Patna High Court
HANUMAN SINGH AND OTHERSversusUDAI SHANKAR SINGH
- Decided
- Disposal
- DISMISSED
- Bench
- RAMESH CHAND MALVIYA
Holding
The High Court held that the trial court did not err; the plaint could not be rejected at the threshold because the limitation and estoppel defenses required evidentiary assessment, and thus the revision was dismissed.
Summary
The petitioners sought a civil revision of the Sub‑Judge’s order rejecting their application under Order VII Rule 11(a) of the CPC, which aimed to dismiss the plaintiff’s title suit alleging irregularities in a 1983 family partition. The plaintiff claimed that lands entrusted to the petitioners were alienated and that he was entitled to substitute lands, alleging interference with possession in 2018. The petitioners argued the suit was barred by limitation, estoppel, and the terms of the 1983 partition memorandum, contending the plaint should be rejected at the threshold. The trial court refused to reject the plaint, holding that the limitation and estoppel issues required factual determination at trial. The High Court examined the scope of revisional jurisdiction under Section 115 CPC and the proper test for Order VII Rule 11, concluding that the plaint did not manifestly lack a cause of action and that the limitation and estoppel defenses could not be decided without evidence. Accordingly, the revision was dismissed, affirming the trial court’s discretion to allow the suit to proceed.
Issues considered
- Whether the trial court erred in rejecting the application under Order VII Rule 11(a) of the CPC seeking dismissal of the plaint.
- Whether the plaint is barred by limitation under Articles 58 and 59 of the Limitation Act, 1963.
- Whether the doctrine of estoppel bars the plaintiff’s claim.
- Whether the revisional jurisdiction under Section 115 of the CPC permits interference with the trial court’s order.
- Whether the plaint, on its face, discloses a cause of action.
Legislation cited
- Code of Civil Procedure, 1908 — s. 115
- Indian Evidence Act, 1872 — s. 115
- Limitation Act, 1963 — s. Article 58, Article 59
Subjects
- civil revision
- Order VII Rule 11
- limitation
- estoppel
- family partition
- plaint rejection
- revisional jurisdiction
- CPC
- Limitation Act
- Indian Evidence Act
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL REVISION No.10 of 2021
======================================================
1.1. Arun Singh, Son of late Hanuman Singh, Presently residng at House of
Dinesh Prasad Singh, Pankaj Poltry Firm, New L.I.C. Colony, Shivpuri, P.O.
and P.S. Lal Bahadur Shastrinagar, District- Patna.
1.2. Shashi Shekhar Singh, Son of late Hanuman Singh, Presently residng at
House of Dinesh Prasad Singh, Pankaj Poltry Firm, New L.I.C. Colony,
Shivpuri, P.O. and P.S. Lal Bahadur Shastrinagar, District- Patna.
1.3. Shri Krishna Singh, Son of late Hanuman Singh, Presently residng at House
of Dinesh Prasad Singh, Pankaj Poltry Firm, New L.I.C. Colony, Shivpuri,
P.O. and P.S. Lal Bahadur Shastrinagar, District- Patna.
1.4. Anjani Kumar Son of late Hanuman Singh, Presently residng at House of
Dinesh Prasad Singh, Pankaj Poltry Firm, New L.I.C. Colony, Shivpuri, P.O.
and P.S. Lal Bahadur Shastrinagar, District- Patna.
1.5. Amar Kumar Singh, Son of late Hanuman Singh, Presently residng at House
of Dinesh Prasad Singh, Pankaj Poltry Firm, New L.I.C. Colony, Shivpuri,
P.O. and P.S. Lal Bahadur Shastrinagar, District- Patna.
2. Anand Raj Singh @ Anand Raj Son of Late Awadhpati Mahto @ Awadhpati
Singh resident of village and Post office- Boulipu, P.s.- Jagdishpur, District-
Bhojpur.
... ... Petitioner/s
Versus
1. Udai Shankar Singh son of late Rampati Singh resident of village/post
office- Boulipur, P.S.- Jagdishpur, District- Bhojpur.
2. Sumitra Devi wife of late Mukund Raj resident of village/post office-
Boulipur, p.s.- Jagdishpur, District- Bhojpur.
3. Abhinash Kumar son of late Mukund Raj resident of village/post office-
Boulipur, P.O.- Jagdishpur, District- Bhojpur.
4. Ritik Kumar son of late Mukund Raj resident of village/post office-
Boulipur, P.S.- Jagdishpur, District- Bhojpur.
