Shailesh Kumar v. Smt. Vibha Gupta, against judgment and decree dated
Case Details
A.F.R. Judgment Reserved on- 16.09.2025 Judgment Delivered on- 25.09.2025 Neutral Citation No. - 2025:AHC:173194 Court No. - 35 Case :- FIRST APPEAL No. - 719 of 2022 Appellant :- Shailesh Kumar Respondent :- Smt. Vibha Gupta Counsel for Appellant :- Shashi Prakash Rai, Shrinath Counsel for Respondent :- Anand Kumar Srivastava, Udayan Nandan Hon'ble Sandeep Jain, J. 1. The instant appeal under Section 96 of the CPC has been filed by the plaintiff in O.S. No. 465 of 2017 Shailesh Kumar versus Smt. Vibha Gupta, against judgment and decree dated 4.5.2022 passed by the ACJM Court no. 3, Gautam Buddha Nagar, whereby the plaintiff 's suit has been rejected under Order 7 Rule 11 CPC on the ground that, one of the immovable property regarding which relief has been claimed by the plaintiff, was situated in District Auraiya, which was outside the jurisdiction of the Court and further, the plaintiff had not claimed relief of cancellation of lease deed executed in favour of the defendant by the Noida. 2. Factual matrix is that the plaintiff – appellant Shailesh Kumar filed O.S. no.465 of 2017 against the defendant Smt. Vibha Gupta with the averments that plaintiff was a freelance journalist by profession, who published weekly newspaper 'Cyber Infosis'. The defendant's second marriage was solemnised with the plaintiff on 4.3.2000 as per the rights and rituals of Arya Samaj in Noida. The defendants first marriage was solemnised with Rishindra Jai Piparsaniya son of unknown, resident of Chattarpur, Madhya Pradesh, out of that wedlock a son Shishil Kumar was born. The defendant in furtherance of criminal conspiracy by disclosing that she was widow, solemnised marriage with the plaintiff and refused to bear children and emotionally pressurised him for adopting her 10-year-old son, from her previous marriage. In deference to the defendant's wishes, the plaintiff performed his duties as husband and father, for the sake of happy marital life, did not procreate any children from the wedlock with the defendant and agreed to adopt the son of the defendant from a previous marriage, as his heir. 3. The plaintiff further averred that since he was not having any fixed source of income, from the savings made from his income, for securing the future of his family, he applied for a plot, for publication of his newspaper in institutional category of a scheme of Noida, through 1 application no. 369, registration number 18/2 dated 15.1.2003, accompanied with processing fees of 5000, which was paid by pay order no. 895834 dated 15.1.2003 and also deposited 10% of the estimated cost of the plot amounting to rupees 1,65,000 through demand draft with the State Bank of Patiala, Noida Branch on 15.1.2003. ₹ 5000, which was paid by pay
Legal Reasoning
4. The plaintiff further submitted that the defendant on the pretext of her son's future, began to emotionally pressurise him and compelled him for getting allotment of the above plot in her favour. Thereafter, the plaintiff in order to get the allotment in favour of the defendant, moved an application supported by an affidavit, before Noida, on the basis of which lease deed of plot number C – 20/6B, area 350 yd² in sector – 62, Noida, Gautam Buddha Nagar was executed in favour of the defendant by Noida on 6.6.2003. 5. The plaintiff further averred that since the defendant was previously married and not taken divorce from her previous husband as such, in order to avoid any legal complication, the defendant began to write the name of her father in all the documents, in place of her husband- plaintiff. 6. The plaintiff further averred that defendant pressurised him on the pretext that if the plot was allotted in the name of plaintiff then if, some thing untoward happened to him, then the plaintiff’s siblings will claim the plot, which will harm the financial and legal interests of her son. Due to this pressure, in order to secure the interests of the defendant and her son, the plaintiff was compelled to get the allotment of plot made in favour of the defendant. 7. The plaintiff further averred that besides the above property, he from his own funds purchased in the defendants village Udanpura, Mauja Chichauli, tehsil and District Auraiya, plot having Gata no. 430Ka/5.29 ha and half share of Gata no. 432Ka/1.72 ha, by three sale deeds, for establishing college, in the name of the defendant, which were registered in the office of the sub-registrar Auriya in book no.1, khand 714, page number 15/32 serial no. 3331, page number 45/70 serial no. 3333 and page number 33/44 serial no. 3332. The defendant appointed him as her power-of-attorney in respect of the above property situated in District Auraiya, which was registered in the office of sub-registrar Auraiya in book no.4, Jild no.9, page no. 101 – 112, serial no. 22 on 27.4.2013, which was subsequently, by hatching criminal conspiracy, without obtaining the consent of plaintiff, was cancelled on 30.9.2014 which was registered in book no.4, Jild no. 10, at pages 261 – 271 at serial no. 20. According to the plaintiff, the defendant made a false statement for cancelling the above power-of-attorney that her husband remained out of the station 2 due to his professional/personal work and was not able to look after her property. 