1 IN THE HIGH COURT OF BOMBAY AT GOA CIVIL REVISION APPLICATION NO. 1 OF 2009 Shri Shital Prabhu Nachinolkar and 6 Ors. .. Applicants. Versus Mrs.Florinda Fernandes .. Respondent. Mr. M. S. Sonak,Advocate for the applicant. Mr. J. E. Coelho Perreira, Senior Advocate with Mr. V. Korgaonkar,Advocate for the respondent. CORAM :- U. D. SALVI, J. DATE OF RESERVING THE ORDER : 10 th July, 2009 . DATE OF PRONOUNCING THE ORDER : 17 th July, 2009. ORDER : The present Civil Revision Application is aimed at quashing of the order dated 16.08.2008 refusing to reject the plaint in R.C.A. No.57/2007/A under Order VII, Rule 11 of C.P.C., 1908 passed by the Civil Judge, S.D., Panaji. 2. The respondent/plaintiff Florinda Fernandes claiming to be deemed tenant purchaser of the suit property 'Odlem Bhat' surveyed under No.79/1 of Village Taliegaon Tal.Tiswadi, Dist. North Goa in the year 1976 by virtue of 2 Agricultural Tenancy Act, 1964, instituted the present suit against the petitioners/ defendants for (i) declaration that Partition Deed dated 21.3.1996 executed between the defendants, is illegal and void. (ii)Declaration that subdivision/s effected in respect of the suit property on the force of the said Partition Deed are illegal and void. (iii)Injunction simplicitor restraining the petitioners/ defendants from developing, subdividing, selling and interfering with the suit property in any manner whatsoever. 3. The plaintiff pleaded that some where in the year 1977, the defendants' predecessor had approached and disclosed to the plaintiff and her deceased husband that he had purchased half of the suit property from the legal heirs of late Mr. Savaivir Sadassiva Rajendra Vadiar Raja Bahadur, the original owner of the suit property, of whom the respondent/plaintiff and her husband and the predecessor of her husband were lessees holding the suit property. The respondent/plaintiff further pleaded that the predecessor of the defendants was then informed about their/her possession 3 of the entire suit property save and except the mundkarial dwelling houses and that he had no right, title and interest to the suit property and thereafter, there was no interference or disturbance in the possession of the suit property at the hands of the defendants or their predecessor in title, and the respondent/plaintiff had been enjoying the suit property as before. The cause of action for the said suit, the respondent/plaintiff pleaded, firstly arose on 10.1.2006 when the plaintiff's son Mr. Candido Dias, member of Village Panchayat,Taleigaon came across a document of Partition Deed along with the plans for development of the part of the suit property as a result of submission of proposal therefor by the defendants to the Village Panchayat; and thereafter, on 19.1.2006, 8.3.2006 and 17.5.2007 i.e. upon failure of the defendants to respond to the notices issued to them and published in daily newspaper 'Gomantak' and 'Gomantak Times' and further when there was developmental activity at the suit property. 4. The respondent/plaintiff further pleaded that despite the fact of lack of valid title to the suit property, the defendants have been impersonating as the owners of the suit property and have moved an application for mutation in 4 the record of rights in respect of the suit property based upon the said Partition Deed before the Mamlatdar of Tiswadi at Panaji and have also obtained approval of the Agricultural Planning and Development Authority of Village Panchayat of Taleigaon for development of the suit property on the basis of false claim in that regard. The respondent / plaintiff further pleaded that the proceedings for declaration of a tenancy right have been initiated against the legal heirs of the original landlord before the Court of Mamlatdar, Tiswadi at Panaji. The plaint also discloses the challenge to the said Partition Deed on the grounds: (i) false reference to the area of 66975 square metres being inherited by the defendants (ii) the Partition Deed fails to disclose the share of Government and other parties including mundcars, and tenancy rights of the respondent/ plaintiff in the suit property (iii) execution of the Partition Deed without obtaining permission from the Country and Town Planning Board or the Planning and Development Authority, North Goa at Panaji (iv) illegal subdivision of the suit property (v) undervaluation of the suit property. Based on these pleadings, the suit came to be instituted in the Court of Civil Judge, S.D., Panaji in May 2007. 