SYED MOHIUDDIN RAZVI Vs. SYED HUSSAIN RAZVI

JUDGEMENT

(1.) The defendant No.1 has filed the present revision petition against the order dated 28.10.2017 made on I.A.4 in O.S.No.4508/2016 dismissing the application filed by defendant No.1 under Order VII Rule 11(a) and (d) of the Code of Civil Procedure.

(2.) The respondent Nos. 1 to 9, who are the plaintiffs filed suit O.S.No.4508/2016 for partition and separate possession claiming their shares and to declare that they are the absolute owners of 10/14th share in the suit schedule property and to put them in separate possession with a direction to the defendants not to interfere with their peaceful possession and enjoyment of 10/14th share of the suit schedule property in any manner contending that they and defendants are the co-owners having legitimate right, share and title over the suit schedule property and the joint possession continued to exist as per the Mohammedan law. All these days they had been under the bonafide impression that the 1st defendant had been taking care of the interest and share of them and he would give them their legitimate share. The said impression was pure and bonafide one and there was no reason to suspect any malafide intention in the action of defendant No.1 etc., and since the property was in dilapidated condition, neither the defendants are maintaining the same nor paying the corporation tax for the last several years. Hence, issued legal notice on 23.12015 demanding their respective shares and when defendant No. 1 refused they have sought for the relief as prayed for in the suit.

(3.) Even before filing the written statement, defendant No.1 filed an application on 5.11.2016 under Order VII Rule 11(a) and (d) of the Code of Civil Procedure to reject the plaint mainly on the ground that the plaint does not disclose the cause of action and the suit is barred by limitation since the plaintiffs have kept quite for 36 years and brought out the suit for partition and therefore, the same is barred by law since their rights were extinguished after a lapse of 36 years and the father of plaintiffs and defendants executed Hiba during 1978 and therefore, sought for rejection of the suit.