Rafiqha Khatoon vs Sultan Murad Khan on 3 August, 2026

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    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

    SPONSORED

    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
    3

    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.
    4

    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.

    5

    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.
    6

    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.
    7

    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
    8

    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
    9

    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
    10

    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
    11

    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
    12

    (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.
    13

    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
    14

    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.

    16

    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
    17

    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
    18

    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
    19

    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
    21

    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.
    22

    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.

    23

    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
    24

    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.

    26

    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
    27

    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
    28

    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.

    29

    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
    30

    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
    31

    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.



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