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2023 DIGILAW 1597 (RAJ)

Daleep Singh v. Gopal Singh

2023-08-24

MAHENDAR KUMAR GOYAL

body2023
JUDGMENT : Mr. Mahendar Kumar Goyal, J. - 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. 2. 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 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 1/3rd 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. 3. 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. 4. 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. 4. 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. 5. Heard. Considered. 6. 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. 7. 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. 8. Since, from the averments 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. 9. 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.