Madhya Pradesh High Court
Vepuri Issac vs Vepuri Vijay on 19 February, 2026
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DEEPAK KHOT
ON THE 19th OF FEBRUARY, 2026
FIRST APPEAL No. 35 of 2025
VEPURI ISSAC
Versus
VEPURI VIJAY AND OTHERS
Appearance:
Ms.C.Veda Rao - Advocate with Shri Ashok Kumar Gupta, learned counsel
for the appellant.
Shri Navaneet Dubey, learned counsel for the respondent No.9 on Caveat.
Shri Alok Kumar Jain - Advocate for respondent no.10 through Video
Conferencing on Caveat.
Shri Ravindra Rajput - P.L. for the respondent/State .
ORDER
With the consent of parties, the matter is heard finally.
The present appeal has been filed against the impugned order dated
19.12.2024 passed by the XVII District Judge, Jabalpur, in Regular Civil
Suit No.668-A/2024, whereby the learned court below allowed the
application filed by the respondent no.1/defendant under Order 7 Rule 11
CPC and consequently dismissed the suit filed by the plaintiff.
2. It is the case of the appellant/plaintiff that plaintiff has filed a suit
for declaration of title, partition and permanent injunction in respect of the
suit property mentioned in para 2 of the plaint. It is averred in the plaint that
the said property was the self acquired property of father of the plaintiff, who
purchased the same in the year 2000 and since then the plaintiff is in
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possession of the said property. It is averred that respondents no. 1 and 2 and
respondents no.6 and 7 are real brothers and sisters of the plaintiff whereas
respondents no.3 to 5 are legal heirs of Vepuri Jagdish Prasad, who was
brother of the appellant/plaintiff and respondents no. 8 to 11 are the
purchasers of the suit property. The father of the plaintiff viz. V.J.Sydney
died on 12.7.2004 and after his death, the property is equally devolved upon
all his legal heirs, i.e. 1/6th share to each LR. In support of his averment, a
sale-deed dated 6.3.2000 executed in the name of the Lutheran Mission of
Salvation of India, has been filed to show that father of the plaintiff being
President of the said society is the owner of the suit property.
3. However, the learned court below found that the said property is
sold in the name of the Lutheran Mission of Salvation of India, which is not
a registered Trust and not in the name of father of the plaintiff. Thus, the
court below found that the property in question is not sold to the father of the
plaintiff in his personal capacity but it is sold to an unregistered Trust in the
name Lutheran Mission of Salvation of India. Since the Trust was
unregistered, therefore, the Trustees of the said Trust has right and title over
the property in question. Plaintiff has not averred that his father was one of
the Trustee of the said unregistered Trust. Thus, the court below found that
the appellant/plaintiff has no cause of action to file the present suit and
accordingly rejected the suit under Order 7 Rule 11 (a) and (d) CPC. Being
aggrieved therewith, the appellant has filed the present appeal.
4. Learned counsel for the appellant submitted that father of the
plaintiff got a Society registered in the name ‘The Lutheran Mission of
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Salvation’ whose registration number is JJ3405/1997. It is submitted that
father of the appellant purchased 15,478 sqft. of land by two registered sale-
deeds of even date 6.3.2000, which was the self acquired property. It is
further contended that father of the plaintiff also got established a Trust in
the name of ‘The Lutheran Mission of Salvation of India’ and got both the
sale-deeds executed in the name of ‘The Lutheran Mission of Salvation of
India’, which is an unregistered society. It is further contended that on
28.2.2018 respondent no.1 being President of the Lutheran Mission of
Salvation, applied before the Registrar, Firms and Societies for the sale of
said land, which was denied by the Registrar on 30.3.2018. However, name
of the said society got mutated in the revenue record vide order dated
28.4.2015 passed by the Tahsildar. It is submitted that despite denial of
permission by the Registrar, Firms and Societies, the respondent no.1
executed a sale-agreement in favour of one Anurag Baderia in respect of
7739 sqft. of land on 6.7.2021. It is further submitted that the respondent
no.1 filed an application on 1.8.2023 before the SDO for correction of name
of the society in the revenue record and vide order dated 18.8.2023 name of
the Lutheran Mission of Salvation of India got deleted and its place ‘The
Lutheran Mission of Salvation’ got mutated.
