:1: 26.11-cra bgp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.26 OF 2011 WITH CIVIL APPLICATION NO.289 OF 2011 Hussainmiya Shahabuddin Khamse and Anr. ..Applicants Vs. Yunus Idris Karjikar and Ors. ..Respondents Mr.P.S.Dani for applicants. Ms.Gauri Godse for Respondents. CORAM :- B.R.GAVAI,J. DATE :- APRIL 28, 2011 P.C. 1. By way of the present Revision Application, the applicants challenge the order dated 1st October, 2010 passed by the learned Trial Court below Exhibit 67 in Regular Civil Suit No.98 of 2009, thereby deciding the preliminary issue regarding jurisdiction. 2. Respondent Nos.1 to 3 have filed the suit for declaration and injunction. One of the reliefs claimed in the said suit is that the Mutation Entry No.1030 dated 16th August, 2004 be declared as illegal. In the said suit, an application Under Section 9-A came to be filed by the present applicants. It was contended on behalf of the applicants, that the suit was barred in view of Sections 4 and 11 of the Bombay Revenue Jurisdiction Act,1876 and also in view of Sections 158 and 106 of the Maharashtra Land Revenue Code. It was also contended, that ex-facie the said suit was filed beyond limitation and as such, the suit was not maintainable. On the basis of the said application, a preliminary issue came to be framed to the effect as to whether the Court had jurisdiction to try and entertain the present suit. Vide the order impugned below Exhibit 67, the learned Trial Court held that it has jurisdiction to entertain the suit. Being aggrieved thereby the present application under Section 115 of the Code of Civil Procedure. :2: 26.11-cra 3. Ms.Godse, learned Counsel appearing on behalf of the applicants submits that perusal of Section 4 read with Section 11 of the Bombay Revenue Jurisdiction Act,1876 would reveal, that since the basic relief claimed in the suit was regarding the validity of the Mutation Entry dated 16th August, 2004, the suit was not tenable. It is further submitted, that in view of a specific bar under Section 106 read with Section 158 of the Maharashtra Land Revenue Code, the suit was not tenable before the learned Civil Judge. The learned Counsel in this respect relies on the judgment of the learned Single Judge of this Court in the case of Narendra Voikunt Raikar Vs. Amaral Pereira 2007(3) ALL MR 222. The learned Counsel further submits that since the suit challenges the Mutation Entry dated 16th august, 2004, the suit filed in the year 2009 was ex-facie beyond limitation and as such, on this ground also the learned Trial Court ought to have rejected the plaint. The learned Counsel relies on the judgment of the Division Bench of this Court in the case of Foreshore Co-operative Housing Society Ltd. Vs. Praveen D.Desai & Ors. 2009 (1) BCR 757. The learned Counsel further submits that the real object of Order VII Rule 11 of the Code of Civil Procedure is to keep frivolous suit out of Court. The learned Counsel submits that the learned Trial Court has failed to apply the law laid down by the Apex Court in the case of Sopan Sukhdeo Sable and Ors. Vs. Assistant Charity Commissioner and Ors. (2004) 3 SCC 137. 4. Shri P.S.Dani, the learned Counsel appearing for the respondents, on the contrary submits that the perusal of the plaint would reveal that the challenge to the Mutation Entry was an ancillary relief and basically the suit was for a declaration of title of the plaintiffs in the suit land. He further submits that the suit was required to be filed since on account of an illegal Mutation Entry, the applicants-defendants were illegally trying to sell the property, which they were not entitled to. It is further submitted, that for protecting the right of the plaintiffs, the suit was filed. He further submits, that in so far as the limitation is concerned, the illegal act of the applicants-defendants gives rise to cause of :3: 26.11-cra action to file the suit in question and therefore, the contention in that regard is also not correct. 5. It is settled principle of law, that while considering the issue of jurisdiction, the averments in the plaint as a whole will have to be taken into consideration. Some sentences operating in different parts of the plaint cannot be read in isolation to determine the question. Perusal of the pleadings in the plaint would reveal, that it is the basic contention of the plaintiffs that they have title in the suit land. It is further their contention that the defendants in collusion with the Tahasildar, Kolhapur have got entered Mutation Entry No. 1730 so as to adversely affect the rights of the ownership of the plaintiffs over the suit land. It is also their contention that on the basis of the said sale deed, the defendants have illegally executed sale deeds dated 16th May, 2008 and 25th April, 2008 in respect of the suit land, which they are not entitled to. Reading the averments in the plaint, it would reveal, that it is the basic contention of the plaintiffs, that they are the owners of the suit land and the said lands have been sold illegally which are purchased by the applicants- defendants. In this premise, the plaintiffs have claimed declaration that they are owners and in lawful possession of the suit land in spite of the Mutation Entry No.1730. It can thus be seen that the basic relief claimed in the suit is regarding ownership of the plaintiffs. In that view of the matter, the present suit would be squarely covered by Section 5(b) of the Bombay Revenue Jurisdiction Act,1876, which reads thus; 5. Nothing in Section 4 shall be held to prevent the Civil Courts from entertaining the following suits; (a) ............ (b) Suit between private parties for the purpose of establishing any private right, although it may be affected by any entry in any record of revenue survey or settlement or in any village papers. 6. It can thus clearly be seen that the suit between the private parties for the purpose of establishing any rights although it is affected by an entry in any :4: 26.11-cra revenue record, is squarely saved by the provisions of the said Act. 7. In so far as the contention regarding Section 158 of the Maharashtra Land Revenue Code is concerned, the said provision bars a suit against the Government or an Officer of the Government in respect of the entry made in any of the revenue record. However, a perusal of the averments in the plaint would reveal, that no relief is claimed against the Government or any of its Officer but relief is claimed against a private individual. In so far as the judgment of the learned Single Judge in the case of N.V.Raikar (supra) is concerned, perusal of paragraph No.7 itself would reveal, that what has been held is that in view of the provisions of Section 106 of the Maharashtra Land Revenue Code, the learned Trial Judge could not have directed the Collector to amend the survey record. However, the same is not the question herein. 8. In so far as the contention of the learned Counsel for the applicants regarding the limitation is concerned, for considering the said issue, only the averments in the plaint will have to be looked into. Equally, the averments in totality accruing in the plaint would have to be taken into consideration. At first blush, reading of only paragraph No.19 would lead to conclusion that the contention of the applicants in that regard is correct. However, if paragraph No.13 is read with paragraph No.19, it would make clear that the Plaintiffs have averred, that the sale deeds executed on 16th May, 2008 and 25th April, 2008 by defendant Nos.3 to 5 in favour of the present applicants - defendants and the attempts by defendant Nos.9 to 13 to take possession of the suit land have given them a cause of action to file the present suit. If it is the contention of the applicants that this is not correct, they will have to resist the said fact. The said question would be a mixed question of law and fact, which can be decided only at the stage of hearing of the suit. In so far as the judgment of the Division Bench of this Court in the case of Foreshore CHS Ltd. (supra) is concerned, if upon reading of the averments made in the plaint, taken it at its face value, would lead to a conclusion that the suit is beyond limitation, then :5: 26.11-cra the Court would be required to reject it on that ground. However, such is not the case here. In that view of the matter, the said judgment is not applicable to the facts of the present matter. 9. In so far as the judgment of the Apex Court in the case of Sopan Sukhdeo Sable (supra) is concerned, rather than supporting the case of the applicants, it would support the case of the respondents. The learned Counsel for the applicants has relied on this judgment in support of her contention that unless a real cause of action is disclosed in the plaint, the suit should not be entertained and if such a cause of action is not disclosed, the Court should exercise the jurisdiction under Order VII Rule 11 of the Code of Civil Procedure. However, it can be seen from paragraph Nos.13 to 15, that for ascertaining such a question, the plaint, as a whole is required to be read. As already observed hereinabove, reading the plaint in entirety would not lead to a conclusion that no cause of action is disclosed in the plaint. In that view of the matter, reliance placed by the learned Counsel for the applicants on the aforesaid judgment would not support the case of the applicants. 10. In that view of the matter, it cannot be said that the jurisdiction exercised by the learned Trial Court has been exercised with material irregularity warranting interference under Article 227 of the Constitution of India. Hence, the Civil Revision Application stands rejected. 11. In view of the disposal of the Civil Revision Application, no orders are necessary on the Civil Application. Hence, the same stands dismissed. (B.R.GAVAI, J.)