Telangana High Court
Rafiqha Khatoon vs Sultan Murad Khan on 3 August, 2026
Author: K.Lakshman
Bench: K. Lakshman
IN THE HIGH COURT FOR THE STATE OF TELANGANA
AT: HYDERABAD
HON'BLE SRI JUSTICE K. LAKSHMAN
AND
HON'BLE JUSTICE B.R.MADHUSUDHAN RAO
APPEAL SUIT No. 324 OF 2025
Date: 03-08-2026
Between:
Rafiqha Khatoon and others ......Appellants
And
Sultan Murad Khan and others ... Respondents
This Court passed the following:-
JUDGEMENT (per Hon'ble Sri Justice K.Lakshman)
Heard Mr. Salman Khurshid, learned Senior Counsel representing
Sri Muhammad Veqar Hussain, learned counsel for the appellants and
Sri M.S.Prasad, learned Senior Counsel representing Sri Nallamasu
Krishna, learned counsel for the respondent Nos.5 and 8/Defendant
Nos.5 and 8.
2. The present appeal is filed assailing the order dated 02.05.2025
in I.A.No.616 of 2025 (old I.A.No.656 of 2023) in O.S.No.501 of 2025
2
(old O.S.No.111 of 2023) by the Additional District and Sessions Judge,
Ranga Reddy District at Chevalla.
3. The appellants herein are plaintiffs and the respondents are
defendants including defendant Nos.5 and 8.
(For the sake of convenience, the parties herein are referred to as
they are referred in the suit.)
4. The plaintiffs filed a suit in O.S.No.111 of 2023 against the
defendants to declare the gift deed bearing document No. 4408 of 2016,
dated 16.08.2016, registered Development Agreement – cum – General
Power of Attorney (GPA) bearing document No.4707 of 2022, dated
20.09.2022 as null and void and not binding on the plaintiffs and grant
perpetual injunction restraining the defendants and their men, from
interfering with the peaceful possession and enjoyment of the plaintiffs
over the suit schedule -A property i.e. All that part and parcel of lands
admeasuring Ac.00.13 guntas in Sy.No.66; admeasuring Ac.16.27
guntas in Sy.No.76; admeasuring Ac.17.02 gutnas in Sy.No.79;
admeasuring Ac.20.16 guntas in Sy.No.85; admeasuring Ac.00.16
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guntas in Sy.No.87, total admeasuring Ac.54.34 guntas, situated at
Mokila village, Shankarpally Mandal, Ranga Reddy District.
5. During pendency of the said suit, Defendant Nos.5 and 8 had
filed an Interlocutory Application vide I.A.No.656 of 2023 (new
I.A.No.616 of 2025) under Order VII Rule 11 (a) and (d) read with
Section 151 of CPC, to reject the plaint contending as follows:-
i. The plaintiffs filed the aforesaid suit basing on the collusive
decree obtained by playing fraud and by fabricating the
documents.
ii. The plaintiffs failed to establish a clear, unambiguous, reasonable
title flow along with possession and establish that the suit is not
barred by law.
iii. Order VII Rule 11 of CPC casts a duty upon the Court to reject
the plaint when the same is hit by infirmities, even without the
intervention of the defendant.
iv. The alleged interference with the possession of plaintiffs on
16.01.2023 is created for the purpose of instituting this suit.
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v. Plaintiffs did not have title over the suit schedule property and
they were not in possession of the same at any point of time.
vi. The plaint lacks cause of action. vii. The contentions of the plaintiffs that Defendant No.1, husband of
plaintiff No.1 gifted the suit schedule property orally, the same
was reduced into writing under Memorandum of Hiba (MOH) on
06.01.1990. She has entered into agreement of sale and the same
was decreed etc., are false and baseless and they have created the
same only to file the present suit and knock away the suit schedule
property.
viii. The decree and judgment dated 05.10.2020 in O.S.No.25 of 2020
is a collusive decree. The same was obtained by suppressing
material facts and by playing fraud on the Court.
ix. Defendant No.1 is the original owner and possessor of the suit
schedule property except the land in Sy.No.76 to an extent of
Ac.16.27 guntas situated in Mokila Village. The same was given
to villagers. The same survey number forms part of Mokila
Thanda Village.
