MAHARASHTRA NATIONAL LAW UNIVERSITY, NAGPUR

B.A.LL.B.(Hons.) Year-III, Semester-VI: Academic Year : 2021-2022

Second Open Book Assessment, May-2022

Course Code and Name: 6.1 Code of Civil Procedure and Law of Limitation
Name of Student: Kartik Solanki UID: UG2019-56

ANSWER 1.
LEGAL ISSUES OF THE CASE
1. Whether the subsequent application filed by ‘A’ for impleadment of LRs of ‘D’ under
Order I Rule 10 of CPC maintainable?
2. Whether the application filed by ‘A’ can be rejected on the ground of res-judicata?

DECISION AND RATIONALE

The subsequent application filed by ‘A’ for impleadment of LRs of ‘D’ under Order I Rule 10
of CPC is maintainable.

When a suit is filed in the court, the counsel or even the party on whose insistence the suit is
filed may not know all the parties involved in the suit. As such, relief cannot be claimed
without joining the other affected parties as a plaintiff or defendant. The object underlying
this provision i.e., Order I Rule 10 of the Code of Civil Procedure [hereinafter referred to as
“CPC”], is to save honest litigants, believing bona fide in the maintainability of their claims,
being thrown out on a mere technical ground that the required persons were not impleaded in
the suit. The afore-stated provision of the CPC enables the court to add any person as party at
any stage of the proceedings, if the person whose presence before the court is necessary in
order to enable the court to effectively and completely adjudicate upon and settle all the
questions involved in the suit.

Moving further, the purpose of Order XXII Rule 4 of the CPC is also based on somewhat
similar lines as Order I Rule 10, however, it is to be noted that Order XXII Rule 4 applies
only in the case where the death of one of the several defendants or the sole defendant occurs
during the subsistence of the suit. If one of the defendants has expired prior to the filing of
the suit, the legal representatives of such deceased defendant cannot be brought on record in
the suit under Order XXII Rule 4 of the CPC.

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In the instant case, the sale was made in favour of ‘B’, ‘C’ and ‘D’ and the validity of the sale
deed was the subject-matter of the suit. The purchaser of the property i.e., ‘D’, though dead at
the time of filing the suit, was made one of the defendants erroneously. The persons who are
now sought to be impleaded under Order I Rule 10 of the Code are the legal representatives
[hereinafter referred to as “LRs”] of the deceased Defendant ‘D’. In the case of Kasturi v.
Iyyamperumal [(2005) 6 SCC 733], the Supreme Court of India had observed that the test of
necessary party under Order I Rule 10 of the CPC is – a) there must be a right to some relief
against such party in respect of controversies involved in the proceedings, or, b) no effective
decree can be passed in his/her absence. In the present case, ‘A’ has a right to relief against
the LRs of ‘D’ and no effective decree can be passed in their absence. Therefore, there cannot
be any dispute that the presence of the LRs of ‘D’ is necessary in order to enable the Court to
effectively and completely adjudicate upon and settle all the questions in the suit. Their
presence is necessary in the suit for the determination of the real matter in dispute. Therefore,
they are necessarily required to be brought on record.

Merely because the earlier application filed by the plaintiff under Order XXII Rule 4 of the
CPC was dismissed as not maintainable, it cannot prohibit the plaintiff from filing another
application, which is maintainable in law. There was no adjudication of the application to
bring LRs on record on merits by virtue of the Court’s order. On the other hand, the earlier
application filed under Order XXII Rule 4 of the CPC was dismissed by the court as not
maintainable, inasmuch as ‘D’ had died prior to the filing of the suit and that Order XXII
Rule 4 of the CPC comes into the picture only when a party dies during the pendency of the
suit. The only course open to the plaintiff in law was to file an application for impleadment to
bring on record the LRs of ‘D’ under Order I Rule 10 of the CPC. Having regard to the above
discussion, it is stated that the order passed by the court on the application filed under Order
XXII Rule 4 of the CPC will not act as res judicata.

