Hon'ble Akhtar Husain Khan, J.
(Per:- Tarun Agarwala, J.) This is a plaintiff's appeal under Section 96 of the Code of Civil Procedure (hereinafter referred to as the CPC) against the judgment and decree of the trial court rejecting the plaint under Order VII, Rule 11 of the CPC.
The plaintiff filed a suit alleging that one Pandit Kalyan Das was the zamindar/owner of a non-zamindari land bearing khasra no.460 having an area of 10 Bighas, 6 Biswas in village Sarjepur now known as Civil Lines in district Agra. Upon the death of Pandit Kalyan Das, the ownership devolved upon his three sons Basant Lal, Amar Nath and Basant Lal in equal shares. It was alleged that Basant Lal died living behind his sons proforma defendant nos.29 and 30. It was contended that Amar Nath and Basant Lal transferred their rights, title and interest in the land in question by two registered transfer deeds dated 1st June, 1984 in favour of the plaintiff and, since then, the plaintiff is the owner and in possession of the land in suit along with defendant nos.29 and 30. It was also alleged that the name of the plaintiff was also mutated in the revenue records. In paragraph 6 of the plaint it was contended that at one point of time the land in question was occupied by one Munni Lal as occupant of Ziman-13 (sayar) under the U.P. Land Record Manual on a rent of Rs.14, 1 Anna and 10 pie per annum. It was further contended that Munni Lal had died and that defendant nos.1 to 5 are their heirs, who are now in possession of the land in suit as occupants. In paragraph 8 of the plaint it was alleged that Munni Lal had no transferable rights in the land in question nor had any right to change the nature of the land and that during the pendency of Suit No.765 of 1986 filed by the appellant against Raj Narayan Sarin and others before the court of Munsif, Agra it came to the knowledge of the plaintiff for the first time that Munni Lal had executed a registered transfer deed dated 14th December, 1940 transferring the land in question to Late Raj Narayan Sarin, father of the defendants second set, alleging therein to be in possession of the land in suit as a permanent tenant. The plaintiff further contended in paragraph 8 that the assertion made in the transfer deed with regard to being a permanent tenant was absolutely false, inasmuch as Munni Lal had no transferable right and that the transfer deed dated 14th December, 1940 did not confer any right, title or interest in the land in suit and that it was a void document.
In paragraph 9, it was alleged that Late Raj Narayan Sarin and the defendants' second set had transferred parcels of land in question to the defendants third set by means of various transfer deeds and that these transfer deeds are without any authority of law, illegal and are null and void. In paragraph 10, it was alleged that the defendants second and third set have raised unauthorized construction on the land in question and that they have no right to retain possession or raise construction. In paragraph 12, the plaintiff alleged that he had requested the defendants not to raise any construction and surrender its possession to the plaintiff after removal of the construction. In paragraph 14, the plaintiff alleged that the defendants have no right to retain their possession. In paragraph 15, the plaintiff contended that he is entitled to possession of the land by dispossession of defendants first, second and third set and that the plaintiff was entitled to Rs.42.53 paise as Sayar from the defendants first set for the last three years up to the date of the suit and that the plaintiff was further entitled for possession for use and occupation pendentilite and future at the rate of Rs.5000/- per day from the defendant nos.1 to 27. In paragraph 16, the plaintiff alleged that the cause of action arose at Agra lastly on or about 12th December, 2000 when the defendants first, second and third set refused to surrender possession. Accordingly, the plaintiff prayed for the following reliefs:-
A. That the plaintiff and the proforma defendants be granted possession over the land in suit by dispossession of the defendants Ist set, IInd set and IIIrd set and persons claiming through them by removal of all construction.
B. That the judgment and decree for recovery of Rs.42.35 be passed against the defendants first set.
C. That the defendants Ist set, IInd set and IIIrd set their agents/ employees, transferees or any other persons claiming through them be restrained by a permanent prohibitory injunction order from transferring the land in suit or any portion thereof and from raising any further construction or from causing to be raised over the land in suit or any portion thereof or in any manner whatsoever.
D. That compensation for use and occupation pendentilite and future be awarded @ of Rs.5,000/- per day to the plaintiff together with interest at the bank rate of Rs.18% per annum against the defendants.
