The petitioners/defendants have filed the present civil revision

under Section 115 of the Code of Civil Procedure, 1908 (in short “the

CPC”) being aggrieved by the order dated 01.08.2022 passed by the

Civil Judge, Junior Division, Sendhwa, District Barwani (M.P.) in Civil

Suit No.29-A/2021, whereby learned Trial Court has rejected an

application under Order 7 Rule 11 of CPC filed by the petitioners.

The respondent/plaintiff has filed a suit for declaration of title and

injunction in respect of suit land. In the said suit, after appearance, the

present petitioners filed an application under Order 7 Rule 11 of CPC on

the following grounds:-

i.

There is no cause of action to file present civil suit.

ii.

The respondent/plaintiff has not sought relief of possession,

therefore the suit is not maintainable as provided under Section

34 of Specific Relief Act, 1963.

iii.

The suit is barred by limitation.

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The application was opposed by the plaintiff. Learned Trial Court

vide impugned order dated 01.08.2022 has dismissed the application

firstly, on the ground that the cause of action is present in the suit.

Secondly, the petitioners are illegally trying to encroach upon the suit

land by fixing iron pole hence, question of maintainability of suit can be

decided after taking evidence. Thirdly, question of limitation is a mixed

question therefore, this objection also can be decided after taking

evidence of both the parties.

4.

Learned counsel for the petitioners submits that the

respondent/plaintiff has filed revenue record bearing survey No.81/38

alongwith the suit, but there is no pleading in respect of the aforesaid

land in the entire plaint, while survey No.81/38 is in the title of the

petitioners. Learned Trial Court has passed the impugned order without

considering the provision of Article 58 of the Schedule to the Limitation

Act, which prescribes limitation of 03 years for a declaratory suit. The

suit was not tenable without seeking the relief of the possession as

provided u/S 34 of the Specific Relief Act, 1963. Provisions of Order 7

Rule 11 has not been considered properly. The impugned order suffers

from perversity, irregularity and illegality. Therefore, the impugned

order is liable to be set aside. Learned counsel has placed reliance in the

case of ITC Ltd. V Debt Recovery Appellate Tribunal and Ors. [AIR

1998 SC 634] and Saleem Bhai and Ors. V State of Maharashtra and

4

Ors. [AIR 2003 SC 759].

5.

I have heard learned counsel for the petitioners and perused the

record.

6.

It is apposite to reproduce here provision of Order 7 Rule 3 of

CPC:-

“3. Where the subject-matter of the suit is immovable property-

Where the subject-matter of the suit is immovable property, the

plaint shall contain a description of the property sufficient to

identify it, and, in case such property can be identified by

boundaries or numbers in a record of settlement or survey, the

plaint shall specify such boundaries or numbers.”

7.

On perusal of copy of the plaint, it appears that though

respondent/plaintiff has given particular of suit land by mentioning the

chouhaddi of suit land, which is supported by registered sale deed, and

has not given survey number in the plaint, but as provided in the above

discussed provision, it is not necessary to mention survey number of the

suit land in the plaint if the description of the boundary is sufficient to

identify it. Therefore, on the aforesaid ground it cannot be said that the

suit is not maintainable.

8.

In the case of ITC Ltd. (Supra), the Apex Court has held in

paragraph-16 as under:-

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“16. Question is whether a real cause of action has been set out

in the plaint or something purely illusory has been stated with a

view to get out of order 7 rule 11, CPC. Clever drafting creating

illusions of cause of action are not permitted in law and a clear

right to sue should be shown in the plaint. See T. Arivandandam

V T.V. Satyapal, (1977) 4 SCC 466 : (AIR 1977 SC 2421).”

9.

The Apex Court in the case of Saleem Bhai and Ors (Supra) has

held