ABEER SINGH Vs. SAVITA SHARMA

JUDGEMENT

(1.) By way of instant application filed under Order 7 Rule 11 read with Sec. 151 of the Code of Civil Procedure, prayer has been made on behalf of applicants- defendants No.1 to 5 and 9 to 11( hereinafter referred Whether the reporters of the local papers may be allowed to see the judgment? to as the defendants"), praying therein for rejection of plaint having been filed by the non-applicant(hereinafter referred to as the "plaintiff"), Master Abeer Singh, minor son of defendant No.7, who has filed the civil suit for declaration through his next friend/natural guardian Smt. Deepali Thakur(mother).

(2.) Defendants have averred in the application that since plaintif was not born at the time of death of Shri Khayali Ram, great grandfather and Smt. Damyanti great grandmother of the plaintif, he has no right, whatsoever to claim rights in the property of above named persons, which has been otherwise ordered to be distributed between all the applicants-defendants No.1 to 5 including defendants No.6 to 8 in terms of compromise arrived inter se parties before the Lok Adalat. Defendants have further averred in the application that Sh. Khayali Ram, great grandfather and Smt. Damyanti great grandmother of the plaintif had died on 9/12/1997 and 20/4/2007 respectively, and at that time plaintif was not born and as such, he is not entitled to claim any share and right in the property of above named persons, especially when he was not born on the date of opening of Succession of above named persons. Defendants have further averred that at present plaintif is living with defendants No.6 and 7, who have already received amount in terms of compromise and decree passed by Lok Adalat and same is being used for the benefit of the plaintif. At the time of birth of the plaintif, which took place on 25/3/2010, Succession of Smt. Damyanti Thakur and Sh. Khayali Ram was over and as such, plaintif can claim only to the extent of share of his father i.e. defendant No.7 and not over and above of his share. Defendants have further averred that parties to the suit are litigating for the last more than 10 years and settlement has arrived at between the parties, pursuant to whereof partition proceedings are in process, in accordance with law and as such, present suit which has been filed solely with a view to defeat the award passed by the Lok Adalat, deserves to be dismissed.

(3.) As per Sec. 41-B of Specific Relief Act, no injunction can be granted to restrain any person from instituting or prosecuting any proceedings in any Court not subordinate to that from which the injunction is sought. Apart from above, defendants have averred that plea taken by the plaintif is not tenable in view of the amended Hindu Succession Act,2005 whereby as per Sec. 6, daughters are also treated as coparcener in the coparcenary property, which is not partitioned as per law. Lastly, defendants have averred that plaintif has not disclosed any cause of action against the present defendants and as such, suit without cause of action deserves to be dismissed. Moreover, suit is against the award of Lok Adalat, which cannot be laid challenge in any court of law and as such, same deserves to be rejected outrightly. Defendants have averred in the application that plaintif for the purpose of acquiring jurisdiction of this Court, has assessed the value of the suit at Rs.50.00 lacs, but there is no specific averment with regard to basis for calculating and maintaining the suit before this Court.