Reserved Judgment

IN THE HIGH COURT OF UT TARAKHAND AT NAINITAL

Writ Petition No. 1954 of 2011 (M/S)

Amrish R. Kilachand ……. Petitioner

Versus

Madhvi Harsh Kilachand & others ……. Respondents

Mr. B.M.Pingal, Advocate for the petitioner.

Mr. Arvind Vashistha, Senior Advocate assisted by Mr. Siddhartha Sah,

Advocate for respondent no. 2.

List of cases referred:

1. (2019) 3 SCC 191, Bhimabai Mahadeo Kambekar (Dead) through

L.R. Vs. Arthur Import and Export Company and others

2. 2019 SCC OnLine SC 372, Raghwendra Sharan Singh Vs Ram

Prasanna Singh (dead) by LRs

3. (2017) 13 SCC 174, Madanuri Sri Rama Chandra Murthy Vs Syed

Jalal

4. (2018) 6 SCC 422, Chhotanben and another Vs Kiritbhai

Jalkrushnabhai Thakkar & others

5. Bahu Ram Vs Janak Singh and others, (2012) 8 SCC 701

6. (2011) 8 SCC 670, State of Uttaranchal and another vs. Sunil Kumar

Vaish and others.

Per: Hon’ble Lok Pal Singh, J.

Writ petition under Article 227 of the Constitution

of India is directed against the judgment and order dated

10.06.2011, passed by the District Judge, Nainital, in Civil

Revision no. 64 of 2010, Smt. Madhvi Harsh Kilachand Vs

Amrish R. Kilachand, whereby the said court allowed the

revision filed by respondent no. 1.

2) Facts leading to the present writ petition, in brief,

are that petitioner / plaintiff instituted an Original Suit no. 105

of 2009, seeking a relief of prohibitory injunction as well as the

relief of mandatory injunction / declaring the sale deed

executed by respondent no. 2 in favour of respondent no. 1 as

2

null and void. It is averred in the plaint that the plaintiff

purchased the land in dispute through registered sale deed dated

22.02.1993 and is registered owner in possession of the suit

property. Respondent no. 2 claiming himself to be the Power of

Attorney holder of the plaintiff executed a registered sale deed

in favour of respondent on. 1, whereof the plaintiff did not

execute any Power of Attorney in favour of respondent no. 1. It

is alleged that on the basis of non-existent Power of Attorney

the sale deed has been executed in favour of respondent no. 1.

When the plaintiff came to know that a sale deed has been

executed by respondent no. 2 in favour of respondent no. 1

showing the Power of Attorney of the plaintiff which the

plaintiff never executed, he obtained the copy of khatauni on

18.05.2009 and also the copy of the sale deed dated 06.05.1994

and instituted the suit on 07.09.2009 with the following prayers:

i) That a decree for a permanent prohibitory

injunction be passed in favour of the plaintiff as

against the defendants, their servant, agents,

associates and assignees by restraining them

forever in intervening or otherwise alienating the

land under suit of khata no. 4 admeasuring 30

Nali 12 Muthies land situated in Village

Satbunga, Patti Satbunga, Pargana Ramgarh,

Tehsil and District Nainital forever,

ii) That a mandate be also passed in favour of the

plaintiff as against the defendants by declaring

effectless, null and void the alleged instruments

registered in the office of Sub Registrar, Nainital

on 06.05.1994 regarding the land under suit

executed by defendant no. 2 in favour of

defendant no. 1 in Zild no. 1 part 94 page 133-

150 sl. No. 226/94 in the office of Sub Registrar,

Nainital, more details in Annexure “C”.

3

iii) That the cost of the suit be also decreed in

favour of the plaintiff and as against the

defendants jointly and severally.

iv) That any other relief which the Hon’ble court

deems just and proper in the circumstances of

the case be also passed in favour of the plaintiff

and as against the defendants.