To substantiate the above stance, reliance is placed on the landmark case of Pankajbhai
Rameshbhai Zalavadiya v. Jethabhai Kalabhai Zalavadiya [(2017) 9 SCC 700]. The facts of
Pankajbhai’s case are identical to that of the instant case in hand. In Pankajbhai’s case, the
Supreme Court observed that even when an application filed under Order XXII Rule 4 of the
CPC is dismissed as non-maintainable, it shall not bar filing of another application under
Order I Rule 10 of the CPC and neither the doctrine of res-judicata shall be applicable. The
Court also opined that justice according to the law does not merely mean technical justice but
means that law is to be administered to advance justice – similar stance was also taken in the

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case of Sangram Singh v. Election Tribunal [AIR 1955 SC 425]. In Pankajbhai’s case, the
Apex Court also observed that the trial court had rightly dismissed the application under
Order XXII Rule 4 of the Code as not maintainable at an earlier point of time, however, the
Court mentioned that the trial court at that point of time itself could have treated the said
application filed under Order XXII Rule 4 of the CPC as one filed under Order I Rule 10 of
the CPC, in order to do justice between the parties.

Furthermore, the Apex Court in the case of Karuppaswamy v. C. Ramamurthy [(1993) 4 SCC
41] had permitted the plaintiff to modify the application filed by him under Order XXII Rule
4 of the CPC to make it an application under the provisions of Sections 151 and 153 of the
CPC. In the said matter also, the suit was filed against a dead person. Similarly, in Banwari
Lal v. Balbir Singh [(2016) 1 SCC 607], the Apex Court though observed that the application
for impleadement of LRs ought to have been filed under Order XXII Rule 4 of the CPC
inasmuch as the death had occurred during the subsistence of the matter before the Court and
the application under Order I Rule 10 of the Code was not maintainable, had proceeded to
allow the application on the ground that it would be unjust to non-suit the applicant on the
ground of technicalities.

In the matter in hand, since the purchaser of the suit property i.e., ‘D’ had expired prior to the
filing of the suit, his LRs ought to have been arrayed as parties in the suit while presenting
the plaint. As such impleadment was not made at the time of filing of the plaint in view of the
fact that the plaintiff did not know about the death of the purchaser, he cannot be non-suited
merely because of his ignorance of the said fact. To do justice between the parties and as the
LRs of ‘D’ are necessary parties, they have to be impleaded under Order I Rule 10 of the
Code, inasmuch as the application under Order XXII Rule 4 of the CPC was not
maintainable.

Therefore, on the basis of above deliberation and judicial pronouncements, it is conclusively

stated that the subsequent application filed by ‘A’ for impleadment of LRs of ‘D’ under Order
I Rule 10 of CPC is maintainable and that the application cannot be rejected on the ground of
res-judicata, even when the application under Order XXII Rule 4 of the CPC was dismissed
as not maintainable.

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ANSWER 2.
LEGAL ISSUES OF THE CASE
1. Whether Rani’s title in the disputed property has been perfected by way of adverse
possession?

2. Whether all the essential ingredients of adverse possession fulfilled in the present case?

3. Whether the suit filed by Kulwant is barred by Limitation?

DECISION AND RATIONALE

Adverse possession is a common law concept and is uninterrupted, uncontested, peaceful,
visible and notorious possession of an immovable property by a person hostile to the rights of
the true owner, for a period of 12 years as statutorily prescribed under Article 65, Schedule I
of the Limitation Act, 1963. The statute of limitation in this case operates to extinguish the
right and title of the dispossessed owner.

The three requirements of adverse possession, which shall co-exist are- nec vi i.e., continuous
possession, nec clam i.e., adequate in publicity and nec precario i.e., adverse to the real
owner and in denial of his title and his knowledge. The above deliberation has also been
observed in the case of Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan [(2009) 16
SCC 517]. It is very essential that animus possidendi, i.e., clear intention of possession and
hostile title against the true owner is established.

