Civil Revision No.6502 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision:-16.7.2010 Lt. Col. Hargobind Singh (Retd.) ...Petitioner Versus Mr.Hargursharan Singh ...Respondent CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Gurbax Singh, Advocate for the petitioner. Mr.Aman Kashyap, Advocate with Mr.Harminderjit Singh, Advocate for the respondent. M ehinder S ingh S ullar , J . The epitome of facts, culminating in the commencement, relevant for disposal of present petition and emanating from the record, is that, Hargursharan Singh son of late Gurbax Singh, respondent-plaintiff, (hereinafter to be referred as “the plaintiff”) filed the present suit for a decree of declaration to the effect that he is owner and in possession, to the extent of 50% share, of the house in dispute, with a consequential relief of permanent injunction restraining Lt. Col. Hargobind Singh (retired) son of late Gurbakhsh Singh, petitioner-defendant (hereinafter to be referred as “the defendant”) from alienating the house in question in any manner. 2. The case set up by the plaintiff, in brief, in so far as relevant to decide the present controversy, was that the parties to the lis are real brothers. The defendant joined the army at young age, while plaintiff was cultivating the land in the village. In the year 1968, the defendant approached the plaintiff and proposed that as he was eligible for allotment of plot from defence quota, therefore, they should jointly purchased the house in question. Plaintiff believed and trusted his elder brother blindly and gave Rs.48,000/- in cash out of his income and funds earned from agriculture produce with the promise that the defendant would buy the Civil Revision No.6502 of 2008 2 plot in Chandigarh in their joint name to the extent of 50% share each. Subsequently, the plaintiff came to know that the defendant had purchased/got allotted two kanals plot out of money, which was paid by the plaintiff, in his own name. On enquiry in this regard, the defendant assured the plaintiff to give his share later on on the plea that as per rules, the plot could only be allotted in the name of the defendant out of quota for defence personnel and later on it will be entered in their joint names. Therefore, they decided to put this entire transactions in writing, in order to avoid any dispute in future. Consequently, a family settlement deed dated 10.11.1970 was executed by the defendant out of his free will in the presence of witnesses. 3. Levelling a variety of allegations and narrating the sequence of events in detail, concisely, according to the plaintiff that he is joint owner and in possession of the house in dispute to the extent of 50% share in pursuance of family settlement deed dated 10.11.1970. He asked the defendant to enter his name in the record of the Estate Officer, Chandigarh but in vain. Instead of giving his half share in the property in dispute, the defendant intends to alienate the house in dispute without any legal rights. On the basis of aforesaid allegations, the plaintiff filed the suit for a decree of declaration and permanent injunction against the defendant, in the manner indicated here-in-above. 4. The defendant contested the suit inter alia, pleading certain preliminary objections of maintainability of the suit, locus standi and cause of action of the plaintiff etc. On merits, the allotment of the plot/house in question was not disputed. However, the defendant claimed that he himself had paid the entire consideration amount. After depositing the amount, possession was delivered to him and conveyance deed was executed in his favour on 18.05.1971 by the Estate Officer. The plaintiff never contributed anything and did not pay any amount for the purchase of the house. The family settlement/agreement deed dated 10.11.1970 was stated to be a forged document. Succinctly, the defendant claimed Civil Revision No.6502 of 2008 3 that he is the absolute owner of the house in dispute, the indicated family settlement/agreement deed is a forged document and the plaintiff did not make any payment of consideration amount of the house. It will not be out of place to mention here that the defendant has stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. 5. Having completed all the codal formalities and in the wake of pleadings of the parties, the trial Court framed the relevant issues for proper adjudication of the case and slated the case for evidence of the plaintiff. It is not a matter of dispute that plaintiff has already produced almost his entire evidence on record in the trial Court except one or two witnesses remained to be cross- examined by the defendant. 