... ... Respondent/s
======================================================
For the Petitioner/s : Mr. Pandit Jee Pandey, Advocate
Mr. Ramendra Pati Tripathy, Advocate
For the Respondent No. 1 : Mr. Rajesh Kumar, Advocate
Mr. Sunil Kumar, Yadav, Advocate
Patna High Court C.R. No.10 of 2021(12) dt.07-05-2026
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======================================================
CORAM: HONOURABLE MR. JUSTICE RAMESH CHAND MALVIYA
CAV ORDER
12 07-05-2026 Heard the learned counsel for the petitioners and the
learned counsel for the respondents.
2. This Civil Revision application is filed under
Section 115 of the Code of Civil Procedure (hereinafter referred
to as ‘CPC’) against order dated 24.06.2020 passed by the
learned Sub-Judge, Jagdishpur, Bhojpur (hereinafter referred to
as ‘Trial Court’) whereby and where under the petition dated 12-
06-2019 filed on behalf of petitioners under Order VII rule 11(a)
of the CPC was rejected.
3. Factual matrix giving rise to the present case is that
the Opposite Party No. 1 (plaintiff) instituted Title Suit No. 119
of 2018 before the learned Trial Court, seeking declaration,
injunction and other consequential reliefs, inter alia, on the
assertion that the parties are descendants of three brothers,
namely, Rampati Singh (father of the plaintiff), Awadhpati
Singh and Hanuman Singh (defendant no. 1), and that there had
been a partition of the joint family properties, which was
reduced into writing by way of a Memorandum of Partition
dated 24.03.1983. The plaintiff, while acknowledging the said
partition, alleged that there were irregularities in the allotment
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of shares and further pleaded that certain lands described in
Schedule-I of the plaint were entrusted to defendant no.1 for
cultivation and for liquidation of a loan taken for purchase of
agricultural implements, with an understanding that after
repayment of the loan, the said lands would be divided equally
among the three branches. It is further the case of the plaintiff
that defendant no.1, in collusion with others, alienated the
Schedule-I lands, including the alleged share of the plaintiff, and
in lieu thereof, provided lands described in Schedule-II to the
plaintiff, over which he claims to be in possession. The plaintiff
has further alleged that in the year 2018, the defendants
attempted to interfere with his possession over Schedule-II
lands, which gave rise to the present cause of action for filing
the suit.
4. Upon appearance, the defendants (petitioners
herein) filed an application under Order VII Rule 11 of the CPC,
praying for rejection of the plaint on the grounds that the suit is
vexatious and does not disclose any cause of action and is
barred by law, particularly by limitation and principles of
estoppel, inasmuch as the admitted partition dated 24.03.1983
had been fully acted upon by the parties for more than three
decades without any objection, and the present suit is an attempt
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to reopen a concluded partition. The plaintiff, however, opposed
the said application by filing a rejoinder denying the contentions
of the defendants.
5. Considering the facts and circumstances of the case
and after hearing the parties, the learned Trial Court, vide order
dated 24.06.2020, rejected the application filed under Order VII
Rule 11 of the CPC, holding that the plaint could not be rejected
at that stage, which order is under challenge in the present Civil
Revision Application.
6. Learned counsel for the petitioners submitted that
the learned Trial Court committed a manifest illegality in
rejecting the application filed under Order VII Rule 11(a) of the
CPC, and that the impugned order is illegal, improper, and
contrary to the mandatory provisions of law, and is therefore
liable to be set aside. It was submitted that the learned Trial
Court wholly failed to appreciate that the plaintiff, in the plaint
itself, has unequivocally acknowledged the partition among the
brothers of his father, which was reduced to writing on
24.03.1983. It was further submitted that the learned Trial Court
failed to take into consideration the undisputed fact that the said
partition of 1983 was fully accepted and acted upon by all
parties thereto, including the father of the plaintiff and the
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plaintiff himself, for a period of approximately thirty-five years,
and that the plaintiff cannot now be permitted to resile from the
said arrangement, as he is estopped from doing so under the
principles of estoppel and the provisions of Section 115 of the
Indian Evidence Act, given that the arrangement has been fully
acted upon by all concerned parties.
6.i. It was further submitted that the reliefs sought by
the plaintiff in the present suit are plainly barred by the law of
limitation in view of Articles 58 and 59 of the Schedule to the
Limitation Act, 1963, which prescribe a period of three years for
filing a suit to cancel or set aside an instrument or a decree, for
recession of a contract, or for obtaining any other declaration. It
was accordingly submitted that the suit being barred by
limitation and estoppel, the same constitutes a valid and
sufficient ground for rejection of the plaint under Order VII
Rule 11(d) of the CPC. It was further submitted that the learned
Sub-Judge illegally confined his consideration only to Order VII
Rule 11(a) of the CPC, thereby ignoring the bar under clause (d)
thereof, which is equally applicable and cannot be treated as
redundant.