E. That the cost of suit be awarded to the plaintiff.
F. Any other relief be granted to the plaintiff and proforma defendants to which they may be found entitled.
Defendant nos. 6 to 10, 7 to 13, 14 to 18 and 23 to 24 filed separate applications under Order VII, Rule 11 of the CPC contending that three suits have been filed by the plaintiff against Raj Narayan Sarin and their sons and that the litigation has been going on since 1986 for the last 17 years. It was contended that the three suits were against the same property having an area of 27,000 sq. yards. It was contended that in all the three suits there was a common allegation that Raj Narayan Sarin had purchased the property from Munni Lal, who had no right to transfer the land in question. It was contended that the two previous suits were only for injunction in which the prayer was that the defendants should be restrained from selling the land in question whereas the present suit is for possession of the land in suit. It was contended that the present suit for possession was barred by Order II, Rule 2 of the CPC.
It is contended that the first Suit No.675 of 1986 was filed on 22nd July, 1986 before the court of Munsif, Agra praying that the defendants be restrained from selling or transferring the land in suit. The Munsif, Agra by an order dated 18th August, 1987 held that the suit was under valued and that court fee paid was insufficient holding that the valuation of the property had to be valued on its market value since it was not being used for agriculture. The plaintiff, being aggrieved by the said order, filed a revision, which was rejected by an order dated 18th December, 1987 by the Additional District Judge-VIth, Agra. The plaintiff thereafter filed Writ Petition No.857 of 1988, which was dismissed by the High Court by a judgment dated 7th December, 1989. The plaintiff thereafter preferred a special leave petition, which was rejected by a judgment dated 4th April, 1990. Subsequently, the Munsif, Agra returned the plaint to be presented before the appropriate court and upon presentation of the plaint before the appropriate court, the suit was numbered as Suit No.1202 of 1990. On 19th May, 1992, the suit was dismissed in default. A restoration application was filed, which was again dismissed in default on 17th July, 1997. A second restoration application was filed in 1999, which was again dismissed. Thereafter, a third restoration application was filed which again was not pursued by the plaintiff and accordingly, the suit was dismissed for want of prosecution. Soon thereafter, the present Suit No.426 of 2001 was filed on 26th April, 2001.
The defendants further contended that after the dismissal of the appeal by the Supreme Court, another Suit No.499 of 1990 was filed by the son of Munni Lal against Raj Narayan Sarin praying for partition of the land in question and putting Kanhaiya Lal in possession of 6 Bighas, 13 Biswas out of the total area of 10 Bighas, 6 Biswas from the property sold by his father Munni Lal vide transfer deed dated 14th December, 1940. The plaint was rejected under Order VII, Rule 11 of the CPC vide order dated 23rd October, 1992. A First Appeal NO.710 of 1992 was filed by Kanhaiya Lal in the High Court, which was allowed by a judgment dated 15th May, 2000 against which the defendants filed a special leave petition before the Supreme Court, which was allowed by a judgment dated 24th July, 2001, Raj Narayan Sarin (Dead) Through LRs and others Vs. Laxmi Devi and others, 2002 (10) SCC 501. The Supreme Court held:-
...The litigation, in our view, cannot but be termed to be utterly vexatious and abuse of the process of court, more so by reason of the fact that the deed of sale being executed as early as 1941 stands unassailed for a period of over 50 years....
The defendants further contended that Munni Lal in his life time made several transfers of the land, which was in the knowledge of the zamindars, who never objected and that Raj Narayan Sarin and thereafter his heirs are in continuous possession. It was contended that the second suit filed by the plaintiff was hopelessly barred by time as well as barred under Order II, Rule 2 of the CPC.
The trial court, after considering the matter, passed an order rejecting the plaint under Order VII, Rule 11 of the CPC on the ground that the suit was barred under Order II, Rule 2 of the CPC and that the relief of possession claimed by the plaintiff was barred by limitation. The trial court held that in view of the assertion made in paragraph 10 and 16 of the plaint. The plaintiff admitted that the defendants second and third set were in possession of the land in question since 2001 but in Suit No.765 of 1986, the plaintiff admitted that Raj Narayan Sarin was in possession and that he had raised constructions on it. The trial court held that in the earlier suit the plaintiff only claimed a relief of injunction but the relief of possession was also available, which he did not claim and, therefore, the second suit was barred under Order II, Rule 2 of the CPC. The trial court further found that the father of the defendants second set was in possession prior to 1986 as culled out from paragraph 8 of the plaint and, therefore, it could safely be presumed that the defendants were in possession since 1940. The trial court further found that the defendants were in adverse possession as well as in peaceful possession for more than 14 years and, consequently, no cause of action arose and that the plaint was barred by limitation. The plaintiff, being aggrieved by the decision of the trial court, has filed the present appeal.
