1 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) KOHIMA BENCH Civil Revision Petition No.5 (K) of [SECTION]15. 1. Smti. [ENTITY] W/o Late [ENTITY] Resident of House No. 151 Lingrijan, Dimapur, Nagaland. 2. Shri. [ENTITY] S/o Late [ENTITY] Resident of House No.151 Lingrijan, Dimapur, Nagaland. Petitioners -Versus- 1. Shri. [ENTITY] Husband of Late Ritikha Metha Resident of House No.183 Apna Hotel Complex Nyamo Lotha Road Dimapur, Nagaland. 1(a). Ms. [ENTITY] D/o [ENTITY] R/o House No. 183, Apna Hotel Complex Nyamo Lotha Road Dimapur,Nagaland. (impleaded as respondent No.1 and 2 vide order dated
29.03.[SECTION]16) 1(b). Mr. [ENTITY] S/o [ENTITY] House No. 267,3rd floor Opposite DDA Market Arjun Market, Safdarjung New Delhi-110029.
2. Mrs. [ENTITY] W/o Late [ENTITY] R/o Chungtia village Mokokchung, Nagaland.
3. Miss [ENTITY] D/o Late [ENTITY] R/o. Chungtia village Mokokchung, Nagaland.
Respondents/Plaintiffs
4. Smti. [ENTITY] W/o Late [ENTITY] Apna Hotel Complex Nyamo Lotha Road Dimapur , Nagaland.
5. Shri. [ENTITY] Son of Late [ENTITY] Resident of House No.183 Apna Hotel Complex Nyamo Lotha Road Dimapur, Nagaland.
6. Smti. [ENTITY] D/o of Late [ENTITY]. And W/o Shri. [ENTITY] Resident of Punjab Hotel Near Jyoti Cinem Hall Lumding, Assam.
7. Shri. [ENTITY] S/o of late [ENTITY] Resident of Kalibari Lumding. Assam.
8. Shri. [ENTITY] S/o of late [ENTITY] Resident of Kalibari Lumding, Assam.
9. Mrs. [ENTITY] W/o Shri. [ENTITY] Resident of Half Nagarjan Dimapur, Nagaland.
Profoma respondents/Defendants
-BEFORE-
HON'BLE MR. JUSTICE [ENTITY] For the petitioners : Mr [ENTITY], Sr. Adv. Mr. [ENTITY], Mr. [ENTITY], Mr. [ENTITY], Ms. [ENTITY], Mr. [ENTITY], Mr. [ENTITY], Advs. For the respondent No. 1 & 2 : Mr. [ENTITY] Mr. [ENTITY], Advs. For the profoma respondent No. 5 : Mr. [ENTITY], Mr. [ENTITY], Mr. [ENTITY], Mr. [ENTITY], Advs. Date of hearing : 04.04.[SECTION]17 Date of judgment : 24.05.[SECTION]17 JUDGMENT & ORDER (CAV)
This is a revision petition filed under [SECTION] of the [ACT] read with [SECTION] of [ACT], praying for quashing and setting aside the order dated 26.06.[SECTION]15 passed by the District Judge, Dimapur in Civil Misc Case No. 19/[SECTION]15 connected with [CASE NUMBER].
