Rajasthan High Court - Jodhpur
Riyasat Ali vs Ismile (2023:Rj-Jd:32471) on 4 October, 2023
Bench: Rekha Borana
[2023:RJ-JD:32471]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Revision Petition No. 108/2022
Riyasat Ali S/o Shri Noor Samand, Aged About 50 Years, B/c
Mohammedan, R/o Village 11 Sgm, Sardar, Tehsil Suratgarh,
Distt. Sri Ganganagar. (Raj.)
----Petitioner
Versus
1. Ismile S/o Shri Barkat Ali,
2. Mohd. Jamil S/o Shri Barkat Ali,
3. Kasam Ali S/o Shri Barkat Ali,
4. Meena Sain W/o Shri Noor Samand,
5. Kaka Sain W/o Ahmedyar,
6. Shafa W/o Barkat Ali,
7. Sobat Ali S/o Ahmedyar,
8. Dholee S/o Barkat Ali,
All B/c Mohammedan, R/o Village 11 Sgm, Sardar, Tehsil
Suratgarh, Distt. Sri Ganganagar. (Raj.)
----Respondents
For Petitioner(s) : Mr. Gyan Jyoti Gupta
HON'BLE MS. JUSTICE REKHA BORANA
Judgment
04/10/2023
1. The present revision petition has been preferred against the
order dated 11.05.2022 passed by the Senior Civil Judge,
Suratgarh in Civil Suit No.29/19 (CIS No.58/19) whereby the
application under Order 7 Rule 11, CPC as filed by the defendant-
petitioner has been rejected.
2. Two grounds had been raised by the defendant-petitioner in
the application, firstly, no cause of action arose to the plaintiffs to
file the present suit and secondly, relief of correction in the
[2023:RJ-JD:32471] (2 of 3) [CR-108/2022]
revenue record/entries can be granted only by a Revenue Court
and hence, the suit is not maintainable before the Civil Court.
3. The Court below while rejecting the said application
concluded that specific averments regarding cause of action had
been made by the plaintiffs in para nos.6, 7 & 8 of the plaint
wherein it had been averred that the land in question is of the
joint ownership of the plaintiffs and defendants and no partition of
the same had taken place. In spite of the same, a will has been
executed in favour of the defendants which is forged and
fabricated. The plaintiffs came to know about the said will about a
week ago and requested the defendants to cancel the same who
clearly denied to do so. Hence, the cause of action to get the will
in question cancelled, arose to the plaintiffs.
4. In view of the said averments in the plaint, the Court below
held that a plea averring the facts which gave rise to a specific
cause of action, had very well been taken by the plaintiffs and
therefore, the ground as raised by the defendants was held not to
be tenable.
5. So far as the issue of the land being agricultural and having
not been partitioned is concerned, the Court below held that the
same was a mixed question of fact & law and could not be decided
on an application under Order 7 Rule 11, CPC.
6. In the specific opinion of this Court, the conclusion as arrived
at by the Court below is totally in consonance with law and does
not deserve any interference.
7. The ground raised by learned counsel for the petitioner
before this Court is that the plaintiffs had no locus standi to
challenge the will in question. As averred in the plaint itself, the
[2023:RJ-JD:32471] (3 of 3) [CR-108/2022]
legal representatives of Shri Noor Mohammad executant of the will
were alive and they did not challenge the said will. Therefore, the
plaintiffs have no locus to challenge the same.
8. So far as the said ground as raised by learned counsel for
the petitioner is concerned, counsel could not justify the same and
could not point out to any provision of law which provides that a
will in favour of one brother/sister of the executant cannot be
challenged by the other brother/sister. Admittedly, the plaintiff is
the brother of the executant and the defendants are his sister and
the nephews. No provision of law provides that a will cannot be
challenged by any relative other than the legal heirs of the
executant.
9. In view of the above observations, no ground is made for
interference in the order impugned and the present revision
petition is hence, dismissed.
10. Stay petition and all pending applications, if any, also stand
dismissed.
(REKHA BORANA),J
148-KashishS/-
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