3) Defendant no. 1 / Respondent no. 1 filed her

written statement denying the plaint averments. Respondent

no. 1 stated that she purchased the said land from respondent

no. 2 and her name has been mutated in revenue records. It is

further stated that suit has been under valued. It is contended

that she is lawful owner in possession of the suit property. It is

further contended that the suit is barred by limitation as the suit

has been instituted on 07.09.2009 seeking declaration of the

sale deed dated 06.05.1994 null and void. It is also contended

that since the plaintiff is having knowledge of the sale deed and

the suit has not been filed within three years for cancellation of

the sale deed from the date of knowledge, therefore, the suit is

barred by limitation. For ready reference paragraph 24 of the

written statement is excerpted hereunder:

24. That the plaintiff’s suit is barred by Law of

Limitation, because the said sale deed, which has been

challenged in the instant suit is dated ‘06.05.1994’,

whereas the above suit has been filed as late as on

07.09.2009 although the limitation for seeking

cancellation of sale deed / for declaration of said sale

deed as void, is only three years, from the date of the

said sale deed.

4) After filing the written statement respondent no. 1

filed an application (paper no. 12C) under Order 7 Rule 11 of

the Code of Civil Procedure, 1908 (hereinafter referred to as

‘the Code’). It is stated in the application that the suit does not

disclose any cause of action and the plaintiff has deliberately

concealed the real and true facts with regard to the present suit

4

property and the suit has been filed on frivolous, vexatious and

mala fide ground. Also, the suit is highly barred by limitation

as the plaintiff has admitted in the suit that he lodged the FIR

no. 29 of 2005 on 23.07.2005 being the Power of Attorney

holder of his mother Smt. Ramila R. Kilachand. It is contended

that name of respondent no. 1 is entered in the khatauni. The

suit is under valued and is liable to be rejected under Order 7

Rule 11 of the Code.

5) Another application (paper no. 15C) was filed by

respondent no. 1 stating therein that the application under Order

7 Rule 11 of the Code be decided first.

6) Petitioner / plaintiff filed his objection against the

application filed under Order 7 Rule 11 of the Code by

respondent no. 1, stating therein, that the plaintiff has

mentioned the cause of action in the suit. The defendant

(respondent no. 1 herein) is trying to delay the hearing of the

suit. The suit has been filed for injunction and mandatory

injunction. It is an obligation of the plaintiff to prove its case

by adducing evidence. The averments made in the application

have been made on wrong facts. The application filed by the

defendant is liable to be rejected.

7) Learned trial court having heard learned counsel

for the plaintiff and defendants and having considered the

provisions contained in Order 7 Rule 11 of the Code and also

having considered the rules governing the field in regard to the

applicability of Order 7 Rule 11 of the Code, rejected the

application vide its order dated 09.10.2010. The trial court has

recorded the finding that the suit has been properly valued and

also having considered the judgment of Hon’ble Apex Court

rendered in AIR 2010 (S.C.) 2807, Suhreed Singh vs Randhir

5

Singh and others, has observed that as the plaintiff is not the

executant of the sale deed in question, he had paid the court fee

for the relief of prohibitory injunction as well as for declaration

of the deed effectless and null & void, whereof the sale deed

has been executed by defendant no. 2 in favour of defendant no.

1. The plaintiff need not have to file the suit for cancellation of

the sale deed. Suit for injunction itself includes the declaration

of rights.

8) Feeling aggrieved by order dated 29.10.2010,

passed by Civil Judge (Senior Division), Nainital, respondent

no. 1 preferred civil revision no. 64 of 2010 before the District

Judge, Nainital. Respondent no. 2 neither filed any written

statement nor moved an application under Order 7 Rule 11 of

the Code. Since the application filed by respondent no. 1 was

rejected by the trial court, the respondent no. 1 preferred said

revision. Learned District Judge by judgment and order dated

10.06.2011, allowed the revision and set aside the order passed

by the trial court. The reason assigned by the revisional court

that the plaintiff has stated in the plaint that he came to know

about the sale deed in the month of May 2009, whereof from a

perusal of the copy of khatauni it would reveal that the order

was passed by the Tehsildar on the sale deed. A suit for

cancellation of sale deed ought to have been filed within three

years from the date of execution of sale deed. The plaintiff has

the knowledge since 1995, therefore, in view of the judgment

passed by the High Court in the case of Udaseen Panchayati

Bada Akhara and another vs Mahant Dooj Das and another,

reported in 2006 UD 717, the suit has been filed after three

years, therefore, on a perusal of the copy of khatauni, the suit is

liable to be dismissed being barred by time.

