SHAMBHU DAYAL Vs. RAMESHWAR DAYAL

JUDGEMENT

(1.) BY this petition, preferred at the instance of the petitioners -defendants under Article 227 of the Constitution of India, challenge is made to the order dated 3.7.2009 passed by the trial Court, where by application under Order 8 rule 6 A of the CPC; counterclaim of the defendants, has been rejected inter alia on the ground that subject matter of the suit and that of the counter -claim are in relation to different properties and the reliefs sought for, are also independent of each other, therefore, under such circumstances the provisions, as contained in Order 8 rule 6A are not attracted.

(2.) QUESTIONING the sustainability of the aforesaid order, learned senior counsel appearing for petitioners -defendants has submitted that the trial Court has not at all appreciated the nature of claim made in the plaint and the reliefs sought, in juxtaposition with the claim made in the counter -claim and the reliefs sought thereunder. As a result, the trial Court failed to take into consideration the actual facts on record and consequently misapplied the provisions as contained in Order 8 rule 6A, CPC, while rejecting the counter -claim. It is submitted that the suit is filed for declaration and injunction inter alia contending that the suit property was originally a Joint Hindu Family property belonging to parties to the suit, but by way of oral partition, the properties described in the suit had fallen into the share of the plaintiffs and, therefore, the aforesaid land be declared to be in the ownership and possession of the plaintiffs and consequently, the sale deed dated 14.2.2007 registered on 11.2.2008 executed by defendant No. 1 in favour of defendants No.2 and 3 in respect of the said property, be declared as null and void. In the alternative, it was prayed that if the aforesaid oral partition is not found to have been proved, relief be granted that defendant No. 1 had no right to execute the aforesaid sale deed in respect of the suit property which was of Joint Hindu Family, unless the same was partitioned by metes and bounds. Thirdly, relief of permanent injunction was sought against the defendants for not interfering with the peaceful possession of the plaintiffs in the suit property.

(3.) LEARNED senior counsel has thereafter referred to the written statement and the counter -claim made thereunder and submitted that the agricultural land falling in Survey No. 1497 and 1488 are Joint Hindu Family property. However, the plaintiffs have deliberately excluded the land falling in Survey No. 1488. Besides by the oral partition, suit land falling in Survey No. 1497, as well as, 1 Bigha and 1/2 Biswa land out of Survey No. 1488, had fallen into the share of defendant No. 1. It was submitted that the map annexed with the plaint was not correct and the plaintiffs have no right to claim any interest over the suit land falling in Survey No. 1497 and, accordingly, denied the averments made in the plaint.