The petitioners sought rejection of a partition plaint under Order 7 Rule 11 CPC, arguing the issue was already decided and partition completed. The court held trial court observations were for application decision only, not pre-judgment, and granted no merit in the petition.
Petition rejected.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 10564 OF 2004
Smt. Sarubai Raghu Pokale & Ors. ... ... Petitioners.
Versus
.... Bajirao Mahadu Pokale & Ors. ... Respondents.
Mr. S. V. Sadavarte for the Petitioners. None for the Respondents.
CORAM: S. A. BOBDE, J.
DATED : MARCH 1, 2005.
P.C. :
The petitioners are defendant Nos.4 to 8 in a suit for partition filed by the respondents.
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the issue of partition has already been dealt with in an earlier suit
and that all the properties have been partitioned and therefore there is no cause of action for the present suit. This application
has been rejected by the trial Court by making the following observations:
“It is pertinent to note that in present suit plaintiff submitted all their ancestral and joint family property along with house property in schedule. It is pertinent to note that as per schedule of suit, it clearly shows that Tahsildar Haveli not made partition of all suit property. So, it clearly shows that Tahsildar-Haveli made partition only few ancestral property and not all ancestral property as well as joint family property of plaintiff and defendant.”
submitted that this observation shows that the Court has regarded
all the properties including the present suit as ancestral property
which may amount to pre-judging the question. Learned Counsel
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is not right in his submission since this observations are made only
for the purpose of deciding the application under Order 7 Rule 11 of the Code of Civil Procedure and do not constitute a finding on
any Issue as regards the actual status of the property involved in the present suit. I see no error of law or perversity committed by the trial Court in rejecting the application under Order 7 Rule 11 of the Code of Civil Procedure since apparently certain properties have not been put to partition yet. In this view of the matter, there is no merit in this petition, which is hereby rejected.
Sd/-
S. A. BOBDE, J.
3 issues framed by the court
Whether the trial court's observations regarding the lack of partition of all properties amount to pre-judging the question of property status in rejecting the rejection of plaint application.
Whether the rejection of the plea that the cause of action has ceased due to prior partition is legally sustainable.
Whether the trial court committed an error of law or perversity in declining to reject the plaint under Order 7 Rule 11 CPC.
1 provisions across 1 enactments
Smt. Sarubai Raghu Pokale & Ors.
Bajirao Mahadu Pokale & Ors.
S. A. BOBDE
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
