Plea Of Private Partition Pursuant To Arbitral Award Raises Triable Issue; Plaint Cannot Be Rejected Under Order VII Rule 11 CPC: J&K&L High Court

The High Court of Jammu & Kashmir and Ladakh has held that where a party specifically pleads that a property was partitioned privately pursuant to an arbitral award, the question whether such partition actually took place becomes a triable issue and cannot be decided while considering an application for rejection of plaint under Order VII Rule 11 of the Code of Civil Procedure.The Court held that an arbitral award merely suggesting recourse to revenue authorities for partition does not rule out the possibility of a private partition amongst the parties.The Court was hearing a First Appeal challenging the judgment and order passed by the 1st Additional District Judge, Srinagar, whereby an application filed by the defendants under Order VII Rule 11 CPC was allowed and the plaint filed by the plaintiffs seeking declaration and injunction came to be rejected. The appeal arose out of a dispute relating to land which, according to the plaintiffs, had been privately partitioned pursuant to an arbitral award and over which they claimed title by adverse possession.A Bench of Justice Sanjay Dhar observed, "The issue whether the parties partitioned the suit land privately without the help of revenue authorities is factual in nature. The arbitral award nowhere rules out the partition of the suit property without the assistance of revenue authorities."Background:The plaintiffs instituted a suit for declaration and injunction claiming rights over certain land forming part of the estate left behind by their predecessor. According to the plaint, an arbitral award had been passed providing a mechanism for apportionment and partition of the estate. The award was subsequently made rule of the Court and a decree in terms thereof was passed. The plaintiffs pleaded that pursuant to the award, the land in question was privately partitioned amongst the beneficiaries and possession of their respective shares was taken over by them.The plaintiffs further pleaded that a portion of land which had fallen to the share of the predecessor-in-interest of defendants remained unused and abandoned. According to them, they fenced the said parcel during 1985-86 and continued in uninterrupted, peaceful and hostile possession thereof. It was pleaded that such possession matured into adverse possession and that the defendants and their predecessor never objected to the plaintiffs' possession.The dispute arose when the defendants initiated proceedings before the revenue authorities seeking partition of the property. The plaintiffs challenged those proceedings and sought declarations regarding their title as well as a decree of permanent prohibitory injunction restraining interference with their possession.The defendants filed an application under Order VII Rule 11 CPC contending that the plaint disclosed no cause of action. Accepting the contention, the trial court held that the parties were co-owners and that the plaintiffs had failed to plead ouster. The plaint was accordingly rejected.Court's Observation:The Court began by reiterating the principles governing Order VII Rule 11(a) CPC. It observed that while determining whether a plaint discloses a cause of action, the Court is required to consider only the averments contained in the plaint and the documents relied upon by the plaintiff. The contentions raised in the written statement or other ancillary proceedings cannot be taken into account at that stage, it emphasised. The Court noted that the principal argument of the defendants was that the property continued to be joint and unpartitioned because no partition had been effected by the revenue authorities after the arbitral award. The respondents relied upon the contents of the arbitral award to contend that the property remained a joint holding and that, consequently, the plea of adverse possession was legally untenable.Examining the arbitral award, the Court observed that although the Arbitrator had suggested that the parties could approach the revenue authorities for partition, the award itself had determined their respective shares. The Court found that the award merely gave an option to the parties to seek partition through revenue authorities and did not prohibit them from privately effecting partition in accordance with the shares determined therein.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."The Court further noted that the plaintiffs had specifically pleaded in the plaint that the property had been privately partitioned pursuant to the arbitral award. Whether such private partition had in fact taken place was a question of fact requiring evidence.Emphasising the nature of the controversy, the Court held, "... Once the plaintiffs have pleaded that the partition of the suit property came be affected by the parties...

Plea Of Private Partition Pursuant To Arbitral Award Raises Triable Issue; Plaint Cannot Be Rejected Under Order VII Rule 11 CPC: J&K&L High Court

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Plea Of Private Partition Pursuant To Arbitral Award Raises Triable Issue; Plaint Cannot Be Rejected Under Order VII Rule 11 CPC: J&K&L High Court

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