2. The brief facts leading to the filing of the petition are as follows:
The respondent No. 1 to 3 filed a Civil Suit before the District Judge, Dimapur being No.3/[SECTION]15 claiming that they are entitled to 1/7th share in a plot of land measuring O0B-01K-15Ls, covered by patta No.381, Dag No. 6[SECTION] of Block No.6, Dimapur Town, Dimapur Mouza 1 and the building standing therein. The basis of their claim as stated in that suit is that during the lifetime of late [ENTITY] whom they claimed was the Karta of their Joint Hindu family under Mitak-shara Hindu law jointly shared and enjoyed the suit property and all the benefits which accrued there to. But to their shock and surprise they came to know that the suit property had been sold by the petitioners in this case (defendant No.2 & 5 in the suit) by a sale deed dated 30.05.[SECTION]13. Therefore, they filed a Civil Suit for declaration of their title over 1/7th of the suit property and cancellation of the sale deed, and the name of the petitioners from the patta of Suit property. After the suit was instituted the petitioner here in filed the Civil Misc No. 19/[SECTION]15 under [SECTION] read with [SECTION] of [ACT] praying for rejection or dismissal of the plaint in the [CASE NUMBER] by contending as follows:
(i) That the petitioner No.1 and Late [ENTITY] got married in the year 19[SECTION] and out of their marriage petitioner No.2 was born on 15.09.1967. During the lifetime of late [ENTITY] a plot of land (the suit land) was purchased by both petitioner No.1 and late [ENTITY] on [SECTION].04.1971 from one [ENTITY] and a sale deed was executed wherein the petitioner No.1 was the only signatory in the sale deed. In course of time, the land was developed and 4 storeyed RCC building was constructed in which a hotel namely Apna Hotel was started and is still being run. The land was mutated in the name of petitioner No.1 and on 10/08/1976 the Jamabandi was issued in her name. Late [ENTITY] also had another wife to whom he was first married i.e. the profoma respondent No.4 and the other respondents are his legal heirs through that marriage. During his lifetime, late. [ENTITY] handed over all his properties situated at Diphu, Bongaigaon and Delhi to the profoma respondent No.4 and the legal heirs through her. But the suit land and the building continued to be the property of the petitioner No.1 as she was the absolute owner free from all incomprehension. However, in the year 1999, the respondent No.1 (opposite party No.1 in the Civil Misc Case No. 19/[SECTION]15) along with her mother that is profoma respondent No.4 requested the petitioner No.1 to allow them to run the Apna Hotel on rental basis. Considering their request the petitioner No.1 allowed them to run the Hotel at nominal monthly rent of Rs 10,000/-, which was regularly paid till the Hotel was disposed off on 30.05.[SECTION]13. The petitioner's case in the Civil Misc Case was that the plaintiffs in the Civil Suit No.3/[SECTION]15 who are none other than the opposite parties in that Civil Misc Case No.19/[SECTION]15 has no case to go for trial in view of the facts and circumstances stated above, therefore, the suit ought to be dismissed at the threshold.
(ii) The petitioner No.1 also submitted in the C.M.C that since her name was mutated in the patta of the suit land way back on 10.08.1976, it was too late when the respondents filed the suit, therefore, on that ground alone, the suit ought to have been dismissed.
(iii) It was also submitted that when the suit and the building were sold and Notice dated 31.05.[SECTION]13 was issued for mutation of the name of profoma respondent No.8 the same was published in the Nagaland Post on 02.06.[SECTION]13 but nobody turn up objecting the same, therefore, the respondents/claimants cannot make any valid claim over the suit land and the building.
(iv) It was also submitted that the petitioners are Christian by religion and they are not bound by Hindu Mitak-shara law. It was further submitted that when late [ENTITY] was alive, the respondents with their mother (profoma respondent No. 4) were living at Bongaigoan, therefore, they never live together as Hindu family.
3. The respondents filed a written objection against the application contending as follows;
(i) That there was no document(s) which would show that the suit land was transferred to the petitioners by late [ENTITY]. The name of the petitioner No.1 was recorded in the record of rights of the suit land only because of the fact that she being indigenous Naga her name could be entered in the record, but for that mere entry of her name in the record of rights it does not confer her absolute title over the same.
(ii) It was also contended that the building was constructed with the money of late [ENTITY], therefore, both the land and the building belongs to all his legal heirs and accordingly they have continually enjoyed both the suit land and building together as a joint family.
4. The learned District judge after hearing the parties passed the impugned order on 26.06.[SECTION]15. The operative portion of the same is reproduced here below;
"8. In any view of the matter, upon hearing the parties and the observation made herein and above, I am of the considerate opinion that the applicants/defendants application praying to reject the instant suit under [SECTION] of [ACT], is devoid of any merits and therefore present Misc. Cases arising out the main suit is hereby dismissed and rejected.
Accordingly both the [CASE NUMBER] and Misc Case no.[SECTION]/15 arising out of [CASE NUMBER] are dismissed. Defendants may file necessary objection/written statement in main suit if any. Case is disposed of on contest. No cost."
