Ankit Bhargava vs Madhu Anand Major and 9 Others

The instant second appeal has been preferred by plaintiff/appellant against the judgment and decree dated 18.02.2025 passed by learned Additional District Judge Court No.2, Sitapur in Civil Appeal No.104 of 2023 "Ankit Bhargava versus Smt. Madhu Anand & others" and judgment and decree dated 17.10.2023 passed by learned SCC Judge/ Civil Judge (Senior Division), Sitapur in Civil Suit No.1239 of 2012 "Ankit Bhargava versus Murli Manohar Bhargava & others", by which the plaint has been rejected under Order VII Rule 11 C.P.C. and the first appeal filed by the plaintiff/appellant under Section 96 C.P.C. has been dismissed.

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Learned counsel for the plaintiff/appellant submitted that the plaintiff/appellant had filed an Original Suit No.1239 of 2012 against the defendants/respondents for the relief of partition of 1/4th share of the property in suit, which is in the form of grove land and earmarked by letters above saw the red color which situates in the village Chhavni, Gora Barik, Pargana Khairabad, Tehsil and District Sitapur. The boundaries of the land in suit have also been given at the foot of the plaint. The parties derive their lineage through common ancestor, Krishna Kumar Bhargava, and they belong to the branch of Murli Manohar Bhargava. The original

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defendant no.1 and their parties were co-parceners in Hindu joint family consisting of plaintiff, his father and siblings. A private partition took place amongst Murli Manohar Bhargava, Ram Manohar Bhargava, and Saroj Bhargava, who were siblings; the memo of the private partition was prepared and signed on 04.03.2004. By way of the private partition, the land in suit came to the share of Murli Manohar Bhargava and his sons and daughter. The property in suit was earned by Krishna Kumar Bhargava, the great-grandfather of the plaintiff. The plaintiff seeks to get his own 1/4th share from the suit property partitioned from his co-sharers, which required filing of present suit. The father of the plaintiff, defendant no.1, suffered a paralytic attack on 02.08.2007, which hampered his mental faculties and other defendants, taking undue advantage of his infirmity, got a number of sale deeds executed by him. The plaintiff came to know about these nefarious acts of the defendants when one of them issued a public advertisement in newspaper for sale of plots.

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He next submits that, during the pendency of the suit, defendant no.11 moved an application under Order VII Rule 11 CPC and Section 34 of the SARFAESI Act for dismissal of the suit or rejection of the plaint under the relevant provisions of law, or, in the alternative, to return the plaint to the plaintiff with a direction for presentation before the appropriate forum. It is stated in the application that the defendants had advanced various financial assistance to the firms, namely, M/s Balaji Furniture and M/s Sitapur Communications, of which other private defendants of the case are either proprietors or guarantors. The said loan accounts had become irregular due to non-payment of various dues from the borrowers and guarantors. The aforesaid loan accounts were declared as nonperforming assets and the majors for outstanding amounts in the said loan accounts were initiated by the defendant Bank.

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The suit filed by the plaintiff is based on false, malafide and concocted allegations and this Court has no jurisdiction to proceed any further against the applicant Bank. It is also stated that the suit was also barred by limitation. There is a defect of partial partition and improper valuation and payment of the deficient court fees in the application.

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He next submitted that another application under Order VII Rule 11

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CPC read with Section 34 of the SARFAESI Act, was moved on 04.01.2013 by defendant nos.4 and 5 wherein, it is stated that, as per newspaper report, the proceedings under the SARFAESI Act are underway in matter of the suit, therefore, the suit is barred under Section 34 of the SARFESI Act. They did not press earlier application under Order VII Rule 11 CPC dated 18.11.2012. The plaintiff filed objection on these applications, wherein he stated that the relief claimed by the plaintiff regarding partition of his share from his co-sharers has nothing to do with the proceedings under Section 34 of the SARFAESI Act and the defendants cannot take a plea which is outside the scope of the plaint allegations.

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Learned counsel also submitted that the learned Civil Judge wrongly allowed the application filed by the defendants under Order VII Rules 10 and 11 CPC and dismissed the suit by framing three issues of law and deciding the same against the plaintiff. He also submitted that the learned trial court took a course contrary to law while dismissing the suit of the plaintiff by framing three issues before filing of written statement by defendant on applications filed by the defendants nos.4 to 9 and 11. Learned appellate court has also dismissed the appeal of the plaintiff taking a cursory approach without considering the grounds taken in appeal in right perspective.

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He next submitted that the learned trial court, as an appellate court, failed to appreciate this fact that the court of the Civil Judge (Senior Division) is a court of unlimited jurisdiction and the suit cannot be dismissed on the ground of pecuniary jurisdiction of the court. Findings recorded by both the courts below are perverse with regard to issue no.1. Learned courts below have decided issue no.2 with regard to the limitation of the suit without considering the fact that the suit is for partition and injunction where no limitation is prescribed as the cause of action is recurring and continuous. Both the courts below failed to consider in the issue no.3 that after the entire repayment and release of the mortgaged property, it did not exceed. Learned courts below have travelled beyond the scope of Order VII Rule 11 CPC, as an application under this provision for rejection of plaint can only be considered within the parameters of the plaint averments.