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x. Defendant No.1 had executed a Gift Settlement Deed bearing
document No.4408 of 2016, dated 16.08.2016 in favour of
Defendant No.2. Possession was also delivered in favour of
Defendant No.2. Her name was also mutated in revenue records;
e-pattadar passbooks and title deeds were also issued in her
favour. Thus, Defendant No.2 is the absolute owner and possessor
of a part of the suit schedule property in O.S.No.25 of 2020. Even
then, they have obtained decree dated 05.10.2020 in collusion
with each other.
xi. They have not made Defendant No.2 as a party to the suit
O.S.No.25 of 2020. They have not made her a necessary party to
the present suit. Therefore, the plaint in the present suit is liable to
be rejected on the ground of non-joinder of necessary parties.
xii. Defendant Nos.5 and 8 are in possession and enjoyment of the
suit schedule property. Dharani Portal also discloses the said fact.
xiii. The plaintiffs did not have title over the suit schedule property
and they are not in possession of the same. Therefore, they cannot
seek injunction against the defendants by creating cause of action.
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xiv. The contents of Memorandum of Gift/Hiba dated 06.01.1990
would reveal that Defendant No.1 had orally gifted the suit
schedule -A property to Plaintiff No.1, which was later reduced to
writing.
xv. Thus, the plaintiffs filed the said suit with mala fide intention to
knock away the suit schedule property, as such the plaint is to be
rejected.
6. Plaintiff No.1 filed counter opposing the said application
contending as follows:
i. The decree dated 05.10.2020 in O.S.No.25 of 2020 is not a
collusive decree as alleged.
ii. Plaintiff specifically mentioned the cause of action in the plaint.
iii. They are in possession of the suit schedule property.
iv. There are several factual aspects which are triable issues.
Defendants have to face trial and it is for the trial court to
consider the same.
v. Instead of facing the trial, they sought to reject the plaint.
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7. With the said contentions, Plaintiff No.1 sought to dismiss the
said application.
8. Vide impugned order, learned trial Court allowed the said
application holding that in the entire plaint, there is no pleading as to
whether plaintiff No.1 and her husband/D.1 are living together or they
got separated after the alleged Hiba. After 33 years of execution of the
alleged Hiba, which is already disputed by donor/Defendant No.1, the
plaintiffs filed the suit without getting her name mutated in the revenue
records. Therefore, the plaint is barred by limitation. Defendant No.1 is
contesting the suit and has denied execution of the alleged Hiba. If the
oral Hiba, pronounced by Defendant No.1 is genuine, with his free will
and consent, there is no need of reducing the same to writing as a
Memorandum of Gift. Defendant No.1 contends that he never gifted the
suit schedule property in favour of the Plaintiff No.1 with his free will
and consent. He has also filed written statement to that effect. When
there is no property in the possession of Defendant No.1/Donor, he
cannot gift the same to plaintiff No.1. Since the donor/Defendant No.1
was not in possession of the property, he cannot gift the same to plaintiff
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No.1 vide MOH dated 06.01.1990. Any Hiba/gift of property which is
not in possession of the donor is invalid in law. Therefore, the alleged
Hiba executed by Defendant No.1 in favour of plaintiff No.1 is invalid.
9. The trial Court further held that in the plaint, the plaintiffs did
not mention the date of acknowledgment of oral Hiba and delivery of
possession. Without even seeing the land physically, or at least through
Google Map, without measuring the land through any licensed surveyor,
and without verifying the revenue records pertaining to the suit schedule
property; plaintiff Nos.2 and 3 are alleged to have purchased the same,
entered into a simple agreement of sale in respect of the suit schedule
property with plaintiff No.1. Whereas, plaintiff No.1 was never shown
as pattadar or the possessor of the suit schedule property at any point of
time in the revenue records. The plaintiffs sought to send the said
Memorandum of Gift for validation. Therefore, it is not acted upon. The
contents of the said Hiba dated 06.01.1990 do not satisfy the essential
requirements of a valid Hiba. The plaintiffs did not file any petition
seeking appointment of an Advocate Commissioner to find out as to
who is in actual possession of the property in dispute, as per the leave
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granted by the Supreme Court in SLP No.4543 of 2024 vide order dated
27.02.2024. The plaintiff failed to prove the three essential requisites of
a valid Hiba. The Trial Court also held that the plaintiffs had failed to
prove the three main ingredients of a Hiba, mainly the third ingredient,
i.e. the delivery of possession of the donated property under Hiba,
whereby actual physical possession has to be given to the Donee. The
gift of immovable property is not complete until and unless the donor
physically departs from the premises with all his goods and chattel, and
the donee formally enters into possession of the donated property.
