Dismissed

Sagar Ram v. Shabhikant Chaubey and Ors.

Patna HC25 Apr 2013SA/124/2010

Case brief

AI extract

What is this about?

In a second appeal regarding a suit dismissed under Order 7 Rule 11 CPC for failure to disclose cause of action, the High Court held that theFirst Appellate Court correctly affirmed the dismissal. The Court also observed lack of substantial compliance with procedural requirements under Order 1 Rule 8 CPC before suing behalf of a group.

What did the court decide?

The Second Appeal was dismissed; the judgment and decree of the first appellate court were affirmed.

Sagar Ram Vs Shabhikant Chaubey and Ors. — Property and Title | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.124 of 2010

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====================================================== 1. Sagar Ram S/O Sheo Nath Ram R/O Vill.- Dhadhamia, P.S. Bhabua, Distt.- Kaimur .... .... Appellant/s Versus 1. Shashikant Chaubey S/O Dalsingar Chaubey R/O Vill.- Dhadhania, P.O. And P.S.- Bhabua, Distt.- Kaimur 2. Anil Chaubey S/O Shashikant Chaubey R/O Vill.- Dhadhania, P.O. And P.S.- Bhabua, Distt.- Kaimur 3. Sunil Chaubey S/O Shashikant Chaubey R/O Vill.- Dhadhania, P.O. And P.S.- Bhabua, Distt.- Kaimur 4. Lal Chaubey S/O Shashikant Chaubey R/O Vill.- Dhadhania, P.O. And P.S.- Bhabua, Distt.- Kaimur 5. Pintu Chaubey (Minor) S/O Shashikant Choubey, Father And Natural Guardian R/O Vill.- Dhadhania, P.O. And P.S.- Bhabua, Distt.- Kaimur 6. Niraj Choubey Minor Son Of Anil Choubey, Father And Natural Guardian R/O Vill.- Dhadhania, P.O. And P.S.- Bhabua, Distt.- Kaimur 7. Nayan Choubey Minor Son Of Anil Choubey, Father And Natural Guardian R/O Vill.- Dhadhania, P.O. And P.S.- Bhabua, Distt.- Kaimur 8. Collector, Kaimur (At/P.O.) Kaimur 9. Consolidation Officer, Bhabua, Distt.- Kaimur, Circle Officer, Bhabua, Distt.- Kaimur .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Achhaibar Singh & Nitesh Krishna ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL ORDER 10 25-04-2013 1. Heard learned Counsel for the appellant. 2. The plaintiff before the trial Court is appellant herein who lost his first appeal before the Court of learned Additional District Judge FTC-III, Kaimur at Bhabua against the judgment and decree dated 20.4.2005 and

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Patna High Court SA No.124 of 2010 (10) dt.25-04-2013

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10.6.2005 respectively passed by the learned Munsif, Bhabua in T.S. No. 27 of 2003, whereby his suit was dismissed under Order 7 Rule 11 of the Code of Civil Procedure, hereafter referred to as the ‘Code’.

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The judgment and order dated 15.12.2009 and decree dated 16.12.2009 in Title Appeal No. 33 of 2005/44 of 2009 is under challenge in the present second appeal.

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The suit was instituted by the plaintiff-appellant under Order 1 Rule 8 of the Code in representative capacity seeking a declaration that the people of Dhandhania had acquired easementary right over the suit property as described in Schedule ‘Kha’ land of the plaint. He also sought for a declaration that entry in Chakbandi Khatiyan with respect to the land in the name of Defendant Ist set/Respondent first set was incorrect. The plaintiff further sought a relief that if during the pendency of the suit it was found that the defendant/respondents first set had acquired possession forcibly over the said land, they be dispossessed from the said land.

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As per the plaintiff, old survey Khata no. 13, old

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Patna High Court SA No.124 of 2010 (10) dt.25-04-2013

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survey plot No. 73 area 2 acres 35 decimals was recorded as ‘Gairmazarua Aam Kism Pond.’ Its new survey Khata no. is 51, new survey plot No. 76, area 2 acres 35 decimals and is recorded as ‘Anabad Sarva Sadharan kism Pokhar’.

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As per the plaintiff, the suit land is used by the villagers in various ways including washing of animals, irrigation and for other customary purposes. The plaintiff claimed that the defendant first set in collusion with the Officers/Staff got prepared Chak khatiyan for area 1 acre 15 decimal. The plaintiff pleaded that though chak Khatiyan of the suit is in the name of defendants/respondent first set, the same had never been in their possession. Cause of action, according to the plaintiff arose on 21.8.2002 on the knowledge of preparation of wrong chak khatiyan and on 30.1., the date on which the last request was made to the respondent first set from interfering with the peaceful enjoyment of the suit property by general public.