6

9) Heard Mr. B.M. Pingal, learned counsel for the

petitioner / plaintiff and Mr. Arvind Vashistha, learned Senior

Counsel appearing on behalf of respondent no. 2 and perused

the documents brought on record. None is present on behalf of

respondent no. 1.

10) Indisputably, the sale deed has been executed by

respondent no. 2 in favour of respondent no. 1 claiming himself

to be the Power of Attorney holder of the plaintiff / petitioner.

A perusal of the sale deed impugned would reveal that

respondent no. 2 claiming himself to be the Power of Attorney

holder of plaintiff has executed by sale deed in favour of

respondent no. 1. The translated version of the necessary

assertion made in the sale deed dated 06.05.1994 is excerpted

hereunder:

“I Prakash Chandra Mathur, aged major, s/o Sri

Murli Manohar Mathur, General Manager, Kesar

Enterprises Pvt. Ltd., Baheri, District Bareilly is

executing the sale deed in favour of Smt. Madhvi

Harsh Kilachand w/o Sri R. Kilachand r/o Sunita

Apartments, Ridge Road, Bombay. I am the General

Power of Attorney holder of vendor Sri Amrish R.

Kilachand s/o Sri R.A. Kilachand r/o village Satbunga,

Patti Satbunga, Tehsil and District Nainital and

executing the sale deed being the Power of Attorney

holder of Sri Amrish R. Kilachand in respect of the

land admeasuring 30 Nali 12 Muthi of khatauni khata

no. 4 situated in village Satbunga, Patti Satbunga,

Tehsil and District Nainital.”

11) Neither the date of general Power of Attorney nor

the fact whether the same is a registered Power of Attorney or

not is mentioned in the sale deed. It is mere an assertion in the

sale deed that respondent no. 2 has claimed himself to be the

general Power of Attorney holder of the plaintiff without there

being any document of Power of Attorney in his favour. The

beneficiary of the sale deed is the respondent no. 1.

7

12) Before further discussion it is apt to quote here the

relevant provisions contained in Order 7 Rule 11 of the Code.

The same reads as under:

“ORDER VII- PLAINT

11. Rejection of plaint — The plaint shall be

rejected in the following cases:—

(a) where it does not disc lose a cause of action;

(b) where the relief claimed is undervalued, and the

plaintiff, on being required by the Court to correct the

valuation within a time to be fixed by the Court, fails to do

so;

(c) where the relief claimed is properly valued, but the

plaint is returned upon paper insufficiently stamped, and

the plaintiff, on being required by the Court to supply the

requisite stamp-paper 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 be barred by any law:

Provided that the time fixed by the Court for the correction of the

valuation or supplying of the requisite stamp-paper shall not be

extended unless the Court, for reasons to be recorded, is satisfied

that the plaintiff was prevented by any cause of an exceptional

nature form correcting the valuation or supplying the requisite

stamp-paper, as the case may be, within the time fixed by the Court

and that refusal to extend such time would cause grave injustice to

the plaintiff.”

13) Indisputably, the suit has been filed seeking decree

of prohibitory injunction against the respondents. Second

prayer is for a decree of mandatory injunction declaring the sale

deed dated 06.05.1994 null and void in regard to the property in

dispute.

14) The word ‘Power of Attorney’ has been defined in

Section 1-A of the Powers of Attorney Act, 1882. Section 1-A

is extracted hereunder:

“1-A. Definition. –In this Act, “Powers of

Attorney” include any instrument empowering a

specified person to act for and in the name of the

person executing it.”

15) Section 2 of the Powers of Attorney Act, 1882,

provides the execution under power-of-attorney which

empowers a Power of Attorney holder to execute any

8

instrument in exercise of the powers to do something. A Power

of Attorney holder cannot go beyond the power assigned to

him.

16) On a perusal of the record it would reveal that

there is no whisper in the sale deed in regard to empowering

respondent no. 2, as the agent of the plaintiff.