5. I have heard Mr. [ENTITY], learned Sr. counsel assisted by Mr. [ENTITY], learned counsel who appeared on behalf of the petitioners. Also heard Mr. [ENTITY], assisted by Mr. [ENTITY], learned counsels who appeared on behalf of the respondents No. 1 & 2 and Mr. [ENTITY], learned counsel who appeared for the profoma respondent No.5.
6. Mr. [ENTITY], learned Sr. counsel submitted that since the name of the petitioner No.1 was mutated in the record of rights of the suit land and her name was entered in the Jamabandi of the same in the year 1976, the cause of action if any for filing a title suit arose in 1976. But since, the suit was filed only in [SECTION]15, the same is barred by limitation, therefore, it should not have been admitted. As such, the learned District Judge had erred in law in dismissing the Civil Misc Case praying for dismissal of the suit.
It is also submitted by the learned counsel that according to [SECTION] of the [ACT], no person other than the indigenous inhabitants of Nagaland can possess and own land in Nagaland, therefore, Mr. Late [ENTITY] could have never owned and possess any land in the State of Nagaland and since, he was never the owner of the suit land and suit property, the respondents have no right or title to claim over the suit land and suit property. It was also submitted by the learned counsel that Hindu Mitak-shara law can be applied only on those people who are Hindus, but the petitioners being Christian by faith cannot be bound by that law. The learned counsel further submitted that since the petitioners had all along been Christians by faith they have never been governed by Hindu Mitak-shara law.
7. The learned counsel also submitted that the respondents were allowed to run the Apna Hotel by paying Rs. 10,000/- as rented charge every month and they have no right or title over the land whatsoever, therefore, the suit should have been dismissed at the threshold.
The learned counsel cited the following judgments of the Hon'ble Supreme Court in support of his submission;
(i) In the case of Hardesh Ores (P) Ltd. -versus- Hede and Company, reported in ([SECTION]07)5 SSC 614 particularly, the paragraphs- 39, 40 & 41. The same are reproduced here below:-
"39. We are of the view that the respondents are right in contending that enforcement of the negative covenants presupposes the existence of a subsisting agreement. As noticed earlier, the law is well settled that the renewal of an agreement or lease requires execution of a document in accordance with law evidencing the renewal. The grant of renewal is also a fresh grant. In the instant case, the appellant-plaintiff did exercise their option and claim renewal. The respondents denied their right to claim renewal in express terms and also unequivocally stated that the agreement did not stand renewed as contended by the appellants. Having regard to these facts it must be held that a cause of action accrued to the appellant-plaintiff when their right of renewal was denied by the respondents. This happen in December [SECTION]01 and, therefore, within three years from that date they ought to have taken appropriate proceedings to get their right of renewal declared and enforced by a court of law and/or to get a declaration that the agreement stood renewed for a further period of 5 years upon the appellants' exercising their option to claim renewal under the original agreement . The appellant- plaintiffs have failed to do so. However, the plaint proceeds on the assumption that the original agreement stood renewed including the negative covenants contained in [SECTION] and [SECTION] of the original agreement which authorised only the appellants to extract ore from the mine with an obligation cast on the respondent-defendants not to interfere with the enjoyment of their rights under the agreement. In the facts of this case, in the suit prayer for injunction based on negative covenants could not be asked for unless it was first established that the agreement continued to subsist. The use of the words "during the subsistence of this agreement" in clause 15, and "during the pendency of this indenture" in clause [SECTION] of the agreement is significant. In the absence of a document renewing the original agreement for a further period of 5 years and in the absence of any declaration from a court of law that the original agreement stood renewed automatically upon the appellants, exercising their option for grant of renewal, as is the case of the appellants, they cannot be granted relief of injunction, as prayed for in the suit, for the simple reason that there is no subsisting agreement evidenced by a written document or declared by a court. If there is no such agreement, there is no question of enforcing [SECTION] and [SECTION] thereof. The appellants ought to have prayed for a declaration that their agreement stood renewed automatically on exercise of option for renewal and only on that basis could they have sought an injunction restraining the respondents from interfering with their possession and operation. Having not done so, they cannot be permitted to camouflage the real issue and claim an order of injunction without establishing the subsistence of a valid agreement. In the instant suit as well they could have sought a declaration that the agreement stood renewed automatically but such a claim would have been barred by limitation since more than 3 years had elapsed after a categoric denial of their right claiming renewal or automatic renewal by the respondent-defendants.