Actual possession of the suit schedule property was never delivered in
favour of plaintiff No.1 by Defendant No.1. There is no cause of action
in favour of the plaintiff; the suit is barred by limitation and therefore, it
is liable to be rejected and is rejected.
10. Challenging the said order, the plaintiffs preferred the present
appeal.
11. Plaintiffs primarily contended that the impugned order is
beyond the scope of Order VII Rule 11 of CPC and the grounds on
which Defendant Nos.5 and 8 sought to reject the plaint are triable
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issues. While deciding an application filed under Order VII Rule 11 of
CPC, the trial Court has to consider the contents of the plaint and
documents filed by the plaintiffs along with the plaint. Whereas, in the
present case, learned trial Court gave findings with regard to the validity
of the gift, possession etc, which is impermissible and also contrary to
the principles laid down by the Apex Court.
12. Whereas, Defendant Nos.5 and 8 contended that on
consideration of the pleadings, the law laid down by the Apex Court,
learned trial Court rejected the same and there is no error in it.
13. Mr. Salman Khurshid, learned Senior Counsel appearing for
appellants and Sri M.S.Prasad, learned Senior Counsel appearing for the
respondent Nos.5 and 8 made their submissions extensively. We have
given thoughtful consideration to the arguments advanced by both the
learned Senior Counsel.
14. Learned Senior Counsel for the appellants placed reliance on
the principles laid down by the Apex Court in Om Prakash Srivastava
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vs. Union of India 1, Hafiza Bibi vs. Shaik Farid 2, T.Arivandandam
vs. T.V.Satyapal 3, H.S.Deekshit vs. Metropoli Overseas Ltd.4
15. Whereas, both the learned Senior Counsel appearing for the
parties placed reliance on the principle laid down by the Apex Court in
Dahiben v. Arvindbhai Kalyanji Bhanusali (GAJRA)5 and Indian
Evangelical Lutheran Church Trust Association v. Sri Bala & Co. 6.
16. As discussed supra, vide impugned order, learned trial Court
allowed the application filed by Defendant Nos.5 and 6 under Order VII
Rule 11 of CPC to reject the plaint filed by the plaintiffs.
17. In view of the aforesaid rival contentions and also the facts of
the case, it is apposite to refer to the purport of Order VII Rule 11 of
CPC. It deals with ‘rejection of plaint’ and the same is extracted below:
“11. Rejection of plaint.– The plaint shall be rejected in
the following cases:–
(a) where it does not disclose a cause of action;
1
(2006) 6 SCC 207
2
(2011) 5 SCC 654
3
(1977) 1 SCJ 197
4
(2022) SCC OnLine SC 2024
5
. (2020) 7 SCC 366
6
. 2025INSC 42
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(b) where the relief claimed is undervalued, and the
plaintiff, on being required by the Court to correct the
valuation within a time to be fixed by the Court, fails to
do so;
(c) where the relief claimed is properly valued, but the
plaint is returned upon paper insufficiently stamped, and
the plaintiff, on being required by the Court to supply the
requisite stamp-paper within a time to be fixed by the
Court, fails to do so;
(d) where the suit appears from the statement in the plaint
to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions
of rule 9:
Provided that the time fixed by the Court for the
correction of the valuation or supplying of the requisite
stamp-paper shall not be extended unless the Court, for
reasons to be recorded, is satisfied that the plaintiff was
prevented by any cause of an exceptional nature from
correcting the valuation or supplying the requisite stamp-
paper, as the case may be, within the time fixed by the
Court and that refusal to extend such time would cause
grave injustice to the plaintiff.”
Thus, the plaint can be rejected on the aforesaid grounds.
