Once Status Of Property Becomes A Triable Issue, Plaint Cannot Be Rejected Under Order VII Rule 11 CPC: J&K&L High Court

The Court made this observation while setting aside an order of the trial court rejecting a plaint in a suit for declaration and injunction based on adverse possession, observing that the trial court had fallen into a grave error by ignoring pleadings with regard to private partition.

The Court was hearing a Regular First Appeal filed by the plaintiffs challenging the order/judgment passed by the 1st Additional District, Srinagar, whereby the trial court had allowed an application filed by the respondents/defendants under Order VII Rule 11 CPC and rejected the plaint.

A Bench of Justice Sanjay Dhar, while allowing the appeal and remanding the case for trial, observed,

“Once the question as to the status of the suit property, whether it was joint holding or partitioned, becomes a triable issue, the plaint could not have been rejected under Order VII Rule 11 of the Code of Civil Procedure.”

Background:

The appellants filed a suit for declaration and injunction before the trial court. The plaint alleged that the predecessor-in-interest of plaintiff No.1, had left behind an estate comprising residential/commercial structures and landed property. An award in 1971 passed by the Arbitrator, providing a mechanism for apportionment and partition of the properties, was made Rule of the Court. Pursuant to the award, the property including land measuring 47 kanals 9½ marlas was apportioned amongst the legal heirs.

It was pleaded that the land came to be partitioned privately, whereafter plaintiff No.1 took over possession of his share. The land in the adjoining vicinity fell to the share of the predecessor of defendants No.1 to 3. The plaintiffs alleged that the predecessor of the defendants did not occupy or use the land, thereby abandoning it.

Consequently, the plaintiffs enclosed the said portion by fencing it around in 1985-1986 and had been in continuous, uninterrupted and peaceful possession since then, which had matured into adverse possession in 1994.

It was further pleaded that after all these years, defendants No.1 to 3 had woken up and started making claims over the suit land by filing an application before the Divisional Commissioner, Kashmir, seeking partition. The plaintiffs sought a declaration that they were owners of the suit land on the strength of adverse possession, and a permanent prohibitory injunction restraining the defendants from interfering with their possession.

Defendants No.1 to 3 filed an application under Order VII Rule 11 CPC contending that the plaint did not disclose any cause of action. They argued that the parties were co-owners and in the absence of any pleading of ouster or exclusion, the plaintiffs could not claim title by adverse possession.

The trial court, after analyzing the plaint, rejected it on the ground that the plaintiffs had failed to establish any cause of action to claim adverse possession over the suit property, observing that the parties were co-owners and the plaintiffs had not pleaded ouster. Aggrieved, plaintiffs approached High Court.

Court's Observations:

The High Court first reiterated the legal position on rejection of plaint under Order VII Rule 11(a) CPC, observing,

“A plaint can be rejected in terms of Order VII Rule 11(a) of Civil Procedure Code by the court if it does not disclose cause of action. Without a cause of action, a civil suit cannot be entertained. A cause of action means every fact which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to judgment.”

The Court noted that while considering such an application, the court must only consider the averments made in the plaint together with the documents relied upon by the plaintiffs, and not the contentions raised in the written statement.

Examining the award of the Arbitrator, the Court noted that even though the Arbitrator suggested that the land situated at Nandpora Nigeen be partitioned by the revenue authorities, the Arbitrator had proceeded to determine the shares of the parties. The Court observed,

“This does not mean that the partition of the suit property in accordance with the shares provided under the award of the Arbitrator could not have been effected by the parties privately without the assistance of the revenue authorities.”

Observing that the plaintiffs had specifically pleaded in the plaint that the land came to be partitioned privately the Court held that this issue as to whether the parties partitioned the suit land privately without the help of revenue authorities is factual in nature.

“Once the plaintiffs have pleaded that the partition of the suit property came to be effected by the parties privately pursuant to the award of the Arbitrator, they have to be given a chance to prove this fact by leading evidence. The learned trial court, therefore, could not have presumed that the suit land is still joint holding of the parties at this stage without there being any trial with regard to the issue whether there was any private partition of the property pursuant to the award passed by the Arbitrator.”, the court remarked.

The Court further examined the pleadings with regard to adverse possession and found that the plaintiffs had clearly pleaded that for the last more than 40 years they were enjoying peaceful, continuous, open, hostile and clear possession of the land in question to the knowledge of the defendants and their predecessor-in-interest. It was also pleaded that the plaintiffs had enclosed the land by fencing in 1985-1986.

The Court held that the trial court had fallen into a grave error and observed,

“The learned trial court, while rejecting the plaint by observing that the plaintiffs cannot claim adverse possession over the suit land as the same is a joint holding, has fallen into a grave error because it has ignored the pleadings with regard to private partition in respect of the suit land.”

Additionally, the Court noted that even if the plaintiffs could not claim adverse possession, they were certainly within their rights to claim a decree of permanent prohibitory injunction in respect of the suit land, as admittedly the same was in their possession.

Accordingly, the High Court allowed the appeal, set aside the impugned order passed by the trial court, and remanded the case to the trial court with a direction to frame issues on the basis of the pleadings of the parties and proceed further in the matter in accordance with law.

Case Title: Nazir Ahmad Mir & Ors Vs Ishfaq Ahmad Mir

Citation: 2026 LiveLaw (JKL)

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