5. The plaintiff filed civil suit bearing C.S.No.614-A/2023 on 3.7.2023
for declaration of title, however, during pendency of suit the respondent no.1
sold the suit property admeasuring 11,035 sqft. out of total area 15,478 sqft.
to respondents no.8 to 11 vide registered sale-deed dated 11.12.2023. The
plaintiff amended the plaint, however, due to some technical reason, the
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plaint was returned on 28.5.2024. Hence, the present suit was filed by the
plaintiff seeking declaration of title, partition and permanent injunction.
6. Learned counsel for the appellant further contended that no trust can
be created in respect of any immovable property unless and until created by
non-testamentary document which could be in writing and signed by the
author of the trust, whereas, the case of the appellant is totally different and it
is not related to the Trust Act and no provisions of the Trust Act are
applicable. The disputed property has been shown to be purchased in the
name of society, however, vendor society is not a registered society,
therefore, the appellant’s/plaintiff father was the owner of the said property
and after his death appellant and respondents being natural heirs have
inherited the said property and are equal share holders. It is further submitted
that cause of action is a bundle of facts, it can only be decided after recording
of evidence.
7. It is further submitted that the court below only on assumption that
the disputed property has been purchased in the name of the Trust, which is
governed by the Indian Trust Act, 1882. According to section 5, a trust
cannot come in existence unless the settlers or trustees have made the trust
by non-testamentary document or settler by way of Will or by way of
testamentary document and if such trust is unregistered, holds/owns
immovable property then such property shall be treated to be property owned
by Trustee and not by the Trust. It is further observed that trustees of
unregistered trust have no distinct identity and to the extent of the provisions
of the Indian Trust Act, 1882, it can be said to be valid and can be enforced.
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It is further held that the property has been purchased in the name of the
Lutheran Mission of Salvation of India, Jabalpur M.P., which was
represented by the father of plaintiff V.J.Sydney as a President of the Trust
and, accordingly, the property in question is not the property owned and held
by father of the appellant plaintiff. It is further observed that the trust being
unregistered, the trust and the trustees have got right in the disputed
property, in absence of any pleading in regard to the plaintiff trusteeship in
the Trust and the suit has been filed claiming the property to be owned by
father of the plaintiff, who died intestate and as such the appellant has got no
right, title and interest in the property, according to which the court finds that
no rights in favour of the appellant/plaintiff have been vested and,
accordingly, no cause of action accrued in favour of the appellant plaintiff to
prosecute the present suit. Being aggrieved by the impugned order, the
present appeal has been filed.
8. The respondent has supported the finding of the civil court and also
submitted that the court below has wrongly written word ‘trust’ in place of
‘society’, for which an application has been filed for correction of the said
typographical mistake, which is also placed on record by counsel for
respondent no.1 by Document no.2639/2025.
9. It is further submitted that an application I.A.No.10034/2025, under
order 41 Rule 27 CPC has been filed by counsel for respondents no.8 to 11
stating that identical suit has also been filed by one Vepuri Jagdish Prasad,
who is also party defendant respondent in the present suit, in which appellant
plaintiff has also supported the suit claiming one sixth share. Certified copy
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of the plaint submitted by predecessors of respondents no.3 to 5, a copy of
the written statement submitted by the present appellant in that suit, an order
passed under Order 39 Rule 1 and 2 CPC dated 7.9.2018 and an order dated
24.6.2019 passed in MJC No.407/2019, by which the application under
section 5 for condoning delay in filing the appeal has been dismissed, have
been filed. All these documents have been submitted to demonstrate that
identical suit is already pending and by concealing material fact the present
suit has been filed by the appellant. There are other several applications for
temporary injunction and for appropriate directions have been filed.
However, the parties have vehemently submitted that instead of deciding the
application, the appeal be decided finally. Therefore, by the consent of the
parties, the appeal is being decided finally.
