2008 (4) TMI 800 - SC - Indian Laws

Application Under Order VII Rule 11 of the Code of Civil Procedure, 1908 claiming rejection of the plaint - rejection on the ground that the suit filed was barred by res judicata - Allegedly, the eldest son of Kabadi Gopalsa went out of the joint family by executing a registered Deed of Release upon taking his share in the ancestral property on or about 10.03.1918 - partition is said to have taken place between two sons of Chinnusa, i.e., Kabadi Giddusa and Kabadi Gopalsa on or about 1.05.1926 - Kabadi Gopalsa died in 1947 - HELD THAT - Suit was filed by Ramusa (son of Gopalsa) against his mother and three brothers in respect of three house properties being Item Nos. 1, 2 and 3 and the Revenue land (Item No. 4). Defendant No. 3 in the said suit was the grand father of the deceased husband of the appellant No. 1 in the present case. For the purpose of invoking Order VII, Rule 11(d) of the Code, no amount of evidence can be looked into. The issues on merit of the matter which may arise between the parties would not be within the realm of the court at that stage. All issues shall not be the subject matter of an order under the said provision. The principles of res judicata , when attracted, would bar another suit in view of Section 12 of the Code. The question involving a mixed question of law and fact which may require not only examination of the plaint but also other evidence and the order passed in the earlier suit may be taken up either as a preliminary issue or at the final hearing, but, the said question cannot be determined at that stage. It is one thing to say that the averments made in the plaint on their face discloses no cause of action, but it is another thing to say that although the same discloses a cause of action, the same is barred by a law. We may proceed on the assumption that the shares of the parties were defined. There was a partition amongst the parties in the sense that they could transfer their undivided share. What would, however, be the effect of a partition suit which had not been taken to its logical conclusion by getting the properties partitioned by metes and bounds is a question which, in our opinion, cannot be gone into in a proceeding under Order VII, Rule 11(d) of the Code. The plaintiff - appellant might not have prayed for any decree for setting aside the deeds of sale but they have raised a legal plea that by reason thereof the rights of the co-parceners have not been taken away. Their status might not be of the coparceners, after the preliminary decree for partition was passed but as we have indicated hereinbefore the same cannot be a subject matter of consideration in terms of Order VII, Rule 11(d) of the Code. In Tara Pada Ray v. Shyama Pada Ray and Ors. AIR1952Cal579 wherein the averments made in the deed of sale had been taken into consideration. Therein, however, the Calcutta High Court noticed that the final decree proceedings need not be resorted to where the directions contained in a preliminary decree had been acted upon by the parties. Even such a question is required to be gone into. In Kalloomal Tapeswari Prasad (HUF), Kanpur v. Commissioner of Income Tax, Kanpur 1982 133ITR690(SC) to contend that even partial partition is permissible. No exception thereto can be taken but the effect thereof vis- -vis another suit, it is trite, cannot be determined under Order VII, Rule 11 of the Code. Therefore, the impugned order cannot be sustained. The appeal is allowed. We, however, must make it clear that the parties would be at liberty to raise all contentions before the learned Trial Judge at appropriate stage (s).

Issues Involved:
1. Application of Order VII, Rule 11(d) of the Code of Civil Procedure.
2. Existence and effect of preliminary and final decrees.
3. Alleged severance of joint family status and partition by metes and bounds.
4. Maintainability of the suit for partition.
5. Consideration of res judicata and mixed questions of law and fact.
6. Relevance of sale deeds and third-party interests.

Issue-wise Detailed Analysis:

1. Application of Order VII, Rule 11(d) of the Code of Civil Procedure:
The appeal concerns the application of Order VII, Rule 11(d) of the Code of Civil Procedure, which permits the rejection of a plaint if it appears from the statement in the plaint to be barred by any law. The trial court and the High Court concluded that the suit was barred under Section 12 of the Code read with Order II, Rule 2, as no cause of action was disclosed in the suit.

2. Existence and Effect of Preliminary and Final Decrees:
A preliminary decree was passed by the trial court declaring a 2/9th share of the plaintiff, later amended to a 1/4th share. The final decree proceedings were initiated but not concluded, and the final decree was dismissed for default on 03.09.1974. The court noted that despite various orders and interlocutory proceedings, there had been no partition by metes and bounds.

3. Alleged Severance of Joint Family Status and Partition by Metes and Bounds:
The respondents argued that there had been a complete severance of the joint family status and division of properties by metes and bounds, resulting in independent possession by co-sharers. The appellants denied this, maintaining that the properties were not partitioned by metes and bounds. The court held that whether the properties were available for partition is a question of fact that cannot be determined under Order VII, Rule 11(d).

4. Maintainability of the Suit for Partition:
The appellants filed a suit for partition of the properties described in the earlier suit. The respondents filed an application for rejection of the plaint, which was allowed by the trial court and affirmed by the High Court. The appellants argued that since no final decree was passed, the suit for partition was maintainable. The court opined that the effect of a partition suit not taken to its logical conclusion cannot be determined under Order VII, Rule 11(d).

5. Consideration of Res Judicata and Mixed Questions of Law and Fact:
The respondents contended that the suit was barred by res judicata. The court noted that res judicata involves mixed questions of law and fact, requiring examination of the plaint and other evidence, which cannot be determined at the stage of Order VII, Rule 11(d). The court emphasized that only the averments made in the plaint should be considered for invoking this provision.

6. Relevance of Sale Deeds and Third-Party Interests:
The respondents argued that sale deeds executed by co-sharers from 1954 to 1956 and third-party interests created therein barred the suit for partition. The court held that the effect of these sale deeds and third-party interests requires adjudication and cannot be determined under Order VII, Rule 11(d). The court also noted that whether the properties mentioned in the plaint are available for partition is a question of fact.

Conclusion:
The Supreme Court allowed the appeal, setting aside the impugned order and emphasizing that the parties are at liberty to raise all contentions before the trial judge at appropriate stages. The court reiterated that the issues raised involve questions of fact and law that cannot be conclusively determined under Order VII, Rule 11(d) of the Code. The parties were directed to bear their own costs of the appeal.

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