5 5. The learned Advocate Sonak for the petitioners/defendants submitted that the learned Trial Court erred in properly appreciating the following grounds urged before it for rejection of the plaint. (i) There is no disclosure of cause of action in the plaint in as much as the real foundational relief of challenging the title of the defendants acquired in 1976 ought to have been sought, has not been sought in order to get over the bar of limitation; and merely a declaration regarding the Partition Deed dated 21.3.1996 which conferred no title on the parties executing it i.e. the defendants, and such other consequential reliefs flowing therefrom have been sought. (ii)The Partition Deed being registered, there was constructive notice of its execution to the plaintiff, who was deemed to have knowledge of its execution since the time of its registration i.e. in April 1996 and as such, the present suit is hopelessly barred by law of limitation, more particularly so, when the slur on the title to the said property became apparent to the respondent/ plaintiff in the year 1977. (iii)The suit raising questions regarding wrongful 6 dispossession of the agricultural tenant the respondent/ plaintiff in respect of the suit property, which the Mamlatdar was entitled to settle, decide or deal with under Section 8(A) of Goa, Daman and Diu Agricultural Tenancy Act, is barred by the provisions of Section 58 subclause 2 of the said Act. (iv)The suit has been grossly undervalued despite allegation in the plaint that the Partition Deed under challenge had been grossly undervalued. 6. The learned Advocate Sonak referred to appraisal of the plaintiff regarding purchase of half portion in the suit property from the legal heirs of the erstwhile owner Mr.Savaivir by the predecessor of the defendants in 1977. This fact, the learned Advocate Sonak, for the petitioners argued, reveals knowledge on the part of respondent/ plaintiff regarding invasion over her title as a deemed tenant purchaser of the suit property and as such, any such invasion ought to have been challenged by way of foundational relief without which the slur on the title of the respondent/ plaintiff would remain to continue and no meaningful remedy would be available in the present case. In this context, he cited one judgment in Hardesh Ores (P) Ltd. Versus Hede 7 and Company reported in 2007(5)SCC 614, wherein the maintainability of suit for enforcement of negative covenants in (purportedly renewed) agreement almost four years after the respondent had categorically denied the said renewal by remedy of prohibitory injunction, was brought in question and the Apex Court while affirming the view of the High Court of Judicature at Bombay and the Trial Court that the suits were barred by limitation, observed : “however, in this case we have found that the real foundation with the suit was that the earlier agreements stood renewed automatically continuing the same terms and conditions as in the original agreement including the negative covenants. There is neither a document to prove that the agreement stood renewed nor is there 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 declaration as to their subsisting rights under a renewed agreement which is apparently barred by limitation.” 8 7. To further his argument, the learned Advocate Sonak cited judgments in N.V.Srinivasa Murthy and others Versus Mariyamma and others reported in (2005)5 SCC 548, I.TC. Limited Versus Debts Recovery Appellate Tribunal reported in (1998)2 SCC 70 and urged the Court to find out from the plaint whether the plaintiff has created an illusion of cause of action by clever drafting and what is the real cause of action warranting the relief. He further submitted that it is impermissible to omit to claim the relief warranted on the facts and claiming other relief to get around the bar of limitation. 8. Reading from the judgment of the Single Bench at Goa in Shankar Rama Gaude Versus Devastan of Shri Bhagwati of Tuem reported in 2006(1) AIR Bom R 501, he pointed out the exposition of law on partition done by Privy Council in the judgment of Girija Versus Sadashiv Dhundiraj reported in AIR 1916 PC 104, and submitted that the partition does not give a title or create a title in a person and, therefore, the cause of action, if any, for the suit in question arises when the title to the property partitioned was claimed. He further argued that in any case assuming the partition of the property offered cause of action for the suit, it ought to 9 have occurred on the day the said Partition Deed was executed and registered, and in that case as the time had started running against the respondent/ plaintiff from the date of registration, the suit was hopelessly time barred. He further submitted that the respondent/ plaintiff was deemed to have knowledge about the Partition of the said property from the date of registration of the Partition Deed. He placed reliance on the judgment in Dilboo Versus Dhanraji and Others reported in (2000)7 SCC 702 to fortify these submissions. 