*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 6th July, 2009
RFA 470/1999
BHAGWAN GUPTA & ANR. ..... Appellants
Through: Mr. Hemant Malhotra,
Advocate
versus
RAM KISHORE ETC. ..... Respondents
Through: None
CORAM:
HON'BLE MR. JUSTICE P.K. BHASIN
1. Whether Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the
digest?
JUDGMENT
P.K.BHASIN, J(ORAL):
The appellants are the unsuccessful plaintiffs in a suit
for possession which they had filed against the
respondents herein in respect of an area measuring two
bighas eight biswas in khasra no. 7/6 of village Kamal Pur,
Burari, Delhi. The learned Additional District Judge, Delhi
RFA No. 470/1999 1
vide judgment and order dated 11th January, 1999 has
rejected the plaint under Order VII Rule 11 CPC of the Code
of Civil Procedure(hereinafter referred to as „CPC‟) on the
ground that Civil Court has no jurisdiction to entertain the
suit for possession.
2. Feeling aggrieved by the decision of the trial Court the
plaintiffs have come up in appeal.
3. I have heard learned counsel for the appellants-
plaintiffs only since none has been appearing on behalf of
the respondents/ defendants although initially they had
entered appearance in this appeal through an advocate.
4. The relevant facts are that the appellant-plaintiff no.2
Smt. Vidyawati was claiming herself to be the owner of
the suit land, referred to above, having purchased the
same from one Shri Vidya Sagar, who was the father of
respondents 1 to 5 herein and appellant-plaintiff no.1, who
is the brother of appellant-plaintiff no.2, was looking after
the vacant land. It was alleged in the plaint that sometime
in May-June, 1995 the respondents-defendants started
interfering with the possession of the plaintiffs which
RFA No. 470/1999 2
resulted into filing of police complaints and proceedings
under Sections 107/151 of the Code of Criminal Procedure
were initiated by the police. Further averments in the
plaint were that the defendants had trespassed over the
suit land belonging to the plaintiffs and had constructed
unauthorized rooms there and thereafter they were
intending to sell those rooms to third parties. On these
averments in the plaint the appellants-plaintiffs had filed
the suit for possession as also damages/mesne profits.
5. The respondents-defendants contested the suit and in
their written statement a number of objections were taken
including the one regarding the jurisdiction of the Civil
Court to entertain the suit for possession in respect of the
suit land. It was pleaded that the suit in Civil Court was not
maintainable in view of the bar created under Section 185
of the Delhi Land Reforms Act, 1954. The suit was
contested on merits also.
6. The learned trial Court instead of framing and
deciding all the issues, both of law and fact, arising out of
the pleadings of the parties, decided to take up the
defendants‟ objection relating to the Civil Court‟s
RFA No. 470/1999 3
jurisdiction only as a preliminary issue vide order dated
25/09/98 and after hearing the counsel for the parties
passed the impugned order holding that Civil Court had no
jurisdiction to entertain such a suit for possession in view of
the bar created under Section 185 of the Delhi Land
Reforms Act, 1954 and consequently the plaint of the
plaintiffs‟ suit was rejected under order VII Rule 11 CPC.
Feeling aggrieved, the plaintiffs filed the present appeal.
7. The learned counsel for the appellants has submitted
that a perusal of the impugned order running into 19 pages
would show that the plaint has been rejected by the
learned trial Court not on the ground that based on the
averments made in the plaint the suit appeared to be
barred under any law but it has referred to the defence of
the defendants taken in their written statement regarding
the title of the appellant-plaintiff no.2 and accepting their
defence plaint has been ordered to rejected which could
not have been done under Order VII Rule 11 CPC. Learned
counsel placed reliance on one judgment of the Hon‟ble
Supreme Court in “Saleem Bhai and Ors. Vs. State of
Maharashtra and Ors.”, AIR 2003 SC 759 in support of
the contention that while considering the question as to
RFA No. 470/1999 4
whether a plaint deserves to be rejected or not under Order
VII Rule 11 CPC the Court is required to consider only the
averments made in the plaint and not to the pleas in
defence taken by the defendants in the written statement.
8. I have gone through the judgment of the Hon‟ble
Supreme Court cited by the learned counsel for the
appellant and I find that the same does support the
submission of the learned counsel for the appellant. In
paragraph no. 9 of the judgment it has been observed by
the Hon‟ble Supreme Court as under:
“9. A perusal of Order VII Rule C.P.C. makes it clear
that the relevant facts which need to be looked into for
deciding an application thereunder are the averments
in the plaint………… For the purposes of deciding an
application under Cls.(a) and (d) of R.11 of O. 11 C.P.C.
the averments in the plaint are germane; the pleas
taken by the defendant in the written statement would
be wholly irrelevant at that stage…………………………”
(emphasis laid)
9. The Hon‟ble Supreme Court has also held in its
judgments reported as 2006(5)SCC 638, “Ramesh
B.Desai vs Bipin Vadilal Mehta” and 2004(3) SCC
688, “Exphar SA and Anr. Vs. Eupharma Laboratories
and Anr.” that whenever the Court decides to take up for
decision only legal issues, like, maintainability of the suit or
Court‟s jurisdiction, the averments in the plaint have to be
assumed to be correct.
RFA No. 470/1999 5
10. Now, in the present case, as has been noticed
already, the suit for possession was filed by the appellants-
plaintiffs on the averments that appellant-plaintiff no. 2
had purchased the suit land from the predecessor-in-
interest of respondents-defendants 1 to 5 herein and that
they had been dispossessed therefrom unauthorisedly by
the respondents herein. From these averments in the
plaint it could certainly be not said that the suit for
possession was barred under any law or that the Civil Court
had no jurisdiction to entertain such a suit. As far as the
defence raised by the respondents/defendants in the
written statement relating to the jurisdiction of the Civil
Court is concerned the same was based on certain factual
pleas raised by them to the effect that the defendants no.
1 to 5, who are respondents 1 to 5 herein, were the
bhumidars in possession of the suit land and so they could
not be dispossessed without following the provisions of the
Delhi Land Reforms Act and further that as far as the
plaintiffs, the appellants herein, were concerned they were
neither the bhumidars nor asamis of the suit land. It was
also pleaded in the written statement that Vidya Sagar was
not a bhumidar of the suit land and further that the sale
RFA No. 470/1999 6
deed, if any, which the plaintiffs claimed to have been
executed by him in respect of the suit land was a forged
document. It was also claimed that the suit land was Gaon
Sabha land and defendants 1 to 5 had been declared as
bhumidars by the revenue authorities and to get herself
declared as a bhumidar plaintiff no. 2 had moved an
application before the revenue authorities but that
application was dismissed by the Revenue Assistant. The
learned trial Court has rejected the plaint by taking into
consideration the said pleas of the defendants in their
written statement which, in my view, was not permissible
under Order VII Rule 11 CPC. The question whether the
suit land belonged to the Gaon Sabha and that the
respondents-defendants 1 to 5 had been declared as
bhumidars by the revenue authorities could not be decided
without recording of evidence of the parties. Therefore, in
my view the impugned judgment cannot be sustained.
11. This appeal is accordingly allowed and the judgment
and decree dated 11th January, 1999 stand set aside. The
matter is remanded back to the trial Court with the
direction to frame all the issues arising out of the pleadings
of the parties and then to dispose them of together, as
RFA No. 470/1999 7
provided under Order XIV Rule 1 CPC after giving
opportunities to all the parties to adduce the evidence.
The trial Court shall now take up the case for further
proceedings on 27th July, 2009 at 2 p.m.
P.K. BHASIN,J
July 06, 2009
sh
RFA No. 470/1999 8