17) Section 33 of the Registration Act, 1908 is in

regard to the Power of Attorney recognizable for purposes of

Section 32. Section 34 of the Registration Act is reproduced as

under:

“34. Enquiry before registration by registering officer –(1)

Subject to the provisions contained in this Part in Sections 41, 43,

45, 69, 75, 77, 88 and 89, no document shall be registered under

this Act, unless the persons executing such document, or their

representatives, assigns or agents authorized as aforesaid, appear

before the registering officer within the time allowed for

presentation under Sections 23, 24, 25 and 26:

Provided that, if owing to urgent necessity or unavoidable

accident all such persons do not so appear, the Registrar, in cases

where the delay in appearing does not exceed four months, may

direct that on payment of a fine not exceeding ten times the amount

of he proper registration fee, in addition to the fine, if any, payable

under Section 25, the document may be registered.

(2) Appearances under sub-section (1) may be simultaneous or

at different times.

(3) The registering officer shall thereupon –

(a) enquire whether or not such document was executed

by the persons by whom it purports to have been executed;

(b) satisfy himself as to the identity of the persons

appearing before him and alleging that they have executed

the document; and

(c) in the case of any person appearing as a

representative, assign or agent, satisfy himself of the right

of such person so to appear.

(4) Any application for a direction under the proviso to sub-

section (1) may be lodged with a Sub-Registrar, who shall

forthwith forward it to the Registrar to whom he is

subordinate.

(5) Nothing in this section applies to copies of decrees or

orders.”

18) On a conjoint reading of Sections 1-A and 2 of the

Powers of Attorney Act and in view of the mandatory

requirement of executing sale seed it is apparent that the so

9

called Power of Attorney holder has to satisfy the conditions

laid in Section 32 and 34 of the Registration Act, which has not

been done in the present case.

19) Since the respondent no. 2 is claiming himself to

be the Power of Attorney holder of the plaintiff, on lodging of

an FIR against respondent no. 2 in regard to committing fraud,

the first investigation was carried out, but unfortunately the

Investigating Officer submitted the final report in the matter.

The protest petition was allowed by the trial court. Criminal

revision was allowed by the same District Judge, who has

passed the order impugned. Feeling aggrieved the petitioner

preferred criminal misc. (C-482) petition no. 378 of 2011

before this Court. The then Chief Justice of this Court passed

the following order on 03.05.2011 on said C-482 petition. The

same is reproduced below:

“Mr. Manoj Tiwari, Senior Advocate assisted by Mr. J.S.

Virk, Advocate for the applicant.

Mr. Nandan Arya, Assistant Government Advocate for the

State / respondent nos. 1 to 3.

Let notice be served upon respondent nos. 4 to 6.

List after service.

Respondent no. 3 is directed to produce before this Court,

the alleged forged power of attorney, on the next date of listing.”

20) Despite the order passed by the Court, the

respondent no. 2 did not produce the alleged Power of

Attorney, allegedly executed in his favour. This Court has

made a query to the learned Senior Counsel appearing on behalf

of respondent no. 2 as to whether his client is having the Power

of Attorney which has been referred in the sale deed dated

06.05.1994, so that the same be placed before this Court.

Learned Senior Counsel appearing on behalf of respondent no.

2 having consulted with his client would submit that the Power

of Attorney is not with the respondent no. 2. He has shown his

inability to produce the alleged Power of Attorney before the

10

Court. The burden lies upon respondent no. 2, who claims that

the plaintiff has executed the Power of Attorney in his favour

and on the basis of which respondent no. 2 executed the sale

deed in favour of respondent no. 1. It is not a case that the

plaintiff has instituted the suit on frivolous grounds. Rather, it

is a case that respondent no. 2, who claims himself to be the

Power of Attorney holder of the plaintiff has executed the sale

deed in favour of respondent no. 1. Respondent no. 1 is the

beneficiary of the sale deed. Burden lies upon her to first

satisfy the Court that there was a Power of Attorney executed

by the plaintiff / petitioner in favour of respondent on. 2 and in

exercise of the agency granted to respondent no. 2, he executed

a sale deed in favour of respondent no. 1. Respondent no. 1 is

claiming the rights on the basis of the sale deed dated

06.05.1994 executed by the respondent no. 2 in her favour

apparently without authority of law. Apparently, the sale deed

appears to be executed by respondent no. 2 in favour of

respondent no. 1 without authority of law which does not confer

any right upon them and the document is void ab initio.

