Marium Tigga Alias Marium Raha and Ors Vs. Michel Tigga Alias Mikal and Ors - Court Judgment

SooperKanoon Citationsooperkanoon.com/65784
CourtJharkhand High Court
Decided OnSep-04-2015
AppellantMarium Tigga Alias Marium Raha and Ors
RespondentMichel Tigga Alias Mikal and Ors
Excerpt:
1 in the high court of jharkhand at ranchi ---- civil revision no. 11 of 2015 ----- in the matter of application under section 115 of the code of civil procedure. ----- 1. marium tigga @ marium raha, w/o sri sarju kumar raha.2. sanjeev kumar raha 3. sandeep kumar raha; both 2 and 3 sons of sri sarju kumar raha. all residents of village dibdih p.o. and p.s. argora, district- ranchii, jharkhand. .... petitioner. -versus- 1. michel @ mikal s/o late patras oraon 2. sanjay tigga 3. ajay tigga 4. manoj tigga 5. lalit tigga. all 2 to 5 sons of late daud tigga; all residents of village dibdih, p.o. and p.s. argora, district-ranchi. 6.deputy commissioner,ranchi, p.o.p.s. and dist-ranchi ….... opp. parties. ------ coram: hon'ble mr. justice amitav k. gupta ----- for the petitioner : m/s. ayush aditya & shashank shekhar,advocates. for the opp-parties:m/s.ajit kumar, sr. advocate & syed ramiz zafar, advocate. ----- c.a.v. on 26.08.2015 pronounced on 04.09.2015 ---- amitav k. gupta,j: 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 2 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. 3 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.3. 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 scc785wherein 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 4 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 scc557 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 5 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 scc467 (1998) 2 scc70 (2011) 6 scc456and (2010) 4 scc785 4. 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 scc184and (1999) 3 scc267 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) bbcj2 470. learned counsel has also relied on the decision reported in (1994) 1 blj669and 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 scc301and submitted that probate court is a court of limited 6 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 scc143and submitted that the ratio laid down has been affirmed in the aforesaid case.5. on the submissions and argument propounded by the counsels it is pertinent to refer to and discuss the decisions relied on by the learned counsel for the opposite parties/respondents,for appreciating the contention that the findings recorded in a summary proceeding are not a bar for institution of a subsequent suit on same facts between the same parties. on perusal of the decision reported in (1998) 7 scc184it is evident that in the said case the plaintiffs had raised his cause of action emanating from the alleged breach of covenants on the part of the defendants in terms of the partnership act and he also raised his cause of action on the law of the land. the dispute was with respect to the defendants having remained in possession after the expiry of the lease period and it was held that the plaint was based on a composite cause of action, one part referring to breach of specific covenants of the lease by the erstwhile tenant on account of his failure to deliver the possession to the plaintiff-lessor on expiry of the term of the lease and second part was based on the failure of the defendant-lessee to comply with his statutory obligation under sections 108(q) and 111(a) of t.p.act. thus, it was held that the suit although barred under section 69(2) of the partnership act to the extent of first part of the cause of action was, 7 however, not barred under the second part as there was no contract contrary to section 108(q) and 111(a) of the t.p.act. in the said case it was held that it was not the contention of either side that there was any contract to the contrary which permitted the lessee to continue in possession after the determination of lease by efflux of time even for a day more. therefore, it was held that though the suit was partly barred under section 69(2) of the partnership act in so far as it sought to enforce the obligation of the defendant under the specified section of the contract of lease read with relevant recitals of the plaint but it was partly not barred by section 69(2) of the partnership act as the plaintiff raised part of its cause of action on the land of the law, namely, t.p.act whereunder plaintiff has sought to enforce its statutory right under sections 108(q) and 111(a) of t.p.act. accordingly, it was found that the enforcement of that right has nothing to do with the earlier contract which stood determined by efflux of time. it is abundantly clear that the context of fact or the factual matrix involved in the said case is distinguishable from the facts of the present case and the decision on the facts of the said case is not applicable to the facts of the case in hand. in the decision reported in (1999) 3 scc267the question which had arisen for determination was whether the plaint discloses a cause of action and it was held that the test is to see whether any of the reliefs prayed for could be granted to the appellant if the averments made in the petition are proved to be true. for the purpose of considering a preliminary objection averment made in the petition should be assumed to be proved and the court has to find out whether those averments disclose a cause of action or a triable issue as such. the court cannot go into the facts on the basis of the controversy raised in the counter affidavit. it was held that order 7 rule 11 c.p.c enjoins the court to reject the plaint if it does not disclose a cause of action and there is no question of striking out any portion of the pleading under this rule. in the said case argument was raised that there was no cause of action as some of the allegations were bereft of material facts as such they do not disclose a cause of action. it was held that provision of order 7 rule 11 c.p.c cannot, therefore, be invoked as the court cannot dissect the pleadings into several parts and consider whether each one of them discloses a cause of action and there cannot be a partial rejection of the plaint. it is evident that in the said case the question for determination was whether there was a cause of action. however in the case at hand, as per the pleading of the plaintiffs the essence of 8 cause of action for the plaintiffs is that they are oraon tribals and are governed by law of inheritance and sucession as per the customary law. on perusal of the facts of the case in the decision reported in (2000) 8 scc143it is evident that the contention of the appellant was that the application for succession certificate had been decided on merits, after evidence had been led and that no rights could now be claimed under the will dated 02.04.1985 as the principle of res judicata has become applicable to the matter, in particular explanation viii of section 11 cpc. it was held that sections 373,383(e) and 387 of the indian succession act, 1925 make it clear that the proceedings for grant of succession certificate are summary in nature and that no rights are finally decided in such proceedings. section 387 categorically provides that no decision under part x of the indian succession act adjudicate upon any question of rights between the parties and shall not be a bar in the trial of the same question in any suit or any other proceedings between the same parties. it has been held that section 387 permits filing of the suit or other proceeding even though succession certificate has been granted and merely because issues were raised and/or evidence were led, in respect of an application for succession certificate it does not mean that the findings given thereunder are final and operate as res judicata. it is evident that the said decision is with respect to any question of rights between the parties and such decision shall not bar the trial of the same in any suit or any other proceedings, however, in the case at hand, the question or issue for determination is with respect to plaintiffs' claim of their right on the basis of the fact that they are