DHARMVEER Vs. HARIOM BANSAL

JUDGEMENT

(1.) The challenge in the revision application is to the order dated 06.02.2018 passed in Civil Suit No. 145-A/2017 by the Third Civil Judge, Class-I, Morena, whereby the application under Order 7 Rule 11 of CPC filed by the petitioners has been rejected.

(2.) The facts leading to the filing of the present revision application are that the respondent/plaintiff filed a civil suit pleading that he is having possession on the plot owned by the defendant since April 1989. The plaintiff instituted a civil suit against Trilokinath Gupta, Ramesh Chandra Gangil and Anil Kumar Gangil for injunction which was initially dismissed. However, on appeal decree of injunction has been granted to plaintiff. It is further submitted that in the plaint it is pleaded that on 15.07.2017 the defendant came to the property of plaintiff and he informed the plaintiff that the property in question has been purchased by the defendant. On making inquiry in the sub- registrar office, the plaintiff came to know that the disputed property has been purchased by defendant vide registered sale deed dated 08.10.2009. It is pleaded by the plaintiff that no actual physical possession was handed over and, therefore, the plaintiff is in possession of the property. On the basis of these pleadings the plaintiff has prayed that the may be declared as possession holder and the sale deed may be declared as null and void alongwith the relief of injunction. Thereafter the petitioners/defendants filed an application under Order 7 Rule 11 of CPC before the trial Court for rejecting the plaint as barred by law since the relief of plaintiff is based on pleading regarding declaration on the basis of possession. The trial Court without appreciating the correct provision of law and overlooking the real effect of pleading, rejected the application filed by the present petitioners. The dismissal of the application under Order 7 Rule 11 CPC has been assailed in the present revision application.

(3.) Learned counsel for the petitioners has contended that the impugned order is unsustainable in the eyes of law and has been passed in complete ignorance of the judgment passed by the Hon'ble Supreme Court in the case of Gurudwara Sahib Vs. Gram Panchayat Village Sirthala reported in (2014)1 SCC 669, in which it has been unequivocally held that the plaintiff cannot be permitted to take the plea of adverse possession. Further, it was contended that in the entire plaint the respondent has not disclose source of title and source of possession. He is trying to stop the real owner from entering into property. Admittedly, the respondent is not fighting for title, therefore, he cannot fight for possession. Thus, a prayer for setting aside the impugned order has been made by the learned counsel for the petitioners. In support of his contentions, learned counsel for the petitioners placed reliance of judgments in the cases of Arivandandam Vs. V. Satyapal and another reported in (1977) 4 SCC 467; Karim Bhai Vs. State of Maharashtra & ors. reported in I.L.R. [2009] M.P. 3167; and, Maria Margarida Sequeira Fernandes and others Vs. Erasmo Jack De Sequeira (Dead) through LRS. reported in (2012) 5 SCC 370.