PRAVINA Vs. BANSILAL RAMBHAU BHATKAR

JUDGEMENT

(1.) The applicants/original defendants have filed the present application under Sec. 115 of the Code of Civil Procedure, 1908 (for short "the Code") questioning the legality, correctness and propriety of the order dtd. 6/5/2023 passed by the learned Joint Civil Judge, Junior Division, Murtizapur below Exh. 59 in Regular Civil Suit No. 26/2020. By the said application, the applicants have sought rejection of plaint in terms of Order 7 Rule 11 of the Code.

(2.) It appears that non-applicant No. 1/original plaintiff has filed suit for partition, separate possession and permanent injunction. According to him, the property in dispute is an agricultural land bearing Gat No. 254/2, admeasuring 1.62 HR, situated at Village-Sirso, Taluka-Murtizapur, District-Akola. The said property will be hereinafter referred to as "the suit property". Non-applicant No. 1/plaintiff states that one Sonabai w/o Shivramji Bhatkar was the owner of the suit property. She expired 20 years back. She had four sons and one daughter. She had, in her lifetime on 15/7/1998, prepared a will, which inter alia includes the suit property. The will has been registered before the Sub-Registrar's office on 18/7/1998.

(3.) It is further the case of non-applicant No. 1 that a two storied building, a godown and four rooms have been constructed on the suit property. The said Sonabai has excluded the constructed area in the suit property and bequeathed remaining agricultural land in favour of the father of the plaintiff namely Rambhau, original defendant No. 2-Laxman (since deceased) and now represented by applicant Nos. 2(a) to 2(c) herein and original defendant No. 3-Ulhas (since deceased) and now represented by non-applicant Nos. 2(a) to 2(c) herein. This property was to be distributed amongst these three persons. Accordingly in the 7/12 extract, the entry as regards share of the persons named in the will, which comes to 0.54 R respectively has been taken. Though the area admeasuring 0.54 R is shown against each co-owner, considering the fact that the boundaries were not described in the will, separate share has been not mentioned in the 7/12 extract.