' SADIQ HUSSAIN BHATTI, J.---The applicants are aggrieved by the Judgment dated 18-4-2011 and decree dated 2-6-2011, passed in Civil Appeal No, 278 of 2009, whereby the said Appeal was dismissed and the Order dated 21-11-2009 passed by the learned V Senior Civil Judge, Hyderabad in F.C. Suit No,6 of 2009, whereby the learned trial Court rejected the plaint under Order VII, Rule 11, C.P.C., was maintained.
2. Brief facts of the case are that the applicants filed F.C. Suit No,6 of 2009 with the following prayer:--
(a) That it be declared that the issuance of notice in names of the plaintiff No,1 and start of proceedings without any notice against the remaining plaintiffs after 20 years is illegal mala fide void against the law and Rules and is in violation of the principles of natural justice and be declared as such.
(b) That permanent injunction be issued against the defendants restraining them from acting on the basis of notice dated 18-11-2008 and all subsequent actions based on notice dated 18-11-2008 or token any action except by due process of law.
(c) That the defendants be saddled with cost of the suit.
(d) Any other relief as deemed fit in the circumstances be granted."
' As per the averments made in the plaint of the above suit, the applicants/plaintiffs asserted that they are owners agricultural land in Deh Jakhri Jagir and Deh Pari, Tapo A. Sultanpur, Taluka and District Matyari which was purchased by the applicants/plaintiffs and as well as their predecessor in the year 1992 and are in peaceful possession of the land since then. The respective share of the applicants is given at page 2 of the impugned judgment (page 21 of the file). The respondent No, 5 is owner of the adjacent land and had purchased he same before of the land by the applicants and their predecessor and he never objected to the boundaries of their respective lands. Recently, as per the plaint, respondent No,5 joined hands with revenue authorities and started disputing the boundaries of the lands and alleging that the applicants have encroached upon his land. The official respondents issued a notice to the applicant No,1 for his appearance before respondent No, 3 on 18-11-2008. The applicant No,1 appeared before the respondent No,3 and apprised him of the factual position and stated that there other khatedars also who are in peaceful possession of their respective lands. However, as per the applicant No,1, the respondent No,3 disclosed to him that he (respondent No,3) is under great pressure from high ups and will submit a false report. Therefore, the applicants filed the above suit with the above quoted prayer.
4. After service of summons, respondent No, 5 appeared and filed an application under Order VII, Rule 11, C.P.C. For rejection of the plaint on the ground that the suit is barred under section 42 of the Specific Relief Act. Thereafter, he also filed his written statement denying the averments made by the applicants in the suit. The learned trial Court, after hearing the parties on the application under Order VII, Rule 11, C.P.C., rejected the plaint vide order dated 21-11-2009, on the ground that the same is barred under section 42 of the Specific Relief Act. The applicants, feeling aggrieved by the order dated 21-11-2009, filed Civil Appeal No,278 of 2009, which was also dismissed by the learned Appellate Court vide its Judgment dated 28-11-2011. Hence, this Revision Application.
5. Learned counsel for the applicants submitted that while considering an application under Order VII, Rule 11, C.P.C., only the averments made in the plain of the suit are to be considered and it is to be presumed that the same are correct. He submitted that issuance of the notice and all actions taken subsequent thereto are mala fide and in such cases civil courts have the jurisdiction to decide the same. It was further contended that notice was issued only to applicant No,1 and no notice was issued to the other khatedars as such mandatory provision of Rule 67-A were not complied with. He submitted that the applicants are admittedly in possession of the suit land and are paying the land revenue etc. Regularly to the Government, therefore, the impugned notice was illegally issued at the instance of the respondent No,5 for demarcation of the boundaries of the suit land. He, therefore, prayed that the judgment/order of the Courts below may be set aside and the suit may be decreed in favour of the applicants.
6. Learned counsel for the respondent No,5, on the other hand, submitted that there are concurrent findings against the applicants and the same cannot be disturbed in a revision application unless it is shown that the same are result of misreading or non-reading of the evidence. He submitted that there is no dispute about the ownership of the applicants in respect of the lands mentioned in the plaint of the suit filed by them. What is in dispute is that some land belonging to respondent No,5 has been encroached upon by them.
7. Learned A.A.-G. Also fully supported the impugned Judgment and adopted the arguments of the learned counsel for respondent No,5.
8. I have heard the learned counsel for the parties and have perused the record of the case with their assistance.
9. A perusal of the record shows that the respondent No,5 is not disputing the ownership of the applicants in respect of the survey numbers mentioned in the memo of appeal or the plaint of the suit filed by the applicant. All that is in dispute is that some land which admittedly belongs to the respondent, other than the survey numbers shown in the memo of appeal, has been encroached upon by the applicants. In order to determine whether such claim of the respondent No,5 is correct or not a notice was issued to the applicants for re-demarcation of the respective boundaries of the land belonging to the applicants and the lands belonging to the respondent No,5. If no land of the respondent No,5 has been usurped by the applicants then there is no need to fear as the demarcation would clarify the matter. If, however, theft is any cause of action available to the applicants after the demarcation only then they can approach the concerned Court. At this stage, it would not be expedient to throttle the proceedings undertaken in pursuance of the notice issued to the applicants.
10. The learned trial Court, while dismissing the suit of the applicants, held as under:-- "Plaint shows that the plaintiffs have made base of the suit on notice dated 18-11-2008 the said notice is annexed with plaint. Perusal of said notice shows that the Mukhtiarkar (Revenue) on the application of defendant No, 5 issued notice under Rule 67-A(4)(c) of Land Revenue Act, for appearance of plaintiffs on 2-12-2008 for the purpose of conducting demarcation of the boundaries of the lands in their presence. This notice does not show any threat to or denial of the legal right or title of the plaintiffs in the suit land. Hence, in my humble view the suit of plaintiffs is barred under section 42 of Specific Relief Act and so also the said notice does not give any cause of action to plaintiffs to file this suit as such the plaint does not disclose any cause of action.
Under the provisions of sections 27 and 30 of Land Revenue Laws [Act], the Revenue authorities are empowered to conduct enquiry and enter upon any lands for purpose of measurement and demarcation, which is purely within the jurisdiction and competency of Revenue authorities. I, therefore, find that the suit of the plaintiffs is barred under section 42 of the Specific Relief Act, section 172 of Land Revenue Act and that the plaint does not disclose cause of action.Under the above circumstances, I reject the plaint under Order VII, Rule 11, C.P.C. And allow the application accordingly. There will be no order as to costs."
11. The above quoted findings of the learned trial Court were upheld by the learned Appellate Court as it was also of the opinion that the impugned Notice does not show any threat or denial of the legal right or title to the appellants/plaintiffs and the learned trial Court has rightly and properly held the suit of the appellants/plaintiffs to be barred under section 42 of the Specific Relief Act.
Accordingly, in view of the fact that the appellants were unable to point out any illegality or irregularity being committed by the trial Court while passing the impugned order dated 23-11-2009, dismissed the appeal.
12. There are concurrent findings of the two Courts below against the applicants and I am also of the view that the suit of the applicants/plaintiffs was rightly dismissed under Order VII, Rule 11, C.P.C.
As it was hit by provisions of section 42 of the Specific Relief Act as well as it did not show any cause of action as the impugned notice does not show any threat or denial of the right of the applicants.
13. In view of the above discussion, I find no merit in this revision application which is dismissed.