VIJAY SINGH DEVAKAR Vs. JAIRAJ SINGH

JUDGEMENT

(1.) This civil revision is preferred by the original plaintiff-Vijay Singh Devakar (now dead, through LRs-Shamkuwar and others) challenging the order dtd.17/11/2011 passed by Civil Judge Class-I, Betul in Civil Suit No.31-A/2010 whereby trial Court has, by deciding the defendant 9-Smt. Ritu Tated's application under Order 7 Rule 11 CPC, invoked the provisions of Order 1 Rule 3A CPC and directed the plaintiff to file separate civil suits in respect of different causes of action accrued to the plaintiff during pendency of civil suit by virtue of alienations of the suit property made by defendant 1-Shashikala Bai in favour of defendant 3- Toshi Khandelwal and defendants 4 and 5 Arun Gothi and John Philips as well as by defendant 3-Toshi Khandelwal in favour of defendant 9-Ritu Tated.

(2.) Learned counsel for the petitioners/plaintiffs submits that the suit property originally belonged to three brothers-Vijay Singh, Basant Rao and Shivraj Singh. Basant Rao in his life time executed a Will in favour of Vijay Singh and similarly Shivraj Singh also executed a Will in favour of Vijay Singh. Basant Rao had died in the year 1996 and Shivraj Singh had died in the year 1995. He submits that as per plaint allegations although defendant 1-Shashikala Bai (now dead) was wife of Shivraj Singh, but there being strain relationship in between husband and wife, said Will was executed by Shivraj Singh in favour of plaintiff-Vijay Singh without giving any share to Shashikala Bai. He submits that in presence of Will executed in favour of the plaintiff, as Shashikala Bai had no right and wanted to alienate the property, therefore, instant suit was filed on 24/10/1997, but immediately thereafter she executed sale deed on 24/10/1997 itself in favour of defendant 3-Smt. Toshi Khandelwal. Thereafter, she further alienated part of the suit property on 19/3/1999 in favour of defendants 4 and 5-Arun Gothi and John Philips. Later on 18/11/2000 the defendant 3-Smt. Toshi Khandelwal also executed sale deed in favour of defendant 9-Ritu Tated. He submits that because all the alienations were made during pendency of suit by Shashikala Bai, therefore, Smt. Toshi Khandelwal, Arun Gothi, John Philips and Ritu Tated were made parties to the suit and the necessary relief for cancellation of sale deed was also claimed against the subsequent purchasers. He submits that although previously filed application under Order 7 Rule 11 CPC by Ritu Tated was dismissed on 9/8/2011, but on the basis of amendment allowed in the written statement on 7/10/2011, the defendant 9-Ritu Tated again filed an application under Order 7 Rule 11 CPC for rejection of plaint with the submissions that due to misjoinder of causes of action, instant suit is not maintainable and plaintiff is not entitled for any relief. Although by the impugned order itself, the grounds raised by way of application under Order 7 Rule 11 CPC were not found to be sustainable for rejection of plaint, but taking into consideration the provision of Order 1 Rule 3A of CPC, trial Court observed that the plaintiff is required to file separate civil suits in respect of separate causes of action accrued to the plaintiff, even during pendency of the suit. Learned counsel submits that trial Court has without taking into consideration the provision of Order 1 Rule 3A of CPC in real perspective, passed the impugned order, which is not sustainable and as the sale deeds were executed during pendency of suit, therefore, all the transferee purchasers being governed by the provision of Sec. 52 of the Transfer of Property Act, 1882 the plaintiff was not required to file separate civil suits against all the transferee purchasers. With these submissions, he prays for setting aside the impugned order.

(3.) Learned counsels appearing for the respondents support the impugned order and pray for dismissal of civil revision with the further submissions that although alienations took place during pendency of the suit, but as the plaintiff had no right over the property of Shivraj Singh, therefore, he should have filed separate civil suits even against the transferee purchasers on the basis of causes of action accrued to the plaintiff on the basis of sale deeds executed during pendency of the suit.