Amitav Kumar Gupta, J. - (1.) THIS application under Section 115 of Civil Procedure Code(for short C.P.C.) has been filed against the order dated 22.01.2015 whereby the learned Sub -Judge -I., Ranchi rejected the petition filed under Order 7 Rule 11 C.P.C., filed by the petitioner in Title Suit No. 156/2014, for rejection of the plaint.
(2.) THE plaintiffs' case as per the pleadings is that plaintiffs/O.Ps. and the defendants/petitioners are by caste Oraon of Schedule Tribe community and they are governed by the customary law of their community in the matter of succession and inheritance and as per the customary law if tribal Oraon dies without any male issue then the widow and unmarried daughter if any, are entitled to maintenance out of the usufruct of the landed property of the deceased so long the widow is alive and does not remarry and so long the daughter is not married. After the death or remarriage of the widow and after the marriage of unmarried daughter the immovable properties of the deceased male Oraon will devolve upon his nearest male agnates. It is averred that the land of khata No. 129 situated at village -Argora, Ranchi was recorded in the revisional survey in the record of right in the names of Paulus Oraon and Patras Oraon having equal share. That Paulus Oraon had filed Partition Suit No. 29 of 1975 against his brother Patras Oraon for partition of half of his share in the lands of khata Nos. 129, 275 and 401. A decree of partition was passed on 24.04.1983 in the aforesaid suit whereby the lands described in the Schedule of the plaint were allotted to the takhta of Paulus Oraon and delivery of possession of the suit property was given to him vide Execution Case No. 1/1984. That Paulus Oraon died on 19.07.1994 without any male issue leaving behind his married daughter, namely, Marium Tigga @ Marium Raha (defendant No. 1). As per the customary law since Paulus Oraon died without any male issue his brother, Patras Oraon inherited the property of Paulus Oraon and continued in possession in assertion of his own right and remained in possession during his life time and after his demise plaintiff No. 1 along with plaintiff Nos. 2 to 5 as the heirs of Patras Oraon inherited the same and came into joint possession of the suit land and are still continuing in joint possession thereof. It is further pleaded that the plaintiffs are the surviving nearest male agnates of late Paulus Oraon and are entitled to hold and possess the suit land. It is stated that Paulus Oraon during his life time executed a sada will and testament dated 20.02.1994, whereby he bequeathed the lands allotted to his share in Partition Suit No. 29/1975, in favour of defendant Nos. 1 to 3 and appointed defendant No. 3 as executor of the alleged will. It is alleged that the said will was executed by Paulus Oraon without obtaining the permission of the Deputy Commissioner, Ranchi in contravention of the provision of Section 46 of the Chottanagpur Tenancy Act, 1908. Act (for short C.N.T. Act). That Sanjeev Kumar Raha filed a petition in the court of Judicial Commissioner, Ranchi, for grant of probate with respect to the alleged will in Probate Case No. 94/95 wherein the plaintiffs appeared and filed objection with pleading that the alleged will is forged and manufactured and has been executed without obtaining the permission of Deputy Commissioner, Ranchi. On objection of the plaintiffs the Probate Case was converted into Probate Title Suit No. 1 of 1998, and in the proceeding evidence was led and after hearing the parties the learned Judicial Commissioner by order dated 05.05.2003 dismissed the Probate Case. Against the order of dismissal Sanjeev Kumar Raha preferred an appeal being F.A. No. 02/2004 before the High Court which was allowed by judgment dated 21.12.2012. Against the judgment of the High Court the plaintiffs preferred S.L.P.(S) No. 27123/2013 before the Hon'ble Supreme Court which was dismissed as withdrawn giving liberty to the plaintiffs to pursue other remedies available to them in law. It is further pleaded in para 28 of the plaint that under the Oraon customary law a married daughter has no right whatsoever to inherit the property of her deceased father. That Paulus Oraon had executed the will bequeathing the suit land to defendant Nos. 1 to 3 but defendant Nos. 2 and 3 cannot be treated as tribals as they are off springs of a schedule tribe mother and a non -tribal father. That a tribal can only bequeath his property by way of will to a tribal who is residing within the same police station after obtaining the permission of the Deputy Commissioner. That the provisions of Indian Succession Act are not applicable in the matter of tribals who are governed by the customary law. It is reiterated that on the death of Paulus Oraon his brother Patras Oraon being the nearest male agnate inherited the suit land and the plaintiffs as the legal heirs of Patras Oraon and the nearest male agnates of late Paulus Oraon have been coming in peaceful possession over the same after the demise of Patras Oraon. Accordingly, relief has been sought by the plaintiffs for declaration of their right, title and interest over the suit property and decree for confirmation of possession and if the plaintiffs are not found in possession then a decree for recovery of possession and defendant Nos. 1 to 3 be permanently restrained from dispossessing the plaintiffs from the suit land. Learned counsel for the petitioners has brought on record the following documents, namely, the plaint filed by the plaintiffs and the application filed under Order 7 Rule 11 C.P.C. by the petitioners and the objection filed by the Opp. parties, the copy of the order dated 21.12.2012 passed in F.A. No. 02/2004 by the High Court and the copy of the order of Hon'ble Supreme Court passed in S.L.P.