oraon tribals governed by tribal customary law. from the pleadings it is evident that the material fact required for determination is whether the parties are governed by the customary law of oraon and this issue and fact has been adjudicated and decided by the high court in f.a.no.02/2004 whereby on evaluation and analysis of evidence it has been held that the petitioner was a christian and not governed by customary law of oraon tribe. likewise, the decision reported in (2000) 6 scc301 relied on by the counsel for o.ps./respondents, is also with respect to grant of succession certificate. it was held in the said case that it is the decision on the issue and not mere finding on an incidental question to reach such decision which operates as res judicata. in the aforesaid decision it was observed in para 9:- 9 “ 9. …..................as in our case there was no issue, in the earlier proceedings, whether the uterine brother would be entitled to inherit the estate of the deceased in the proceedings under section 372 of the indian succession act, which is the foundationof challenge by the appelalnt to the claim of the plaintiff as the legal heir of the deceased. even for applying this decision it has to be shown that the claim of the plaintiff to inherit the questioned property in the suit was raised through such an issue in earlier proceedings i.e. in succession certificate proceedings. no such issue could be pointed by the learned counsel for the respondents. “ in the said case it was held that the proceedings in succession certificate are not final and the issuance of succession certificate merely affords full indemnity to the debtor for the payment he makes to the person holding such certificate and the grant of succession certificate is for limited purpose, limited in its sphere, the declaration of title being prima facie, payment tendered is declared to have been made in good faith, leads to only one conclusion that any decision made therein cannot be treated to be final adjudication of the rights of the parties except such declaration being final for the purpose of these proceedings.6. while elaborating further the hon'ble supreme court held that the grant of succession certificate falls under part x of the indian succession act, 1925 and its scope is between sections 370 to 390. further it was held that it is significant to refer section 387. it lays down that any decision made under part x upon any question of right between the parties shall not bar the trial of the same question in any suit or other proceedings between the same parties. consequently the decisions under part x of the act do not come under the rays of explanation viii of section 11 cpc. it is reiterated that the said decision, as noticed and discussed above, cannot be made applicable in the facts of the present case as grant of probate does not fall within chapter x of the indian succession act, 1925. in the decision reported in (2008) 12 scc661the question was what would be the effect of a partition suit which had not been taken to its logical conclusion by getting properties partitioned by metes and bounds and it was held that this question 10 cannot be gone into in a proceeding under order 7 rule 11 cpc. whether any property is left for partition is itself a question of fact and the facts require adjudication. in the said case reference was made to the case of c. natrajan vs. ashim bai, reported in (2007) 12 scale163wherein at para 8 it was held as follows:-“8. ...an application for rejection of the plaint can be filed if the allegations made in the plaint even if given face value and taken to be correct in their entirety appear to be barred by any law. the question as to whether a suit is barred by limitation or not would, therefore, depend upon the facts and circumstances of each case. for the said purpose, only the averments made in the plaint are relevant. at this stage, the court would not be entitled to consider the case of the defence. “ in para 44 of the said judgment reference was made in the case of popat and kotecha property vs. state bank staff association, reported in (2005) 7 scc510 wherein at para 22 and 23 it was held as follows:-“22. there is a distinction between “material facts” and “particulars”.the words “material facts” show that the facts necessary to formulate a complete cause of action must be stated. omission of a single material fact leads to an incomplete cause of action and the statement or plaint becomes bad. the distinction which has been made between “material facts” and “particulars” was brought by scott. l.j.in bruce vs. odhams press ltd., reported in 1936 (1) icb697 23. rule 11 of order 7 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 and also does not say in express terms about the filing of a written statement. instead, the word “shall” is used clearly implying thereby that it casts a duty on the court to perform its obligations in rejecting the plaint when the same 11 is hit by any of the infirmities provided in the four clauses of rule 11, even without intervention of the defendant. in any event, rejection of the plaint under rule 11 does not preclude the plaintiffs from presenting a fresh plaints in terms of rule 13.” in the said case reported in (2008)12 scc661question was regarding the rejection of the plaint on the ground that it was barred by limitation and it was held that question of limitation is a mixed question of law and fact which could not be dismissed under order 7 rule 11(d) cpc without framing an issue of limitation and leading evidence. it was held that order 7 rule 11 cpc has limited application. for applicability thereof it has to be shown that the suit is barred under any law. such conclusion has to be drawn from the averments made in the plaint. what would be relevant for invoking order 7 rule 11(d) cpc is the averment made in the plaint. for that purpose there cannot be any addition or substruction. for the purpose of invoking order 7 rule 11(d) cpc no amount of evidence can be looked into. the issues on merit of the matter would not be within the realm of the court at that stage. all issues shall not be the subject matter of the order under the said provision.7. thus, it is abundantly clear from the elaborated discussions made in the aforesaid decision, that it is the averment in the plaint which has to be looked into to find out whether the suit was barred by law and the court need not look into pleas of the defence. in fact this decision does not help the plaintiffs. on the contrary it supports the contention of the petitioners/defendants.8. in the decision reported in (1994)1 blj669it has been held that proceeding in the probate case if contested does not assume the status of a regular suit. this proposition requires no discussion as this is settled legal position. the decision reported in (2001) 2 bbcj470patna) also requires no discussion as it is well settled that it is not the duty of the probate court to consider the issue relating to title of the testator to the proceeding. the grant of probate or letter of administration is decisive only for the will propounded and the grant of probate or letter of administration does not operate as res-judicata on the question of title in any future suit. in this regard it is pertinent to state that it is the duty of every court including the probate court to come to a finding as to whether the application/case is maintainable or not. 12 in the facts of the present case the question of the testator being a tribal oraon or a christian went deep into the application of section 46 of c.n.t act and thus as to the issue of maintainability. this adjudication of fact operates conclusively as res judicata in all future proceeding between the same parties and such adjudication is also not an adjudication on the question of title.9. in the instant case as per the averment of the plaintiffs it is amply clear that the suit has been instituted by the plaintiffs for declaration of his right,title and interest over the suit land on the foundation of the fact that the parties are oraon and according to oraon customary law they being the nearest male agnates of deceased paulus oraon have succeeded to and inherited his property.10. it is admitted that earlier the plaintiffs' as objectors had challenged the execution of the will by paulus oraon on the ground that under section 46 of the c.n.t act, 1908 the will has to be executed after obtaining the permission of the deputy commissioner. section 46 reads as follows:-“46. restrictions on transfer of their right by raiyat.