We have heard Sri Rajiv Mishra along with Sri S.C. Mishra, the learned counsels for the appellant and Sri Ravi Kant, the learned Senior Counsel assisted by Sri Tarun Agrawal, the learned counsel for the defendants second set and Sri P.C. Jain, the learned counsel for defendant nos.13, 21 and 22.
Sri Rajiv Mishra, the learned counsel for the appellant submitted that the trial court has decided the application under Order VII, Rule 11 of the CPC like a preliminary issue. The learned counsel submitted that the trial court, in doing so, has conducted a mini trial and contended that deciding a preliminary issue and deciding an application under Order VII, Rule 11 of the CPC are two different and distinct procedure. The learned counsel submitted that a preliminary issue could only be decided after evidence was led and the court had the advantage of the pleadings and the evidence led by the parties but in an application under Order VII, Rule 11 of the CPC the Court has to look only at the contents of the plaint and that the court could not consider any other material other than the facts that has been stated in the plaint. The learned counsel contended that the cause of action is a bundle of facts, which is clearly discernible from the plaint and could be established by leading evidence. The learned counsel contended vehemently that the plea of Order II, Rule 2 of the CPC and the plea of bar of limitation was a mixed question of fact and of law, which could not be decided on an application under Order VII, Rule 11 of the CPC and that it could only be decided after evidence was led and, therefore, the trial court in the instant case, committed a manifest error of law in considering such aspect and allowing such application and rejecting the plaint. The learned counsel submitted, that in the instant case, the trial court has considered the affidavit of the defendant, which was filed in support of the application under Order VII, Rule 11 of the CPC, which was wholly illegal and outside the scope of Order VII, Rule 11 of the CPC. The learned counsel contended that the trial court could not consider the documents, which were annexed to the affidavit of the defendants at the stage of consideration of the application under Order VII, Rule 11 of the CPC. The learned counsel further submitted that the trial court has drawn inference on possession and such presumption was wholly illegal, which could not be culled out from a bare reading of the plaint allegations. The learned counsel contended that the provisions of Order II, Rule 2 of the CPC could not be invoked, inasmuch as the plaintiff came to know about the sale deed of 1940 only during the pendency of the suit filed in 1986 and, consequently, such assertion could not be raised in that suit. Such assertions, which have now been raised has a different and distinct cause of action and, consequently, the suit could not be found to be barred under Order II, Rule 2 of the CPC.
The learned counsel further stressed that the defendants cannot take a contradictory stand, namely, take a plea of adverse possession and at the same time take a plea of ownership pursuant to the transfer deed of 1940. The learned counsel submitted that the defendants were tenants and had no transferable rights and, therefore, the defendants only had permissive possession and, consequently, a suit for eviction and delivery of possession could be filed at any stage for which the question of limitation does not arise.
In support of his submission on the plea of Order II, Rule 2 of the CPC, the learned counsel placed reliance on various decisions, namely, K. Palaniappa Gounder Vs. Valliammal, AIR 1988 Madras 156, Harishchandra and another Vs. Kailashchandra and another, AIR 1975 Rajasthan 14, M/s Bengal Waterproof Limited Vs. M/s Bombay Waterproof Manufacturing Company and another, AIR 1997 SC 1398, Gurbux Singh Vs. Bhooralal, AIR 1964 SC 1810, Shri Inacio Martins, Deceased through Lrs. Vs. Narayan Hari Naik and others, AIR 1993 SC 1756, Indian Cable Company Limited Vs. Smt. Sumitra Chakraborty, AIR 1985 Calcutta 248, Narashalli Kempanna and others Vs. Narasappa and others, AIR 1989 Karnataka 50 and Saleem Bhai and others Vs. State of Maharashtra and others, 2008 (1) CCC 120 (SC).
