Judgment

B.N. Mahapatra, J.

This Revision Petition under Section 115 of the Code of Civil Procedure, 1908 (for short, “CPC”) arises out of Civil Suit No.351 of 2009 on the file of learned Civil Judge (S.D.), Berhampur. In this Revision Petition challenge has been made by defendant No.1-petitioner to the correctness of the impugned order dated 23.04.2011 (Annexure-5) passed by the Civil Judge (Sr. Division), Berhampur rejecting two petitions separately filed under Order 7, Rule 11, CPC by defendant Nos. 1 and 3 praying for rejection of the plaint.

2. Defendant No.1-petitioner’s case is that opposite party No.1 being the plaintiff has filed a suit for partition in the Court of Civil Judge (Sr. Division), Berhampur bearing C.S. No.351 of 2009 against him and opposite party Nos.2 and 3 claiming the suit property as ancestral property and joint property of the parties. On receipt of summons in the aforesaid Civil Suit, defendant No.1-petitioner and opposite party Nos.2 and 3 entered appearance and filed their written statement. The defendant no.1-petitioner has filed an application under Order 7, Rule 11, CPC stating therein that the suit was not maintainable on the ground that the concept of ancestral property and joint family property is foreign to Mohammadan Law. In the said petition under Order 7, Rule 11, CPC, it was stated that Defendant No.1-petitioner is the exclusive owner in possession of the suit property more fully described in item Nos. 1 and 2 of plaint schedule and there being no joint family concept recognized under the principles of Mohammadan Law, no member of the family even if they reside jointly can claim any share in the property and any Mohammadan, who is the owner of the property, can dispose of his/her property to any one during his/her life time and property would devolve into his/her legal heir only after his/her death. As per Mohammadan Law concept of legal heir is not available during life time of any person. Therefore, the plaintiff-opposite party No.1 had no cause of action to file the suit during life time of the petitioner and accordingly prayed for dismissal of the suit. The plaintiff-opposite party No.1 had filed his counter to the petition filed under Order 7, Rule 11, CPC reiterating the pleadings made in the plaint. After hearing both the parties, the learned Civil Judge (Sr. Division), Berhampur rejected the petition made under Order 7 Rule 11 CPC filed by the petitioner vide order dated 23.04.2011 (Annexure-5). Hence, the present civil revision petition.

3. Naushina Ali, learned counsel appearing on behalf of the petitioner submitted that the Court below has failed to exercise the jurisdiction so vested in it and has exercised jurisdiction illegally and with material irregularity. Therefore, the impugned order under Annexure-5 is liable to be set aside and the suit is liable to be dismissed in view of Order 7, Rule 11, CPC as the plaint does not disclose any cause of action and the plaint is barred by law. The Lower Court without considering the case as per the principles of Mohammadan Law has passed the impugned order applying the concept of ancestral property and joint family properties as provided in Hindu Mitakshara Law.

4. It was submitted that the admitted case of plaintiff-opposite party no.1 is that the property described in Item No.1 of plaint schedule was purchased in the name of the present petitioner by registered sale deed in the year 1977 for which the plaintiff-opposite party no.1 has share in the said property. It was argued that whether the consideration money has been paid by her or somebody else on her behalf that cannot be raised in view of Benami Transaction (Prohibition) Act, 1988 (for short, “Act, 1988”) and the settled position of Mohammadan Law which does not recognize the concept of inheritance during the life time of any person. The Lower Court should have allowed the petition filed under Order 7, Rule 11, CPC, the plaint being hit by the principles of Mohammadan Law