21) Hon’ble Supreme Court in Chhotanben

4

has held

as under:

“14. After having cogitated over the averments in

the plaint and the reasons recorded by the trial court as well

as the High Court, we have no manner of doubt that the High

Court committed manifest error in reversing the view taken

by the trial court that the factum of suit being barred by

limitation, was a triable issue in the fact situation of the

present case. We say so because the appellant-plaintiffs

have asserted that until 2013 they had no knowledge

whatsoever about the execution of the registered sale deed

concerning their ancestral property. Further, they have

denied the thumb impressions on the registered sale deed

as belonging to them and have alleged forgery and

impersonation. It the context of totality of averments in the

11

plaint and the reliefs claimed, which of the articles from

amongst Articles 56, 58, 59, 65 or 110 or any other article of

the Limitation Act will apply to the facts of the present case,

may have to be considered at the appropriate stage.

15. What is relevant fo r answering the matter in

issue in the context of the application under Order 7 Rule

11(d) CPC, is to examine the averments in the plaint. The

plaint is required to be read as a whole. The defence

available to the defendants or the plea taken by them in the

written statement or any application filed by them, cannot be

the basis to decide the application under Order 7 Rule 11(d).

Only the averments in the plaint are germane….

16. The High Cour t on the other hand, has

considered the matter on the basis of conjectures and

surmises and not even bothered to analyse the averments in

the plaint, although it has passed a speaking order running

into 19 paragraphs. It has attempted to answer the issue in

one paragraph which has been reproduced hitherto (in para

10). The approach of the trial court, on the other hand, was

consistent with the settled legal position expounded in

Saleem Bhai Vs State of Maharashtra, (2003) 1 SCC 557;

Mayar (H.K.) Ltd. Vs Vessel M.V. Fortune Express (2006) 3

SCC 100 and also T. Arivandanam Vs T.V. Satyapal, (1977)

4 SCC 467.”

22) Learned Senior Counse l appearing on behalf of

respondent no. 2 placed reliance upon a judgment rendered by

Hon’ble Apex Court in Raghwendra Sharan Singh

2

.

Paragraphs 22 and 26 of said judgment are relevant in the

context of present case. The same are excerpted hereunder:

“22. In the case of T. Arivandandam Vs T.V.

Satyapal (1977) 4 SCC 467, while considering the very

same provision i.e. Order 7 Rule 11 of CPC and the decree

of the trial court in considering such application, this Court in

para 5 has observed and held as under:

“5. We have not the slightest hesitation in

condemning the petitioner for the gross abuse of the

process of the court repeatedly and unrepentantly

12

resorted to. From the statement of the facts found in

the judgment of the High Court, it is perfectly plain

that the suit now pending before the First Munsif’s

Court, Bangalore, is a flagrant misuse of the mercies

of the law in receiving plaints. The learned Munsif

must remember that if on a meaningful – not formal –

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 7

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 10 CPC. An activist Judge is

the answer to irresponsible law suits….”

26. In the case of Madanuri Sri Rama Chandra

Murthy

3

, this Court has observed and held as under:

“7. The plaint can be rejected under Order

7 Rule 11 if conditions enumerated in the said

provision are fulfilled. It is needless to observe that

the power under Order 7 Rule 11 CPC can be

exercised by the Court at any stage of the suit. The

relevant facts which need to be looked into for

deciding the application are the averments of the

plaint only. If on an entire and meaningful reading of

the plaint, it is found that the suit is manifestly

vexatious and meritless in the sense of not disclosing

any right to sue, the court should exercise power

under Order 7 Rule 11 CPC. Since the power

conferred on the Court to terminate civil action at the

threshold is drastic, the conditions enumerated under

Order 7 Rule 11 CPC to the exercise of power of

rejection of plaint have to be strictly adhered to. The

averments of the plaint have to be read as a whole to

find out whether the averments disclose a cause of

action or whether the suit is barred by any law. It is

needless to observe that the question as to whether

the suit is barred by any law, would always depend

upon the facts and circumstances of each case. The

13

averments in the written statement as well as the

contentions of the defendant are wholly immaterial

while considering the prayer of the defendant for

rejection of the plaint. Even when the allegations

made in the plaint are taken to be correct as a whole

on their face value, if they show hat the suit is barred

by any law, or do not disclose cause of action, the

application for rejection of plaint can be entertained

and the power under Order 7 Rule 11 CPC can be

exercised. If clever drafting of the plaint has created

the illusion of a cause of action, the court will nip it in

the bud at the earliest so that bogus litigation will end

at the earlier stage.”

