order. In support of their contentions, they rely uponjudgment of the Supreme Court of India in cases of Sajjan SinghVs. Jasvir Kaur and Ors. (Civil Appeal No.4221/2023 dated06.07.2023), Srihari Hanumandas Totala Vs. Hemand VithalKamat and Ors.3, Krishna Minor Through His Father andGuardian Vs. State of Haryana4 and Bhoop Alleged So ofSheo Vs. Matadin Bhardwaj5.1AIR 1962 SC 1476.2(1998) 8 SCC 83.3(2021) 9 SCC 99.41994 (4) SCC 703.51991 (2) SCC 128. (8) cra-113-2024.odt10.Having considered submissions advanced by the learnedAdvocate appearing for the respective parties and on perusal ofplaint and material tendered before this Court, it is apparent thatapplicant is seeking rejection of the plaint on the ground oflimitation and cause of action. Order VII Rule 11 of the Code ofCivil Procedure prescribes that plaint shall be rejected where itdoes not disclose cause of action or where appears from thestatement of plaint to be barred by law. 11.The parameters of jurisdiction to exercise powers underOrder VII Rule 11 have been explained by the Supreme Court ofIndia. It is trite that, decision as to the rejection of the plaint hasto be based on statement in the plaint only. The Court is notexpected to look into the defence put forth in the written statementand it is open to decide the issue on the basis of any other materialthat has been put on record by way of defence. It is furtherexplained that documents presented alongwith plaint can beconsidered for forming opinion on the issue. 12.In view of the aforesaid legal position, perusal of the plaint inRegular Civil Suit No.670/2013 suggests that cause of action to filesuit is shown on 15.09.2013, when defendants obstructed allegedpossession of the plaintiff over the suit property. The plaintiffasserts that although his father executed sale deed in favour of (9) cra-113-2024.odtTukaram i.e. father of defendant no.1, possession was neverhanded over and suit property remained in his possessioncontinuously without obstruction. The plaintiff claims thatdefendants have no right to disturb his possession withoutfollowing due process of law, since he is in settled possession. Theplaintiff, therefore, seeks relief of perpetual injunction againstdefendant nos.6 and 7. 13.In this background, it is apparent that, apart from seekingrelief for the declaration as to right of preemption, the plaintiff isindependently claiming relief for a perpetual injunction. Therefore,assuming that the plaintiff has no cause of action to claim relief forthe declaration as to right of preemption concerning the suitproperty under Section 22 of the Hindu Succession Act, a findingregarding the assertion of possession needs to be recorded duringthe trial. 14.Apparently, suit of the plaintiff cannot be rejected for want ofcause of action atleast for relief of perpetual injunction. It is well-established that a plaint cannot be rejected in part. When plaintiffclaims multiple reliefs, even if he may not be entitled to or lacks acause of action for some of reliefs claimed, once it is found that theplaintiff can pursue his remedy for at least one of the claimedreliefs, there is no justification for entertaining an applicationunder Order VII Rule 11 of the Code of Civil Procedure. (10) cra-113-2024.odt15.Consequently, no case is made out to cause interference inthe impugned order. Civil Revision Application sans merit, hence,rejected.(S. G. CHAPALGAONKAR)JUDGEDevendra/February-2025