10. From perusal of the impugned order, it is found that the learned
court below has committed an elementary error of law by applying the
provisions of the Indian Trust Act, 1882. From the perusal of the plaint
averments, it is found that in the plaint, it is nowhere mentioned that the
property in question is purchased in the name of an unregistered trust. In
fact, in para 3 of the plaint it is averred that the property was purchased in the
name of unregistered society. There is a vast difference between a society
and a trust. Both the entities being a juristic person, are governed by
different statutes in M.P. For society, the applicable statute is Society
Registrikaran Adhiniyam, 1973, and for trust, when it is not a public
charitable trust, provisions of the Indian Trust Act are applicable, but, as a
matter of fact, nowhere it has been pleaded in the plaint that the property
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belongs to a trust or purchased in the name of trust by the father of the
appellant plaintiff. Then under what circumstances the court below has
considered that the property purchased by the father of the appellant in the
name of trust and applied the provisions of Indian Trust Act in the impugned
order ? It seems that either the court below has not read the file because of
neglect or may be deliberately has applied wrong provisions of law while
dealing with the application under Order 7 Rule 11(d) CPC and rejected the
plaint, which is a matter of enquiry. However, without going into that aspect
of that matter, at this stage, the legality of the impugned order is tested on the
basis of the available facts of the present case.
11. From perusal of plaint averments, it is gathered that averment has
been made that the disputed property being land having Khasra no.
mentioned in para 2 of the plaint having area 15,478 sqft. was purchased by
father of the appellant plaintiff in the name of “The Lutheran Mission of
Salvation of India” Jabalpur, M.P. which is an unregistered society. It is
further submitted that the plaintiff and respondents are jointly maintaining
and have been in possession of the said land. Father of the appellant plaintiff
had expired on 12.7.2004 leaving behind his LRs, who all are joined as
parties as plaintiff and defendants no.1 to 6 in the suit. After his death all the
parties have equal share in the disputed property. It is further submitted that
the defendant /respondent no.1 was trying to alienate the property, therefore,
a notice through counsel was sent by the appellant plaintiff and as such the
cause of action accrued in favour of appellant plaintiff on 23.6.2023 when
the notice was sent to the respondent and, thereafter it has been continuing
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because the respondent /defendant is trying to dispose of the disputed
property.
12. An application has been filed by the defendant/respondent no.1
under Order 7 Rule 11(a) and (d) CPC for rejection of the plaint. From
perusal of the application, it is found that the respondent no.1 has stated that
the land has been purchased by the father of the appellant/plaintiff and
respondents in the name of society, as averred by the plaintiff. According to
section 5 of the Act of 1973, seven or more persons can by way of
memorandum of association signed by them and by filing it to the Registrar,
form the society, which provides that the society is not required to be
compulsorily registered. It is also submitted that as the name of society is
mentioned in the sale-deed dated 6.3.2000, then it would be assumed that the
society had been formed by seven members and as such the land did not
belong to the father of the plaintiff as self acquired property of the father of
the parties. The maintenance and up-keeping of the property was being done
by the members of the society and legal representative of any member of the
society shall not have any right and accordingly, the appellant/plaintiff has
no right to get declaration of his share in the property and partition of the
said property. The appellant/plaintiff has orally submitted objection to the
said application.
13. From perusal of the sale-deed, which has been filed along with the
plaint, a photocopy of which forms a part of the plaint at page 59 of the
lower court record, the document is a sale-deed which contains the
description of different vendors and name of vendee which is ‘Lutheran
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Mission of Salvation of India, Jabalpur, M.P.’ affiliated working under
WELS USA represented by its President V.J.Sydney, s/o V.A.Issac, r/o 2064
Durga Nagar, Rampur, Jabalpur. Except the said description of the purchaser,
nothing is mentioned about the society viz. registration no. of the society,
members of the society, object or registered memorandum of association of
the society or details as submitted under section 27 before the competent
Authority under the Act of 1973.
14. The defendant no.1/respondent no.1 has submitted in the
application under Order 7 Rule 11 (a) and (d) of CPC that when such
property has been purchased in the name of the society, that too,
unregistered, then it would have been by constituting a society by seven
members, therefore, said property belongs to the society.
15. Section 3 provides definition and section 3(e) provides definition
of society, means a society registered or deemed to have been registered
under this Act. The respondent no.1 has pleaded in the application under
order 7 rule 11 CPC that the society can be an unregistered society and such
provisions are not mandatory under section 5 of the Society Registrikaran
Adhiniyam, which is in contradiction of the definition of the society.