8. It is the specific assertion of the plaintiff that he is the owner of the above-mentioned properties, which was purchased from his personal income. The plaintiff further averred that the defendant in collusion with her son from her previous marriage, was threatening to misuse his documents, to falsely implicate him in cases of woman harassment, domestic violence and criminal conspiracy. He further averred that his entire savings had been spent on the educational expenses of defendants son Shishil Kumar. At present, he was suffering from diabetes and other ailments, was living in penury, as such, he intended to sell the above properties for meeting out the expenses of his treatment and future expenses. The defendant was neither willing to get him treated nor willing to transfer the property in his favour. He further averred that at present the market value of the plot situated in Noida was about rupees one crore. Despite having property, he was financially dependent on the defendant. He was not able to utilise the above properties for his own need. 9. The plaintiff specifically averred that since the above plot of Noida was purchased from his own income, he was the real owner of that plot and after the allotment of plot in the year 2003, he was in continuous and undisputed possession of that plot. He further averred that the defendant ordered him to remove his possession from the above plot on 7.7.2017 and was intending to sell the above plot and if, the defendant succeeded in doing so, the purpose of the suit shall be frustrated. 10. The plaintiff claimed the following reliefs in the suit:- (i)By declaratory decree granted in favour of the plaintiff against the defendant, the plaintiff be declared the real owner of property number C – 20/6B, sector 62, Noida, Gautam Buddha Nagar. (ii)By decree of permanent injunction granted in favour of the plaintiff against the defendant, the defendant be restrained from selling, mortgaging, alienating, transferring in any manner whatsoever and from interfering in the peaceful possession of the plaintiff and from dispossessing him, except by adopting due procedure of law, from the above property. (iii)By declaratory decree granted in favour of the plaintiff against the defendant, the plaintiff be declared the real owner of the property situated in khasra no. 430 ka/area 5.29 ha and half share of khasra no.432ka/area 1.72 ha situated in village Udanpura, mauja Chichauli, District Auraiya. 3 11. The defendant moved an application under Order 7 Rule 11 CPC with the averments that the plaintiff has filed the suit against her for the relief of declaration and permanent injunction. The plaintiff has averred that she was previously married and not divorced her previous husband, which implies that there was no relationship of husband-and-wife between the plaintiff and the defendant. It was also evident that the plaintiff has alleged that the defendant was the Benami owner of the disputed property and has claimed the relief that he be declared the real owner of the disputed property as such, the suit was barred by Section 4(1) of the Benami Transactions (Prohibition) Act of 1988. It was also averred that the plaintiff sought declaration of ownership regarding agricultural land situated outside District Gautam Buddha Nagar, the jurisdiction for which vests in the revenue court, as such, the court was not competent to grant that relief. Due to this, the suit was liable to be dismissed under Order 7 Rule 11(d) CPC. 12. The plaintiff opposed the above application of the defendant in the trial court by submitting that provisions of Order 7 Rule 11 CPC was not applicable in the facts and circumstances of the case. The defendant had already executed 15 sale deeds in respect of the disputed property, during the pendency of the suit and intended to sell the remaining property, as such, the defendant's application be rejected. 13. The trial court concluded that undisputedly the lease deed of Noida property was executed on 6.6.2003 in favour of the defendant, there was no proof of possession of plaintiff on the above disputed property. It was further concluded that regarding the other property situated in District Auraiya, no relief can be granted by the court because it was outside the jurisdiction of the court. In view of the above, it was concluded that the plaintiff had no cause of action to file the suit. It was further concluded by the trial court that the plaintiff had not challenged the lease deed dated 6.6.2003 and since there was no dispute regarding its execution, as such, the suit was also barred on this ground. 14. Learned counsel for the plaintiff-appellant submitted that the impugned order of the trial Court is perverse. Learned counsel submitted that at the stage of deciding Order 7 Rule 11 CPC application, only the plaint averments and the documents submitted in support, by the plaintiff are to be examined, neither the written statement of the defendant nor any documents submitted by it, can be looked into by the trial court, while deciding the above application. Learned counsel also submitted that at this stage the merits of the case of plaintiff was also not to be examined. The court was not 4 supposed to examine whether the plaintiff is telling truth or not. 15. Learned counsel further submitted that the trial court erred in concluding that with respect to the property situated in District Auraiya, the court had no jurisdiction to grant any relief to the plaintiff. Learned counsel submitted that since the cause of action between the plaintiff and defendant is same, as such, under Section 17 of the CPC, the court also had the jurisdiction in respect of the property situated in District Auraiya. 