VIMAL KUMAR JAIN Vs. MAHAVEER PARSAD JAIN

JUDGEMENT

(1.) This is defendants' revision petition filed against Order dated 4.12.2004 passed by Civil Judge (Jr. Dn.) Mahuwa (Dausa) in civil suit No. 09/2004, while rejecting his application moved Order 7, Rule 11, Civil Procedure Code, holding that suit is cognizable by civil court.

(2.) Defendant-petitioner & plaintiff (respondent) both are real brothers. Plaintiff filed suit before Civil Judge (Jr. Dn.) Mahuwa questioning validity of "Wills" dated 27.11.1984 and 24.7.1986, whereby testator (father of parties) executed in favour of defendant. In suit, the Wills are sought to be declared as non-est and void, and thereby holding him entitled for half share in the property in dispute being one of his successors. The Wills pertained to agricultural land as also two dwelling houses, etc. In suit, permanent injunction against defendant has also been prayed not to alienate and/or transfer suit property pendente lis.

(3.) Defendant got his name mutated in revenue records pertaining to agricultural land on the basis of Will allegedly executed in favour of legatee-defendant by the testator (their father). Earlier plaintiff (respondent) filed suit before revenue court (Asstt. City Magistrate, Mahuwa) for cancellation of mutation made in favour of defendant in succession and further prayed that he be held entitled to half share in agricultural land being co-successor but at that point of time, no prayer was made regarding validity of the Wills dated 27.11.1984 and 27.7.1996 which are under challenge in the instant suit. In revenue suit, the defendant pointed out in his written statement that mutation has been made on the basis of Will executed in his favour by their father and the Revenue Court has no jurisdiction to examine validity of the Wills; and thus he raised an objection that the prayer which plaintiff has made for seeking half of his share in agricultural holdings, is triable only by civil court and very remedy sought before revenue court, is without jurisdiction and has no competence to entertain such dispute. However. without examining merits of claim of either parties, revenue suit was dismissed by the A.C.M. Mahuwa vide Order dated 24.8.1995 U/O 9, Rule 8, Civil Procedure Code.