Section 5 of the Act of 1973 deals with the formation of the society by
memorandum of association and registration, which provides that any seven
or more persons or persons associated for an literary, scientific, educational,
religious or charitable purpose or any other purpose as is described in section
2 may, by subscribing their names to a memorandum of association and
filing the same with the Registrar, form themselves into a society under this
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Act.
16. From bare perusal of section 5, it is gathered that for formation of
the society, basic ingredient is to have seven members associated subscribing
their names in a memorandum of association and filing the same with the
Registrar can form a society. However, in the present case in hand, neither
the memorandum of association is available on record nor any details of the
society members as well as no details of registration is on record. The
respondent/defendant no.1 himself has submitted that it is not a registered
society. When the averments of the plaint and the application under Order 7
Rule 11(a) and (d) CPC have been tested with the provision of law, it is
found that there cannot be any society under the Act of 1973 without getting
it registered by filing memorandum of association by seven or more
members. The society can be deemed to be a registered society but, for that
filing of the memorandum of association by 7 members is necessary. There
is nothing on record to demonstrate that such memorandum was ever
prepared by the 7 members and filed before the Registrar for registration. A
registration certificate has been filed, which is not in the name of the present
society, but, is in the name of the society, which is having similar name but
does not contain last words ‘of India’. The said fact has been brought on
record through an application filed under Order 6 Rule 17 CPC before the
civil court, which is I.A. 3/2024 filed on 24.9.2024 and finds place in the
record of the civil court at page 27.
17. On perusal of the said application, it is found that the applicant has
tried to elaborate the pleadings through the said application. The suit was
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filed on 8.7.2024. From perusal of the plaint, it is found that it is not happily
worded; but, from nowhere it can be said to be not having cause of action or
barred by any law. To elaborate the pleadings subsequent applications have
been filed on 24.9.2024 at the advance stage, which also finds place in the
order-sheets of the civil court dated 24.9.2024. The said application is prior
to the application filed under order 7 rule 11 CPC, which was filed on
26.10.2024, as apparent from page 53 of the record. That also finds mention
in the order-sheet of the civil court on 26.10.2024. However, in the order-
sheet, it is written that the respondent no.1 has submitted the reply to the
application under Order 7 rule 11 (a) and (d) CPC, which is against the
record and the application. In fact, the application under Order 7 Rule 11
CPC is filed by the defendant and not by the plaintiff for which it is recorded
that reply of the application has been submitted by the defendant no.1, which
shows the concentration of the court towards the proceedings submitted by
the parties.
18. On going through the record of the civil suit, it is found that though
the application has been filed by the appellant plaintiff to elaborate the
pleadings in respect of purchase of the land by the father in the name of the
society, in I.A.No.3/24, but, which remained pending before the court and
the later application filed under Order 7 Rule 11 CPC dated 26.10.2024 has
been decided without taking into consideration the averments of the
application submitted under Order 6 Rule 17 CPC. It seems the court below
without considering the entire record have passed an order under Order 7
Rule 11(a) and (d) CPC by applying wrong provisions of law and without
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deciding the earlier application filed to elaborate pleadings, may be for the
reasons best known to the civil court.
19. For the purpose of deciding the application under Order 7 Rule 11
CPC only the plaint averments are germane and no other documents or
substance is required to adjudicate an application under Order 7 Rule 11
CPC. If any decision is made on any other basis that require enquiry cannot
be sustained in the eye of law.
20. The Hon’ble Apex court in the case of Nusli Neville Wadia v.
Ivory Properties, (2020) 6 SCC 557, has held that the pleadings of the plaint
are germane to decide the application under Order 7 Rule 11 of CPC. No
other documents of defence is required to be seen at the time of deciding the
application under Order 7 Rule 11, that is to be seen at the time of final
hearing if those documents are brought by the other side in accordance with
law. The Hon’ble Apex Court has held as under :-
“69. In Hareendran v. Sukumaran [Hareendran v. Sukumaran,
(2018) 14 SCC 187 : (2018) 4 SCC (Civ) 510] , this Court has laid
down that question of limitation in the case being mixed question
of law and facts, could not have been decided as preliminary issue.
