Disposed¶7

Smt. Ganga Bai (Died) through Legal Representative(S) v. Md. Usman

Chhattisgarh HC4 Feb 2024CR/14/2024

Case brief

AI extract

What is this about?

Rejection of plaint; Order 7 Rule 11 CPC application dismissed; res judicata; Order 2 Rule 2 CPC; plaint averments presumed correct; defence/written statement not to be looked into at plaint stage; civil revision disposed of without interference; High Court of Chhattisgarh Bilaspur; C.R No.14 of 2024; Civil Suit No.392-A/2018 Raipur; Civil Suit No.18-A/2007 decree dated 27.11.2008; sale deed dated 29.05.2000; ancestral/coparcenary property; First Appeal No.17/2009 dismissed 07.09.2018; partition and separate possession suit; NAFR (not for reporting).

What did the court decide?

No relief against the impugned order - the Revision stands disposed of with the aforesaid observations; a copy of the order was directed to be sent to the concerned Court below for necessary information and compliance. ¶7

Smt. Ganga Bai (Died) through Legal Representative(S) Vs Md. Usman — Chhattisgarh HC (2024) — LawSathi Research

What the court decided

AI extract

Outcome

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Issue for consideration

Whether the subsequent suit filed by the plaintiff for partition, separate possession and declaration is barred by law, res judicata and Order 2 Rule 2 CPC so as to warrant rejection of the plaint under Order 7 Rule 11 CPC. +1 more

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Court's answer

While deciding an application under Order 7 Rule 11 CPC, the Court must presume the facts stated in the Plaint as correct and cannot look into the defence set up by the Defendants in their written statement or application.

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Ratio / Principle

The trial Court, after framing the issues, made an assessment as to what extent the principle of res judicata attracts; in the impugned order it did not close the opportunity of Defendant No.1-Ganga Bai and gave its finding after enabling the documents to determine that issue.

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Key takeaways

On that basis, this Court finds no illegality or infirmity in the impugned order warranting interference invoking revisional jurisdiction.ratio¶5

Detailed headnote1 paragraphs

Civil Revision C.R. No.14 of 2024, High Court of Chhattisgarh, Bilaspur (Deepak Kumar Tiwari, J.), decided 05.02.2024 (NAFR) - Order 7 Rule 11 CPC - rejection of plaint - res judicata - Order 2 Rule 2 CPC. Background: Md. Usman (plaintiff/non-applicant no.1) purchased the suit property from Ramcharan Bharti, brother of Defendant No.1 Smt. Ganga Bai, by sale deed dated 29.05.2000. Ganga Bai's Civil Suit No.18-A/2007 challenging that sale deed was decreed in her favour (judgment and decree dated 27.11.2008), the sale being declared binding only to half the share, with the plaintiff reserved a right to seek partition and separate possession within six months, failing which Defendant No.1 would get possession of the whole property. Plaintiff's First Appeal No.17/2009 was dismissed on 07.09.2018. He then filed the present suit for partition, separate possession and declaration; Defendant No.1's application under Order 7 Rule 11 CPC pleading bar by law, res judicata and Order 2 Rule 2 CPC was dismissed by the trial Court (3rd Additional Judge to the Court of 1st Civil Judge, Class-II, Raipur) by order dated 16.10.2023 in Civil Suit No.392-A/2018. Held (declining revisional interference): the trial Court had framed issues, assessed the extent to which res judicata applies, did not close Defendant No.1's opportunity and reached its finding after enabling the documents; further, while deciding an Order 7 Rule 11 CPC application the plaint averments must be presumed correct and the defence in the written statement or application cannot be looked into; hence no illegality or infirmity warranting interference. Revision disposed of; copy ordered to be sent to the court below.

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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C.R No.14 of 2024

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Smt. Ganga Bai (Died) Through Legal Representative(s) 1.1 - A. Ganesh Ram Ratre S/o Mangtu Ram Ratre (Husband Of Smt. Ganga Bai) Aged About 44 Years Address- Residence Of Ganesh Ram Ratre- Ravi Nagar, Telibandha, Raipur, District Raipur, Chhattisgarh.

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1.2 - B. Toran Das S/o Ganesh Ram Ratre Aged About 35 Years Address- Residence Of Ganesh Ram Ratre- Ravi Nagar, Telibandha, Raipur, District Raipur, Chhattisgarh. 1.3 - C. Anita Bai D/o Ganesh Ram Ratre Aged About 35 Years Address- Residence Of Ganesh Ram Ratre- Ravi Nagar, Telibandha, Raipur, District Raipur, Chhattisgarh. 1.4 - D. Ajay Ratre S/o Ganesh Ram Ratre Aged About 28 Years Address- Residence Of Ganesh Ram Ratre- Ravi Nagar, Telibandha, Raipur, District Raipur, Chhattisgarh. 1.5 - E. Parwati Bai D/o Ganesh Ram Ratre Aged About 29 Years Address- Residence Of Ganesh Ram Ratre- Ravi Nagar, Telibandha, Raipur, District Raipur, Chhattisgarh. 1.6 - F. Deepak Ram Ratre S/o Ganesh Ram Ratre Aged About 25 Years Address- Residence Of Ganesh Ram Ratre- Ravi Nagar, Telibandha, Raipur, District Raipur, Chhattisgarh. 1.7 - G. Goriya Ratre S/o Ganesh Ram Ratre Aged About 24 Years Address- Residence Of Ganesh Ram Ratre- Ravi Nagar, Telibandha, Raipur, District Raipur, Chhattisgarh. 1.8 - H. Budharu Ram S/o Ganesh Ram Ratre Aged About 22 Years Address- Residence Of Ganesh Ram Ratre- Ravi Nagar, Telibandha, Raipur, District Raipur, Chhattisgarh.