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18. It is well settled that Order VII Rule 11 of CPC lays down an
independent remedy made available to the defendant to challenge the
maintainability of the suit itself, irrespective of his right to contest the
same on merits. The law ostensibly does not contemplate at any stage
when the objections can be raised. The trial court can exercise the power
at any stage of the suit, that is, before registering the plaint or after
issuing summons to the defendant at any time before the conclusion of
the trial. For the purposes of deciding an application under clauses (a)
and (d) of Order VII rule 11 of CPC, the averments in the plaint are
germane; the pleas taken by the defendant in the written statement
would be wholly irrelevant at that stage. Instead, the word ‘shall’ is
used, clearly implying thereby that Order VII Rule 11 of CPC, casts a
duty on the Court to perform its obligations in rejecting the plaint when
the same is hit by any of the infirmities contemplated under Order VII
Rule 11 CPC, even without intervention of the defendant.
19. It is also a settled law that only a part of the plaint cannot be
rejected and if no cause of action is disclosed, the plaint as a whole must
be rejected. Order VII Rule 11 does not justify rejection of any
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particular portion of the plaint. Thus, the real object of Order VII Rule
11 of CPC is to prevent irresponsible law suits out of the Courts. In
case, the Court prima facie, is of the view that the suit is an abuse of
process of the court, in the sense that it is a bogus and irresponsible
litigation, the jurisdiction under Order VII Rule 11 can be exercised.
20. It is also apt to note that the basic question to be decided while
dealing with an application filed under Order VII Rule 11(a) CPC is
whether the plaint discloses a real cause of action or merely sets out an
illusory one with a view to circumvent the provision under Order VII
Rule 11 of CPC. The trial court must bear in mind that, if upon a
meaningful and not merely formal reading of the plaint, it is found to be
manifestly vexatious and meritless, inasmuch as it fails to disclose a
clear right to sue, it should exercise the power under Order VII Rule
11(a), subject to satisfaction of statutory requirements. If clever drafting
has created the illusion of a cause of action, it has to be nipped in the
bud at the first hearing by examining the party searchingly under Order
X of the Code. It is true that by ingenious drafting a cause of action in
the nature of red herrings cannot be brought into the judicial arena.
15
21. It is also well settled that merely any particular plea cannot be
taken into consideration, rather the plaint has to be read as a whole.
There cannot be any compartmentalization, dissection, segregation and
inversions of the language in various paragraphs of the plaint. If such a
course is adopted it would run counter to the cardinal canon of
interpretation according to which a plaint has to be read as a whole to
ascertain its true import. It is not permissible to cull out a sentence or a
passage and to read it out of the context in isolation. Although it is the
substance and not merely the form that has to be looked into, the
pleading has to be construed as it stands without addition or subtraction
of words or change of its apparent grammatical sense. The intention of
the party concerned is to be gathered primarily from the tenor and terms
of his pleadings taken as a whole. At the same time, it should be borne in
mind that no pedantic approach should be adopted to defeat justice on
hair-splitting technicalities. What is required in law is not the piecemeal
reading of the plaint but in its entirety.
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22. It is also apt to note that the Hon’ble Supreme Court in
Dahiben v. Arvindbhai Kalyanji Bhanusali (GAJRA) 7 had an
occasion to deal with the object of Order VII Rule 11 (a) and (d) of the
CPC, the rejection of plaint, and also the nature of enquiry to be made
by the Court while deciding an application filed under Order VII Rule 11
(a) of the CPC. In the said case, the defendant filed an application under
Order VII Rule 11 (a) and (d) to reject the plaint on the ground that the
suit was barred by limitation and no cause of action has been disclosed
in the plaint. A Sale deed was executed on 02.07.2009 and the suit was
filed on 15.12.2014. The cause of action as per the averments of the
plaint therein had arisen when defendant No.1 therein had issued ‘false’
or ‘bogus’ cheques to the plaintiffs in 2009. The suit for cancellation of
the sale deed dated 02.07.2009 could have been filed by 2012, as per
Articles 58 and 59 of the Limitation Act, 1963. The suit was filed on
15.12.2014, which was barred by limitation. The relevant paragraphs
are extracted below:-
23.5. The power conferred on the court to terminate a civil
action is, however, a drastic one, and the conditions enumerated in
Order 7 Rule 11 are required to be strictly adhered to.7
(2020) 7 SCC 366
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23.6. Under Order 7 Rule 11, a duty is cast on the court to
determine whether the plaint discloses a cause of action by
scrutinising the averments in the plaint [Liverpool & London S.P. & I
Assn. Ltd. v. M.V. Sea Success I, (2004) 9 SCC 512] , read in
conjunction with the documents relied upon, or whether the suit is
barred by any law.
