Gujarat High Court
Kartikbhai Gokulbhai Patel vs Vinodben D/O Gokulbhai Desaibhai ... on 16 June, 2022
Bench: Aniruddha P. Mayee
C/CRA/233/2022 ORDER DATED: 16/06/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 233 of 2022
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KARTIKBHAI GOKULBHAI PATEL
Versus
VINODBEN D/O GOKULBHAI DESAIBHAI PATEL AND W/O POONAMBHAI
RAVJIBHAI PATEL
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Appearance:
MS SHIVANGI J GUPTA(10542) for the Applicant(s) No.
1,10,11,12,2,3,4,5,6,7,8,9
for the Opponent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 16/06/2022
ORAL ORDER
1. The present applicants impugn judgment and order
dated 22.10.2021 passed by learned Principal Senior Civil Judge,
Halol, Panchmahal under Exh.7 in Regular Civil Suit No.63 of 2021
whereby the application under Order 7 Rule 11 has been rejected.
2. The brief facts leading to filing the present Civil
Revision Application are as under :-
2.1 That respondent No.1 viz. Vinodben preferred a suit in
the court of learned Principal Senior Civil Judge, Halol,
Panchmahal being Regular Civil Suit No.63 of 2021 praying for her
share in the ancestral property. The applicants herein who are the
brothers of the plaintiff preferred an application under Order 7
Rule 11 praying to reject the suit since she had already
relinquished her right in the ancestral property and also on the
ground that the suit is time barred. By impugned judgment, the
learned trial court has dismissed the application under Order 7
Rule 11 holding that the defence of the defendants cannot be gone
C/CRA/233/2022 ORDER DATED: 16/06/2022
into at the stage of Order 7 Rule 11. It has been further held that it
is an admitted fact on record that the mother of the plaintiff and
the defendants had died on 26.04.2021 and the plaintiff has filed
the present suit on 25.06.2021 seeking her share in the ancestral
property as well as share from her mother's share, who had expired
on 26.04.2021.
3. Heard learned advocate Ms. Shivangi Gupta for the
applicants.
4. Learned advocate Ms. Shivangi Gupta has submitted
that the plaintiff has not approached the court with clean hands
and she has not disclosed that she had already relinquished her
right in the ancestral property upon the death of her father. It is
further submitted that in view of relinquishment and subsequent
mutation entry in the revenue records, the plaintiff is not entitled
to any share. She has further submitted that in view of
relinquishment, there was no cause of action remaining to file the
suit and the suit is without cause of action and ought to have been
dismissed on the ground of want of cause of action as well as on
the ground of limitation.
5. A perusal of averments made in Order 7 Rule 11
Application by the present applicants shows that the same are in
the nature of defence. The said fact will have to be proved in the
trial. Further, no relinquishment deed has been produced on
record. Neither it is the case of the defendants that the
relinquishment deed was executed and registered under the Indian
Registration Act. Taking into consideration the entire facts and
circumstances of the case, the learned trial court has rejected the
Oder 7 Rule 11 Application. It is well settled that the defence
cannot be gone into at the stage of Order 7 Rule 11. The disputed
C/CRA/233/2022 ORDER DATED: 16/06/2022
questions of fact have been raised by the defendants with respect
to relinquishment by the plaintiff and her entitlement to the
ancestral property.
6. In view of this Court, the learned trial court rightly
rejected the Oder 7 Rule 11 Application. No interference is called
for. The Civil Revision Application is dismissed. No order as to
costs.
(ANIRUDDHA P. MAYEE, J.)
cmk