- (1) no transfer by as raiyat of his right in his holding or any portion thereof.- (a) by mortgage or lease for any period expressed or implied which exceeds or might in any possible event exceed five years, or (b) by sale, gift or any other contract or agreement,shall be valid to any extent; provided further that.- (a) an occupancy-raiyat, who is a member of the scheduled tribes may transfer with the previous sanction of the deputy commissioner his right in his holding or a portion of his holding by sale, exchange, gift or will to another person, who is a member of the scheduled tribes and, who is a resident within the local limits of the area of the police station within which the holding is situated. (b)---------- (c)--------------------------- (d)---------------------------- (2)--------------------------- (3) no transfer in contravention of sub-section(1), shall be registered or shall be in any way 13 recognised as valid by any court,whatever in exercise, of civil, criminal or revenue jurisdiction.”11. thus, on plain reading of section 46 of the c.n.t act and the provisions contained therein it is evident that a scheduled tribe raiyat cannot transfer his right,title or interest in the land by will or any other mode except after obtaining the permission of the deputy commissioner. in this context it is not disputed that plaintiffs- opposite parties had filed an objection in terms of the provision of section 46 of the c.n.t act and the trial court had dismissed the probate title suit. thereafter the petitioners had preferred an appeal before the high court and this high court in f.a.no.02/2004, has clearly held that the testator was a christian and the parties are not governed by the tribal customary law and section 46 of the c.n.t. act has no application, accordingly, the probate was granted. the o.p./petitioners had preferred s.l.p.no.27123/2013 before the supreme court against the findings and judgment of the high court. hon'ble supreme court dismissed the s.l.p as withdrawn without interfering with the finding of the learned single judge. the plaintiffs, i.e., the opposite parties/objectors in the probate case, have instituted the present suit for partition of the same suit property claiming their right on the basis of the customary law, that they being the nearest male agnates of late paulus oraon have succeeded to the property as per customary law of inheritance and succession. the application under order 7 rule 11 cpc was filed by the petitioners claiming that the suit is barred by principle of res judicata to which a rejoinder was filed by the plaintiffs stating that the probate court is not competent to decide the question of title. it would be evident that the lower appellate court without assigning any reason and without application of judicial mind has dismissed the application under order 7 rule 11 cpc only on the basis that as per office report the plaint is in order.12. at this juncture it is necessary to take notice of the fact that on an application for grant of probate with respect to a will, a duty is cast and it is incumbent upon the court to examine the question as to whether the application is maintainable or not especially in the case of tribals as it requires adjudication under section 46 and section 46(3) of the cnt act as enumerated above. section 46(3) creates a bar on any court in the exercise of civil, criminal or revenue jurisdiction from taking cognizance of 14 any deed of transfer made in violation of section 46 of the cnt act. in view of the mandate of law as per provision of section 46 if the will was hit by the provision of section 46 of the c.n.t act application of grant of probate was fit to be rejected, however, as noticed and discussed above, the application was held to be maintainable by the high court, on evaluation of the documents and evidence adduced an adjudication was made that the testator was a christian and not an oraon, accordingly, the application for grant of probate was allowed. the material fact or question for determination whether the testator was an oraon or a christian has been adjudicated and decided and the said finding has been affirmed upto the supreme court. to reiterate as noticed above, the plaintiffs have filed the suit on the ground that the parties including the testator of the will are oraon i.e. the scheduled tribe as they are governed by the customary tribal law. thus, the suit when read in its entirety reveals that foundation or the cause of action of the plaintiffs or the pivotal issue giving rise to the cause of action is primarily the fact of inheritance according to oraon customary law and this issue or fact is not incidental but the foundation of which has attained finality and the same question or fact cannot be reopened between the same parties. in the emergent fact, the ratio laid in the decision reported in (2001) 2 bbcj470(patna) is not applicable to the facts of the instant case. before parting it will be relevant to refer to the decision reported in (1977) 4 scc467which has been relied on by the petitioners wherein it has been succinctly observed and held held in para 5, as follows-“5. we have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and repentantly 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 vii, rule 11 c.p.c, taking care to see that the ground mentioned 15 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 x, c.p.c. 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, (ch.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.”13. thus, in the present case though reliefs have been claimed for confirmation of possession or recovery of possession and for restraining the defendants from interfering with the possession but the foundational fact of the plaintiff's case is that the parties are oraon governed by customary law of inheritance however from the plaint it is evident that the cause of action is a camouflage by clever drafting in order to put a veil on the cardinal issue or fact which needs to be determined and adjudicated upon by the trial court before it declares the right, title and interest of the party. a negative finding of fact that the defendants arenot oraon will obviously result in dismissal of suit and a reverse finding on this issue will come in conflict with the judgment of this court in f.a.no.02/2004 affirmed by hon'ble supreme court. the issue and fact that the testator is a christian and the opposite parties are not tribal has attained finality and such clever drafting creating an illusion about the cause of action should not be permitted in law.14. thus, in view of the discussions made above and the judicial pronouncements it is well settled that the trial court has to look into the documents and the plaint shall be read in its entirety for passing necessary order. at the cost of repetition, as noticed and discussed above, it is evident that the plaint is barred under law in terms of order 7 rule 11(d) c.p.c as it is hit by the principle of res judicata as enshrined under explanation viii of section 11 cpc. this court has no hesitation in holding that the trial court has passed a cryptic and non-speaking order in a mechanical manner without application of judicial mind. accordingly, the impugned order is hereby set aside. 16 15. in view of the discussions made above and the settled legal position the application is allowed and the impugned order is set aside and the plaint filed in t.s.no.156/2014 stands rejected as barred by order 7 rule 11(d) cpc. the plaintiffs- opposite parties shall deposit a cost of rs.10,000/- to be paid to the petitioners/defendants for the anguish and mental agony they have been put to by such frivolous and vexatious litigation. (amitav k. gupta, j) biswas.
Judgment:

