Rajasthan High Court - Jaipur
Karan Singh Son Of Late Padampal Singh ... vs Smt. Anita Jadon D/O Late Padampal Singh ... on 11 May, 2022
Author: Sudesh Bansal
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Revision Petition No. 49/2021
Karan Singh Son Of Late Padampal Singh Jadon, Aged About 44
Years, R/o Plot No. 1, Padam Bhawan, Park House Scheme,
Almashoor Chokdi Hawali City , Station Road, Jaipur (Rajasthan.)
----Petitioner-revisionist
Versus
1. Smt. Anita Jadon D/o Late Padampal Singh Jadon, R/o
C/o Smt Beena, Plot No. 12, Ganesh Vihar, Benad Road,
Police Station Kardhani, Jhotwara, Jaipur, (Rajasthan)
2. Smt. Sangeeta Jadon W/o Shri Sayar Singh, D/o Late
Padampal Singh, Aged About 42 Years, R/o Villagegarh
Basai, Thanagazi, Alwar, (Rajasthan)
3. Smt Beena Jadon W/o Shri Balbeer Singh, D/o Late
Padampal Singh Jadon, Aged About 56 Years, R/o Plot No.
12 Ganesh Vihar Benad Road, Police Station Kardhani,
Jhotwara Jaipur (Rajasthan)
----Respondents
For Petitioner(s) : Mr. Harsh Sharma through V.C. For Respondent(s) : Mr. Hemant Sharma HON'BLE MR. JUSTICE SUDESH BANSAL Order 11/05/2022
1. Instant revision petition has been filed by the petitioner, invoking the jurisdiction of 115 CPC, to assail the order dated 20.01.2021 passed by the court of Additional District Judge No.7, Jaipur Metropolitan, Jaipur in civil suit No.97/2019 (titled as Smt. Anita Jadon & ors. vs. Karan Singh) whereby and whereunder the application under Order 7 Rule 11 read with Section 151 CPC filed by the petitioner-defendant has been dismissed.
2. It appears from the record that respondent Nos.1 to 3 are real sisters of the petitioner. Respondent Nos.1 to 3 have filed a civil suit for partition of property situated at Station Road, Jaipur claiming that the property is joint and was left by forefathers, hence all three sisters and (Downloaded on 16/05/2022 at 09:37:46 PM) (2 of 3) [CR-49/2021] one brother have 1/4-1/4 undevided share therein. Accordingly, a partition by way of metes and bound has been prayed for alongwith prayer for separate possession.
3. The petitioner by way of application filed under Order 7 rule 11 CPC read with Section 151 of CPC raised an objection that by virtue of two 'Wills' alleged to be executed by father and mother, the petitioner has acquired absolute ownership and the suit property can not be divided. The petitioner submits that respondent-plaintiffs had knowledge of both 'Wills', however they have concealed the 'Wills' and have not referred in the plaint. It has also been alleged that prior to filing of the present partition suit, one of plaintiffs Smt. Sangeeta Jadon has instituted a complaint under Section 12 of the Domestic Violence Act, 2005 and in such proceedings, copies of 'Wills' were produced on record. Once her complaint was dismissed, thereafter the present suit for partition has been filed.
4. Learned counsel for petitioner vehemently argued that the present suit for partition suffers from concealment of the material facts, hence liable to be dismissed if not within the scope of Order 7 Rule 11 CPC at least within the scope of Section 151 CPC.
5. The trial court, vide order dated 20.01.2021 has dismissed the application of petitioner with findings for the purpose of deciding the application under Order 7 Rule 11 CPC, the averments made in the plaint are germane and by averments of present plaint, the suit is not liable to be rejected at threshold.
6. Heard learned counsel for both the parties, perused the impugned order as well as plaint and other records.
7. On perusal of plaint, it is amply clear that three sisters have claimed partition of the joint and ancestral property left by their forefathers against their brother. In the plaint, there is no reference of any 'Wills'. As per pleadings of plaint, the same is not liable to be (Downloaded on 16/05/2022 at 09:37:46 PM) (3 of 3) [CR-49/2021] rejected under Order 7 Rule 11 or under Section 151 of CPC in any manner.
8. As far as objection raised by the petitioner-defendant placing reliance of two 'Wills' is concerned, the same is at the most can be treated as his defence to contest the claim for partition. It is needless to say that a heavy burden lies on the petitioner-defendant to prove the genuineness, legality, validity and execution of 'Wills'.
9. As far as the objection of concealment of 'Wills' or other facts on the part of plaintiffs is concerned, the same cannot be examined and adjudicated at this stage.
10. All objections raised by the defendant are subject matter of trial which can be determined after recording evidence of both parties.
11. This Court is of considered opinion that looking to the nature of present suit and the objections raised by the petitioner, the trial court has not committed any illegality and jurisdictional error in dismissing the application. While exercising the jurisdiction under Section 115 CPC, High Court is required to examine as to whether the trial court has committed any jurisdictional error or material illegality which leads to miscarriage of justice.
12. In the opinion of this Court, if the impugned order is allowed to stand the same would not occasion failure of justice, hence, no interference is called for and accordingly, the revision petition is dismissed.
13. Stay order dated 24.03.2021 stands vacated.
14. Stay application and any other pending application, if any, stand(s) disposed of.
15. The trial court may proceed with the trial of the present suit.
(SUDESH BANSAL),J TN/101 (Downloaded on 16/05/2022 at 09:37:46 PM) Powered by TCPDF (www.tcpdf.org)