16. Learned counsel further submitted that the plaintiff had specifically averred that there was relationship of husband-and-wife between the plaintiff and the defendant and for proving this relationship, plaintiff had filed power-of-attorney granted by the defendant in favour of the plaintiff, which specifically mentioned that the defendant was the wife of the plaintiff. Learned counsel further submitted that since there was a relationship of husband-and-wife between the plaintiff and the defendant as such, the disputed property was not a benami property. With these submissions, it was prayed that the appeal be allowed. Learned counsel for the plaintiff / appellant has relied upon the following judgments in support of his submissions:- (i) Shivnarayan(D) By Lrs. vs. Maniklal(D) Through Lrs. & Ors. (2020)11 SCC 629 (ii) Manoj Arora vs. Mamta Arora 2018 SCC OnLine Del 10423 (iii) Saurabh Gupta vs. Archna Gupta & 2 Ors. 2024 SCC OnLine All 2268 (iv) Gagandeep Kaur vs. Rattandeep Singh Grover & Ors. 2025 Supreme(Online)(Del)3297 17. Per contra, learned counsel for the defendant-respondent submitted that the impugned order of the trial court was perfectly legal because the trial court was not having jurisdiction with respect to the immovable property situated in District Auraiya. Learned counsel also submitted that there was no relationship of husband-and- wife between the plaintiff and the defendant. The disputed property was purchased by the defendant, from her own funds, which was self acquired property of defendant, as such, the plaintiff had no right to claim declaration with respect to that property. Learned counsel further submitted that the defendant had already executed several sale deeds of the disputed land regarding which, relief of cancellation of sale deeds had not been claimed by the plaintiff, the plaintiff was also not in possession of the disputed property as such, the plaintiffs suit for simplicitor relief of declaration, without seeking possession of the disputed land and also without seeking cancellation of the sale deeds executed by the defendant in favour of the third parties, was not 5 maintainable and relief of declaration cannot be granted to the plaintiff regarding the disputed property. The plaintiff 's suit was barred by section 34 of the Specific Relief Act. With these submissions, it was prayed that the appeal is meritless and is liable to be dismissed.
Legal Reasoning
18. I've heard the learned counsel of both the sides and perused the record of the trial court. 19. The Apex Court in the case of Vinod Infra Developers Ltd. vs. Mahaveer Lunia and others 2025 SCC OnLine SC 1208 has held that at the preliminary stage of deciding Order 7 Rule 11 CPC application, the court is required to confine its examination strictly to the averments made in the plaint and not venture into the merits or veracity of the claims. If any triable issues arise from the pleadings, the suit cannot be summarily rejected. 20. The Apex Court in the case of Keshav Sood vs. Kirti Pradeep Sood and others 2023 SCC OnLine SC 2459 has held that the scope of Rule 11 of Order 7 of CPC is concerned, the law is well settled. The court can look into only the averments made in the plaint and at the highest, documents produced along with the plaint. The defence of defendant and documents relied upon by him cannot be looked into while deciding such application. 21. The Apex Court in the case of Shivnarayan(dead) by Lrs.(supra), while discussing the place of suing, where the immovable property or properties is situate in jurisdiction of different courts, held as under:- “33. Sections 16 and 17 CPC are part of the one statutory scheme. Section 16 contains general principle that suits are to be instituted where subject-matter is situate whereas Section 17 engrafts an exception to the general rule as occurring in Section 16. 34. From the foregoing discussions, we arrive at the following conclusions with regard to ambit and scope of Section 17 CPC: 34.1. The word “property” occurring in Section 17 although has been used in “singular” but by virtue of Section 13 of the General Clauses Act it may also be read as “plural” i.e. “properties”. 34.2. The expression “any portion of the property” can be read as portion of one or more properties situated in jurisdiction of different courts and can be also read as portion of several properties situated in jurisdiction of different courts. 34.3. A suit in respect of immovable property or properties situate in jurisdiction of different courts 6 may be instituted in any court within whose local limits of jurisdiction, any portion of the property or one or more properties may be situated. 34.4. A suit in respect of more than one property situated in jurisdiction of different courts can be instituted in a court within local limits of jurisdiction where one or more properties are situated provided suit is based on same cause of action with respect to the properties situated in jurisdiction of different courts.” 22. It is apparent from the above law laid down by the Apex Court in the case of Vinod Infra Developers Ltd.(supra) and Keshav Sood(supra) that at the time of deciding Order 7 Rule 11 CPC application, the court has to look into only the averments made in the plaint and the documents submitted by the plaintiff. The court has not to examine the written statement of the defendant or the documents submitted by it. Further, the court has also not to examine the plaintiffs case on merit to determine whether he is going to succeed or not ? It is also apparent that if any triable issue arises out of the pleadings of the plaintiff, then the plaint cannot be summarily rejected. 