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2017 DIGILAW 2377 (RAJ)

Tulsi Ram Agarwal v. Bal Mukand

2017-11-01

SANGEET LODHA

body2017
JUDGMENT Sangeet Lodha, J. - This petition is directed against order dated 22.9.17 passed by the Additional Civil Judge No. 1, Bikaner in Civil Suit No. 384/15, whereby an application preferred by the petitioner under Order 7, Rule 11 read with section 151 CPC seeking rejection of the counter claim, stands dismissed. 2. The petitioner filed a suit for permanent injunction against the respondent in respect of the ancestral house alleged to have been fallen in his share pursuant to oral partition effected by his grand father. That apart, the petitioner also claimed right over the disputed property on the strength of Will executed by his grand father Shri Girdhari Lal. The respondent-defendant who is brother of the petitioner-plaintiff filed the counter claim seeking injunction against the petitioner-plaintiff claiming right over the disputed house alleged to be in his possession on the strength of a gift deed dated 10.9.07 executed by his grand father. 3. The petitioner preferred an application seeking rejection of the plaint on the ground that while allowing the application preferred seeking temporary injunction, the court has arrived at a categorical finding that the petitioner is in possession of the property and thus, the suit preferred by the respondent belatedly on the strength of the gift deed when he is not in possession of the property, is barred by provisions of section 41 (h) of Specific Relief Act. 4. The application stands rejected by the court below observing that on the basis of the pleading of the parties, issues have already been framed and contentious issue regarding possession over the property has to be decided on the basis of evidence to be led by the parties and the counter claim preferred by the respondent cannot be rejected under Order 7, Rule 11 CPC. Hence, this petition. 5. Learned counsel appearing for the petitioner contended that while issuing the temporary injunction against the respondent vide order dated 29.4.14, the court below has arrived at a categorical finding that the respondent is not in possession of the property and thus, in absence of the possession, the counter claim preferred does not disclose any cause of action and was liable to be rejected. 6. 6. Indisputably, the plaintiff claimed to be in possession of the property by virtue of oral partition alleged to have been effected by his grand father as also on the strength of Will dated 18.5.02 alleged to have been executed in his favour by his grand father whereas, the defendant by way of counter claim has claimed to be in possession of the disputed property on the strength of the gift deed dated 10.9.07 executed in his favour by his grand father. Obviously, the contentious issue between the parties regarding possession over disputed property needs to be decided by the trial court on the basis of evidence to be led by the parties. The finding recorded by the trial court while issuing temporary injunction is not conclusive and therefore, the counter claim filed on behalf of the defendant cannot be rejected with the presumption that he is not in possession of the property. 7. It is settled law that while deciding an application for rejection of the plaint under Order 7, Rule 11(d), the court is not competent to go into correctness or otherwise of the allegations contained in the plaint. The plaint can only be rejected if from bare perusal of the statement in the plaint without any addition or subtraction it appears to be barred by law. 8. Suffice it to say that from perusal of the counter claim, in no manner, it could be inferred that it is barred by law or it does not discloses the cause of action and thus, the order impugned passed by the court below dismissing the application preferred by the petitioner does not suffer from any infirmity, illegality or jurisdictional error warranting interference by this court in exercise of its revisional jurisdiction. 9. In the result, the petition fails, it is hereby dismissed in limine.