9. The learned Advocate Sonak quoted from the judgment in T. Arivandanam Versus T. V. Satyapal and another reported in (1977)4 SCC 467 that it was the duty of the learned Trial Court to find out from a meaningful- not formal- reading of the plaint whether the plaint is manifestly vexatious and merit less, in the sense of not disclosing a clear right to sue and whether clever drafting has created illusion of cause of action; and if he sees that clever drafting has created illusion of a cause of action; he should nip it (such mischief) in the bud. In his view, the Trial Court erred in not reading the plaint meaningfully and had casually dealt with the issue raised for rejection of the plaint. 10 10. Relying on the judgment in Jaya R. Deshprabhu and others versus Surendra Anant Naik Dessai reported in (1995)2 G.L.T, 305, the learned Advocate Sonak for the petitioner contended that the plaint in a suit is essentially a plaint by agricultural tenant for claiming a relief against her threatened dispossession by the persons claiming through the landlord – L.Rs. of late Mr. Savaivir Sadassiva Rajendra Vadiyar Raja Bahadur and, therefore, it is liable to be rejected as the Civil Court has no jurisdiction to entertain the plaint by virtue of Section 8(A) read with Section 58 subclause 2 of the Goa, Daman and Diu Agricultural Tenancy Act, 1964. 11. The learned Senior Advocate Coelho Perreira for the respondent/plaintiff, after going through the plaint and the application of the petitioners/defendants made for the rejection of the plaint before the Trial Court, submitted that while exercising revisional jurisdiction it needs to be taken into account that the grounds urged regarding the suit being barred by the provisions of the Goa, Daman and Diu Agricultural Tenancy Act, 1964 and the undervaluation of the plaint now before the Bench were not agitated before the Trial Court and, therefore, it is now not open in revision to 11 find fault with the impugned order in order to throw the suit out of the Court at the threshold. Adding to this submission, the learned Advocate Coelho Perreira pointed out that the plaintiff/ respondent had ceased to be an agricultural tenant and had become 'deemed purchaser' by virtue of Section 18- A of the Goa, Daman and Diu Agricultural Tenancy Act, 1964 and the petitioners/ defendants were trespassers and, therefore, the lis between the two, did not fall in the category of the cases of threatened wrongful dispossession of a tenant at the hands of his landlord as envisaged under Section 8A of the said Act; and, therefore, the case of Jaya R. Deshprabhu (supra) cited by the petitioners/ defendants is not applicable in the present case. In this connection, relying on the judgment in Smt. Palmira Versus Inacio Mariano Dias and others reported in 1998(4) Bombay Cases Reporter 526, Panaji Bench, he submitted that the Mamlatdar would have no jurisdiction to decide the questions between the tenant and the stranger in relation to the land, which position as mentioned in the said case, existed in the present case. As regards the question of valuation, he pointed out that the stage for rejection of the plaint on that count, had not arisen as per the Order VII, Rule 11(b) of C.P.C. as there was no failure on the part of the plaintiff/ respondent to correct the 12 valuation following the requisition made by the Court in that regard. 12. Relying on the judgment reported in ( 2005)7 SCC 510 Popat and Kotecha Property Versus State Bank of India Staff Association, (2 004)3 SCC 137 Sopan Sukdeo Sabale and another Verus Assistant Charity Commissioner and others , 2007(2) Bombay Cases Reporter 196 Zuari Industries Ltd Co. Versus Communidade of Sancoale and others, he urged the Court to simply go through the plaint and not through the written statement to understand whether the plaint has disclosed the cause of action as required by the law and not to mix up the issues of “right to relief” and the cause of action. If one goes through the plaint as expected by the Apex Court through the said judicial pronouncement, he argued, it is not difficult to see therefrom that “cause of action for the suit arose on account of interference in possession of the suit property in hands of the respondent/ plaintiff and that such acts of trespass/ interference in the possession of the suit property were on the strength of partition deed referred to there in. “Cause of action” in his view was thus clearly disclosed in the plaint and it is not expected of the Trial Court to go through the merits of this 13 “cause of action.” 