IMPORTANT POINT
A plaint must disclose a clear cause of action; clever drafting that creates an illusion of a cause of action is insufficient for maintaining a suit.

JUDGMENT :

Shampa Sarkar, J.

1. An order dated September 27, 2022, passed by the learned Civil Judge (Senior Division) 2nd Court, at Barasat, in Title Suit No.636 of 2022, is impugned. The learned court rejected an application filed by the defendant/petitioner under Order 7 Rule 11 of the Code of Civil Procedure. The other part of the order rejecting an application under Section 151 of the Code of Civil Procedure, is not the subject matter of this proceeding.

2. The defendant/petitioner prayed for rejection of the plaint on the ground that the plaint did not disclose a cause of action. That the suit was not maintainable under Section 22 of the Hindu Succession Act, 1956 (hereinafter referred to as the said Act). That the plaintiff/opposite party did not have a preferential right in terms of the said provisions of law. No cause of action had arisen, leading to the filing of the suit. The share of the plaintiff/opposite party was never denied by the defendant/petitioner as would be evident from the averments in the plaint. As such, a suit for declaration and permanent injunction would not be maintainable. The plaintiff/opposite party could not prevent the defendant/petitioner, from disposing of his undivided share in the property, by invoking Section 22 of the said Act.

3. The plaintiff/opposite party filed an objection to the said application, inter alia, stating that the suit property was inherited by the plaintiff and the defendant from the original lessee Ajit Kumar Ghosh. The plaintiff and the defendant had half share each in the property. The plaintiff was a class-I heir under the Hindu Successions Act, 1956 and entitled to the benefit of Section 22 of the said Act. The plaintiff/opposite party further urged that he was also entitled to get a declaration of his status as the legal heir of the deceased lessee Ajit Kumar Ghosh. The provisions of Section 4 of the Partition Act, 1893, and Section 44 of the Transfer of Property Act, 1882, would also be applicable for the protection of his right.

4. Upon hearing the parties, the learned court held that the cause of action as pleaded, was not illusory. The averments made in the plaint, taken as a whole, disclosed that the plaintiff and the defendant were joint owners. They had been enjoying the property. Both were in possession of the property. The property had not been partitioned. The shares were not demarcated. Cause of action for filing the suit, had been disclosed. Cause of action being a bundle of facts, could be deciphered from the totality of the plaint and not from a single paragraph. Averments in the plaint ought to be looked into in its entirety in order to assess whether the plaint disclosed a cause of action or not. Elaborate enquiry on doubtful and complicated question of fact and law was not required to be embarked upon, while adjudicating an application under Order 7 Rule 11 of the Code of Civil Procedure. The order of rejection of the application has been challenged before this Court

5. Mr. Sayantan Bose, learned Advocate appearing on behalf of the petitioner/defendant submitted that the preferential right under Section 22 of the said Act, would not be applicable in the facts of this case as the defendant was the heir of a co-heir and not a co-heir of the plaintiff. The plaintiff and the deceased father of the defendant were co-heirs (class-I heirs of the original lessee Ajit Kumar Ghosh). Such provision of law would have been applicable if the petitioner’s father wanted to sell his share. Upon the death of the petitioner’s father, the plaintiff and the petitioner did not become co-heirs. Plaintiff and Anindya (since deceased) were class-I heirs of Dr. Ajit Kumar Ghosh, the original lessee of the property. Upon death of Dr. Ajit Kumar Ghosh, Anindya and the plaintiff inherited the property as coheirs and co-sharers. Upon death of Anindya, his share devolved upon the petitioner, who was not one of the class-I heirs of the original lessee and any sale proposed by defenda