The provision under which a plaint can be rejected is provided in
Order 7 Rule 11( d ). The language used in Order 7 Rule 11 is
where averments made in plaint does not disclose a cause of
action; relief claimed is undervalued, and the plaint is not
corrected in spite of the direction of the Court; plaint is
insufficiently stamped, and in spite of the Court’s order the
plaintiff has failed to supply the requisite stamp duty; where the
suit appears from the statement in the plaint to be barred by any
law; where it is not filed in duplicate; and where the plaintiff fails
to comply with the provisions of Rule 9. What is of significance
under Order 7 Rule 11 is that from the averments of the plaint
itself the suit is barred by any law and it would include limitation
also including bar created by any other law for the time being in
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force. For the rejection of plaint, averments made by the defendant
in the written statement or otherwise cannot be seen, only the
averments of the plaint are material and can be taken into
consideration and no other evidence”.
(emphasis supplied)
21. The Hon’ble Apex Court in the case of Dahi Ben Vs. Arvind Bhai,
(2020) 7 SCC 366, has held that even the documents filed along with the
plaint when they are referred to in the plaint, forms the basis of the plaint, it
should be treated to be a part of the plaint. In exercise of the power under
Order 7 Rule 11 CPC, the court would determine if the assertions made in
the plaint are contrary to the statutory law or judicial dicta or for deciding
whether case for rejecting the plaint at the threshold is made out. The
Hon’ble Apex Court has held as under :-
“23.2. The remedy under Order 7 Rule 11 is an independent and
special remedy, wherein the court is empowered to summarily
dismiss a suit at the threshold, without proceeding to record
evidence, and conducting a trial, on the basis of the evidence
adduced, if it is satisfied that the action should be terminated on
any of the grounds contained in this provision.
23.3. The underlying object of Order 7 Rule 11( a) is that if in a
suit, no cause of action is disclosed, or the suit is barred by
limitation under Rule 11( d ), the court would not permit the
plaintiff to unnecessarily protract the proceedings in the suit. In
such a case, it would be necessary to put an end to the sham
litigation, so that further judicial time is not wasted.
***
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
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into consideration. [Sopan Sukhdeo Sable v. Charity Commr. ,
(2004) 3 SCC 137]
***
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
Jadeja v. Vijaykunverba, 1998 SCC OnLine Guj 281 : (1998) 2
GLH 823].
22. The Hon’ble Apex court in the case of Liverpool & London S.P. &
I Assn. Ltd. v. M.V. Sea Success I, (2004) 9 SCC 512 has held that the test
for exercising the power under Order 7 Rule 11 CPC 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. The Hon’ble
Apex court has further held as under :-
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. It is further held by the Hon’ble Apex court that it is not
permissible to cull out a sentence or a passage, and to read it in isolation. It is
the substance, and not merely the form which has to be looked into. The
plaint has to be construed as it stands without addition or substraction of
words. If the allegations in the plaint prima facie show a cause of action, the
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court cannot embark upon an enquiry whether the allegations are true in
fact. (See D.Ramchandran Vs. R.V. Jankiraman, (1999) 3 SCC 267.)
24. The Hon’ble Apex court in the case of Dahi Ben (supra) has
delineated the meaning of cause of action which means every fact which
would be necessary for the plaintiff to prove, if traversed in order to support
his right to judgment. It consists of bundle of material facts which are
necessarily for the plaintiff to prove in order to entitle him to the reliefs
claimed in the suit.
25. The Hon’ble Apex court in the case of Swamy Atmananda v. Sri
Ramakrishna Tapovanam, (2005) 10 SCC 51, has held as under :-
24. A cause of action, thus, means every fact, which, if traversed,
it would be necessary for the plaintiff to prove in order to support
his right to a judgment of the court. In other words, it is a bundle
of facts which taken with the law applicable to them gives the
plaintiff a right to relief against the defendant. It must include
some act done by the defendant since in the absence of such an act
no cause of action can possibly accrue. It is not limited to the
actual infringement of the right sued on but includes all the
material facts on which it is founded.
26. In the case of T. Arivandandam v. T.V. Satyapal, (1977) 4 SCC
467, the Apex court while dealing with the issue of cause of action under
Order 7 Rule 11 CPC has held as under :-
5. We have not the slightest hesitation in condemning the
petitioner for the gross abuse of the process of the court repeatedly
and unrepentently resorted to. From the statement of the facts
found in the judgment of the High Court, it is perfectly plain that
the suit now pending before the First Munsif’s Court, Bangalore, is
a flagrant misuse of the mercies of the law in receiving plaints.
