Court No. - 18
Case :- WRIT - B No. - 2303 of 2019 Petitioner :- Roshan Singh Alias Bunti Respondent :- Board Of Revenue And 5 Others Counsel for Petitioner :- Santosh Kumar Srivastava,Karuna Srivastava Counsel for Respondent :- C.S.C.,Mahesh Narain Singh
Hon'ble J.J. Munir,J.
Heard Sri Santosh Kumar Srivastava, learned counsel for the petitioner, Sri A.K. Umrao, Advocate, holding brief of Sri Mahesh Narain Singh, learned Standing Counsel appearing for respondent No.4-Gaon Sabha, and Sri G.S. Chauhan, learned Standing Counsel appearing on behalf of respondent Nos. 1, 2 and 3.
This petition is directed against an order passed by the Board of Revenue, Circuit Court-1, Meerut, dated 08.08.2019, in Revision No.26 of 2012, preferred from an order dated 13.02.2012, passed by the Additional Commissioner, Meerut Division Meerut, in Revision No.44 of 2011, whereby allowing that Revision preferred by plaintiff-respondent Nos. 5 and 6, an order of the Sub- Divisional Officer, Hapur in Suit No.5/2009-10 under Section 229-B U.P. Zamindari Abolition and Land Reforms Act, rejecting the plaint under Order VII Rule 11 CPC has been set aside. The Additional Commissioner set aside the order of the Sub-Divisional Officer, dated 26.11.2010, last mentioned and ordered the suit to be tried on merits. The case of the defendant-petitioner is that the original land holder was one Balbeer Singh, grandfather of the petitioner, who executed a Will in favour of the petitioner dated 06.06.1977, relating to Plot No.217, admeasuing 1 Bigha, 9 Biswa and 6 biswansi. The Will is an unregistered document. It appears that an application seeking mutation on the basis of the said Will, after the death of Balbeer, was filed by the petitioner when succession opened out. The aforesaid mutation case was registered as Case No.19. The said application was allowed vide order dated 13.10.1987, granting mutation in favour of the petitioner, in consequence of which his name came to be recorded over the land in dispute.
Charan Singh, father of respondent Nos. 5 and 6, filed a Recall Application seeking to recall the order dated 13.10.1987, granting mutation in favour of the petitioner. The said application was rejected by the Tehsildar Hapur, vide order dated 04.02.1989. Charan Singh, again filed a Restoration Application where the parties entered into a compromise on 18.11.1991. The aforesaid compromise was recorded after parties were identified by counsel and a final order was passed on 25.11.1991 by the Tehsildar, Hapur expunging the name of the petitioner's grandfather, Balbeer Singh and recording the name of the petitioner over Plot No.213, admeasuring 1 Bigha, 9 Biswa and 6 biswansi. Charan Singh, father of respondent Nos.5 and 6, filed Suit No.56 of 2006, under Section 229-B U.P. Zamindari Abolition and Land Reforms Act, on 13.07.2006 before the Assistant Collector, First Class, Hapur for a declaration of title over the land in dispute with a prayer that the plaintiff Charan Singh be declared owner on the basis of intestate succession, being a brother of original land holder, Balbeer Singh. It was claimed in the Suit for declaration that the plaintiff had got his name recorded on the basis of the Will dated 06.06.1977 by playing fraud. Pending suit Charan Singh died, leaving behind respondent Nos. 5 and 6, as well as his widow as his heirs and legal representatives. Respondent Nos. 5 and 6 have been substituted in the Suit, in place of Charan Singh. The petitioner filed a written statement in the Suit and also an application under Order VII Rule 11 CPC, asking the plaint to be rejected.
