SUDHAKAR SHARMA Vs. NANDINI MISHRA

JUDGEMENT

(1.) Instant petition has been preferred, invoking provisions of Article 227 of Constitution of India, for setting aside order dtd. 11/11/2019, passed by Additional District Judge, Solan, whereby application filed by the petitioners-defendants under Order 7 Rule 11 (d) of Code of Civil Procedure (in short 'CPC') has been rejected.

(2.) Main ground to make prayer for rejecting the plaint is that respondents-plaintiffs have never had possession of the suit property and, therefore, prayer to declare them owner in possession is devoid of merit and petitioners-defendants have preferred a suit for declaration only but without consequential relief seeking possession of the suit property and, therefore, suit is barred by provisions of Sec. 34 of the Specific Relief Act, 1963 (hereinafter referred to as the 'Act') and thus the plaint is liable to be rejected under Order 7 Rule 11 (d) CPC.

(3.) Plea of respondents-plaintiffs is that averments made in the application, filed for rejecting the plaint, are to be adjudicated and decided on merit in main suit and, thus, application is not maintainable at this stage. It has been claimed that respondents-plaintiffs have been visiting their grandfather's property during life time of their grandfather as well as thereafter and, therefore, it is never admitted by the respondents -plaintiffs that they were or are not in possession of the property, rather they have claimed their possession and, thus have prayed for declaration of ownership in possession.