1 IN THE HIGH COURT OF JHARKHAND AT RANCHI ---- Civil Revision No. 11 of 2015 ----- In the matter of application under section 115 of the Code of Civil Procedure. ----- 1. Marium Tigga @ Marium Raha, W/o Sri Sarju Kumar raha.

2. Sanjeev Kumar Raha 3. Sandeep Kumar Raha; both 2 and 3 sons of Sri Sarju Kumar Raha. All residents of village Dibdih P.O. And P.S. Argora, District- Ranchii, Jharkhand. .... Petitioner. -Versus- 1. Michel @ Mikal S/o Late Patras Oraon 2. Sanjay Tigga 3. Ajay Tigga 4. Manoj Tigga 5. Lalit Tigga. All 2 to 5 sons of late Daud Tigga; all residents of village Dibdih, P.O. And P.S. Argora, District-Ranchi. 6.Deputy Commissioner,Ranchi, P.O.P.S. and Dist-Ranchi ….... Opp. Parties. ------ CORAM: HON'BLE MR. JUSTICE AMITAV K. GUPTA ----- For the Petitioner : M/s. Ayush Aditya & Shashank Shekhar,Advocates. For the Opp-parties:M/s.Ajit Kumar, Sr. Advocate & Syed Ramiz Zafar, Advocate. ----- C.A.V. On 26.08.2015 Pronounced on 04.09.2015 ---- Amitav K. Gupta,J: 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 2 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. 3 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.