Article 65 shall be read with Section 27 of the Limitation Act, 1963 which provides for
Extinguishment of right of property and lays down that where a cause of action exists to file a
suit for possession and if such suit is not filed within the limitation period, then not only the
limitation period, but the right based on title or possession will also be extinguished. The
right of the adverse possessory of the property is then perfected. This is ownership by
prescription.

When the title of the original owner is extinguished, it passes on to the possessor and the
possessory rights are converted to ownership. Since, the previous possessor has allowed his
right to extinguish by inaction, he cannot recover the property from the person in adverse
possession. After the period of 12 years of adverse possession over, the owner cannot eject
the adverse possessory from this property and the adverse possessory acquires the right, title
and interest in the property like the original owner.

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Further, in the case of Ravinder Kaur Grewal v. Manjit Kaur [(2019) 8 SCC 729], a three-
judge bench of the Supreme Court held that in claiming adverse possession, mere assertion of
title by itself is not sufficient unless the claimant proves animus possidendi. He must prove
that the possession was in denial of the title of the true owner and to his knowledge. It shall
be visible, notorious and peaceful so as to show the inaction on the part of the real owner.
The act of claiming such property shall be hostile against the title of the original owner. It
was further held that mere possession for any number of years will not qualify as adverse
possession unless its essential ingredients are satisfied. The Court in Ravinder Kaur’s case
had further referred to the case of P.T. Munichikkanna Reddy v. Revamma [(2007) 6 SCC 59]
and stated that there shall be “wilful neglect” on the part of the owner and his inaction
regarding such possession shall be established. Further, there shall be a specific positive
intention to possess on the part of the adverse possessor.

Furthermore, in a recent 2020 judgment of Shri Uttam Chand (D) through LRs. v. Nathu Ram
(D) through LRs [2020 SCC Online SC 37] the plea of the defendants claiming adverse
possession was denied stating that it was merely a long and continuous possession which
does not amount to adverse possession because there was no plea that such possession was
hostile to the true owner of the suit property. Similar observation was also laid out in the case
of Karnataka Board of Wakf v. Government of India [(2004) 10 SCC 779].

Reliance is lastly placed upon the case of Amrendra Pratap Singh v. Tej Bahadur Prajapati
[(2004) 10 SCC 65], it was held that not using the property by the owner even for a long time
would not affect the title. However, the position would change when another person takes
possession of the property and asserts rights over it and the person having title omits or
neglects to take legal action against such person for up to 12 years. Thus, the process of
acquisition of title by adverse possession comes into action essentially by default or inaction
of the owner.

Question of adverse possession is not a pure question of law but a mixed question of facts
and law. As per the factual matrix of the instant case, Rani claimed that she was in adverse
possession of the said suit property since 1998. However, there has been no evidence given in
the facts or no such plea taken so as to show that all the ingredients of adverse possession
have been fulfilled in the instant case. As stated above in the cases of P.T. Munichikkanna
Reddy and Amrendra Pratap Singh it should be continuous, peaceful and uninterrupted
possession, adequate in publicity so as to attribute the knowledge of the true owner to

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 determine his inaction or “wilful neglect” for claiming the possession of such property back
and must be hostile, clearly denying the rights of the true owner.

In the instant case, Rani’s acts did not fulfil all these ingredients during the period from 1998
to 2012 until the time she decided to sell the property and transfer her alleged rights in the
property to Jaspreet. That is when the possession became adverse to the true owner. Her
animus possidendi cannot be established until 2012 because the possession became adverse to
the true owner after her hostile act of selling the property in 2012, which shall be the time
from which the limitation period beings to run according to Article 65.

