JUDGMENT

1. This first appeal has been filed against the order dated 14.7.2021 passed by Second Additional District Judge, Nowgaon, District Chhatarpur (M.P.) in RCSA No.100001/2014 by which the suit filed by the appellant for declaration of title, permanent injunction as well as for declaring the sale deed dated 24.12.2012 as null and void was dismissed under Order 7 rule 11 CPC on the ground that the suit does not disclose any cause of action.

2. The facts necessary for disposal of the present appeal in short are that the plaintiff and the defendants No.2 and 3 are real brothers, whereas the defendant No.1 is the father of the plaintiff. It is the claim of the plaintiff that the property in dispute i.e. Khasra Nos.237, 242, 244, 248 total area 2.328 hectares situated in Mauja Ranipura, Tahsil Nowgaon, District Chhatarpur is in the ownership and in possession of the plaintiff as well as the defendant No.2. Since, the plaintiff and the defendant No.2 were busy in their business, therefore they executed a general power of attorney in favour of the defendant No.1 in respect of the property in dispute. The defendant No.1 on the strength of the power of attorney entered into an agreement with Dr. Rajesh Agrawal to alienate the property and an amount of Rs.60 Lacs was received and the remaining amount of Rs.1 Crore and 71 Lacs was to be received at the time of the execution of the sale deed. Time was the essence of the contract and it was mentioned that the sale deed shall be executed by the month of April, 2013. Out of total amount of Rs.60 Lacs, Rs.45 Lacs was paid in cash, whereas Rs.15 Lacs were paid by cheque. After the execution of the agreement, the intention of the defendant No.1 became dishonest and in order to play fraud on the appellant, the defendant No.1 executed a sale deed in favour of his youngest son defendant No.3 on 24.12.2012. It is the case of the plaintiff that the entire transaction has been done with an intention to defraud the plaintiff and the land, which was agreed to be sold for an amount of Rs.2 Crore 31 Lacs just four days back from the date of the execution of sale deed in dispute, the sale deed in question was executed for a consideration amount of Rs.24 Lacs only. The plaintiff has not been given his share in the consideration amount, which was received by the defendant No.1. The entire transaction is fraud and a sham transaction. The plaintiff had not given any consent for the sale deed. The power of attorney, which was executed in favour of the defendant No.1, has already been cancelled on 16.1.2013. The plaintiff had requested the defendants not to act upon on the sale deed dated 24.12.2012 but they did not agree for the same and accordingly, the plaintiff has also raised his objections before the revenue authorities and thus, the suit was filed for declaration of title, permanent injunction as well as for declaration of sale deed dated 24.12.2012 as null and void to the extent of share of the plaintiff.

3. The defendants filed their written statement.

4. It appears that the trial Court directed the plaintiff to file the original copy of the agreement purportedly executed between the defendant No.1 and Dr. Rajesh Agrawal. However, the original agreement was not filed but a coloured photocopy of the agreement, which has been attested by the Notary, was filed. Even, the plaintiff could not file the cheque of Rs.15 Lacs, which according to the plaintiff was given by Dr. Rajesh Agrawal to the defendant No.1. Accordingly, it was observed that an adverse inference can be drawn against the plaintiff and thus, it was held that since no cause of action has arisen, therefore, the plaint is liable to be rejected.

5. Challenging the order passed by the Court below, it is submitted by the counsel for the appellant that it is well established principle of law that for deciding an application under Order 7 rule 11 CPC, the Court is required to go through the plaint averments only. In the present case, the trial Cou