3. 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 SCC785wherein 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 4 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 SCC557 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 5 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 SCC467 (1998) 2 SCC70 (2011) 6 SCC456and (2010) 4 SCC785 4. 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 SCC184and (1999) 3 SCC267 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) BBCJ2 470. Learned counsel has also relied on the decision reported in (1994) 1 BLJ669and 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 SCC301and submitted that Probate Court is a court of limited 6 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 SCC143and submitted that the ratio laid down has been affirmed in the aforesaid case.

5. On the submissions and argument propounded by the counsels it is pertinent to refer to and discuss the decisions relied on by the learned counsel for the opposite parties/respondents,for appreciating the contention that the findings recorded in a summary proceeding are not a bar for institution of a subsequent suit on same facts between the same parties. On perusal of the decision reported in (1998) 7 SCC184it is evident that in the said case the plaintiffs had raised his cause of action emanating from the alleged breach of covenants on the part of the defendants in terms of the Partnership Act and he also raised his cause of action on the law of the land. The dispute was with respect to the defendants having remained in possession after the expiry of the lease period and it was held that the plaint was based on a composite cause of action, one part referring to breach of specific covenants of the lease by the erstwhile tenant on account of his failure to deliver the possession to the plaintiff-lessor on expiry of the term of the lease and second part was based on the failure of the defendant-lessee to comply with his statutory obligation under Sections 108(q) and 111(a) of T.P.Act. Thus, it was held that the suit although barred under Section 69(2) of the Partnership Act to the extent of first part of the cause of action was, 7 however, not barred under the second part as there was no contract contrary to Section 108(q) and 111(a) of the T.P.Act. In the said case it was held that it was not the contention of either side that there was any contract to the contrary which permitted the lessee to continue in possession after the determination of lease by efflux of time even for a day more. Therefore, it was held that though the suit was partly barred under Section 69(2) of the Partnership Act in so far as it sought to enforce the obligation of the defendant under the specified section of the contract of lease read with relevant recitals of the plaint but it was partly not barred by Section 69(2) of the Partnership Act as the plaintiff raised part of its cause of action on the land of the law, namely, T.P.Act whereunder plaintiff has sought to enforce its statutory right under Sections 108(q) and 111(a) Of T.P.Act. Accordingly, it was found that the enforcement of that right has nothing to do with the earlier contract which stood determined by efflux of time. It is abundantly clear that the context of fact or the factual matrix involved in the said case is distinguishable from the facts of the present case and the decision on the facts of the said case is not applicable to the facts of the case in hand. In the decision reported in (1999) 3 SCC267the question which had arisen for determination was whether the plaint discloses a cause of action and it was held that the test is to see whether any of the reliefs prayed for could be granted to the appellant if the averments made in the petition are proved to be true. For the purpose of considering a preliminary objection averment made in the petition should be assumed to be proved and the court has to find out whether those averments disclose a cause of action or a triable issue as such. The court cannot go into the facts on the basis of the controversy raised in the counter affidavit. It was held that Order 7 Rule 11 C.P.C enjoins the court to reject the plaint if it does not disclose a cause of action and there is no question of striking out any portion of the pleading under this Rule. In the said case argument was raised that there was no cause of action as some of the allegations were bereft of material facts as such they do not disclose a cause of action. It was held that provision of Order 7 Rule 11 C.P.C cannot, therefore, be invoked as the court cannot dissect the pleadings into several parts and consider whether each one of them discloses a cause of action and there cannot be a partial rejection of the plaint. It is evident that in the said case the question for determination was whether there was a cause of action. However in the case at hand, as per the pleading of the plaintiffs the essence of 8 cause of action for the plaintiffs is that they are Oraon tribals and are governed by law of inheritance and sucession as per the customary law. On perusal of the facts of the case in the decision reported in (2000) 8 SCC143it is evident that the contention of the appellant was that the application for succession certificate had been decided on merits, after evidence had been led and that no rights could now be claimed under the will dated 02.04.1985 as the principle of res judicata has become applicable to the matter, in particular Explanation VIII of Section 11 CPC. It was held that Sections 373,383(e) and 387 of the Indian Succession Act, 1925 make it clear that the proceedings for grant of succession certificate are summary in nature and that no rights are finally decided in such proceedings. Section 387 categorically provides that no decision under Part X of the Indian Succession Act adjudicate upon any question of rights between the parties and shall not be a bar in the trial of the same question in any suit or any other proceedings between the same parties. It has been held that Section 387 permits filing of the suit or other proceeding even though succession certificate has been granted and merely because issues were raised and/or evidence were led, in respect of an application for succession certificate it does not mean that the findings given thereunder are final and operate as res judicata. It is evident that the said decision is with respect to any question of rights between the parties and such decision shall not bar the trial of the same in any suit or any other proceedings, however, in the case at hand, the question or issue for determination is with respect to plaintiffs' claim of their right on the basis of the fact that they are Oraon tribals governed by tribal customary law. From the pleadings it is evident that the material fact required for determination is whether the parties are governed by the customary law of Oraon and this issue and fact has been adjudicated and decided by the High Court in F.A.NO.02/2004 whereby on evaluation and analysis of evidence it has been held that the petitioner was a Christian and not governed by customary law of Oraon tribe. Likewise, the decision reported in (2000) 6 SCC301 relied on by the counsel for O.Ps./respondents, is also with respect to grant of succession certificate. It was held in the said case that it is the decision on the issue and not mere finding on an incidental question to reach such decision which operates as res judicata. In the aforesaid decision it was observed in para 9:- 9 “ 9. …..................as in our case there was no issue, in the earlier proceedings, whether the uterine brother would be entitled to inherit the estate of the deceased in the proceedings under Section 372 of the Indian Succession Act, which is the foundationof challenge by the appelalnt to the claim of the plaintiff as the legal heir of the deceased. Even for applying this decision it has to be shown that the claim of the plaintiff to inherit the questioned property in the suit was raised through such an issue in earlier proceedings i.e. in succession certificate proceedings. No such issue could be pointed by the learned counsel for the respondents. “ In the said case it was held that the proceedings in succession certificate are not final and the issuance of succession certificate merely affords full indemnity to the debtor for the payment he makes to the person holding such certificate and the grant of succession certificate is for limited purpose, limited in its sphere, the declaration of title being prima facie, payment tendered is declared to have been made in good faith, leads to only one conclusion that any decision made therein cannot be treated to be final adjudication of the rights of the parties except such declaration being final for the purpose of these proceedings.

