Dismissed

Abdul Salam Thr Lrs v. Abdul Aziz

Rajasthan HC12 Jan 2018CR/197/2017

Case brief

AI extract

What is this about?

The High Court of Rajasthan dismissed this civil revision petition challenging the trial court's rejection of an application under Order 7 Rule 11 CPC. The court held that for such applications, only plaint averments matter. Since the suit did not appear time-barred on the plaint, the rejection was proper.

What did the court decide?

The revision petition against the rejection of the application under Order 7 Rule 11 CPC is dismissed.

Abdul Salam Thr Lrs Vs Abdul Aziz — Property and Title | Rajasthan HC (2018)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Revision No. 197 / 2017

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Abdul Salam S/o Sh. Usman Khan Through His Legal Representatives:.

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Smt. Kneez Fatima W/o Late Sh. Abdul Salam, R/o Near Chirimar Nohra, Ward Chandraghata, Kota.

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Abdul Samad S/o Late Sh. Abdul Salam, Aged About 58 Years, R/o Near Chirimar Nohra, Ward Chandraghata, Kota.

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Salim Akhtar S/o Late Sh. Abdul Salam, Aged About 45 Years, R/o Near Chirimar Nohra, Ward Chandraghata, Kota.

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Smt. Fareeda D/o Late Sh. Abdul Salam, W/o Sh. Late Sh. Ishaq Mohd, Aged About 55 Years, R/o Near Chirimar Nohra, Ward Chandraghata, Kota.

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Smt. Mumtaz D/o Late Sh. Abdul Salam, W/o Sh. Abdul Rahman, Aged About 53 Years, R/o Behind of Poultry Farm, New Colony, Government Middle School, Moukhapara Naveen, Kota.

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Smt. Najneen (Baby) D/o Late Sh. Abdul Salam, W/o Sh. Sabir Rizvi, Aged About 38 Years, R/o New Colony, Government Middle School, Moukhapara Naveen , Kota.

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----Petitioners

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Versus

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Abdul Aziz S/o Sh. Usman Khan B/c Musalman, R/o Chandraghata Near Chirimar Nohra, Ward Chandraghata, Kota.

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----Respondent

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_____________________________________________________ For Petitioner(s) : Mr. SC Mittal

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For Respondent(s) : Mr. Karn Bhatnagar

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HON'BLE MR. JUSTICE GOVERDHAN BARDHAR Judgment / Order

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12/01/2018

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This revision petition has been filed under Section 115 C.P.C. against the order dated 30.08.2017, passed by the Additional District Judge No.5, Kota,in Civil Suit No. 86/2010, by which

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(2 of 3)

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[CR-197/2017]

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application submitted by the petitioner-defendant under Order 7 Rule 11 CPC, has been rejected.

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Learned counsel for the petitioner submits that the respondent stated in para nos. 3 and 4 of the plaint that partition took place between him and his brother late Shri Abdul Salam and partition deed dated 13.01.1987 was executed which was got duly attested from the Notary on 12.08.87. He has further submitted that it is settled law that when once one partition has taken place, no decree for partition can subsequently be passed. It is further submitted that the house was divided in three portions and the plaintiff got possession of 1/3 share while 2/3 share was retained by the defendant. He has further submitted that the partition deed was admittedly executed on dated 13.01.87 and if the plaintiff was aggrieved by it, he could have filed a suit for cancellation.

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On the other hand, learned counsel for the respondent/plaintiff has opposed the submissions advanced by learned counsel for the petitioner/defendant.

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Heard learned counsel for the parties and perused relevant material placed before me.

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The plea taken by the defendant that the suit was not filed with adequate court fee,in this regard issue no.8 has already been framed by the trial court and regarding another plea taken in the application that in view of the partition deed 13/1/1987, the suit is barred by limitation.

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On perusal of the suit, the statements made in the plaint, it does not appear to be barred by limitation, moreover it is a mixed

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(3 of 3)

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[CR-197/2017]

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question of facts and law that can be decided in evidence recorded in the suit. Indisputably, the petitioner defendant has also filed counter claim.

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In view of the settled legal position that for deciding of an application under Order 7 Rule 11 CPC, only averments made in the plaint are to be looked into, the trial Court has rightly rejected the application.

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Consequently, the revision petition being devoid of any merits stands dismissed.

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(GOVERDHAN BARDHAR),J.

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Om/55

Abdul Salam Thr Lrs v. Abdul Aziz

Case brief

What is this about?

What did the court decide?

Abdul Salam Thr Lrs v. Abdul Aziz

Case brief

What is this about?

What did the court decide?

What the court decided

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