Case Note & Summary
The applicant, Laxminarayan Parmeshwarlal Jaiswal, original defendant No.1, filed a Civil Revision Application under Section 115 CPC challenging the order dated 18.07.2017 passed by the Civil Judge Junior Division, Barshitakli, in Regular Civil Suit No.74 of 2016. The trial court had rejected the applicant's application (Exh.46) filed under Order VII Rule 11(d) CPC for rejection of the plaint on the ground that it was barred by law. The suit was filed by respondent Nos.2 and 3 (original plaintiffs) against the applicant and respondent No.1 (original defendant No.2) seeking partition and separate possession of joint family property. The applicant argued that the plaint did not disclose any basis for exclusive possession of the property, which was admittedly joint family property, and that possession of one co-sharer is always on behalf of all co-sharers. He relied on the Supreme Court decision in Sakhahari Parwatrao Karahale v. Bhimshankar Pawatrao Karahale. The respondents contended that the plaint disclosed a cause of action and that the application was rightly rejected. The High Court held that under Order VII Rule 11(d) CPC, the court must only look at the plaint allegations and not the defence. The plaint clearly stated that the property was joint family property and that the plaintiffs were in possession of some portions while the defendants were in exclusive possession of other portions. The court found that the plaint disclosed a cause of action for partition and separate possession, and that the suit was not barred by law. The revision application was dismissed, and the trial court was directed to expedite the suit.
Headnote
A) Civil Procedure - Rejection of Plaint - Order VII Rule 11(d) CPC - Scope of Inquiry - Court must confine itself to plaint allegations and cannot consider defence - Held that application for rejection of plaint must be decided solely on the basis of averments in the plaint, without looking into the written statement or defence (Paras 3, 6). B) Hindu Law - Joint Family Property - Co-sharer's Possession - Possession of one co-sharer is deemed to be on behalf of all co-sharers unless there is a specific arrangement to the contrary - Held that a co-sharer in exclusive possession of joint family property cannot be treated as a trespasser unless there is ouster or denial of title (Paras 4, 7). C) Civil Procedure - Cause of Action - Partition Suit - Plaint seeking partition and separate possession of joint family property discloses a cause of action - Held that even if possession is with one co-sharer, the suit for partition is maintainable and not barred by law (Paras 7-8).
Issue of Consideration
Whether the plaint is barred by law under Order VII Rule 11(d) CPC for not disclosing a cause of action for exclusive possession of joint family property.
Final Decision
The Civil Revision Application is dismissed. The impugned order dated 18.07.2017 is confirmed. The trial court is directed to expedite the suit and dispose it of as early as possible.
Law Points
- Order VII Rule 11(d) CPC
- Rejection of plaint
- Joint family property
- Co-sharer possession
- Cause of action
