Case Note & Summary
The case involves a second appeal arising from a property dispute. The appellants (plaintiffs) filed a suit for removal of encroachment and possession of the encroached portion. The trial court decreed the suit in their favor. However, the first appellate court reversed the decree and dismissed the suit, primarily on the ground that the plaintiffs had not complied with Order VII, Rule 3 of the Code of Civil Procedure, 1908, by failing to provide a sufficient description of the property in the plaint for its identification. The High Court admitted the second appeal on the substantial question of law regarding the correctness of this reversal. The High Court examined the plaint and the plaint map and found that the description was sufficient to identify the property. The court noted that the trial court had decreed the suit after evidence, and the first appellate court's reversal based solely on a technical deficiency was not justified. The High Court allowed the appeal, set aside the first appellate court's judgment, and restored the trial court's decree. The judgment emphasizes that the requirement of Order VII, Rule 3 is to ensure identification, and if the plaint and map together provide sufficient identification, the suit should not be dismissed on that ground.
Headnote
A) Civil Procedure - Sufficient Description of Immovable Property - Order VII Rule 3 Code of Civil Procedure, 1908 - The substantial question of law was whether the first appellate court was justified in reversing the trial court's decree solely on the ground of insufficient property description in the plaint. The High Court held that the plaint description along with the plaint map was sufficient to identify the property, and the first appellate court erred in dismissing the suit on that technical ground. (Paras 1-3)
Issue of Consideration
Whether the first Appellate Court was justified in reversing the trial court's decree on the ground that the plaintiff had not complied with Order VII, Rule 3 CPC by not describing the property sufficiently for identification, when the pleadings and plaint map were sufficient to disclose the identity of the property.
Final Decision
The High Court allowed the second appeal, set aside the judgment and order of the first appellate court dated 5.7.2006, and restored the trial court's decree dated 11.7.2002. The appeal was allowed with no order as to costs.
Law Points
- Order VII Rule 3 CPC
- Sufficient description of immovable property
- Plaint map
- Identification of property
- Reversal by first appellate court
Case Details
2014 LawText (BOM) (04) 128
Second Appeal No.353 of 2007
Mr. S.S. Sharma for the Appellants
Prashant s/o. Nandlal Bajoria, Pradeep s/o. Nandlal Bajoria, Ku. Preeti d/o. Nandlal Bajoria, Smt. Pushpabai wd/o. Nandlal Bajoria, Smt. Rukhminibai w/o. Gulabchand Bajoria
Ushabai wd/o. Arvind Kavde, Ku. Pinky @ Manisha d/o. Arvind Kavde, Marotrao s/o. Mahadeorao Kavde, Ravindra s/o. Arvind Kavde, Sau. Seema w/o. Rama Kumre, Sau. Anusaya w/o. Latari Damodhar Mohurle
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Nature of Litigation
Second appeal against judgment of first appellate court reversing trial court's decree in a suit for removal of encroachment and possession of immovable property.
Remedy Sought
Appellants sought restoration of trial court's decree for removal of encroachment and possession.
Filing Reason
First appellate court dismissed the suit on ground of insufficient description of property in plaint under Order VII Rule 3 CPC.
Previous Decisions
Trial Court (Civil Judge, Jr.Dn., Kelapur) decreed the suit on 11.7.2002 in Regular Civil Suit No.123 of 1995. First Appellate Court (Additional District Judge, Pandharkawada) allowed appeal and dismissed suit on 5.7.2006 in Regular Civil Appeal No.194 of 2002.
Issues
Whether the first Appellate Court was justified in reversing the trial court's decree on the ground that the plaintiff had not complied with Order VII, Rule 3 CPC by not describing the property sufficiently for identification, when the pleadings and plaint map were sufficient to disclose the identity of the property?
Submissions/Arguments
Appellants argued that the plaint description and map were sufficient to identify the property.
Respondents did not appear.
Ratio Decidendi
The requirement under Order VII, Rule 3 CPC is that the plaint must contain a description of the immovable property sufficient to identify it. If the plaint description along with the plaint map provides sufficient identification, the suit cannot be dismissed on the ground of non-compliance with this rule. The first appellate court erred in reversing the trial court's decree solely on this technical ground.
Judgment Excerpts
Whether the first Appellate Court was justified in reversing the decree passed by the trial Court mainly on the ground that the plaintiff had not complied with the provisions of Order VII, Rule 3 of the Code of Civil Procedure by not describing the property sufficiently for its identification, when the pleadings in the plaint pertaining to the description of the property and the plaint map was sufficient to disclose the identity of the same ?
Procedural History
The suit was originally filed as Regular Civil Suit No.123 of 1995 before the Civil Judge (Jr.Dn.), Kelapur, which was decreed on 11.7.2002. The defendants appealed to the Additional District Judge, Pandharkawada in Regular Civil Appeal No.194 of 2002, which allowed the appeal and dismissed the suit on 5.7.2006. The plaintiffs then filed the present Second Appeal No.353 of 2007 before the Bombay High Court, Nagpur Bench, which was admitted on 7.8.2007 on the substantial question of law. The High Court delivered its judgment on 25.4.2014.
Acts & Sections
- Code of Civil Procedure, 1908: Order VII, Rule 3
