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2000 DIGILAW 1139 (PNJ)

Bhag Singh v. Amar Singh Bhela

2000-09-20

R.L.ANAND

body2000
ORDER R.L. Anand, J. - This is a civil revision and has been directed against the order dated 17.12.1998 passed by the Civil Judge (Junior Division), Ludhiana, who dismissed the application of the petitioner under Order 7, Rule 11, CPC, for the rejection of the plaint. Some facts can be noticed in the following manner :- 2. Amar Singh Bhela, plaintiff (now respondent) filed a suit for declaration that the property in dispute bearing No. B-XX-530/2, situated at Ludhiana, is a joint Hindu family coparcenary property and the defendant No. 1 and others have no right to alienate the same except for legal and family necessity and for restraining the defendants, particularly defendant No. 1, from acting in any manner adverse to the interest of the plaintiff. An application was moved under Order 7, Rule 11, CPC that such a suit is bared under the provisions of under Order 7, Rule 11(d), CPC. The learned Sub Judge dismissed the application, for the reasons given in paras 5 to 8 of the impugned order, which read as under :- "5. Learned Counsel for the applicants/defendants argued that the plaintiff has claimed a decree for declaration that the property in dispute is a joint Hindu family coparcenary property of defendants No. 1 or others have no right to alienate the same except for legal and family necessity and for restraining the defendants particularly the defendant No. 1 from, in any way, adversely effecting the rights of devolution. It is further argued that plaintiff has no cause of action and no suit can be maintained unless the alienation in fact is made. It is further argued that if the property is proved to be HUF the suit cannot be filed to prevent the sale which is yet to take place. Learned Counsel for the plaintiff has placed reliance upon pronouncement of Honble Punjab and Haryana High Court cited as AIR 87 P&H page 34, wherein their Lordships have held that suit for permanent injunction to restrain karta from alienating the property is not maintainable and no temporary injunction can be granted. He also placed reliance upon pronouncement of Honble Apex Court cited as AIR 88 SC page 576, wherein their Lordships have held that suit for permanent injunction for restraining the karta from alienating the property by coparcenary is not maintainable. He also placed reliance upon pronouncement of Honble Apex Court cited as AIR 88 SC page 576, wherein their Lordships have held that suit for permanent injunction for restraining the karta from alienating the property by coparcenary is not maintainable. He also placed reliance upon an authority of Honble High Court of Rajasthan, cited as FIR 1997 Raj. 205 wherein his Lordship has held that coparcener cannot move court for injunction restraining karta from alienating coparcenary property, 6. Whereas on the other hand learned Counsel for the plaintiff argued that the application is misconceived and has simply been filed to delay the disposal of the suit. The property is HUF property. Suit is very much maintainable for declaration and relief of permanent injunction is only consequential relief and, therefore, suit as a whole is maintainable. He further argued that the plaintiff can get his right declared in respect to the property in question. Learned Counsel for the plaintiff/respondent further argued that it is wrong that no suit can be maintained unless alienation is made. 7. The plaintiff has filed the instant suit on the allegations that the suit property is joint Hindu family property and he has got the right in the suit property by birth being coparcener, he has a right to get the relief of declaration in this regard as per law. 8. Learned Counsel for the applicants/defendants have relied upon pronouncement (supra), the combined reading of which provides that a coparcenor cannot move the court for injunction restraining a karta from alienating coparcenary property as he has got a right to challenge the alienation on the ground of without legal necessity." 3. Aggrieved by the order, the present revision and I have heard the counsel for the parties and with their assistance have gone through the record of the case. 4. Counsel for the petitioner relies upon under Order 7, Rule 11(j), CPC and submits that earlier Amar Singh Bhela, plaintiff-respondent No. 1, filed a suit for injunction and that suit was dismissed for want of prosecution because the stay was not granted by the trial Court. 4. Counsel for the petitioner relies upon under Order 7, Rule 11(j), CPC and submits that earlier Amar Singh Bhela, plaintiff-respondent No. 1, filed a suit for injunction and that suit was dismissed for want of prosecution because the stay was not granted by the trial Court. The counsel submitted that this fact has not been disclosed in the present plaint and it was mandatory on the part of the respondent to narrate this fact and if this fact is not narrated the consequences are very fatal and such a plaint is liable to be rejected by virtue of under Order 7, Rule 11(d), CPC, which provides that when the suit appears from the statement in the plaint to be barred by any law, the same shall be rejected. In support of his contention, counsel for the petitioner has relied upon AIR 1987 (Ph. & Hr.) 34, AIR 1988 Supreme Court 576 and AIR 1987 (Raj.) 205. Incidently, these authorities were also relied by the petitioner before the trial Court. 5. On the contrary, counsel for the respondent submitted that the suit of the plaintiff is for declaration that the property in the hands of his father is a joint coparcenary property and he has an interest by birth and, through the suit for declaration, he is simply asking that he has a right in the property by birth and the defendants, particularly defendant No. 1, should not handle the property in any manner adverse to the interest of the plaintiff. 6. After considering the rival contentions of the parties, I am of the considered opinion that the plaint did disclose a cause of action. While determining whether the plaint can be rejected under Order 7, Rule 11, CPC, the court has to see the frame of the suit. It is a settled principle of law that a coparcenor has a right by birth in the ancestral/coparcenary property and his right cannot be ignored even by a karta except for legal necessity and for good management and for the benefit of the estate. It is a matter of evidence, whether the plaintiff has been able to prove the coparcenary nature of the property or not but definitely the plaint discloses a cause of action and the application under Order 7, Rule 11, CPC, has been rightly rejected. It is a matter of evidence, whether the plaintiff has been able to prove the coparcenary nature of the property or not but definitely the plaint discloses a cause of action and the application under Order 7, Rule 11, CPC, has been rightly rejected. Even the dismissal of the earlier suit will not debar the present suit either under Section 11, CPC or under Order 2 Rule 2, CPC, because of the successive cause of action arising in favour of the plaintiff. 7. No merit. Dismissed. Revision dismissed.