SHYAMA PRASAD DATTA Vs. ARUN KUMAR VASUDEO

JUDGEMENT

(1.) The Petitioners/Defendants No. 1 to 3 being aggrieved by the order dated 18.2.2010 passed by learned v. Ith Civil Judge, Class I, Jabalpur in Civil Suit No. 2A of 2009 Arun Kumar Vasudeo and Ors. v. Shyama Prasad Datta and Ors. rejecting the Plaintiffs application filed under Order 7 Rule 11 Code of Civil Procedure refusing to decide the question of resjudicata at the initial stage has come to this Court with a submission that the order passed by the learned Court below is patently illegal and deserves to be set aside.

(2.) The short facts necessary for disposal of the present writ petition are that Respondents No. 1 to 3 Arun Kumar Vasudeo, Dulichand Bhai Palan and Purushottam Sanghi in their capacity as trustees of the Pinjra Pole Goushala Charitable Registered Public Trust filed a civil suit for declaration and injunction. It was contended in the plaint that one P.C. Bose had executed a registered gift deed on 28.11.1912 in relation to disputed land Survey No. 44/1 admeasuring 1.890 hectare of Village Polipather and in view of the said gift deed the Plaintiffs are entitled to declaration that the present Petitioners (Defendants No. 1 to 3) have no right, title or interest in the property. They also prayed that a declaration be granted in favour of the Plaintiffs that the sale deeds executed in favour of Defendants No. 4 to 9 on different dates, were null an void and they do not have any right title or interest in favour of the said Defendants. It was also prayed that the Defendants No. 4 to 9 be restrained from selling the land in dispute or raising any construction on the same. After notices were issued the present Petitioners have filed an application under Order 7 Rule 11 Code of Civil Procedure while the Defendants No. 5 to 9 preferred a separate application under Order 7 Rule 11 Code of Civil Procedure Read with Section 11 Code of Civil Procedure for rejection of the plaint and/or in the alternative dismiss the suit because of the bar contained under Section 11 of the Code of Civil Procedure. It was contended by the said Defendants that on an earlier occasion the Trust itself had filed civil suit on 26.3.1996 which was later on numbered as Civil Suit No. 171-A of 2001 and was decreed by I Xth Civil Judge, Class I, Jabalpur on 29.11.2001. The said judgment and decree were challenged by the present Petitioners, Rakesh Agrawal (Respondent No. 9) and Amit Sharma (Respondent No. 7)in Regular Appeal No. 39-A/2004 which was allowed by XI Ith Additional District Judge, Fast Track Court, Jabalpur on 18.3.2005 and suit of the trust was dismissed. It is now undisputed before us that the trust had filed Second Appeal No-489/2005 which was dismissed by the High Court on 30.11.2006 and it was held that the Trust had failed in proving that the property could be gifted to them or the trust became the owner of the property or the trust was in possession of the property however, the High Court was also of the opinion that the claim of the trust that it had acquired Bhumiswami rights by prescription/adverse possession was also not justified. Undisputedly the judgment delivered in Second Appeal No. 479/2005 was challenged in S.L.P. of 2008 but the S.L.P came to be dismissed by the Supreme Court on 4.4.2008 on the ground of limitation. It also came on the record that one B.K. Tiwari had filed Writ Petition No. 6195/2007 in the public interest but however, that petition was dismissed by the High Court on 4.2.2008. The said judgment delivered by the High Court was challenged by B.K. Tiwari in Special Leave to Appeal (Civil) 2008 but the petition for Special Leave was withdrawn on 5.9.2008. In view of these admitted facts it was contended before the learned trial Court that the suit now cannot have any cause of action. The suit was barred by limitation, the suit was hit by the provisions of resjudicata and was liable to be dismissed. The Plaintiffs opposed the application and contended that question of resjudicata and limitation on the facts of the present case were mixed questions of fact and law and therefore, these questions should be decided as preliminary issues or along with other issues.

(3.) The trial Court after hearing the parties came to the conclusion that for disposal of an application filed under order 7 Rule 11 Code of Civil Procedure the plaint allegations only are to be seen and for purposes of application of principles of resjudicata which would a question of fact and law, the parties should be given appropriate opportunity and only thereafter the issue should be decided.