A plaintiff must establish a clear cause of action in the plaint; if not, the suit can be dismissed under Order 7 Rule 11 of CPC.

JUDGMENT :

(S.G. CHAPALGAONKAR, J.)

1. The applicants/original defendants No. 3 and 4 have filed present revision application impugning the order dated 3.10.2017 passed below Exhibits 1 and 20 in RCS No. 58 of 2014 by which their prayer for rejection of plaint under Order 7 Rule 11(a) of CPC has been declined.

2. Respondent Nos. 1 to 6 instituted RCS No. 58 of 2014 seeking the relief of partition, separate possession of suit land so also declaration that sale deed dated 28.11.1963 executed by defendant No.1 in favour of Sushilabai – grandmother of defendant Nos. 3 and 4, is invalid and not binding over the rights of plaintiffs.

3. It is contention of plaintiffs that suit land bearing Survey No. 371/4, Gat No. 1031 was originally owned by Pitambar Dashrath Bhalerao -Defendant No.1. He was enjoying same as owner as well as Karta of joint family. The land was inam re-granted in name of defendant No. 1. There was no partition of suit land. Defendant No.1, without legal necessity, transferred suit land in the name of Sushilabai Chaudhari i.e. grandmother of defendant Nos. 3 and 4 under registered sale deed dated 28.11.1963. According to plaintiffs, sale deed has been executed without consent of the other family members. Defendant No.1 had no right to transfer the land. According to plaintiffs, prior to institution of suit, when they asked for partition to defendant No.1, he refused to do so, as land is sold out. As such, cause of action arose to file the suit.

4. Applicants/Original defendant Nos. 3 & 4, appeared in the suit and filed an application below Exh. 20 under Order 7 Rule 11 of CPC, seeking rejection of plaint on the ground that plaintiffs have no right over the suit property and they have no cause of action to file the suit. Further, the suit is not properly valued as per market rate. Even, suit is barred by limitation.

5. The learned trial Judge appears to have recorded evidence of plaintiffs and defendants on aforesaid aspects of the matter and finally rejected the application Exhibit 20.

6. Mr. T.K. Sant, learned advocate appearing for the applicants submits that the plaintiffs Nos. 1 to 4 are grandsons of defendant No.1-Pitambar. Plaintiff Nos. 5 and 6 are his married daughters. Defendant No. 2 is father of plaintiff Nos. 1 to 4. Defendant No.1-Pitambar transferred the suit land in favour of grandmother of applicants i.e. Sushilabai under registered sale deed dated 28.11.1963. Since then, suit land was in possession of grandmother of applicants and thereafter they are enjoying ownership and possession of land. Mr. Sant would further submit that plaintiffs have no right to seek partition and separate possession in respect of suit property which has been transferred by defendant No.1 in the year 1963. He would further submit that suit is hopelessly barred by limitation.

7. Mr. Sant, invites attention of this court to the order passed by trial court below Exhibits 1 and 20 to contend that a novel procedure has been adopted by the learned Judge. Parties were put to record evidence on the preliminary issues framed in pursuance to the application under Order 7 Rule 11 of CPC and same has been rejected. Learned trial Judge observed that since plaintiffs pleaded that in the Month of May, 2014 they got knowledge as to the sale deed and defendant No.1 refused to grant them share in the suit property, suit has been filed based on the cause of action which is within limitation.

8. Per contra, Mr. Swapnil Patil learned advocate for respondents/plaintiffs supports the impugned order, contending that as soon as plaintiffs came to know about the sale deed of 1963, present suit has been filed. According to him, plaintiffs have a birth right in the suit property hence, they are entitled to seek partition and there is no limitation for the same.

9. Before venturing into the rival contentions, the parameters of jurisdiction to be exercised under Order 7 Rule 11 of CPC, needs to be considered with reference to the law laid down by the Supreme Cour