High Court

Legal Reasoning

1 cra 110.22+ca.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCIVIL REVISION APPLICATION NO. 110 OF 2022Vimalbai Rajaram More And OthersVERSUSPralhad Dadarao Kshirsagar Thr. His Special Power Of AttorneyPurshottam P Khirsagar And Others...Advocate for applicants : Mr. A C. DarandaleAdvocate for Respondent 1 : Mr. N K TungarRespondent nos.2,3 and 4 – Deleted.Resp Nos.5A, 5B, 5C-1 to 5C-4, 5D/1, 5E/1 to 5E-3 are served.Resp Nos.5F, 6a/1 To 6a/3,7,8,9a To 9c, 10, 12a, 13a, 13b, 13cTo 13e, 14 To 16 ServedRespondent No.11- Dead.…WITHCIVIL APPLICATION NO. 14896 OF 2022 IN CRA/110/2022 CORAM :S. G. CHAPALGAONKAR, J.Dated:March 10, 2025FINAL ORDER :-1.The applicants/original defendant nos.4, 5 and 6impugns the order dated 11.7.2022 passed by the Civil JudgeSenior Division, Beed below Exhibit-1 in R.C.S. No.219 of2022, thereby declining prayer for rejection of plaint invokingOrder VII Rule 11 of the Civil Procedure Code.2.In brief, facts giving rise to the present applicationcan be summarized as under :- 2 cra 110.22+ca.odtOne Krushnabai w/o Vitthalrao Shelke hadinstituted the R.C.S. No.127 of 1992 before the Civil JudgeS.D., Beed against in all 14 defendants seeking relief ofpartition and separate possession of 8 Ana share in the suitproperty i.e. agricultural land S.No.84, admeasuring 33A 10Gunthas, situated at Taraf Bobade, Tq. & Dist. Beed. Shecontended that one Janu Kshirsagar was the original owner ofsuit land. He died leaving behind two sons namely Bhau s/oJanu Kshirsagar and Ramrao Janu Kshirsagar. Bhau beingelder brother, was Karta and Patedar of the land and youngerbrother Ramrao was co-sharer. Ramrao expired on 15.11.1961leaving behind plaintiff as his heir. Bhaurao had also expiredjust before Ramrao in the month of October, 1961 leavingbehind Bhanudas, Dadarao, Bajirao, Bansi, Barku and Marutias his heirs. 3.The defendants are L.Rs. of Barku, Bhanudas,Bhaurao, Dadarao. It is further pleaded that defendant no.12i.e. nephew and son of defendant no.1 purchased suit propertyfrom other defendants. Such alienation's are illegal, invalidand collusive. The suit came to be decreed and plaintiffKrishnabai through her legal heirs held to be entitled for joint 3 cra 110.22+ca.odt8 Ana share in suit land bearing Survey No.84. The aforesaiddecree was assailed by defendants in R.C.A. No.36 of 2009before District Judge, at Beed. However, same had beenconfirmed by the Appellate Court vide judgment and decreedated 7.10.2017. Second appeal filed against said decree isalso dismissed. Eventually, decree was put to execution videR.D. No.41 of 2020 and transmitted to District Collector u/s 54of Civil Procedure Code.4.At this stage, respondent no.1/original plaintifffiled R.C.S. No.219 of 2022 seeking relief of declaration thathe is bonafide purchaser of suit property and adjustment ofland possessed by him against share of his vendor i.e. BajiraoKshirsagar and perpetual injunction against defendant fromobstructing and interfering in his possession over the suitproperty. 5.In the aforesaid background, learned Judge of theTrial Court was pleased to pass an order below Exhibit- inR.C.S. No.219 of 2022, thereby framed issue as tomaintainability of suit and if suit is liable to be rejected underOrder VII Rule 11 (d) of the CPC and after holding that suit is 4 cra 110.22+ca.odtmaintainable, issued suit summons to the defendant forsettlement of issues.6.Mr. Darandale, learned counsel appearing for theapplicants/original defendant nos.4,5 and 6 submits that suitin present form is absolutely not maintainable.Respondent/original plaintiff was party defendant no.12 inR.C.S. No.127 of 1992 filed by Krishnabai. Suit property wassubject matter of that suit. Respondent/plaintiff had filedwritten statement and raised plea of previous partition, so alsoadverse possession. Trial Court accepted case of Krishnabai andpassed a decree for partition and separate possession of ½share in her favour. Aggrieved Respondent/plaintiff had filedR.C.A. No.36 of 2009 alongwith other defendants. The samehas been dismissed and decree is confirmed in Second AppealNo.584 of 2018 by this Court. Once, plaintiff was party to thatsuit and suffered decree, present suit is not at all tenable andplaintiff cannot have any cause of action to file separate suitseeking relief of declaration that he is bonafide purchaser ofthe suit property and seek further injunction. 7.Per contra, Mr. Tungar, learned counsel appearingfor the respondent no.1/plaintiff would submits that order 5 cra 110.22+ca.odtpassed by Trial Court is just and proper. Suit is not barred bylaw. Cause of action arose to plaintiff when he received noticeof execution of the decree passed in R.C.S. No.127 of 1992.Mr. Tungar, would submit that suit land has been purchased byplaintiff vide registered sale deed dated 26.10.1979 fromBajirao Bhaurao Kshirsagar. Plaintiff has invested hugeamount for development of the land and raised construction ofwell. Therefore, in execution of the decree, suit land canadjusted against share of Bajirao Bhaurao Kshirsagar andpossession of plaintiff can be protected by adjusting equities. 