(C) No. 27123/2013. Mr. Ayush Aditya, learned counsel for the petitioners has argued that the court below has by the impugned order rejected the application without considering and discussing the facts and point of law raised in the petition filed under Order 7 Rule 11 C.P.C. That the impugned order is cryptic and a non -speaking order reflecting the lack of application of judicial mind hence is fit to be set aside. In support of the contention, reliance has been placed on the decision reported in : (2010) 4 SCC 785 wherein it has been held that reasons should be recorded while disposing of the application even at the admission stage. It is argued that the court below has failed to appreciate that the trial court can exercise the power under Order 7 Rule 11 C.P.C. at any stage even before registering the plaint or after issuance of summons to the defendants. That for the purpose of deciding an application under Order 7 Rule 11(a) and (d) C.P.C. the averment in the plaint should be considered and not the pleas in the written statement. To buttress his argument learned counsel has placed reliance on the decision reported in : (2003) 1 SCC 557. While referring to the provision of Order 7 Rule 11 C.P.C. learned counsel has submitted that it is explicit from the pleadings of the plaint that the relief sought, therein, is primarily founded on the fact that the plaintiff and defendants belong to Oraon tribal community and are governed by the customary law of Oraon tribe in the matter of inheritance and succession, consequently they have inherited the property since they are the only surviving male agnates of late Paulus Oraon. It is argued that the exposited facts reveal that the claim of inheritance is based on the fact that they are governed by customary law applicable to the Oraon schedule tribe. It is canvassed that such pleading is against the findings recorded by the Hon'ble High Court in F.A. No. 02/2004 whereby it has been determined and adjudicated that the testator was a Christian and they did not follow the custom of the Oraon tribe. The judgment and finding of the learned single Judge was challenged before the Supreme Court in the aforesaid S.L.P. which was subsequently dismissed as withdrawn. It is urged that the judgment of the High Court in F.A. No. 02/2004 has been annexed with the plaint and this fact has been incorporated in para 24 of the plaint. It is contended that in the given fact and situation the learned court below should have looked into the document but it has miserably failed to do so and has rejected the application under Order 7 Rule 11 C.P.C. in a mechanical and routine manner without assigning any reason or recording any finding on the submissions advanced by the petitioner. In fact the trial Court has rejected the application merely on the ground that the office reported that the plaint was in order. It is contended by the learned counsel that the finding recorded by the High Court in F.A. No. 2 of 2004 regarding the fact that the defendants are Christians and are not governed by customary law of tribal has been affirmed by the Hon'ble Supreme Court consequently the finding on the fact that the testator was a Christian has attained finality and this finding cannot be allowed to be reagitated or reopened by taking recourse to clever drafting and attempting to camouflage the fact by claiming reliefs of confirmation of possession and recovery of possession, when the foundation of such claim is based on the cause of action that the parties are Oraon and according to the Oraon customary law they have inherited the property whereas this question of fact has already been adjudicated consequently the institution of the suit on the same fact between the same parties is barred by the principles of res judicata. Learned counsel in support of the contention has placed reliance on the decision reported in : (1977) 4 SCC 467; (1998) 2 SCC 70; (2011) 6 SCC 456 and : (2010) 4 SCC 785.
(3.) PER contra, learned counsel on behalf of Opposite parties/plaintiffs has submitted that the plaint has to be considered in its entirety and in the present case the petitioners have made out a case that they are in possession of the property and they have prayed for confirmation of the possession as well as recovery of possession if they are found to have been dispossessed from the suit property. The plaintiffs have also prayed for restraining the defendants from interfering with the possession of the plaintiffs. That the plaint is based on several cause of action. While relying and referring to the decision reported in : (1998) 7 SCC 184 and : (1999) 3 SCC 267, it is argued that it is settled principle that plaint cannot be rejected by dissecting it into several parts. It is contended that it is settled proposition that a Probate Case does not decide the title and merely because issues were raised and evidence were led in a proceeding while granting probate does not mean that the findings given thereunder have attained finality. It is urged that it is not the duty of the Probate Court to consider the issue of title of testator as the issue relating to title, ownership etc. are not to be gone into such summary proceeding of limited jurisdiction as the granting of Probate or Letter of Administration does not operate as res judicata in any future suit between the same parties and on the same fact. In support of the contention he has relied on the decision reported in, (2010) BBCJ 470. Learned counsel has also relied on the decision reported in, (1994) 1 BLJ 669 and submitted that an order passed in a contested Probate case does not amount to a decree passed in a regular title suit rather the proceeding in a Probate Case is a summary proceeding and no decree is required to be drawn up after passing of the final order. That a decree passed on the basis of finding in a regular suit can bar the institution of suit on the same facts between the same parties but an order passed in testamentary suit cannot bar the institution of suit on the same fact. Learned counsel has also relied on the decision reported in : (2000) 6 SCC 301 and submitted that Probate Court is a court of limited jurisdiction and a decision regarding the grant of succession certificate made in a proceeding under Section 373 of the Indian Succession Act, 1925 would not bar any party to the said proceedings to raise the same issue in a suit for partition filed in civil court. That the decision is not final between the parties. Learned counsel has submitted that Supreme Court in the aforesaid decision held that Section 387 of the Indian Succession Act, 1925 takes the decision outside the purview of the explanation VIII of Section 11 C.P.C. It is contended that Section 387 of the Indian Succession Act, 1925 lays down that any decision made under Part X of the Indian Succession Act upon any question of right between the parties shall not bar trial of the same question or fact in any suit proceeding between the same parties. It is pointed out that Section 387 of the Indian Succession Act explicitly lays down that any adjudication made under Part X of the Indian Succession Act does not bar the same question being raised between the same parties in any subsequent suit proceeding and such decision rendered under the Act is outside the purview of Explanation VIII of Section 11 C.P.C. To fortify his argument he has also relied on a decision reported in : (2000) 8 SCC 143 and submitted that the ratio laid down has been affirmed in the aforesaid case.;