23) The judgment relied by learned Senior Counsel

appearing on behalf of respondent no. 2 is not applicable on the

facts and circumstances of the present case.

24) A careful perusal of the plaint would reveal that it

was not merely a suit for cancellation of sale deed. Rather the

plaintiff has filed the suit seeking decree of permanent

prohibitory injunction in regard to the suit property. Further

mandatory injunction has been sought to declare the sale deed

dated 06.05.1994 effectless, null and void. The main thrust of

respondent no. 1 is that since the petitioners was having

knowledge of the sale deed dated 06.05.1994 as the mutation

has been carried out in her favour on the basis of sale deed and

subsequently the plaintiff has lodged the FIR against the

respondents in regard to the alleged fraudulent action of

respondents, therefore, the suit instituted by the plaintiff on

07.09.2009 is barred by limitation as contended in para 24 of

the written statement. It would be apt to note here that an issue

of limitation is a mixed issue of law and fact and is not purely

an issue of law, whereof Order 7 Rule 11 of the Code stipulates

that the suit is liable to be dismissed at the threshold when it is

14

barred by law. A careful perusal of the order passed by the trial

court dismissing the application would reveal that the learned

trial court has categorically assigned reasons to arrive at its

conclusion in rejecting the application under Order 7 Rule 11 of

the Code, whereof the learned District Judge without reversing /

setting aside the findings recorded by the trial court, on

surmises and conjectures, allowed the revision by a cryptic

order.

25) It is settled proposition in law that appellate or

revisional court should not set aside a judgment and order

unless the appellate or revisional court set aside the findings

recorded by the trial court. A judgment is known for its

reasoning. If there is no reasoning it cannot be considered as a

judgment. A perusal of the order impugned would reveal that

the revisional court has allowed the revision by a cryptic order

which is against the settled proposition of law.

26) The Hon’ble Apex Court in Sunil Kumar Vaish

6

has deprecated such practice of deciding the cases by judicial or

quasi-judicial authorities in a cursory and cryptic manner

without assigning any reasons. Paragraph nos. 18, 19 and 20 of

said judgment are excerpted hereunder:

“18. Judicial determination has to be seen as an

outcome of a reasoned process of adjudication initiated

and documented by a party based mainly on events

which happened in the past. Court’s clear reasoning

and analysis are basic requirements in a judicial

determination when parties demand it so that they can

administer justice justly and correctly, in relation to the

findings on law and facts. Judicial decision must be

perceived by the parties and by the society at large, as

being the result of a correct and proper application of

legal rules, proper evaluation of the evidence adduced

15

and application of legal procedure. The parties should

be convinced that their case has been properly

considered and decided.”

19. Judicial decisions must in principle be

reasoned and the quality of a judicial decision depends

principally on the quality of its reasoning. Proper

reasoning is an imperative necessity which should not

be sacrificed for expediency. The statement of reasons

not only makes the decision easier for the parties to

understand and many a times such decisions would be

accepted with respect. The requirement of providing

reasons obliges the judge to respond to the parties’

submissions and to specify the points that justify the

decision and make it lawful and it enables the society

to understand the functioning of the judicial system and

it also enhances the faith and confidence of the people

in the judicial system.”

20. We are sorry to say that the judgment in

question does not satisfy the above standards set for

proper determination of disputes. Needless to say these

types of orders weaken our judicial system. Serious

attention is called for to enhance the quality of

adjudication of our courts. Public trust and confidence

in courts stem, quite often, from the direct experience of

citizens from the judicial adjudication of their disputes.”

27) It is also settled proposition of law that the revenue

entry does not confer any right or title over the suit property.

The mutation entries are merely for fiscal purposes to collect

the land revenue. Thus the mutation carried out in the name of

respondent no. 1 does not create any right or title in her favour

as held by Hon’ble Apex Court in the case of Bhimabai

Mahadeo Kambekar

1

. The relevant paragraphs of said

judgment are excerpted hereunder:

16

“5. The law on the question of mutation in the

revenue records pertaining to any land and what is its

legal value while deciding the rights of the parties is

fairly well settled by a series of decisions of this Court.