6. While elaborating further the Hon'ble Supreme Court held that the grant of succession certificate falls under Part X of the Indian Succession Act, 1925 and its scope is between Sections 370 to 390. Further it was held that it is significant to refer Section 387. It lays down that any decision made under Part X upon any question of right between the parties shall not bar the trial of the same question in any suit or other proceedings between the same parties. Consequently the decisions under Part X of the Act do not come under the rays of Explanation VIII of Section 11 CPC. It is reiterated that the said decision, as noticed and discussed above, cannot be made applicable in the facts of the present case as grant of probate does not fall within Chapter X of the Indian Succession Act, 1925. In the decision reported in (2008) 12 SCC661the question was what would be the effect of a partition suit which had not been taken to its logical conclusion by getting properties partitioned by metes and bounds and it was held that this question 10 cannot be gone into in a proceeding under Order 7 Rule 11 CPC. Whether any property is left for partition is itself a question of fact and the facts require adjudication. In the said case reference was made to the case of C. Natrajan vs. Ashim Bai, reported in (2007) 12 SCALE163wherein at para 8 it was held as follows:-

“8. ...An application for rejection of the plaint can be filed if the allegations made in the plaint even if given face value and taken to be correct in their entirety appear to be barred by any law. The question as to whether a suit is barred by limitation or not would, therefore, depend upon the facts and circumstances of each case. For the said purpose, only the averments made in the plaint are relevant. At this stage, the court would not be entitled to consider the case of the defence. “ In para 44 of the said judgment reference was made in the case of Popat and Kotecha Property vs. State Bank Staff Association, reported in (2005) 7 SCC510 wherein at para 22 and 23 it was held as follows:-

“22. There is a distinction between “material facts” and “particulars”.The words “material facts” show that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement or plaint becomes bad. The distinction which has been made between “material facts” and “particulars” was brought by Scott. L.J.

