Varinder Pal Singh and Anr. Vs Smt Simrajit Kaur and Ors.

By way of the present revision petition, the petitioners/contes t ing defendants (he r einafter referred to as the ‘ p etitioners’) have challenged the correctness of the order dated 07.12.2024 p a ssed by the learned Civil Ju d ge (Senior Divisio n ), Kapurthala, whereby their a p plication under Order VII Rul e 11 of the Code o f Civil Procedure, 1908 (here i nafter referred to as, ‘CPC’) for rejection of the p laint has been dismissed.

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Le a rned counsel for the petitioner s contends that the trial Court e r red in dismissing t h eir application, without dealin g with all the grounds raised. I t is submitted that t h e plaintiff has sought only a declaration of ownership in respect of the suit propert y without claiming the consequ e ntial relief of possession. Since she is admittedly n o t in possession, the suit for bare declaration is barred under Sec t ion 34 of the Specific Relief Act. It is argued that the suit being for declaration w ith TRIPTI SAINIconsequential r e lief was required to be valued ad valorem on the market valu e of 2025.08.21 11:12 I attest to the accuracy and integrity of this document

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CR-688-2025 (O&M) - 2 -

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the property, a n d fixed court fee was insufficient. Further the contention of the learned counse l for the petitioner is that plain t iff has based her claim on a W ill dated 18.04.1995, and the predecessor-in-i n terest, Joginder Singh, died on 26.01.2004. Th e suit, having been filed after n early 20 years, is hopelessly ti m e- barred under A r ticle 58 of the Limitation Act.

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Re l iance was placed on Church of Christ Charitable Trust and Educational Charitable Society v. Ponniamman Educational Trust, [2012 (5) MLJ 601] , to argue that when the plaint discloses no cause of action , is undervalued, or is barred by law, the Court mu s t reject it under Order VII Rul e 11 CPC.

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It w as contended that the trial Cou r t wrongly held that the respond e nt/ plaintiff is not r e quired to seek possession since she only intends to remove a cl o ud over her title, w hereas the pleadings themselv e s show that the defendants ar e in exclusive poss e ssion. Learned trial Court fa iled to consider the above- s aid objections rais e d before the Trial Court. No s peaking order was passed by the learned trial Co u rt.

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Le a rned counsel for the respond e nt/plaintiff supports the impug n ed order and sub m its that there is no illegality in it. On the issue of limitation, i t is urged that the trial Court rightly held it to be a mixed question of law a fact which can n ot be adjudicated at the thresho l d under Order VII Rule 11 CP C . It is further conte n ded that the plaintiff has clai m ed ownership and joint posses s ion to the extent o f ¼ share in the estate of her f ather, on the basis of inherita n ce. Being a co-sha r er, the law presumes her to be i n joint possession unless there is a clear ouster, a n d therefore there is no requirement to seek separate relie f of

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TRIPTI SAINIpossession. 2025.08.21 11:12 I attest to the accuracy and integrity of this document

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CR-688-2025 (O&M) - 3 -

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I h a ve heard learned counsel for th e parties and have gone through the record with thei r able assistance.

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Th e scope of Order VII Rule 11 C P C is well-settled. For the purp o ses of deciding an application thereunder, the Co u rt is required to look only at the averments in t h e plaint and the documents fil e d therewith. The defence take n by the defendants i s irrelevant at that stage. A pl a int can be rejected only if, on the face of it does n ot disclose a cause of action (cl a use a); it is undervalued and the valuation is n o t corrected within time allo w ed (clause b), it is insufficie n tly stamped and th e defect is not cured (clause c) o r it is barred by any law (clause d).

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1. On the ground of limitation:

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A p laint can be rejected as barred by limitation under clause (d) o nly if the bar is a p parent from the plaint itself. W here determination of limita t ion requires exami n ation of facts, evidence, or mi x ed questions of law and fact, s u ch as when the ri g ht to sue accrued, whether t h ere was any acknowledgment , or continuous pos s ession, the plaint cannot be rejected at the threshold. In the pre s ent case, the plea that the suit is barred by lim i tation is based on disputed f a cts regarding accr u al of cause of action and a l leged ouster, which will req u ire evidence. The t rial Court, therefore, rightly r e fused to reject the plaint on t his ground.

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2. On the ground of non-claiming of relief of possession :

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In law, a co-owner is deemed to b e in joint possession of the e n tire property unless there is a clear and unequivocal act of ouster by the other coowners. In the p resent plaint, the plaintiff has c l aimed joint possession as a co- h eir. Thus, a simp l iciter suit for declaration c o upled with joint possession is TRIPTI SAINImaintainable w i thout claiming consequential re l ief of possession. 2025.08.21 11:12 I attest to the accuracy and integrity of this document

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CR-688-2025 (O&M)

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3. On the ground of court fee:

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Where a plaintiff claims joint possessi o n as a co-owner, fixed court fee under Article 17(iii) of Schedule II of the C o urt Fees Act, 1870 is payable; ad valorem court f ee is not attracted. The trial Co u rt rightly found that the objec t ion on valuation an d court fee has no merit at this s t age.

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Th e impugned order does not su f fer from any illegality or mat e rial irregularity. Th e trial Court has correctly appl i ed the law to the facts, keepin g in view that the plea of limitation here is a mix e d question of law and fact; a coowner claimin g joint possession need not seek separate possession; and the valuation and c o urt fee, as per the plaint, are in a ccordance with law at t his stage.

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In exercise of revisional jurisdic t ion under Section 115 CPC, t his Court cannot re-appreciate the facts or substit u te its discretion for that of the t rial Court in the absence of any jurisdictional error o r perversity.

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Ac c ordingly, the present revision p etition is dismissed. 11. Pe n ding application(s), if any, also stand disposed of.

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August 12, 202 5 (MANDEEP PANNU) tripti JUDGE Wheth e r speaking/non-speaking : Spea k ing Wheth e r reportable : Yes/ N o

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TRIPTI SAINI 2025.08.21 11:12 I attest to the accuracy and integrity of this document

Varinder Pal Singh and Anr. v. Smt Simrajit Kaur and Ors.

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Varinder Pal Singh and Anr. v. Smt Simrajit Kaur and Ors.

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