23.9. In exercise of power under this provision, the court would
determine if the assertions made in the plaint are contrary to statutory
law, or judicial dicta, for deciding whether a case for rejecting the
plaint at the threshold is made out.
23.10. At this stage, the pleas taken by the defendant in the
written statement and application for rejection of the plaint on the
merits, would be irrelevant, and cannot be adverted to, or taken into
consideration. [Sopan Sukhdeo Sable v. Charity Commr., (2004) 3
SCC 137]
23.11. The test for exercising the power under Order 7 Rule 11 is
that if the averments made in the plaint are taken in entirety, in
conjunction with the documents relied upon, would the same result in
a decree being passed. This test was laid down in Liverpool &
London S.P. & I Assn. Ltd. v. M.V. Sea Success I [Liverpool &
London S.P. & I Assn. Ltd. v. M.V. Sea Success I, (2004) 9 SCC 512]
which reads as : (SCC p. 562, para 139)
“139. Whether a plaint discloses a cause of action or not is
essentially a question of fact. But whether it does or does not must be
found out from reading the plaint itself. For the said purpose, the
averments made in the plaint in their entirety must be held to be
correct. The test is as to whether if the averments made in the plaint
are taken to be correct in their entirety, a decree would be passed.”
23.13. If on a meaningful reading of the plaint, it is found that the
suit is manifestly vexatious and without any merit, and does not
disclose a right to sue, the court would be justified in exercising the
power under Order 7 Rule 11 CPC.
23.14. The power under Order 7 Rule 11 CPC may be exercised
by the court at any stage of the suit, either before registering the
plaint, or after issuing summons to the defendant, or before
conclusion of the trial, as held by this Court in the judgment
of Saleem Bhai v. State of Maharashtra [Saleem Bhai v. State of
Maharashtra, (2003) 1 SCC 557] . The plea that once issues are
framed, the matter must necessarily go to trial was repelled by this
Court in Azhar Hussain case [Azhar Hussain v. Rajiv Gandhi, 1986
Supp SCC 315. Followed in Manvendrasinhji Ranjitsinhji
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Jadeja v. Vijaykunverba, 1998 SCC OnLine Guj 281 : (1998) 2 GLH
823] .
23.15. The provision of Order 7 Rule 11 is mandatory in nature. It
states that the plaint “shall” be rejected if any of the grounds specified
in clauses (a) to (e) are made out. If the court finds that the plaint
does not disclose a cause of action, or that the suit is barred by any
law, the court has no option, but to reject the plaint.
23. Considering the said facts, the trial Court rejected the plaint
filed by the plaintiff by allowing the application filed under Order VII
Rule 11 (d). The High Court confirmed the order passed by the trial
Court. On consideration of the said facts and also purport of Order VII
Rule 11 of CPC, the Apex court held that in view of Order VII Rule 14
of CPC, documents filed along with plaint are to be taken into
consideration for deciding the application under Order VII Rule 11 (a) of
CPC. When a document referred to in the plaint, forms the basis of the
plaint, it should be treated as part of the plaint. In exercise of power
under Order VII Rule 11 of CPC, Court would determine if the
assertions made in the plaint are contrary to statutory law, or judicial
dicta, for deciding whether a case for rejecting the plaint at the threshold
is made out. At this stage, the pleas taken by the defendant in the
written statement and application for rejection of the plaint on the
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merits, would be irrelevant, and cannot be adverted to, or taken into
consideration.
24. The Apex Court further held that the test for exercising the
power under Order VII Rule 11 of CPC is that if the averments made in
the plaint are taken in entirety, in conjunction with the documents relied
upon whether the same would result in a decree being passed.
25. In T. Arivandandam v. T.V. Satyapal 8, the Supreme Court
held that if on a meaningful reading of the plaint, it is manifestly
vexatious, and meritless, in the sense of not disclosing a clear right to
sue, the Court should exercise its power under Order VII Rule 11 of
CPC, taking care so as to see that ground mentioned therein is fulfilled.
