Telangana High Court
Sakki Laxmi vs Gaini Gangamani on 10 January, 2025
HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
*****
Civil Revision Petition No.2708 OF 2024
Between:
Sakki Laxmi and others ... Petitioners
And
Gaini Gangamani and others ... Respondents
DATE OF JUDGMENT PRONOUNCED: 10.01.2025
Submitted for approval.
THE HON'BLE SRI JUSTICE K.SURENDER
1 Whether Reporters of Local
newspapers may be allowed to see the Yes/No
Judgments?
2 Whether the copies of judgment may
be marked to Law Reporters/Journals Yes/No
3 Whether Their Ladyship/Lordship
wish to see the fair copy of the Yes/No
Judgment?
__________________
K.SURENDER, J
2
* THE HON'BLE SRI JUSTICE K. SURENDER
+ C.R.P. No. 2708 OF 2024
% Dated 10.01.2025
# Sakki Laxmi and others ... Petitioners
And
$ Gani Gangamani and another ... Respondents
! Counsel for the Petitioners: Sri P.Sajan Kumar
^ Counsel for the Respondents:
>HEAD NOTE:
? Cases referred
1
2023 SCC OnLine SC 521
2
2014 LawSuit (Del) 4320
3
(2012) 8 SCC 706
3
THE HON'BLE SRI JUSTICE K.SURENDER
CIVIL REVISION PETITION No.2708 of 2024
ORDER:
1. The revision petitioners, who are defendants 1 to 3, 5, and 6
in O.S. No. 281 of 2021, have filed this revision petition
challenging the order dated 13.6.2024, passed in I.A. No. 1728 of
2021 in O.S. No. 281 of 2021 by the Principal Junior Civil Judge-
cum-Judicial Magistrate of First Class, Nizamabad.
2. Briefly, the facts of the case are that the suit in O.S. No. 281
of 2021 has been instituted by the Respondents/Plaintiffs
seeking partition and separate possession of joint family
properties concerning the suit Schedule Properties detailed in
Schedule A and B of the plaint. It has been stated that Begari
Pochiga alias Begari Posheety, the father of
Respondents/Plaintiffs Nos. 1 and 2, and Petitioners Nos. 4 and
5/Defendants Nos. 5 and 6, as well as the father-in-law of
Petitioner No. 1/Defendant No. 1 and the paternal grandfather of
Petitioners Nos. 2 and 3/Defendants Nos. 2 to 4, was the owner
and possessor of the suit schedule properties described in
Schedule A and B. The plaintiffs assert that following the death of
Begari Posheety in 1998, Defendants Nos. 1 to 3, 5, and 6
4
managed to have the suit schedule properties mutated in their
names by influencing the revenue authorities. The plaintiffs have
presented the pahani records for specific periods as evidence of
this claim. They argued that the plaintiffs and defendants have
equal shares in the suit schedule properties and contend that
mere entries in revenue records do not create any legal rights or
titles. Furthermore, they allege that the Defendants had been
providing paddy to the plaintiffs as per their respective shares. It
is claimed that the suit schedule properties have not been legally
partitioned among the plaintiffs and defendants. Although the
plaintiffs reportedly demanded that the defendants divide the suit
schedule properties into five equal parts, defendants Nos. 1 to 3,
5, and 6 allegedly avoided this on various pretexts. Finally, on
06.06.2021, when the plaintiffs made an oral demand for
partition, the defendants refused and asserted that the properties
had already been mutated in their names as their self-acquired
properties. The plaintiffs claim that they only became aware of
these mutation proceedings in April, 2021 and subsequently
obtained certified copies from the office of the Tahsildar. The
plaintiffs contend that the suit schedule properties constitute
joint family properties and have not been legally partitioned. As
5
such, the plaintiffs are entitled to a 2/5th share in the properties
specified in Schedule A and B. They further contend that the suit
is within the period of limitation, as the refusal to partition
occurred on 6.6.2021, following their oral demand. According to
the plaintiffs, the Court fee payable is Rs.200/- under Section
34(2) of the Andhra Pradesh Court Fees and Suits Valuation Act,
calculated based on their 2/5th share of the total value of the
properties specified in Schedule A and B.
3. I.A. No. 1728 of 2021 in O.S. No. 281 of 2021 was filed by
the petitioners/defendants under Order VII, Rule 11(a), (b), and
(d) read with Section 151 of the CPC, seeking rejection of the
plaint in O.S. No. 281 of 2021 due to lack of cause of action,
undervaluation of the relief claimed and limitation. The main
contention raised by the defendants is that the suit schedule
properties became open for succession in 1998 upon the death of
Begari Pochiga alias Begari Posheety. Since then, the plaintiffs
have neither taken any steps to demand partition nor issued any
legal or public notices concerning the properties. They have also
not approached the Tahsildar or any other authority to record a
Virasath for the suit schedule properties. After a lapse of 22
years, the plaintiffs have now filed a partition suit based on what
6
the defendants claim is a fabricated cause of action. The
defendants argued that since the plaintiffs have been out of
possession of the suit schedule properties throughout this period,
the suit raises the issue of whether a partition suit is
maintainable and contend that it is barred by limitation under
Order VII, Rule 11(d) of the CPC. Further, the defendants argued
that the plaintiffs have failed to produce any material evidence
demonstrating that, as of the date of filing, all parties were within
the joint family nucleus or benefiting from the suit schedule
properties. They submit that because the respondents have been
out of possession of the suit schedule properties for 22 years, the
court fee should be calculated under Section 34(1) of the APC
and SV Act, rather than under Section 34(2) of the same Act,
rendering the suit undervalued and therefore not maintainable.