23. From the law laid down by the Apex Court in the case of Shivnarayan(supra) it is clear that Section 17 of the CPC can be applied in the event there are several properties, one or more of which may be located in different jurisdiction of Courts. It is also clear that the suit filed in a court pertaining to properties situate in jurisdiction of more than two courts, the suit is maintainable only, when it is filed on one cause of action. It is clear that the suit in respect of immovable property or properties situate in jurisdiction of different courts may be instituted in any court within whose local limits of jurisdiction, any portion of the property or one or more properties may be situated. 24. It is apparent that in the instant case one immovable property is situated in District Gautam Buddha Nagar and the other is situated in District Auraiya as such, the plaintiff can file suit for declaration of his rights in the above properties, in any court within whose local limits of jurisdiction any portion of the property or one property is situated. In this case, the plaintiff could have filed the suit either in the court of District Gautam Buddha Nagar or in Auraiya, but he has chosen to file the suit in the court of District Gautam Buddha Nagar, which cannot be said to be barred, insofar as the issue of jurisdiction of the court is concerned. From the above law laid down by the Apex Court in the case of Shivnarayan(supra) it is clear that the suit filed by the plaintiff claiming the relief of declaration of ownership of the disputed property held in the jurisdiction of district court Gautam Buddha Nagar and Auraiya, is maintainable in the civil court of 7 District Gautam Buddha Nagar, because the cause of action of both the suits was same. The plaintiff was claiming declaration in respect of both the disputed properties on the ground that he was the real owner of these properties and the defendant, his alleged wife, was only benami owner. 25. It is also apparent that the plaintiff has specifically averred that his marriage was solemnised with the defendant on 4.3.2000 as per rights and rituals of the Arya Samaj in Noida. The plaintiff has also filed the copy of the power-of-attorney dated 27.4.2013 executed by the defendant in favour of plaintiff, in which it is specifically averred that the plaintiff is the husband of defendant. This power-of-attorney relates to the disputed immovable property situated in District Auraiya. 26. It is also apparent that the trial court concluded in the impugned order that the disputed property belongs to the defendant and there was no dispute about this, which is totally incorrect because, the plaintiff has alleged in the plaint that he was the real owner of the disputed property, the disputed property was purchased from his money, only on the pressure exerted by the defendant. It has been specifically averred by the plaintiff that he was the real owner of the disputed property and the defendant was in reality, the benami owner. 27. Besides this, the plaintiff also averred in the plaint that he was in possession of the disputed property. The trial court was not supposed to examine the issue of possession on merits at that stage, by holding that no documentary proof regarding possession has been filed by the plaintiff. If any documentary proof was ever required, then a copy of the above mentioned power-of-attorney dated 27.4.2013 itself was sufficient to prima-facie prove the possession of the plaintiff, in which, the address of the plaintiff is recorded as C-20/6B, sector 62, Noida, Gautam Buddha Nagar, which is also the address of the disputed property. 28. The trial court also concluded in the impugned order that the lease deed of the disputed property situated in Gautam Buddha Nagar was executed in favour of the defendant by Noida on 6.6.2003 but in the instant suit filed in the year 2017, the plaintiff has not claimed the relief of cancellation of the above lease deed as such, the suit was also barred by law. 29. It is also apparent that though the defendant had taken a plea in her Order 7 Rule 11 CPC application that the plaintiff 's suit was barred under Section 4(1) of the Benami Transactions(Prohibition) Act, 1988 but the trial court did not record any finding on this. However, this issue has been pressed by the learned counsel for the 8 defendant-respondent, as such, this Court has deemed appropriate to record its finding on that issue. 30. For appreciating the controversy in correct perspective, it will be appropriate to examine the relevant provisions of The Benami Transactions (Prohibition) Act,1988. Section 2(a), 2(c), 3 and 4, of the Act, insofar as they are relevant, reads as under:- “2.Definitions.-In this Act, unless the context otherwise, requires,— (a) “benami transaction” means any transaction in which property is transferred to one person for a consideration paid or provided by another person; *** *** *** (c) “property” means property of any kind, whether movable or immovable, tangible or intangible, and includes any right or interest in such property. 3. Prohibition of benami transactions.- (1) No person shall enter into any benami transaction. (2) Nothing in sub-section (1) shall apply to- (a) the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter; (b) ******* Explanation-******* (3)******* (4)******* 4. Prohibition of the right to recover property held benami.- (1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property. (2)No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property. (3) Nothing in this section shall apply,— (a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or 9 (b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity.” 31. The Apex Court in the case of Pushpalata vs. Vijay Kumar(Dead) through Lrs. and others 2022 SCC OnLine SC 1152, while discussing the circumstances which can be taken as a guide to determine the nature of the transaction, held as under:-