40. Mr. [ENTITY] contended that this case was governed not by [SECTION] of the [ACT] but, if at all, by [SECTION] thereof because there is no specific article provided for enforcement of positive or negative covenants. We shall assume that he is right in contending that [SECTION] may apply where enforcement of a positive or negative covenant is sought in a suit for injunction. However, in this case we have found that the real foundation for the suit was that the earlier agreement stood renewed automatically containing the same terms and conditions as in the original agreement including the negative covenants. There is neither a documents to prove that the agreement stood renewed nor is there a declaration by a court that the agreement stood renewed automatically on exercise of option for renewal by the appellants. The basis for claiming the relief of injunction, namely, a subsisting renewed agreement did not exist in fact. In its absence, no relief as prayed for in the suit could be granted by the clever device of filing a suit for injunction, without claiming a declaration as to their subsisting rights under a renewed agreement, which is apparently barred by limitation.
41. We are, therefore, satisfied that the trial court as well as the High Court were justified in holding that the plaint deserved to be rejected under [SECTION] [ACT] since the suit appeared from the statements in the plaint to be barred by the law of limitation. We, therefore, find no merit in these appeals and the same are accordingly dismissed. No order as to costs".
(ii) In the case of Church of Christ Charitable Trust and Educational Charitable Society -versus- Ponniamman Educational Trust reported in ([SECTION]12) 8 SSC 706 particularly, the paragraphs-13, 14 & 16. The same are reproduced here below:-
"13. While scrutinising the plaint averments, it is the bounden duty of the trial court to ascertain the materials for cause of action. 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.
14. In [PRECEDENT], this Court explained the meaning of "Cause of action" as follows: (SCCp,170, para 12) "12. A cause of action means every fact, which if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In others words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such and act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything which if not proved would give the defendant a right to immediate judgment must be part of the cause of action. But it has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff."
[SECTION] and [SECTION] [ACT]
16. Mr. [ENTITY], learned Senior Counsel by taking us through [SECTION] and [SECTION] of the Code which relate to suit for specific performance submitted that inasmuch as those forms are statutory in nature with regard to the claim filed for the relief for specific performance, the court has to be satisfied that the plaint discloses a cause of action. In view of [SECTION] and [SECTION], the court has to satisfy that the plaint discloses a cause of action and does not appear to be barred by any law. The statutory forms require the date of agreement to be mentioned to reflect that it does not appear to be barred by limitation. In addition to the same, in a suit for specific performance, there should be an agreement by the defendant or by a person duly authorised by a power of attorney executed in his favour by the owner."
(iii) In the case of Suresh Kumar Dagla -Versus- Sarwan and Another reported in ([SECTION]14) 14 SCC 254. The same are reproduced here below:-
"4. According to the appellant, after more than 14 years on 28-6-[SECTION]06 the first respondent filed Civil Suit No.12-A of [SECTION]06 (renumbered as Civil Suit No.53-A of [SECTION]11) against the appellant and his father seeking declaration of title and for declaring the scale deed dated 3011-1992 as null and void. No reason was shown therein as to why the civil suit was filed after a delay of 14 years of execution of the sale deed. In the suit, the first respondent admitted that he had filed the complaint against the appellant. The appellant filed his written submission on 28-7-[SECTION]07 and categorically raised an objection regarding relief for declaration of sale deed as null and void being barred by limitation. Thereafter, the first respondent filed an application under [SECTION] of the [ACT] on 22-11-[SECTION]07 stating that inadvertently he was pursuing the criminal proceeding being an illiterate villager he did not initiate a civil proceeding. However, as the petition under [SECTION] of the [ACT] was not maintainable in the suit the first respondent did not press the application and on 22-1-[SECTION]08 the same was dismissed as not pressed.
5. The appellant filed three applications under [SECTION] [ACT] and Under [SECTION] of the [ACT] raising preliminary objections with regard to maintainability of the civil suit. It was contended that the suit was barred by limitation and hence was liable to be dismissed.
