(M/S) Pratap Singh and Another … v. Choti Devi and Others

Mr. Lokendra Dobhal, Advocate for the petitioners. Mr. K.N. Joshi, D.A.G. for the State. None is present for the respondent no.6. Hon’ble Ravindra Maithani, J. (Oral) JUDGMENT The challenge in this petition is made to the order dated 17.04.2023, passed in Suit No.12 of 2022-23, Smt. Choti Devi and Others vs. Mal Chand and Others, passed by the Assistant Collector, First Class, Dehradun and order dated

15.10.2024, passed in Revision No.71 of 2023, Pratap Singh and Others Vs. Smt. Choti Devi and Another, by the Board of Revenue, Dehradun, respectively.

2. Heard learned counsel for the petitioner and perused the record.

3. The respondent nos. 1 and 2 had filed a suit under Sections 229-B, 171, 176 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (“the Act”), claiming that the respondent no.1-Smt. Choti Devi is the wife of the of late Rai Chand, and the respondent no.2- Manjeet Singh is the son of late Rai Chand. The property in question belongs to one Jallu having three children, namely Devi Singh, Mal Chand and Rai Chand alias Roop Chand, and accordingly, the respondent nos. 1 and 2 claim that they have one- third share in the property, but it was the case that the name of 2 Roop Chand was not got recorded in the revenue record. Therefore, correction was sought in the revenue record.

4. In the suit, an application under Order 7 Rule 11 of the Code of Civil Procedure, 1908 (“the CPC”) was filed by the petitioners on the ground that Rai Chand alias Roop Chand was not the son of Jallu. He was resident of Tehri Garhwal. The respondent nos. 1 and 2 have no concern with the property of the petitioners. Therefore, the respondent nos. 1 and 2 have no cause of action to institute the suit, and the paint is liable to be rejected.

5. After hearing the parties, by the impugned order dated

17.04.2023, passed by the Assistant Collector, First Class, Dehradun, it was held that the suit is not barred by the provisions of Order 7 Rule 11 CPC. It was observed that in order to ascertain as to whether the cause of action has been established or not, the merits may not be determined while considering the application under Order 7 Rule 11 of the CPC. It requires deliberation on evidence. This order of the Assistant Collector, First Class, Dehradun, has further been upheld in a revision by the Board of Revenue, Dehradun, by its order dated 15.10.2024.

6. Learned counsel for the petitioner would submit that the impugned orders are bad in the eyes of law; the respondent nos. 1 and 2 did file the suit on wrong grounds; Rai Chand alias Roop Chand had no concern with the joint property of the petitioners. They were residents of District-Tehri Garhwal, at a different place. Their names are not recorded in any revenue record. Therefore, the respondent nos. 1 and 2 did not have any cause of action, and the plaint ought to have been rejected under Order 7 Rule 11 of the CPC. 3

7. Order 7 Rule 11 CPC reads as hereunder:- “11. Rejection of plaint. - The plaint shall be rejected in the following cases:- (a) where it does not disclose a cause of action; (b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; (c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law : (e) where it is not filed in duplicate; (f) where the plaintiff fails to comply with the provisions of rule 9: Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature form correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.”

8. There are two different things. One is establishing the cause of action and the second is disclosing the cause of action. Plaint may be rejected under Order 7 Rule 11 CPC only when the plaint does not disclose the cause of action.

9. The application that has been filed by the respondent nos. 1 and 2 under Sections 229-B, 171, 176 of the Act is Annexure No.2 to the writ petition. In Para 6 of it, it is the claim of the respondent nos. 1 and 2 that Roop Chand alias Rai Chand was son of Jallu and they were three brothers, namely, Devi Singh, Mal Chand and Roop Chand. Both the petitioners are the son of Devi Singh. The respondent nos. 1 and 2 had claimed that they have one-third share in the joint property.

10. Whether the respondent nos. 1 and 2 would be able to establish their case, that is a different issue, but their plaint discloses cause of action. Based on the averments that are being made by the petitioners at the initial stage, the plaint may not be 4 rejected under Order 7 Rule 11 of the CPC. What is argued and what is stated in their application under Order 7 Rule 11 of the CPC is a matter of evidence that requires to be adduced in the trial of the suit, which stage would follow subsequent to it.

11. Having considered, this Court is of the view that the court below has rightly rejected the application under Order 7 Rule 11 of the CPC. Accordingly, the impugned orders do not warrant any interference. Therefore, the writ petition deserves to be dismissed at the stage of admission itself.

12. The writ petition is dismissed in limine. Ravi Bisht (Ravindra Maithani, J.)

03.04.2025