Or.7 rule 11 CPC – Right of pre-emption – No cause of action – plaint is liable to be rejected – as there is no condition in the partition deed not to sale to thrid parties nor there is a pleading in the plaint that there is an obligation in respect of pre-emption rights of plaintiff. in the absence of corelative duty which can be enforceable in law under partition deed – no party of that document can claim pre-emption rights . an accepted/admitted the Memorandum of Partition document does not give any right of pre-emption to the first respondent. There is also no pleading to the said effect in the plaint – Hence the ownership of the second respondent and his right to sell the property in terms of the Memorandum of Partition are and would be undisputed legal rights under the Transfer of Property Act,1882. There was no restraint to exercise of this right vested with the second respondent by contract or under any statute. This is not alleged and adverted to in the plaint. It is also an undisputed position that Sunil Kumar Mehta who was on partition allotted the third portion of the property, has sold and transferred his portion to a third party vide registered sale deed dated 15.10.2009. The said sale deed is not under challenge and was not questioned by the first respondent. we fail to understand how and on what basis, the first respondent claims right of pre-emption or repurchase of the portion that was allotted to the second respondent in terms of amicable division as evidenced by Memorandum of Partition dated 04.12.2008. For a right to exist, there must be a corelative duty which can be enforced in a law suit. A right cannot exist without an enforceable duty. Ownership means a bundle of rights which would normally include the right to exclude and transfer the property in a manner one wants, subject to contractual obligations as agreed or statutory restrictions imposed on the owner. In the present case, the pleadings fail to establish violation of a statutory right or breach of a contractual obligation which creates an enforceable right in the court of law. In the absence of any such right or even a claim, the plaint would not disclose cause of action. In T. Arivandanam v. T.V. Satyapal and Another 3 this Court has held that if the plaint is manifestly vexatious, meritless and groundless, in the sense that it does not disclose a clear right to sue, it would be right and proper to exercise power under Order VII Rule 11 of the Code of Civil Procedure, 1908 (�Code�, for short). A mere contemplation or possibility that a right may be infringed without any legitimate basis for that right, would not be sufficient to hold that the plaint discloses a cause of action.

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6760 OF 2019
(ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO. 9233 OF 2017)
COLONEL SHRAWAN KUMAR JAIPURIYAR
@ SARWAN KUMAR JAIPURIYAR �.. APPLICANT(S)
VERSUS
KRISHNA NANDAN SINGH AND ANOTHER �..RESPONDENT(S)
O R D E R
Leave granted.

  1. In spite of second call, there is no appearance on behalf of Krishna
    Nandan Singh, the plaintiff, the first respondent before us.
  2. The first respondent has filed a civil suit T.S. No. 97/16 against Sarwan
    Kumar Jaipuriyar, the appellant before us and Anil Kumar, the second
    respondent before us. The second respondent is the brother of the first
    respondent.
  3. The plaint admits that there was amicable division and partition of
    property bearing Holding no. 163 old Holding no. 42, Ward No. 10 (New)
    7 (Old), Mahal No.1, Mohalla- Mainpura, P.S. Danapur, Patna amongst

2
respondent no.1, respondent no.2 and their brother Sunil Kumar Mehta.
This partition was evidenced by recording Memorandum of Partition
dated 04.12.2008, which was signed and executed by the three
brothers.

  1. The factum of partition and the partition deed itself is not challenged and
    questioned in the civil suit preferred by the first respondent. In fact, Sunil
    Kumar Mehta, the third brother is not even a party to the suit. The suit
    also acknowledges that the second respondent was allotted and became
    the owner of south-eastern part of the aforesaid holding whereas the first
    respondent stands recorded as the owner of another portion and that the
    first respondent and second respondent have been paying taxes for the
    respective portions to Nagar Parishad under receipts.
  2. The grievance and the cause of action as pleaded in the civil suit by the
    first respondent is that the second respondent had sold the portion
    allotted to him on partition to the appellant vide registered sale deed
    dated 25.01.2016. This sale deed, it is claimed, is void ab initio and
    inoperative as there is every chance that the privacy of the first
    respondent�s family would be affected and destroyed. It is pleaded that
    the first respondent has got a right and authority to repurchase the

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portion allotted to the second respondent under the partition evidenced
by the Memorandum of Partition dated 04.12.2008.

