Case: COLONEL SHRAWAN KUMAR JAIPURIYAR @ SARWAN KUMAR JAIPURIYAR Vs. KRISHNA NANDAN SINGH AND ANOTHER

3. The first respondent has filed a civil suit T.S. No. 97/16 against Sarwan Kumar Jaipuriyar, the appellant before us and Anil Kumar, the second respondent before us. The second respondent is the brother of the first respondent.4. The plaint admits that there was amicable division and partition of property bearing Holding no. 163 old Holding no. 42, Ward No. 10 (New) 7 (Old), Mahal No.1, Mohalla- Mainpura, P.S. Danapur, Patna amongst respondent no.1, respondent no.2 and their brother Sunil Kumar Mehta. This partition was evidenced by recording Memorandum of Partition dated 04.12.2008, which was signed and executed by the three brothers.

Reasoning: 5. The factum of partition and the partition deed itself is not challenged and questioned in the civil suit preferred by the first respondent. In fact, Sunil Kumar Mehta, the third brother is not even a party to the suit. The suit also acknowledges that the second respondent was allotted and became the owner of south-eastern part of the aforesaid holding whereas the first respondent stands recorded as the owner of another portion and that the first respondent and second respondent have been paying taxes for the respective portions to Nagar Parishad under receipts.7. The Memorandum of Partition dated 04.12.2008 which is placed on record and an accepted/admitted document does not give any right of pre-emption to the first respondent. There is also no pleading to the said effect in the plaint. As the partition and the Memorandum of Partition are not denied or challenged, ownership of the second respondent and his right to sell the property in terms of the Memorandum of Partition are and would be undisputed legal rights under the Transfer of Property Act, 1882. There was no restraint to exercise of this right vested with the second respondent by contract or under any statute. This is not alleged and adverted to in the plaint. It is also an undisputed position that Sunil Kumar Mehta who was on partition allotted the third portion of the property, has sold and transferred his portion to a third party vide registered sale deed dated 15.10.2009. The said sale deed is not under challenge and was not questioned by the first respondent.8. The aforesaid factual and legal position being admitted and accepted in the plaint, we fail to understand how and on what basis, the first respondent claims right of pre-emption or repurchase of the portion that was allotted to the second respondent in terms of amicable division as evidenced by Memorandum of Partition dated 04.12.2008. On the aforesaid partition, the second respondent became the sole and exclusive owner of the portion allotted to him, a legal position, which is not even controverter and denied by the first respondent in the plaint.9. In the aforesaid background, it is to be held that the plaint does not disclose any cause of action for the relief prayed, that is, a direction to the second respondent to execute and register a sale deed in favour of the first respondent and to put the first respondent in possession. There does not exist any legal right which the plaintiff or the first respondent is entitled to invoke and enforce. For a right to exist, there must be a correlative duty which can be enforced in a law suit. A right cannot exist without an enforceable duty. Ownership means a bundle of rights which would normally include the right to exclude and transfer the property in a manner one wants, subject to contractual obligations as agreed or statutory restrictions imposed on the owner. In the present case, the pleadings fail to establish violation of a statutory right or breach of a contractual obligation which creates an enforceable right in the court of law. In the absence of any such right or even a claim, the plaint would not disclose cause of action.10. This Court in Church of Christ Charitable Trust and Educational Society Represented by its Chairman v. Ponniamman Educational Trust Represented by its Chairman/Managing Trustee, (2012) 8 SCC 706   has referred to the earlier judgment of this Court in A.B.C. Laminart Pvt. Ltd. and Another vs. A.P. Agencies, Salem, (1989) 2 SCC 163   to explain that the cause of action means every fact which, if traversed, would be necessary for the plaintiff to prove in order to seek a decree and relief against the defendant. Cause of action requires infringement of the right or breach of an obligation and comprises of all material facts on which the right and claim for breach is founded, that is, some act done by the defendant to infringe and violate the right or breach an obligation. In T. Arivandanam vs. T.V. Satyapal and Another (1977) 4 SCC 467   this Court has held that if the plaint is manifestly vexatious, merit less and groundless, in the sense that it does not disclose a clear right to sue, it would be right and proper to exercise power under Order VII Rule 11 of the Code of Civil Procedure, 1908 (Code, for short). A mere contemplation or possibility that a right may be infringed without any legitimate basis for that right, would not be sufficient to hold that the plaint discloses a cause of action.