The learned Munsif must remember that if on a meaningful — not
formal — reading of the plaint it is manifestly vexatious, and
meritless, in the sense of not disclosing a clear right to sue, he
should exercise his power under Order 7, Rule 11 CPC taking care
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to see that the ground mentioned therein is fulfilled. And, if clever
drafting has created the illusion of a cause of action, nip it in the
bud at the first hearing by examining the party searchingly under
Order 10, CPC. An activist Judge is the answer to irresponsible
law suits. The trial courts would insist imperatively on examining
the party at the first hearing so that bogus litigation can be shot
down at the earliest stage. The Penal Code is also resourceful
enough to meet such men, (Cr. XI) and must be triggered against
them. In this case, the learned Judge to his cost realised what
George Bernard Shaw remarked on the assassination of Mahatma
Gandhi:
“It is dangerous to be too good.”
27. When the facts of the case have been tested on the anvil of the
aforesaid law laid down by the Hon’ble Apex Court, then it is found that the
plaint contains a cause of action, which has further been elaborated by filing
an application under order 6 rule 17 CPC, which remained undecided by the
court before deciding the application under Order 7 Rule 11 CPC though it
was filed prior to the application under order 7 rule 11 CPC. It is also found
that the plaint contains the cause of action and also the right asserted by the
plaintiff that being the legal representative of V.Joseph Sydney, who has
purchased the property in the name of society is entitled to equal share. The
society is an unregistered society or a registered society though it is opined
by the civil court that it is not a registered society and the respondent no.1
being the member of the society has a right to sell the property of the society,
but all these questions are disputed questions of fact which cannot be
adjudicated without due enquiry and evidence adduced by the parties.
Therefore, in the considered opinion of this court, the learned civil court has
committed grave error of law in rejecting the plaint on applying wrong
provisions of the Indian Trust Act as well as holding that there is no cause of
action in favour of appellant plaintiff to prosecute the suit further holding
Signature Not Verified
Signed by: HEMANT SARAF
Signing time: 3/18/2026
1:04:26 PM
NEUTRAL CITATION NO. 2026:MPHC-JBP:14425
17 FA-35-2025
that no right exists in favour of appellant plaintiff to get it declared under
section 34 of the Specific Relief Act.
28. The respondent defendant has submitted that another suit filed by
one of the brother of the appellant plaintiff claiming the same right is
pending wherein the appellant plaintiff has supported the claim of his
brother.
29. Be that as it may.
30. As the appellant plaintiff is also claiming equal right in the
property, the appellant plaintiff has got the right to claim and have cause of
action to prosecute. When there is a suit previous to the present suit in
question, then the respondent may take recourse of the provision of CPC if
the same questions are involved in both the suits for staying the proceedings
of the later suit if it falls within the ambit of section 10 of the CPC, which
has to be tested by civil court and if it is not, then it may proceed. But, in no
way the earlier litigation by the brother, which is pending, would constitute
resjudicata, as no final adjudication has been done between the parties.
31. Thus, on the basis of aforesaid analysis, the first appeal filed by the
appellant plaintiff is allowed. The impugned order dated 19.12.2024 passed
by the XVII District Judge, Jabalpur, in Regular Civil Suit No.668-A/2024 is
hereby set aside. Consequently, application filed under Order 7 Rule 11
CPC by the respondent/defendant no.1 is hereby rejected. The matter is
remitted back to the civil court concerned to adjudicate the pending civil suit
from the stage when the application under Order 7 Rule 11 CPC was
allowed.
Signature Not Verified
Signed by: HEMANT SARAF
Signing time: 3/18/2026
1:04:26 PM
NEUTRAL CITATION NO. 2026:MPHC-JBP:14425
18 FA-35-2025
32. Let original record be sent back to the court concerned. Parties are
directed to appear before the trial court on 9.4.2026 and thereafter on such
other dates as may be fixed by that court.
(DEEPAK KHOT)
JUDGE
HS
Signature Not Verified
Signed by: HEMANT SARAF
Signing time: 3/18/2026
1:04:26 PM