In Bruce Vs. Odhams Press Ltd., reported in 1936 (1) ICB697 23. Rule 11 of Order 7 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 and also does not say in express terms about the filing of a written statement. Instead, the word “shall” is used clearly implying thereby that it casts a duty on the court to perform its obligations in rejecting the plaint when the same 11 is hit by any of the infirmities provided in the four clauses of Rule 11, even without intervention of the defendant. In any event, rejection of the plaint under Rule 11 does not preclude the plaintiffs from presenting a fresh plaints in terms of Rule 13.” In the said case reported in (2008)12 SCC661question was regarding the rejection of the plaint on the ground that it was barred by limitation and it was held that question of limitation is a mixed question of law and fact which could not be dismissed under Order 7 Rule 11(d) CPC without framing an issue of limitation and leading evidence. It was held that Order 7 Rule 11 CPC has limited application. For applicability thereof it has to be shown that the suit is barred under any law. Such conclusion has to be drawn from the averments made in the plaint. What would be relevant for invoking Order 7 Rule 11(d) CPC is the averment made in the plaint. For that purpose there cannot be any addition or substruction. For the purpose of invoking Order 7 Rule 11(d) CPC no amount of evidence can be looked into. The issues on merit of the matter would not be within the realm of the court at that stage. All issues shall not be the subject matter of the order under the said provision.

7. Thus, it is abundantly clear from the elaborated discussions made in the aforesaid decision, that it is the averment in the plaint which has to be looked into to find out whether the suit was barred by law and the court need not look into pleas of the defence. In fact this decision does not help the plaintiffs. On the contrary it supports the contention of the petitioners/defendants.

8. In the decision reported in (1994)1 BLJ669it has been held that proceeding in the Probate Case if contested does not assume the status of a regular suit. This proposition requires no discussion as this is settled legal position. The decision reported in (2001) 2 BBCJ470Patna) also requires no discussion as it is well settled that it is not the duty of the Probate Court to consider the issue relating to title of the testator to the proceeding. The grant of probate or letter of administration is decisive only for the will propounded and the grant of probate or letter of administration does not operate as res-judicata on the question of title in any future suit. In this regard it is pertinent to state that it is the duty of every court including the Probate Court to come to a finding as to whether the application/case is maintainable or not. 12 In the facts of the present case the question of the testator being a tribal Oraon or a Christian went deep into the application of Section 46 of C.N.T Act and thus as to the issue of maintainability. This adjudication of fact operates conclusively as res judicata in all future proceeding between the same parties and such adjudication is also not an adjudication on the question of title.

9. In the instant case as per the averment of the plaintiffs it is amply clear that the suit has been instituted by the plaintiffs for declaration of his right,title and interest over the suit land on the foundation of the fact that the parties are Oraon and according to Oraon Customary law they being the nearest male agnates of deceased Paulus Oraon have succeeded to and inherited his property.

10. It is admitted that earlier the plaintiffs' as objectors had challenged the execution of the will by Paulus Oraon on the ground that under Section 46 of the C.N.T Act, 1908 the will has to be executed after obtaining the permission of the Deputy Commissioner. Section 46 reads as follows:-

“46. Restrictions on transfer of their right by raiyat.- (1) No transfer by as Raiyat of his right in his holding or any portion thereof.- (a) by mortgage or lease for any period expressed or implied which exceeds or might in any possible event exceed five years, or (b) by sale, gift or any other contract or agreement,shall be valid to any extent; Provided further that.- (a) an occupancy-Raiyat, who is a member of the Scheduled Tribes may transfer with the previous sanction of the Deputy Commissioner his right in his holding or a portion of his holding by sale, exchange, gift or will to another person, who is a member of the Scheduled Tribes and, who is a resident within the local limits of the area of the police station within which the holding is situated. (b)---------- (c)--------------------------- (d)---------------------------- (2)--------------------------- (3) No transfer in contravention of sub-section(1), shall be registered or shall be in any way 13 recognised as valid by any Court,whatever in exercise, of civil, criminal or revenue jurisdiction.”