6. Instead of cross examining the witnesses of the plaintiff, the defendant filed an application for rejection of the plaint, invoking the provisions of Order 7 Rule 11 CPC, on the grounds that (i) the plaintiff has no cause of action; (ii) he has not produced any authentic/registered document to substantiate his claim; (iii) since he is not at all in possession of any part of the suit property, so, he was required to fix the court fees as per the market value of the suit property; and (iv) suit is time barred. That being so, the defendant prayed for rejection of the plaint in this regard. 7. The plaintiff contested the application and filed the reply stoutly denying all the allegations contained in the application of the defendant and prayed for its dismissal. 8. On ultimate analysis of the material on record, the trial Court dismissed this application, vide impugned order dated 08.09.2008 (Annexure P14). 9. The petitioner-defendant did not feel satisfied with the impugned order and filed the present revision petition under Article 227 of the Constitution of India, leaving this Court in lurch to think, as to what extent, the finding should be recorded with regard to the controversy raised in the present petition, as the Civil Revision No.6502 of 2008 4 same would naturally have the direct bearing on the real issues between the parties, to be determined by the trial Court, during the course of trial. Be that as it may, but in the interest of justice, the principle of “safety saves” has to be kept in focus in this relevant context, while deciding the instant revision petition. That is how, I am seized of the matter. 10. Assailing the impugned order, learned counsel for the petitioner- defendant has contended with some amount of vehemence that since the family settlement deed dated 10.11.1970, on the basis of which, the plaintiff is claiming his half share in the house in dispute, is a forged and unregistered document and is not admissible in evidence, so, the plaintiff did not have any cause of action. The argument is that the plaintiff did not affix the ad-valorem Court fees on the market rate of the house in dispute and as the suit filed by him is hopelessly barred by limitation, therefore, the trial Court ought to have rejected the plaint under Order 7 Rule 11 CPC. In this respect, he has placed reliance on the observations of Hon'ble Apex Court in cases T.Arivandandam v. T.V.Satyapal and another (1977) 4 Supreme Court Cases 467; Samar Singh v. Kedar Nath 1987 Supp. SCC 663; the Delhi High Court in case Sudershan Kumar Seth v. Pawan Kumar Seth & Ors. 124 (2005) Delhi Law Times 305; the Allahabad High Court in case Dharampal Gir and another v. Smt.Angoori Devi AIR 1981 Allahabad 164 and the Uttarakhand High Court in case Mani Ram v. Padam Datta (D) by LRs. & Anr. AIR 2007 Uttarakhand 74. 11. On the contrary, hailing the impugned order, the learned counsel for the respondent-plaintiff urged that all the objections raised by the defendant in the application in hand cannot be decided without evidence. The argument further proceeds that since the plaintiff has sought declaration that he is joint owner and in possession of the house in dispute and for permanent injunction, so, he has affixed the requisite Court fees on it and suit cannot be termed as time barred at this stage. 12. Having heard the learned counsel for the parties, having gone Civil Revision No.6502 of 2008 5 through the record with their valuable assistance and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the revision petition. 13. As is evident from the record that the defendant has sought the rejection of the plaint under Order 7 Rule 11(a), (b) and (d) of C.P.C, which inter- alia postulates that, a) where the plaint does not disclose a cause of action; b) where the relief claimed is under-valued, and the plaintiff, on being required by the Court to so correct the valuation within a time to be fixed by the Court, fails to do so: d) where the suit appears from the statement in the plaint to the barred by any law;” The plaint shall be rejected. 14. At the very outset, possibly no one can dispute with regard to the following observations of the Hon'ble Supreme Court in T. Arivandandam's case supra: - “If any party filed a suit for the gross abuse of the process of the Court repeatedly and is a flagrant misuse of the mercies of the law and meaningful reading of the plaint, it is manifestly vexatious and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order VII, Rule 11, CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order X, C.P.C. An activist Judge is the answer to irresponsible law suits. The trial Courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men, (Cr.XI) and must be triggered against them. In this case, the learned Judge to his cost realised what George Bernard Shaw remarked on the assassination of Mahatma Gandhi : “It is dangerous to be too good.” Civil Revision No.6502 of 2008 6 The trial Court in this case will remind itself of Section 35-A, C.P.C. and take deterrent action if it is satisfied that the litigation was inspired by vexatious motives and altogether groundless. In any view, that suit has no survival value and should be disposed of forthwith after giving any immediate hearing to the parties concerned.” 