  1. The Memorandum of Partition dated 04.12.2008 which is placed on
    record and an accepted/admitted document does not give any right of
    pre-emption to the first respondent. There is also no pleading to the said
    effect in the plaint. As the partition and the Memorandum of Partition are
    not denied or challenged, ownership of the second respondent and his
    right to sell the property in terms of the Memorandum of Partition are
    and would be undisputed legal rights under the Transfer of Property Act,
  2. There was no restraint to exercise of this right vested with the
    second respondent by contract or under any statute. This is not alleged
    and adverted to in the plaint. It is also an undisputed position that Sunil
    Kumar Mehta who was on partition allotted the third portion of the
    property, has sold and transferred his portion to a third party vide
    registered sale deed dated 15.10.2009. The said sale deed is not under
    challenge and was not questioned by the first respondent.
  3. The aforesaid factual and legal position being admitted and accepted in
    the plaint, we fail to understand how and on what basis, the first
    respondent claims right of pre-emption or repurchase of the portion that
    was allotted to the second respondent in terms of amicable division as
    evidenced by Memorandum of Partition dated 04.12.2008. On the

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aforesaid partition, the second respondent became the sole and
exclusive owner of the portion allotted to him, a legal position, which is
not even controverted and denied by the first respondent in the plaint.

  1. In the aforesaid background, it is to be held that the plaint does not
    disclose any cause of action for the relief prayed, that is, a direction to
    the second respondent to execute and register a sale deed in favour of
    the first respondent and to put the first respondent in possession. There
    does not exist any legal right which the plaintiff or the first respondent is
    entitled to invoke and enforce. For a right to exist, there must be a
    corelative duty which can be enforced in a law suit. A right cannot exist
    without an enforceable duty. Ownership means a bundle of rights which
    would normally include the right to exclude and transfer the property in a
    manner one wants, subject to contractual obligations as agreed or
    statutory restrictions imposed on the owner. In the present case, the
    pleadings fail to establish violation of a statutory right or breach of a
    contractual obligation which creates an enforceable right in the court of
    law. In the absence of any such right or even a claim, the plaint would
    not disclose cause of action.
  2. This Court in Church of Christ Charitable Trust and Educational
    Society Represented by its Chairman v. Ponniamman Educational

5
Trust Represented by its Chairman/ Managing Trustee 1
has referred
to the earlier judgment of this Court in A.B.C. Laminart Pvt. Ltd. and
Another v. A.P. Agencies, Salem 2
to explain that the cause of action
means every fact which, if traversed, would be necessary for the plaintiff
to prove in order to seek a decree and relief against the defendant.
Cause of action requires infringement of the right or breach of an
obligation and comprises of all material facts on which the right and
claim for breach is founded, that is, some act done by the defendant to
infringe and violate the right or breach an obligation. In T. Arivandanam
v. T.V. Satyapal and Another 3
this Court has held that if the plaint is
manifestly vexatious, meritless and groundless, in the sense that it does
not disclose a clear right to sue, it would be right and proper to exercise
power under Order VII Rule 11 of the Code of Civil Procedure, 1908
(�Code�, for short). A mere contemplation or possibility that a right may
be infringed without any legitimate basis for that right, would not be
sufficient to hold that the plaint discloses a cause of action.

  1. In view of the aforesaid discussion, we would allow the present appeal
    and set aside the impugned order. The application under Order VII Rule
    11 of the Code filed by the appellant is allowed and the plaint preferred
    1
    (2012) 8 SCC 706
    2
    (1989) 2 SCC 163
    3
    (1977) 4 SCC 467

6
by the first respondent is rejected as it discloses no cause of action.
There shall be no order as to costs.
……………����������, J.
(MOHAN M. SHANTANAGOUDAR)
…………..����������, J.
(SANJIV KHANNA)
NEW DELHI;
SEPTEMBER 02, 2019.

ITEM NO.32 COURT NO.10 SECTION XVI
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No(s). 9233/2017
(Arising out of impugned final judgment and order dated 30-01-2017
in CMJC No. 159/2017 passed by the High Court Of Judicature At
Patna)
COLONEL SHRAWAN KUMAR JAIPURIYAR
@ SARWAN KUMAR JAIPURIYAR Petitioner(s)
VERSUS
KRISHNA NANDAN SINGH & ANR. Respondent(s)
Date : 02-09-2019 This petition was called on for hearing today.
CORAM : HON’BLE MR. JUSTICE MOHAN M. SHANTANAGOUDAR
HON’BLE MR. JUSTICE SANJIV KHANNA
For Petitioner(s) Mr. Vivek Singh, AOR
For Respondent(s) Mr. Ashutosh Jha, AOR
Mr. Somanatha Padhan, AOR
UPON hearing the counsel the Court made the following
O R D E R
Leave granted.
In spite of second call, there is no appearance on behalf of
Krishna Nandan Singh, the plaintiff, the first respondent before
us.
The appeal is allowed in terms of the signed order.
(GULSHAN KUMAR ARORA) (R.S. NARAYANAN)
COURT MASTER COURT MASTER
(Signed order is placed on the file)