DALIP SINGH & ORS Vs. AJIT SINGH

JUDGEMENT

(1.) The present petition, under Article 227 of the Constitution of India, is maintained against the impugned order, dated 18.11.2016, passed by the learned Civil Judge (Senior Division), Nadaun, District Hamirpur, whereby an application under Order 7 Rule 11 (d) of the Code of Civil Procedure, was dismissed.

(2.) The key facts, giving rise to the present petition are that the respondent/plaintiff (hereinafter referred to as 'plaintiff') has maintained a suit for declaration and injunction against the petitioners/defendants (hereinafter referred to as 'defendants') alleging that he (plaintiff) is owner-in-possession of land comprised in Khata No.31, Khatauni No.57, Khasra Nos.182, 194, 197, 198, 202, 203, 207, 208, 235, 236, 288, 327, 334, 336, 337, 341, 349, 364, 378, 379, 387, 388, 396, 403 and 404, kita 25, area measuring 1-67-77 hectares and Khata No.32, Khatauni No.56, Khasra No.352, area measuring 0-00-90 hectares, situated in Mahal Salehar, Mauza Bhumpal, Tehsil Nadaun, District Hamirpur, (H.P.) (hereinafter referred to as 'suit land'). As per the plaintiff, the suit land is joint Hindu coparcenary and ancestral property and Prem Dass, inherited the land from his father Shri Lachhman and Will dated 12.6.1998, vide No.148, is wrong, illegal and void. The plaintiff challenged the Will, dated 12.6.1998, which was allegedly executed by Prem Dass. It is further averred that deceased Prem Dass, was never executed any Will of his property. The cause of action arose, when the defendants threatened to alienate the suit property on the basis of alleged Will.

(3.) Defendant No.1 filed a separate written statement and taken preliminary objections that the plaintiff is estopped from filing the present suit, as the death of their father took place in the year 2003. The plaintiff personally got recorded the Will, dated 12.6.1998, vide rapat No.142, on 8.12.2004. Plaintiff was well aware of the alleged Will, dated 12.6.1998 and on the basis of said Will, plaintiff maintained two suits titled Ajit Singh vs. Rattan Chand, bearing Civil Suit No.187/2008 and Ajit Singh vs. Ram Kishan and others, bearing Civil Suit No.188/2008. Both the Civil Suits were maintained, on the basis of mutation No.38 and rapat No.142, on the basis of Will, dated 12.6.1998. Both the Civil Suits aforementioned were compromised by the plaintiff, as such, no cause of action arose in the year 2015, therefore, the plaint is liable to be rejected under Order 7 Rule 11 (d) of the Civil Procedure Code and for that purpose separate application filed and the said application was dismissed. Feeling aggrieved, the impugned order, dated 18.11.2016, passed by the learned Trial Court, the defendants maintained the present petition.