FATIMA BEGUM Vs. USMAN MOHAMMAD & ORS.

JUDGEMENT

(1.) THIS Revision Petition under Section 115 of the Code of Civil Procedure, 1908 (for short, "CPC") arises out of Civil Suit No. 351 of 2009 on the file of Learned Civil Judge (S.D.), Berhampur. In this Revision Petition challenge has been made by Defendant No. 1 -Petitioner to the correctness of the impugned Order Dated 23.04.2011 (Annexure -5) passed by the Civil Judge (Sr. Division), Berhampur rejecting two petitions separately filed under Order 7, Rule 11, CPC by Defendant Nos. 1 & 3 praying for rejection of the plaint. Defendant No. 1 -Petitioner's case is that Opp. Party No. 1 being the Plaintiff has filed a suit for partition in the Court of Civil Judge (Sr. Division), Berhampur bearing C.S. No. 351 of 2009 against him & Opp. Party Nos. 2 & 3 claiming the suit property as ancestral property & joint property of the parties. On receipt of summons in the aforesaid Civil Suit, Defendant No. 1 -Petitioner & Opp. Party Nos. 2 & 3 entered appearance & filed their written statement. The Defendant No. 1 -Petitioner has filed an application under Order 7, Rule 11, CPC stating therein that the suit was not maintainable on the ground that the concept of ancestral property & joint family property is foreign to Mohammedan Law. In the said petition under Order 7, Rule 11, CPC It was stated that Defendant No. 1 -Petitioner is the exclusive owner in possession of the suit property more fully described in item Nos. 1 & 2 of plaint schedule & there being no joint family concept recognized under the principles of Mohammedan Law, no number of the family even if they reside jointly can claim any share in the property & any Mohammedan, who is the owner of the property, can dispose of his/her property to anyone during his/her life time & property would devolve into his/her legal heir only after his/her death. As per Mohammedan Law concept of legal heir is not available during life time of any person. Therefore, the Plaintiff -Opp. Party No. 1 had no cause of action to file the suit during life time of the Petitioner & accordingly prayed for dismissal of the suit. The Plaintiff -Opp. Party No. 1 had filed his counter to the petition filed under Order 7, Rule 11, CPC reiterating the pleadings made in the plaint. After hearing both the parties, the Learned Civil Judge (Sr. Division), Berhampur rejected the petition made under Order 7, Rule 11 CPC filed by the Petitioner vide Order Dated 23.04.2011 (Annexure -5). Hence, the present civil revision petition.

(2.) NAUSHINA Ali, Learned Counsel appearing on behalf of the Petitioner submitted that the Court below has failed to exercise the jurisdiction so vested in it & has exercised jurisdiction illegally & with material irregularity. Therefore, the impugned order under Annexure -5 is liable to be set aside & the suit is liable to be dismissed in view of Order 7, Rule 11, CPC as the plaint does not disclose any cause of action & the plaint is barred by law. The Lower Court without considering the case as per the principles of Mohammedan Law has passed the impugned order applying the concept of ancestral property & joint family properties as provided in Hindu Mitakshara Law.

(3.) MS . Iqbal Shabiya, Learned Counsel, appearing on behalf of Plaintiff -Opp. Party No. 1 submitted that the impugned order under Annexure -5 is valid in law & needs no interference by this Court. It was submitted that the property under Item No. 1 was purchased in the year 1977 from out of the contribution of the Plaintiff & Defendant No. 2, but the sale deed was registered in the name of Defendant No. 1 -Petitioner as a mark of respect. Defendant No. 1 -Petitioner is the mother of Opp. Party Nos. 2 & 3 & such fact was admitted by them in the deed of agreement dated 13.12.2005 executed by them, when all the parties entered into an agreement to sell a portion of item No. 1 of plaint schedule property in favour of Smt. Kamini Maharana. Suit schedule Item No. II property stands recorded in the name of late Rakhia Bibi, who is the mother Defendant No. 1 -Petitioner. The mother of the Petitioner died in the year 1993 & thereafter the Plaintiff has got right over the property after her death. It was further submitted that since the plea of the Act, 1988 was not raised in the application filed by the Petitioner under Order 7, Rule 11, CPC the same cannot be raised for the first time in this revision petition.