And, if clever drafting has created the illusion of a cause of action, it
should be nipped in the bud.
26. In Indian Evangelical Lutheran Church Trust Association
v. Sri Bala & Co.9, the Apex Court held that the Court while dealing
with an application filed under Order VII Rule 11 of CPC, has to read
8
. (1977) 4 SCC 467
9
. 2025 (6) ALD 108 SC
20
the whole plaint and any particular plea in isolation cannot be
considered. The averments in the plaint as a whole have to be seen to
find out whether Clause (d) of Rule 11 of Order VII of the CPC is
applicable. The relevant facts which need to be looked into for deciding
an application thereunder are the averments in the plaint which are
germane. The pleas taken by the defendant either in the affidavit filed in
support of an application filed under Order VII Rule 11 of CPC or in the
written statement would be wholly irrelevant at that stage. Under Order
VII Rule 11 of CPC, the Court has to take a decision looking at the
pleadings of the plaintiff only and not on the rebuttal made by the
defendant or any other material produced by the defendant.
27. In the light of the principle laid down by the Apex Court in the
aforesaid judgments, coming to the facts of the case on hand, as
discussed supra, the plaintiff filed the aforesaid suit against Defendant
Nos.5 and 8 to declare gift deed bearing No.4408 of 2016 dated
16.08.2016, Development Agreement – cum – GPA dated 20.09.2022 as
null and void, and also for perpetual injunction in respect of the suit
schedule-A property. The plaintiffs specifically contended that originally
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the suit lands belong to Defendant No.1, he orally gifted the suit
schedule-A Property in favour of plaintiff No.1, his wife. She has
accepted the same, the possession was delivered in her favour in the
presence of witnesses. To avoid future complications, acknowledging
the said oral gift deed, he also executed Memorandum of Gift dated
06.01.1990 in favour of plaintiff No.1 since the date of Hiba, plaintiff
No.1 in peaceful possession and enjoyment of the suit schedule-A
property.
28. Plaintiff No.1 entered into an agreement of sale dated
20.09.2014 with plaintiff Nos.2 and 3 for a total sale consideration of
Rs.1,30,00,000/-. He has received advance sale consideration of Rs.35
Lakhs on the date of agreement of sale. Plaintiff Nos.2 and 3 had paid an
amount of Rs.25 Lakhs on 21.07.2015, Rs.20 Lakhs, Rs.10 Lakhs on
25.01.2018 and Rs.10 Lakhs on 26.10.2019. Having received the said
amount, plaintiff No.1 did not execute registered sale deed in favour of
plaintiff Nos.2 and 3. Therefore, they issued legal notice dated
10.03.2020 to the plaintiff No.1 to receive the said balance sale
consideration and register the sale deed in favour of plaintiff No.2 and 3.
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Thereafter, Plaintiff Nos.1 and 2 filed the said suit in O.S.No.25 of 2020
for specific performance of contract against plaintiff No.1. During
pendency of the said suit, they have compromised the matter and basing
on the said compromise, learned trial Court decreed the said suit on
05.10.2020. Children of Defendant No.1 i.e. Mohammad Karam Ali
Khan and Mohd. Abbas Khan, were also witnesses to the agreement of
sale dated 20.09.2014 executed by plaintiff No.1. On 16.01.2023,
Defendant Nos.2 to 7 along with some anti-social elements criminally
trespassed into the suit schedule property and created nuisance, then
Defendant No.2 claimed that she is the owner of part of the suit schedule
-A property. Thereafter, on enquiry, they came to know about the
execution of the gift settlement deed bearing document No.4408 of 2016
dated 16.08.2016 by Defendant No.2.They have also lodged a complaint
with police and also an association. Thus, the plaintiffs are lawful
owners and possessors of the suit schedule property. Even then, the
defendants are trying to dispossess them without following due
procedure laid down under law.
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29. In the plaint, plaintiffs also specifically pleaded with regard to
the cause of action dated 16.01.2023, the date on which defendant Nos.2
to 7 tried to enter into suit schedule property by criminally trespassing
into the suit schedule property and created nuisance, execution of a gift
settlement deed and also development agreement.