6.ii. It is further submitted that the learned Trial Court
failed to appreciate that the plaintiff, in the plaint itself, has
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clearly and unambiguously acknowledged the partition among
his father's brothers vide the Memorandum of Partition dated
24.03.1983, and that neither the plaintiff nor his father had ever
challenged the recitals, schedules, or allotment of lands made
under the said partition during a period of approximately 35 years
prior to the filing of the present suit in 2018. It was submitted that
such admission in the plaint has conferred a perfected right and
possession upon the respective shareholders, which cannot be
disturbed after such an inordinate lapse of time, and that this
renders the plaint liable to rejection on the ground of limitation
and estoppel under Order VII Rule 11(d) of the CPC.
6.iii. It was further submitted that the learned Trial
Court failed to consider that the plaintiff has sought to set up a
vexatious and fictitious case with the sole intent of reopening
the partition effected among his father's brothers in the year
1983, and that the plaintiff's case as set out in the plaint is
directly contrary to the recitals and schedules of the
Memorandum of Partition dated 24.03.1983, which clearly
indicate that the Schedule-1 lands were allotted to defendant No.
1 in lieu of repayment of the joint family debt, subject to
subsequent division among the parties upon repayment of the
loan.
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6.iv. It was further submitted that the learned Trial
Court failed to appreciate that the Memorandum of Partition
dated 24.03.1983 constitutes an instrument within the meaning
of the relevant provisions of law, and that Article 59 of the
Schedule to the Limitation Act, 1963 prescribes a period of
three years for filing a suit to cancel or set aside such an
instrument or for rescission of a contract, which period has long
since expired.
6.v. It was further submitted that the learned Trial
Court, while passing the impugned order, wholly failed to
consider that the right to sue, if any, to challenge or seek any
declaration in relation to the said partition, first accrued to any
party thereto within three years from the date of the
Memorandum of Partition, i.e., from 24.03.1983, as prescribed
under Article 58 of the Schedule to the Limitation Act, 1963,
and accordingly the present suit is hopelessly barred by
limitation.
7. Learned counsel for the opposite party submitted
that the impugned order has no infirmity and illegality. The
petition of defendant 1st party under Order VII Rule 11 (a) of the
CPC is not maintainable in the eyes of law as well as on fact. He
further submitted that for deciding the petition under Order VII
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Rule 11 (a) of the CPC the court has to look entire averments
made in the plaint because cause of action is bundle of fact and
at this stage the written statement or evidence of any of the
parties is not permissible in law to be considered. He further
submitted that while deciding the application of rejection of
plaint the court has to look only to the allegations to the plaint
and should assumed then to be correct for the time being and
then to ascertain whether these allegations disclose a cause of
action or not.
7.i. It is also submitted that the plaint, on a meaningful
reading, clearly discloses a cause of action inasmuch as the
plaintiff has specifically pleaded entrustment of Schedule-I land,
its subsequent unauthorized alienation by defendant no. 1
(petitioners herein), and adjustment by way of Schedule-II land
over which the plaintiff is in possession. It is further submitted that
the allegation of interference with such possession in the year
2018 constitutes a fresh and subsisting cause of action, justifying
institution of the suit.
7.ii. He further submitted that in paragraph 10 of the
plaint Defendant No. 1 is attempting to interfere with the plaintiff's
possession over the Schedule-2 land, which necessitated the filing
of the present suit, and the cause of action therefore arose on
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16.05.2018 and 08.06.2018. Learned counsel submitted that the
pleas raised by the defendants with regard to limitation, estoppel
and the effect of the Memorandum of Partition dated 24.03.1983
cannot be decided at the stage of Order VII Rule 11 of the CPC, as
the same involve disputed and complex questions of fact requiring
evidence. Learned counsel further submitted that the plaintiff is
not seeking to set aside the partition simpliciter, rather his claim is
based on subsequent transactions and arrangements inter se the
parties, the validity and effect of which can only be adjudicated
upon trial. Therefore, it is submitted that the application filed by
the defendants was rightly rejected.
7.iii. It is lastly submitted that the scope of interference
in revisional jurisdiction is limited and unless there is patent
illegality or jurisdictional error, this Court ought not to interfere
with the discretionary order passed by the learned Trial Court.
According to the learned counsel, no such illegality or material
irregularity is made out in the present case and, as such, the
present Civil Revision Application is fit to be dismissed.