6. The Fourth Judge, Class1, Bilaspur by order dated 23-6-[SECTION]12 in Civil Suit No.53-A of [SECTION]11 dismissed the application under [SECTION] of [ACT] and the said order was upheld by the High Court by the Impugned Order.
7. The learned counsel appearing on behalf of the appellant submits that the allegation made by the first respondent in Para 4 of the plaint makes it clear that the alleged sale deed dated 30-11-1992 was to his knowledge but the first respondent filed the civil suit on 28-8-[SECTION]06 after lapse of 14 years which is much beyond 3 years of limitation for filing suit for declaration in terms of [SECTION] of the [ACT]. Therefore, the suit was timed-barred and there is no provision for extension of time .
8. Per contra, according to the learned counsel for the first respondent, the suit is not barred in terms of [SECTION] of the [ACT]
9. We have noticed the rival contentions made on behalf of the parties and perused the record. As per Para 4 of the copy of the plaint, the case of the first respondent is that the appellant has succeeded in registration of the sale deed in favour of himself by inducing the first respondent to believe that he will be executing the sale deed in favour of the State and the State will pay the consideration which is not paid till filing of the civil suit and has not taken possession. Therein at Para 17 it is stated that cause of action Arose in the month of August [SECTION]06. The High Court noticed that Para 17 of the plaint is cryptic but observed that it would not be possible for the Court to infer that the first respondent was having knowledge about the alleged deed prior to August [SECTION]06.
10. The first respondent has not disputed the fact that he had already instituted a case alleging therein that the appellant inter alia cheated him while a purchasing the said land which was rejected on 30-9-1993. From the aforesaid fact, it is clear that the first respondent had knowledge about the sale deed and as back as in the month of September 1993.
11. From the aforesaid fact, it is clear that the suit was barred by limitation and thereby the first respondent cannot derive any benefit in terms of [SECTION] of the [ACT].
12. For the reasons aforesaid, we set the order dated 12-9-[SECTION]12 passed by the High Court of Chhattisgarh, Bilaspur in Civil Revision No. 1[SECTION] of [SECTION]12; order dated 23-6-[SECTION]12 passed by the 4th Civil Judge, Class1, Bilaspur in Civil Suit No.53-A of [SECTION]11, allow the application and filed by the appellant under [SECTION] [ACT] and dismiss the suit as barred by limitation. The appeal is allowed with the aforesaid observation. No costs".
8. In reply, Mr. [ENTITY], learned counsel for the respondents submitted that the suit may be dismissed when no cause of action is disclosed or when it is barred by limitation. But in this case, the respondents had disclosed in their plaint sufficient cause of action and when sufficient cause is disclosed the suit has to be tried by original Court and High Court has no jurisdiction to interfere till the trial court concludes the trial with findings.
The learned counsel also submitted that the suit is not barred by limitation because cause of action arose only when the respondents came to know of the fact that the petitioner No.1 had sold the suit land and property. The learned counsel further submitted that the petitioners should have filed a written statement first they have filed an application for rejection of the plaint first, therefore, the learned District Judge was right in having dismissed the same. Further, submitted that when facts and law are involved and they are inter twin the same must be left to the trial court to decide. To reject the plaint or dismiss the suit in such circumstances would not only lead to miscarriage of justice but would amount to denial of justice.
9. The learned counsel also submitted that the respondents has a case to go for trial in the suit, therefore, the suit should be allowed to take its own course without any interference.
The learned counsel cited the following case in support of his submission. The same are given here in below:-
(i) In the case of Popat and Kotecha Property -Vs. State Bank of India, reported in ([SECTION]05) 7 SCC 510, particularly paragraph-15 to 27. The same are reproduce here below:-
"15. In [PRECEDENT] it was held that the basic question to be decided while dealing with an application filed under [SECTION] of the Code is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of [SECTION] of the Code.
16. The trial Court must remember that if on a meaningful and not formal reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise the power under [SECTION] of the Code taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, it has to be nipped in the bud at the first hearing by examining the party searchingly under [SECTION] of the Code. (See [PRECEDENT].)
17. It is trite law that not any particular plea has to be considered, and the whole plaint has to be read. As was observed by this Court in [PRECEDENT] only a part of the plaint cannot be rejected and if no cause of action is disclosed, the plaint as a whole must be rejected.
