Krantikumar S/O Mohanlal Paliwal vs Maya W/O Madan Mahendra And Others
2017 Latest Caselaw 9471 Bom

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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                       NAGPUR BENCH, NAGPUR

             CIVIL REVISION APPLICATION (CRA) NO.78/2017

 Krantikumar s/o Mohanlal Paliwal,
 Age : 66 years, Occu. Retired,
 R/o Nagpur Housing Board and 
 Development Area, Block No.117/1,
 Juni Somwaripeth, Near Datta
 Mandir, Nagpur.                                        ..... APPLICANT
                                                          (ORI.DEF.NO.1)

                               ...V E R S U S...

 1. Maya w/o Madan Mahendra,
    Aged : 53 yars, Occu : Housewife,
    R/o C/o B.R.Kachar, Plot No.18,
    Near Corporation School,
    Ayodhya Nagar, Nagpur.                              ... (ORI. PLAINTIFF)

 2.   Annapurna wd/o Santoshkumar Gautam,
       Aged : 53 years, Occu : Household,
       R/o Raghunath Colony, Laknadon,
       Tah. Laknadon, District Seoni, M.P.

 3.   Omprakash s/o Mohanlal Paliwal,
       Age : 63 years, Occu : Private,
       R/o New Basti, Ward No.59,
       Mangalwari Bazar, Sadar,
       Nagpur.

 4.   Shobha w/o Jagdish Chadha,
       Aged : 43 years, Occu : Household,
       R/o Gadha Road, Near Bridge,
       Jabalpur.

 5.   Geeta Nehotra,
       Aged : 39 years, Occu : Household,
       R/o Mehta Mill, Hinganghat,
       Distt. Wardha.                                   ..... NON-APPLICANTS
                                                                            
                                                        (ORI. DEF.NO.2 TO 5)
                                




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 -------------------------------------------------------------------------------------------
 Shri Suhas Manohar Hande, Advocate for the applicant.
 Shri S. G. Karmarkar, Advocate for Non-Applicant Nos.1, 2, 4 and 5.
 -------------------------------------------------------------------------------------------

                                CORAM:-    
                                            ARUN D. UPADHYE, J.

DATED :

11/12/2017.

ORAL JUDGMENT :

1. Admit. Heard finally by consent of the learned counsel

for the parties.

2. By this revision application, the applicant has

prayed to quash and set aside the order dated 10/04/2017 passed

by the 2nd Joint Civil Judge, Junior Division, Nagpur below Exh.11

in Regular Civil Suit No.1244/2016. The brief facts are as under :-

3. The applicant has filed R.C.S. No.1244/2016 for

declaration that the defendant got transferred the suit tenements

in his name without any authority of law and documents executed

by the applicant in favour of defendant No.1 are illegal and void

ab initio and for perpetual injunction restraining the defendant

No.1 from carrying out further construction and also decree for

partition and separate possession, 1/6th share to the plaintiff and

other legal heirs.

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4. During the pendency of the suit, defendant No.1

filed application under Order 7 Rule 11 of the C.P.C. for rejection

of the plaint. The defendant No.1 has contended that the plaintiff

has no cause of action to file instant suit. According to the

defendant No.1, the plaintiff has mentioned that the cause of

action for the present suit arose when the father of the plaintiff

expired leaving behind the legal heirs. According to him, Mohanlal

expired on 02/07/1990 and as such, the suit filed by the plaintiff

is hopelessly barred. According to the defendant No.1, after period

of 26 years, the suit is filed. He denied that he has prepared false,

bogus and fabricated documents for getting the suit tenement. He

also relied upon the copy of Will dated 22/06/1990 executed by

Shri Mohanlal in favour of the defendant No.1. It is also made

averments that he himself performed last Will of his father.

According to him, he told to the plaintiff and other defendant

Nos.2 to 5 that their father executed a Will Deed in his favour. He

also stated that he himself and his sons constructed house by

taking loan from Punjab National Bank. According to defendant

No.1, the present suit is filed by the plaintiff in collusion with

defendant Nos.2 to 6. Lastly, it is submitted that application be

allowed and plaint be rejected.

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5. The Non-Applicant Nos.1 to 5 have filed their reply

to the application and objected the same.

6. After hearing both the sides, the learned 2nd Joint

Civil Judge, Junior Division, Nagpur has rejected the application

by its order dated 10/04/2017.

7. I have heard Shri Hande, leaned counsel for the

applicant and Shri Karmarkar, learned counsel for the non-

applicants.

8. Shri Hande, learned counsel for the applicant has

vehemently submitted that the suit filed by the plaintiff is

hopelessly barred. He also pointed out the averments made in the

plaint in para 14 and submitted that their father died long back in

the year 1990 and therefore, because of cause of action arose at

that time and therefore, suit filed by the plaintiff is barred by

limitation. He further submitted that the learned trial Judge has

not considered the said facts and wrongly rejected the application

filed by the defendant No.1 under Order 7 Rule 11 of the C.P.C. on

the ground that the mixed questions of facts and law are involved

and same issue can be decided along with other issues by

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adducing the evidence by both the parties. He, therefore,

submitted that the said order be set aside and revision filed by the

applicant be allowed.

9. Shri Karmarkar, learned counsel for the non-

applicants has vehemently submitted that the suit is for partition

and separate possession. The other prayers are also made in the

plaint. The learned trial Court has rightly rejected the application

filed by the defendant No.1. The revision application, therefore, be

dismissed.

10. Considering the submissions of respective sides and

having gone through the impugned order dated 10/04/2017

passed by the 2nd Joint Civil Judge, Junior Division, Nagpur below

Exh.11 in R.C.S. No.1244/2016 and documents placed on record, I

am of the view that no interference of this Court is called for in the

impugned order. It is to be noted that the plaintiff and the

defendant Nos.1 to 5 are brothers and sisters inter se. The suit is

filed for partition claiming 1/6th share in the suit as well as

declaration is sought. It is also alleged that the defendant

fraudulently got the suit tenements transferred in his name

without any authority of law. The learned trial Judge was justified

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in holding that the same issue could be decided after adducing

evidence in the matter and plaint cannot be rejected under Order

7 Rule 11 of the CPC.

11. The impugned order thus, does not require

interference. The revision application filed by the applicant is

devoid of any merit and liable to be rejected and accordingly,

rejected. No order as to costs. It is needless to mention that the

defendant may contest the suit on merit.

JUDGE

Choulwar