8. Having considered the rival submissions advanced
on behalf of the parties and have perused the materials available
on record, including the impugned order and the plaint filed
before the learned Trial Court, the point that arises for
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determination in the present revision is “whether the learned
Trial Court erred in law in rejecting the application under
Order VII Rule 11 of the CPC seeking rejection of the plaint?”
9. Before adverting to the rival contentions on merits,
it would be apposite to notice the scope of interference in
exercise of revisional jurisdiction under Section 115 of the CPC.
This Court does not sit as a court of appeal over the order of the
subordinate court; interference is warranted only where the
learned Trial Court has exercised a jurisdiction not vested in it
by law, or has failed to exercise jurisdiction so vested, or has
acted in the exercise of its jurisdiction illegally or with material
irregularity. Thus, unless the finding recorded by the learned
Trial Court is shown to suffer from a patent error of law or
jurisdictional infirmity, this Court would be slow to substitute its
own view merely because another view is possible.
10. The contours of revisional jurisdiction under
Section 115 of the CPC have been authoritatively delineated by
the Hon’ble Apex Court in Shiv Shakti Coop. Housing Society
v. Swaraj Developers and Ors., reported in (2003) 6 SCC 659,
wherein it has been held that the revisional power is supervisory
in nature and cannot be equated with appellate jurisdiction;
interference is permissible only where the subordinate court has
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acted without jurisdiction or with material irregularity in the
exercise of such jurisdiction. Similarly, in Hindustan
Petroleum Corporation Ltd. v. Dilbahar Singh, reported in
(2014) 9 SCC 78, the Hon’ble Apex Court reiterated that re-
appreciation of facts or substitution of a possible view is
impermissible in revision unless the impugned order suffers
from patent illegality or perversity.
11. Moreover, the scope of Order VII Rule 11 of the
CPC explained in various decisions and the legal principles
deducible. The material to be considered for rejecting the plaint
has been dealt with in the case of Dahiben v. Arvind Bhai
Kalyanji Bhanusali reported in (2020) SCCONLINE 563 The
Apex court has settled the principle and made the following
observation:
“12.6- At this stage, the pleas taken by the
defendant in the written statement and
application for rejection of the plaint on
the merits, would be irrelevant, and cannot
be adverted to, or taken into consideration.
“12.7- The test for exercising the power
under Order VII Rule 11 is that if the
averments made in the plaint are taken
entirety, in conjunction with the documents
relied upon, would the same result in a
decree being passed”.
“23.2. The remedy under Order7 Rule11 is
an independent and special remedy,
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wherein the Court is empowered to
summarily dismiss a suit at the threshold,
without proceeding to record evidence, and
conducting a trial, on the basis of the
evidence adduced, if it is satisfied that the
action should be terminated on any of the
grounds contained in this provision.
23.5. The power conferred on the court to
terminate a civil action is, however, a
drastic one, and the conditions enumerated
in Order 7 Rule 11 are required to be
strictly adhered to.
23.6. Under Order 7 Rule 11, a duty is
cast on the Court to determine whether the
plaint discloses a cause of action by
scrutinizing the averments in the plaint
[Liverpool & London S.P. & I Assn. Ltd. v.
M.V. Sea Success I, (2004) 9 SCC512],
read in conjunction with the documents
relied upon, or whether the suit is barred
by any law. In exercise of power under this
provision, the Court would determine if the
assertions made in the plaint are contrary
to statutory law, or judicial dicta, for
deciding whether a case for rejecting the
plaint at the threshold is made out. At this
stage, the pleas taken by the defendant in
the written statement and application for
rejection of the plaint [Sopan Sukhdeo
Sable Vs. Charity Commr. (2004) 3 SCC
137] on the merits, would be irrelevant,
and cannot be adverted to, or taken into
consideration. The test for exercising the
power under Order VII Rule 11 is that if the
averments made in the plaint are taken in
entirety, in conjunction with he documents
relied upon, would the same result in a
decree being passed. This test was laid
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down in Liverpool & London S.P. & I Assn.
Ltd. v. M.V. Sea Success I & Anr., (2004) 9
SCC512) which reads as:(SCC p.562, para
139) In Hardesh Ores (P.)Ltd. v. Hede &
Co. (2007) 5 SCC 614 the Court further
held that it is not permissible to cull out a
sentence or a passage, and to read it in
isolation. It is the substance, and not
merely the form, which has to be looked
into. The plaint has to be construed as it
stands, without addition or subtraction of
words. If the allegations in the plaint
prima facie show a cause of action, the
court cannot embark upon an enquiry
whether the allegations are true in fact. D.