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Per contra, learned counsel for the respondents submitted that there is no factual or legal error in the judgments of both the courts below. The suit of the plaintiff is barred by law and the learned trial court has rightly dismissed the suit on three legal issues, and the same has been affirmed by the appellate court. The concurrent findings of both the courts below, which are based on evidence on record, need not be interfered with in second appeal.

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Learned counsel for the respondents placed reliance on Angadi Chandranna Vs. Shankar & ors., 2025 LiveLaw (SC) 494, Smt. Kailasho and another Vs. Smt. Anandi Devi & ors., AIR 2007 All 163, Devinder Singh and others Vs. State of U.P. & others, 2009(4) ALJ (NOC) 597 (ALL.), Madanuri Sri Rama Chandra Murthy Vs. Syed Jalal, (2017) 13 SCC 174, Shri Mukund Bhavan Trust and others Vs. Shrimant Chhatrapati Udayan Raje Pratapsinh Maharaj Bhonsle & another, (2024) 15 SCC 675, Ureha & another Vs. Bharose & others, Second Appeal No.732 of 2016, decided on 31.08.2022 (Allahabad High Court), Jharkhand State Housing Board Vs. Didar Singh & another, (2019) 17 SCC 692 (Supreme Court).

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In Angadi Chandranna (supra) Hon'ble Supreme Court held that it is also a well-established doctrine of Hindu Law that property which was originally self-acquired may become joint property if it has been voluntarily thrown by the coparcener into the joint stock with the intention of abandoning all separate claims upto it. But the question whether the coparcener has done so or not is entirely a question of fact to be decided in the light of all the circumstances of the case. It must be established that there was a clear intention on the part of the coparcener to waive his separate rights and such an intention will not be inferred from acts which may have been done from kindness or affection.

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In Smt. Kailasho and another (supra) this Court held that a person having no interest in the property had no locus standi to challenge the sale.

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In Devinder Singh and others (supra) this Court helf that concept of a Joint Hindu Family property where sons may have right by birth in

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ancestral property which is in the hand of their father is not applicable to agricultural land in U.P. which is governed by U.P.Z.A. and L.R. Act.

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In Madanuri Sri Rama Chandra Murthy (supra) it was held that even when, the allegations made in the plaint are taken to be correct as a whole on their face value, if they show that the suit is barred by any law, or do not disclose cause of action, the application for rejection of plaint can be entertained and the power under Order VII Rule 11 of CPC can be exercised.

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In Shri Mukund Bhavan Trust and others (supra) Hon'ble Supreme Court held that when upon meaningful reading of the plaint, the court can come to a conclusion that under the given circumstances, after dissecting the vices of clever drafting creating an illusion of cause of action, the suit is hopelessly barred and the plaint can be rejected under Order VII Rule 11.

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At this juncture, we wish to observe that we are not unmindful of the position of law that limitation is a mixed question of fact and law and the question of rejecting the plaint on that score has to be decided after weighing the evidence on record. However, in cases like this, where it is glaring from the plaint averments that the suit is hopelessly barred by limitation, the Courts should not be hesitant in granting the relief and drive the parties back to the trial Court.

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In Ureha & another Vs. Bharose & others (supra) this Court held that law is well settled that if plaintiff is not recorded ind the revenue records, he cannot maintain a civil suit rather plaintiff can avail the remedy revenue record for declaration of their rights and title.

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In Jharkhand State Housing Board (supra) Hon'ble Supreme Court held that it is well settled by catena of judgments of this Court that in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of declaration. A suit for mere injunction does not lie only when the defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction.

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I have gone through the record and in light of the submissions made by learned counsel for the parties, the appeal is admitted on the substantial questions of law proposed in the memo of appeal at serial nos.A, B, C, D, and E.

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Admit.

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Summon the lower court record.

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Steps be taken within 3 weeks.

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Issue notice to respondents, if any, who are not represented by Shri Sankalp Mehrotra, learned counsel for the respondents.

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List on 07.01.2026.

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In the meanwhile, it is directed that the parties shall maintain status quo of the property as it exists today and no third-party interest would be created by them, till the next date of listing.

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(Ram Manohar Narayan Mishra,J.)

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November 10, 2025

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Mohd. Sharif

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Digitally signed by :- MOHAMMAD SHARIF High Court of Judicature at Allahabad, Lucknow Bench

Ankit Bhargava v. Madhu Anand Major and 9 Others

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Ankit Bhargava v. Madhu Anand Major and 9 Others

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