1 CIV.R.A. NO. 10 of 2005 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.10 OF 2005 (Balkrishna Murlidhar Acharya and others vs. Ganeshlal Prabhulal Agrawal (deceased), Smt.Kamalabai w/o Ganeshlal Agrawal and others) -------------------------------------------------- Office notes, office Memoranda of Court’s or Coram,appearances, Court’s orders Judge’s or directions and Registrar’s orders Orders Mr. R.R.Mantri, Adv., for the petitioners. Mr. A.K.Gugale, Adv., for R.Nos. 1 to 7. ... CORAM: K.U.CHANDIWAL, J. DATE:8-12-2010 1. Heard. Rule was issued on 28th Sept.,2006. 2. Respondents filed suit seeking declaration that he was in possession of the disputed property since 1963 and he has become owner by adverse possession and by prayer clause B, he has sought perpetual injunction and also based on the sale deed, the petitioner should not alienate the property nor disturb the peaceful possession and enjoyment of the respondent. 2 CIV.R.A. NO. 10 of 2005 3. An application in terms of Order 7 Rule 11-A and D of C.P.C. was moved by the petitioner pointing the learned Judge that the suit that has been filed on 15.2.1994 against the petitioner seeking above referred relief is not maintainable as there was no cause of action. As the respondent accepts the ownership of the petitioner and, consequently, whatever would be the possession of the respondent, it would be a permissive possession rendered by the petitioner. 4. Learned Counsel, in order to substantiate his contention, took recourse to the judgment of the Hon'ble Apex Court in Sopan Sukhdeo Sable and others Vs. Assistant Charity Commissioner and others ( AIR 2004 SUPREME COURT 1801). The Hon'ble Lordships of the Apex Court, in the said judgment, have referred to earlier judgment in the matter of Saleem Bhai and others v. State of Maharashtra and others ( 2003 (1) SCC 557) wherein the Apex Court 3 CIV.R.A. NO. 10 of 2005 has observed, " The relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial Court can exercise the power at any stage of the suit - before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Order VII Rule 11 of the Code, the averments in the plaint are the germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage." 5. The Hon'ble Apex Court also considered the judgment in the matter of I.T.C.Ltd. V. Debts Recovery Appellate Tribunal and others ( 1998 (2) SCC 70) in which it was held, " The basic question to be decided while dealing with an application filed under Order VII Rule 11 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 Order VII Rule 11 of the Code." 6. In the light of above settled position, considering the pleadings as a whole, it is apparent, even if the respondent has pleaded that sale deed was sham, as he contributed the sale price, giving a colour of Benami transaction, however, in the subsequent para, he has 4 CIV.R.A. NO. 10 of 2005 unequivocally illustrated that he was in possession of the property since 1962-1963, uninterruptedly, and has become owner by adverse possession, such pleading is even ornamented in the prayer clause. 7. It cannot be said that there was no cause of action to the respondent to initiate the said suit. The plea of adverse possession having been raised, it would have its impact irrespective of the plea of Benami transaction between the parties. In the situation, I do not see any error or perversity on the part of the learned Judge in rejecting the application below Exh.110. 8. Civil Revision Application lacks merit, dismissed. Rule discharged. The learned Judge seized with the matter shall ensure expeditious hearing as the matter is pending since 1994. (K.U.CHANDIWAL) JUDGE AGP/10-05cra