A plaint can be dismissed under Order VII Rule 11 if it fails to disclose a cause of action, especially when material facts are suppressed.

ORDER :

(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV)

1. This first appeal filed under Sec.96 r/w. Section 105 of the Code of Civil Procedure, arises out of the judgement and order dated 17.09.2022, passed by the Principal Senior Civil Judge, Gandhinagar in Special Civil Suit No. 30 of 2021. The appellant is the original plaintiff. He filed Special Civil Suit No. 30 of 2021 with the plaint stating the following facts:

1.1 The subject matter of the suit was land at village Kudasan, District: Gandhinagar of Block Survey No.120 (Old Survey No.117). The total area of the land was 14,302 sq.mtrs. Of the 14,302 sq.mtrs of land, 2,864 sq.mtrs was acquired for the purposes of laying a road leaving a total area of 11,168 sq.mtrs.

1.2 It was the case of the plaintiff that the land admeasuring 14,032/- sq.mtrs was originally owned by two co-owners, Jetha Vala and Kachra Mula. Both held 7,016 sq.mtrs each, i.e. half the share of the total of 14,032 sq.mtrs. From the total joint land holding 2,864 sq.mtrs having been acquired, the shareholding of Jetha Vala and Kachra Mula was reduced to 5,584 sq.mtrs (after deduction of 1,432 sq.mtrs from each land owner), being half portion of the 2,864 sq.mtrs having been acquired for the purposes of laying out a road.

1.3 The plaintiff further stated that Jetha Vala sold his share by a registered Sale Deed on 04.07.1985 to one Shankarbhai Patel. The legal heirs of Shankarbhai Patel, by a Sale Deed dated 04.08.1995, sold the land to the plaintiff. Pursuant to the proceedings under the Fragmentation Act, the Sale Deed in favour of the plaintiff was cancelled and so was the revenue entry made in favour of the State.

1.4 On a challenge to the proceedings under the Fragmentation Act, the plaintiff succeeded in the High Court and hence the plaintiff’s name was entered in the revenue record. However, the revenue record showed the holding as 4,152 sq.mtrs and not original holding of 5,542 sq.mtrs. In other words, there was a wrongful deletion of 1,432 sq.mtrs of land. This was a pleading based on perception that since the total deduction of land, pursuant to acquisition proceedings of 2,864 sq.mtrs was from both the joint owners, and therefore, the extra deduction of 1,432 sq.mtrs from his land should have been a deduction from the land of Kachra Mula. The plaintiff, therefore, stated that he then sold 4,152 sq.mtrs of land to one Shetalbhai D. Patel on 06.05.2014 and continued to hold the land of 1,432 sq.mtrs.

1.5 The plaintiff’s case further is that the defendant No.2 in breach of faith sold this parcel of land admeasuring 1,432 sq.mtrs to defendant No.1 by a registered Sale Deed dated 02.07.2019. Accordingly, the part of land, namely, 1,432 sq.mtrs belonging to the applicant was sold further by defendant No.2 to defendant No.1. Therefore, according to the plaintiff, the cause of action to file the suit occurred when the actual half was sold by defendant No.2 to defendant No.1 and interfered with the possession of this 1,432 sq.mtrs, thought it was a part of 5,582 square meters which the plaintiff owned.

1.6 The case of the plaintiff was that he had a cowshed which he was forced to remove as defendant No.2 had taken possession of land. Accordingly, the plaintiff prayed for multiple reliefs, namely,

(i) Declare the Sale Deed between defendant No.2 and defendant No.1 as being fraudulent as 1,432 square meters of land was that of the plaintiff.

(ii) Direct the defendant No.1 to hand over possession of 1,432 square meters by treating the two erstwhile land owners by deduction of 2,864 square meters from the entire parcel of land.

(iii) Declare that the plaintiff is the owner of the 1,432 square meters, as the original holding was of 7,016 square meters and thereafter the deduction was only to the extent of 1,432 square meters and not the whole of 2,864 square meters from the plaintiff.

(iv) That the defendant No.2 may not deal with, assign or transfer land admeasuring 1,432 square meters of land and a permanent injunction