13. As regards the issue of limitation, he argued the suit was instituted within 3 years of the knowledge of the partition deed to the respondent/plaintiff through her son Mr. Candido Dias, Panch of Taliegaon Panchayat on 10.01.2006. With reference to the Dilboo's case (supra), he commented that the said case was one in which the evidence was led and the question of deemed knowledge of the registered document to the plaintiff was thereupon answered, and whereas in the present case without recording the evidence, the ratio in the said judgment is being applied to the case to expound the ground of limitation at the very threshold. Relying on the judgment reported in 2006(5) SCC658 Balasaria Construction (P). Ltd. Versus Hanuman Seva Trust and others, he contended that the question of limitation is a mixed question of law and fact and ex-facie on reading of the plaint, the suit cannot be held to be barred by limitation. He, therefore, urged the Court to dismiss the petition and maintain the order of the learned Trial Court declining to reject the plaint. 14. In brief rejoinder to the submissions made on 14 behalf of the respondent/plaintiff it has been pointed out from the very provisions of Order VII, Rule 11 that it is the duty of the Court to reject the plaint in the cases falling within any of its clauses (a) to (f). It has been further urged that the plaint in the present case, deserves to be rejected if the statements in the plaint without addition or subtraction show that it is barred by any law including the law of limitation as contemplated in clause (d) of Order 7, Rule 11 of C.P.C. 15. At the outset, therefore, it is necessary to answer the first exception taken to the agitation of the grounds namely (i)non-maintainability of the suit under the Goa, Daman and Diu Agricultural Tenancy Act, 1964 (ii) undervaluation of the plaint for the first time in revision. The opening words of Order 7, Rule 11 of C.P.C. mandate the rejection of the plaint in following terms : “Order 7, Rule 11- Rejection of plaint - The plaint shall be rejected in the following cases : a) where it does not disclose cause of action b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the the valuation within the time to be fixed by the Court, failed to do so. 15 c) where the relief claimed is properly valued....... d) where the suit appears from the statement in the plaint to be barred by any law; e) ................................................. f) .................................................” While interpreting this provision, the Hon'ble Apex Court in Sopan Sukhdeo Sabale's case (supra) observed that 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 four clauses of Rule 11, even without intervention of the defendant. Thus, irrespective of the grounds taken in the application for rejection of plaint by the petitioners/defendants, it was the duty of the Trial Court to meaningfully scrutinise the plaint and to see whether the plaint suffers from any of such infirmities or not. Having failed to do so, it would not be improper for the plaintiff/ respondent to point out such failure of the learned Trial Court in exercising jurisdiction in the matter of rejection of the plaint. It would, therefore, be necessary to look into newly agitated grounds for rejection of the plaint namely non-maintainability of the suit by virtue of provisions of the Goa, Daman and Diu Agricultural Tenancy Act and 16 undervaluation of the plaint. 16. Reading of the plaint shows that the plaintiff became deemed purchaser of the suit property in the year 1976 in view of the provisions of the Goa, Daman and Diu Agricultural Tenancy Act, 1964 referred to in the plaint as Agricultural Tenancy Act,1964 on the force of the said lease to the parents of the plaintiff's late husband Mr.Carmo Caldeira, the only successor of his parents, to hold the suit property as the lessee of the original landlord and owner, and possession of the suit property as consequence thereof. No where in the plaint, a clear statement has been made by the plaintiff that the predecessors of the defendants were the landlords or the persons claiming through the landlords except a statement that the predecessors of the defendants had made allegations regarding purchase of half of the suit property from the legal heirs of late Mr. Savaivir without disclosing who the legal heirs were. Though many things are being stated about the acquisition of title to the suit property