18. In [PRECEDENT] it was observed that the averments in the plaint as a whole have to be seen to find out whether [SECTION] was applicable.
19. There cannot be any compartmentalisation, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair- splitting technicalities.
[SECTION]. Keeping in view the aforesaid principles the reliefs sought for in the suit as quoted supra have to be considered. The real object of [SECTION] of the Code is to keep out of courts irresponsible law suits. Therefore, the Order
10 of the Code is a tool in the hands of the Courts by resorting to which and by searching examination of the party in case the Court is prima facie of the view that the suit is an abuse of the process of the court in the sense that it is a bogus and irresponsible litigation, the jurisdiction under [SECTION] of the Code can be exercised.
21. [SECTION] of the Code states the basic and cardinal rule of pleadings and declares that the pleading has to state material facts and not the evidence. It mandates that every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved.
22*. There is distinction between 'material facts' and 'particulars'. The words "material facts" show that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement or plaint becomes bad. The distinction which has been made between "material facts" and particulars was brought by [ENTITY], L.J. in Bruce v. Odhams Press Ltd 9.
23. [SECTION] lays down an independent remedy made available to the defendant to challenge the maintainability of the suit itself, irrespective of his right to contest the same on merits. The law ostensibly does not contemplate at any stage when the objections can be raised, and also does not say in express terms about the filing of a written statement. Instead, the word "shall" is used clearly implying thereby that it casts a duty on the Court to perform its obligations in rejecting the plaint when the same is hit by any of the infirmities provided in the four clauses of [SECTION], even without intervention of the defendant. In any event, rejection of the plaint under [SECTION] does not preclude the plaintiffs from presenting a fresh plaint in terms of [SECTION].
24. The above position was highlighted in [ENTITY] Sable and Ors. v. Asstt. Charity Commr.10
25. When the averments in the plaint are considered in the background of the principles set out in [ENTITY] case10 the inevitable conclusion is that the Division Bench was not right in holding that [SECTION] [ACT] was applicable to the facts of the case. Diverse claims were made and the Division Bench was wrong in proceeding with the assumption that only the non-execution of lease deed was the basic issue. Even if it is accepted that the other claims were relatable to it they have independent existence. Whether the collection of amounts by the respondent was for a period beyond 51 years needs evidence to be adduced. It is not a case where the suit from statement in the plaint can be said to be barred by law. The statement in the plaint without addition or subtraction must show that is barred by any law to attract application of [SECTION]. This is not so in the present case.
26. We do not intend to go into various claims in detail as disputed questions in relation to the issue of limitation are involved.
27. The appeal is accordingly allowed with no order as to costs. We make it clear that we have not expressed any opinion on the merits of the case which shall be gone into in accordance with law by the trial court".
(ii) In the case of [ENTITY] and Ors., -versus- [ENTITY] and Ors., reported in AIR [SECTION]08 Supreme Court 3174. The relevant portions of the paragraph-15 is given here below;-
"15. [SECTION] 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 [SECTION], 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 [SECTION], [SECTION] of the Code is the averments made in the plaint. For that purpose, there cannot be any addition or sub traction. Absence of jurisdiction on the part of a court can be invoked at different stages and under different provisions of the Code. [SECTION] of the Code is one, [SECTION] is another".
(iii) In the case of C. Natarajan -Vs- Ashim Bai and Anr., reported in AIR [SECTION]08 Supreme Court 363, particularly, paragraph-15. The same are reproduced here below:-
"15. The law of limitation relating to the suit for possession has undergone a drastic change. In terms of [SECTION] and [SECTION] of the [ACT], it was obligatory on the part of the plaintiff to aver and plead that he not only has title over the property but also has been in possession of the same for a period of more than 12 years. However, if the plaintiff has filed the suit claiming title over the suit property in terms of [SECTION] and [SECTION] of the [ACT] burden would be on the defendant to prove that he has acquired title by adverse possession".
