DALEEP SINGH Vs. GOPAL SINGH

JUDGEMENT

(1.) This revision petition is directed against the order dtd. 30/4/2022 passed by the learned Additional District Judge, Chirawa (Rajasthan) (for brevity, "the learned trial Court") whereby, an application filed by the petitioners/defendants (for brevity, "the defendants") under Order 7 Rule 11 CPC has been dismissed.

(2.) The relevant facts in brief are that the respondent/plaintiff (for brevity, "the plaintiff") filed a suit for partition and permanent injunction stating therein that in Ward No.21, near Bus Stand, Vidhyavihar, Pilani, there is an undivided property comprising of a plot with houses and shops constructed thereon under his and the defendants joint ownership. It was averred that the aforesaid property belonged to Late Ashu Singh, father of the defendant no.1 and grand father of the plaintiff and the defendant no.2 who, bequeathed the aforesaid property to his son, defendant no.1, through a registered will dtd. 19/5/2008. It was stated that since his father has acquired this property from his grandfather, it is an ancestral property in which he has 1/3rd share. Alleging that the defendants were trying to sale the subject property to third person, the decree as aforesaid was prayed for. Therein, an application filed by the defendants under Order 7 Rule 11 CPC has been dismissed by the learned trial Court vide order dtd. 30/4/2022, impugned herein. Assailing the order dtd. 30/4/2022, learned counsel for the defendants submits that in the plaint, it is averred that owner of the aforesaid property, i.e., Late Ashu Singh, father of the defendant no.1, had executed a registered will dtd. 19/5/2008 in favour of his son, who acquired absolute ownership over it and in view thereof, it does lie in the mouth of the plaintiff to claim the property to be the ancestral property having 1/3rd share in it. He submits that during the lifetime of his father, the plaintiff cannot claim any share in the property acquired by his father through the registered will. He submits that in these circumstances, the learned trial Court erred in rejecting their application filed under Order 7 Rule 11 CPC. He, therefore, prays that the revision petition be allowed, the order dtd. 30/4/2022 be quashed and set aside and the application filed by them under Order 7 Rule 11 CPC be allowed.

(3.) Per contra, learned counsel for the plaintiff submits that whether the will comprises of the entire property left behind by his grandfather Late Ashu Singh, is a question of fact which can be decided only after trial. He, therefore, prays for dismissal of the revision petition.