GULAM RASOOL Vs. MARIYAM

JUDGEMENT

(1.) THIS is defendant's revision petition directed against the order of learned District Judge, Pali dt. 27. 9. 89 in Civil Original Suit no. 32/72.

(2.) BRIEF facts of the case are that the plaintiff-non-petitioner no. 1 Mariyam filed a suit on 20. 9. 72 for declaration and possession of the disputed land Nohra, a well and building situated at Pali against the defendant-non-petitioner nos. 2 to 5 and also claimed damaged for Rs. 5100/ -. It was alleged that she purchased the disputed Nohra from the defendant no. 4 Smt. Pani Bai and defendant no. 5 Satya Narain with the consideration of Rs. 25,000/- on 30. 4. 1971 and the registered deed was executed on 6. 5. 71 at Jodhpur. The defendant No. 2 expired and his legal representatives no. 3 to 9 were taken on record. During the pendency of the suit, the defendants no. 4 and 5 had sold the disputed Nohra to the defendant no. 6 Gulam Rasool, the present petitioner for Rs. 40,000/- on 29. 8. 72 by a registered sale deed, the plaintiff on 25. 5. 78 sought an amendment to add para no. 5a to the effect that sale is void in favour of defendant no. 6 as the same is hit by doctrine of lispendence. The petitioner was added as defendant no. 6. During the course of argument an objection was raised that as the property is situated at Pali and registry was made at Jodhpur, the plaintiff sought another amendment on 10. 9. 82 alleging that in case the Court comes to the conclusion that the registry made at Jodhpur is not valid one, she has got another registry of the same disputed Nohra executed at Sub-Registrar, Office Pali, on 5. 9. 1980 on the basis of earlier sale deed dated 30. 4. 71, which bears signature of Pani Bai, her daughter Damyanti and defendant no. 5 Satyanarain as such she became exclusive owner of the disputed Nohra. The amendment was allowed on 11. 10. 82. During the pendency the defendant no. 3 has also expired on 31. 5. 86 but suit against him was abated as no steps were taken to bring L. RS. on record. The defendant-petitioner and Ors. filed separate written statement. Issues were framed on 4. 4. 75 and 22. 9. 79, issue no. 17 was framed and thereafter on 15. 3. 1980 four more issues no. 18 to 21 were framed, and additional issue no. 22 was framed on 5. 3. 83 to see the effect of document dt. 5. 9. 80. The petitioner filed an application under 0. 7 Rule 11 on 6. 8. 1988 alleging that the plaintiff has not disclosed how she has got proprietory right in her favour from defendants no. 4 and 5 and the registered deed dt. 30. 4. 71 and 5. 9. 1980 are no registry in the eye of law and there was no cause of action. The learned Distt. Judge after considering the relevant record dismissed the application. Hence, the defendant-petitioner has preferred this revision before this Court on 8. 1. 1990. It may be noted that during the course of evidence of Ibrahim sale deeds dt. 30. 4. 71 and 5. 9. 1980 were tendered in evidence and were taken on record and marked as Ex. 1 and Ex. 2 respectively, objections were raised for taking them on record. The Court vide order dt. 23. 1. 84 observed while deciding issue no. 10 that the earlier document is not properly registered and it cannot be taken in evidence, however, considered to be an agreement and be taken in evidence but observed that the effect on the parties of this document along with others will be considered later-on in the suit. The defendant-petitioner had moved an application on 19. 5. 84 but the same was dismissed on 23. 7. 84 holding that the issues no. 1,11,21 and 22 will be considered after taking evidence. A review was also filed but the same was dismissed on 28. 4. 84 for which a separate revision has been filed which is pending since 30. 4. 91 in this Court bearing no. Civil Revision No. 283/91.

(3.) IN Ajarhussain vs. Rajiv Gandhi (supra) it has been observed that the power to dismiss under 0. 7 Rule 11 CPC can be exercised at thresh hold.