NANU RAM SHARMA Vs. ADDITIONAL DISTRICT JUDGE

JUDGEMENT

(1.) CHALLENGE in this writ petition is to the order dated 3rd July, 2010, whereby the learned Additional District Judge (Fast Track), No.2, Jaipur District, Jaipur, dismissed the application of the petitioners-defendants nos. 1 and 2 filed under Order 7 Rule 11 of CPC.

(2.) ADUMBRATED in brief, the facts leading to the writ petition are that the plaintiff-respondent no.2 Ram Gopal Sharma filed a suit for partition, declaration and permanent injunction against the petitioners-defendants nos. 1 and 2 and respondents-defendants nos. 3 to 8. It is averred in the plaint that the plaintiff is the son of Kani Devi, who happens to be the real sister of petitioner no.1. The defendants nos. 1 and 2 had adopted the plaintiff when his age was 5-6 years and since then, he has been residing with them in village Labana. The defendants no. 1 and 2 have treated the plaintiff as their son. The defendant no.1's real brother Mahadev was having no child and adopted Shankar (defendant no.5), who was the son of his real sister Manni. It is alleged that the defendants nos. 1 and 2 had executed a registered adoption deed dated 27th December, 2006. As the plaintiff was the only son of defendants nos. 1 and 2, he was cultivating the agricultural land and residing in the common house of defendants nos. 5 and 6. The residential house shown in the attached map is an ancestral property of the plaintiff and defendants nos. 1, 5, 6 and 7. It is also alleged that the ancestral land described in Para 5 of the plaint was also ancestral land and was in joint khatedari of defendants nos. 1, 5, 6 and 7. As the plaintiff was the son of defendant no.1, according to Hindu Succession Act, he was having right over the disputed property. The plaintiff-respondent prayed for partition of the agricultural land as well as residential house claiming 1/3 share for himself and defendant no.1, declaration that he was adopted son of defendant no.1 and also implored that the defendants be restrained from interfering in the use and occupation of 1/3 share of the plaintiff. The petitioners-defendants and the respondents-defendants filed the written statement of defence and denied all the averments made therein. The petitioners-defendants filed an application under Order 7 Rule 11 of CPC and implored the court to reject the plaint, as the plaintiff had no right to seek partition of the suit property and thus, suit for partition was barred by law. The learned trial court dismissed the said application and hence, this writ petition.

(3.) E converso, learned counsel for the respondents vehemently opposed the submissions made by the learned counsel for the petitioner and contended that the petitioners-defendants had already filed the written statement of defence and they were free to raise any plea with regard to cause of action and jurisdiction. Learned counsel further canvassed that the plea raised by the defendants to the effect that son was not entitled for any share during the life-time of his father, relates to the merit of the suit and the same was to be adjudicated after pleadings were exchanged and evidence adduced by both the parties in view of Hindu Succession Act. So far as the cause of action is concerned, it is well elucidated in the plaint and the judgments cited by the learned counsel for the petitioners do not hold good to the facts of the case on hand. The plaint can be rejected only when the case of the plaintiff is circumscribed by the conditions specified in Rule 11 of Order 7 of CPC. Learned counsel further defended the impugned order and stated the same to be just and proper and contended that the same did not warrant any intervention and thus, the writ petition being devoid of any merit deserves to be dismissed.