by the predecessor of the defendants in the WS, the averments in the plaint are germane for deciding the issue of rejection of plaint and the pleas taken in the written statement are wholly irrelevant for such purpose. From the 17 statements in the plaint, it can be seen that the plaintiff/respondent is refusing to acknowledge that the defendants, more particularly the defendants' predecessor were/are the landlords or the persons claiming through the landlords. On this background, the dispute over the possession of the suit property cannot be said to be the dispute requiring adjudication by the Mamlatdar under Section 8A of the Goa, Daman and Diu Agricultural Tenancy Act, 1964. Smt. Jaya R. Deshprabhu's case (supra) cited by the petitioners/defendants clearly differs on the fact in as much as it concerns the plaint lodged by the alleged tenant for the relief against threatened dispossession by landlords and, therefore, is of little avail to the petitioners/defendants. Section 58 of the said Act expressly barring the jurisdiction of Courts in such cases therefore, would not come into play. 17. As regards the issue of valuation there has been no direction by the Court to correct the valuation within time and consequently no failure on the part of respondent/ plaintiff to correct the valuation as required by Order VII, Rule 11 clause (b) can be construed in the present case. 18. Holding on to the premise in line with the 18 contentions of the respondent/plaintiff that the Court has to ascertain whether the plaint discloses cause of action or not and not to ascertain whether the plaintiff would be entitled to get relief asked for in the facts and circumstances, the Trial Court proceeded to turn down the plea for rejection of the plaint. Very rightly, the Trial Court is not expected to evaluate the strength of the plea for the reliefs prayed for in the plaint as success and failure of the claim made is totally different issue. What is important is the disclosure of the cause of action from the pleadings in the plaint in real sense. 19. In the instant case, para 30 of the plaint reveals a clear statement regarding the cause of action in the following terms “cause of action” arose on March 2006 when the plaintiff for the first time came across Partition Deed dated 10.01.1996. Arising of cause of action thereafter, seems to be consequential to the said Partition Deed. This can be further perceived from the statements made in para 24, 25 and 26 of the plaint, which speak of illegal subdivision of the suit property on the strength of the said Partition Deed and entitlement of the plaintiff to get the relief of declaration that the Partition Deed dated 21.3.1996 is bogus and not liable to be acted upon by any person. 19 20. With reference to T. Arvindandam's case (supra), the Hon'ble Apex Court while dealing with the Sopan Sukdeo Sabale and others case (supra) exhorted the Courts below to exercise the power under Order 7, Rule 11 of the Code if on meaningful and not formal reading of the plaint, it is manifestly found that the plaintiff is vexatious and merit less in the sense of not disclosing a clear right to sue. As a matter of guidance the Hon'ble Apex Court further expressed that intention of the party concerned has to be gathered formally from the tenor and terms of his pleadings taken as a whole. 21. Keeping this at the back of mind, it becomes necessary to first understand what is cause of action. The Law Lexicon, a celebrated work of P. Ramnath Iyyer, Second Edition reprint 2004 elaborates meaning of the phrase cause of action in following terms : “ the elements of cause of action are; (i) breach of duty owing by one person to another; (ii)damage resulting to other from the breach.” It further elaborates that the commission or omission of an act by the defendant and damage to the plaintiff in consequence thereof, must unite to give a good cause of action and no one of these facts by itself is a cause of action. 20 22. The respondent/plaintiff in clear terms has indicated the Partition Deed between the defendants as the basis of the cause of action. While disposing of Shankar Rama Gawade's case (supra) the Single Bench of Panaji Goa reiterated the exposition of law on partition done by Full Bench of this Court in Shrikrishna Nimaji's case relying upon the decision of M. T. Girija Bai Versus Sadashiv Dhundiraj and others reported in AIR 1960 PC 104 that the Partition Deed does not give a title or create a title in person, it only enables the person to obtain what is his own in a definite and specific form for the purpose of disposition independent of the wishes of his former