Ramachandran v. R.V. Janakiraman
[D.Ramachandran v. R.V. Janakiraman,
(1999)3 SCC 267; See also Vijay Pratap
Singh Vs. Dukh Haran Nath Singh, AIR
1962 SC 941]. If on a meaningful reading
of the plaint, it is found that the suit is
manifestly vexatious and without any merit,
and does not disclose a right to sue, the
court would be justified in exercising the
power under Order VII Rule 11 CPC.
23.15. The provision of Order VII Rule 11is
mandatory in nature. It states that the plaint
"shall" be rejected if any of the grounds
specified in clause (a) to (e) are made out.
If the Court finds that the plaint does not
disclose a cause of action, or that the suit is
barred by any law, the Court has no option,
but to reject the plaint.
12. Upon overall consideration of the pleadings of the
parties and perusal of the materials available on record, this
Court finds that the plaintiff/Opposite Party No.1 has, in the
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plaint itself, acknowledged the existence of a Memorandum of
Partition dated 24.03.1983 among the three branches of the
family and the consequent allotment of shares. At the same time,
the plaintiff/Opposite Party No.1 has set up a distinct and
subsequent case that certain lands (Schedule-I) were entrusted to
defendant no. 1 (petitioners herein) for a specific purpose and,
upon their alleged alienation, lands described in Schedule-II
were given in adjustment, over which the plaintiff/Opposite
Party No.1 claims possession. The pleadings further disclose an
allegation of interference with such possession in the year 2018.
Thus, the case of the plaintiff/Opposite Party No.1 is not a direct
challenge to the partition simpliciter, but is founded upon
subsequent transactions and alleged adjustments inter se the
parties.
13. From a meaningful and holistic reading of the
plaint, it cannot be conclusively inferred at this stage that the
suit is barred by limitation on the face of it. Although the
defendants have laid considerable emphasis on the delay of
several decades from the date of partition, the plaintiff has
pleaded a continuing cause founded upon subsequent dealings
and alleged interference in the year 2018. Whether such
pleadings are ultimately sustainable or are merely a device to
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overcome the bar of limitation is a matter which would require
adjudication on evidence at the stage of trial. The applicability
of Articles 58 and 59 of the Limitation Act, 1963, in the facts of
the present case, would therefore depend upon determination of
the true nature of the claim of the plaintiff, the character of
possession, and the effect of the alleged subsequent
arrangement, all of which involve disputed questions of fact.
14. The Hon’ble Apex Court in Inder Singh v. The
State of Madhya Pradesh, reported in 2025 LiveLaw (SC) 339
has settled the position with respect to limitation and has
observed as under:
“There can be no quarrel on the settled
principle of law that delay cannot be
condoned without sufficient cause, but a
major aspect which has to be kept in mind
is that, if in a particular case, the merits
have to be examined, it should not be
scuttled merely on the basis of limitation.”
15. It is well settled that while considering an
application under Order VII Rule 11 of the CPC, the Court is
required to confine itself strictly to the averments made in the
plaint and the documents relied upon therein, without
embarking upon an enquiry into disputed questions or
evaluating the defence of the defendants. Rejection of plaint
under clause (d) is permissible only where the suit appears to be
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barred by law from the statements made in the plaint itself, and
such bar must be apparent and unambiguous. In the present
case, the question whether the suit is barred by limitation or by
principles of estoppel cannot be determined without a deeper
examination of the factual matrix, and therefore, the same
cannot be adjudicated at the threshold stage.
16. In the aforesaid circumstances, this Court is of the
considered opinion that the pleas raised by the defendants-
petitioners pertain to mixed questions of facts and law, which
are required to be decided on the basis of evidence during the
course of trial. The learned Trial Court, therefore, cannot be said
to have committed any jurisdictional error or material
irregularity in rejecting the application under Order VII Rule 11
of the CPC, and the impugned order does not warrant
interference in revisional jurisdiction.
17. In view of the discussions made hereinabove, this
Court is of the considered opinion that no case for interference
is made out with the impugned order dated 24.06.2020 passed
by the learned Sub-Judge, Jagdishpur, District-Bhojpur in Title
Suit No. 119 of 2018. The learned Trial Court has rightly held
that the plaint cannot be rejected at the threshold and that the
issues raised require adjudication upon evidence.
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18. Accordingly, the present Civil Revision
Application, being devoid of merit, is hereby dismissed.
19. There shall be no order as to costs.
20. Let the copy of this order be transmitted to the
Court concerned forthwith.
(Ramesh Chand Malviya, J)
Anand Kr.
U
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