15. Sequelly, in Samar Singh's case (supra), the Hon'ble Apex Court ruled that the provisions of Rule 11 of Order 7 CPC can be invoked at any stage of the proceedings and party should not be unnecessarily harassed in a suit. The idea underlying Order 7 Rule 11(a) is that when no cause of action is disclosed, the Courts will not unnecessarily protract the hearing of a suit. A litigation, which is in the opinion of the Court is doomed to fall would not further be allowed to be used as a device to harass a litigant. However, these observations are not at all applicable to the facts of the present case. 16. Above being the position on record, now the core question that arises for determination in this case is whether the plaint is liable to be rejected under the present set of circumstances as envisaged under Order 7 Rule 11 CPC or not? 17. Having regard to the rival contentions of learned counsel for the parties, to me, all the questions/issues raised by the defendant in the application are pure mixed questions of law and facts and cannot possibly be determined without adducing evidence by the parties in the trial Court. All the arguments now sought to be raised on behalf of the defendant are not at all relevant at this stage and the same may be deeply necessary at the time of final arguments in the suit during the course of trial. 18. However, the main celebrated argument of learned counsel for petitioner-defendant that since the family settlement/agreement deed dated 10.11.1970 is a forged and unregistered document and is not admissible in evidence, so, the suit of the plaintiff is bound to fail, is neither tenable nor the observations of Allahabad High Court in case Dharampal Gir and the Uttarakhand High Court in case Mani Ram (supra) are at all applicable in the present Civil Revision No.6502 of 2008 7 controversy at this stage. 19. In Mani Ram's case (supra), the property in question was a self acquired property of Jeet Ram Bahuguna and it could not be said that on 27.3.1961 when the document (paper No.41-A Ext.14) was executed and signed by the parties, the sons had any share in the self acquired property of their father. The lower appellate Court held that division of 1/3rd share to each of the sons by Jeet Ram Bahuguna, leaving no share for himself, would amount to relinquishment of his interest in the property and creating fresh ownership rights in favour of sons and such relinquishment deed requires registration. 20. Likewise, in Dharam Pal Gir's case (supra) it was observed as under:- “A bare perusal of sub-sec. (b) of S. 17 of the Registration Act shows that other non-testamentary instruments which purport to create, declare, assign, limit or extinguish whether in present or in future, any right, title or interest in immovable property of the value of Rs.100 or more has got to be registered. A bare perusal of Agreement (Exhibit 2) would clearly shows that the defendant in the aforesaid document has clearly stated that she is the absolute owner of the property in dispute and in respect of the aforesaid property she entered into an agreement not to alienate during her lifetime and that the aforesaid property would go to the heirs of the husband after her death. From the aforesaid agreement it is thus clear that there was no antecedent title admitted in the aforesaid deed in respect of the plaintiff. The defendant categorically stated that she is the absolute owner. If that be so, the terms of the agreement clearly create an interest in the disputed property in future in favour of the plaintiff and would clearly amount to transfer of property in future in favour of the plaintiff.” 