On the issue of limitation, the learned counsel placed reliance upon a decision of the Supreme Court C. Natrajan vs Ashim Bai & Anr, AIR 2008 SC 363. The learned counsel contended that the plaint under Order VII, Rule 1(d) of the CPC cannot be rejected on the ground that it was barred by limitation and that the plaint could only be rejected, if it was barred by a provision of law.
On the other hand, Sri Ravi Kant, the learned Senior Counsel contended that the suit is frivolous and vexatious and, on the face of it, was barred by law. The learned Senior Counsel contended that the defendants are in possession since 1940 as is clear from a perusal of a plain reading of the plaint. The learned Senior Counsel vehemently contended that the first suit was filed for a permanent injunction and the relief of possession could have been easily claimed in that suit. Since the same was not claimed, the present suit was barred by Order II, Rule 2 of the CPC. In support of his submission, the learned Senior Counsel placed reliance upon a decision of the Supreme Court in N.V.Srinivasa Murthy and others Vs. Mariyamma (dead) by Proposed LRs and others, 2005 (5) SCC 548 and Hardesh Ores (P) Ltd. Vs. Hede and Company, 2007 (5) SCC 614.
Sri P.C. Jain, the learned counsel appearing for defendant nos. 13, 21 and 22 adopted the arguments of Sri Ravi Kant, the learned Senior Counsel.
In order to proceed further, it would be appropriate to peruse Order VII, Rule 11 of the CPC which reads as under:
"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 written 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."
An application for rejection of the plaint can be filed if the allegation made in the plaint appears to be barred by law. The question as to whether a suit is barred by limitation or not would depend upon the facts and circumstances of each case and, for the said purpose, the assertions made in the plaint are relevant and are only to be considered at this stage.
Other aids such as averments made by defendants by affidavits or documents annexed to the application under Order VII, Rule 11 of the CPC cannot be taken into consideration. The materials, which have come on the record and which are beyond the plaint cannot be taken into consideration while deciding an application under Order VII, Rule 11 of the CPC.
For the purpose of deciding an application under Order VII, Rule 11 of the CPC, the test is, whether the averments made in the plaint, if taken to be correct in its entirety a decree could be passed or not. The averments made in the plaint as a whole has to be seen in order to find out as to whether clause (d) of Rule 11 of Order VII of the CPC is applicable.
In Hardesh Ores (P) Ltd. (supra) the Supreme Court held that it was not permissible to cull out a sentence or a passage or to read it out of context in isolation and that it is the substance and not merely the form that has to be looked into. In fact, the pleadings has to be construed as it stands without addition or substraction of words.
In Popat and Kotecha Property Vs. State Bank of India Staff Association, 2005 (7) SCC 510, the Supreme Court held:
"Rule 11 of Order VII lays down an independent remedy made available to the defendant to challenge the maintainability of the suit itself, irrespective of his right to contest the same on merits. The law ostensibly does not contemplate any stage when the objections can be raised, and also does not say in express terms about the filing of a written statement. Instead, the word "shall" is used clearly implying thereby that it casts a duty on the court to perform its obligations in rejecting the plaint when the same is hit by any of the infirmities provided in the four clauses of Rule 11, even without intervention of the defendant. In any event, rejection of the plaint under Rule 11 does not preclude the plaintiffs from presenting a fresh plaint in terms of Rule 13."
In the light of the aforesaid, the contention of the appellant that the plaint under Order VII, Rule 11 (d) cannot be rejected on the ground that it was barred by limitation and that it could only be rejected on the ground that it was barred by a provision of law is patently erroneous. This issue has now been settled by the Supreme Court in Hardes Ores Pvt. Ltd. (supra) where in the Supreme Court held that the word "law" within the meaning of clause-(d) of Order VII, Rule 11 of the CPC must include the law of limitation as well.