(iv) In the case of [PRECEDENT]. The relevant portions of the judgment are given here below:-
"4. In the case of [PRECEDENT] wherein the appellant as plaintiff claimed recovery of possession claiming title on the basis of entries in the Jamabandi, the Apex Court held that it is settled law that entries in the Jamanandi are not proof of title. They are only statement for revenue purpose. In the case of [PRECEDENT] the Apex Court held that when the suit is based on title, burden to prove the same falls on the plaintiff, though the court cannot decree as suit merely on the basis of entries in the revenue records. Mr. [ENTITY], learned counsel for the respondent has fairly conceded that in view of the settled law enunciated by the Apex Court in a series of decision he is not pressing the claim of title of the opposite party-plaintiff over the suit land, but he has submitted that the suit filed by the plaintiff should be treated as a suit based n possession and dispossession in terms of [SECTION] of the [ACT]. He has invited this courts attention to para 8 of the plaint wherein the plaintiff prayed that he be given khas possession over the suit land upon removal of the defendant's illegal possession there from".
(v) In the case of Bhau Ram -Vs. Janak Singh and Ors., reported in AIR [SECTION]12 Supreme Court 3023, particularly, paragraph-8. The same are reproduced here below:-
"8. The law has been settled by this Court in various decisions that while considering an application under [SECTION], [ACT], the Court has to examine the averments in the plaint and the pleas taken by the defendants in its written statements would be irrelevant. [vide C. Natrajan vs. Ashim Bai and Another, ([SECTION]07) 14 SCC 183(AIR [SECTION]08 SC 363 : [SECTION]07 AIR SCW 6953), Ram Prakash Gupta vs. Rajiv Kumar Gupta and Others, ([SECTION]07) 10 SCC 59, Hardesh Ores (P) Ltd. vs. Hede and Company, ([SECTION]07) 5 SCC 614:([SECTION]07 AIR SCW 3456), Mayar (H.K.) Ltd. and Others vs. Owners and @Page-SC3026 Parties Vessel M.V. Fortune Express and others, ([SECTION]06) 3 SCC 100:AIR [SECTION]06 SC 1828 : [SECTION]06 AIR SCW 863), [ENTITY] Sable and Others vs. Assistant Charity Commissioner and Others, ([SECTION]04) 3 SCC 137: (AIR [SECTION]04 SC 1801: [SECTION]04 AIR SCW 799), Saleem Bhai and Others vs. State of Maharashtra and Others, ([SECTION]03) 1 SCC 557: (AIR [SECTION]03 SC 759 : [SECTION]03 AIR SCW 174)]. The above view has been once again reiterated in the recent decision of this Court in The Church of Christ Charitable Trust & Educational Charitable Society, represented by its Chairman vs. M/s Ponniamman Educational Trust represented by its Chairperson/Managing Trustee, [SECTION]12 (6) JT 149: ([SECTION]12 AIR SCW 4136)".
10. I have considered the submissions of the learned counsels in the light of the facts and circumstances of the case and the law applicable.
There is no dispute that the parties belongs to one family originating from one ancestor namely late [ENTITY]. There is also no dispute that some of the principal respondents and some of the profoma respondents have been living in the suit land and suit property and also running a hotel. All these facts and circumstance shows that the respondents are very likely to have some interest or title over the suit land and suit property. This can only be determined by production of evidence both of primary and secondary. Therefore, to accept the claim of the petitioners at this stage like a gospel truth and to dismiss the suit at this stage is likely to result in miscarriage of justice.
It is true that a suit can be dismissed if it is devoid of any cause of action or it is bar by law of limitation but it must be remembered that cause of action and limitation involves both question of fact and law. When the question of fact and law are involved the dispute can be decided only by a trial. The present case is not a clear case where one can say that it involves only question of law or facts which are already supported by documents. The parties have contending claims and their claims appear to be quite genuine, therefore, triable. The petitioners will have nothing to loss by going through the trial whereas the respondents may suffer irreparable loss if the suit is dismissed at this stage without giving them a chance of proving their case. Weighing the two, this Court is of the opinion that all the parties involved in the suit should be given a chance to prove their respective case so that full justice is done.
In view of what has been stated, the petition is dismissed and the learned trial court is directed to take up the trial and dispose the same at the earliest but not later than 6(six) months from the date of receipt of a copy of this order.
With this, the Civil Revision Petition is disposed of.
JUDGE [ENTITY]