Therefore, Rani’s title in the property cannot be said to have been perfected by the end of the
statutorily specified time period of 12 years in 2010 and there has been no extinguishment of
rights or remedies in the said suit property of the true owner under Section 27 of the
Limitation Act, 1963. Thus, Rani did not have the same rights in the said property as its true
owner and she was not entitled to transfer her possession and rights in the property to another
party because her possession does not qualify as adverse possession. Now, Kulwant filed a
suit for possession on the basis of title against Jaspreet Singh in 2016. The property was in
the possession of Jaspreet Singh since 2012. The period of limitation for filing such suit
according to Article 65, Schedule I of the Limitation Act is 12 years. The possession of this
property became adverse to the true owner in 2012 as explained above. Thus, the suit filed by
Kulwant was not barred by limitation.

ANSWER 4.
LEGAL ISSUES OF THE CASE
1. Whether the Punjab & Haryana High Court decide the second appeal filed by ‘G’ without
formulating substantial question of law as per Section 41 of the Punjab Courts Act, 1918?
2. Whether the Punjab & Haryana High Court passed the decision thereof in contravention of
Section 100 of Code of Civil Procedure, 1908 and whether it should be set aside?
3. Whether Section 41 of the Punjab Courts Act, 1918 is saved from the operation of section
100 of the Code of Civil Procedure, 1908?

DECISION AND RATIONALE

A decision of a civil suit culminates into a decree and the party in whose favour suit is
decided, becomes the decree holder and the opposite party, against whom the suit is decided

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becomes the Judgment Debtor. A decree passed by the court of first instance, popularly called
trial court, is subject to appeal under the provisions of section 96 of code of civil procedure
[hereinafter referred to as “CPC”], before the first appellate court, and any decision thereof
can further be challenged by either of the affected parties by filing a second appeal before the
High Court. The Second Appeal challenging the judgment and decree of the first appellate
court can be filed before the High Court, under section 100 of the CPC.

Further, provisions regarding appeals in the states of Punjab and Haryana have also been
specifically provided under the Punjab Courts Act, 1918 [hereinafter referred to as “Punjab
Courts Act” or “Courts Act”]. Section 39 of the Punjab Courts Act provides for a first
appeal from an original decree, whereas, a Second Appeal from such first appellate decree
lies before the High Court, under Section 41 of the Punjab Courts Act. A bare comparison of
Section 100 of CPC (Amended as per the Amending Act No. 104 of 1976) and Section 41 of
the Punjab Courts Act would clearly show that these provisions are in pari materia to each
other, except the clause under Section 100 of CPC which requires that a High Court shall
entertain a second appeal only if it is satisfied about the involvement of a substantial question
of law in the case.

After 1976, questions regarding the clash between the provisions of Section 100 of the CPC
and Section 41 of the Punjab Courts Act came into being and the Courts at that point of time
were also adjudicating upon these questions/issues. One such instance is the judgment of
Kulwant Kaur v. Gurdial Singh Mann (dead) by LRs [(2001) 4 SCC 262]. The judgment in
Kulwant Kaur’s case raised a question which arose on an application of Section 41 of the
Punjab Courts Act, 1918. The Supreme Court in the afore-stated case concluded that Section
41 of the Punjab Courts Act shall be repealed because it amounts to an amendment made or
provision inserted in the principal Act (CPC) by a State Legislature. The Court further held
that Section 41 of the Courts Act being a law made by the Legislature of a State is repugnant
to a later law made by Parliament, namely, Section 97(1) of the Code of Civil Procedure
(Amendment) Act, 1976, and that therefore, by virtue of the operation of Article 254 of the
Constitution of India, the said provision is in any case overridden.

