High Court dismissed a revision petition challenging the dismissal of an application for return of filed under Order VII Rule 11 CPC in a suit for declaration of title and injunction.
Revision petition dismissed as it was sans substance.
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CR No. 19 of 2023
All are R/o Ward No.8, Bhichpara, Sankra, Police Station Sihawa, Tahsil Nagri, District Dhamtari CG
---- Applicants/Defendants No. 1 to 4 Versus
---- Non-applicant/Defendant No. 5.
| For applicants | : Mr. Kunal Das, Adv. |
|---|---|
| For non-applicants 1 to 4 | : Mr. Sameer Singh, Adv. |
| For R-5/State | : Ms. Binu Sharma, PL. |
Hon'ble Shri Justice N.K. Chandravanshi
Order On Board
2-8-2023
1. With consent, heard the matter finally at motion stage.
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2. This revision has been preferred by the applicants/defendants No. 1 to 4 (hereinafter referred to as ‘defendants’) against order Annexure A-1 dated 16-6-2022 passed by the Civil Judge Class II, Nagari, Distt. Dhamtari (CG) in Civil Suit No. 26A/2021, whereby application filed by the applicants/defendants under Order 7 Rule 11(a) of the Civil Procedure Code, 1908 (in short ‘the CPC’) has been dismissed.
3. Briefly stated facts of the case are that non-applicants No. 1 to 4/ plaintiffs (hereinafter referred to as ‘Plaintiffs’) have filed aforesaid civil suit for declaration of their title over the suit land and grant of permanent injunction against the defendants, stating therein that the suit land is their ancestral property and their ancestors are recorded owner of the suit land, which was recorded in the Adhikar Abhilekh of year 1954-55, since then they are in possession over the suit land, but now it has wrongly been recorded in the land record as government land.
4. Learned counsel for the applicants/defendants submits that plaintiffs themselves have pleaded in their plaint that suit laid is government land/Abadi bhumi, of which, Patta has also been granted to plaintiffs on 21-3-2018 by the Sarpanch of Gram Panchayat, Sankra. It is further contended that Patta granted to the plaintiffs has been cancelled by the Sub Divisional Officer (Revenue) vide order Annexure A-3 dated 28-2-2022 passed in Appeal Revenue Case No. 202110130600014/3 A – 06 year 2021-22. Thus, since Patta granted to the plaintiff has been cancelled by the competent authority, therefore, the suit filed by plaintiffs is not maintainable. This fact has not been considered by learned trial Court. Hence, it is prayed that revision may be allowed and relief be granted to the applicants.
5. Per contra, learned counsel for non-applicants No. 1 to 4 would submit that plaintiffs have specifically pleaded in their plaint para 5 that suit land was recorded in Adhikar Abhilekh of year 1954-55 in the name of their ancestors and since then, they are having possession over suit land. It is well settled that application filed under Order 7 Rule 11 of the
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CPC is considered and decided in accordance with the pleadings made by the plaintiff in his plaint and as per plaint, plaintiffs are claiming their ancestral right over the suit land since 1954-55. Although plaintiffs have also pleaded that Patta has also been given to them in respect of suit land on 21-3-2018, but this pleading is contradictory to earlier pleading made by the plaintiffs. During the course of submission, learned counsel for applicants/defendants stated that plaintiffs are having title over the land, which they are claiming their ancestral property, but they have encroached some of the government land adjoining to their land.
6. Considering the facts narrated by counsel for parties before this Court, it seems that plaintiffs are claiming their right over the suit land bearing new Khasra No. 1477/523 area 585 Sq. Ft. and they have encroached over some adjoining government land also, as stated by learned counsel for the applicants during the course of submission, but only because of this fact, it cannot be held that the suit filed by the plaintiffs is not maintainable under the provisions of Order 7 Rule 11 (a) of the CPC.
7. In view of above, in the considered opinion of this Court, the trial Court has not committed any error in dismissing the application filed by the applicants under Order 7 Rule 11(a) of the C.P.C.
8. Hence, the revision being sans substance, deserves to be and is hereby dismissed.
Sd/(N.K. Chandravanshi) Judge
Pathak
1 issue framed by the court
Whether the trial court erred in dismissing the application filed under Order VII Rule 11(a) CPC for return of plaint.
1 provisions across 1 enactments
Kuleshwar Thakur
Suresh Kumar Sahu
Jagdish Diwan
Balram Thakur
Kumesh
Rakesh Thakur
N.K. Chandravanshi
As recorded by the court registry
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