30. Defendant Nos.1 and 3 filed written statement denying the
claim of the plaintiffs.
31. It is also apt to note that denying the claim of the plaintiffs,
Defendant Nos.5 and 8 also filed their written statements and counter
claim seeking to declare the Defendant No.8 represented by Defendant
No.5, as owner and possessor of the suit schedule – B,C,E and F
properties, also for consequential injunction in favour of Defendant No.8
and also to declare oral Hiba dated 16.01.1990 as null and void and not
binding on Defendant No.8 represented by Defendant Nos.5 and 8 who
filed the aforesaid application vide I.A.No.616 of 2025 (old I.A.No.656
of 2023) under Order VII Rule 11 of CPC to reject the plaint contending
that the plaintiff filed the suit by playing fraud on the Court, it is barred
by limitation, there is no cause of action, they do not have title over the
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suit schedule property and they were never in possession of the same.
They have obtained a decree dated 05.10.2020 in O.S.No.25 of 2020 by
playing fraud on the Court, by way of suppression of material facts and
non-joinder of proper parties.
32. Sri M.S.Prasad, learned Senior counsel appearing for
Defendant Nos.5 and 8 strenuously contended that the plaintiff No.1 was
not in possession of the suit schedule property. Therefore, the question
of she delivering the possession of the same in favour of the plaintiff
Nos.2 and 3 does not arise. The contents of gift settlement deed lack
three essential ingredients. The decree in O.S.No.25 of 2020 is a
collusive decree.
33. He has also placed reliance on the principle laid down by the
Apex Court in Hafiza Bibi (supra) wherein it was held that to prove that
a gift/Hiba under Muslim Law, it requires three essential ingredients i.e.
1) declaration of a gift by donor, 2) acceptance of gift by done, either
expressly or impliedly, and 3) Delivery of possession and taking
possession thereon by the donee on acceptance either actually and
constructively. It is also settled law that no written document is required
25
under Muslim Law for validity of the oral gift which is
acceptable. Section 129 of the Transfer of Property Act, 1882 excludes
the rule of Mahomedan law from the purview of Section 123 which
mandates that the gift of immovable property must be effected by a
registered instrument. But it cannot be taken as a sine qua non in all
cases that whenever there is a writing about a Mohammedan gift of
immovable property, there must be registration thereof. Whether the
writing requires registration or not depends on the facts and
circumstances of each case.
34. In the present case, it is the specific contention of the plaintiffs
that Defendant No.1, husband of plaintiff No.1 orally gifted the suit
schedule property in her favour. She has accepted the same, possession
was delivered to her in the presence of witnesses. To avoid future
complications, acknowledging the said oral gift, Defendant No.1 also
executed Memorandum of Gift/Hiba dated 06.01.1990 in favour of the
plaintiff No.1. Since the date of Hiba, she was in peaceful possession
and enjoyment of the suit schedule – A property.
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35. Perusal of the said Memorandum of Gift, dated 06.01.1990
would reveal that it is a notarized gift deed executed by Defendant No.1.
There are two witnesses to the said gift deed i.e. Mr. Mahaboob Khan
and Qayam Khan.
36. In the said gift deed, it is mentioned that the donor’s father
Karam Ali Khan orally gifted away the said property in Sy.No.76 extent
of Ac.16.27 guntas situated in Mokila Village, Shankarpaly Mandal,
Ranga Reddy District on 12.12.1969. The Donee accepted the said gift
in the presence of well wishers and relatives. The offer of the gift was
accepted by the Donee and the said property and as such vacant
possession of the said property was also handed over to the Donee by
the Donor.
37. The schedule of property in the said gift deed and the suit
schedule-A property in the present suit is one and the same. Thus, there
is specific pleading in the plaint with regard to execution of gift by the
Defendant No.1 in favour of plaintiff No.1, acceptance of the same by
the plaintiff No.1 and delivery of possession of the suit schedule -A
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property in her favour. There is also specific pleading with regard to the
cause of action and limitation.
38. As discussed supra, the Court has to consider the contents of
plaint, documents filed along with the plaint while deciding an
application filed under Order VII Rule 11 of CPC seeking rejection of
plaint. The trial Court cannot conduct roving enquiry and gave findings
with regard to the several aspects pleaded by the parties. The Court has
to read the contents of the plaint meaningfully.
