Rajasthan High Court
Dalipsingh Son Of Shri Aasu Singh vs Gopal Singh Son Of Shri Daleep ... on 24 August, 2023
Bench: Mahendar Kumar Goyal
[2023:RJ-JP:18983]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Revision Petition No. 149/2022
1. Daleep Singh Son Of Shri Aasu Singh, Aged About 75
Years,
2. Lokendra Singh Son Of Shri Daleep Singh, Aged About 45
Years,
Both are Resident Of Ward No. 21, Bus Stand Ke Pass,
Vidhyavihar Pilani, Tehsil Surajgarh, District Jhunjhunu
Rajasthan.
----Petitioners
Versus
Gopal Singh Son Of Shri Daleep Singh, Aged About 41 Years,
Resident Of Ward No. 21, Bus Stand Ke Pass, Vidhyavihar Pilani,
Tehsil Surajgarh, District Jhunjhunu Rajasthan.
----Respondent
For Petitioner(s) : Mr. Ved Pal Shastri
For Respondent(s) : Mr. Sunil Kumar Singodiya, through
VC
HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL
Judgment / Order
24/08/2023
This revision petition is directed against the order dated
30.04.2022 passed by the learned Additional District Judge,
Chirawa (Rajasthan) (for brevity, "the learned trial Court")
whereby, an application filed by the petitioners/defendants (for
brevity, "the defendants") under Order 7 Rule 11 CPC has been
dismissed.
The relevant facts in brief are that the respondent/plaintiff
(for brevity, "the plaintiff") filed a suit for partition and permanent
injunction stating therein that in Ward No.21, near Bus Stand,
Vidhyavihar, Pilani, there is an undivided property comprising of a
[2023:RJ-JP:18983] (2 of 3) [CR-149/2022]
plot with houses and shops constructed thereon under his and the
defendants joint ownership. It was averred that the aforesaid
property belonged to Late Ashu Singh, father of the defendant
no.1 and grand father of the plaintiff and the defendant no.2 who,
bequeathed the aforesaid property to his son, defendant no.1,
through a registered will dated 19.05.2008. It was stated that
since his father has acquired this property from his grandfather, it
is an ancestral property in which he has 1/3 rd share. Alleging that
the defendants were trying to sale the subject property to third
person, the decree as aforesaid was prayed for. Therein, an
application filed by the defendants under Order 7 Rule 11 CPC has
been dismissed by the learned trial Court vide order dated
30.04.2022, impugned herein.
Assailing the order dated 30.04.2022, learned counsel for
the defendants submits that in the plaint, it is averred that owner
of the aforesaid property, i.e., Late Ashu Singh, father of the
defendant no.1, had executed a registered will dated 19.05.2008
in favour of his son, who acquired absolute ownership over it and
in view thereof, it does lie in the mouth of the plaintiff to claim the
property to be the ancestral property having 1/3rd share in it. He
submits that during the lifetime of his father, the plaintiff cannot
claim any share in the property acquired by his father through the
registered will. He submits that in these circumstances, the
learned trial Court erred in rejecting their application filed under
Order 7 Rule 11 CPC. He, therefore, prays that the revision
petition be allowed, the order dated 30.04.2022 be quashed and
set aside and the application filed by them under Order 7 Rule 11
CPC be allowed.
[2023:RJ-JP:18983] (3 of 3) [CR-149/2022]
Per contra, learned counsel for the plaintiff submits that
whether the will comprises of the entire property left behind by his
grandfather Late Ashu Singh, is a question of fact which can be
decided only after trial. He, therefore, prays for dismissal of the
revision petition.
Heard. Considered.
As per the contents of Para no.3 of the plaint, the subject
property was under ownership of Late Ashu Singh who has
bequeathed it through the registered will dated 19.05.2008 to his
son, the defendant no.1. In view of these averments, it is not
open for the plaintiff to claim the property to be ancestral during
lifetime of the defendant no.1, his father and to have share in it.
A plain or even meaningful reading of the plaint does not
reveal any averment therein that through the registered will dated
19.05.2008, Late Ashu Singh did not bequeath his entire property
to the defendant no.1. In view thereof, the contention advanced
by the learned counsel for the plaintiff cannot be countenanced.
Since, from the averements in the plaint, the suit filed for
partition and permanent injunction appears to be barred by law, in
the considered opinion of this Court, the learned trial Court erred
in rejecting the application filed by the defendants under Order 7
Rule 11 CPC.
Resultantly, this civil revision petition is allowed. The order
dated 30.04.2022 is quashed and set aside. The application filed
by the defendants under Order 7 Rule 11 CPC stands allowed and
the plaint stands rejected.
(MAHENDAR KUMAR GOYAL),J
Sudha/04
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