8.Having considered submissions advanced, it isapparent that plaintiff/respondent was party to R.C.S. No.127of 1992 instituted by Krishnabai Shelke. The plaint in that suitrefers to sale-deed dated 26.10.1979, serial no.3401 andfinally decree has been passed upholding right of Krishnabai insuit land to the extent of ½ share. Plaintiff unsuccessfullyassailed decree by filing appeal and decree has attainedfinality. All aforesaid facts can be gathered from plaint inR.C.S. No.219 of 2022. In this background, when notice ofexecution in R.D. no.41 of 2020 is served upon the plaintiff, heasserts cause of action to file present suit to seek relief that he 6 cra 110.22+ca.odtbe declared as bonafide purchaser and adjustment of landpurchased by him under registered sale- deed against share ofhis vendor i.e. Bajirao Kshirsagar. Apparently, plaintiff cannothave cause of action to seek the aforesaid relief once he hassuffered the decree passed by the competent court ofjurisdiction and entitlement of defendants/legal heirs ofKrishnabai to receive ½ share is approved, the reliefs nowsought in R.C.S. No.219 of 2022 were in fact available to beraised by way of defence in R.C.S. no.127 of 1992. Therefore,plaintiff cannot have cause of action to re-agitate samedefences by filing fresh suit and claim relief of declaration onthe basis of sale-deed which cannot bind right of defendantswhich are crystallized by a decree in R.C.S. No.127 of 1992being legal heirs of Krishnabai. 9.It is trite that the Collector, while effectingpartition of an estate under section 54 of the Civil ProcedureCode,has to divide it in accordance with decree sent to him.Even in case of pendent-lite transferee, if there is no dispute,Collector may proceed to make allotment of the properties inan equitable manner instead of rejecting their claim for suchequitable partition on the ground that they have no locus 7 cra 110.22+ca.odtstandi. A transferee from a party of a properties which issubject matter of partition can exercise all rights of transferrer.Therefore, plaintiff being a party to the dispute can definitelyraise his claim for equitable partition and adjustment of theland already possessed by him in execution of decree. TheCollector is at liberty to make an equitable partition taking intoconsideration interests of all the concerned, so far as it is in-conformity with work assigned to him under decree. 10.In case of Khemchand Shankar Choudhary andothers vs Vishnu Hari Patil And Others reported in AIR 1983 SC124, the Supreme Court issued directions to the Collector thatwhile effecting the partition, he may consider whether fields inpossession of the purchasers may be allotted to share of vendorand maintain possession of the party. It is, therefore, clear thatplaintiff may have the remedy before the Collector in pendingexecution and not by filing the suit.11.Now, it is well settled that vexatious litigationwithout cause of action has to be terminated by exercisingpowers under Order 7 Rule 11 of the Civil Procedure Code. Incase of Rajendra Bajoria Vs. Hemant Kumar Jalan reported in 8 cra 110.22+ca.odt(2022) 12 SCC 614, the Supreme Court observed in paragraphno.20 thus :-“20.It could thus be seen that this Court has heldthat the power conferred on the court to terminate acivil action is a drastic one, and the conditionsenumerated under Order VII Rule 11 of CPC arerequired to be strictly adhered to. However, underOrder VII Rule 11 of CPC, the duty is cast upon thecourt to determine whether the plaint discloses acause of action, by scrutinizing the averments in theplaint, read in conjunction with the documentsrelied upon, or whether the suit is barred by anylaw. This Court has held that the underlying objectof Order VII Rule 11 of CPC is that when a plaintdoes not disclose a cause of action, the court wouldnot permit the plaintiff to unnecessarily protract theproceedings. It has been held that in such a case, itwill be necessary to put an end to the shamlitigation so that further judicial time is not wasted.”12.Further, in case of Salimbhai and others Vs. Stateof Maharashtra and others reported in 2003 I SCC 557 it isobserved that powers under Order 7 Rule 11 of the CivilProcedure Code can be exercised by the Court at any stage ofof the suit before registering the plaint or after issuingsummons to the defendant at any time before conclusion of thetrial. Sum and substance of exposition of law on exercise of thepowers under Order 7 Rule 11 of the Code is that, if on ameaningful reading of plaint, it is found that suit is manifestlyvexatious, without any merit and does not disclose right to sue,the Court would be justified in exercising the powers underOrder 7 Rule 11 of the Civil Procedure Code. 9 cra 110.22+ca.odt13.In the present case, as apparent from contents ofplaint, plaintiff is seeking to resist execution of a decreesuffered by him by filing fresh suit and seeking a declarationwhich he could have asked for in earlier suit, being partydefendant. In that view of the matter, Trial Court appears tohave failed to exercise jurisdiction vested with him in judiciousmanner and reject vexatious plaint by invoking powers underOrder 7 Rule 11 of the Civil Procedure Code.14.Hence, Civil Revision Application succeeds, plaintin R.C.S No.219 of 2022 stands rejected under Order VII Rule11 (a) and (d) of the Civil Procedure Code being vexatious andsans cause of action. Needless to state here that, respondentno.1 shall be entitled to raise his claim in tune with law laiddown by the Supreme Court in case of Khemchand (supra)before District Collector in-charge of execution of the decree inR.C.S. No.127 of 1992. Civil Revision applications standsdisposed of. Pending Civil application also stands disposed of. ( S. G. CHAPALGAONKAR ) Judgeaaa-…...