39. As discussed supra, in the present case, the plaintiffs
specifically pleaded with regard to cause of action, limitation, execution
of gift deed, acceptance of the same and delivery of possession of
schedule -A property in favour of plaintiff No.1. It is also the specific
contention of the plaintiffs that the plaintiff No.1 executed agreement of
sale in favour of plaintiffs Nos.2 and 3 in respect of suit schedule-A
property, they have paid part sale consideration. Plaintiff No.1 failed to
receive balance sale consideration and execute registered sale deed in
their favour. Therefore, after issuing legal notice, they have filed the
aforesaid suit in O.S.No.25 of 2020 against plaintiff No.1 seeking
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specific performance of agreement of sale. During pendency of the said
suit, they have arrived at an understanding, settled the dispute and
entered into compromise; considering the same, learned trial Court
decreed the same vide judgment dated 05.10.2020.
40. Sri M.S.Prasad, learned Senior counsel appearing for
Defendant Nos.5 and 8 would contend that it is a collusive decree. They
have obtained the said decree by playing fraud. However, the said
aspects cannot be considered by the trial Court while deciding an
application filed under Order VII Rule 11 of CPC.
41. It is apt to note that respondents Nos.1,2,4,5 and 8
herein/Defendant Nos.1,2,4,5 and 8 filed A.S.No.287 of 2023 against the
petitioners herein and others to declare the said judgment as null and
void and it is not binding on them.
42. As discussed supra, at the cost of repetition, the Court has to
read the pleadings of plaint meaningfully and also consider the
documents filed by the plaintiff along with the plaint. The Court cannot
go beyond the same.
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43. Whereas, in the present case, learned trial Court gave a
specific finding that the contents of Hiba/Gift lack three essential
requisites. There is no delivery of possession of donated property in
favour of plaintiff No.1 by Defendant No.1. Therefore, the gift of
immovable property is not complete. Thus, the trial Court transgressed
its jurisdiction and gave specific finding with regard to the possession
and also validity of gift and that the said gift was not acted upon.
Learned trial Court also gave a finding that plaintiff No.1 cannot acquire
any rights over the suit schedule property under the unregistered
gift/Hiba, therefore, the plaintiffs have no locus standi to file the suit
basing on invalid Hiba. The said findings are beyond the scope of Order
VII Rule 11 of CPC and the principle laid down in the aforesaid
judgments. The said aspects are triable and the parties have to face trial
and take the said pleas before the trial Court in a suit and it is for the
trial Court to consider the same.
44. It is also relevant to note that Defendant Nos.5 and 8 filed the
aforesaid application under Order VII Rule 11 of CPC to reject the plaint
and also filed written statement along with the counter claim to declare
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the Defendant No.8 represented by Defendant No.5, as owner and
possessor of the suit schedule-B,C,E and F properties; for consequential
injunction in favour of Defendant No.8; and also to declare oral Hiba
dated 16.01.1990 as null and void and not binding on the Defendant
No.8 represented by Defendant No.5. The contentions of the parties are
triable issues. Without considering the said aspects, vide impugned
order, learned trial Court allowed the application filed by Defendant
Nos.5 and 8 rejecting the plaint erroneously. Therefore, the impugned
order is liable to be set aside.
45. In the light of the aforesaid discussion, the appeal is allowed.
The order dated 02.05.2025 in I.A.No.616 of 2025 (old I.A.No.656 of
2023) in O.S.No.501 of 2025 (old O.S.No.111 of 2023) passed by the
Additional District and Sessions Judge, Ranga Reddy District at
Chevalla, is set aside. Learned trial Court shall proceed with the suit.
However, liberty is granted to the parties to take all the pleas and
grounds which they have taken before this Court in the present appeal
before the trial Court and it is for the trial Court to consider the same
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without being influenced by any of the above findings. However, there
is no order as to costs.
Consequently, miscellaneous petitions, if any pending, in this
appeal, shall stand closed.
________________________
JUSTICE K. LAKSHMAN
__________________________________
JUSTICE B.R MADHUSUDHAN RAO
Date: 03.08.2026
vvr.
