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Rajasthan High Court · body

2022 DIGILAW 642 (RAJ)

Aditya Jangid v. Jayesh Jangid

2022-02-22

PRAKASH GUPTA

body2022
ORDER 1. This revision petition has been filed by the petitioner- defendant no.3 (for short, 'the defendant') against the order dated 4.12.2021 passed by the trial court whereby the application filed by the defendant under Order 7 Rule 11 CPC has been dismissed. 2. Facts of the case are that the respondent-plaintiff (for short, 'the plaintiff') filed a suit for partition, declaration and permanent injunction against the defendants, wherein it was averred that the plaintiff and defendants are the members of one family. From the first marriage of Satya Narayan Jangid, daughters - defendants no. 1 and 2 and sons - late Anil Jangid and Sunil Jangid born. Thereafter first wife of Satya Narayan Jangid died and Satya Narayan Jangid solemnized second marriage with defendant no. 6 Smt. Vimla Devi. From their wedlock, the plaintiff and defendant no.5 born. It was also pleaded that Anil Jangid and Sunil Jangid expired during the life time of Satya Narayan Jangid. The defendants no. 3 and 4 are the children of Anil Jangid. After the death of Anil Jangid, his wife re-married with another person and left the defendants no. 3 and 4 with Satya Narayan Jangid and defendant no. 6. Till March, 2018, plaintiff and defendants no. 3, 4, 5 and 6 were residing in a premises, but thereafter the defendant no.3 started to reside at different place. It was also averred that after the death of Satya Narayan Jangid on 29.6.2015, the plaintiff and defendants no. 1, 2 and 5 and 6 are entitled to 1/6 undivided share of the properties of late Satya Narayan Jangid, as disclosed in the plaint and the defendants no. 3 and 4 are entitled to 1/6th share of his properties. It was further averred that there was a total liability of Rs. 3,90,00,000/- upon late Satya Narayan Jangid. After adjusting the recoverable amount of Rs. 1,00,00,000/- from borrowers, an amount of Rs. 2,90,00,000/- was to be paid to the lenders. It was further averred that on 8.3.2018, a family settlement took place between the plaintiff and defendants no. 1 to 6 on 8.3.2018, according to which it was agreed that out of the total liabilities of Rs. 2,90,00,000/-, Rs. 2,19,00,000/- will be paid by the plaintiff and Rs. 1,76,00,000/- will be paid by the defendant no. 3 to the lenders. It was further averred that on 8.3.2018, a family settlement took place between the plaintiff and defendants no. 1 to 6 on 8.3.2018, according to which it was agreed that out of the total liabilities of Rs. 2,90,00,000/-, Rs. 2,19,00,000/- will be paid by the plaintiff and Rs. 1,76,00,000/- will be paid by the defendant no. 3 to the lenders. The plaintiff started to perform his part of settlement, but the defendant no.3 did not comply with the same. When the lenders continued to humiliate the plaintiff, the plaintiff sent a legal notice dated 23.9.2019 to the defendants asking them to follow the terms of the family settlement dated 8.3.2018. Even after expiry of the notice period, when nothing was done in the matter, the plaintiff separated himself from the family settlement and filed the present suit for partition, declaration and permanent injunction against the defendants. 3. The defendant filed an application under Order 7 Rule 11 readwith CPC, which came to be dismissed by the trial court vide its order dated 4.12.2021. Hence this revision petition has been filed. 4. Learned Counsel appearing for the defendant submits that as per the averments made in the plaint, a family settlement dated 8.3.2018 had already taken place in the matter in relation to the properties of late Satya Narayan Jangid. Thus, the present suit for partition and declaration is barred by law. 5. Heard. Considered. 6. From a perusal of the material on record, it is evident that in the plaint, the plaintiff pleaded that when the defendant did not act upon the family settlement, he sent a legal notice and after expiry of the notice period, he separated himself from the family settlement. In this view of the matter, when the family settlement dated 8.3.2018 was not acted upon by the defendant, the present suit for partition was filed by the plaintiff. 7. The trial court while dismissing the application observed that whether parties to the settlement are bound to follow the terms of the settlement cannot be decided at this stage and it can be decided only after adducing the evidence. 8. It is well settled that the at the time of deciding the application under Order 7 Rule 11 CPC, only the averments made in the plaint and the documents annexed with the plaint are required to be considered. 9. 8. It is well settled that the at the time of deciding the application under Order 7 Rule 11 CPC, only the averments made in the plaint and the documents annexed with the plaint are required to be considered. 9. The order dated 4.12.2021 passed by the trial court is just and proper, with which I fully concur. There is no illegality, perversity or jurisdictional error in the impugned order passed by the trial court. 10. For the aforesaid reasons, I find no force in this revision petition and the same being bereft of any merit is liable to be dismissed, which stands dismissed in limine accordingly. 11. Consequent upon the dismissal of the revision petition, stay application also stands dismissed.