SARDA AGRICULTURE AND PROPERTY Vs. RAMNIWAS JHANWAR

JUDGEMENT

(1.) This Revision has been preferred assailing the order dtd. 30/11/2024 passed in Civil Suit No.19A/2013 by the 3rd Civil Judge, Junior Division, District Raipur (C.G.) whereby the application preferred by the applicant/defendant No.3 under Order 7 Rule 11 of the CPC was dismissed.

(2.) Necessary facts of the case are that respondents No.1 and 2/plaintiffs had filed a civil suit for permanent and mandatory injunction for demolition of illegal construction over the land of the plaintiffs by making an averment inter alia that plaintiff No.1 is the owner of Khasra No.1185/1J area 0.344 hectare and plaintiff No.2 is also the owner of Khasra No.1185/1J area 0.344 hectare and both had purchased the said property from the trust known as "Ramchandra Ji Swami Bhagirathi Mandir Trust, Shankar Nagar Raipur" through different sale deeds executed on 4/1/2000. It has been further averred that during the pendency of the suit, defendant No.5 and defendant No.3/applicant herein constructed a boundary wall on some part of the subject land and the same has been revealed and came to the knowledge of the plaintiffs on 16/12/2021 and after amending the pleading and arraying the applicant and defendant No.5 as a party, the aforesaid relief was sought. In the said suit, defendant No.4 and defendant No.3/applicant herein separately filed an application under Order 7 Rule 11 of the CPC, which was dismissed.

(3.) Learned counsel for the applicant submits that the trial Court has erred in dismissing the application filed by the applicant, as initially the suit was filed in the year 2006 and no specific cause of action was disclosed against the applicant about the date of knowledge of the alleged construction of the boundary wall. He would submit that the cause of action would be different against the original defendant, so the plaintiffs ought to have filed a separate civil suit. He would further submit that while considering the application filed under Order 7 Rule 11 of the CPC, in a catena of decisions of the Hon'ble Supreme Court, it was observed that only plaint averment has to be seen and not the averment in the written statements. Learned counsel for the applicant places reliance in the matter of Ramisetty Venkatanna And Another vs. Nasyam Jamal Saheb And Others, 2023 SCC OnLine SC 521 and refers to Paras 24 to 31 which read thus:-