ABHIJIT JOY GHOSH Vs. AMIT KUMAR GHOSH

JUDGEMENT

(1.) An order dated September 27, 2022, passed by the learned Civil Judge (Senior Division) 2nd Court, at Barasat, in Title Suit No.636 of 2022, is impugned. The learned court rejected an application filed by the defendant/petitioner under Order 7 Rule 11 of the Code of Civil Procedure. The other part of the order rejecting an application under Sec. 151 of the Code of Civil Procedure, is not the subject matter of this proceeding.

(2.) The defendant/petitioner prayed for rejection of the plaint on the ground that the plaint did not disclose a cause of action. That the suit was not maintainable under Sec. 22 of the Hindu Succession Act, 1956 (hereinafter referred to as the said Act). That the plaintiff/opposite party did not have a preferential right in terms of the said provisions of law. No cause of action had arisen, leading to the filing of the suit. The share of the plaintiff/opposite party was never denied by the defendant/petitioner as would be evident from the averments in the plaint. As such, a suit for declaration and permanent injunction would not be maintainable. The plaintiff/opposite party could not prevent the defendant/petitioner, from disposing of his undivided share in the property, by invoking Sec. 22 of the said Act.

(3.) The plaintiff/opposite party filed an objection to the said application, inter alia, stating that the suit property was inherited by the plaintiff and the defendant from the original lessee Ajit Kumar Ghosh. The plaintiff and the defendant had half share each in the property. The plaintiff was a class-I heir under the Hindu Successions Act, 1956 and entitled to the benefit of Sec. 22 of the said Act. The plaintiff/opposite party further urged that he was also entitled to get a declaration of his status as the legal heir of the deceased lessee Ajit Kumar Ghosh. The provisions of Sec. 4 of the Partition Act, 1893, and Sec. 44 of the Transfer of Property Act, 1882, would also be applicable for the protection of his right.