4. The defendants further contend that no cause of action has
been disclosed against them, making the suit non-maintainable
under Order VII, Rule 11(a) of the CPC. The defendants also state
that the suit schedule properties are registered in their names, as
reflected in the ROR records, and that pattadar passbooks were
issued to them by the revenue authorities. They assert that the
plaintiffs have neither challenged these records nor applied for
7
rectification if they believed they had a legitimate claim.
Consequently, the suit is not maintainable, as the plaintiffs have
not contested the revenue entries or pattadar passbooks. The
plaintiffs, however, claim that the defendants managed to have
their names recorded in the revenue records by influencing the
revenue authorities, who subsequently issued pattadar
passbooks in their favor. Finally, the defendants argued that the
boundaries of the suit schedule properties as described in the
plaint are incorrect, further rendering the suit non-maintainable.
5. Learned counsel for the defendants relied on the judgment
of the Hon’ble Supreme Court in the case of Ramisetty
Venkatanna and another v. Nasyam Jamal Sahab and others1
and argued that vexatious suit and its claims have to be rejected.
Learned counsel also relied on the judgment of High Court of
Delhi in the case of Sangita Rehan and others v. Surinder
Kishan Grover and others2. On facts, the High Court of Delhi
held that suit for partition could not be maintained.
1
2023 SCC OnLine SC 521
2
2014 LawSuit (Del) 4320
8
6. The lower Court dismissed the I.A finding that the grounds
raised were untenable. Firstly, whether cause of action arises in
the case or not has to be looked into.
7. The Hon’ble Supreme Court in the case of Eldeco Housing
and Industries Limited VsAshok Vidyarthi and Ors v. Ashok
Vidyarthi and others, observed as follows:
“23.11. The test for exercising the power Under Order 7 Rule 11 is
that if the averments made in the plaint are taken in entirety, in
conjunction with the documents relied upon, would the same result
in a decree being passed. This test was laid down in Liverpool &
London S.P. & I Assn. Ltd. v. M.V. Sea Success I [Liverpool &
London S.P. & I Assn. Ltd. v. M.V. Sea Success I,
MANU/SC/0951/2003 : (2004) 9 SCC 512] which reads as: (SCC
p. 562, para 139)
139. Whether a plaint discloses a cause of action or not is
essentially a question of fact. But whether it does or does not must
be found out from reading the plaint itself. For the said purpose,
the averments made in the plaint in their entirety must be held to
be correct. The test is as to whether if the averments made in the
plaint are taken to be correct in their entirety, a decree would be
passed.
23.12. In Hardesh Ores (P) Ltd. v. Hede & Co. [Hardesh Ores (P)
Ltd. v. Hede & Co., MANU/SC/7671/2007 : (2007) 5 SCC 614] the
Court further held that it is not permissible to cull out a sentence or
a passage, and to read it in isolation. It is the substance, and not
merely the form, which has to be looked into. The plaint has to be
construed as it stands, without addition or subtraction of words. If
the allegations in the plaint prima facie show a cause of action, the
court cannot embark upon an enquiry whether the allegations are
true in fact. D. Ramachandran v. R.V. Janakiraman,
MANU/SC/0154/1999 : (1999) 3 SCC 267; See also Vijay Pratap
Singh v. Dukh Haran Nath Singh MANU/SC/0394/1962 : AIR
1962 SC 941].
23.13. If on a meaningful reading of the plaint, it is found that the
suit is manifestly vexatious and without any merit, and does not
9disclose a right to sue, the court would be justified in exercising the
power Under Order 7 Rule 11 Code of Civil Procedure.”
8. The Hon’ble Supreme Court in the case of The Church of
Christ Charitable Trust and Educational Charitable Society,
represented by its Chairman Vs. Ponniamman Educational
Trust3 held as follows:
“The cause of action is a bundle of facts which taken with the law applicable
to them gives the Plaintiff the right to relief against the Defendant. Every fact
which is necessary for the Plaintiff to prove to enable him to get a decree
should be set out in clear terms. It is worthwhile to find out the meaning of the
words “cause of action”. A cause of action must include some act done by the
Defendant since in the absence of such an act no cause of action can possibly
accrue.”
