SUNDER LAL SARDA Vs. PRADUMAN SARDA

JUDGEMENT

(1.) This application under Article 227 of the Constitution of India is directed against an order being NO. 31 dated 7th September, 2009 passed by the Learned Civil Judge (Senior Division) First Court at Barasat, North 24 Parganas, in Title suit No. 287 of 2010 by which the application for rejection of plaint under Order 7 Rule 11 of the Code of Civil Procedure filed by the defendant No.1, was rejected on contest. The defendant No.1 is aggrieved by the said order. Hence the said defendant has come before this Court with this application under Article 227 of the Constitution of India.

(2.) Heard Mr. Ray Chowdhury, learned Senior Counsel, appearing for the petitioner and Mr. Chatterjee, learned Advocate, appearing for the plaintiff/opposite party. Let me now consider as to how far the learned Trial Judge was justified in passing the impugned order in the facts of the instant case. The plaintiff has filed a suit for partition against the petitioner herein as well as the opposite parties No. 2 to 26 claiming his 1/21st share in the properties described in Schedules 'F' to 'H' and 1/42nd share in the properties described in the Schedule 'A' to 'E' of the plaint. It is stated by the plaintiff that all the properties excepting 'A' schedule property, are lying in different states beyond the territorial jurisdiction of the learned Trial Judge. Only the 'A' schedule property which is situated at Madhyamgram, P.S. Barasat in North 24 Parganas, is within the territorial jurisdiction of the learned Trial Judge.

(3.) The defendant No.1 has appeared in the said suit and filed an application under Order 7 Rule 11 of the Code of Civil Procedure inter alia praying for rejection of the plaint on the ground that since the Madhyamgram property which is described in schedule 'A' of the plaint is not a Hindu Joint Family property, the plaintiff cannot claim any share in the said property during the life time of his grandfather, namely, defendant No.1. THE said defendant claims that since the 'A' schedule property was the self acquired property of the defendant No.1 and his brother Kanailal Sarda, the plaintiff cannot claim any interest in the said property by birth. THE defendant thus claims that since admittedly the other properties are not located within the territorial jurisdiction of the learned Trial Judge and further since the plaintiff has no interest in 'A' schedule property, no part of the cause of action for the said suit had arisen within the territorial jurisdiction of the said Court. As such the jurisdiction of the learned Trial Judge cannot be invoked even though the 'A' schedule property is situated within its jurisdiction. THE learned Trial Judge rejected the defendant's said application under Order 7 Rule 11 of the Code of Civil Procedure by holding inter alia that though the defendant No.1 contended that the property mentioned in schedule 'A' of the plaint is his self acquired property but he himself declared the said property before the Income Tax and/or Wealth Tax Authority as karta of Sundarlal Sarda HUF. As such it cannot be decided at this stage as to whether the plaintiff has any share in the said property or not?