Madhya Pradesh High Court
Vijay Katiyar vs Smt. Pholkant Katyar on 4 December, 2023
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 4 th OF DECEMBER, 2023
CIVIL REVISION No. 452 of 2023
BETWEEN:-
VIJAY KATIYAR S/O SHRI RAJENDRA BHADUR
KATIYAR, AGED ABOUT 47 YEARS, R/O HOUSE NO. 165
B- PRAGTI NAGAR BARKHEDA PATHANI, BHOPAL (M P)
.....PETITIONER
(BY SHRI RAJESH SONI - ADVOCATE)
AND
1. SMT. PHOLKANT KATYAR W/O SHRI RAJENDER
BHADUR KATIYAR R/O HOUSE NO. 165 B-PRAGTI
NAGAR BARKHEDA PATHANI BHOPAL (MP)
2. AJAY KATIYAR S/O SHRI RAJENDRA BHADUR
KATIYAR, AGED ABOUT 49 YEARS, R/O HOUSE NO.
165-B- PRAGTI NAGAR BHARKHEDA PATHANI
BHOPAL (MP)
3. RAJENDER BHADUR KATIYAR S/O LATE SHRI
MOTI LAL KATIYAR, AGED ABOUT 79 YEARS, R/O
HOUSE NO. 165 B-- PRAGTI NAGAR BARKHEDA
PATHANI BHOPAL (MP)
4. MANAGER BHOPAL ANDHRA BANK PLOT NO.
131/13 ZONE-2 M.P. NAGAR BRANCH BHOPAL (MP)
.....RESPONDENTS
(BY SHRI MAKBOOL KHAN - ADVOCATE FOR RESPONDENTS 1-3 )
This revision coming on for admission this day, th e court passed the
following:
ORDER
This civil revision has been preferred by the petitioner/defendant 1
challenging the order dated 02.03.2023 passed by 7th Civil Judge Senior
Division, Bhopal in RCS No.673A/2022, whereby defendant 1's application
under Order 7 rule 11 read with Section 151 CPC has been dismissed.
2. Learned counsel for the petitioner/defendant 1 submits that the suit as has
been filed for declaring the gift deed dated 10.12.2020 null and void and for
permanent injunction is not maintainable because the defendant 2 (husband of
the plaintiff 1) is owner of the suit property on the basis of registered sale deed
dated 23.12.1999 and the plea taken by the plaintiffs in the plaint to the effect
that the plaintiff 1 from her funds got executed sale deed in the name of her
husband (defendant 2) is barred by Section 4 of the Benami Transaction
(Prohibition) Act 1988. He further submits that the plaintiffs have not properly
valued the suit for declaration and permanent injunction and have also not paid
requisite court fee. As the plaintiffs are not owner of the property, therefore, no
cause of action can be said to have accrued to them for getting declared the gift
deed null and void. In support of his submissions, he placed reliance on the
decision of Supreme Court in the case of C.S. Ramaswamy vs. V.K. Senthil
and Ors (Civil Appeal No.500 of 2022 judgment dated 30.09.2022),
Raghwendra Sharan Singh vs. Ram Prasanna Singh (Dead) by LRs (Civil
appeal No.2960 of 2019 judgment dated 13.03.2019), in the case of Smt.
Reshma Poswal vs. Smt. Namrata Dwivedi & Ors by Himachal Pradesh High
Court (in CR No.37/2022 on 29.12.2022) and also of this Court in the case
of Chintamani and another vs. Ajay Kumar and another 2022 (3) MPLJ 679.
With these submissions, he prays for allowing Civil Revision.
3. Learned counsel appearing for the respondents 1-3 supports the impugned
order and prays for dismissal of the civil revision with the contentions that the
question raised by way of application under Order 7 rule 11 CPC requires
evidence and cannot be decided at the present stage and in support of his
submissions he placed reliance on the decision of Supreme Court in the case of
Pawan Kumar vs. Babulal since deceased through legal representatives and
others (2019) 4 SCC 367 and Madhav Prasad Aggarwal and another vs. Axix
Bank Limited and another (2019) 7 SCC 158 and prays for dismissal of Civil
Revision.
4. Heard learned counsel for the petitioner and perused the record.
5. The plaintiff 1 is mother of defendant 1 and wife of defendant 2 and
plaintiff 2-Ajay Katiyar is brother of defendant 1 and son of defendant 2. The
plaintiff 1 claims herself to be in possession of the suit house and along with the
prayer for declaring the gift deed dated 10.12.2020 executed by defendant 2 in
favour of defendant 1, she has prayed for decree of permanent injunction also
and has not claimed any relief in respect of sale deed dated 23.12.1999.
6. As to whether on the basis of her possession in the suit property the
plaintiff 1 has any right to get the gift deed dated 10.12.2020 declared null and
void, is a question to be decided only after adducing evidence by the parties.
Further in the case of Madhav Prasad Aggarwal and another vs. Axix Bank
Limited and another (2019) 7 SCC 158 (Para 12) Supreme Court has held that
the suit under the provision of Order 7 rule 11 CPC cannot be rejected in
piecemeal, therefore, in my considered opinion, the suit filed for declaration of
title as well as for permanent injunction based on her possession appears to be
maintainable, which at the present stage of the suit, cannot be rejected under
Order 7 rule 11 CPC.
7. Accordingly, this civil revision fails and is hereby dismissed. However, the
petitioner/defendant 1 shall be at liberty to raise all the objections available to
him in the written statement or at any other stage of the suit.
8. Pending application(s), if any shall stand dismissed.
(DWARKA DHISH BANSAL)
JUDGE
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