Rajasthan High Court - Jodhpur
Smt. Shanno Devi & Anr vs Satish Choudhary & Ors on 17 November, 2017
Author: Sangeet Lodha
Bench: Sangeet Lodha
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Revision No. 223 / 2017
1. Smt. Shanno Devi W/o Shri Ramnath Chowdhary, R/o Chak 24
GB Srivijaynagar, Sriganganagar Presently Residing At 7/126
Malviya Nagar, Jaipur (Through Power of Atttorney Holder Shri
Sushil Chowdhary)
2. Shri Sushil Chowdhary S/o Ramnath Chowdhary, R/o Chak 24
GB Srivijaynagar, Sriganganagar Presently Residing At 7/126
Malviya Nagar, Jaipur.
----Petitioners
Versus
1. Shri Satish Chowdhary S/o Ramnath Chowdhary, Resident of
Chak 24 GB, Srivijaynagar, Sriganganagar.
2. Sudesh Chowdhary S/o Late Ramnath Chowdhary, Resident of
Chak 24 GB, Srivijaynagar, Sriganganagar.
2/1. Suchitra W/o Late Sudesh Chowdhary, Resident of Chak 24
GB, Srivijaynagar, Sriganganagar.
2/2. Swati D/o Late Sudesh Chowdhary, Resident of Chak 24 GB,
Srivijaynagar, Sriganganagar.
2/3. Sumit S/o Late Sudesh Chowdhary, Resident of Chak 24 GB,
Srivijaynagar, Sriganganagar.
3. Suresh Chowdhary S/o Ramnath Chowdhary, Resident of D 121,
Redgewood Estate, Phase IV, Gurgaon, Haryana Presently Residing
At 44 Plam Court Jagatpura Jaipur.
4. Sudhir Chowdhary S/o Late Shri Ramnath Chowdhary, Resident
of 5 Ashok Vihar, Opposite Tagore Nagar, Ajmer Road, Jaipur.
5. The Registrar, (Deeds), Sriganganagar
6. Sub Registrar, (Deeds), Srivijaynagar.
----Respondents
_____________________________________________________
For Petitioner(s) : Mr. Abhishek Mehta
For Respondent(s) : Mr. S.D.Vyas
(2 of 5)
[CR-223/2017]
HON'BLE MR. JUSTICE SANGEET LODHA
Order 17/11/2017
1. This petition is directed against order dated 14.10.17 passed by the Civil Judge, Srivijaynagar in Civil Suit No.6/05, whereby an application preferred by the petitioners under Order VII Rule 11 CPC stands dismissed.
2. The first respondent-plaintiff preferred a suit for cancellation of Will dated 19.5.17 executed by Shri Ramnath, the father of plaintiff and defendants no. 2 to 5, whereby he bequeathed his 1/6 share in the ancestral property i.e. agriculture land ad measuring 67 bighas comprising chak 24GB and a shop situated in Dhan Mandi, Srivijaynagar in favour of his wife, the petitioner no.1 herein. The plaintiff has also sought the relief for declaration of his rights in the suit property.
3. During the pendency of the petition, the petitioners preferred an application under Order VII Rule 11 CPC seeking rejection of the plaint taking the stand that the suit property was self acquired property of Shri Pokar Ram, the grand father of the plaintiff and the defendants no.2 to 5 and since at the time of his death, the father of the plaintiff and defendant no.2 to 5 was alive, the property devolved on him and therefore, the plaintiff cannot claim any right in the disputed property. That apart, it was contended that the plaintiff has already filed a suit before the Sub Divisional Officer, Raisinghnagar for declaration of his right in the disputed property as also for permanent injunction and thus, the suit filed before the Civil Court splitting the relief is barred by Order II Rule (3 of 5) [CR-223/2017] 2 CPC.
4. The application has been rejected by the court below observing that the suit has been filed by the plaintiff for declaring the Will dated 9.5.97 as null and void qua his rights in the disputed property and thus, the dispute raised can only be adjudicated by the Civil Court and not the revenue court. The court observed that the right in the disputed property claimed by the plaintiff remains a mixed question of law and facts, which can only be decided after framing the issues on the basis of the evidence to be led by the parties.
5. Learned counsel appearing for the petitioner reiterating the stand taken as aforesaid before the court below submitted that while rejecting the application, the averments made in the plaint have not been considered in correct perspective which has resulted in erroneous finding being arrived at. It is submitted that at the time of death of the grand father of plaintiff and the defendants no.2 to 5, their father Ramnath was alive and thus, the property devolved on him. It is contended that the plaintiff being a class II heir cannot claim any right in the property and therefore, the suit does not disclose any cause of action. Learned counsel would submit that the suit claiming right in the disputed property already filed by the plaintiff is pending consideration before the revenue court of competent jurisdiction and therefore, the fresh suit filed claiming right in the disputed property is barred by Order II Rule 2 CPC.
6. On the other hand, the counsel for the caveator supporting the order impugned submitted that the same does not suffer from (4 of 5) [CR-223/2017] any illegality, irregularity or jurisdictional error so as to warrant interference by this court in exercise of its revisional jurisdiction.
7. I have considered the rival submissions and perused the material on record.
8. It is settled law that while deciding an application for rejection of the plaint under Order VII 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.
9. A bare perusal of the plaint reveals that the relief for declaring the Will executed as null and void has been claimed by the plaintiff stating that the same was got executed by the beneficiaries taking advantage of ill health and mental disorder of Shri Ramnath while he was staying at the place of defendant no.2 at Jaipur. Precisely, the contention is that the Will has not been executed out of free will. In the considered opinion of this court, the question raised with regard to the validity of the Will executed can only be decided by the court after framing the issues on the basis of the evidence to be led by the parties. Further, from perusal of the plaint, it cannot be inferred that it is barred by law by virtue of provisions of Order II Rule 2 CPC. The contentious issue in this regard if any arises, the same is also required to be decided by the trial court on the basis of the evidence to be led by the parties. Moreover, if any question of law arises which needs to be decided as preliminary issue, it is always open for the petitioners to make a prayer in this regard before the trial court at (5 of 5) [CR-223/2017] the appropriate stage. Suffice it to say that from the perusal of the plaint, in no manner, it can be inferred that it is barred by law or does not disclose the cause of action.
10. In the result, the petition fails, it is hereby dismissed. No order as to costs.
(SANGEET LODHA), J.
aditya/