Bombay High Court
Dattu Dadan Waghmare vs Gayabai Dattu Waghmare And Others on 16 April, 2016
Bench: K.L. Wadane
CRA 120/14
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL REVISION APPLICATION NO.120/2014
Dattu s/o Dadan Waghmare,
age 71 yrs., occu.agri.,
r/o Takalgaon Tq.Renapur Dist.Latur.
ig ...Applicant..
(Org.defendant no.1)
Versus
1] Sau.Gayabai w/o Dattu Waghmare,
age 59 yrs., occu.household,
r/o Takalgaon Tq.Renapur Dist.Latur,
At present r/o c/o Mahadeo Digamber
Khartade, village Gursale
Tq.Pandharpur Dist.Solapur.
2] Bebinanda w/o Subhash Bansode,
age 27 yrs., occu.household,
r/o 439/30, Gultekdi, Dayas Plot,
Pune-37.
3] Govind s/o Dattu Waghmare,
age 36 yrs., occu.agri., and labour,
r/o Takalgaon Tq.Renapur Dist.Latur.
4] Sau.Kamalbai w/o Dattu Waghmare,
age 53 yrs., occu.household,
r/o Takalgaon Tq.Renapur Dist.Latur.
...Respondents...
(No.1 org.plaintiff.
Nos.2 to 4 org.deft.nos.
2 to 4)
.....
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CRA 120/14
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Shri Sanjay V. Mundhe, Advocate for applicant.
Shri Ravibhushan P. Adgaonkar, Advocate for respondent
no.1.
Respondent nos.3 & 4 served.
.....
CORAM: K.L. WADANE, J.
JUDGMENT RESERVED ON 12.04.2016
JUDGMENT PRONOUNCED ON 16.04.2016
JUDGMENT :
1]
Rule. Heard with the consent of the learned
counsel for the parties.
2] Brief facts of the case may be stated as
follows:-
a] The plaintiff - respondent no.1 herein
filed a suit for partition and separate
possession of the property, more particularly
described in paragraph nos.A to D of the plaint.
According to the plaintiff, she is the wife of
the present applicant and defendant no.4 is their
daughter. The defendant no.3 is the second wife
of defendant no.1 and defendant no.2 is their
son.
b] The defendants appeared and filed their
CRA 120/14
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written statement as well as filed an application
under Order VII Rule 11 of the Code of Civil
Procedure vide Exhibit 35 and thereby prayed for
dismissal of the suit on the ground that there
was no cause of action to file the suit and
during the life time of the husband - the
defendant no.1, the plaintiff - wife cannot claim
the partition of the property.
c] That application was opposed by the
plaintiff by filing say and it is contended that
the defendant no.1 behind the back of the
plaintiff transferred the joint family property
to the defendant no.2 by way of registered
partition-deed and this fact has been admitted by
the defendant no.1 in his written statement. In
view of the above facts, the plaintiff is
entitled to have a share if there was a partition
amongst other co-parceners.
3] I have heard the arguments of Shri Sanjay V.
Mundhe, learned Advocate appearing for the applicant and
Shri Ravibhushan P. Adgaonkar, learned Advocate appearing
for the respondent no.1. None appeared for the
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respondent nos.3 & 4, though served.
4] The contention of the defendants is that the
suit of the plaintiff is liable to be rejected in view of
the provisions of Order VII Rule 11(a) and (d), which
read as follows:-
"11. Rejection of plaint -
The plaint shall be rejected in the
following cases -
(a) where it does not disclose a cause of
action.
(b) ..... ..... .....
(c) ..... ..... .....
(d) where the suit appears from the statement
in the plaint to be barred by any law."
5] The provision of Order VII Rule 11(a) is
relating to the rejection of the plaint when it does not
disclose cause of action and provision of clause (d) is
in reference to the rejection of the plaint in view of
the statement appearing in the plaint to be barred by any
law. In this behalf, it is material to mention here that
the plaintiff in paragraph nos.10, 11 and 12 has
CRA 120/14
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specifically contended that the defendant no.1 has
transferred the suit property i.e. land admeasuring 1
Hectare 20 Aares in favour of defendant no.2 illegally
and the plaintiff firstly came to know about the same in
the month of July, 2013. In paragraph no.11, the
plaintiff has specifically contended that the suit
property is an ancestral property wherein the plaintiff
is having 1/3rd share. Even then, the defendant no.1 has
illegally partitioned some of the suit property in favour
of defendant no.2. It is the contention of the
respondent no.1 - wife that the defendant no.1 during his
life time has partitioned the suit property and allotted
certain portion of the suit property in favour of
defendant no.2. In that event, certainly the wife - the
respondent no.1 has a share in the suit property.
6] It is material to mention here that the
defendant no.1 has denied his relation with the plaintiff
and the defendant no.4. In such circumstances, such a
controversy is to be resolved only after the evidence is
over. In view of this, the reasons recorded by the
learned trial Court while rejecting the application
(Exhibit 35) appear to be correct. Therefore,
CRA 120/14
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considering the scope of the present proceedings, it is
not necessary to interfere with the finding recorded by
the learned trial Court. Consequently, there is no merit
in the present civil revision application. Therefore, it
is required to be dismissed. Accordingly, the same is
dismissed and Rule is discharged with no order as to
costs.
(K.L. WADANE, J.)
ndk/cra12014.doc
