Dismissed¶15

Tyab Khan @ Taiyab Khan v. Sahabana Khatun and Ors.

Calcutta HC22 Feb 2024CO/468/2024

Case brief

AI extract

What is this about?

Order VII Rule 11 rejection of plaint upheld; suit for declaration of title and permanent injunction without a prayer for recovery of possession held not barred by law where the plaint shows the plaintiff's possession and permissive residence of defendant relatives; actual possession a triable issue; counsel invoked the Specific Relief Act; Title Suit No.107 of 2015, Asansol, Paschim Bardhaman; Tyab Khan @ Taiyab Khan v. Sahabana Khatun & Ors.; Shampa Sarkar, J.; revisional application dismissed, no order as to costs.

What did the court decide?

Paragraph 5 of the plaint specifically avers that the plaintiff and her husband permitted the defendants, out of good gesture and love and affection, to reside in the suit premises along with them. ¶13

Tyab Khan @ Taiyab Khan Vs Sahabana Khatun and Ors. — Specific Performance | Calcutta HC (2024)

What the court decided

AI extract

Outcome

Dismissed

¶15

Issue for consideration

Whether the plaint in Title Suit No.107 of 2015 is barred by any law—and thus rejectable under Order VII Rule 11—for want of a prayer for recovery of possession. +1 more

¶14

Court's answer

A complete and meaningful reading of the plaint does not indicate that the suit is barred by any law.

¶14

Ratio / Principle

Paragraph 5 of the plaint specifically avers that the plaintiff and her husband permitted the defendants, out of good gesture and love and affection, to reside in the suit premises along with them.

¶13

Key takeaways

The plaint case is that the defendants were relatives of the plaintiff who had permitted them to reside with her, and the plaint indicates the plaintiff's possession; therefore a prayer for recovery of possession would not be necessary.ratio¶14
Whether the plaintiff is actually in possession is a triable issue; only thereafter can the court decide whether the suit should fail for absence of such a prayer.ratio¶14
No illegality is found in the impugned order rejecting the Order VII Rule 11 application.

Detailed headnote1 paragraphs

Revisional application C.O. No. 468 of 2024 (Tyab Khan @ Taiyab Khan v. Sahabana Khatun & Ors.), decided 22.02.2024, dismissed with no order as to costs. It challenged the order dated January 24, 2024 of the Civil Judge (Junior Division), 3rd Court, Asansol, Paschim Bardhaman which, in Title Suit No.107 of 2015, had rejected an application under Order VII Rule 11 of the Code of Civil Court (as printed). The Court found no illegality in that rejection: paragraph 5 of the plaint avers that the plaintiff and her husband permitted the defendants—relatives—to reside in the suit premises out of love and affection, and the plaint indicates the plaintiff's possession; hence, in this suit for declaration of title and permanent injunction, a prayer for recovery of possession is not necessary, and a complete and meaningful reading shows the suit is not barred by any law for its absence. Whether the plaintiff is actually in possession is a triable issue, on which alone the suit's fate for want of such a prayer could be decided. Counsel's contention that absence of a recovery-of-possession prayer bars the suit under the Specific Relief Act did not prevail.

¶1

22.02.2024 Sl. No.261(DL) srm

¶2

C.O. No. 468 of 2024

¶3

Tyab Khan @ Taiyab Khan

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Versus

¶5

Sahabana Khatun & Ors.

¶6

Mr. Arup Krishna Das

¶7

…for the Petitioner.

¶8

The revisional application has been filed challenging an order dated January 24, 2024 passed by the learned Civil Judge (Junior Division), 3^rd Court at Asansol, Paschim Bardhaman, in Title Suit No.107 of 2015.

¶9

By the order impugned, the learned Judge rejected an application under Order VII Rule 11 of the Code of Civil Court. The learned court was of the view that the issue whether the defendants were in exclusive possession of the suit property or whether the plaintiff and the defendants together were in possession of the suit property, could not be adjudicated without leading evidence. At the nascent stage, the plaint could not be rejected. The learned court was of the view that the application was filed at the stage of evidence of DW, only to cause unnecessary delay.

¶10

Learned Advocate for the petitioner submits that in a suit for declaration of title and permanent injunction, a prayer

¶11

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for recovery of possession is essential. Without such prayer, the suit would be barred under the Specific Relief Act.

¶13

This Court finds that in paragraph 5 of the plaint, a specific averment has been made that the plaintiff and her husband, out of good gesture and love and affection had permitted the defendants to reside in the suit premises along with them. The defendants had been creating unnecessary disturbance. They caused interference with the plaintiff’s enjoyment of the suit property. Hence, the suit was filed.

¶14

I do not find any illegality in the order impugned. The plaint case is that the defendants were relatives of the plaintiff and the plaintiff had permitted the defendants to reside with the plaintiff in the suit property. The plaint indicates that the plaintiff is in possession of the suit property. Here, a prayer for recovery of possession would not be necessary. Whether the plaintiff is actually in possession or not, is a triable issue only then can the court decide whether the suit should fail in the absence of such prayer. A complete and meaningful reading of the plaint, does not indicate that the suit is barred by any law.

¶15

Accordingly, the revisional application is dismissed. There will be, however, no order as to costs.

¶16

Parties are to act on the basis of the server copy of this order.

¶17

(Shampa Sarkar, J.)

Tyab Khan @ Taiyab Khan v. Sahabana Khatun and Ors.

Case brief

What is this about?

What did the court decide?

Tyab Khan @ Taiyab Khan v. Sahabana Khatun and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

Issues for consideration

Statutes considered

Procedural history

Parties & counsel

Coram

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