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The respondent first set herein who were the defendants first before the trial Court filed written

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Patna High Court SA No.124 of 2010 (10) dt.25-04-2013

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statement denying the averments made in the plaint. It was pleaded in the written statement that the suit land was settled by the ex-landlord Bhagawati Kuer in the name of Kalika Choubey and Dalsingar Choubey, their ancestors, in the year 1940 who after settling the land realized rent from them and granted rent receipts. As per the case of the defendants/respondent first set, names of Kalika Choubey and Dalsingar Choubey were mutated by the ex-landlord in his sirista and rent receipts were issued to them. They also pleaded that at the time of vesting of zamindari, the ex-landlord submitted the return in the name of Kalika Choubey and Dalsingar Choubey with respect to the suit property. It was further pleaded that after vesting of zamindari, the State of Bihar issued rent receipts to the defendants. They pleaded that the defendants and their ancestors enjoyed continued possession over the suit property ever since 1940. They asserted that the revenue authorities wrongly prepared survey Khatiyan in the name of ‘Anabad Sarva Sadharan’ with regard to the suit property. The defendants also

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Patna High Court SA No.124 of 2010 (10) dt.25-04-2013

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pleaded that there was no cause of action for filing the present suit and on this ground also the suit deserved to be dismissed. The defendants also took a plea that the Civil Court had no jurisdiction to decide the dispute as to whether Khatiyan prepared under the Bihar Consolidation Act was illegal or not. The defendants filed an application for dismissal of suit under Order 7 Rule 11 of the Code.

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On the basis of the rival pleadings, learned trial Court proceeded to consider the application filed by the defendants first set under Order 7 Rule 11 of the Code. Learned trial Court came to a finding that the plaintiff failed to disclose any cause of action which compelled him to file the suit as there was absolutely no assertion in the plaint as to how the defendants were causing obstruction in use of the land by the public. Accordingly, without going into the merits of the case by order dated 20.4.2005 dismissed the suit under Order 7 Rule 11 of the Code.

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The appellant preferred appeal against the said order and decree passed by the learned trial Court Vide Title appeal No. 33 of 2005/44 of 2009. Assailing the

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Patna High Court SA No.124 of 2010 (10) dt.25-04-2013

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judgment of the trial Court, it was contended that dismissal of suit on the ground of absence of cause of action was improper in the facts and circumstancesa of the case as ‘cause of action was bundle of facts’ and that it was stated in the plaint that the defendants were creating disturbance in use of disputed land by general public.

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Learned first appellate Court, relying upon judgment of the Supreme Court reported in ( 1977) 4 SCC 467 ( T.Arvindam Vs. T.V. Satyapal) came to a conclusion if on reading of the plaint the Court found it to be vexatious and merit less, it could dismiss the same under Order 7 Rule 11 of the Code. Learned first appellate Court dismissed the appeal and thus, affirmed the order and decree passed by the learned trial Court.

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This is to be noted that the plaintiff is said to have filed the suit under Order 1 Rule 8 of the Code which provides that one person may sue or defend on behalf of all in same interest. Though not in detail, but the trial Court has touched this aspect in its order by observing that the plaintiff could not be said to be the representative

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Patna High Court SA No.124 of 2010 (10) dt.25-04-2013

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of all the persons of the village. In my opinion, a person may sue on behalf of all in same interest under Order 1 Rule 8 of the Code in accordance with the provisions contained therein. Order 1 Rule 8 1(a) allows a person to sue on behalf of all persons so interested with the permission of the Court. The Court, if grants such permission under Order 1 Rule 8(1) is required to give notice of the institution of the suit to all persons so interested at the expense of the plaintiff either by personal service, or, where, by reason of the number of persons or any other cause, such service is not reasonably practicable, by public advertisement, as the Court in each case may direct. Learned counsel for the appellant has failed to satisfy this count as regards even substantial compliance of the statutory requirement under Order 1 Rule 8 of the Code.

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In view of the above, I do not find any infirmity in the judgment of the learned first appellate Court while affirming the order and decree of the trial Court, which dismissed the suit at the very threshold in

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Patna High Court SA No.124 of 2010 (10) dt.25-04-2013

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exercise of power under Order 7 Rule 11 of the Code.

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The second appeal does not involve

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substantial question of law and is, accordingly, dismissed.

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(Chakradhari Sharan Singh, J)

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Arun Kumar/-

Sagar Ram v. Shabhikant Chaubey and Ors.

Case brief

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Sagar Ram v. Shabhikant Chaubey and Ors.

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