8. This Court has consistently held that

mutation of a land in the revenue records does not

create or extinguish the title over such land nor it has

any presumptive value on the title. It only enables the

person in whose favour mutation is ordered to pay the

land revenue in question.”

(emphasis supplied)

28) There is a legal maxim nemo dat quod non habet

which means that nobody can pass a better title then he himself

has. Indisputably, there is no power of attorney executed by the

plaintiff in favour of respondent no. 2 and the respondent no. 2

merely mentioning in the sale deed had executed the sale deed

in favour of respondent no. 1.

29) A perusal of the impugned judgment and order

would further reveal that instead of taking into account the

plaint averments, the revisional court has considered the

defendant’s case, which is against the settled position of law

that for invoking the provision of Order 7 Rule 11 of the Code,

only the plaint case should be considered.

30) The law is well settled that while considering an

application under Order 7 Rule 11 of the Code, the court has to

examine the averments in the plaint and the pleas taken by the

defendant in the written statement would be irrelevant.

Hon’ble Supreme Court having considered a catena of

judgments, has held in the case of Bahu Ram

5

, as under:

“15. The law has been settled by this Court in

various decisions that while considering an application

under Order VII Rule 11 CPC, the court has to

17

examine the averments in the plaint and the pleas

taken by the defendant in the written statements

would be irrelevant. [vide C. Natrajan v. Ashim Bai and

Anr., (2007) 14 SCC 183; Ram Prakash Gupta v. Rajiv

Kumar Gupta and Ors., (2007) 10 SCC 59; Hardesh

Ores (P) Ltd. v. Hede and Co. (2007) 5 SCC 614; Mayar

(H.K.) Ltd. and Ors. v. Vessel M.V. Fortune Express

and Ors. (2006) 3 SCC 100; Sopan Sukhdeo Sable and

Ors. v. Assistant Charity Commissioner and Ors.,

(2004) 3 SCC 137 and Saleem Bhai and Ors. v. State

of Maharashtra and Ors., (2003) 1 SCC 557]. The

above view has been once again reiterated in the

recent decision of this Court in Church of Christ

Charitable Trust & Educational Charitable Society v.

Ponniamman Educational Trust, (2012) 8 SCC 706.”

31) Besides this, a perusal of the order passed by

learned District Judge would reveal that the learned District

Judge did not consider that it was a suit for prohibitory

injunction for which no limitation is prescribed in the Indian

Limitation Act. A suit for injunction involves a declaration of

rights. If, in any case, the respondents claim the title on the

basis of sale deed or otherwise they may contest the case on the

strength of their pleadings. Since there is no limitation

prescribed for filing a suit for prohibitory injunction and

assuming that the second relief in the suit is barred by

limitation, in such contingency, the suit should not have been

dismissed in its entirety by invoking the provisions of Order 7

Rule 11 of the Code. If in a suit, one relief is not time barred

and other relief is barred by limitation, the provisions of Order

7 Rule 11 of the Code should not have been invoked in

dismissing the suit. The suit should be decided after framing

the relevant issue of its being time barred as the issue of

limitation is a mixed question of fact and law. Certainly, it was

not a stage to dismiss the suit by impugned judgment and order

18

dated 10.06.2011 in exercise of revisional jurisdiction under

Section 115 of the Code. Thus, this Court has no hesitation to

hold that the learned District Judge in exercise of its revisional

power has exceeded in its revisional jurisdiction and committed

patent error of law in allowing the revision and in dismissing

the suit which has occasioned into failure of justice with the

plaintiff. The impugned judgment and order dated 10.06.2011

is, therefore, unsustainable in the eyes of law. The same is

liable to be quashed. The same is hereby quashed. Writ

petition stands allowed. Consequently, the suit is restored to its

original number.

32) It is made clear that any observation made by this

Court will not influence the trial court in any manner in

deciding the suit, in accordance with law. Having considered

that fact that the suit is of the year 2009, the trial court shall

make an endeavour to proceed with the suit expeditiously and

grant of unnecessary adjournments to either of the parties shall

be avoided. Lower court record be sent back. In the facts and

circumstances, the parties shall bear their own costs.

(Lok Pal Singh, J.)

Dt. November 01, 2019.

Negi