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Nirmal Kumar Parakh S/o Jasraj Parakh Aged About 53 Years R.O Halwai Line, Sadar Bazar, Raipur, Chhattisgarh. ---- Applicants

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Versus

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Md. Usman S/o Late Hazi Seikh Ahmed Aged About 56 Years R/o Near Munna Pan Thela, Baijnath Para, Raipur, Tehsil And District Raipur, Chhattisgarh.

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Ramcharan Bharti S/o Suku Ram Satnami R/o Devpuri, Vyaha Pachpedi Naka, Raipur, Tehsil And District Raipur, Chhattisgarh.

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State Of Chhattisgarh Through Collector, District : Raipur, Chhattisgarh ---- Non-Applicants

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For Applicants: Shri Khulesh Sahu, Advocate. For Non-Applicant No.3/State: Shri Atanu Ghosh, Dy. G.A.

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Hon'ble Shri Justice Deepak Kumar Tiwari Order on Board

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05.02.2024

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This Civil Revision has been filed against the order dated 16.10.2023 passed by the 3^rd Additional Judge to the Court of 1^st Civil Judge, Class-II, Raipur in Civil Suit No.392-A/2018 whereby, the application filed by the Applicants/Defendant under Order 7 Rule 11 CPC seeking rejection of the Plaint, was dismissed.

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Brief facts of the case are that Non-Applicant No.1/Plaintiff has preferred a Civil Suit seeking partition and possession of the property of his share as also declaration of judgment and decree dated 27.11.2008 passed in Civil Suit No.18-A/2007 as null and void being the purchaser of the said property as brother of Applicant/Defendant No.1 namely Ramcharan Bharti had executed sale deed dated 29.05.2000 in his favor. Applicant/Defendant No.1-Smt Ganga Bai had filed a Civil Suit bearing No.18-A/2007 challenging the aforesaid sale deed executed in favor of Non-Applicant No.1/Plaintiff on 29.05.2000 on the ground that the suit property is the ancestral property and her brother has no absolute right to transfer the entire property as the said suit was decreed in her favour and it was

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declared that sale deed to the extent of half of the share is binding on her and further, in favour of Non-Applicant No.1/Plaintiff, a right has been reserved that he may contest the suit for partition and separate possession and a further stipulation has been fixed that NonApplicant No.1/Plaintiff has to contest the aforesaid suit within a period of 6 months failing which, Applicant/Defendant No.1-Smt Ganga Bai will be entitled for possession of the whole suit property. Non-Applicant No.1/Plaintiff has challenged the aforesaid judgment by way of First Appeal No.17/2009 before this Court, which was dismissed vide judgment dated 07.09.2018 and thereafter, NonApplicant No.1/Plaintiff has filed the instant suit claiming the aforesaid relief in which, Applicant No.1/Defendant No.1 has preferred an application under Order 7 Rule 11 CPC and raised a ground that the subsequent suit is barred by law and the principle of res judicata and principle of Order 2 Rule 2 CPC have been attracted. The said application has been dismissed by the trial Court by observing that in the light of the principle of res judicata, the facts mentioned the said application cannot be determined.

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Heard learned Counsel for the parties and perused the order impugned as also the documents annexed herewith carefully.

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Undisputedly, Non-Applicant No.1/Plaintiff has filed a suit seeking partition as one of the co-heirs, has earlier filed the suit and challenged the sale deed, which was executed in his favour by brother of Applicant/Defendant No.1-Ganga Bai and Non-Applicant

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No.1/Plaintiff has declared that he is entitled for only half of the share of the suit property and the sale of remaining portion by brother of Applicant/Defendant No.1 is not binding in her favour and NonApplicant/Plaintiff has filed an Appeal whereby, the decree passed in Civil Suit No.392-A/2018 has been affirmed. The present suit has been filed for a specific relief seeking partition and separate possession and also seeking declaration of judgment and decree dated 16.10.2023 passed in Civil Suit No.392-A/2018 as null and void.

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Considering the nature of relief as claimed by Non-Applicant No.1/Plaintiff, the trial Court, after framing the issues, made an assessment that as to what extent, the principle of res judicata attracts in the instant case. In the impugned order, the trial Court has not closed the opportunity of Defendant No.1-Ganga Bai and given the said finding after enabling the documents to determine the said issue, therefore, this Court does not find any illegality or infirmity in the said order warranting interference invoking revisional jurisdiction.

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It is well settled that while deciding the application under Order 7 Rule 11 CPC, this Court has to presume the facts stated in the Plaint as correct and the Court cannot look into the defence set up by the Defendants in their written statement or the application.

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