The issue with regard to the ratio in Kulwant Kaur’s case [supra] was again analysed by the
Constitutional Bench of the Supreme Court in Pankajakshi (Dead) v. Chandrika [(2016) 6
SCC 157]. The Constitutional Bench observed that Kulwant Kaur’s case does not state the
law correctly and also opined that Section 97 of the CPC Amendment Act, 1976 prohibits

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amendments made in the principal Act which are repugnant to the same and, therefore, if any
state amendment to the CPC is enacted by the state legislature or a rule is made by the High
Court of a State in respect of the provisions of CPC which runs counter to CPC, it shall be hit
by the provisions of the savings clause of the Amendment Act. The Court further observed
that the caveat is that the legislation in question being the Punjab Courts Act is a pre-
Constitution Act and hence, it is not a legislation hit by the provisions of Article 254 of the
Constitution of India. The Punjab Courts Act is saved by Article 372(1) of the Constitution of
India being a pre-Constitutional enactment which was to continue in to be force until altered
or repealed or amended by a competent legislature. The Court finally held that as no such
repeal has taken place; hence, the legislation shall continue to operate. Moreover, the reading
of Sections 4(1) and 100(1) of the CPC together leads to an irresistible conclusion that the
legislature wished to save and leave all special or local laws as also any other law for the time
being in force on the subject of second appeals. The effect of the judgment of the
Constitution Bench is that insofar as the States of Punjab & Haryana is concerned, a second
appeal does not require formulation of a substantial question of law since the Punjab Courts
Act would be applicable for the States.

In the instant case, ‘H’ has challenged the decision of the High Court in the Supreme of India
on the ground that the decision of the High Court is illegal and contrary to Section 100 of the
CPC as the Punjab and Haryana High Court decided the second appeal without formulating
substantial question of law. By relying on the constitutional bench judgement passed in the
Pankajakshi’s Case [supra], it is put forth that the challenge made by ‘H’ before the Supreme
Court of India shall not be maintainable as the Punjab Courts Act is applicable upon the
Punjab & Haryana High Court – and Section 41 of the Punjab Courts Act does not
necessarily require the Court to formulate substantial question of law while adjudicating upon
a second appeal. In addition, the provisions of Section 41 of the Punjab Courts Act are also
saved by a combined reading of Sections 4(1) and 100(1) of the CPC. Thus, the challenge
made by ‘H’ before the Supreme Court of India shall not be maintainable.

Furthermore, recently, the Punjab & Haryana High Court in the case of Jal Singh v. Chunni
Lal [2019 (1) RCR (Civil) 210] reaffirmed the judgment of Pankajakshi’s Case [supra] and
opined that the provisions of Section 41 of the Punjab Courts Act, 1918 have been restored
back and that the High Court of Punjab & Haryana are not necessarily required to frame the
substantial questions of law while deciding an appeal. Similarly, in Kirodi (Since Deceased)
through his LR v. Ram Parkash [2019 SCC OnLine SC 759], the Supreme Court clarified the

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position in Punjab and Haryana High Court in light of the Constitutional Bench judgement
and stated that as far as State of Punjab is concerned, a second appeal shall not require
formulation of a substantial question of law.

Therefore, in light of the above deliberation and judicial pronouncements, it is conclusively

stated that the challenge made by ‘H’ against the decision of Punjab & Haryana High Court
before the Supreme Court of India shall not be maintainable as the Punjab & Haryana High
Court is not necessarily required to formulate substantial question of law as per Section 41 of
the Punjab Courts Act.

ANSWER 5.
LEGAL ISSUES OF THE CASE
Whether the Court rightly rejected the plaint filed by ‘A’ upon the application of the
defendant, without considering the averments made in the plaint as a whole?

DECISION AND RATIONALE

The Civil Procedure Code, 1908 [hereinafter referred to as “CPC” or “Code”] is that
essential procedural law which provides for the procedure for the enforcement of civil rights
and liabilities specified under various substantive laws. An integral part of such procedural
formalities is the institution of suit against the defendant in the court of law. Taking a glance
at the CPC, section 26 read with Order IV of the Code specifies that a suit has to be instituted
by presenting of the plaint. Presentation of plaint is subject to Order VI and Order VII of the
CPC – wherein Order VII specifically deal with plaint and its particulars.