The basis of the claim in the application under Order VII Rule 11 CPC was that cause of action is ex facie barred by limitation and, therefore, the plaint should be rejected. The Trial Court had proceeded to frame issues where one of the issues, that is to say, issue No.4 is about the Suit being barred by limitation. Nevertheless, the Trial Court heard the application under Order VII Rule 11 CPC, wherein the Trial Court went into the entire case of parties, including the compromise entered into in the mutation proceedings, and looked into the evidence in order to come to a conclusion that the Suit was barred by limitation. The Trial Court on finding that the Suit was barred by limitation, allowed the application under Order VII Rule 11 CPC and rejected the plaint. The plaintiff-respondent Nos. 5 and 6 carried a Revision to the Commissioner, Meerut Division Meerut, which came up for determination before the Additional Commissioner. The Additional Commissioner proceeded to hold in a short judgment that the scope of jurisdiction under Order VII Rule 11 CPC, is confined to exercise of it on the basis of the plaint allegations alone. The jurisdiction cannot be exercised with reference to evidence on record. It cannot be the decision of the Suit itself. Holding so, the Commissioner by his order dated 13.02.2012, set aside the order of the Trial Court dated 26.11.2010 and directed the Trial Court to proceed on merits.
Aggrieved by the said order, the defendant-petitioner carried a Revision to the Board of Revenue, Circuit Court- 1, Meerut. The Board, by its order impugned dated 08.08.2019, for the same reasons, as those that weighed with the Additional Commissioner, has dismissed the Revision and approved the Additional Commissioner's order.
Sri Santosh Kumar Srivastava, learned counsel for the petitioner has strenuously argued that the Suit is ex facie barred by limitation, as it was filed on 13.07.2006, whereas the mutation had been granted initially in favour of the petitioner on 13.10.1982. Thereafter, a compromise on 25.11.1991 was recorded. He submits that a Suit filed to undo rights that have been recorded in the revenue records finally in the year 1991, 15 years afterwards, is clearly barred by limitation, which does not require trial.
This Court has perused the plaint, a copy of which is annexed as Annexure-3 to the writ petition. A perusal of paragraphs 5, 6, 7 and 8 of the plaint shows that the plaintiff has come forward seeking declaration of his rights to Khasra No.213, admeasuring 1 Bigha, 9 Biswa and 6 biswansi situate at Village Kheda, Pargana Dasna, District Hapur, (then Ghaziabad) and to hold the Will dated 06.06.1977 void. The cause of action clearly indicates that the petitioner alleges fraud played upon him by the defendants. It has been averred in paragraph-6 of the plaint that the fact that the name of the defendants had been recorded over the property in dispute, was kept back from the plaintiff until the month of May, 2006. It is claimed that the plaintiff Charan Singh, never knew it before the said date. It is claimed by the plaintiff that he is a co-sharer along with deceased, Balbeer Singh through whom the defendants claim, on the basis of a Will. It is also averred in paragraph-8 that the entire mutation proceedings, wherein the order dated 18.11.1998 has been passed in favour of the defendant, were all taken behind his back. These are pleadings which prima facie require to be examined on the basis of evidence, even if the cause of action is ultimately held to be barred by limitation. It is not a case where on a reading of the plaint, the cause of action is ex facie barred by limitation. The law about exercise of jurisdiction under Order VII Rule 11 CPC is settled beyond the slightest doubt. It is that, that allegations in the plaint alone are to be seen, in order to determine whether the plaint is to be rejected, on any of the grounds mentioned in Order VII Rule 11 CPC. The defence put forward by the defendant or the evidence is not at all to be considered. The jurisdiction under Order VII Rule 11 CPC is not to be utilized as a trial before the trial.
The Additional Commissioner, therefore, in the opinion of this Court, has rightly held that it is not a case where the Trial Court ought reject the plaint in exercise of jurisdiction under Order VII Rule 11 CPC. The Board also have rightly approved the order passed by the Additional Commissioner, upon the defendant's Revision, assailing that order. It may, however, be indicated that refusal of the application under Order VII Rule 11 CPC is in no determination of the issue about limitation. Issue No.4 about limitation has been framed at the instance of the defendant. The said issue will be gone into by the Trial Court, at the appropriate stage, subject to evidence to be led by parties. On the said issue, the Trial Court shall be free to reach its conclusion about the plea as to limitation raised by the defendant, uninfluenced by anything said in this judgment.
Subject to what has been said above, this Court does not find any illegality in the order impugned.
The writ petition fails and is dismissed in limine.
Order Date :- 26.9.2019 NSC