The main legal point established in the judgment is the application of Order VII Rule 11 of the CPC and the interpretation of the rights of heirs under Muslim Law in property matters.

JUDGMENT :

1. The present revision application emanates from the order dared 22.10.2019 passed by the 17th Additional Senior Civil Judge, Vadodara rejecting the application filed by the applicant-original defendant No.4 by invoking the provisions of Order VII Rule 11(a) of the Code of Civil Procedure, 1908 (CPC) seeking rejection of the plaint.

2. Learned advocate Mr.Pandya appearing for the applicant-defendant No.4 has submitted that the entire plaint discloses an illusionary cause of action and has no relation with the prayers sought in the plaint, and hence the plaint is liable to rejected. He has invited attention of this Court to the prayers made in the plaint and has submitted that the same are also ill-conceived since the prayer clause is absolutely silent with regard to sale deed, which has been executed in favour of the defendant No.4 by the defendant Nos.2 and 3. It is further submitted that the entire suit is premised on the statement of fact made that the suit land, has been sold by the father of the plaintiffs along with the defendant No.1 initially by the registered sale deed dated 10.02.2009 to the defendant Nos.2 and 3 is without authority of law. It is submitted that in the plaint, it is averred that the father of the plaintiffs had no authority to sell the said land since the same was an ancestral property.

3. Learned advocate Mr.Pandya has placed reliance on the decision off the Full Bench of the Patna High Court in the case of Imamul Hassan Choudhary Vs. State, AIR 82 PATNA 89 for the proposition of law that as per the Muslim Law, right or interest in the property by the hiers can only be acquired, after the death of the father and during his life time, the major sons do not have any share or interest in the said property and it is absolute authority of the father to deal with such property. He has further submitted that the cause of action and the prayers as mentioned in the plaint appear to be absolutely ill-conceived. It is further submitted that the plaintiffs have already assailed the sale deed dated 10.02.2009 by instituting Special Civil Suit No.322 of 2012, which is still pending and during pendency of the said suit, the present revision application is filed. Thus, he has submitted that the impugned order may be quashed and set aside and the plaint may be ordered to be returned.

4. Per contra, learned advocate Mr.Malkan appearing for the original plaintiffs has submitted that the order passed by the Court below is required to be sustained since the same is appropriately passed. It is submitted that the plaintiffs have right, title and interest in the said property and their father, during his life time, has executed initially the sale deed dated 10.02.2009, which was without authority of law and without consulting them and hence, they were constrained to institute the suit being Special Civil Suit No.322 of 2012, which is pending. He has further submitted that subsequent sale deed dated 09.08.2017, which has been executed in favour of the defendant No.4, has given rise to institute the said suit in order to secure their possession. It is thus, submitted that the present revision application may not be entertained.

5. Heard the learned advocates for the respective parties and also perused the documents as pointed out by them.

6. This Court had apprised learned advocate Mr.Malkan about the consequences, which may fall on the pending suit of 2012 in view of the order passed in the present application however, he has sought to invite an order from this Court.

7. It is well settled proposition of law, that while dealing with the application under Order VII Rule 11 of the CPC, the averments made in the plaint as a whole and accompanied documents are only required to be examined and defence of the defendants cannot be considered.

8. In the present matter, the recitals of the plaint reveal that the plaintiffs have averred that the father of the plaintiffs had no authority to execute the sale deed dated 10.02.2009 i