SHASHI SINGH Vs. MATA BHAGWATI

JUDGEMENT

(1.) HEARD Mr. Sachidanand Choudhary, learned counsel for the petitioners and Mr. Sukumar Sinha, learned Senior Counsel appearing on behalf of the opposite parties.

(2.) IN C.R. No. 48 of 2001 the defendants, petitioners have assailed the order dated 16.12.2000, whereby and whereunder, the court below has rejected prayer of the petitioners for deciding the suit on preliminary objection as to the maintainability of the suit. It would be necessary to quote the prayer made in the said application filed by the defendants, petitioners which reads as follows: - "It is, therefore, prayed that your honour may be graciously pleased to reject the plaint/T. S. No. 171 of 2000/ 150 of 2000 before final adjudication of the same and/or before conclusive determination of the rights of the parties on the. instant preliminary issue as barred u/s 213 of the Indian Succession Act, and or pass such other order or orders as to your honour may deem fit and proper for the ends of substantial justice." This Court having examined the materials on record which have also been discussed at length in the impugned order while rejecting the aforementioned prayer would hold the court below has committed any jurisdictional error. It has to be always taken into account the maintainability of a suit in terms of Order XIV Rule 2 of the Code of Civil Procedure (C.P.C.) and rejection of plaint in terms of Order VII Rule 11 of the Code of Civil Procedure are two separate and distinct provisions to be dealt at two different stages.

(3.) THE submission of Mr. Choudhary that from very perusal of the plaint it would appear that the plaintiff, Mata Bhagawati, the deity had actually sought to claim the right, title and interest in the suit property on the basis of an unprobated registered will dated 30.6.1929 is itself misconceived. From the plaint which is Annexure -1 to this Civil Revision Application it would be clear that the case of the plaintiff deity is that a registered document was executed in which Raja Chandeshwar Prasad Narayan Singh had made a Will in the first part in favour of his wife Rani Deo Murat Kuer, wherein a provision was made that the entire property would stand endowed in favour of the deity if the said Rani did not adopt any son by way of male heir. There is no dispute that the Raja died on 28.9.1941 and after his death the legatee under the Will being Rani did not adopt any male heir and died on 29.6.1942. Thus, second part of the registered document allegedly being described as Will dated 30.6.1929 is said to have come into force and by virtue of the endowment in favour of the deity, it had come into possession ever since death of Rani in 1942. This has been only explained in the plaint by the plaintiff -deity while asserting its possession over the suit property by way of ragbhog and puja path etc. from the usufructs of the suit property since the death of Rani in the year 1942.