21. Possibly, no one can dispute about the aforesaid observations, but the same would not come to the rescue of the defendant at this stage. In the instant case, the plaintiff has claimed the ownership of the house in dispute purchased from his own income in the name of the defendant from defence quota from the Civil Revision No.6502 of 2008 8 very beginning. The initial existing rights of ownership were subsequently incorporated in the family settlement/agreement deed dated 10.11.1970. Meaning thereby, the family settlement did not create any new right of ownership and in fact incorporated already existing rights of ownership of the plaintiff in the family settlement in question. Whether such family settlement requires registration, in view of law laid down by the Hon'ble Supreme Court in cases Kale and others v. Deputy Director of Consolidation and others AIR 1976 Supreme Court 807 and Bhoop Singh v. Ram Singh Major and others AIR 1996 Supreme Court 196 or admissible (or otherwise) in evidence or whether it is forged document, would be the moot points to be finally decided by the trial Court on the basis of evidence brought on record by the parties in order to substantiate their respective stands. If that be so, then, it cannot possibly be saith at this stage that the family settlement is a forged or fake document or is inadmissible in evidence for want of registration, as urged on behalf of the defendant. 22. Now adverting to the next contention of the learned counsel for the defendant that the plaintiff is not in possession of the house in dispute, so, he was required to affix ad valorem court fee on its existing market value, but since he did not pay the requisite fees, so, his plaint is required to be rejected, is not only devoid of merits but misplaced and speculative as well. Again, it is not a matter of dispute that the plaintiff has filed the simple suit for a decree of declaration to the effect that he is joint owner to the extent of 50% of the house in dispute since its allotment/purchase. Assuming for the sake of argument (though not admitted), if the defendant is in possession as co-owner, then, legally his possession as co- owner would be deemed to be the possession of all the co-sharers. A co-owner has an interest in the whole property and also in every part of it. The possession of property by one co-owner is in the eye of law, possession of all the joint owners even if one co-owner is in joint possession of the same. A mere occupation of larger portion or even of entire joint property by one co-owner does not necessarily Civil Revision No.6502 of 2008 9 amount to ouster as possession of one co-sharer would be deemed to be on behalf of all the co-sharers. Passage of time does not extinguish the right of the owner, who is out of possession of the joint property except in the event of complete ouster or abandonment. Therefore, the plaintiff is neither required to pay ad valorem Court fee on the existing market price of the property in dispute nor his suit can be termed to be time barred at this stage, as urged on behalf of the defendant. Therefore, the observations of Delhi High Court in Sudershan Kumar Seth's case (supra) are not applicable to the facts of the present case at this stage. 23. Thus, it would be seen that each of the objections/issues raised by the defendant in the application under Order 7 Rule 11 CPC, as discussed here-in- above, can only be decided on the basis of evidence brought on record by the parties and not otherwise. Hence, the contrary arguments of the learned counsel for the petitioner-defendant “stricto sensu” deserve to be and are hereby repelled under the present set of circumstances. 24. Meaning thereby, the plaint can only be rejected if it squarely falls within the ambit and four corners of Order 7 Rule 11 CPC and not otherwise. An identical question arose before this Court in case Rajesh Grover v. Smt. Rita Khurana and others (2006-2) PLR 244. After examining the relevant provisions of Order 7 Rule 11 CPC, it was held as under:- “The Court should be circumspect in rejecting a plaint at the threshold as it entails very serious civil consequences. The Court should exercise this power only in those cases where it comes to the clear conclusion that any of the conditions enumerated in Clauses (a) to (f) are satisfied and it should be so done in exceptional-circumstances. The truthfulness of narration of facts in the plaint or the written statement are not to be judged at the stage of rejection of plaint. That is a matter of evidence which the Court shall go Civil Revision No.6502 of 2008 10 into at the trial of the case. The weakness or the strength of the case of the parties is not to be judged at that stage. A distinction is to be drawn between rejection of a plaint and dismissal of a suit.” These observations “mutatis mutandis” are applicable and are the complete answer to the problem in hand. 25. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 26. In the light of the aforementioned reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the trial, the instant revision petition is hereby dismissed, in the obtaining circumstances of the case. However, it is made clear that nothing recorded herein above would reflect on the merits of the case, in any manner, as the same has been so observed for a limited purpose of deciding the instant petition. (Mehinder Singh Sullar) 16.7.2010 Judge AS Whether to be referred to reporter?Yes/No