KRISHNA KUMAR ANAND Vs. VARUN ANAND

JUDGEMENT

(1.) This civil revision under sec. 115 of the Code of Civil Procedure has been filed by the applicant (defendant No.1) assailing the order dtd. 22/9/2021 passed in Civil Suit No.14-A/2015 whereby First Civil Judge Class-I, Gadarwara has rejected his application under Order 7 Rule 11 of the Code of Civil Procedure [hereinafter referred to as the "Code"].

(2.) In brief, the facts of the case are that the applicant (defendant No.1) and respondent No.2 & 3 (Defendants) are real brothers. The respondent No.1 is plaintiff. The respondent No.4 is mother of respondent No.1 (plaintff) and the respondent No.5 is real brother of respondent No.1/plaintiff-Varun Anand. A civil suit has been filed by the respondent No.1 as plaintiff before the trial Court against the petitioner (defendant No.1) and other respondents No.2 to 7 seeking declaration, partition and possession as also claiming one-third share, out of one-fourth share of the land of his father situated in Mouza Gadarwara, Settlement No.119, Patwari Halka No.18/1 and to declare the entries made in Sanshodhan Panji No.99 order dtd. 30/6/2006 as null and void as also Sanshodhan Panji No.308 order dtd. 20/7/2014 passed in favour of respondent No.6/Defendant No.6 (Kapil son of present applicant) as null and void. The respondent No.1/plaintiff also claimed to decide his share under sec. 54 of the Code and after parititon through the competent court final decree be passed.

(3.) The applicant (defendant No.1) filed an application under Order 7 Rule 11 reard with sec. 151 of the Code alleging that partition of disputed land had already taken place on 30/6/2006 vide Sanshodhan Panji No.99, which is binding on the parties because there was written partition executed on 18/9/2005 between legal heirs of Mohanlal Anand, namely, applicant and his brothers, namely, Praveshchand, Gulshan Kumar, Kuldeep Chand. They were enjoying their respective possession according to mutual partition. Thereafter, father of respondent No.1 (plaintiff) himself sold some immovable property. He had not challenged the partition during his lifetime because that partition took place with the consent of all the brothers, therefore, property cannot be partitioned again as per law. Further, the suit is clearly time barred and in absence of any cause of action in favour of plaintiff, the suit is not maintainable, hence, the suit is liable to be dismissed.