9. Following the observations made in the above judgments,
the averments made in the plaint cannot be rejected since they
are factual aspects and unless disproved, the averments in the
plaint has to be accepted as correct. Cause of action is made out
in the present facts.
10. The plaintiffs assertion in the plaint regarding the
correctness or otherwise of the averments cannot be rejected on
the basis of limitation and possession which is a mixed question
of law and facts. It is the claim of the plaintiff that the joint family
3
(2012) 8 SCC 706
10
properties under Schedule A and B were not partitioned and
accordingly plaint cannot be rejected.
11. The other limb of the argument of the learned counsel for
the petitioners is that the plaintiffs have come up with date of
06.06.2021 when there was alleged oral refusal to partition the
property. The Hon’ble Supreme court in the case of Eldeco
Housing and Industries Limited Vs. Ashok Vidyarthi and Ors
(supra), the Hon’ble Supreme Court held as follows:
“17. In Kamala and Ors. v. K.T. Eshwara Sa and Ors.
MANU/SC/7542/2008 : (2008) 12 SCC 661 this Court opined
that for invoking Clause (d) of Order VII Rule 11 Code of Civil
Procedure, only the averments in the plaint would be relevant.
For this purpose, there cannot be any addition or subtraction. No
amount of evidence can be looked into. The issue on merits of the
matter would not be within the realm of the Court at that stage.
The Court at that stage would not consider any evidence or enter
a disputed question of fact of law. Relevant paragraphs thereof
are extracted below:
21. Order 7 Rule 11(d) of the Code has limited application.
It must be shown that the suit is barred under any law. Such a
conclusion must be drawn from the averments made in the plaint.
Different clauses in Order 7 Rule 11, in our opinion, should not be
mixed up. Whereas in a given case, an application for rejection of
the plaint may be filed on more than one ground specified in
various sub-clauses thereof, a clear finding to that effect must be
arrived at. What would be relevant for invoking Clause (d) of
Order 7 Rule 11 of the Code are the averments made in the
plaint. For that purpose, there cannot be any addition or
subtraction . Absence of jurisdiction on the part of a court can be
invoked at different stages and under different provisions of the
Code. Order 7 Rule 11 of the Code is one, Order 14 Rule 2 is
another.
22. For the purpose of invoking Order 7 Rule 11(d) of the
Code, no amount of evidence can be looked into. The issues on
merit of the matter which may arise between the parties would
11
not be within the realm of the court at that stage. All issues shall
not be the subject- matter of an order under the said provision .
23. The principles of res judicata, when attracted, would
bar another suit in view of Section 12 of the Code. The question
involving a mixed question of law and fact which may require not
only examination of the plaint but also other evidence and the
order passed in the earlier suit may be taken up either as a
preliminary issue or at the final hearing, but, the said question
cannot be determined at that stage.
24. It is one thing to say that the averments made in the
plaint on their face discloses no cause of action, but it is another
thing to say that although the same discloses a cause of action,
the same is barred by a law.
25. The decisions rendered by this Court as also by
various High Courts are not uniform in this behalf. But, then the
broad principle which can be culled out therefrom is that the court
at that stage would not consider any evidence or enter into a
disputed question of fact or law . In the event, the jurisdiction of
the court is found to be barred by any law, meaning thereby, the
subject matter thereof, the application for rejection of plaint
should be entertained.”
12. The plaintiffs’ claim of cause of action arising on 06.06.2021
has to be again examined by the Court below during trial.
However, the issue of limitation can be either addressed by
framing preliminary issue or during the course of final disposal of
the case. The lower Court was correct in rejecting the ground
raised regarding limitation, since it is a mixed question of law
and fact in the present case.
13. The question whether the plaintiffs have to pay Court fee
under Section 34 (1) and 34(2) of the A.P.Court Fees and Suit
Valuation Act, 1956, will depend on the fact whether the
12
plaintiffs remained in the joint possession of the family property
or not. Section 34 of the Act reads as follows:
“S. 34. Partition suits – (1) In a suit for partition and separate possession of a
share of joint family property or of property owned, jointly or in common, by a
plaintiff who has been excluded from possession of such property, fee shall be
computed on the market value of the movable property or three-fourths of the
market value of the immovable property included in the plaintiff’s share. (2) In
a suit for partition and separate possession of joint family property or property
owned,jointly or in common, by a plaintiff who is in joint possession of such
property, fee shall be paid at the following rates…”
14. As already discussed, since the plaintiffs are claiming joint
possession and respondents are claiming otherwise, the issue
whether the payment of Court fee would fall within Section 34(1)
or 34(2) of the Act can be decided by the Court below during trial,
since it is a mixed question of fact and law and accordingly,
direct the payment of Court fee if the plaintiffs are otherwise
liable to pay in accordance with the finding.
15. Accordingly, Civil Revision Petition is dismissed. There shall
be no order as to costs. Consequently, miscellaneous petitions, if
any, shall stand disposed off.
__________________
K.SURENDER, J
Date :10.01.2025
kvs