JASPAL SINGH Vs. DWINDER PAL SINGH

JUDGEMENT

(1.) THIS application under Article 227 of the Constitution of India has been preferred against Order No. 59 dated 16. 11. 2006 passed by Sri P. K. Chakraborty, learned Judge, Bench II, City Civil Court, Calcutta.

(2.) THE applicants' case is that the opposite party initiated Title Suit being No. 409/2006 in the City Civil Court, Calcutta as a plaintiff and prayed for a preliminary decree for partition of his one-third share of the schedule property in the plaint by claiming those properties as left by their father being sole owner and specifically on the death of their father, the opposite party became the owner in respect of one-third share therein. The applicants appeared in the suit and filed application under Order 7 Rule 10 read with Order 7 Rule 11 of the Code of Civil Procedure for return or rejection of the plaint alleging that the property situated at Delhi originally belonged to Viranwali Anand who before her death executed her last Will and Te. stament on October 20, 1986 bequeathing the said Delhi property in favour of the petitioners who subsequently obtained probate thereon after contested hearing in M. P. C. Case No. 129/2001, subsequently re-numbered as M. P. C. Case No. 151/2003 in the Court of learned Additional district Judge at Delhi and thereby the petitioners became joint owner of the said properties. Petitioners further claimed that in their application that other properties are tenanted properties and the tenancy cannot be partitioned and, moreover, those properties under tenancy were also transferred in favour of the petitioners within the knowledge of the opposite party. Petitioners further claimed that under the said facts and circumstances, the averments made in the plaint by the opposite party does not disclose any cause of action against the petitioners to initiate the said partition suit and for that reason the petitioners prayed in the said application in the suit for rejection of the plaint. The opposite party in course of contest in the probate proceeding in Delhi Court by filing objection thereto, and the plea was taken by him that they filed the suit for partition before the City Civil Court, Calcutta and also took the plea that the said will was manipulated document at the behest of the petitioners and before granting probate in the Will left by Viranwali Anand all those pleas of the opposite party were considered by the Probate Court.

(3.) PETITIONERS alleged that the learned Judge of the City Civil Court, calcutta without considering and discussing all those points raised in the said application under Order 7 Rule 11 of the C. P. C. , rejected the said application by order dated November 16, 2006 and being aggrieved thereon, the present application has been filed.