Among other rules under Order VII of CPC, Rule 11 states the various grounds upon which
the court can reject a plaint. Rejection of the plaint under Order VII Rule 11 of CPC is a
drastic power conferred in the court to terminate a civil action at the threshold. The
conditions precedent to the exercise of power under Order VII Rule 11, therefore, are
stringent and have been consistently held to be so by the Court. Various grounds for rejection
of plaint have been provided under the afore-stated rule – rejection of plaint on the basis of
suit being barred under any other law is one of those grounds.

The Supreme Court of India in a series of cases; i.e., in the cases of Sri Biswanath Banik v.
Smt. Sulanga Bose [AIR 2022 SC 1519], Srihari Hanumandas Totala v. Hemant Vithal

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Kamat [(2021) 9 SCC 99], Chhotanben v. Kiritbhai Jalkrushnabhai Thakkar [(2018) 6 SCC
422], Kuldeep Singh Pathania v. Bikram Singh Jaryal [(2017) 5 SCC 345], P.V. Guru Raj
Reddy v. P. Neeradha Reddy [(2015) 8 SCC 331], Church of Christ Charitable Trust &
Educational Charitable Society v. Ponniamman Educational Trust [2012 SCC 8 706], Ram
Prakash Gupta v. Rajiv Kumar Gupta [(2007) 10 SCC 59], Saleem Bhai v. State of
Maharashtra [(2003) 1 SCC 557], has observed that while entertaining an application filed
under Order VII Rule 11 of CPC the averments in the plaint have to be read as a whole to
find out whether it discloses a cause of action or whether the suit is barred under any law.
Rejection of a plaint under Order VII Rule 11(d) of CPC by reading only few lines and
passages and ignoring the other relevant parts of the plaint is impermissible. The Court also
pressed that at the stage of exercise of power under Order VII Rule 11 of CPC, the stand of
the defendants in the written statement or in the application for rejection of the plaint is
wholly immaterial. It is only if the averments in the plaint ex facie do not disclose a cause of
action or on a reading thereof the suit appears to be barred under any law the plaint can be
rejected. In all other situations, the claims will have to be adjudicated in the course of the
trial.

In the instant case, on 25th January 2022, the defendant filed an application for rejection of the
plaint by contending that the suit is prima facie barred by limitation. The court, however,
without going into the full text of the plaint and without hearing the plaintiff, rejected the
plaint under Order VII Rule 11 of the CPC. From the conspectus of the above-mentioned
judgments, it is clear that for rejecting a plaint under Order VII Rule 11 of the CPC, the Court
is necessarily required to consider and read the averments of the plaint as a whole and that the
averments made by the defendants in the application for rejection of the plaint are wholly
immaterial. In spite of the aforesaid mandate, the Court in the instant case failed to consider
all the contents of the plaint while entertaining the application and only on the basis of the
defendant’s application, the Court wrongly rejected the plaint under Order VII Rule 11 of the
CPC.

Moreover, on the basis of the facts of the case, it cannot at all be said that the plaint ex facie
disclose that the suit is barred by limitation. In the case of Shaukat Hussain Mohammed Patel
v. Khatunben Mohmmed bhai Polara [(2019) 10 SCC 226], it was held by the Supreme Court
that the Question of limitation is a mixed question of law and fact and at the initial stage, it is
settled position of law that whenever any element of fact is to be inquired into, the normal
trend is not to exercise the jurisdiction under Order VII Rule 11 of the CPC. By applying the

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aforesaid observation of the Supreme Court in the instant case, it is put forth that the power
conferred by Order VII Rule 11 of CPC shall not have been exercised at the preliminary stage
of trial as the question of limitation is yet to be determined by the Court.

Therefore, by relying on the above deliberation and the series of judicial pronouncements, it
is conclusively stated that the Court has wrongly and in gross violation of the procedural
regularity rejected the plaint filed by ‘A’. The appeal filed by ‘A’ shall be maintainable and
the plaint shall also be restored back.

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