Advocates appeared :
For the Appellant : V. K. Bhardwaj, Rohit Batham
For the Respondent : Sumant Mishra

ORDER/JUDGMENT : – Shri V. K. Bhardwaj, Senior Advocate with Shri Rohit Batham, counsel for the petitioners.

Shri Sumant Mishra, counsel for the respondent No. 1.

This Civil Revision has been filed against the order dated 25-9-2019 passed by learned XIV Civil Judge Class I, Gwalior in Civil Suit No. 11A of 2019, Manish Gupta vs. Smt. Shakuntala Agarwal and others, whereby, the application filed by the petitioners/defendants under Order 7, Rule 11 of CIVIL PROCEDURE CODE has been dismissed.

2. Heard learned counsel for the parties and perused the material made available on record.

3. Learned Senior counsel for the petitioners Shri V. K. Bhardwaj, submits that on bare perusal of the plaint, undisputedly, the suit property was purchased by mother of the plaintiff who sold the same by registered sale deed to the petitioners. Thus, the suit property is to be taken as self acquired property of the mother of the plaintiff and alienation of the same cannot be challenged by anyone including her son. The suit property though falsely shown to be the joint family property, but alienation of joint family property also cannot be challenged by members of joint family except if the same has been sold for some unethical or illegitimate purposes only to deprive the family members of their share in such joint family property. In this case, no such ground has been even pleaded. Filing of the suit in the present case is glaring example of abuse of process of law only to harass and blackmail the petitioners/bona fide purchasers. Therefore, the suit is not maintainable at all.

4. Learned counsel for the petitioners further submits that the petitioners had purchased the suit property through a registered sale deed on 2-9-2005 from mother of the plaintiff. The plaintiff being a real son of the seller, is well aware of the fact of the sale deed and uninterrupted settled possession of the defendants over the suit property. Still the suit for declaration of the sale deed as null and void has been filed after fourteen years of the execution of the sale deed which is per se beyond limitation.

5. The suit has been filed on the premise that the suit property was purchased from the corpus of joint family in the name of mother and the mother alone was not competent to sell the same. Thus the suit has clear allegation of Benami Transaction and accordingly, the same is barred by section 4 of the Benami Transaction Prohibition Act, 1988.

6. The plaintiff has not sought relief of possession from the petitioners and accordingly, the suit is not maintainable as per proviso to section 34 of the Specific Relief Act.

7. The plaintiff has not adequately valued the suit with regard to the relief of partition as per market value of the property which is around Two Crore of rupees.

8. The grounds raised in the application under Order 7, Rule 11 of CIVIL PROCEDURE CODE are well established on bare perusal of the plaint itself, but the learned trial Court has dismissed the application in arbitrary manner. The petition deserves to be allowed. He has placed reliance upon the judgments rendered by Hon’ble Supreme Court in the case of Smt. Leelavathi (D) by LRs. vs. Shankarnarayana Rao (D) by LRs., reported in 2019 SAR (Civil) 672 and by this Court in Anand Kumar vs. Vijay Kumar and others , reported in 2012(3) M.P.L.J. 129, Mohd. Shakeel vs. Husna Bano and others , reported in 2017(2) M.P.L.J. 167 and in Anita Jain vs. Dilip Kumar and another , reported in 2018(1) M.P.L.J. 554.

9. Learned counsel for the respondent/plaintiff submits that the objections as to maintainability of suit have not been raised before the trial Court and no written statement has