11. Thus, on plain reading of Section 46 of the C.N.T Act and the provisions contained therein it is evident that a Scheduled Tribe raiyat cannot transfer his right,title or interest in the land by will or any other mode except after obtaining the permission of the Deputy Commissioner. In this context it is not disputed that plaintiffs- Opposite parties had filed an objection in terms of the provision of Section 46 of the C.N.T Act and the trial court had dismissed the Probate Title Suit. Thereafter the petitioners had preferred an appeal before the High Court and this High Court in F.A.NO.02/2004, has clearly held that the testator was a Christian and the parties are not governed by the tribal customary law and Section 46 of the C.N.T. Act has no application, accordingly, the Probate was granted. The O.P./petitioners had preferred S.L.P.NO.27123/2013 before the Supreme Court against the findings and judgment of the High Court. Hon'ble Supreme Court dismissed the S.L.P as withdrawn without interfering with the finding of the learned Single Judge. The plaintiffs, i.e., the opposite parties/objectors in the Probate Case, have instituted the present suit for partition of the same suit property claiming their right on the basis of the customary law, that they being the nearest male agnates of late Paulus Oraon have succeeded to the property as per customary law of inheritance and succession. The application under Order 7 Rule 11 CPC was filed by the petitioners claiming that the suit is barred by principle of res judicata to which a rejoinder was filed by the plaintiffs stating that the Probate Court is not competent to decide the question of title. It would be evident that the lower appellate court without assigning any reason and without application of judicial mind has dismissed the application under Order 7 Rule 11 CPC only on the basis that as per office report the plaint is in order.

12. At this juncture it is necessary to take notice of the fact that on an application for grant of probate with respect to a will, a duty is cast and it is incumbent upon the court to examine the question as to whether the application is maintainable or not especially in the case of tribals as it requires adjudication under Section 46 and Section 46(3) of the CNT Act as enumerated above. Section 46(3) creates a bar on any court in the exercise of civil, criminal or revenue jurisdiction from taking cognizance of 14 any deed of transfer made in violation of Section 46 of the CNT Act. In view of the mandate of law as per provision of Section 46 if the will was hit by the provision of Section 46 of the C.N.T Act application of grant of probate was fit to be rejected, however, as noticed and discussed above, the application was held to be maintainable by the High Court, on evaluation of the documents and evidence adduced an adjudication was made that the testator was a Christian and not an Oraon, accordingly, the application for grant of probate was allowed. The material fact or question for determination whether the testator was an Oraon or a Christian has been adjudicated and decided and the said finding has been affirmed upto the Supreme Court. To reiterate as noticed above, the plaintiffs have filed the suit on the ground that the parties including the testator of the will are Oraon i.e. the Scheduled Tribe as they are governed by the customary tribal law. Thus, the suit when read in its entirety reveals that foundation or the cause of action of the plaintiffs or the pivotal issue giving rise to the cause of action is primarily the fact of inheritance according to Oraon customary law and this issue or fact is not incidental but the foundation of which has attained finality and the same question or fact cannot be reopened between the same parties. In the emergent fact, the ratio laid in the decision reported in (2001) 2 BBCJ470(Patna) is not applicable to the facts of the instant case. Before parting it will be relevant to refer to the decision reported in (1977) 4 SCC467which has been relied on by the petitioners wherein it has been succinctly observed and held held in para 5, as follows-

“5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and repentantly 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 VII, Rule 11 C.P.C, taking care to see that the ground mentioned 15 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 X, C.P.C. 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, (Ch.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.”

13. Thus, in the present case though reliefs have been claimed for confirmation of possession or recovery of possession and for restraining the defendants from interfering with the possession but the foundational fact of the plaintiff's case is that the parties are Oraon governed by customary law of inheritance however from the plaint it is evident that the cause of action is a camouflage by clever drafting in order to put a veil on the cardinal issue or fact which needs to be determined and adjudicated upon by the trial court before it declares the right, title and interest of the party. A negative finding of fact that the defendants arenot Oraon will obviously result in dismissal of suit and a reverse finding on this issue will come in conflict with the judgment of this Court in F.A.NO.02/2004 affirmed by Hon'ble Supreme Court. The issue and fact that the testator is a Christian and the opposite parties are not tribal has attained finality and such clever drafting creating an illusion about the cause of action should not be permitted in law.

14. Thus, in view of the discussions made above and the judicial pronouncements it is well settled that the trial court has to look into the documents and the plaint shall be read in its entirety for passing necessary order. At the cost of repetition, as noticed and discussed above, it is evident that the plaint is barred under law in terms of Order 7 Rule 11(d) C.P.C as it is hit by the principle of res judicata as enshrined under Explanation VIII of Section 11 CPC. This Court has no hesitation in holding that the trial court has passed a cryptic and non-speaking order in a mechanical manner without application of judicial mind. Accordingly, the impugned order is hereby set aside. 16 15. In view of the discussions made above and the settled legal position the application is allowed and the impugned order is set aside and the plaint filed in T.S.NO.156/2014 stands rejected as barred by Order 7 Rule 11(d) CPC. The plaintiffs- opposite parties shall deposit a cost of Rs.10,000/- to be paid to the petitioners/defendants for the anguish and mental agony they have been put to by such frivolous and vexatious litigation. (Amitav K. Gupta, J) Biswas.