PRATAP SINGH CHOUDHARY Vs. MAHADEV

JUDGEMENT

(1.) This Civil First Appeal has been filed by the appellant-plaintiff (for short, 'the plaintiff) against the order dtd. 14/9/2021 passed by Addl. District Judge No. 2, Sambhar Lake, District Jaipur (for short, 'the trial court') in Civil Suit No. 8/2020 (4/2019), whereby the applications filed by the respondents-defendants no. 1 to 4 and 9 (for short, 'the defendants') under Order 7 Rule 11 CPC have been allowed and the suit filed by the plaintiff for declaring the judgment and decree dtd. 5/3/1998 as also the sale deed dtd. 15/2/2019 as null and void, partition declaration and permanent injunction has been dismissed.

(2.) Facts of the case are that the plaintiff filed a civil suit against the defendants for declaring the judgment and decree dtd. 5/3/1998 passed by ADJ, Sambhar Lake in Civil Suit No. 8/1997 as null and void, for declaring the sale deed dtd. 15/2/2019 as null and void, for partition, declaration and permanent injunction, wherein it was averred that the plaintiff and defendants are the successors of late Shri Suwa Lal Ji Jat, R/o village Rasulpura, Tehsil Phulera, Distt. Jaipur. Plaintiff and defendants' forefather Suwa Lal Ji died on 20/6/2002 and their grand mother Smt. Suwa Devi W/o Suwa Lal Ji died on 11/5/2002. Out of the wedlock of Smt. Suwa Devi and Suwa Lal Ji, three sons namely Mahadev, Shri Krishan and Shri Shyogi born. Defendants no. 5 and 6 are father and mother of the plaintiff and defendants no. 7 and 8 are his brothers. Defendant no. 2 Smt. Mooli Devi is the widow of late Krishan (one of the sons of Suwa Lal ji). She is Taiji of the plaintiff. Defendant no. 3 Moolchand is the son of Krishan. He is cousin brother of the plaintiff and defendant no. 1 and 4 are the husband and wife and they are uncle and aunt of the plaintiff. The plaintiff and the defendants are having the ancestral properties and the properties acquired from joint family fund, as disclosed in the plaint. The property, as described in para 4 of the plaint, is the ancestral property from the time of forefathers of Suwa Lal ji. In the year 1997, Suwa Lal and Smt. Suwa Devi filed a suit no. 8/1997 for partition and declaration before ADJ, Sambhar Lake, Distt. Jaipur. It was also averred that on the date of filing of the suit the plaintiff had born and he was about 13 years of age, but at the time of partition of the aforesaid ancestral properties, neither the plaintiff was made a party nor his rights were protected, whereas as per Hindu Succession Act, the plaintiff had acquired the right in the aforesaid ancestral properties since his birth. In the said suit, a compromise judgment and decree dtd. 5/3/1998 came to be passed, which is liable to be declared as null and void qua the plaintiff's rights. It was also averred that in order to take undue advantage in favour of the defendant no. 5, 6, 7 and 8, the defendant no. 5 illegally sold the property, which was received by him pursuant to the judgment and decree dtd. 5/3/1998 to defendant no. 9 by registered sale deed dtd. 15/2/2019. It was also averred that on 11/2/2019 the plaintiff came to know about the judgment and decree dtd. 5/3/1998 and he came to know about the sale deed dated 15.2/2/2019 on 17/2/2019. In this way, the cause of action was stated to have arisen on 11/2/2019 for which the suit was filed on 27/3/2019.

(3.) The defendants no. 1 to 4 filed an application under Order 7 Rule 11 CPC, wherein it was averred that the properties, as described by the plaintiff in para no. 4 of the plaint, were joint self acquired properties and not the ancestral properties. It was also pleaded that after taking into consideration the fact that the aforesaid properties were joint self acquired properties Civil Suit No. 8/1997 was decreed by the Court vide judgment dtd. 5/3/1998, therefore, neither the plaintiff had any right to file the suit nor any cause of action was accrued to him. It was further pleaded that on 5/3/1998, when the civil suit no. 8/1997 was decreed, the plaintiff disclosed him to be 13 years of age. In this way, when the plaintiff himself was minor, he had no income and he was pursuing his studies too, the expenses of which were bore by his father. Therefore, at the time of purchasing the properties, no financial help was given by him. It was further averred that in the year 2003, the plaintiff attained the age of 18 years and became major. He could have filed the objection for three years from the date of attaining the age of majority in relation to the judgment and decree dtd. 5/3/1998, but he did not file the objections till January, 2019. In this way, the plaintiff filed the suit challenging the judgment and decree dtd. 5/3/1998 after about 16 years, which being barred by law, is liable to be rejected.