From a perusal of paragraph 1, 2, 3 and 4 of the plaint, it is apparently clear that the appellant contends his ownership on the land in question from the original owners by virtue of the transfer deed dated 1st June, 1984. It is clear that the appellant steps into the shoes of his predecessors. In paragraph 6 and 7 of the plaint, the appellant contends that the land in question at one point of time was occupied by Munni Lal as a tenant of the original owners and was paying rent and that the defendants and his heirs are now in possession. In paragraph 8 of the plaint, the appellant contends that Munni Lal had no right to transfer the land in question and that he came to know for the first time in Suit No.765 of 1986 that Munni Lal had transferred the land to Raj Narayan Sarin by means of a registered transfer deed dated 14th December, 1940 in which Munni Lal alleged himself to be in possession of the land in suit as a permanent tenant thereof. In the said paragraph, the appellant further contended that Munni Lal had no transferable right and that he was a mere occupant of Ziman-13 (sayar). In paragraph 10 of the plaint, the appellant has contended that the defendants 2nd and 3rd set have no right to retain possession and have raised unauthorized construction. In paragraph 14 of the plaint, the appellant has again reiterated that the defendants have no right to retain possession.
In the light of the aforesaid averments, it is clear that the plaintiff alleges that Munni Lal was only an occupant and had no transferable right to transfer the land to the predecessor of the present defendants. Admittedly, a registered transfer deed of 1940 came into existence. If the tenant, namely, Munni Lal had no transferable right and had still transferred the property, he became liable for ejectment under Section 171 of the United Provinces Tenancy Act, 1939. There is nothing on record to indicate that any action was taken by the predecessor of the plaintiff-appellant for eviction against Munni Lal. Under Article 142 and 144 of the Limitation Act, 1908 it was obligatory on the part of the plaintiff to aver and plead that he not only had title over the property but was also in possession of the same for a period of more than 12 years. This had not been done by the predecessor of the plaintiff-appellant against Munni Lal.
On the other hand, the plaintiff alleges in paragraph 8 of the plaint that he came to know for the first time in Suit No.765 of 1986 about the alleged transfer deed dated 14th December, 1940 executed by Munni Lal in favour of Raj Narayan Sarin father of the defendants 2nd set. It was at that stage, the plaintiff-appellant could have filed a suit for eviction and for possession but he chose to wait 15 long years and filed the present suit in the year 2001. Under Article 65 of the Limitation Act, 1963 a suit for possession of immovable property based on title can be filed within 12 years from the date when possession of the defendant became adverse to the plaintiff. A perusal of various paragraphs of the plaint will clearly indicate that no specific date has been indicated as to when Munni Lal came into possession or his heirs came into possession. No specific date has been mentioned as to when the plaintiff got dispossessed by the defendants after he allegedly became the owner. In order to file a suit, it is necessary for the plaintiff to aver that he not only had title over the property but that he haD recently been dispossessed within 12 years from the date of filing of the suit.
A perusal of the various paragraphs of the plaint makes it apparently clear that the plaint was cleverly drafted in order to get over the period of limitation. The law is well settled that the dexterity of the draftsman by camouflaging the real cause action in a plaint cannot defeat the right of the defendant to get the suit dismissed on the ground of limitation.
In the instant case, we find that there is nothing to indicate as to when the plaintiff was dispossessed by the defendants. On the other hand, paragraphs 6, 7, 8, 10 and 14 of the plaint makes it apparently clear that the predecessor of the defendants were occupants of the land in question and have been in possession thereof. Such possession became permanent by virtue of transfer deed dated 14th December, 1940. It is alleged that the plaintiff came to know about this transfer deed of 1940 in Suit No.765 of 1986 but no action was taken to file a suit for eviction at that stage. The suit, which has now been filed after 15 long years from the alleged date of knowledge is hopelessly barred by law.
In the light of the aforesaid, even though we find that the trial court had taken a wrong approach in considering the affidavits and documents annexed to the application under Order VII, Rule 11 of the CPC, in the ultimate analysis, the trial court came to the correct conclusion in holding that the suit was barred by limitation. Consequently, we have no hesitation in affirming the finding of the trial court on the issue of limitation, though on a different reasoning and, consequently, on this ground alone the plaint was rightly rejected.
For the reasons stated herein aforesaid, it is not necessary for us to go into the question as to whether the trial court was also justified in holding that the suit was barred under Order II, Rule 2 of the CPC.
For the reasons stated aforesaid, we do not find any merit in the appeal and is dismissed.
In the circumstances of the case, parties shall bear their own cost.